                                                                               ACCEPTED
                                                                          02-15-00004-CV
                                                               SECOND COURT OF APPEALS
                                                                    FORT WORTH, TEXAS
                                                                      1/6/2015 9:47:34 PM
                                                                           DEBRA SPISAK
                                                                                   CLERK

                 NO. _____________


                                                        FILED IN
                     IN THE             2nd COURT OF APPEALS
               COURT OF APPEALS           FORT WORTH, TEXAS
 SECOND DISTRICT OF TEXAS AT FORT WORTH,01/06/2015
                                         TEXAS 9:47:34 PM
                                                      DEBRA SPISAK
                                                         Clerk



IN RE: PANINA, INC d/b/a JA CONSTRUCTION SERVICES

                          Relator
                            v.

    THE HONORABLE MELODY WILKINSON, JUDGE
             OF THE 17th DISTRICT OF
            TARRANT COUNTY, TEXAS

                       Respondent


              PETITION FOR MANDAMUS
        In Cause No. 17-266141-13 pending in the
               17th Judicial District Court of
                  Tarrant County, Texas
        Honorable Melody Wilkinson, Presiding Judge




                                    JOHN P. KNOUSE
                                    Law Office of John P. Knouse
                                    16970 Dallas Parkway
                                    Bldg 300
                                    Dallas, Texas 75248
                                    (972) 380-1188 (Telephone)
                                    (921) 367-5982 (Telecopier)
                                    e-mail: knouselaw@yahoo.com
                                    ATTORNEY FOR RELATOR


                                    January 6, 2015
                     IDENTITY OF PARTIES AND COUNSEL


Relator/Plaintiff:         PANINA, INC d/b/a JA CONSTRUCTION SERVICES

Relator/Plaintiff's Counsel John P. Knouse
                            SBOT No. 11624000
                            Law Office of John P. Knouse
                            16970 North Dallas Parkway, Bldg 300
                            Dallas, Texas 75248
                            E-mail:knmouselaw@yahoo.com
                            Tel: (972) 380-1188
                            Fax: (214) 367-5982

Respondent:                Hon. Judge Melody Wilkinson
                           Tim Curry Justice Center - 8th Floor
                           401 W. Belknap
                           Fort Worth, TX 76196
                           Tel: (Nancy Bentley, Coordinator (817)-884-1460
                           Fax:.(Nancy Bentley, Coordinator: Unknown

Defendant's Counsel        Lane Addison
                           SBOT No.2509355
                           Henley & Henley, P.C.
                           3300 Oak Lawn Avenue, Suite 700
                           Dallas, Texas 75219
                           E-mail:raddison@henleylawpc.com
                           Tel: (214) 821-0222
                           Fax: (214) 821-0124




                                        i.
                                  TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. .................................................. .i

TABLE OF CONTENTS ....................................................................... .ii, iii

INDEX OF AUTHORITIES .................................................................... .iv,v

STATEMENT OF THE CASE ..................................................................... 2

STATEMENT OF JURISDICTION .............................................................. 3

ISSUES PRESENTED FOR REVIEW ............ '" ...... '" ............ '" .......... , ........ .3


        ISSUE NUMBER ONE:

        DID THE TRIAL JUDGE ABUSE HER DISCRETION AND EXCEED
        HER      STAUTORY AUTHORITY    IN  DENYING   REALTOR'S
        TRADITIONAL MOTION FOR SUMMARY JUDGMENT AND
        REALTOR'S "NO EVIDENCE" MOTION FOR SUMMARY JUDGMENT
        BASED SOLEL Y UPON HER IMPROPER CONSIDERATION OF
        DEFENDANT'S SUMMARY JUDGMENT EVIDENCE PRESENTED BY
        AFFIDAVITS     OF WITNESSES   PREVIOUSLY   COMPLETELY
        UNIDENTIFIED BY DEFENDANT IN PRIOR REPONSE TO REQUESTS
        FOR DISCLOSURES, MANADTORILY EXCLUDED BY T.RC.P. RULE
        193.6(a)?


        ISSUE NUMBER TWO:

        DID THE TRIAL JUDGE ABUSE HER DISCRETION BY PERMITING
        DEFENDANT TO PRESENT A DEFENSE TO REALTOR'S SWORN
        ACCOUNT, PRECLUDED AS A MATTER OF LAW BY T.RC.P. RULE
        185 WHERE THE DEFENDANT'S AMENDED ANSWER DENYING THE
        ACCOUNT WAS NOT PROPERLY SWORN TO BY A WITNESS
        HAVING PERSONAL KNOWLEDGE AS REQUIRED BY T.RC.P. RULE
        93 (10) WITHOUT A SHOWING OF PERSONAL KNOWLEDGE IN THE
        AFFIDAVIT AND WHOSE AFFIDAVIT OPPOSING SUMMARY
        JUDGMENT SHOWED HE HAD NO PERSONAL KNOWLEDGE BUT
        ONLY HEARSAY INFORMATION?

                                                ii.
STATEMENT OF FACTS ......................................................................... 4, 5

SlJMMAFl~      OF TIIE AFlCJlJMENT ............................................................. 6

AFlCJlJMENT AND AlJTIIOFlITIES ON ISSlJE NO. 1. .................................... 7-10

AFlCJlJMENT AND AlJTIIOFlITIES ON ISSlJE NO.2 ....................................... 10-13

PItA ~EFl FOFl FlELIEF ........................................................................... 13

CEFlTIFICATE OF SEFlVICE .................................................................... 15

VEFlIFICATION OF PETITION FOFl MANDAMlJS ........................................ 16

APPENDIX ............... '" ............ '" ........................... '" ........................... 17




                                                  iii.
                                   INDEX OF AUTHORITIES

         Cases                                                                        Page(s)
Alvarado v. Farah Mfg. Co. Inc., 830 S.W.2d 911 (Tex. 1992) ...................... 6,8

Braniff Inc. v. Lentz, 748 S.W.2d 297,300 (Tex.App.-Ft. Worth 1988) ....... 11

Brownlee v. Brownlee, 665 SW 2d 111, 112 (Tex. 1984) ...................... 11

Burke v. Satterfield, 525 SW.2d 950, 955(Tex. 1975) .......................... 11

Cantu v. Holiday Inns, Inc., 910 SW2d 113, 116 (Tex. Civ. App.-
Corpus Christi, 1995, no writ) ....................................................... 6

Gibbs v. Bureaus Investment Group Portfolio _SW3d_
(No. 14, LLC, 08-12-00330-CV) (Tex.App.-EI Paso 7-22-2014) ....................... 9

Gorrell v. Tide Prods, Inc., 532 SW2d 390, 395 (Tex. Civ. App-
Amarillo, 1975, no writ) ............................................................. .11, 12

Gutierrez v. Dallas Independent School Dist., 729 S.W.2d 691 (Tex. 1987) ..... 6,8

Hinojosa Auto v. Finishmaster, _SW2d_, (03-08-00361-CV-
Tex. Civ. App-Austin, 12-12-2008) ................................................ 12

Humphreys v. Caldwell, 888 SW2d 469,470 (Tex. 1994) ...................... 6, 11, 13

Morrow v. H.E.B., Inc., 714 S.W.2d 297,297-98 (Tex. 1986) ........................ 8,11

Oscar Luis Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 860
(Tex.App.-Dallas 2006, no pet.), ............................................................. 9

Rizk v. Financial Guardian Ins. Agency, Inc., 584 SW2d 860, 862
(Tex. 1979) ............................................................................. 6, 10, 13

Vance v. Holloway, 689 SW2d 403,404 (Tex. 1985) ............................ 6, 10, 13

Yeldell v. Holiday Hills Retirement and Nursing Center, Inc., 701 S.W.2d 243,
247 (Tex. 1985) ................................................................................. 8, 11

STATUTES AND RULES

Tex. Govt. Code Ann., § 22.201(c ) ......................................................... 3
                                                   iv.
Tex. Govt. Code Ann., § 22.221(b) (1) .................................................... 3

Texas Rule of Appellate Procedure, Rule 52 ...................................... 1

Tex. Rules of Civil Procedure §193.6(a) ................................................... 2, 6, 7, 10

Tex. Rules of Civil Procedure §185 ....................................................... .2, 7,10,13,14

Tex. Rules of Civil Procedure §92(10) .................................................... 2, 10, 14




                                                v.
                              NO. ______________


                                      IN THE
                        COURT OF APPEALS
          SECOND DISTRICT OF TEXAS AT FORT WORTH, TEXAS




          IN RE: PANINA, INC d/b/a JA CONSTRUCTION SERVICES

                                      Relator
                                         v.

              THE HONORABLE MELODY WILKINSON, JUDGE
                       OF THE 17th DISTRICT OF
                      TARRANT COUNTY, TEXAS

                                    Respondent



                     PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      Now Comes Relator/Plaintiff PANINA, INC d/b/a JA CONSTRUCTION

SERVICES, ("Panina") and files this its Petition for a Writ of Mandamus pursuant to

Texas Rule of Appellate Procedure, Rule 52. By this Petition for Mandamus, Panina

seeks relief from the Orders of the Hon. Melody Wilkinson, Judge of the 17th Judicial

District Court of Tarrant County, Texas November 19, 2014, denying both Panina's

Traditional Motion for Summary Judgment and Panina's "No Evidence" Motion for

Summary Judgment, based solely upon Judge Wilkinson's improper consideration of the

only summary judgment evidence presented by the Defendant, Heather Village, LLC,
PETITION FOR MANDAMUS                                                   Page 1
through two affidavits setting forth the testimony and evidence of two witnesses, David

Christensen and Ken Toler, neither of whom had ever been disclosed by Defendant in

response to Panina's properly served Requests for Disclosure and whose testimony by

affidavits was automatically and mandatorily excluded, as a matter of law by Texas Rule

of Civil Procedure Rule 193.6(a), the consideration of which was not within the judicial

discretion of the Hon. Judge Wilkinson, and her further denying Panina summary

judgment on its sworn account, when the Defendant Heather Village, LLC., was

precluded from presenting a defense thereto as a matter of law, by Texas Rule of Civil

Procedure 185, where there was no proper sworn denial of the sworn account had been

made by an individual who had personal knowledge, as required by Texas Rule of Civil

Procedure Rule 93(10) .

                                  STATEMENT OF CASE

      RelatorlPlaintiff, Panina, requests this Court issue a Writ of Mandamus, ordering

Hon. Melody Wilkinson, Judge of the 17th Judicial District Court of Tarrant County,

Texas, to set aside her Orders Denying Summary Judgment and to reconsider Panina's

Motion For a Traditional Summary Judgment and          its Motion For "No Evidence"

Summary Judgment, after excluding from her consideration any evidence presented by

the affidavits of David Christensen and Ken Toler, who were not previously disclosed by

the Defendant, Heather Village, LLC in response to a properly served Requests For

Disclosure, in accordance with Texas Rules of Civil Procedure Rule 193.6(a) and after

disregarding any defense by Defendant, Heather Village, LLC to Panina's suit on a

PETITION FOR MANDAMUS                                                     Page 2
sworn account, as precluded by Texas Rules of Civil Procedure Rules 185 and 93(10),

by reason of its failure to properly denied the account under oath.

                              STATEMENT OF JURISDICTION

       The question of the proper exercise of statutory judicial power and orders issued

by the Honorable Melody Wilkinson, Judge of the 17th Judicial District County of Tarrant

County, Texas, is within the appellate district of the Second District Court of Appeals.

Tex. Govt. Code Ann. § 22.201(c). This Court has authority under § 22.221(b)(1) of the

Texas Government Code to issue writs of mandamus against District Court Judges, which

includes Associate Judges for the District Judge, within its appellate district.

                      ISSUES PRESENTED FOR MANDAMUS

       ISSUE NUMBER ONE:
       DID THE TRIAL JUDGE ABUSE HER DISCRETION AND EXCEED HER
       STAUTORY AUTHORITY IN DENYING REALTOR'S TRADITIONAL
       MOTION FOR SUMMARY JUDGMENT AND REALTOR'S "NO EVIDENCE"
       MOTION FOR SUMMARY JUDGMENT BASED SOLELY UPON HER
       IMPROPER CONSIDERATION OF DEFENDANT'S SUMMARY JUDGMENT
       EVIDENCE PRESENTED BY AFFIDAVITS OF WITNESSES PREVIOUSLY
       COMPLETELY UNIDENTIFIED BY DEFENDANT IN PRIOR REPONSE TO
       REQUESTS FOR DISCLOSURES, MANADTORILY EXCLUDED BY T.R.C.P.
       RULE 193.6(a)?

      ISSUE NUMBER TWO:
      DID THE TRIAL JUDGE ABUSE HER DISCRETION BY PERMITING
      DEFENDANT TO PRESENT A DEFENSE TO REALTOR'S SWORN ACCOUNT,
      PRECLUDED AS A MATTER OF LAW BY T.R.C.P. RULE 185 WHERE THE
      DEFENDANT'S AMENDED ANSWER DENYING THE ACCOUNT WAS NOT
      PRO PERL Y SWORN TO BY A WITNESS HAVING PERSONAL KNOWLEDGE
      AS REQUIRED BY T.R.C.P. RULE 93 (10) WITHOUT A SHOWING OF
      PERSONAL KNOWLEDGE IN THE AFFIDAVIT AND WHOSE AFFIDAVIT
      OPPOSING SUMMARY JUDGMENT SHOWED HE HAD NO PERSONAL
      KNOWLEDGE BUT ONLY HEARSAY INFORMATION?



