                                                                                        ACCEPTED
                                                                                    14-15-00443-CV
                                                                    FOURTEENTH COURT OF APPEALS
                                                                                 HOUSTON, TEXAS
                                                                               9/29/2015 5:11:54 PM
                                                                              CHRISTOPHER PRINE
                                                                                             CLERK

                            NO. 14-15-00443-CV

                                   IN THE                           FILED IN
                                                             14th COURT OF APPEALS
                                                                HOUSTON, TEXAS
        FOURTEENTH DISTRICT COURT OF APPEALS                OF  TEXAS
                                                             9/29/2015 5:11:54 PM
                                                             CHRISTOPHER A. PRINE
                                                                      Clerk
                           AT HOUSTON, TEXAS


                           JIM-DANIELS NNAH,
                                                Appellant
                                      v.

125 INTERESTS, INC., 6219 INTERESTS, LTD n/k/a 5600 INTERESTS,
            LTD. and DAVID NEAL GREENBERG,
                                                Appellees

               On appeal from the 270th Judicial District Court
                           of Harris County, Texas
                     Trial Court Cause No. 2012-23146

             JIM-DANIELS NNAH’S APPELLANT’S BRIEF


George F. May
State Bar No. 24037050
Lori Twomey
State Bar No. 24037621
TWOMEY | MAY, PLLC
2 Riverway, 15th Floor
Houston, Texas 77056
(713) 659-0000 Telephone
(832) 201-8485 Facsimile

Attorneys for Appellant Jim-Daniels Nnah

                    ORAL ARGUMENT REQUESTED
                 IDENTITY OF PARTIES AND COUNSEL

APPELLANT                     Jim-Daniels Nnah

APPELLANT’S COUNSEL

 (trial and appeal)           George F. May
                              george@twomeymay.com
                              State Bar No. 24037050
                              TWOMEY | MAY, PLLC
                              2 Riverway, 15th Floor
                              Houston, Texas 77056
                              (713) 659-0000 Telephone
                              (832) 201-8485 Facsimile

 (appeal only)                Lori Twomey
                              State Bar No. 24037621
                              lori@twomeymay.com
                              TWOMEY | MAY, PLLC
                              2 Riverway, 15th Floor
                              Houston, Texas 77056
                              (713) 659-0000 Telephone
                              (832) 201-8485 Facsimile

APPELLEES                     6219 Interests, Ltd. n/k/a 5600 Interests, Ltd.
                              125 Interests, Inc., and David Neal Greenberg

APPELLEES’ COUNSEL            Andrew P. McCormick
                              ammccormick@mlm-lawfirm.com
                              State Bar No. 13457100
                              Laurie A. Munoz
                              lmunoz@mlm-lawfirm.com
                              State Bar No. 24071782
                              McCormick, Lanza & McNeel, LLP
                              4950 Bissonnet Street
                              Bellaire, Texas 77401
                              (713) 523-0400
                              (281) 752-6329 (fax)



                                ii
                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

INDEX OF AUTHORITIES.................................................................................... vi

STATEMENT OF THE CASE ............................................................................... vii

ISSUES PRESENTED............................................................................................. ix

    I.      Under Texas law, a trial court commits error if it grants a no
            evidence motion for summary judgment on a claim not
            expressly presented in the motion. The only breach of
            contract issue raised by the Greenberg parties was that there
            was no evidence of the formation of a contract between
            5600 Interests and Nnah relating to property taxes. But
            Nnah’s pleadings never raised such a claim and instead
            asserted that Greenberg and 125 Interests breached their
            agreement to assign the Note to Nnah. Did the trial court
            error in granting summary judgment on Nnah’s breach of
            contract claim when that claim was not challenged in the no
            evidence motion for summary judgment? ................................................... ix

    II.     Under Texas law, a trial court commits error if the non-
            movant on a no evidence summary judgment motion
            presents more than a scintilla of evidence raising a genuine
            issue of material fact on each challenged element and claim.
            Nnah presented evidence that raised genuine issues of
            material fact regarding whether Greenberg, 125 Interests,
            and 5600 Interests each acted to deprive Nnah, who was the
            holder of all rights under the Note by assignment, of the
            benefit of property taxes that had previously been paid by
            5600 Interests on behalf of 125 Interests pursuant to the
            Note when held by 125 Interests. Did the trial court error in
            granting summary judgment on Nnah’s tortious interference,
            Texas Theft Liability Act, and declaratory judgment claims? ................... ix




                                                      iii
    III.     Under the Texas Theft Liability Act, an attorney seeking the
             award of attorney’s fees must present evidence that the fees
             incurred were reasonable and necessary. The affidavit of
             Andrew McCormick, attorney for the Greenberg parties,
             generally states that he charged the Greenberg parties $325
             per hour and, without providing any evidence of the basis of
             his conclusion, concluded that $15,000.00 was attributable
             to the theft claim. Did the trial court error in awarding
             attorney’s fees when there was no evidence as to how the
             fees were calculated and whether those hours were
             reasonable and necessary?......................................................................... ix

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE ARGUMENT ........................................................................7

ARGUMENT ...........................................................................................................11

    I.       The trial court erred in granting summary judgment against
             Nnah on his breach of contract claim because the Greenberg
             parties failed to challenge this claim in its no evidence
             motion for summary judgment .................................................................. 11

    II.      The trial court erred in granting summary judgment against
             Nnah on his tortious interference, Texas Theft Liability Act,
             and declaratory judgment claims because not all of those
             claims were challenged by the Greenberg parties and, of the
             claims that were challenged, there are genuine issues of
             material fact on each element of each challenged claim. .......................... 12

             A.     The trial court improperly granted summary judgment
                    on Nnah’s tortious interference claims against
                    Greenberg and 5600 Interests because the no evidence
                    motion for summary judgment failed to address all of
                    the pled interference claims and, in the alternative, the
                    evidence raises a genuine issue of material fact on
                    these claims ........................................................................................ 13




                                                           iv
            B.    The trial court improperly granted summary judgment
                  on Nnah’s Texas Theft Liability Act claim because
                  Nnah raised a genuine issue of material fact regarding
                  his theft claim against 5600 Interests and the
                  Greenberg parties no evidence motion for summary
                  judgment failed to challenge Nnah’s Theft claims
                  against Greenberg and 125 Interests ................................................ 17

            C.    The trial court improperly granted summary judgment
                  on Nnah’s declaratory judgment claim because it was
                  proper for Nnah to ask the trial court to declare the
                  meaning of a provision within the Assignment .................................. 20

III.       The trial court erred in awarding Appellees Greenberg, 125
            Interests, and 5600 Interests attorney’s fees because Mr.
            McCormick’s affidavit was insufficient to prove, as a matter
            of law, that the fees were reasonable and necessary ................................. 22

CONCLUSION AND PRAYER .............................................................................24

CERTIFICATE OF COMPLIANCE .......................................................................27

CERTIFICATE OF SERVICE ................................................................................28

APPENDIX

        TAB 1 – Trial court’s original order granting summary judgment

        TAB 2 – Trial court’s amended order granting summary judgment

        TAB 3 – Trial court’s order granting non-suit (making summary judgment
                final)

        TAB 4 – Assignment of promissory note and deed of trust from 125 Interests
                to Jim-Daniels Nnah

        TAB 5 – David Neal Greenberg admission that property taxes were paid
                under the note and pursuant to the deed of trust



                                                   v
                                     INDEX OF AUTHORITIES

Cases:

ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426 (Tex. 1997) .......................... 14

City of Laredo v. Montano, 414 S.W.3d 731 (Tex. 2013) ...................................... 23

Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) ..................................... 12

Johnson v. Brewer Pritchard, P.C., 73 S.W.3d 193 (Tex. 2002) ........................... 11

Smith v. Smith, 757 S.W.2d 422 (Tex. App.—Dallas 1988, writ denied) .............. 23

Timpte Indus., Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009) ...................................... 11

Statutes and Rules

Tex. Civ. Prac. & Rem. Code § 37.004(a) ............................................................... 21

Tex. Civ. Prac. & Rem. Code § 38.004 ................................................................... 23

Tex. Civ. Prac. & Rem. Code §§ 134.002-134.005 ................................................. 18

Tex. Civ. Prac. & Rem. Code. § 134.005(b) ........................................................... 23

Tex. R. Civ. Pro. 166a ............................................................................................. 22

Tex. R. Civ. P. 166a(c) ........................................................................................... 24

Tex. R. Civ. Pro. 166a(i) .......................................................................11, 12, 13, 17




                                                          vi
                         STATEMENT OF THE CASE

      The case in the trial court below involves many different parties and claims

all associated with a complex commercial real estate transaction. This appeal, in

contrast, is relatively straightforward and relates solely to the Appellant Jim-

Daniels Nnah’s purchase, from Appellee 125 Interests, of all rights and interests in

a promissory note, secured by a deed of trust and vendor’s lien upon the real estate.