PETITION FOR MANDAMUS                                                          Page 3
                              STATEMENT OF FACTS

      On September 26, 2014, Panina, filed a Traditional Motion For Summary

Judgment on a sworn account as well as a "No Evidence" Motion For Summary

Judgment on a counterclaim filed by Defendant, Heather Village.LLC, copies of which

Motions for Summary Judgment are attached to the Appendix hereto, as Exhibits "A" and

"B". On November 7,2014, Defendant Heather Village, LLC, filed its Responses to both

Motion for Summary Judgment, attaching, as its sole summary judgment evidence in

opposition to each of Pannia's Motions for Summary judgments, the affidavits of two

witnesses, David Christensen and Ken Toler, copies of which Responses to the Motion

for Summary Judgment and said affidavits, are attached in the Appendix hereto, as

Exhibits "C" and "D". Neither of the said witnesses had ever been disclosed by

Defendant Heather Village, LLC, as "persons having knowledge" nor as "expert

witnesses" in response to Requests For Disclosure previously served by Panina upon the

said Defendant, Heather Village, LLC, six months previously on May 7, 2014, a copy of

which Requests For Disclosure is attached to the Appendix hereto, as Exhibit "E". The

failure to designate the witnesses clearly appears in Defendant's Response to Panina's

Requests for Disclosure, which was filed by Defendant Heather Village, LLC, attached to

the Appendix hereto, as Exhibit "F". Prior to the filing of Panina's Motions for Summary

Judgment, Defendant Heather Village, LLC had filed an unsworn Original Answer to

Panina's suit on a sworn account, a copy of which is attached to the Appendix hereto as

PETITION FOR MANDAMUS                                                     Page 4
Exhibit "G". On November 5, 2014, Defendant Heather Village, LLC filed its First

Amended Original Answer and Counterclaim, containing a verification by the same

undesignated David Christenson, who was neither an officer or director of Heather

Village, and whose affidavit contained no facts showing he had personal knowledge to

deny the sworn account of Panina, but whose affidavits to the Responses to Summary

Judgment clearly showed he factually could have had no personal knowledge. A copy of

Defendant's First Amended Original Answer and Counterclaim,is attached to the

Appendix hereto as Exhibit "H".

      Panina immediately filed Plaintiffs Objections and Reply To Defendant's

Response To Plaintiffs Motion For Summary Judgment on November 12, 2014, raising

the issue of the noncompliance of Defendant's First Amended Original Answer and

Counterclaim with TRCP Rules 185 and 93(10) and further formally objecting to any

consideration by Judge Melody Wilkinson, of the affidavits of either David Christensen

or Ken Tolar, based upon the complete failure of Defendant Heather Village, LLC to

have disclosed them as potential witnesses and persons with knowledge and/or expert

witnesses in response to Panina's properly served Requests For Disclosure, as being

mandatorily excludable as a matter of law under Texas Rules of Civil Procedure Rule

193.6 (a), a copy which is attached to the Appendix hereto, as Exhibit "1". On the same

date, Panina also filed formal Exceptions to Defendant's First Amended Original Answer

and Counterclaim, based on the fact that there was no proper sworn denial of Panina's

sworn account by a person having personal knowledge as required by Texas Rules of

PETITION FOR MANDAMUS                                                     Page 5
Civil Procedure Rules 185 and 93(10), a copy of which is attached to the Appendix

hereto, as Exhibit "J" to the appendix hereto. Following the oral hearing and argument of

counsel on November 14, 2014, Panina's counsel further filed Plaintiffs Supplemental

Brief on TRCP Rule 193.6(a), to clearly bring to the attention of the Hon Judge

Wilkinson current applicable case law regarding TRCP Rule 193.6(a) providing for

mandatory exclusion of evidence presented by witnesses unidentified in discovery, a

copy of which is attached to the Appendix hereto as Exhibit "K", since there was no other

summary judgment evidence proffered by Defendant Heather Village, LLC in response

to either the Traditional Motion For Summary Judgment or the "No Evidence" Motion

For Summary Judgment.

      On November 19, 2014, despite the filed written objections and exceptions made

by, Panina and a Supplemental Brief on point, the Hon Judge Melody Wilkinson,

inexplicably denied both Panina's Traditional and "No Evidence" Motions for Summary

Judgment, based solely upon her improper consideration of the only summary judgment

evidence filed by Defendant Heather Village, LLC, which were the affidavits of David

Christensen and Ken Tolar, mandatorily excluded under Texas Rule of Civil Procedure

193.6(a) as witnesses who were not timely identified in response to properly served

discovery, and despite the noncompliance of Defendant's First Amended Original

Answer and Counterclaim with TRCP Rule 93(10) for failing to be a proper sworn denial

of Panina's sworn account by      a person having personal knowledge and permitting

Defendant Heather Village to present a defense in complete disregard of TRCP Rule 185

PETITION FOR MANDAMUS                                                      Page 6
which precludes a defense to a sworn account where there is not a proper sworn denial, as

a matter oflaw. Copies of the Clerk's Record of the Docket Sheet and Transactions List

is attached hereto as Exhibit "L" to the Appendix. Certified Copies of the Orders

Denying Plaintiffs Traditional and "No Evidence "Motions for Summary Judgment are

attached to the Appendix hereto as Exhibit "M".

                               SUMMARY OF THE ARGUMENT


       Texas Rule of Civil Procedure Rule 193.6 (a) specifically provides for mandatory

exclusion of evidence presented by witnesses who were not timely identified in response

to properly served discovery. The Texas Supreme Court has held the rule is mandatory,

and the penalty, exclusion of evidence is automatic, absent a showing of: (1) good cause

or (2) lack of unfair surprise or (3) unfair prejudice. Alvarado v. Farah MIg. Co. Inc., 830

S.W.2d 911 (Tex. 1992) and Gutierrez v. Dallas Independent School Dist729 S.W.2d 691

(Tex. 1987). Under TRCP Rule 193.6(a) the Hon. Judge Melody Wilkinson had no

discretion to consider evidence or testimony of witnesses excluded by the rule except on

a showing and finding of good cause or lack of unfair surprise or unfair prejudice. Id.

Defendant Heather Village LLC failed to disclose either of the witnesses providing

summary judgment evidence as persons with knowledge in its response to Panina's

properly served Requests for Disclosure. See Appendix- Exhibits E and F. There was no

showing of good cause proffered by Heather Village, LLC nor any ruling made by the

Hon. Judge Melody Wilkinson that good cause existed for the failure of Heather Village

to disclose the witnesses, nor that there was no surprise to Panina. There was no summary

PETITION FOR MANDAMUS                                                         Page 7
judgment evidence presented by Defendant, Heather Village, LLC in opposition to

Panina's Traditional and "No Evidence Motions for Summary Judgment other than the

affidavits of the unidentified witnesses, David Christensen and Ken Tolar, upon which

Judge Wilkinson could have based her decision to deny summary judgment.

      The Texas Supreme Court has further repeatedly stated held that an affidavit is

insufficient where it is not based upon personal knowledge. Rizk v. Financial Guardian

Ins. Agency, Inc., 584 SW2d 860, 862 (Tex. 1979) Vance v. Holloway, 689 SW2d 403,

404 (Tex. 1985) and Humphreys v. Caldwell, 888 SW2d 469, 470 (Tex. 1994). A

showing of personal knowledge in the affidavit being denying the account is required.

Cantu v. Holiday Inns, Inc., 910 SW2d 113, 116 (Tex. Civ. App.-Corpus Christi, 1995,

no writ) Heather Village, LLC was precluded by Rule 185 of the Texas Rules of Civil

Procedure from asserting any defense to Panina's sworn account, as a matter of law,

which was also not a matter of discretion with Judge Wilkinson ..


                   ARGUMENT AND AUTHORITIES ON ISSUE NO. ONE

      ISSUE NUMBER ONE RESTATED:

      DID THE TRIAL JUDGE ABUSE HER DISCRETION AND EXCEED HER
      STAUTORY AUTHORITY IN DENYING REALTOR'S TRADITIONAL
      MOTION FOR SUMMARY JUDGMENT AND REALTOR'S "NO EVIDENCE"
      MOTION FOR SUMMARY JUDGMENT BASED SOLEL Y UPON HER
      IMPROPER CONSIDERATION OF DEFENDANT'S SUMMARY JUDGMENT
      EVIDENCE PRESENTED BY AFFIDAVITS OF WITNESSES PREVIOUSLY
      COMPLETELY UNIDENTIFIED BY DEFENDANT IN PRIOR REPONSE TO
      REQUESTS FOR DISCLOSURES, MANADTORILY EXCLUDED BY T.R.C.P.
      RULE 193.6(a)?




PETITION FOR MANDAMUS                                                     Page 8
      Texas Rule of Civil Procedure 193 .6(a) provides for mandatory exclusion of evidence

presented by witnesses who were not timely identified in response to properly served

discovery, providing as follows

           (a) Exclusion of Evidence and Exceptions. A party who fails to make,
         amend, or supplement a discovery response in a timely manner may
         not introduce in evidence the material or information that was not
         timely disclosed, or offer the testimony of a witness (other than a
         named party) who was not timely identified, unless the court finds that:

          (I) there was good cause for the failure to timely make, amend, or
         supplement the discovery response; or

         (2) the failure to timely make, amend, or supplement the discovery
         response will not unfairly surprise or unfairly prejudice the other parties.
         (Emphasis Added) TEX.R. Civ. P. 193.6(a).

       The rule is mandatory, and the penalty, exclusion of evidence is automatic,

absent a showing of: (1) good cause or (2) lack of unfair surprise or (3) unfair

prejudice. The Texas Supreme Court held in its decision in Alvarado v. Farah MIg.

Co. Inc., 830 S.W.2d 911 (Tex. 1992):

         The salutary purpose of Rule 215(5) is to require complete responses to
         discovery so as to promote responsible assessment of settlement and
         prevent trial by ambush. See Clark, 774 S.W.2d at 646; Gee, 765 S.W.2d at
         396; Gutierrez, 729 S.W.2d at 693. The rule is mandatory, and its sole
         sanction - exclusion of evidence - is automatic, unless there is good
         cause to excuse its imposition. The good cause exception permits a trial
         court to excuse a failure to comply with discovery in difficult or impossible
         circumstances. See Clark, 774 S.W.2d at 647 (inability to locate witness
         despite good faith efforts or inability to anticipate use of witness' testimony
         at trial might support a finding of good cause). The trial court has
         discretion to determine whether the offering party has met his burden of
         showing good cause to admit the testimony; but the trial court has no
         discretion to admit testimony excluded by the rule without a showing of
         good cause. (Emphasis added)

PETITION FOR MANDAMUS                                                          Page 9
The holding in Alvarado, supra, was consistent with prior Supreme Court holdings in

Gutierrez v. Dallas Independent School Dist., 729 S.W.2d 691 (Tex. 1987), in which the

Court said:

         We hold that if a litigant propounds an improper interrogatory question, it is
         incumbent upon the party answering the request to object to the form of the
         question so that it may be reurged in the proper form. If the party
         answering the request does not object to the form of the question, then
         later tries to call a witness that was not revealed to the opposing party,
         the trial court should disallow the testimony of the witness unless good
         cause can be shown under the decisions in Yeldell v. Holiday Hills
         Retirement and Nursing Center, Inc., 701 S.W.2d 243, 247 (Tex. 1985),
         and Morrow v. H.E.B., Inc., 714 S.W.2d 297, 297-98 (Tex. 1986).

         Directly on point, the EI Paso Court of Appeals, citing the 2006 Dallas Court of

Appeals decision in Oscar Luis Lopez v. La Madeleine a/Tex., Inc., 200 S.W.3d 854, 860

(Tex.App.-Dallas 2006, no pet.),     held the exclusion of a non-identified witness in

response to a Request for Disclosures mandatory, on July 22, 2014, in Gibbs v. Bureaus

Investment Group Portfolio _SW3d_( NO. 14, LLC, 08-12-00330-CV) (Tex.App.-

EI Paso 7-22-2014), stating that:

         A party may obtain discovery of the name, address, and telephone number
         of persons with knowledge of relevant facts, and a brief statement of each
         identified person's connection with the case. TEX.R.CIV.P. 192.3(c);
         TEX.R.CIV.P. 194.2(e). When responding to written discovery, a party must
         make a complete response, and must amend or supplement the response if it
         later learns that the response is no longer complete and correct. TEX.R.CIV.P.
         193.1, TEX.R.CIV.P. 193.5(a). Page 4 A party who fails to disclose
         information concerning a nonparty witness in response to a discovery
         request may not offer the witness's testimony unless the court finds that
         there was good cause for the failure to timely make, amend, or supplement
         the discovery response or the failure to make, amend, or supplement the
         discovery response will not unfairly surprise or unfairly prejudice the
         other parties. TEX.R.CIV.P. 193.6(a). The sanction for failure to comply
         with this rule is the" automatic and mandatory" exclusion from trial of the
PETITION FOR MANDAMUS                                                       Page 10
         omitted evidence. Oscar Luis Lopez v. La Madeleine a/Tex., Inc., 200 S.W.3d
         854, 860 (Tex.App.-Dallas 2006, no pet.) (Emphasis added)

In Braniff Inc. v. Lentz, 748 S.W.2d 297,300 (Tex.App.-Ft. Worth 1988), this Court has

also recognized the necessity of timely designation of witnesses in discovery and held the

overruling of an objection to the witness by the trial court did not constitute a finding of

good cause:

         Our supreme court has repeatedly held that if the identity and location
         of a person with knowledge is not disclosed, on proper request, the
         person may not testify at time of trial. Morrow v. HE.B., Inc., 714
         S.W.2d 297,297 (Tex. 1986); Yeldell v. Page 300 Holiday Hills Retire.
         & Nursing Center, 701 S.W.2d 243,247 (Tex. 1985).

         For the reasons given above, this Petition for Mandamus should be granted and a

Writ of Mandamus should issue to Hon. Melody Wilkinson, Judge of the 17th Judicial

District Court of Tarrant County, Texas, to set aside her orders of November 19, 2014

denying Painina's Motions for Traditional and "No Evidence" Motions for Summary

Judgment and to reconsider in accordance with this Courts Writ of Mandamus Panina's

Traditional Motion For Summary Judgment and Plaintiffs "No Evidence" Motion For

Summary Judgment, excluding any consideration of any evidence of witnesses, David

Christensen and Ken Toler, who were not previously disclosed by the Defendant, Heather

Village, LLC in response to the Requests For Disclosure in accordance with Texas Rules

of Civil Procedure Rule 193.6(a) and further that the Hon. Judge Melody Wilkinson

should be ordered to grant Panina's Motion for Traditional Motion for Summary

Judgment on its sworn account since there was no proper sworn denial of sworn account

under Texas Rules of Civil Procedure Rules 185 and 93(10) and to grant Panina's "No
PETITION FOR MANDAMUS                                                         Page 11
Evidence" Motion for Summary Judgment, since no admissible evidence was presented

by Defendant Heather Village, LLC after excluding the affidavits of. David Christensen

and Ken Tolar.



                 ARGUMENT AND AUTHORITIES ON ISSUE NO. TWO


      ISSUE NUMBER TWO RESTATED:

      DID THE TRIAL JUDGE ABUSE HER DISCRETION BY PERMITING
      DEFENDANT TO PRESENT A DEFENSE TO REALTOR'S SWORN ACCOUNT,
      PRECLUDED AS A MATTER OF LAW BY T.R.C.P. RULE 185 WHERE THE
      DEFENDANT'S AMENDED ANSWER DENYING THE ACCOUNT WAS NOT
      PROPERLY SWORN TO BY A WITNESS HAVING PERSONAL KNOWLEDGE
      AS REQUIRED BY T.R.C.P. RULE 93 (10) WITHOUT A SHOWING OF
      PERSONAL KNOWLEDGE IN THE AFFIDAVIT AND WHOSE AFFIDAVIT
      OPPOSING SUMMARY JUDGMENT SHOWED HE HAD NO PERSONAL
      KNOWLEDGE BUT ONLY HEARS AY INFORMATION?

      As stated previously, Panina also filed formal Exceptions to Defendant/Counter-

Plaintiff's First Amended Original Answer and Counterclaim, Plaintiff further objects to

Defendant/Counter-Plaintiff's First Amended Original Answer and Counterclaim, which is

not a properly sworn to and does not comply with Rules 93 (l0) and 185 of the Texas

Rules of Civil Procedure. The Texas Supreme Court has repeatedly stated held that an

affidavit is insufficient where it is not based upon personal knowledge. Rizk v. Financial

Guardian Ins. Agency, Inc., 584 SW2d 860, 862 (Tex. 1979) Vance v. Holloway, 689

SW2d 403, 404 (Tex. 1985) and Humphreys v. Caldwell, 888 SW2d 469, 470 (Tex. 1994).

A showing of personal knowledge in the affidavit being denying the account is required.

Cantu v. Holiday Inns, Inc., 910 SW2d 113, 116 (Tex. Civ. App.-Corpus Christi, 1995, no


PETITION FOR MANDAMUS                                                   Page 12
writ) It is also been held that a company officer who does not have personal knowledge of

certain matters cannot deny them under oath since the matters would be hearsay to him.

Gorrell v. Tide Prods, Inc., 532 SW2d 390,395 (Tex. Civ. App-Amarillo, 1975, no writ) In

the instant case, Defendant/Counter-Plaintiffs First Amended Original Answer and

Counterclaim is sworn to by David Christiansen, who signed his affidavit as a

representative for Heather Village LLC, and is not officer nor a person that purports to

have personal knowledge as to whether the sworn account is true or not, but simply says:

        "I have been granted to speak on the behalf of the shareholder(s)/owner(s) of
       Heather Village, LLC regarding the foregoing lawsuit. I am at least 18 years of age
       and of sound mind. I am personally acquainted with the facts alleged in the
       foregoing answer regarding the denial of the foregoing account, which is true and
       correct."

Mr. Christensen's statement in his affidavit that he "is acquainted with the facts" does not

demonstrate any basis for personal knowledge, but merely confirms that he is "acquainted

with the facts alleged in the foregoing answer regarding the denial of the foregoing

account." The Texas Supreme Court has repeatedly held that an affidavit that does not

positively and unqualifiedly represent the facts as disclosed in the affidavit to be true with

in the affiant's personal knowledge is legally insufficient as a matter of law. Brownlee v.

Brownlee, 665 SW 2d Ill, 112 (Tex. 1984); Burke v. Satterfield, 525 SW.2d 950,

955(Tex. 1975).

      In another case involving a denial of a sworn account, where the affiant was actually

an officer of the defendant company, the court held that the representation that he had

personal knowledge did not mean that he had sufficient personal knowledge of specific

PETITION FOR MANDAMUS                                                       Page 13
items and services alleged to have been provided in this account and he could not properly

denied them under oath since they would be hearsay to him. Gorrell v. Tide Prods, Inc.,

supra at p. 395. Even where an attorney for a party in an affidavit denying a sworn account

stated that "I have personal knowledge of the facts stated herein", was held the insufficient

where nothing in the verification demonstrated a basis of the attorney's personal

knowledge. Hinojosa Auto v. Finishmaster, _SW2d_, (03-08-00361-CV (Tex. Civ.

App-Austin, 12-12-2008).

      There is no statement      III   the affidavit to Defendant/Counter-Plaintiffs First

Amended Original Answer and Counterclaim that Mr. Christensen even has "personal

knowledge" of anything to do with the account sued upon by Panina. There is absolutely

nothing in the affidavit of Mr. Christensen, indicate that he has personal knowledge of

specific items and services alleged to have been provided in the account sued upon by

Panina Inc. against Heather Village LLC. Mr. Christensen is not even an officer of

defendant corporation, nor is he a custodian of the records of Heather Village LLC, nor has

he stated anything in his affidavit attached to Defendant/Counter-Plaintiffs First Amended

Original Answer and Counterclaim to show that he personally had anything to do with the

account involved to prove that he had personal knowledge of specific items and services

alleged to have been provided in the account sued upon by Panina, but simply that he is a"

representative of the owner", and generally that he is "acquainted with the facts", without

stating the facts with which is acquainted. As a matter of law Mr. Christensen cannot deny




PETITION FOR MANDAMUS                                                      Page 14
the account of Panina, Inc. under oath, since he has no personal knowledge other than

hearsay information.

      Because the Defendant's sworn written denial did not comply with Rules 93(10) and

185 of the Texas Rules of Civil Procedure, as a matter of law, Defendant Heather Village

LLC is not permitted to deny the receipt of services or the correctness of charges of the

sworn account filed by Plaintiff, Panina, Inc. See Rizk v. Financial Guardian Ins. Agency,

Inc., supra at 862 (Tex. 1979) Vance v. Holloway, supra at 404 (Tex. 1985) and Humphreys

v. Caldwell, supra at 470 (Tex. 1994). The Court should further issue its writ of mandamus

directing Hon. Judge Melody Wilkinson, not to consider any defense by Heather Village to

the sworn account according to the provisions of Rule 185 of the Texas Rules of Civil

Procedure.

                                        PRAYER

        For the reasons given above, this Petition for Mandamus should be granted and a

Writ of Mandamus should issue to Hon. Melody Wilkinson, Judge of the 17th Judicial

District Court of Tarrant County, Texas, to set aside her orders of November 19, 2014

denying Painina's Motions for Traditional and "No Evidence" Motions for Summary

Judgment and to reconsider in accordance with this Courts Writ of Mandamus Panina's

Traditional Motion For Summary Judgment and Plaintiffs "No Evidence" Motion For

Summary Judgment, excluding any consideration of any evidence of witnesses, David

Christensen and Ken Toler, who were not previously disclosed by the Defendant, Heather

Village, LLC in response to the Requests For Disclosure in accordance with Texas Rules

PETITION FOR MANDAMUS                                                   Page 15
of Civil Procedure Rule 193.6(a) and further that the Hon. Judge Melody Wilkinson

should be ordered to grant Panina's Motion for Traditional Motion for Summary

Judgment on its sworn account since there was no proper sworn denial of sworn account

under Texas Rules of Civil Procedure Rules 185 and 93(10) and to grant Panina's "No

Evidence" Motion for Summary Judgment, since no admissible evidence was presented

by Defendant Heather Village, LLC after excluding the affidavits of. David Christensen

and Ken Tolar.



                                       Respectfully submitted,

                                       LAW OF        E OF JOHN P. KNOUSE




                                                 orth Dallas Parkway
                                       S ·te 110
                                         alIas, Texas 75248
                                       (972) 380-1188 (Telephone)
                                       (214) 367-5982 (Telecopier)
                                       E-mail: knouselaw@yahoo.com

                                       ATTORNEY FOR RELATORIPLAINTIFF




PETITION FOR MANDAMUS                                                  Page 16
                              CERTIFICATE OF SERVICE

       This is to certify that on this   -J-
                                           J..a-ay of January 2015, a true and correct copy of

the above and foregoing Petition for Mandamus will be sent following filing by certified

mail, return receipt requested to:


Respondent:                  Hon. Judge Melody Wilkinson
                             Tim Curry Justice Center - 8th Floor
                             401 W. Belknap
                             Fort Worth, TX 76196
                             Tel: (Nancy Bentley, Coordinator (817)-884-1460
                             Fax:(Nancy Bentley, Coordinator Unknown

Defendant's Counsel          Lane Addison
                             SBOT No. 2509355
                             Henley & Henley, P.e.
                             3300 Oak Lawn Avenue, Suite 700
                             Dallas, Texas 75219
                             E-mail:raddison@henleylawpc.com
                             Tel: (214) 821-0222
                             Fax: (214) 821-1J...I-7:'-




PETITION FOR MANDAMUS                                                         Page 17
                  VERIFICATION OF PETITION FOR MANDAMUS
                            UNDER T.R.A.P. RULE 52.3(j)

THE STATE OF TEXAS §
                   §
COUNTY OF DALLAS §

              BEFORE ME, the undersigned authority on this day personally appeared,

JOHN P. KNOUSE, who, being by me duly sworn, upon his oath stated he is the

Attorney for Relator, PANINA, INC d/b/a JA CONSTRUCTION SERVICES, and

certifies as required by T.R.A.P. Rule 52.30) that he has read and reviewed the Petition

for Writ of Mandamus of Relator, and has concluded that every factual statement in the

Petition for Writ of Mandamus is supported by competent evidence included in the

appendix or record. This Affidavit is made for attachment to the Petition for Writ of

Mandamus of Relator, PANINA, INC d/b/a JA CONSTRUCTION SERVICES, made

pursuant to T.R.A.P. Rule 52.30).




      SWORN TO AND SUBSCRIBED BEFORE ME, this the                        £         day of

January, 2015, to which witness my hand and seal of office.



         ANN MARIE GAOIEMY
         My CommIIIiOn bpIrIt
            OctalMr 2. 201'             Notary Public in and for the Sta e of Texas




PETITION FOR MANDAMUS                                                    Page 18
                                                APPENDIX

Plaintiffs Motion for Traditional Summary Judgment. ........................... Exhibit A

Plaintiffs Motion for "No Evidence" Summary Judgment ...................... Exhibit B

Defendant's Response to Plaintiff s Motion for Traditional
Summary Judgment ..................................................................... Exhibit C

Defendant's Response to Plaintiffs Motion for "No Evidence"
Summary Judgment ..................................................................... Exhibit D

Plaintiffs Requests For Disclosure ............................................ Exhibit E

Defendant's Response to Plaintiff s Requests For Disclosure ..............Exhibit F

Defendant's Original (unsworn) Answer and Counterclaim ............... Exhibit G

Defendant's First Amended Original
Answer and Counterclaim ...................................................... Exhibit H

Plaintiffs Objections and Reply to Defendant's Responses To
Plaintiffs Motions For Summary Judgment .................................... Exhibit I

Plaintiffs Exceptions to Defendant's First Amended Original
Answer and Counterclaim ...................................................... Exhibit J

Plaintiffs Supplemental Brief on TRCP Rule 193.6 (a) Providing
Mandatory Exclusion of Evidence By Unidentified Witnesses ............ Exhibit K

Copies of Clerk's Record of Docket Sheet and Transaction List. .......... Exhibit L

Certified Copies of Orders Denying Plaintiffs Traditional
Motion for Summary Judgment and Plaintiffs. "No Evidence"
Motion for Summary Judgment. ................................................. Exhibit M




 PETITION FOR MANDAMUS                                                                      Page 19
                EXHIBIT "A"
PLAINTIFF'S TRADITIONAL MOTION FOR SUMMARY
                  JUDGMENT
                               CAUSE NO. 17-266141-13

PANINA, INC d/b/a                        §       IN THE 17th JUDICIAL
JA CONSTRUCTION SERVICES                 §
     Plaintiff                           §
                                         §
VS.                                      §       DISTRICT COURT OF
                             §
HEATHER VILLAGE, LLC., D/B/A §
THE HEATHER VILLAGE          §
APARTMENTS                   §
     Defendant               §                   TARRANT COUNTY, TEXAS


      PLAINTIFF'S TRADITIONAL MOTION FOR SUMMARY JUDGMENT

          NOW COMES, Plaintiff PAN INA, INC d/b/a JA CONSTRUCTION

SERVICES ("Panina") and files its Traditional Motion for Summary Judgment against

Defendant HEATHER VILLAGE, LLC. d/b/a THE HEATHER VILLAGE.

APARTMENTS ("Heather Village"), and would show unto the Court the following:

                                        I.
                               FACTUAL BACKGROUND

      Plaintiff, PANINA filed suit against Defendant, HEATHER VILLAGE, based

upon a sworn account, and, in the alternative, for breach of contract, unjust

enrichment, and quantum meruit, based upon the following facts:

A.        On October 11, 2012, the Defendant, HEATHER VILLAGE, LLC, by and

through its agents and representatives, Sungate Management, Inc. , located at 9550

Skillman Street, Ste. 210, Dallas, Texas, signed and accepted on November 14,2012,

entered    into   a written   contract with   Plaintiff,   P AN INA,   INC.   d/b/a JA

CONSTRUCTION SERVICES, requesting Plaintiff to perform wood replacement

PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT                                                                 P.\GE I
and exterior paint repalrs to Defendant's property, known as THE HEATHER

VILLAGE APARTMENTS, located at 6000 Boca Raton in Fort Worth, Tarrant

County, Texas 75112 for a total sum of $46,000.00. See Exhibit "A"-Affidavit of Susan

Briggeman- Exhibit 1. .