Specifically, on appeal this case concerns whether the Appellees inappropriately

obtained a “refund” of property taxes, that had been paid under the Note and

pursuant to the Deed of Trust, after all rights and interests in the Note and Deed of

Trust had been assigned to Nnah.

      As relevant to this appeal, Appellees David Neal Greenberg, 125 Interests,

Inc., and 5600 Interests, Ltd. filed a no evidence summary judgment motion

covering some, but not all, of Appellant Nnah’s breach of contract, tortious

interference, Texas Theft Liability Act, and declaratory judgment claims and a

traditional motion for summary judgment on their attorney’s fees claims. (I C.R. at

141-75). Appellant Nnah timely filed a response to the motion attaching summary

judgment evidence. (II C.R. at 176-368). The Honorable Brent Gamble, presiding

judge of the 270th District Court of Harris County, Texas, granted Appellees’ no

evidence motion, dismissed all of Appellant’s claims, whether challenged or not,

and awarded Appellees attorney’s fees under the Texas Theft Liability Act. (II

                                         vii
C.R. at 369-70). On January 30, 2015, the Order was amended to correct an error

regarding the attorney’s fees. (II C.R. at 388-89). On February 2, 2015, Nnah

filed his notice of non-suit on his only remaining claims, against Harris County,

which was granted on February 17, 2015. (II C.R. at 391-93). The granting of this

non-suit as to Harris County made final the trial court’s previous summary

judgment order improperly dismissing all Nnah’s remaining claims against the

Greenberg parties. On March 3, 2015, Nnah filed a motion for new trial and, on

May 1, 2015, Nnah timely filed a notice of appeal. (II C.R. at 404-06).




                                        viii
                             ISSUES PRESENTED

 I. Under Texas law, a trial court commits error if it grants a no evidence motion
    for summary judgment on a claim not expressly presented in the motion. The
    only breach of contract issue raised by the Greenberg parties was that there
    was no evidence of the formation of a contract between 5600 Interests and
    Nnah relating to property taxes. But Nnah’s pleadings never raised such a
    claim and instead asserted that Greenberg and 125 Interests breached their
    agreement to assign the Note to Nnah. Did the trial court error in granting
    summary judgment on Nnah’s breach of contract claim when that claim was
    not challenged in the no evidence motion for summary judgment?

II. Under Texas law, a trial court commits error if the non-movant on a no
    evidence summary judgment motion presents more than a scintilla of evidence
    raising a genuine issue of material fact on each challenged element and claim.
    Nnah presented evidence that raised genuine issues of material fact regarding
    whether Greenberg, 125 Interests, and 5600 Interests each acted to deprive
    Nnah, who was the holder of all rights under the Note by assignment, of the
    benefit of property taxes that had previously been paid by 5600 Interests on
    behalf of 125 Interests pursuant to the Note when held by 125 Interests. Did
    the trial court error in granting summary judgment on Nnah’s tortious
    interference, Texas Theft Liability Act, and declaratory judgment claims?

III. Under the Texas Theft Liability Act, an attorney seeking the award of
     attorney’s fees must present evidence that the fees incurred were reasonable
     and necessary. The affidavit of Andrew McCormick, attorney for the
     Greenberg parties, generally states that he charged the Greenberg parties $325
     per hour and, without providing any evidence of the basis of his conclusion,
     concluded that $15,000.00 was attributable to the theft claim. Did the trial
     court error in awarding attorney’s fees when there was no evidence as to how
     the fees were calculated and whether those hours were reasonable and
     necessary?




                                        ix
                            STATEMENT OF FACTS

      Appellant, Jim Daniels Nnah (“Nnah”), is one of two managers of Coral

Pearls, LLC (“Coral Pearls”). Appellee David Neil Greenberg (“Greenberg”) is a

licensed real estate broker who is the sole owner, officer, and director of Appellee

125 Interests, Inc. (“125 Interests”). (II C.R. at 293-96). Greenberg is also the sole

member and manager of DG Realty, LLC, which is the sole general partner of

Appellee 5600 Interests, Ltd. f/k/a 6219 Interests, Ltd. (“5600 Interests”). (II C.R.

at 287-92). Greenberg is also the sole limited partner of 5600 Interests. (II C.R. at

283-87). Thus, Greenberg owns and controls 100 percent of both Appellee 5600

Interests and Appellee 125 Interests. (II C.R. at 283-96).

Purchase of Richmond Property, Acceleration of Note, and Bankruptcy

      In June of 2011, Coral Pearls purchased property located at 6219 Richmond

Avenue in Houston, Texas (the “Richmond Property”) from 5600 Interests. (II

C.R. at 241-60, 78). Coral Pearls financed $940,000.00 of the purchase price

through the lender DG Interests, Inc. (“DG Interests”), another entity of which

Greenberg is the sole director, president, and registered agent. (II C.R. at 261-65,

297-309). Under the terms of the promissory note executed on June 1, 2011

(“Note”), which was secured by a deed of trust and vendor’s lien upon the

Richmond Property (“Deed of Trust”), Coral Pearls was to pay $340,000.00 within

one month of closing and $55,000.00 each quarter until the Note was paid. (II

                                          1
C.R. at 261-65, 221-32). Coral Pearls paid the initial $340,000.00 payment and the

first quarterly payment of $55,000.00 in September of 2011.            Through a

Modification Agreement dated November 9, 2011, the due date of the second

quarterly installment was delayed until January of 2012. (II C.R. at 266-270). On

the same day, Nnah was added as an individual guarantor of the Note. (II C.R. at

194-200, 278).

      Coral Pearls completed the second quarterly payment on the Note on

February 17, 2012 and despite Greenberg’s acceptance of the payment, DG

Interests accelerated the Note, demanded that the balance of the Note be paid

immediately, and threatened to foreclose on Coral Pearls and take the Richmond

Property back. (II C.R. at 368). Although Coral Pearls did not agree that the loan

was in default, in March of 2012 Coral Pearls was forced to seek bankruptcy

protection to stop the threatened foreclosure. Once threatened with repossession of

the Richmond Property and entering bankruptcy, Coral Pearls made no further

payments on the Note and it did not pay the 2011 or 2012 property taxes totaling

$71,680.14. (II C.R. at 179, 279).

Lawsuit and First No Evidence Motion for Summary judgment

      On April 20, 2012, while the Coral Pearls bankruptcy was pending, DG

Interests filed the present lawsuit against Nnah individually to enforce Nnah’s

obligation as guarantor on the Note. (I C.R. at 5-8). Later in 2012, DG Interests


                                         2
assigned all of its rights in the Note, the Deed of Trust, and its Vendors Lien on the

Richmond Property to 125 Interests. (II C.R. at 273-74, 278). In response to the

lawsuit, Nnah filed counterclaims against DG Interests, joined Coral Pearls as a

third party plaintiff, and filed a third party petition against Greenberg individually

and against several of Greenberg’s parties, including Appellee 5600 Interests, DG

Realty, LLC, Greenberg & Company, Inc., and Greenberg & Associates, Inc. (I

C.R. at 33-49). Nnah’s original claims against these Greenberg parties were for

Negligence, Misrepresentation, Fraud, Conspiracy, Fraud in the Real Estate

Transaction, violations of the Real Estate Licensing Act, Alter-Ego, Successor

Liability and Respondeat Superior, and a claim for Rescission. (I C.R. at 33-49).

All of these claims were related to actions associated with the original real estate

transaction for the Richmond Property. In 2013, the Greenberg parties jointly filed

their first no evidence motion for summary judgment on all of these claims, which

the trial court granted on February 4, 2014. (I C.R. at 69-79, 113). The propriety

of this first summary judgment is not at issue on appeal.

Agreement for Nnah to Purchase Note from 125 Interests

      125 Interests had the right, pursuant to the Deed of Trust, to pay the property

taxes owed by Coral Pearls in order to protect its lien priority on the Richmond

Property. (II C.R. at 223-24). In accordance with this right, in January of 2013,

Greenberg directed that the 2011 and 2012 property taxes on the Richmond


                                          3
Property be paid from 5600 Interests’ checking account, but on behalf of 125

Interests, who was the holder of the Note. (I C.R. at 201, 212-13).

      In February of 2013, after these property taxes had been paid, Greenberg and

Nnah negotiated an agreement to settle the dispute between the parties whereby

Nnah would purchase the Coral Pearls’ Note from 125 Interests. (II C.R. at 205-

07, 278). Pursuant to the agreement, Nnah paid $683,920.10 and, in exchange, 125

Interests was to assign to Nnah all of its rights and interests in the Note, Deed of

Trust, and Vendors Lien associated with the Richmond Property, without

reservation. (II C.R. at 205-07, 278). While Nnah believed that Coral Pearls owed

less than the demanded amount, he was willing to pay the $683,920.10 demanded

by Greenberg because Nnah had determined through an examination of the tax

records that the property taxes for 2011 and 2012 had already been paid. (II C.R.

at 278-79).

      On February 21, 2013, Nnah paid the $683,920.10 to 125 Interests. (II C.R.

at 278). On the same day, Greenberg executed the negotiated Assignment, but he

refused to deliver the Assignment to Nnah claiming that he needed to first verify

receipt of the funds in his bank account. (II C.R. at 204-04, 78-79). On February

22, 2013, Greenberg acknowledged that the funds were received by wire transfer.

(II C.R. at 201). Although the terms of the Assignment had been agreed to, and

Nnah had fully performed his obligations under the Assignment, Greenberg


                                         4
refused to deliver the Assignment of the Note and Deed of Trust until Nnah agreed

to renegotiate the deal. (II C.R. at 278-79, 201).

      In an email sent on February 23, 2013, Greenberg stated that “We initially

calculated the sum of $683,920.10 due under the note …. We double checked our

calculations … and realized that we failed to include ad valorem property taxes for

years 2011 and 2012. These taxes totaled $71,780.24 and were advanced under

the note and pursuant to the deed of trust. Please wire transfer $71,780.20 to

our account ….” (II C.R. at 201). Greenberg attached to this e-mail an accounting

of what Coral Pearl allegedly owed under the Note, which was the first time Nnah

had seen an accounting. (II C.R. at 202). Nnah refused to modify the agreement

and, on February 26, 2013, his attorney sent a written demand that Greenberg

cause 125 Interests to perform as agreed. (II C.R. at 204-05, 78-79). Greenberg

agreed and, on March 1, 2013, he delivered the previously executed Assignment to

Nnah. (II C.R. at 279).

      It was only after Nnah refused to renegotiate the February 21, 2013

Assignment, that Greenberg, without informing Nnah, changed his position and

first claimed that 5600 Interests paid the property taxes in error. (II C.R. at 279).

On March 1, 2013, on the same day Greenberg delivered the Assignment to Nnah

and without informing Nnah of his intent, Greenberg submitted an application to

the Harris County Tax Office on behalf of 5600 Interests for a “refund” of property


                                          5
taxes. (II C.R. at 209-13). Although Greenberg had previously stated that these

taxes were “advanced under the note and pursuant to the deed of trust,” Greenberg

now claimed to the Harris County Tax Office that these payments were made in

“error.” (II C.R. at 201, 09-13). On April 9, 2013, the Harris County Tax office

refunded the $71,680.14 to 5600 Interests. As a result, Nnah was forced to pay to

the Harris County Tax Office $77,669.22 in property taxes, interests, and penalties.

(II C.R. at 280, 235, 238-39).

Appellee’s Second No Evidence Motion for Summary Judgment

      Prior to the trial court’s determination on the Greenberg parties’ first no

evidence motion for summary judgment, Nnah and Coral Pearls amended its

counter claim and third party petition. (I C.R. at 121-140). As relevant to this

appeal, Nnah added 125 Interests as a third party defendant and Nnah added new

claims of (1) Breach of Contract against Greenberg and 125 Interests, (2) Tortious

Interference with Contract against 5600 interests and Greenberg, (3) violation of

the Texas Theft Liability act against Greenberg, 125 Interests, and 5600 Interests,

and (4) requested a Declaratory Judgment that 125 Interests’ assignment of all of

its rights in the Note, Deed of Trust, and Vendor’s Lien actually assigned all rights

including the benefit of the property taxes paid by the previous noteholder pursuant

to the Note and Deed of Trust that had subsequently been assigned to Nnah. (I




                                         6
C.R. at 121-140). All of these “new” claims related to the Appellees actions in

obtaining the $71,680.14 property tax refund.

      The Greenberg parties, which included all three Appellees to this appeal,

filed a second no evidence motion for summary judgment on some, but not all, of

Nnah’s newly added claims. (I C.R. at 141-149). The Greenberg parties also

sought a traditional motion for summary judgment on their claim for attorney’s

fees under the Texas Theft Liability Act. (I C.R. at 141-49). The trial court,

improperly granted summary judgment and dismissed all of Nnah’s claims, even in

light of the genuine issues of material fact created by the summary judgment

evidence. (See II C.R. at 388-89).      The trial court also improperly awarded

Greenberg, 125 Interests, and 5600 Interests attorney’s fees despite the

insufficiency of Mr. McCormick’s affidavit regarding attorney’s fees. (See II C.R.

at 388-89).

                      SUMMARY OF THE ARGUMENT

      Nnah received an assignment of all right, title and interest in and to the Note

and Deed of Trust without any rights being reserved or withheld. At the time of

the assignment, as Nnah knew, the rights under the Note and Deed of Trust

included the right to be reimbursed from the debtor the $71,680.14 in property

taxes that the noteholder had, in Greenberg’s words, “advanced under the note and

pursuant to the deed of trust.”     Before delivering the assignment, Greenberg

                                         7
admitted in an email to Nnah’s counsel that $71,680.10 in property taxes had been

voluntarily paid by the lender as it had a right to under the Note and Deed of Trust.

After the assignment of all rights to Nnah, Appellee Greenberg, the sole owner and

director of 125 Interests and 5600 Interests, obtained a “refund” of the property

taxes from the Harris County Tax Office by stating that the taxes were not

voluntarily advanced by the lender (as Greenberg had admitted to Nnah) but were

“paid in error” by the former property owner 5600 Interests. As a result, Nnah was

forced to pay to the Harris County Tax Office $77,669.22 in property taxes,

interests, and penalties.

      The Greenberg parties presented a no-evidence motion for summary

judgment on some, but not all, of Nnah’s causes of action and claims. The trial

court erred by granting the no evidence motion for summary judgment claims not

expressly presented in the Greenberg parties’ no evidence motion.          The only

breach of contract issue raised by the Greenberg parties was that there was no

evidence of the formation of a contract between 5600 Interests and Nnah relating

to property taxes. But Nnah’s pleadings never raised such a claim and instead

asserted that Greenberg and 125 Interests breached their agreement to assign the

Note to Nnah.     The trial court’s summary judgment should be reversed because

there was no summary motion regarding Nnah’s breach of contract claims against




                                         8
Greenberg or 125 Interests regarding the assignment of the Note and Deed of

Trust.

         Under Texas law, a trial court commits error if the non-movant on a no

evidence summary judgment motion presents more than a scintilla of evidence

raising a genuine issue of material fact on each challenged element and claim.

Nnah presented evidence that raised genuine issues of material fact regarding

whether Greenberg, 125 Interests, and 5600 Interests each acted to deprive Nnah,

who was the holder of all rights under the Note by assignment, of the benefit of

property taxes that had previously been paid by 5600 Interests on behalf of 125

Interests pursuant to the Note when held by 125 Interests.        Nnah presented

evidence that he had agreed to pay, and did pay, the sum demanded by Greenberg

only after Nnah confirmed with the Harris County Tax Office that the lender had

paid property taxes for 2011 and 2012. Nnah presented evidence that Greenberg

admitted that the noteholder had advanced the taxes under the Note and pursuant to

the Deed of Trust. Nnah presented evidence that Greenberg had changed his

story—from voluntarily advanced under the Note to “paid in error”—in order to

improperly obtain a “refund” from the Harris County Tax Office. Nnah presented

evidence that this was done after the assignment of all rights, knowingly on the

part of the Greenberg entities while concealing their actions from Nnah. This

evidence, at the very least, raised issue of material fact requiring a trial on the


                                         9
merits. The trial court therefore errored in granting summary judgment on Nnah’s

tortious interference, Texas Theft Liability Act, and declaratory judgment claims.

      Because summary judgment on Nnah’s theft claims were improper, no

attorney’s fees should have been awarded to the Greenberg parties. Further, under

the Texas Theft Liability Act, an attorney seeking the award of attorney’s fees

must present evidence that the fees incurred were reasonable and necessary. The

only evidence presented by the Greenberg parties was the affidavit of their attorney

Andrew McCormick. But McCormick’s affidavit fails to meet the standard of

proof for the amount of attorney’s fees that were incurred and that they were

reasonable and necessary.     McCormick merely stated, generally and without

specificity and without time records, that he charged the Greenberg parties $325

per hour and, in an woefully inadequate attempt to segregate, concluded that

$15,000.00 was attributable to the theft claim without providing any evidence of

the basis of this conclusion. Nnah objected to McCormick’s affidavit. Even if

summary judgment had been proper on Nnah’s theft claims, the trial court still

erred in awarding attorney’s fees because there was no evidence as to how the fees

were calculated and whether the hours and fees alleged were reasonable and

necessary.




                                        10
                                   ARGUMENT

I.    The trial court erred in granting summary judgment against Nnah on
      his breach of contract claim because the Greenberg parties failed to
      challenge this claim in its no evidence motion for summary judgment.

      Under the Texas Rules of Civil Procedure, Appellees Greenberg, 125

Interests, and 5600 Interests had an obligation to specifically challenge each

element of each cause of action on which it claimed there was no evidence and any

unchallenged element or claim cannot rightfully become the basis of a grant of

summary judgment. Tex. R. Civ. Pro. 166a(i). It is well settled law that a trial

court cannot grant a summary judgment motion, whether traditional or no

evidence, on grounds not expressly presented in the motion. Timpte Indus., Inc. v.