       B.     Under the terms and conditions of the written contract 50% of the total

contract price in the sum of $23,000.00 was due and payable upon delivery of the

materials and commencement of work at the apartment building located at 6000 White

Dove Drive in Fort Worth, Texas for which Plaintiff submitted its invoice No.

1115201202 on November 15, 2012. See Exhibit "A"-Affidavit of Susan Briggeman-

Exhibit 2. Furthermore under the terms and conditions of the written contract the

remaining 50% of the total contract price in the sum of$23,000.00 was due and payable

upon completion of the renovation work at the apartment building located at 6000

White Dove Drive in Fort Worth, Texas for which Plaintiff submitted its invoice No.

1115201203 on November 15, 2012. See Exhibit "A"-Affidavit of Susan Briggeman-

Exhibit 3.

       C.    After performing the renovation work requested, Defendant agreed to a

change order requesting Plaintiff to further provide additional labor and materials in

repairs to the apartment building located at 6000 White Dove Drive in Fort Worth,

Texas, which were provided by the Plaintiff at Defendant's special instance and request

in the additional sum of $5,200.00 as specified in the Plaintiff invoice No. 1122201201

on November 22,2012. See Exhibit "A"-Affidavit of Susan Briggeman - Exhibit 4.


PLAINTIFF'S MOTION FOR TRADITIONAL
                                                                                 1',\(;1:: 2
SUMMARY JUDGMENT
       D.     The total reasonable value of all of the servIces, labor, and materials

furnished by the Plaintiff at the request of Defendant is the sum of $51 ,200.00.which

services were specified in the written contract and are also itemized in the invoices

attached to the Affidavit of Susan Briggeman as Exhibits 1, 2, 3, and 4. Defendant has

made no payments toward for the labor and materials ordered by it, and there is a

balance due and owing of the full amount of $51,200.00. See Exhibit "A"-Affidavit of

Susan Briggeman.

       E.     Although Plaintiff has on numerous occasions made demand for payment

by Defendant for the balance due, Defendant has failed and refused to pay Plaintiff the

past due balance for the additional services ordered or any part of it, to Plaintiffs

damage in the total sum of$51,200.00. See Exhibit "A"-Affidavit of Susan Briggeman.

       F.    A written demand letter requesting payment of the full amount of

$51,200.00 was sent by Plaintiffs Director of Operations, Ofer Abramov and Susan

Briggeman, Plaintiff's President to Defendant's agent, Sungate Management, Inc. on

January 18, 2013, which is attached hereto as Exhibit "5" and which is incorporated

herein by reference for all purposes. See Exhibit "A"-Affidavit of Susan Briggeman.

      G.     Plaintiff performed the services rendered to Defendant at Defendant's

request. In addition, Defendant accepted, and has used and enjoyed the services

provided by Plaintiff, in that Defendant has kept and is using the improvements to its

property made by Plaintiff, which Defendant acknowledges and for which it has offered

only to pay the costs of materials. Under these circumstances, Defendant had, or should


PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT                                                                 PAGE 3
have had, reasonable notice that Plaintiff expected that Defendant would pay Plaintiff

for the services Plaintiff performed for Defendant. Defendant has been unjustly and

unfairly enriched, in that Defendant has benefitted by the services performed on its

behalf by Plaintiff, but fails and refuses to pay Plaintiff for the reasonable value of

those services and materials provided, which Plaintiff alleges to be in the sum of

$51,200.00. See Exhibit "A"-Affidavit of Susan Briggeman.

       H.    On February 5, 2013, Plaintiff sent a notice of its claim to Defendant,

HEATHER VILLAGE, LLC, by certified mail, return receipt requested, advising

Defendant that a lien would be filed and making a demand for payment of balance due

and owing in the sum of $51,200.00 for the repairs, painting and other services

performed at the request of Defendant, HEATHER VILLAGE, LLC, prior to the

filing an Affidavit for a Mechanic's Lien. See Exhibit "A"-Affidavit of Susan

Briggeman-Exhibit "6".

      I.     After no payment was made by the Defendant, HEATHER VILLAGE,

LLC, on February 21, 2013, Plaintiff filed an Affidavit for a Mechanic's Lien for the

labor performed and materials furnished on the behalf of Defendant, HEATHER

VILLAGE, LLC, for wood replacement, repairs, painting, labor and materials

furnished to its property known as the HEATHER VILLAGE APARTMENTS

commencing in October, 2012 for the total amount of $51,200.00. See Exhibit "A"-

Affidavit of Susan Briggeman-Exhibit "7".




PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT                                                                "AG E 4
                                    II.
                         SUMMARY JUDGMENT EVIDENCE

       In support of its Traditional Motion for Summary Judgment, Plaintiff, PANINA

relies upon the pleadings and summary judgment evidence on file at the time of the

hearing and, in specific, the following summary judgment evidence: (1) Exhibit "A"-

Affidavit of Susan Briggeman and the attachments thereto; (2) Exhibit "B" Affidavit of

John P. Knouse, Attorney at Law. In addition, Defendant, Heather Village has failed to

deny the sworn account cause of action which was the foundation of Plaintiff s suit,

supported by an affidavit under oath as required by TRCP Rule 93( 10). See Exhibit

"C"-Defendant's unsworn Original Answer and Counterclaim. Having failed to file a

written denial under oath as require by the Texas Rules of Civil Procedure, under TRCP

Rule 185, the Defendant is not permitted to deny the claim or any item therein.

                                   III.
                        ARGUMENTS AND AUTHORITIES

A.     THE SUMMARY JUDGMENT MOTION STANDARDS.

        In a traditional summary judgment motion, the movant must show that no

genuine issue of material fact exists and that the movant is entitled to judgment as a

matter of law. Tex.R.Civ.P. 166a(c); Nixon v. Mr. Property Management Co., Inc., 690

S.W.2d 546, 548-49 (Tex.l985). All reasonable inferences and any doubts are resolved in

favor of the non-movant Nixon, 690 S.W.2d at 549. Once the movant establishes a right

to summary judgment, the burden shifts to the non-movant to present evidence raising a

genuine issue of material fact. See Casso v. Brand, 776 S.W.2d 551,556 (Tex. 1989).


PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT                                                                 PAGE :;;
  1.     Plaintiff is Entitled to Summary Judgment on Its Suit for Sworn Account as
         a Matter of Law.

       The essential elements for proof of a sworn account are generally (1) the sale

and delivery of the merchandise or performance of the services and (2) that the amount

of such account is just and that the prices charged are in accordance with an express

agreement or, in the absence of such express agreement, that they are usual, customary

or reasonable. Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357 (Tex.Civ.App.-

Dallas 1963, no writ); Marr v. Craddock, 406 S.W.2d 278 (Tex.Civ.App.-Tyler 1966,

no writ); Parker v. Center Grocery Company, 387 S.W.2d 903 (Tex.Civ.App.-Tyler,

1965, no writ); Brooks v. Eaton, Yale & Towne, Inc., 474 S.W.2d 321 (Tex.Civ.App.-

Waco 1971, no writ); Blue Bell, Inc. v. Isbell, 545 S.W.2d 563 (Tex.Civ.App.-El Paso

1976, no writ).

        Plaintiff, P ANINA has presented summary judgment evidence to the Court as to

 each and every element required by Texas law for proof of a sworn account. There is

 no genuine issue of material fact as to any element of Plaintiff s cause of action for

 sworn account and to Defendants' liability therefore. Plaintiff is therefore entitled to

 summary judgment on its suit for sworn account.

        In specific, Plaintiff, P ANINA, has provided summary judgment evidence of:

       (1) On October 11,2012, the Defendant, HEATHER VILLAGE, LLC, by and

through its agents and representatives, Sungate Management, Inc. , located at 9550

Skillman Street, Ste. 210, Dallas, Texas, signed and accepted on November 14,2012,

entered into a written contract with Plaintiff,          PANINA,      INC.    d/b/a JA

PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT                                                                  f>AGE6
CONSTRUCTION SERVICES, requesting Plaintiff to perform wood replacement

and exterior paint repairs to Defendant's property, known as THE HEATHER

VILLAGE APARTMENTS, located at 6000 Boca Raton in Fort Worth, Tarrant

County, Texas 75112 for the agreed price of $46,000.00, which were also reasonable and

customary charges for the work done. See Exhibit "A"-Affidavit of Susan Briggeman-

Exhibit 1.

       (2)    Plaintiff submitted its invoice No. 1115201202 on November 15,2012 at

the commencement of the work per the contract for $23,000 and under the terms and

conditions of the written contract the remaining 50% of the total contract price in the

sum of $23,000.00, was due and payable upon completion of the renovation work for

which Plaintiff submitted its invoice No. 1115201203 on November 15, 2012. See

Exhibit "A"-Affidavit of Susan Briggeman- Exhibits 2 and 3. After performing the

renovation work requested, Defendant agreed to a change order requesting Plaintiff to

further provide additional labor and materials in repairs to the apartment building

located at 6000 White Dove Drive in Fort Worth, Texas, which were provided by the

Plaintiff at Defendant's special instance and request in the additional sum of $5,200.00

as specified in the Plaintiff invoice No. 1122201201 on November 22, 2012. See

Exhibit "A"-Affidavit of Susan Briggeman - Exhibit 4.

      (3)    The total reasonable value of all of the services, labor, and materials

furnished by the Plaintiff at the request of Defendant is the sum of $51,200.00 which

services were specified in the written contract and are also itemized in the invoices


PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT                                                                 PAGE 7
attached to the Affidavit of Susan Briggeman as Exhibits 1, 2, 3, and 4. Defendant has

made no payments toward for the labor and materials ordered by it, and there is a

balance due and owing of the full amount of $51,200.00. See Exhibit "A"-Affidavit of

Susan Briggeman.

       (4)    Although Plaintiff has on numerous occasions made demand for payment

by Defendant for the balance due, Defendant has failed and refused to pay Plaintiff the

past due balance for the additional services ordered or any part of it, to Plaintiff s

damage in the total sum of $51,200.00, after all just and lawful offsets, credits and

payments have been allowed. See Exhibit "A"-Affidavit of Susan Briggeman.

        (5)   A written demand letter requesting payment of the full amount of

 $51,200.00 was sent by Plaintiffs Director of Operations, Ofer Abramov and Susan

 Briggeman, Plaintiffs President to Defendant's agent, Sungate Management, Inc. on

 January 18, 2013, which is attached hereto as Exhibit "5" and which is incorporated

 herein by reference for all purposes. See Exhibit "A"-Affidavit of Susan Briggeman

        (6)   Plaintiff, PANINA has sued for attorney's fees as provided by Section

 38.001 et seq., of the Texas Civil Practices and Remedies Code. The written demand

 dated January 18, 2013, was sent more than thirty days prior to the filing of the lawsuit

 on May 29, 2013. The supporting affidavit of John P. Knouse, Attorney at Law, is

 attached, stating that the reasonable fees charges by him to the present date is the sum of

 $11,710.00, for preparation and prosecution of the lawsuit. See Exhibit "B"- Affidavit

 of John P. Knouse, Attorney at Law. Mr. Knouse further states in his affidavit that in


PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT                                                                     PAGES
  the event of an appeal to the Court of Appeals by any party, a reasonable fee would be

  the sum of $10,000, and in the event a Petition for Review was filed by any party to the

 Texas Supreme Court, that a reasonable fee for handling the matter would be the sum of

 $10,000, for all of which Plaintiff, PANINA has requested judgment against

 Defendants.

       In addition as stated previously, Defendant, Heather Village failed to deny the

sworn account cause of action, which was the foundation of Plaintiffs suit, supported

by an affidavit under oath as required by TRCP Rule 93 (10). See Exhibit "C"-The suit

for sworn account was properly supported by an affidavit by Susan Briggeman,

swearing that such claim was, within her knowledge, just and true, that was due and

that all just and lawful offsets, payments and credits had been allowed. See TRCP Rule

185, the Plaintiff s Original Petition on file, Exhibit "A"-Affidavit of Susan Briggeman,

and Exhibit "C" -Defendant's unsworn Original Answer and Counterclaim. Having

failed to file a written denial under oath as require by the Texas Rules of Civil

Procedure, under TRCP Rule 185, the Defendant is not permitted to deny the claim or

any item therein, which provided in applicable part:

       Rule 185. Suit on Account.

      "When any action or defense is founded upon an open account or other
      claim goods, wares and merchandise, including any claim for a
      liquidated monetary demand based upon a written contract or founded
      business dealings between parties, or is for personal service rendered, or
      labor done or labor or materials furnished, on which a systematic record
      has been, and is supported by the affidavit of party, his agent or
      attorney taken for some officer authorized to administer oaths, to the
      effect that such claim is, within the knowledge of affiant, just and true,

PLAINTIFF'S MOTION FOR TRADITIONAL
                                                                                   ('AGE 9
SUMMARY JUDGMENT
       that it is due, and that all just and lawful offsets, payments and credits
       have been allowed, the same shall be taken as prima facie evidence
       thereof unless party resisting such claim shall file a written denial,
       under oath. A party resisting such a sworn claim shall comply with
       the rules pleading as are required in the other kind of suit,
       provided, however that if he is not timely file a written denial,
       under oath, he shall not be permitted to deny the claim, or any item
       therein, as case may be .... " (emphasis added)


        By reason of the foregoing, Plaintiff, PAN INA is entitled to judgment as a

 matter oflaw against Defendants for the sum of$51,200.00, plus reasonable attorney's

 fees as set out in the attached affidavit and for pre-judgment and post judgment interest

 as provided by law. In the alternative, Plaintiff, PANINA has pled for judgment by

 reason of a breach of contract by Defendant, HEATHER VILLAGE, unjust

 enrichment by reason of the Defendants benefiting from the labor and services of

 Plaintiff, P ANINA in perform wood replacement and exterior paint repairs to

 Defendant's property or in the alternative under quantum meruit by reason of Plaintiff,

 P ANINA delivering valuable services and goods to the Defendants which were

 accepted by the Defendants who have enjoyed the use and benefit of the wood

 replacement and exterior paint repairs to Defendant's property by Plaintiff, PANINA.