Gish, 286 S.W.3d 306, 310 (Tex. 2009) (citing Johnson v. Brewer Pritchard, P.C.,

73 S.W.3d 193, 204 (Tex. 2002)).

      In Nnah’s second amended third party petition, Nnah specifically asserted “a

cause of action against David Neal Greenberg and 125 Interests, Inc. for breach of

contract.”   (I C.R. at 131). In their no evidence summary judgment motion,

however, the Greenberg parties only asserted that Nnah had no evidence that a

contract had been formed between Nnah and 5600 Interests regarding the property

taxes. (I C.R. at 144-45). The no evidence summary judgment motion fails to

mention Nnah’s breach of contract claim against Greenberg and 125 Interests,

which is a completely separate claim from whether a contract existed between


                                       11
Nnah and 5600 Interests. (I C.R. at 144-45). Although Nnah’s breach of contract

claim against Greenberg and 125 Interests was not challenged in their no evidence

summary judgment motion, the trial court nonetheless dismissed the claim. (II

C.R. at 388-89).         The trial court, therefore, committed reversible error in

dismissing Nnah’s breach of contract claim against Greenberg and 125 Interests

and this Court should remand Nnah’s breach of contract claim to the trial court for

a trial on the merits.

II.    The trial court erred in granting summary judgment against Nnah on
       his tortious interference, Texas Theft Liability Act, and declaratory
       judgment claims because not all of those claims were challenged by the
       Greenberg parties and, of the claims that were challenged, there are
       genuine issues of material fact on each element of each challenged claim.

       In responding to the no evidence summary judgment motion, the non-

movant “is not required to marshal its proof”; instead, as the non-movant, Nnah

must merely “point out evidence that raises a fact issue on the challenged

elements.” Tex. R. Civ. P. 166a(i); Brewer Pritchard, P.C., 73 S.W.3d at 207. A

genuine issue of material fact is raised if more than a scintilla of evidence is

produced establishing each of the challenged elements and claims. Ford Motor

Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). Circumstantial evidence may

be used to establish a genuine issue of material fact as long as the evidence is more

than mere suspicion. Id. at 601. And when reviewing the grant of a no evidence

summary judgment motion, this Court must also view the evidence in the light


                                          12
most favorable to Nnah. See id. The trial court erred in granting the Greenberg

parties’ no evidence summary judgment motion because Nnah met his burden of

producing more than a scintilla of evidence raising a genuine issue of material fact

on each element and claim challenged in the motion.

      A. The trial court improperly granted summary judgment on Nnah’s
         tortious interference claims against Greenberg and 5600 Interests
         because the no evidence motion for summary judgment failed to
         address all of the pled interference claims and, in the alternative, the
         evidence raises a genuine issue of material fact on these claims.

      As detailed in Section I of this brief, summary judgment is improper if it is

granted on an element or claim not challenged in the no evidence motion for

summary judgment.      Tex. R. Civ. P. 166a(i).     In the Greenberg parties’ no

evidence summary judgment motion, the Greenberg parties challenge that there

was no evidence of a contract between 5600 Interests and Nnah and, because there

was no contract, there could be no interference to cause Nnah damages. (I C.R. at

145). Nowhere in Nnah’s second amended third party petition does Nnah ever

claim that there was a contract between Nnah and 5600 Interests that could be

subject to interference. (See I C.R. at 121-140). However, Nnah’s petition does,

by incorporation of facts, give notice of tortious interference claims against

Greenberg and 5600 Interests for (1) interfering with Nnah’s Assignment

agreement with 125 Interests and, (2) interfering with Nnah’s contract, as assignee

of the Note and Deed of Trust, with Coral Pearls. (I C.R. at 123-132). The trial


                                        13
court, therefore, committed reversible error in dismissing Nnah’s Tortious

Interference claims against Greenberg and 5600 Interests, (II C.R. at 388), and this

Court should remand those claims to the trial court.

      In the alternative, even if the Greenberg parties no evidence motion for

summary judgment is stretched to include all of Nnah’s tortious interference

claims, Nnah submitted summary judgment evidence raising a genuine issue of

material fact on each element of his tortious interference claims. The elements of a

tortious interference with an existing contract claim are: (1) the plaintiff had a valid

contract, (2) the defendant willfully and intentionally interfered with the contract,

(3) the interference proximately caused the plaintiff’s injury, and (4) the plaintiff

incurred actual damage or loss. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d

426, 430 (Tex. 1997).

      The undisputed evidence shows that Nnah had a contract, known as the

Assignment, with 125 Interests. (II C. R. at 205-06). Under the terms of the

Assignment, 125 Interests assigned to Nnah all of its rights and interests in the

Coral Pearls Note, Deed of Trust, and Vendors Lien. (II C.R. at 205). One of the

specific rights at issue in this case is found in paragraphs 3 and 7 of the Deed of

Trust, where Coral Pearls had an obligation to preserve the priority of 125 Interests

lien by paying all taxes when due. (II C.R. at 223-24). If Coral Pearls failed to

pay the taxes, then 125 Interests was allowed to pay the taxes on behalf of Coral


                                          14
Pearls. (II C.R. at 223). If 125 Interests opted to pay the taxes, then the amount of

the paid taxes became part of the debt owed under the Note. (II C.R. at 224). In

other words, the paid taxes were part of the debt owed under the Note that was

purchased by Nnah. In February of 2013, Greenberg, on behalf of 125 Interest, and

Nnah negotiated an agreement whereby Nnah would purchase the Note and Deed

of Trust for $683,920.10 (an amount set by Greenberg and 125 Interests without

Nnah knowing how the amount was calculated), and in exchange, 125 Interests

would assign to Nnah all of its rights and interests in the Note, Deed of Trust, and

Vendors Lien associated with the Richmond Property, without reservation. (II

C.R. at 205-07, 278). While Nnah believed that Coral Pearls owed less than the

demanded amount, he was willing to settle for the demanded $683,920.10 sum

because he had determined through an examination of the tax records that the

property taxes for 2011 and 2012 had already been paid and that he would succeed

to the note holder’s rights when he was assigned the Note. (II C.R. at 278-79).

Therefore, through the Assignment agreement with 125 Interests, Nnah paid

$683,920.10 for the right to be paid by Coral Pearls the entire debt, which included

the previously paid property taxes. (II C.R. at 205-07, 278-79, 223-24).

Additionally, the Note and Deed of Trust now become a binding contract between

Nnah, the noteholder succeeding to all rights under the Note, and Coral Pearls as

the maker of the Note. (See II C.R. at 205-07, 221-231, 261-65, 272-75). And


                                         15
because Coral Pearls was in default on the Note, Nnah also had the right to

foreclose on the Richmond Property and recoup the amount owed to him under the

Note, which included the value of the property taxes paid under the Note and

pursuant to the Deed of Trust. (II C.R. at 221-231, 261-65).

      However, Greenberg and 5600 Interests interfered with Nnah’s rights under

these two contracts when Greenberg directed 5600 Interests to seek a “refund”

from the Harris County Tax office of the 2011 and 2012 property taxes that had

been paid on the property, thereby decreasing the value of the Note and

encumbering the land with a tax burden that, at the time of the Assignment, had

already been satisfied.   (II C.R. at 208-220, 233-34).        Although Greenberg’s

affidavit and 5600 Interest’s applications to the Harris County Tax Office alleged

that the taxes has been paid by 5600 Interests “in error,” Nnah presented

conflicting summary judgment evidence showing that (1) 5600 Interests did not

pay the taxes in error, but instead the taxes were advanced on behalf of 125

Interests under the Note and pursuant to the Deed of Trust, (II C.R. at 201), (2)

Greenberg, as the sole owner and person in control of both 125 Interests and 5600

Interests, knew that the taxes has been paid pursuant to a Note and Deed of Trust

that had been previously assigned to Nnah, (II C.R. at 201, 283-96), and (3) it was

only after Nnah refused Greenberg’s demand to renegotiate the February 21, 2013

Assignment, that Greenberg, without Nnah’s knowledge or consent, changed his


                                        16
position and first claimed that 5600 Interests paid the property taxes in error, (II

C.R. at 278-79, 201, 208-20). The result of this interference was a reduction in the

value of the Note, a re-burdening of the Richmond Property with a tax debt and

lien that had already been satisfied. Nnah was subsequently forced to pay an

additional $77,669.22 in back taxes and penalties to clear title to the property. (II

C.R. at 280, 235, 238-39, 278-81). Nnah would not have incurred these damages if

Greenberg and 5600 Interests had not interfered with his rights under his contracts

with 125 Interests and Coral Pearls.

      The trial court, therefore, committed reversible error in dismissing Nnah’s

tortious interference claims against Greenberg and 5600 Interests and this Court

should remand the claim to the trial court for a trial on the merits.

      B. The trial court improperly granted summary judgment on Nnah’s
         Texas Theft Liability Act claim because Nnah raised a genuine issue of
         material fact regarding his theft claim against 5600 Interests and the
         Greenberg parties no evidence motion for summary judgment failed to
         challenge Nnah’s theft claims against Greenberg and 125 Interests.

      The trial court erred in granting summary judgment on Nnah’s theft claims

against Greenberg and 125 Interests.        As detailed in Section I of this brief,

summary judgment is improper if it is granted on an element or claim not

challenged in the no evidence motion for summary judgment. Tex. R. Civ. P.

166a(i). The only theft claim challenged in the Greenberg parties’ no evidence

summary judgment motion was Nnah’s claim against 5600 Interests. (I C.R. at


                                          17
145-46).   However, Nnah pled individual theft claims under the Texas Theft

Liability Act against Greenberg, 125 Interests, and 5600 Interests. (I C.R. at 132).

The trial court, therefore, committed reversible error in dismissing Nnah’s theft

claims against Greenberg and 125 Interests, (II C.R. at 388), and this Court should

remand those claims to the trial court.

      The trial court further erred in granting summary judgment on Nnah’s theft

claim against 5600 Interests.      A person who commits theft by unlawfully

appropriating property with the intent to deprive the owner of property is liable for

the resulting damages. Tex. Civ. Prac. & Rem. Code ann. §§ 134.002-134.005.

Appropriation is unlawful if it is without the owner’s effective consent.          §

134.002(2). Even if the theft is committed by someone on behalf of another, any

“person who commits theft is liable for the damages resulting from the theft” and

the victim may recover damages. Id. 5600 Interests challenged that there was no

evidence (a) that 5600 Interests unlawfully appropriated any specific property, (b)

that 5600 Interests intended to deceive Nnah, (c) that 5600 Interests was not an

owner of the property alleged to be stolen or that Nnah was the owner of that

property alleged to be stolen, and (d) that the owner didn’t consent to the theft. (I

C.R. at 145-46).

      In response, Nnah produced more than a scintilla of evidence to raise a

genuine issue of material fact on each of these challenged issues. On March 1,


                                          18
2013, Nnah filed the Assignment of the Note and Deed of Trust from 125 Interests

in the real property records of Harris County. (II C.R. at 205-07, 278-79). Nnah

then foreclosed against Coral Pearls and, on March 5, 2013, Nnah purchased the

Richmond Property at a foreclosure sale. (II C.R. at 278-79). Therefore, the

undisputed summary judgment evidence shows that on March 5, 2013, Nnah was

the owner of the Richmond Property, the value of which was based on many

factors including the inherent value of the property and, as investigated by Nnah

prior to his purchase of the Note, the added value that all taxes had been previously

paid on the property.

      Nnah also showed that on March 1, 2013, Greenberg, on behalf of 5600

Interests, sought a refund of the 2011 and 2012 property taxes paid by 5600

Interests on the Richmond Property. (II C.R. at 208-20, 278-79). The March 1,

2013 application was denied and on April 2, 2013, 5600 Interests submitted a new

application for a refund of the taxes. (II C.R. at 208-20). On the date of this

second application, the evidence shows that Nnah was the record owner of the

Richmond Property. (II C.R. at 278-79). Although Greenberg’s affidavit and 5600

Interest’s applications to the Harris County Tax Office alleged that the taxes has

been paid by 5600 Interests in error, Nnah presented conflicting summary

judgment evidence showing that (1) 5600 Interests did not pay the taxes in error,

but instead the taxes were advanced on behalf of 125 Interests under the Note and


                                         19
pursuant to the Deed of Trust, (II C.R. at 201), (2) Greenberg, as the sole owner

and person in control of both 125 Interests and 5600 Interests, knew that the taxes

has been paid pursuant to a note and deed of trust that had been previously

assigned to Nnah, (II C.R. at 201, 283-96), and (3) it was only after Nnah refused

Greenberg’s demand to renegotiate the February 21, 2013 Assignment that

Greenberg, without Nnah’s knowledge or consent, changed his position and

represented to the Harris County Tax Office (without informing Nnah) that

Greenberg had caused 5600 Interests to pay the property taxes in error (II C.R. at

278-79, 201, 208-20). Construed in the light most favorable to Nnah, this evidence

raises a genuine issue of material fact regarding whether 5600 Interests, acting

under the control of Greenberg, violated the Texas Theft Liability Act.

      The trial court, therefore, committed reversible error in dismissing Nnah’s

violation of the Texas Theft Liability Act claim against 5600 Interests and this

Court should remand the claim to the trial court for a trial on the merits.

      C. The trial court improperly granted summary judgment on Nnah’s
         declaratory judgment claim because it was proper for Nnah to ask the
         trial court to declare the meaning of a provision within the Assignment.

      In Nnah’s second amended third party petition, Nnah requested a declaratory

judgment that the provisions in the Assignment between 125 Interests and Nnah,

which gave Nnah all of 125 Interests’ rights in the Note, Deed of Trust, and

Vendor’s Lien in the Richmond Property, meant that Greenberg, who owned and


                                          20
controlled both 125 Interests and 5600 Interests, could not direct 5600 Interests to

seek a refund of property taxes that had been paid on behalf of 125 Interests

pursuant to the Note and Deed of Trust because all rights had been transferred to

Nnah (including the benefit of the taxes advanced under the Note and pursuant to

the Deed of Trust) and that the paid status of those taxes was part of the benefit

bargained for in the Assignment. (I C.R. at 136, II C.R. at 201).

      Under the Texas Civil Practice and Remedies Code, a “contract may be

construed either before or after there has been a breach,” and “[a] person interested

under … writings constituting a contract … may have determined any question of

construction or validity arising under the … contract.” Tex. Civ. Prac. & Rem.

Code § 37.004(a).

      In their no evidence summary judgment motion, the Greenberg parties allege

that there was no evidence of a justiciable controversy and that a declaratory

judgment was improper because Nnah was asking the trial court to issue an

advisory opinion regarding whether Harris County should have refunded the

property taxes to 5600 Interests. (I C.R. 146-47). This contention, however, is not

supported by the pleadings or the evidence. Nnah never asked the trial court to

opine on a hypothetical situation. (I C.R. at 136). Instead, Nnah asked the trial

court to construe the meaning of the Assignment, the substance of which was

presented to the trial court as summary judgment evidence. (I C.R. at 153-54).


                                         21
The trial court, therefore, committed reversible error in dismissing Nnah’s

declaratory judgment claim and this Court should remand the case to the trial court

for a declaration of the meaning of the “all rights” provisions within the

Assignment.


III.   The trial court erred in awarding Appellees Greenberg, 125 Interests,
       and 5600 Interests attorney’s fees because Mr. McCormick’s affidavit
       was insufficient to prove, as a matter of law, that the fees were
       reasonable and necessary.

       In addition to the no evidence summary judgment motion, Greenberg, 125

Interests, and 5600 Interests also sought a traditional summary judgment on their

cross claim for attorney’s fees under the Texas Theft Liability Act. (I C.R. at 119).

Because the trial court erred in dismissing Nnah’s theft claims, the award of

attorney’s fees to the Greenberg parties was, of course, error. However, even if the

trial court had correctly dismissed the theft claims, an award of attorney’s fees was

still error because these Greenberg parties failed to meet their burden of presenting

competent summary judgment evidence proving the amount, necessity, and

reasonableness of the fees. See Tex. R. Civ. Pro. 166a.

       Under the Texas Theft Liability Act, a prevailing party1 is to be awarded

attorney’s fees as long as the fees are both “reasonable and necessary.” Tex. Civ.



1
 As detailed in section II(B) of Appellant’s Brief, the Greenberg parties only challenged the
Texas Theft Liability Act claim as it related to Appellee 5600 Interests. Therefore, Appellants
                                              22
Prac. & Rem. Code. § 134.005(b). Because reasonableness of the fees cannot be

presumed through judicial notice2, reasonableness is a question of fact that must be

established through competent evidence. See Smith v. Smith, 757 S.W.2d 422, 424-

426 (Tex. App.—Dallas 1988, writ denied) (stating that an agreement by a client to

pay a certain hourly rate is not proof of reasonableness); see also City of Laredo v.

Montano, 414 S.W.3d 731, 734-37 (Tex. 2013) (contrasting one attorney’s general

testimony without records, held to be insufficient, with co-counsel’s sufficient

detailed testimony).