 Under the alterative pleadings, Plaintiff, P ANINA is entitled to recover the reasonable

 value of its labor and materials in the sum of$51,200.00.




PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT                                                                  P,\GE 10
  2.     Plaintiff is Entitled to Summary Judgment on Its Suit to Foreclose its
         Mechanic's Lien, as a Matter of Law.


       To perfect a Mechanic's Lien, a contractor is s required to sign an affidavit with

specified contents, see Tex. Prop. Code Ann. § 53.054 timely file the affidavit with the

county clerk, see id. § 53.052(a), and provide notice of the filed affidavit to the property

owner and the original contractor, and to provide prior notice of the unpaid balance to

the property owner and the original contractor. See id. § 53.056. Ready Cable Inc. v. R

JP Southern Comfort Homes Inc., 295 S.W. 3d 763,765 (Tex App- [Third Dist] Austin,

2009). It is well settled that the mechanic's and materialman's lien statutes are to be

liberally construed for the purpose of protecting laborers and materialmen. First Nat'l

Bank v. Whirlpool Corp., 517 S.W.2d 262,269 (Tex. 1974). Generally, for purposes of

perfecting the lien, only substantial compliance is required in order to fulfill the

statutory requirements. Occidental Neb. Fed. Sav. Bank v. East End Glass Co., 773

S.W.2d 687, 688 (Tex.App.-San Antonio 1989, no writ); see Tex. Prop. Code Ann. §

53.054(a). In addition, courts have been more willing to excuse a mistake or omission

in cases where no party is prejudiced by the defect. Mustang Tractor & Equip. Co. v.

Hartford Accident & Indem. Co., 263 S.W.3d 437, 441 (Tex.App.-Austin 2008, pet.

denied); Richardson v. Mid-Cities Drywall, Inc., 968 S.W.2d 512, 515 (Tex.App.-

Texarkana 1998, no pet.) (" Substantial compliance is shown to exist where no one has

been misled to his prejudice").




PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT                                                                    "AGE II
        The summary judgment evidence attached shows Plaintiff fully complied with

the statutory provisions of the Texas Property Code to perfect a Mechanics Lien on the

Heather Village Apartments property belonging to Defendant, HEATHER VILLAGE,

LLC.    Plaintiff sent a notice of its claim to Defendant, HEATHER VILLAGE, LLC,

the owner of the Heather Village Apartments, who contracted for the work, on February

5, 2013, by certified mail, return receipt requested, advising Defendant that a lien

would be filed and making a demand for payment of balance due and owing in the sum

of $51,200.00 for the repairs, painting and other services performed at the request of

Defendant, HEATHER VILLAGE, LLC, as required by Tex. Prop. Code § 53.055,

prior to the filing an Affidavit for a Mechanic's Lien. See Exhibit "A"-Affidavit of

Susan Briggeman-Exhibit "6". After no payment was made by the Defendant,

HEATHER VILLAGE, LLC, on February 21, 2013, Plaintiff timely filed an

Affidavit for a Mechanic's Lien for the labor performed and materials furnished on the

behalf of Defendant, HEATHER VILLAGE, LLC, for wood replacement, repairs,

painting, labor and materials furnished to its property known as the HEATHER

VILLAGE APARTMENTS for the total amount of $51,200.00 as required by as

required by Tex. Prop. Code § 53.052. See Exhibit "A"-Affidavit of Susan Briggeman-

Exhibit "7".


       For the foregoing reasons, Plaintiff is entitled to a judgment foreclosing its

Mechanics Lien on the Heather Village Apartments property belonging to Defendant,

HEATHER VILLAGE, LLC.

PLAINTIFF'S MOTION FOR TRADITIONAL
                                                                               PAGE 12
SUMMARY JUDGMENT
       WHEREFORE, PREMISES CONSIDERED, Plaintiff, PANINA requests that

this matter be set for a hearing on the same date as trial, to wit: October 20, 2014, and

that upon completion of the hearing, the Court grant in all things the Motion for

Traditional Summary Judgment filed by Plaintiff P ANINA, INC d/b/a JA

CONSTRUCTION SERVICES in that Court enter a summary judgment in favor of

Plaintiff PANINA, INC d/b/a JA CONSTRUCTION SERVICES against Defendant

HEATHER          VILLAGE,       LLC,      d/b/a    THE      HEATHER          VILLAGE.

APARTMENTS, in the sum of $51,200.00, plus all reasonable attorney's fees

attorney's fees incurred by Plaintiff in prosecuting in defending the lawsuit, as well as

for attorney's fees in the event of an appeal to the Court of Appeals and in the event of

a petition for review to the Supreme Court of Texas, plus all costs court incurred, as

well as for a judgment foreclosing its Mechanic's Lien on the Heather Village

Apartments property belonging to Defendant, HEATHER VILLAGE, LLC for

payment of the full amount of the judgment attorney's fees and costs court and that the

Court grant Plaintiff, PANINA such other and further relief, to which Plaintiff, PANINA

may be justly entitled.




PLAINTIFF'S MOTION FOR TRADITIONAL
                                                                                 PAGE \3
SUMMARY JUDGMENT
                                              Respectfully submitted,
                                              LAW OFFte OF JOHN P. KNOUSE
                                               .          ~-

                                            /JOHN.          OUSE


                                         lJ   1
                                                tate    Number: 11624000
                                                     N. Dallas Parkway
                                                ld 300
                                              Dallas, Texas 75248
                                              (972) 380-1188 (Telephone)
                                              (214) 367-5982 (Telecopier)
                                              E-mail: knouselaw@yahoo.com
                                              ATTORNEY FOR PLAINTIFF




                                CERTIFICATE OF SERVICE

       This is to certify that on this   ~~ay of September, 2014,   a true and correct copy of

the foregoing was served upon Defendant by facsimile to (214) 812- 0124 sent to Mr. R. Lane

Addison Esq., of Henley and Henley PC, Attorneys At Law, 3300 Oak Lawn Ave., Suite 700,

Dallas, Texas 75219, Attorneys of Record for Defendant as req,uired by T.R.C.P. Rule 21a.




PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT                                                                      PAGE 14
                                        FIAT

        IT IS ORDERED that the hearing on Plaintiffs Traditional Motion For

 Summary Judgment be in the same, are hereby set for hearing on the _day of

 _ _ _ _ _ _ 2014, at _ o'clock _.m., in the courtroom of the _ _ District

 Court of Tarrant County, Texas

        SIGNED this _     day of _ _ _ _ _, 2014.



                                          JUDGE PRESIDING




PLAINTIFF'S MOTION FOR TRADITIONAL
                                                                    PAGE: 15
SUMMARY JUDGMENT
                   EXHIBIT "A"
     Affidavit of Susan Briggeman, President of
Plaintiff, Panina, Inc. d/b/a JA Construction Services
                                 CAUSE NO. 17-266141-13

PANINA, INC d/b/a                          §      IN THE 17th JUDICIAL
JA CONSTRUCTION SERVICES                   §
     Plaintiff                             §
                             §
VS.                          §                    DISTRICT COURT OF
                             §
HEATHER VILLAGE, LLC., D/B/A §
THE HEATHER VILLAGE          §
APARTMENTS                   §
        Defendant            §                   TARRANT COUNTY, TEXAS

       AFFIDA VIT OF SUSAN BRIGGEMAN IN SUPPORT OF PLAINTIFF'S
            TRADITIONAL MOTION FOR SUMMARY JUDGMENT

STATE OF TEXAS                      §
                                    §
COUNTY OF DALLAS                    §

         SUSAN BRIGGEMAN, who, being by me duly sworn, upon my oath

deposed and stated as follows:

1.       My name is SUSAN BRIGGEMAN and I am the President of Plaintiff,
         PANINA, INC d/b/a JA CONSTRUCTION SERVICES. In my capacity
         as its president, I have authority to make this affidavit on the behalf of
         PANINA, INC d/b/a JA CONSTRUCTION SERVICES. I am over
         twenty-one years of age, have never been convicted of a felony, and I have
         personal knowledge of each and every statement made in this my affidavit,
         which statements are true and correct. I have been in the business of
         remodeling construction for over 20 years, and I am familiar with the
         reasonable and customary charges for the work involved in this matter in
         Tarrant County, Texas.

      2. On October 11, 2012, the Defendant, HEATHER VILLAGE, LLC,
         ("Heather Village") by and through its agents and representatives, Sungate
         Management, Inc., located at 9550 Skillman Street, Ste. 210, Dallas, Texas,
         signed and accepted on November 14,2012, entered into a written contract
         with Plaintiff, P ANINA, INC. d/b/a JA CONSTRUCTION SERVICES,
         ("Panina') requesting Plaintiff, PANINA, to perfonn wood replacement
         and exterior paint repairs to Defendant's property, known as THE

AFFIDAVIT OF SUSAN BRIGGEMAN IN
SUPPORT OF PLAINTIFF'S TRADITIONAL                                            PAGE I
MOTIN FOR SUMMARY JUDGMENT
       HEATHER VILLAGE APARTMENTS, located at 6000 Boca Raton in
       Fort Worth, Tarrant County, Texas 75112 for a total sum of $46,000.00. A
       true copy of the written contract of the parties is attached to my affidavit
       and is designated as Exhibit 1.

   3. Under the terms and conditions of the written contract 50% of the total
      contract price in the sum of $23,000.00 was due and payable upon delivery
      of the materials and commencement of work at the apartment building
      located at 6000 White Dove Drive in Fort Worth, Texas for which Plaintiff,
      PANINA submitted its invoice No. 1115201202 on November 15, 2012, a
      true copy of which invoice is attached to my affidavit and is designated as
      Exhibit 2. Furthermore under the terms and conditions of the written
      contract the remaining 50% of the total contract price in the sum of
      $23,000.00 was due and payable upon completion of the renovation work at
      the apartment building located at 6000 White Dove Drive in Fort Worth,
      Texas for which Plaintiff, PANINA submitted its invoice No. 1115201203
      on November 15, 2012, a true copy of which invoice is attached to my
      affidavit and is designated as Exhibit 3.

   4. After performing the renovation work requested, Defendant HEATHER
      VILLAGE agreed to a change order, requesting Plaintiff to further provide
      additional labor and materials in repairs to the apartment building located at
      6000 White Dove Drive in Fort Worth, Texas, which were provided by the
      Plaintiff, PAN INA at Defendant HEATHER VILLAGE's special
      instance and request in the additional sum of $5,200.00 as specified in its
      invoice No. 1122201201 on November 22, 2012, a true copy of the invoice
      for the additional labor and materials is attached to my affidavit and
      designated as Exhibit 4.

   5. The total reasonable value of all of the services, labor, and materials
      furnished by the Plaintiff, P ANINA at the request of Defendant
      HEATHER VILLAGE is the sum of $51,200.00, which services were
      specified in the written contract and in the additional change order, also
      itemized in the invoices attached to my affidavit, as Exhibits 1, 2, 3, and 4.
      Defendant HEATHER VILLAGE has made no payments toward for the
      labor and materials ordered by it, and there is a balance due and owing of
      the full amount of $51 ,200.00.

   6. Although Plaintiff, P ANINA has on numerous occasions made demand for
      payment by Defendant HEATHER VILLAGE for the balance due,
      Defendant HEATHER VILLAGE has failed and refused to pay Plaintiff,

AFFIDAVIT OF SUSAN BRIGGEMAN IN
SUPPORT OF PLAINTIFF'S TRADITIONAL                                           PAGE 2
MOTIN FOR SUMMARY JUDGMENT
       P ANINA the past due balance for the additional services ordered or any
       part of it, to Plaintiffs damage in the total sum of$51,200.00.

   7. A written demand letter requesting payment of the full amount of
      $51,200.00 was sent by Plaintiff, PANINA's Director of Operations, Dfer
      Abramov and myself to Defendant HEATHER VILLAGE's agent,
      Sungate Management, Inc. on January 18, 2013, which is attached to my
      affidavit as Exhibit "5".

   8. Plaintiff, P ANINA performed the services rendered to Defendant
       HEATHER VILLAGE at its request. In addition, Defendant HEATHER
       VILLAGE accepted, and has used and enjoyed the services provided by
      Plaintiff, P ANINA, and has kept and is using the improvements to its
      property made by Plaintiff, which Defendant HEATHER VILLAGE
      acknowledges and for which it has offered only to pay the costs of
      materials. Under these circumstances, Defendant HEATHER VILLAGE
      had, or should have had, reasonable notice that Plaintiff, P ANINA
      expected that Defendant HEATHER VILLAGE would pay it for the
      services which Plaintiff, P ANINA performed for Defendant. Defendant
      HEA THER VILLAGE has been unjustly and unfairly enriched, in that
      Defendant HEATHER VILLAGE has benefitted by the services
      performed on its behalf by Plaintiff, P ANINA, but has failed and refused
      and still fails and refuses to pay Plaintiff, PANINA for the reasonable value
      of those services and materials provided, which Plaintiff, P ANINA alleges
      to be in the sum of $51,200.00 and for which Plaintiff, PANINA seeks
      judgment against Defendant HEATHER VILLAGE.

   9. On February 5, 2013, Plaintiff, PAN INA sent a notice of its claim to
      Defendant, HEATHER VILLAGE by certified mail, return receipt
      requested, advising Defendant that a lien would be filed and making a
      demand for payment of balance due and owing in the sum of $51,200.00
      for the repairs, painting and other services performed at the request of
      Defendant, HEATHER VILLAGE, prior to the filing an Affidavit for a
      Mechanic's Lien, a true copy of which notice is attached to my affidavit as
      Exhibit "6".

  10. After no payment was made by the Defendant, HEATHER VILLAGE on
      February 21, 2013, Plaintiff, PANINA timely filed an Affidavit for a
      Mechanic's Lien for the labor performed and materials furnished on the
      behalf of Defendant, HEATHER VILLAGE for wood replacement,
      repairs, painting, labor and materials furnished to its property, known as the

AFFIDAVIT OF SUSAN BRIGGEMAN IN
SUPPORT OF PLAINTIFF'S TRADITIONAL                                           PAGE3
MOTIN FOR SUMMARY JUDGMENT
      HEATHER VILLAGE APARTMENTS, for the total amount of
      $51,200.00, a true copy of which Affidavit for Mechanic's Lien is attached
      to my affidavit as Exhibit "7". Foreclosure of the Mechanic's Lien is sought
      by Plaintiff, P ANINA.

   11. As stated, the charge of $51,200.00, to perform wood replacement and
       exterior paint repairs to Defendant's property was agreed and was also the
       usual, customary and reasonable charges to perform the wood
       replacement and exterior paint repairs done to Defendant's property in
       Tarrant County, Texas. The labor and materials furnished would not
       have been furnished but for the written agreement of the parties and the
       specific authorization and request of Defendant HEATHER VILLAGE.
       No written or oral warranties were ever made by any agent
       representative of Plaintiff, PANINA as to work performed. No warranties
       have been paid for by Defendant HEATHER VILLAGE.

  12. Pursuant to the terms of the written contract and the change order,
      Plaintiff, P ANINA. has fully performed all obligations and conditions
      precedent. Despite demand for payment being made, have refused and
      continue to fail or refuse to perform according to the terms of the
      agreement and has caused actual damages to Plaintiff, P ANINA. Plaintiff,
      P ANINA' s claim is for liquidated money damages based upon an
      agreement founded upon business dealings between the parties of which a
      systematic record has been kept.

  13. I am the custodian of the records for Plaintiff, PANINA, INC. Attached to
       my affidavit is a true and correct copy of the written contract between
       Plaintiff, PANINA, INC. and, which is designated as Exhibit "I". Also
       attached to my affidavit are true and correct copies of invoices of Plaintiff,
       PANINA, INC. submitted to Defendant HEATHER VILLAGE,
      designated as Exhibits 2, 3,and 4. Also attached to my affidavit is a true
      and correct copy of a demand letter for payment sent to Defendant
      HEATHER VILLAGE, dated on January 18, 2013, which is designated
      as Exhibit "5". Also attached to my affidavit is a true and correct copy of
      a notice that was sent by certified mail to Defendant HEATHER
       VILLAGE on February 5, 2013, prior to filing an affidavit for mechanics
       lien, which is designated as Exhibit "6". I have also attached to my
      affidavit a copy of the Affidavit for Mechanic's Lien filed on February 21,
      2013, which is designated as Exhibit "7". Each of such records were kept
      by Plaintiff, PANINA, INC. in the regular course of business. It was the
      regular course of the business of Plaintiff, P ANINA, INC. for it or an
      officer, director, employee or representative of Plaintiff, PANINA, INC.

AFFIDA VIT OF SUSAN BRIGGEMAN IN
SUPPORT OF PLAINTIFF'S TRADITIONAL
MOTIN FOR SUMMARY JUDGMENT
       with personal knowledge of the act, event or condition recorded to make
       the records and to transmit or receive information thereof to be included
       in such records. Each of such records attached hereto, were made or
       received at or near the time of the act, event or condition recorded or
       reasonably soon thereafter. Each copy attached hereto as Exhibits "1
       through 7" are exact duplicated of the original record and each copy was
       made or received under my personal supervision."

   14. Defendant HEATHER VILLAGE defaulted by not making payment on
       the account. The principal balance due to Plaintiff, PANINA of the
       account is $51,200.00, after all just and lawful offsets, credits, and
       payments have been allowed. Plaintiff, PANINA Plaintiff, PANINA sent a
       written demand for payment to the Defendant HEATHER VILLAGE on
       January 18, 2013, attached hereto as Exhibit "6", but the Defendant
       HEATHER VILLAGE has failed to pay the account in whole or in part."

   15. Plaintiff, PANINA has retained the services of John P. Knouse, Attorney at
       Law, to enforce the rights between the parties and is entitled to recover
       reasonable and necessary attorney's fees. Plaintiff, PANINA also presented
       a written demand more than thirty (30) days prior to filing suit as required
       by Chapter 38 of the Texas Civil Practice and Remedies Code. Prior to filing
       this Motion for Traditional summary judgment, Plaintiff, PANINA has paid
       reasonable and necessary attorney's fees of $6,860.00, which fees do not
       include the additional attorney's fees incurred in filing a "No Evidence"
       Motion For Summary Judgment in regard to the counterclaim filed by
       Defendant, HEATHER VILLAGE, nor the attorney's fees involved in
       preparing and filing the Traditional Motion For Summary Judgment for the
       hearing thereon. Plaintiff, PANINA requests that a judgment for all of the
       reasonable and necessary attorney's fees it has incurred for preparation and
       trial of this case in the amount and additional attorney's fees in the event of
       an appeal or other proceedings before the Court of Appeals or the Supreme
       Court of Texas."




      SWORN TO AND SUBSCRIBED TO BEFORE ME, this                               the;;1Ylr
of September, 2014.

            $                    m                          , I Ill· . . .SIiJlJ8J I

AFFIDAVIT OF SUSAN BRIGGEMAN IN
SUPPORT OF PLAINTIFF'S TRADITIONAL
MOTIN FOR SUMMARY JUDGMENT
   :\   .....",
 ;'~~Y~t.;~       RACHEL P-':NINA ABRAMOV
I':W.'''s Notary Public, State of Texas
\~~f~J             My Commission Expires
~4~t.:~~,,,,         Januarv 13. 2015




                                    Tl       (.         WEI.

        AFFIDAVIT OF SUSAN BRIGGEMAN IN
        SUPPORT OF PLAINTIFF'S TRADITIONAL                           p_\la.   t:

        MOTIN FOR SUMMARY JUDGMENT




                  ------------------------------------------------
EXHIBIT "I"
Ma~      23 2013 9:05AM                     S.    .ATE MANAGEMENT INC.                       2H       13051                    p. 1

  -'.....---...




                                                                                                  ~-Famlly      a IndUstrfal

                  October t t, 2012

                  AttII: .Jod;' ............,
                  W.lter ,........
                  Sup_Property Manqtmat
                  tHI . . . . . St.
                  Ste. ::na
                  . . . . TX'52G
                  &t:         Exterior KeIlOWtioM IJR 6OOO,6OO91P1d 60 13 White Dove
                              IiII6Ir VillIa. Apts.
                              6000 Boca iblDl1 Blvd.
                              Fort Worth TX 761 U

                  J.A. CON'ftBvC'ftON S&RVICES WILL J'1JRNI5R ALL LABOR, MAT&1UAL AND
                  INSVltANCE NKCES8AJlYTO ftlUORM THE FOLWWING ON THE ABOVE
                  IlD'ERENCED PROJECl'.




                                              Jlcmove IItd. replloel0,OOO If or dIImapd IidJns with IJantie CempIAulk
                                              S2I..-iOO.OO
                                              btaD 3.000 Ifof 1 x Slap and pp eodIr
                                              $10,500.00

                                              PedIrm all aeceuuy hmiq and clote of1 6 exterior dwcta
                                              $1,200.00

                                              llemove md. replace 7 5becta of 4 x a soffit
                                              "2',00
                                              hmove IMl"fPlace 1.112 If of mile. trim - 1 x 2, 1 x 6, 1 x 4, 1 x I,ate.
                                              $5,375.00

                                              PaiDI: oxtaior to matdl buildiDp n.wly pejDted




                  ' .... 1& ' " Mite Dew,

                                              Remov. and replKe 8,000 If of damapd tidiDa witb Hardi. CempJaIlk:
                                              $21,610.00
                                              1DItall2,OOO If of 1 x Slap IDd lIP cedIr
                                              $7,000.00



                  j421A1ph& _          -lUftI11ZQ.- Pa'Ias. JJ 75210· tm)..392"66?· fIX; t9nl-m"9QIl
     Ma~           23 2013 9:05AM                  f       jATE MANAGEMENT INC.                          21-        13051                      p.2

_......If"
             .""....,; ;




                           0                     Renomtan Spedaltfes                ConInercfal                 ~lti·FIIIIfty   a Industl1ll

                                                       Permnn III oeeCIICY frlmina and cIoIc off .. exterior cloIIcta
                                                       saoo.OO
                                                       Remove IDd I'IpIace 6 ahem of 4 x 'lOftit
                                                       $4j().00

                                                       Remove IIUI RpIlCC 4,000 If of JIl&sc. trim - 1 x 2. 1 x 6, 1 :x 4, I x I,etc.
                                                       S12,010.oo

                                                       Paint ma.ior to matdI buildfDgt aewly peiDted


                                                       CDItfor Baildlnr 6"9: Ul,1J(J(J. fJ(J


                                                       R.emove IUd nplac:c 12,000 If of damaap:d sidiDa with Hardie Ccmplank
                                                       S32.41'.00
                                                       R.emove and ~lKe 3,000 If of 1 x Slap and gap <lCdar
                                                       S10,'00.00
                                                       Perform tamfns uceckd to clo.. off 12 eadcrior closets
                                                       $2,400.00

                                                       Remove md replaee 3,(100 If of mile. trim - 1 x 2. 1 X 6, 1 x 4, 1 x I,etc.
                                                       $7-'00.00

                                                       Rtmove IIld rcp1al:o IS . . . . of 4 x • tJOftit IDIItaial
                                                       11.123.00

                                                       Paint CXIrri« to JIIIItd1 baiJdbqp newly petmed


                                                       CtMtfor .,..6413: $J4,fJINJ••


                                                       TtIIIIllll11ntlfmlt: 114~fJfJ4DIJ



                           Prolledoa:

                           AD prerAIIJtioIII1riJl be tUm to ~ property md landlC!!lpios. AU ..... wiU be c;1RnDd upon
                           c::omplcdaD ofwotk ncb day. WI will provide ....... cmtaiDa' GIll prcIPIIty to seCIft our DlldaiaJI. All
                           cmpIo)us on the job-lile will be wdhued ad tupenited.




                           5121   AlPha Rpod .. Suttc 100 • Dallas· IX 75z.1Q • f9Z21-m·1M9 • Fax; 19Z2).391·1909
  Ma~      23 2013 9:05AM                 S      iATE MANAGEMENT INC.                        21'      13051                        p.3

...... .......
   ~   -"'




                 PnljIc.1Ud ~ drnIto bo ........ upon Owner 1CUptauc:e ofpcopo.... Woad n:placemmllbaU
                 CCI)". ODe yar Jabor wmmty II1d 1110 Mllulficlum"t wailllty. 1"hc waulllty on painting wfU be tbrce
                 yem oa labor IIId five on die pR'JduatL 1be Wlbl..ty Iball oommmce upoIl complelkla of work ad. is
                 ~ qpoD . . . . 10 0wncnIrip or MmvIpm«It. ..... warraDt)' cove.t'I . . . . lDIterial failwc.
                 The w.-raoty doce DOC COWl' aarfiIc:e tbu., aep.;t, 1priDIdor ...... moistln or Ac:tI of God.

                 Pa,....u:
                 SA reqlliraJ ibat • dawn payment of ,0-.... be male upon deliWl")' of JnIleriaJa IOd WUDQiDCemeat ofwork
                 ax! dle bUDce pat .. CCJII1'Icdoa.


                 'I'haIIk you fbr COIUIideriq 111, .. lW look tbrw..cl1D HtabUshfq a pxxI busi1ltla rcllltiollSlJip with you aad
                 ygur Mapa)' III the tuhn.
                 Jf~    haft my qt*ticJ1I5, p'- do not bcIHatIc to ClOIdKt us.



                 llapeetfally,



                 Satu 10. .......... PrwideDt
                 Pu_lac.dba
                 .LA.. COBItnctD s.me.




                     ,up;PIUCI ofHlURp m.I·MjIf BWJ.PING$ 1000. @IOt . .4 fiOl3 WJIJTJ DOD
                                                              ',proYAIIONS




                                     V
                 ACCKPTED ___________________


                 DATE            If !L~f)la·


                 5121 HIlba 8m •Sytte log· Rallas, IX 7521J            It   "n)~192·'669· fax; (tn)-l?2.1g
EXHIBIT "2"
 Pani~   IDe. dbs J.A. COutnetiOD Serviea
                                                                         INVOICE
5421 Alpha Road
Suite 100                                                         DATE          INVOICE #

Dallas, TX 75240                                             11/1512012 1115201202
PHONE (972) 392-1669

      BIU. TO

    Heather Village Apts
    Attn: Jody Blankenbarker
    6000 Boca Raton Boulevard
    Fort Worth TX 76112




                                                      DUE DATE       PROJECT NAME

                                                     1111512012          Heather Village

                   DESCRIPTION                                               AMOUNT

First Draw: 500/0 down for delivery of materials                               23,000.00
and commencement of work at bldg 6000 White
Dovelli.