       The only summary judgment evidence relating to the necessity and

reasonableness of the Greenberg parties’ attorney’s fees was an affidavit by their

attorney, Andrew McCormick. McCormick’s affidavit, however, is conclusory

and devoid of any substance relating to how the alleged fees were calculated or the

reasonableness of these alleged fees.3 (I C.R. at 150-52); See City of Laredo, 414

S.W.3d at 734-35. Not only did McCormick’s affidavit not include any billing

statements, contemporaneously generated time records, or details regarding


Greenberg and 125 Interests cannot be considered prevailing parties for determining attorney’s
fees.
2
 In our case, the trial court was not allowed to take judicial notice of usual and customary fees
because the statute authorizing the award of attorney’s fees does not allow for judicial notice, the
basis for the award of attorney’s fees was not Section 38.004 of the Texas Civil Practice and
Remedies Code, and judicial notice is only allowed when there has been a trial on the merits.
See Tex. Civ. Prac. & Rem. Code § 38.004.
3
   Nnah objected in his summary judgment response to McCormick’s affidavit on the same
grounds and repeat his objections in his motion for new trial. (II C.R. at 190-92).
                                                23
specific tasks performed, it didn’t even state how many hours were spent defending

against the Texas Theft Liability claim. (I C.R. at 150-52). McCormick further

contradicts himself by first stating that the fees for defending the Texas Theft

Liability Act claim were segregated from the other fees and then later stating that

the fees were not segregated. (I C.R. at 152). And while the affidavit recites that

he charged “his client” (singular) a total of $50,052.50 in attorney’s fees, and that,

in his opinion, “30% of such is a reasonable fee for defense of the theft claim,” he

provides no basis for why 30 percent is reasonable and he fails to segregate his fees

amongst his various clients.      (I C.R. at 152).    The affidavit is incompetent

summary judgment evidence because it is not clear, positive, direct, otherwise

credible, free from contradictions and inconsistencies, and could not have been

readily controverted. Tex. R. Civ. P. 166a(c).

        Therefore, even if this Court affirms the summary judgment on the

substance of the Texas Theft Liability Act claim, this Court should remand this

case to the trial court for a determination of reasonable and necessary attorney’s

fees.

                          CONCLUSION AND PRAYER

        The trial court erred in granting the Greenberg parties’ no evidence summary

judgment motion and dismissing all of Nnah’s Breach of Contract, Tortious

Interference, Texas Theft Liability Act, and declaratory judgment claims because

                                         24
(1) not all of Nnah’s claims were challenged in the Greenberg parties’ motion, and

(2) Nnah produced summary judgment evidence raising a genuine issue of material

fact on each challenged element and claim. Each of Nnah’s claims that are the

subject of this appeal are based on Appellees’ actions in obtaining a $71,680.14

property tax “refund” from the Harris County Tax Office on the Richmond

Property. And while Greenberg and 5600 Interests attempted to assert that 5600

Interests was entitled to the refund because it paid the taxes in error, Nnah

presented summary judgment evidence controverting this assertion and showing

that (1) 5600 Interests paid the taxes on behalf of 125 Interests under the rights

given the holder of the Note pursuant to the Deed of Trust, and (2) it was only after

Nnah refused Greenberg’s demand to renegotiate the Assignment that Greenberg

first claimed (to the Harris County Tax Office but not to Nnah) that the taxes were

paid “in error.” This evidence raises a genuine issue of material fact precluding

summary judgment.

      Further, the trial court erred in granting Appellees Greenberg, 125 Interests,

and 5600 Interests traditional motion for summary judgment on their claim for

attorney’s fees under the Texas Theft Liability Act because (1) only the claim

against 5600 Interests was challenged in the summary judgment motion,

preventing any award of attorney’s fees incurred on behalf of Greenberg and 125

Interests, and (2) the Greenberg parties failed to meet their burden of presenting


                                         25
competent summary judgment evidence proving the amount, necessity, and

reasonableness of the attorney’s fees.

       Therefore, Appellant, Jim-Daniels Nnah, respectfully requests this Court to

reverse the trial court’s grant of summary judgment in favor of Appellees David

Neil Greenberg, 125 Interests, Inc., and 5600 Interests, Ltd., and remand this case

for a trial on the merits.

                                         Respectfully submitted,

                                         /s/ George F. May
                                         _______________________________
                                         George F. May
                                         TWOMEY | MAY, PLLC
                                         Lori Twomey
                                         State Bar No. 24037621
                                         lori@twomeymay.com
                                         State Bar No. 24037050
                                         2 Riverway, 15th Floor
                                         Houston, Texas 77098
                                         (713) 659-0000
                                         (832) 201-8485 - Facsimile
                                         george@twomeymay.com

                                         Attorneys for Appellant




                                           26
                     CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rule of Appellate Procedure 9.4(i), the undersigned
certifies the brief complies with the type-volume limitation of Rule 9.4(i)(2)(3).

      1. EXCLUSIVE OF THE EXEMPTION PORTIONS IN TEX. R. APP.
         PRO 9.4.(i)(1), THE BRIEF CONTAINS: 6,464 words


      2. THE BRIEF HAS BEEN PREPARED: in proportionally spaced typeface

         using: Microsoft Word for Mac 2015 in Times New Roman 14-point font.



                                                  /s/ George F. May/
                                                  ______________________
                                                  George F. May




                                       27
                         CERTIFICATE OF SERVICE

As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify
that I have served this document on all other parties, which are listed below on
September 29, 2015 as follows:

Andrew P. McCormick
ammccormick@mlm-lawfirm.com
Laurie A. Munoz
lmunoz@mlm-lawfirm.com
McCormick, Lanza & McNeel, LLP
4950 Bissonnet Street
Bellaire, Texas 77401
(281) 752-6329 (fax)

  By (check all that apply)
          personal delivery
          mail
          commercial delivery service
    X     fax or eservice
    X     email: ammccormick@mlm-lawfirm.com, lmunoz@mlm-lawfirm.com




                                                /s/ George F. May/

                                             George F. May
Date: September 29, 2015




                                        28
                           APPENDIX

TAB 1 – Trial court’s original order granting summary judgment

TAB 2 – Trial court’s amended order granting summary judgment

TAB 3 – Trial court’s order granting non-suit (making summary judgment
        final)

TAB 4 – Assignment of promissory note and deed of trust from 125 Interests
        to Jim-Daniels Nnah

TAB 5 – David Neal Greenberg admission that property taxes were paid
        under the note and pursuant to the deed of trust
              TAB 1
Trial court’s original order granting
        summary judgment
                                                                                                   8/21/20145:18:03 PM
                                                                                                   Chris Daniel· District Clerk
RECOROER'S MEMORANOUM                                                                              Harris County
ThIS ,nslrumemIS 01 poor Cp.Jala,                                                                  Envelope No: 2245696
      alille Utile rJ I/I1agIl'l\l                                                                 By : PRINCE, SASHAGAYE S
                                                         Cause No. 2012-23146

               DG INTERESTS, INC.                                  §           IN THE CIVIL DlSTRlCT COURT
                    Plaintiff                                      §
                                                                   §
               v.                                                  §           OF HARRlS COUNTY, TEXAS
                                                                   §
               JIM-DANIELS NNAH                                    §           270" JUDICIAL DISTRlCT
                     Defendant                                     §
                                                                   §
               lIM-DANlELS NNAH                                §
                   Counter-Plaintiff and Third-Party Plaintiff §
                                                               §
               and CORAL PEARLS, LLC,                          §
                   Third-Party Plaintiff                       §
                                                                   §
               v.                                                  §
                                                                   §
               DG INTERESTS, INC.                                  §
                  Counter-Defendant                                §
                                                                   §
               125 INTERESTS, INC.,                                §
               6219 INTERESTS, LTD_ nIkIa 5600                     §
               INTERESTS, LTD., DG REALTY, LLC                     §
               DAVID NEAL GREENBERG,                               §
               GREENBERG & COMPANY, INC. and                       §
               GREENBERG & ASSOCIATES, INC.                        §
                   Third-Party Defendants                          §

                                     ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
                                                                 3-l
                            After considering Counter-Defendant, DG Interests, Inc., and Third-Party Defendants, 125
                                      6-1                                         0-1               7-f
               Interests, Inc., 6219 Interests, Ltd. nIkIa 5600 Interests, Ltd., DG Realty, LLC, David Neal Greenberg,
                        I-I                           ~--I
               Greenberg & Company, Inc., and Greenberg & Associates, lnc. 's no-evidence motion for summary

               judgment and traditional summary judgment, the pleadings, the response, the affidavits, and other

               evidence on file, the Court

                            GRANTS Counter-Defendant, DG Interests, Inc., and Third-Party Defendants, 125 Interests,

                Inc. , 6219 Interests, Ltd. nlkla 5600 Interests, Ltd ., DG Realty, LLC, David Neal Greenberg,

                Greenberg & Company, Inc., and Greenberg & Associates. Inc.'s no-evidence summary judgment and

                traditional summary judgment.




                                                                                                                    369
         IT IS ORDERED, ADJUDGED AND DECREED that Counter-Plaintiff and Third-Party

 Plaintiffs' causes of action for (I) breach of contract, (2) tortious interference with contract and

 business relations and expectancy, (3) theft under the Texas Theft Liability Act, (4) money had and

 received, and (4) declaratory judgment are dismissed.

         IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Counter-Defendant, DG

 Interests, Inc., and Third-Party Defendants, 1251ntere5ts, Inc., 62 19 Interests, Ltd. nlk/a 5600 interests,

 Ltd., DO Realty, LLC, David Neal Greenberg, Greenberg & Company. Inc., and Greenberg &

 Associates,lnc., do have and recover judgment of. from and against Counter-Plaintiff and Third-Party
                 Q - :l-            o.I- t
 Plaintiff, Jim Daniels Nnah and Coral Pearls, LLC, reasonable and necessary attorney's fees in the

 amount 0[$15,000.00 pursuant to the Texas Theft Liabi lity Act, all costs incurred herein together with

 interest on said judgment at the rate of five (5%) percent per annum from the date hereof until paid,

 for all of which let execution issue.