Thank you for your business.
                                                   Total                     $23,000.00

                                                   Payments/Credits                   $0.00

                                                   Balance Due                   $23,000.00
EXHIBIT "3"
 PaDiaa, Inc. dba J.A. Coastl'1lctioa Serviees
                                                                       INVOICE
5421 Alpha Road
Suite 100                                                       DATE          INYOICE#
Dallas, TX 75240                                           11/15/2012 1115201203
PHONE (972) 392-1669

      BIU TO

    Heather Village Apts
    Attn: Jady Blankenbarker
    6000 Boca Raton Boulevard
    Fort Worth TX 76112




                                                    OUEDATE        PROJECT NAME

                                                   11115/2012          Heather Village

                    DESCRIPTION                                            AMOUNT

Completion of renovations at BIdgs. 6000 White                                23,000.00
Dove Dr Final 500/0




Thank you for yoW' business.
                                                 Total                      $23,000.00
                                                 Payments/Credits                   $0.00

                                                 Balance Due                   $23,000.00
EXHIBIT "4"
 Pa.i..., lae. dba J.A. Coutraction Sernea
                                                                             INVOICE
 5421 Alpha Road
 Suite 100                                                            DATE          INVOICE'
 Dallas, TX 75240
                                                                 1112212012 1122201201
 PHONE (972) 392-1669

      BILL TO

    Heather Village Apts
    Attn: Jody Blankenbarker
    6000 Boca Raton Boulevard
    Fort Worth TX 76112




                                                          DUE DATE       PROJECT NAME

                                                         11122/2012          Heather Village

                    DESCRIPTION                                                  AMOUNT

Change Order 6000 White Dove Dr:                                                     5,200.00
Remove and replace 40 If of 2 x 4 building studs
Remove and install new house wrap for moisture
barrier where reframing
Install 1200 sf of felt for insulation
Remove and replace 4S sheets of OSB
Remove and replace 200 if of 2 x 4 building plates
Install new metal brackets for headers per inspector
Remove and replace 45 sheets of 4 x 8 plywood
decking
Remove and Replace 100 If of 2 x 8 joists
Haul off all debris and clean worksite daily and
upon completion




Thank you for your business.
                                                       Total                       $5,200.00

                                                       Payments/Credits                   $0.00

                                                       Balance Due                    $5,200.00
EXHIBIT "5"
       ·      ,
   -~              ...


                         Renovation Specialties         Commerdal                 Multi-Family &: Industrial


January 18,2013

Attn: Jody Blankenbaker
Sungate Management, Inc.
9550 Skillman St., Ste. 210
Dallas TX 75243

Re:        Heather Village Apts.
           6012 Woodthrush
           For Worth TX 76112

Dear Jody,

We are aware that the Owner of Heather Village bas contracted with another company to complete the
renovations of the property . We have removed all of our materials from the job site and have asked the City
of Fort Worth to provide us with a credit on the two additional permits that we had open. I am sorry that we
were unable to continue working on this project with the Owner and Sungate Management but I understand
that they wanted to work with another contractor. It is very disappointing to us that we had to learn of these
developments on our own and no one took the time to inform us that we had lost the job or thank us for
bidding on it.

Our concern is that the Owner has not paid us the down payment, balance or change order on the last
building that we completed which is 6012 Wood Thrush Dr. The amounts of those invoices are $23,000.00,
$23,000.00 and $5,200.00 collectively which comes to a total of$51,200.00. We have not made any legal
attempts to collect these funds because of our relationship with your company and our previous history
with the Owner and his staffbut we are extremely frustrated by the fact that you cannot tell us when to
expect payment. That is unacceptable. The first invoice was sent to you on November 15,2012 and it has
come to the point where we must protect our lien rights. This situation has become further egregious due to
the fact that now someone else is working on the property and their demands for payment will come first.
To date, we have received no phone calls, letters, emails or faxes which state that there is anything
defective in the work we performed and the City issued a fmal green tag on this building quite awhile ago.
The Owner has no reason not to pay for work: performed. If there is a financial difficulty on his side and he
needed to pay this over time then we should have been informed long ago to make arrangements with him.

Also, the contract that we each signed stated that the payment terms were to be a draw upon
commencement of work for 50% of the project, a final draw of 50% and payment of any change orders at
completion. If we do not receive the full sum due to us by the close of business on Friday, January 25mthen
we will contact our attorney and begin the lien process on this property. We will take any and all legal
action necessary to close that lien and file suit against all parties for breach of contract and fraud as this
contract was falsely represented to us. We hope to hear something from you to avert this process. Please
make the Owner aware of our intentions. Thank you.



Very Truly Yours,



Ofer Abramov, Director of Operation
Susan Briggeman, President
Panina Ine. dba JA Construction Services


5421 Alpha Road • Suite 100· Dallas. IX 75240· (972)-392-1669· Fax: (972)-392-1909
EXHIBIT "6"
                     FINAL NOTICE BEFORE CLAIM OF LIEN


      Date: 2/5/13

        To:    Heather Village, LLC.
               12815 SE Rivercrest Dr.
               Vancouver WA 98683-6623

       CC:     Sungate Management, Inc.
               9550 Skilman St., Ste. 210
               Dallas TX 75243

        Sent Via Email and Certified Mail: 7009-3410-0000-3813-7048


Demand is hereby made for payment of the sum of, Fifty one thousand and two
hundred dollars and no cents ($51,200.00)


due to the undersigned and in arrears since November 15, 2012.

Failure to remit payment within (7) days of date of this notice will result in immediate
claim of lien on the above mentioned property, litigation to perfect the lien and collection
of all damages and legal fees.

                     THERE WILL BE NO FURTHER NOTICE



                                                           Panina Inc. dba JA Construction
                                                                                  Creditor

                                                         5421 Alpha Road Suite 100
                                                                                Address
                                                          Dallas, Texas 75240

                                                           (972) 392-1669
                                                                                 Telephone
 Print                                                                                                          Page 1 of 1


 From: jessica@jaconstructionservices.net (jessica@jaconstructionservices.net)
 To: knouselaw@yahoo.com;
 Date: Thu, May 23,2013 12:22:04 PM
Cc:
 Subject: Fw: U.S. Postal Service Track &amp; Confinn email Restoration - 70093410000038137048

John,

This is the notice before claim of lien proof of delivery that you requested.

Thanks


>   -------Original Message-------
>   From: US Postal Service@usps.com
>   To: jessica@jaconstructionservices.com
>   Subject: U.S. Postal Service Track & Confirm email Restoration - 70093410000038137048
>   Sent: May 22 '13 2:06pm
>
> This is a post-only message. Please do not respond.
>
> Susan Briggeman has requested that you receive this restoration information
> for Track & Confirm as listed below.
>
> Current Track & Confirm e-mail information provided by the u.s. Postal
> Service.
>
> Label Number: 70093410000038137048
>
> Service Type: Certified Mail"TM
>
> Shipment Activity Location Date & Time
> -------------------------------------------------------------------------------------------------------------------
>
> Delivered DALLAS TX 75243 February 6, 2013 3:07 pm
> Depart USPS Sort Facility DALLAS TX 75260 February 6, 2013
> Processed at USPS Origin Sort Facility DALLAS TX 75260 February 6, 2013
> 2:11 am
> Dispatched to Sort Facility DALLAS TX 75240 February 5, 2013 7:26 pm
> Acceptance DALLAS TX 75240 February 5, 2013 4:09 pm
>
>   USPS has not verified the validity of any email addresses submitted via its
>   online Track & Confirm tool.
>
>   For more information, or if you have additional questions on Track &
>   Confirm services and features, please visit the Frequently Asked Questions
>   (FAQs) section of our Track & Confirm tool at
>   http://www.usps.comlshipping/trackandconfmnfags.htm.




http://us.mg205.mail.yahoo.comldcllaunch? .gx= 1&.rand=e20ihilbi4dej                                            5/27/2013
EXHIBIT "7"
     =~ISE GARCIA                                          ...........
                                                                     ~




            COUNTY CLERK
                                                    8'
                                                    <r..


                                                  Ii:·
                                                  i<'
                                                             ~~ ~\
                                                  (e.,.. I~~';}-1
                                                               .
                                                                  10:
                                                           . ., ...
                                                      .............
                                                                         ~.




                                                              .. •.. _ _ _ _100
                                                                            __  West
                                                                                  _Weatherford
                                                                                     _ _ _ _ Fort
                                                                                               __ Worth,
                                                                                                   __
                                                                                  PHONE (817) 884-1195
                                                                                                         TX_
                                                                                                           76196-0401
                                                                                                             _ __



           PANINA INC DBAfJA CONSTRUCTION SERVICES
           5421 ALPHA RD STE 100
           DALLAS. TX 75240




           Submitter:     PANINA INC DBAIJA
                          CONSTRUCTION SERVICES




                                    DO NOT DESTROY
                 WARNING .. TlilS /S PART OF THE OFF/CIAL RECORD.

                     Fled For Registration:         2121/20131:37 PM
                                Instrument #:       0213044664
                                                    AFF                       3     PGS              $20.00



        ,~ ,_
8/ _ _- _        .. -1..:.:;;"ls::i~
            ,:i_ _    _ _ ._              _.t;~.,.
                                     .,'..;: _ _,.;.,r:~
                                                   __    . _ _ _ _ _ __




               0213044664



     ANY PROVISION WHICH RESTRICTS THE SALE, RENTAL OR USE OF THE DESCRIBED REAL PROPERTY
           BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.




Prepared by: MGSAlAZAR
         AFFIDAVIT FOR MECHANICS' AND MATERIALMEN'S LIEN


Before me, the undersigned authority. personally appeared Susan L. Briggeman., who
 upon her oath deposed and stated:


"My name is Susan L. Briggeman, and I am the President and Registered Agent of
Paniu IDe.. dba JA Construdion SeniHs (Claimaat) which has a physical and
mailing address of 5421 Alpha ~ Ste. 100, Dallas TX 75240. I am competent and
authorized to make this affidavit. I have personal knowledge of the facts set forth below.
and they are true and correct.

       "Pursuant to contracts by and between Claimant and Heather Village LLC which
       bas a last known mailing address of 12815 SE Rivercrest Dr. Vancouver, WA
       98683-6623 and Sungate Management, Inc. 9550 Skillman St., Ste. 210, Dallas
       TX 75243. Claimant performed labor and furnished materials for improvements
       to the following described real property (the Property):


                              Boea Raton East Bik. 1 Lot 1


            And being commonly koOWll as Heathe~ Village Apartments
                located at 6000 Boca Raton, Fort Worth TX 76112


       "The labor performed and materials furnished may be generally described as
       wood replacement and painting commencing in October, 2012.

               TIle owner or reputed owner of the Property is:
               Heather Village, LLC located at 12815 SE Rivercrest Dr. Vancouver,
               WA 98683-6623

"To date, Claimant bas fully performed all work required under its contracts with Heather
Village, LLC. After allowing all just credits and offsets. the amowtt of $51,200.00
remains Wlpaid and is due and owing to Claimant under said contract and Claimant
claims a statutory lien on the Property and the improvements located on the Property to
secure the payment of the above amOlmt.

       "Claimant sent notice of its claim to Owner by United States certified mail. return
       receipt requested, on February 5. 2013 after numerous telephone calls, emaiJs.
       letters and faxes." Certified Mail No. 7009·3410-0000-3813-7048


                                     -1·
         AFFIDAVIT FOR MECHANICS' AND MATERIALMEN'S LIEN




5 TATE OF   TEX.:~S

COL);TY OF DALLAS




       SUSCRIBED AND SWORN TO BEFORE ME on this 19th day of February,
       2013 by Susan L Briggeman.




            ~
               HI1:'~ RACHEL PANINA ABRAMOV
             ~~.-r;
            45j..J
             ~i;'~
                     ':' Notary Public. State of Texas
                          My Commission Expires
                             January 13. 2015
                                                          .£11t1t~ A~AAJ?f'l
                                                          Notary Public in and for the
                                                          State of Texas


After recording, return to:

Pauma Inc. dba JA Construction Services
5421 Alpha Rd.
Ste.l00
Dallas TX 75240




                                                    -2-
               EXHIBIT "B"
Affidavit of John P. Knouse, Attorney at Law
                                    CAUSE NO. 17-266141-13

PAN INA, INC d/b/a                         §       IN THE 17th JUDICIAL
JA CONSTRUCTION SERVICES                   §
     Plaintiff                             §
                             §
vs.                          §                    DISTRICT COURT OF
                             §
HEATHER VILLAGE, LLC., D/B/A §
THE HEATHER VILLAGE          §
APARTMENTS                   §
            Defendant        §                   TARRANT COUNTY, TEXAS

             AFFIDAVIT OF JOHN P. KNOUSE, ATTORNEY AT LAW
       IN SUPPORT OF PLAINTIFF'S REQUEST FOR ATTORNEY'S FEES
     IN PLAINTIFF'S TRADITIONAL MOTION FOR SUMMARY JUDGMENT

STATE OF TEXAS                              §
                                            §
COUNTY OF DALLAS                            §

       BEFORE ME, the undersigned authority, on this day personally appeared

JOHN P. KNOUSE and testified under oath that the statements contained herein are

within his personal knowledge and are true and correct, as follows:

1.     "My name is JOHN P. KNOUSE. 1 am over the age of 21, have never been

       convicted of a felony, and 1 have personal knowledge of each and every statement

       contained herein. 1 am the lead Attorney of Record for Plaintiff, P AN INA, INC

       d/b/a JA CONSTRUCTION SERVICES, in this case and have personal

       knowledge as to the litigation in this matter."

2.     "I have been practicing in Tarrant, Dallas, Denton, and Collin Counties, in both

       civil and criminal cases for over 46 years.   1 was licensed to practice in the State

       of Texas on September 16, 1968, after graduating from SMU undergraduate
     school with a BA in 1966 and from SMU School of Law with a JD in 1968.           I am

     Board Certified in Criminal Law have been board certified since 1978. I am

     admitted to practice as a member of the Bar of the United State Supreme Court,

     the United States Court of Appeals for the Fifth Circuit, the United States District

     Courts for Northern and Eastern Districts of Texas, and all courts in the State of

     Texas. I have handled and argued appeals before Texas Courts of Appeals for the

     Second, Fifth, and Sixth Districts, the Texas Court of Criminal Appeals, and I

     have appeared and presented oral argument before the Supreme Court of Texas.