         All relief not expressly granted herein is denied. ·

         SIGNED on---t;      ~ f                                     ,20 14.




                                                           PRE~
 APPROVED AS TO FORM & SUBSTANCE:




BY:L~~¢;b~___
 ANDREW P. McCbRMlCK
 State Bar No. 13457100
 LAURIE A. MUNOZ
 Stat_ Bar No. 24071782
 4950 Bissonnet Street
 Bellaire, Texas 7740 I
 (713) 523-0400 I Fax (7 13) 523-0408

 Attorney for Counter-Defendant & Third-Party Defendants




                                                                                                        370
              TAB 2
Trial court’s amended order granting
         summary judgment
                                                                                                         1/21/20154:55:38 PM
                                                                                                         Chris Daniel - District Clerk
                                                                                                         Harris County
RECORDER'S MEMOR,AtlDUM                                                                                  Envelope No: 3852661
This IIlSIrurneoIlS 01 pool' ~~t,
     a\ the lome 0I11l1391n1i1
                                                                                                         By : PRINCE, SASHAGAYE 5
                                                              Cause No. 2012-23146

               DG INTERESTS, INC.
                    Plaintiff
                                                               §
                                                               §
                                                                                     IN THE CIVIL DISTRICT COURT              P-3
                                                               §
               v.                                              §                     OF HARRIS COUNTY, TEXAS                             )-

               JIM-DANIELS NNAH
                      Defendant
                                                               §
                                                               §
                                                               §
                                                                                     270" JUDICIAL DISTRICT       ~i X
                                                               §
               JIM-DANIELS NNAH                                §
                   Counter-Plaintiff and Third-Party Plaintiff §
                                                               §
               and CORAL PEARLS, LLC,                          §
                   Third-Party Plaintiff                       §
                                                               §
               v.                                              §
                                                               §
               DG INTERESTS, INC.                              §
                   Counter-Defendant                           §
                                                               §
               125 INTERESTS,INC.,                             §
               6219 INTERESTS, LTD. nlkla 5600                 §
               INTERESTS, LTD., DG REALTY, LLC                 §
               DAVID NEAL GREENBERG,                           §
               GREENBERG & COMPANY,INC. and                    §
               GREENBERG & ASSOCIATES, INC.                    §
                   Third-Party Defendants                      §

                                  AMENDED ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

                             After cons idering Counter-Defendant, DO Interests, Inc., and Third-Party Defendants, 125

               lnterests, Inc., 6219 Interests, Ltd. nIkIa 5600 Interests, Ltd., DO Realty, LLC, David Neal Greenberg,

               Greenberg & Company, Inc., and Greenberg & Associates, Inc. 's no-evidence motion for summary

               judgment and traditional summary judgment, the pleadings, the response, the affidavits, and other

               evidence on fi le, the Court

                                 GRANTS Counter-Defendant, DO Interests, lnc. , and Thi rd-Party Defendants, 125 Interests,

                Inc., 62 19 Interests, Ltd. n/kJa 5600 Interests, Ltd., DG Realty, LLC, David Neal Greenberg,

                Greenberg & Company, Inc. , and Greenbe rg & Associates, Inc.'s no-evidence summ ary judgment and



                                                                         -1 -



                                                                                                                       388
     traditional summary judgment.

                 IT IS ORDERED, ADJUDGED AND DECREED that Counter-Plaintiff and Third-Party

     Plaintiffs' causes of action for (1) breach of contract, (2) tortious interference with contract and

         business relations and expectancy, (3) theft under the Texas Theft Liability Act, (4) money had and

         received, and (4) declaratory judgment are dismissed.

                 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that C,,"lItel-Def<ttd.ttt, DG

         Interests, IR.o, anti Third-Party Defendants, 125 Interests, Inc., 6219 Interests, Ltd. nlk/a 5600 Interests,

                          ""'"
         Ltd., DG Realty, bbl':, David Neal Greenberg, GreeRb€lrg & Ce1+lf8RY, lAO ., BRe GI'eeHberg &.

         Associates, Inc., do have and recover judgment of, ITom and against Counter-Plaintiff and Third -Party

         Plaintiff, Jim Daniels Nnah, reasonable and necessary attorney's fees in the amount of $15,000.00

         pursuant to the Texas Theft Liability Act, all costs incurred herein together with interest on said

     judgment at the rate offive (5%) percent per annum from the date hereofuntil paid, for all of which

         let execution issue.

                 All relief not expressly granted herein is denied.
                                                                                  ~
                 SIGNED on         ~ 'YO                                      ,20J4:


                                JAN foZ015
                                                                                                     ----
         APPROVED AS TO FORM & SUBSTANCE:

         McCORMICK, LANZA & McNEEL, LLP


BY:.__   ~~~~_~~~~~~-~-________
         ANDREW P. McCORMICK
         State Bar No. 13457100
         LAURIE A. MUNOZ
         State Bar No. 24071782
         4950 Bissonnet Street
         Bellaire, Texas 7740 I
         (713) 523-0400 I Fax (713) 523-0408

         Attorney for Counter-Defendant & Third-Party Defendants


                                                               -2-


                                                                                                                 389
              TAB 3
Trial court’s order granting non-suit
 (making summary judgment final)
                                                                                 2/2/2015 2:02:06 PM
                                                                                 Chris Daniel - District Clerk
                                                                                 Harris County
                                                                                 Envelope No: 3985341
                                                                                 By: PRINCE, SASHAGAYE 5
                                                                                 Filed: 21212015 2:02:06 PM
                                          NO. 2012-23146

DG INTERESTS, INC.
     Plaintiff,
                                               §
                                               §
                                                               IN THE DISTRICT COURT OF
                                                                                                     p-\
                                                                                                   ~
                                               §
v.                                             §               HARRIS COUNTY, TEXAS
                                               §
JIM-DANIELS NNAH                               §
     Defendant                                 §               270" JUDICIAL DISTRICT            8Pf0!-';;')
                                                                                                 3rt>1I II- i)
     ORDER GRANTING NONSUIT OF JIM-DANIELS NNAH'S CLAIMS AGAINST
                 HARRIS COUNTY WITHOUT PREJUDICE

       On this day, in the above referenced cause. the Court considered Defendant Jim-Daniels

Nnah's Notice of Nonsuit of his claims against Harris County, and Request for Order of Nonsuit
                                                    ,
After considering the notice and request, any response, the pleadings on file, and the argument of

counsel, if any, it appears to the Court that an Order of Nonsuit should be entered.

       It is, therefore, ORDERED, ADJUDGED, AND DECREED that the claims that

Defendant lim-Daniels Nnah has asserted against Harris Counly in     th~ abuv~   rererenced lawsuit are

hereby nonsuited and that such nonsuit is with prejudice as to refiling same.

       SIGNED this    12-        day of   ~015.

                      FEB 1 72015                           ~
                                               JUDGE PRESIDING

Approved and Entry Requested:

Twomey I May, PLLC

lsI George F. Mayl     __

George F. May - TBA No. 24037050
                1h
2 Riverway, 15 Floor
Houston, Texas 77056
Telephone: (713) 659-0000
Telecopier: (832) 20 1-8485
Email: george@twomeymay.com
Attorneys for lim-Daniels Nnah




                                                                                                     393
                  TAB 4
 Assignment of promissory note and deed of
trust from 125 Interests to Jim-Daniels Nnah
 -, "



                                                        ASSIGNMENT                                : 20:1:·30..09>:6-'772
                                                                                                    03,F()1:.F2013. RPl .120 . 00

         THE STATE OF TEXAS
                                                                KNOW ALL MEN BY THESE PRESENTS :
         COUNTY OF HARRIS


                  THAT 125 INTERESTS, [NC., a Texas corporation (hereinafter called "Assignor"), for
         and in . consideration of the sum of Ten Dollars (SI0.00) and oth~ .good and valuable                                                   I~'
         considerations to' Assignor in hand paid by Jim Daniels Nnah, whose address is                                                          ~
          ,t ; o,,'i kcJ9CV""cKHouston, Texas 77~ (hereinafter called " Ass ignee"), the receipt
         and s ufficiency of w h ich is hereby acknowledged, has GRANTED, TRANSFERRED and
         ASSIGNED, and does by these p resents GRANT. TRANSFER and ASSIGN, unto said Assignee,
         without !ccourse on Assignor. the following :                                                                             .      ...

                         . 1.    Promissory note ("Note") dated June I , 20 11 , exec4ted by CORAL
                  PEARLS. LLC. a Texas limited liability company ("Borrower") payable in ins~lImen~ as
                  therein provided to the order of DO INTERESTS. IN'e., in the original principal wnotint
                  of $940,000.00, which Note was ass igned by DG INTERESTS, INC. to Assignor under an
                 .A ssigrunent dated on or about July 25, 2012, recorded under Clerk' s File No.
                  20120336478 in the Official Public Records of Real Property of Harris County; Texas;

                         2.      All rights, titles, interests, privileges, c laims, demands and equities existing
                  and to exist in connection with or as security for the payment of said Note and the
                  indebtedness evidenced thereby, existing under lh;e tenns and provis ions of the Note,
                  including without limitation the following:

                         Vendor's Lien retained in Deed dated of approximately eve n date with the Note
                  from DO INTERESTS, mc. to Borrower recorded in the Real Property Records of
                  Harris County, Texas, covering the Property (defined below);               .

                           Deed of Trust, Security Agreeme nt and FinanCing Statement (the "Deed of Trust")
                   of even date with the Note, executed by Borrower in favor of MARK. J. TORMEY,                                                        D-
                   Trustee. and DO INTERESTS, INC., as "Beneficiary." and being recorded under County
                  C lerk's File No . 20110229585 in the Real Property Records of Harris County. T e xas.
                   covering the property described as ALL THAT CERTAIN" 0.426 ACRE OF LAND OUT
                   OF LOT ONE HUNDRED TWENTY-ETGHT (128) IN BLOCK TWO (2) OF
                   GLENHAVEN ESTATES, SECTLON 2, AN ADDLTION IN HARRlS COUNTY,
                   TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN VOLUME
                   19, PAGE 59. OF THE MAP RECORDS OF HARRlS COUNTY, TEXAS, AND BEINO
                   THE SAME AS THAT CERTAIN CALLED 0.42615 ACRE TRACT SITUATED IN
                   THE ROBERT VINCE SURVEY, A-77, HAR1US COUNTY, TEXAS, AND
                   D E SCRIBED IN WARRANTY DEED. DATED NOVEMBER II, 1991, FROM JAMES
                   P . LONGNECKER TO RlCARDO POBLETE, TRUSTEE. SAID 0.426 ACRE BEING
                   MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS IN EXHIBIT "A"
                 ' AITACHED THERETO AND MADE A PART THEREOF FOR ALL PURPOSES (the
                   "Property"); and

                        Assignment of Rents and Leases (the" Assignment of Rents") of even date with the
                 Note. executed by Borrower in favo r ofDG INTERESTS, ll'lC., as A s s igne e , recorded in
                 the Real Property Records of Harris County. Texas, covering the Property.

                 TO HAVE AND TO HOLD said Note, together and along with all rights, titles, interests,
        liens, security interests, privilege s, claims, demands and equities now or hereafter held by Assignor
        in connection therewith or a s security therefor unto Assignee, its successors and assigns forever.


         C :\OOCUMENTS AND SETT1NGS\DAVIDI\LOCAL SETTINGS\TEMPORARY INTERNET
         FILE S\CONTENT_ OUTLOOK\BYN3WJAK\ASSIGNME NTOFCORALNOTE . DOC~



                                                                                        RECORDER'S MEMORANDUM
                                                                                                Exhlbl l (' ) Nut Attached


                                                                                                                         -_ .. -          ---~




Any provision herein which restrict lhe salc, rental or use of the descri bed Real Property beca use of color or race is invrtlid an d
une nforceab le under t hc Federal Law. Confidentia l Info r mation may have been redacted from the document in compliance with
the Public Information Act.

                                                                                                                         \\ \\ tlIIIUIII
                                                                                                                                  11
A Certified Copy                                                                                                 "",    ~ HAIl b 11111
Attest: 7/ 18/20 13                                                                                                          ..'
                                                                                                              ~~...:'-.O ••••••• !I'Ij~...
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Stan Stanart, County Clerk                                                                                 ~S- .,
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                                                                                                                                                         ~~
    __~~~~",,~r.n~~r-
      stacey Renee Guerrero __~Depury                                                                           ~"" '"
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                                                                                                                                   205
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                           T his Assig nm en t is m a d e wit h o u t w a r ra nty, express or Implied , Qnd is mad e w itho ut
                   reco urse o n A ss igno r .

                           [N TESTIMONY WHEREOF, 125 fNTERESTS, INC., a Texas corporation, bas caused
                  this ins trument to be executed by its du1y authorized officers and its corpomte seal to be affixed
                  hereto, thi s the 'Z \ s.-1' day of February, 2013.

                                                                                        125           STS, INC., a Texas corporation                       \1If'...'

                                                                                        BY::~~~~~~~~~~==========
                                                                                        Name: Dav1.d Gr eenberg
                                                                                        Title:Prea:1.dent


                  THE STATE OF TEXAS

                   COUNTY OF

                            This instrument was acknowledged before me on the                       .> I S"'- day   of F:cbruary, 2013, by
                          GAI/ I D             <;?R.[-:J..:;,\r t'h<irlfj                   tol2&6·             ofl25 INTERESTS. INC.,
                  a Texas corporation, for and on behalf of said corpolttion.




                                                                                                  ublic, Stat        exas


                   RETURN TO:

                   Two",''y / """'!, ;?Uc..
                   jJt)   ,8P)"   C;,. 7cf
                  K;~y-"'" T,t' 773?5' -~57'f




                   C:\DOCVM ENTS ANO SliTTfN05lDA VIO!\l..OCAI. SI!TTINOS'.TI!MPORARY INTER.NBT
                   FlLES'COtn'ENT.01Trt.OOK\BYW3W1AK\ASS!GNMEN'TOf"CORAI.NOTE.OOCX ·l·




          Any provision herein which restrict the sale, rental or use ofthc described Real Proper ty because of color or race is invalid and
          unenforceable under the Federal Law. Confidential inCormation may have bccn rcdacted from the document in compiillOce with
          t he Public Informatio n Act.

                                                                                                                                          \\\\UIIIIIIIIII.
          A Certified Copy                                                                                                        ,,\\\ ~ HAR""'"
          Attest: 7/1812013                                                                                                    ~'
                                                                                                                              ~6..:
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                                                                                                                               ~~"':'-.O .•••••• !I'/.r ~i
                                                                                                                                                               .
                                                                                                                                                          . .,..~
                                                                                                                                                           ·" '0'<-~
          Stan Stan art, County Clerk                                                                                        .::~- .
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          Ha rris County, Texas                                                                                             :: 0 :
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                  Stacey Renee Guerrero                                                                                             "'1.'111111111111\\\'
                                                                                                                                              7\ " ""
                                                                                                                                                    206
                                                       MAR - 1 2013
                                                         .s-,.'-_ ;i;.f-_...:e-
                                                               COUNTY OlJIAIC
                                                               HAA .... COU""""'. TllKA8




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                                                                                       - -- -- - - - - -- -

Any provision herein which restrict the sale, rental or use of the described Real Property because of color or race is invalid and
unenforceable under tbe Federal Law. Confidential information may have been redacted from the document in compliance with
the Public Informatio n Act.


A Certified Copy
Attest: 7118/2013
Stan Stanar!, County Clerk
Harris Counly, Texas



_~_;;:---->
    """'~_--=-_ _ '-___
      Stacey Renee Guerrero
                                                  DcputY

                                                                                                                      207
                 TAB 5
   David Neal Greenberg admission that
property taxes were paid under the note and
        pursuant to the deed of trust
George May

From:                              Jim Daniels <jimdani@ictglobal.org>
Sent:                              Thursday, January 02, 2014 5:02 PM
To:                                George May
Subject:                           Fwd: Coarl Pearl - Jim Nnah
Attachments:                       6219 - Coral Pearls Balance-2- 23.xls; Untitled attachment 00970.htm

Flag Status:                       Flagged




Sent from my iPhone

Begin forwa rded message:

       From: David Greenberg <david@greenbergcompaoy.com>
       Date: February 23, 2013 at 10:03:36 AM CST
       To: '"lv@larryvick.com '" <'lv@larryvick.com '>
       Cc: "' rsommer.s@nathJnsommer.s.com '" <rsommers(Q)o<lthansommers.com>, 'Ji m Daniels'
       <jimdJni(Q) ictglobaL org>
       Subject: RE: Coarl Pearl· Jim Nnah
       Reply·To: David Gree nberg <david@greenbergcompJny.com>

        M r. Vick

        We agreed through our bankruptcy attorney t o sell the note t o Mr. Nnah for th e unpaid balance of the
        note. We initially calculat ed the sum of $683,920.10 due under the note w hi ch we received yesterday
        evening by w ire transfer. We double checked our calculations pri or to com pleting the sale and rea li zed
        that we fail ed t o include the ad valorem property t axes for yea rs 2011 and 2012. These t axes totaled
        $71,780.24 and were adva nced under the note and pursuant t o the deed of trust . Please w ire
        transfer$7 1.780.24 to our account so that we ca n complet e thi s transaction on the agreed terms by
        Monday February 25, 2013 .

       Thanks.

       David Greenberg
       Greenberg & Company
       5959 Richmond, Suite 440
       Uouston, Texas 77057
       Tel. 713·778·0900
       Fax. 713·782·7445




                                                                                                                201