     By reason of the experience, I am personally familiar with reasonableness and

     necessity of attorney's fees in Denton County, Texas, on both a trial level and as

     to fees on appellate levels though the Supreme Court of Texas. I have testified

     and been qualified as a legal expert as to attorney's fees in numerous cases."

3.   "Commencing in May 8, 2013, at the request of the Plaintiff, PANINA, INC

     d/b/a JA CONSTRUCTION SERVICES, I rendered professional legal

     services to the Plaintiff, PANINA, INC d/b/a JA CONSTRUCTION

     SERVICES, by representing it in the preparation, presentment and prosecution

     of the instant suit based upon a sworn account, breach of contract, unjust

     enrichment and quantum meruit and for foreclosure of a Mechanic's Lien and

     in the defense of the counterclaims filed by Defendant, HEATHER VILLAGE,

     LLC. , D/B/A THE HEATHER VILLAGE. Through May 18, 2014, spent

     27.44 hours in prosecuting the lawsuit, including preparation of an original

     petition against Defendant, HEATHER VILLAGE, responding to Defendant,
     HEATHER VILLAGE's counterclaim, responding to discovery submitted by

     defendants in the form of request for admissions, requests for production,

     interrogatories and request for disclosure and in preparing request for discovery

     to the Defendant, HEATHER VILLAGE, including request for admissions,

     requests for production, a first set of written interrogatories, and a request for

     disclosure for which I charged my client a reasonable fee of $250.00 per hour,

     being a total through that May 18, 2014 of $6,860.00. Since that time I've

     expended and additional hours of time in preparation of a "No Evidence" Motion

     For Summary Judgment, as well as a Traditional Motion For Summary Judgment,

     with supporting affidavits and summary judgment evidence, which at my office

     rate of $250.00 per hour is an additional total of $4,850.00, being total attorney's

     fees to the present date of $11,710.00. Based on my 46 years of law practice

     and experience rating, a fee of $250.00 per hour is very low and quite

     reasonable in Tarrant County Texas for the legal work performed, A written

     demand for payment of the account was made by Plaintiff, PANINA's Director

     of Operations, Ofer Abramov and Susan Briggeman, the President of Plaintiff to

     Defendant HEATHER VILLAGE's agent, Sungate Management, Inc. on

     January 18, 2013, more than thirty (30) days prior to suit being filed as required

     by Section 38.001 et seq. of the Texas Civil Practice and Remedies Code"

4.   "In my opinion, the charges I have made for representation of Plaintiff,

     PANINA, INC d/b/a JA CONSTRUCTION SERVICES, are reasonable

     charges in Tarrant County, Texas and were necessary charges for the
     representation of Plaintiff, P ANINA, INC d/b/a JA CONSTRUCTION

     SERVICES, which total the sum of$II,710.00 through the present date and for

     which attorney's fees Plaintiff is entitled to judgment against the Defendant,

     HEATHER VILLAGE, LLC, D/B/A THE HEATHER VILLAGE, plus any

     additional attorney's fees incurred after this date through the date of trial or a

     hearing on our motion for summary judgment for which I will charge $350 an

     hour in court, which is a reasonable hourly rate for court appearances in my

     opinion. Based upon my experience in handling appeals, it is my opinion that

     in the event of an appeal by any party to the Second Court of Appeals sitting in

     Fort Worth, Texas, minimum reasonable attorney's fees would be the sum of

     $10,000.00 and in the event the Petition for Review is filed by any party to the

     Texas Supreme Court, that a reasonable attorney's fee for filing or responding

     to a Petition for Review would be the sum of$IO,OOO.OO."

5.   "In my expert opinion, as a matter of law, Plaintiff, PANINA, INC d/b/a JA

     CONSTRUCTION SERVICES is entitled to attorney's fees incurred in regard to

     its claim based upon a sworn account and upon alternative claims for breach of

     contract and quantum meruit, based a proper presentment of its sworn account

     claim and breach of contract claim, since Plaintiff gave the Defendants at least a

     thirty (30) day written demand prior to filing suit, as mandated under Tex. Civ.

     Prac. & Rem. Code §38.001, as well as for foreclosure of their timely filed

     Affidavit for Mechanic's Lien on the property of Defendant, HEATHER

     VILLAGE, LLC. , D/B/A THE HEATHER VILLAGE .. "
      Affidavit for Mechanic's Lien on the property of Defendant, HEATHER

      VILLAGE, LLC., D/B/A THE HEATHER VILLAGE .. "




                                                     P. KNOUSE, Affiant


           SWORN AND SUBSCRIBED TO BEFORE ME, this            2~day of September,
   2014.



 (j        ANN MARIE GADBERRY
           MY COMMISSION EXPIRES
            OCTOBER 2, 2014
                                            NOTARY PUBLIC IN AND FOR T
                                            STATE OF TEXAS




My commission expires:       to -I   - {~
                   EXHIBIT "C"
Defendant's Unsworn Original Answer and Counterclaim
AUG-12-2013 11:19 From:HENLEY&HENLEY                2148210124             To: 2143675982




                                              NO. 17-266141-13

     PANINA, INC. d/b/a JA                               §             IN THE DISTRICT COURT
     CONSTRUCTION SERVICES,                              §
     Plaintiff,                                          §
                                                         §
     v.                                                  §
                                                         §
     REA TIlER VILLAGE, LLC d/b/a THE                    §             17TH JUDICIAL DISTRICT
     HEATHER Vll..LAGE APARTMENTS,                       §
     Defendant, Counter-Plaintiff,                       §
                                                         §
     v.                                                 §
                                                        §
     PANINA, INC. d/b/a JA                              §
     CONSTRUCTION SERVICES,                             §
     Counter-Defendant                                  §             TARRANT COUNTY, TEXAS


                             ~FENDANT'S          ORIGINAL ANSWER AND
                                            COUNTERCLAIM
            NOW COMES HEATHER VILLAGE LLC d/b/a THE HEATHER VILLAGE

     APARTMENTS, named Defendant and Counter-Plaintiff in the above-entitled and numbered

    cause, and brings this Original Answer and Counterclaim, and shows the Court:

                                           GENERAL DENIAL

            1.     Defendant/Counter-Plaintiff each and every allegation of Plaintiffs Original

    Petition, and demands strict proof thereof as required by the Texas Rules of Civil Procedure.

                   DEFENDANT/COUNTER-PLAINTIFF'S COUNTERCLAIM

                                                  FACTS

           2.      On or about March 19, 2012, Counter-Defendant agreed to perform work on

    Counter-Plaintiff's property located at 6000 Boca Raton in Fort Worth, Texas ("Property"). Said

    Property is a series of multifamily residential dwelling units.

           3.      The work was to include, among other things, the removal and replacement of




                                                                                              PAGE 1
AUG-12-2013 11:20 From:HENLEY&HENLEY                2148210124                To: 2143675982




      exteriQr wood.

             4.        Counter-Defendant charged    Counter~Plaintiff   an unreasonably excessive fee to

     perform this labor.

             S.        Counter-Defendant damaged the Property by failing to properly install the

     exterior wood, and Counter-Plaintiff has been forced to seek other contractors to not only

     perfonn the work Countel"-Defendant was to have performed, but also repair the damage

     Counter-Defendant caused to the Property.

                            CAUSE OF ACTION: BREACH OF WARRANTY

            6.      The residential construction was not completed in a good and workmanlike

     manner, which was a breach of the implied warranty of good and worlananlike services for

     residential construction.

            7.      Counter-Defendant's breach of warranty directly and proximately caused injury to

     Counter-Plaintiff.

                            CAUSE OF ACTION: BREACH OF CONTRACT

            8.      All conditions precedent have been met.

            9.      Counter-Plaintiff and Counter-Defendant had a valid, enforceable contract for the

    renovation of the Property.

            10.     Counter-Plaintiff   perfonne~   substantially performed, tendered performance or

    was excused from performing.

            11.    Counter-Defendant breached the contract, causing injury to Counter-Plaintiff.

                                 DAMAGES FOR COUNTER~PLAINTIFF

            12.    As a direct and proximate result of the occurrence made the basis of this lawsuit,

    Counter-Plaintiff has inCUl'Ted substantial expenses to fix the problems caused by Counter·




                                                                                                PAGE 2
AUG-12-2013 11:20 From:HENLEY&HENLEY                 2148210124                To: 2143675982




      Defendant's substandard work.

             13.    Counter-Plaintiff also seeks recovery of their attorney's fees, as provided by

      Chapter 38 of the Texas Civil Practice and Remedies Code.

                                                 PRAYER

             Defendant/Counter-Plaintiff     prays     the   Court   enters    judgment    in   favor   of

      Defendant/Counter-Plaintiff, awards Defendant/Counter-Plaintiff the costs of court, attorney's

     fees, and such other and further relief as DefendantiCounter-Plaintiffmay be entitled to in law or

     in equity.

                                                     Respectfully submitted,

                                                     HENLEY & HENLEY, P.e.

                                                                        ........,.



                                                 ~eAddison
                                                     Texas Bar No. 00798253
                                                     rladdison@hen1eylawpc.com
                                                     Geoff J. Henley
                                                     Texas Bar No. 00798253
                                                     ghenley@henleylawpc.com
                                                     David F. Gonzales
                                                     Texas Bar No. 24073258
                                                     dgonzales@nen1eylawpc.com
                                                     3300 Oak Lawn Avenue, Suite 700
                                                     Dallas, Texas 75219
                                                     214/821-0222 (Telephone)
                                                     214/821-0124 (Facsimile)

                                                     ATTORNEYS FOR COUNTER-PLAINTIFF




    DEFENIMNI'~ ~SWijR ANP CQt,JNIERCLAIM.                                                       PAGE 3
AUG-12-2013 11:20 From:HENLEY&HENLEY              2148210124              To:2143675982




                                          CERTIFICATE OF SERVICE

             On this the 12th day of August 2013, I hereby certify that a true and correct copy of the
      foregoing has been sent to Counter-Defendant, P ANINA INC. d/b/a JA CONSTRUCTION
      SERVICES, by and through the following:

     John P. Knouse
     16970 Dallas Parkway, Bdg. 300
     Dallas, Texas 75248
     214.380.1 188-tel.
     214.367.5982-fax

                            ~_ _ HAND-DELIVER,Y                     xxx FACSIMILE
                            _ _ _ ELECTRONIC MAIL
                            _ _ _ CERTIFIED MAIL
                                                                - - - REGULAR MAIL


                                                         R. Lane            <---...---.-- - .




     DID'WOANT'S ANSWER AND CQV.HTERCLA.!M_                                                     PAGE 4
                 EXHIBIT "B"
PLAINTIFF'S "NO EVIDENCE" MOTION FOR SUMMARY
                   JUDGMENT
                                     017-266141-13                                        FILED
                                                                             TARRANT COUNTY
                                                                           9/19/20147:10:53 PM
                                                                            THOMAS A. WILDER
                              CAUSE NO. 17-266141-13                            DISTRICT CLERK


PANINA, INC d/b/a                        §       IN THE 17th JUDICIAL
JA CONSTRUCTION SERVICES                 §
     Plaintiff                           §
                             §
vs.                          §                   DISTRICT COURT OF
                             §
HEATHER VILLAGE, LLC. ,D/B/A §
THE HEATHER VILLAGE          §
APARTMENTS                   §
     Defendant               §                   TARRANT COUNTY, TEXAS


  PLAINTIFF AND COUTER-DEFENDANT'S "NO-EVIDENCE" MOTION FOR
                     SUMMARY JUDGMENT

        NOW COMES, Plaintiff and Counter-Defendant PANINA, INC d/b/a JA

CONSTRUCTION SERVICES ("Panina") and files its "No-Evidence" Motion for

Summary judgment against Defendant and Counter-Plaintiff, HEATHER VILLAGE,

LLC. , D/B/A THE HEATHER VILLAGE. APARTMENTS ("Heather Village"), and

would show unto the Court the following:

                                     I.
                           PROCEDURAL BACKGROUND

      Plaintiff and Counter-Defendant, PANINA filed suit against Defendant and

Counter-Plaintiff,   HEATHER VILLAGE,             based   upon   a sworn account,          and

alternatively, for breach of contract, implied contract/ quantum meruit, and for

foreclosure of its mechanics lien, for which a separate Traditional Motion For

Summary Judgment is being filed.             Defendant and Counter-Plaintiff, HEATHER

VILLAGE, filed an inadequate, unsworn general denial, completely failing to deny the

PLAINTIFF ANn COll"TER-DEFENIHxr's MOTlOl"
                                                                               [,,\(iL I
FOR "NO EVJ()ENCl': "StMMARY .WDG,\1EY(,
                                         017-266141-13

sworn account under oath as required by TRCP Rule 93 (10), precluding it to deny the

claim or any item thereof under the TRCP Rule 185. Despite the fact that Defendant and

Counter-Plaintiff, HEATHER VILLAGE has paid nothing for the labor and materials

provided to it by Plaintiff and Counter-Defendant, PANINA, it filed counterclaim,

claiming that PAN INA charged an unreasonably excessive fee for labor and improperly

installed exterior wood suing P ANINA under an alleged breach of warranty for which it

paid no consideration and for breach of contract, which it breached itself by failing to pay

for the work done and materials furnished, and suing for damages allegedly caused by

Plaintiff and Counter-Defendant PANINA, without specifying any cause of action

whatsoever.

                                       II.
                           SUMMARY OF RELEVANT FACTS


       A.     On October 11, 2012, the Defendant and Counter-Plaintiff, HEATHER

VILLAGE, by and through its agents and representatives, Sungate Management, Inc.,

signed and accepted on November 14, 2012, entered into a written contract with Plaintiff

and Counter-Defendant, PANINA, requesting Plaintiff to perfonn wood replacement

and exterior paint repairs to Defendant and Counter-Plaintiffs property, known as THE

HEATHER VILLAGE APARTMENTS, located at 6000 Boca Raton in Fort Worth,

Tarrant County, Texas 75112 for a total sum of $46,000.00.

       B.      Under the terms and conditions of the written contract 50% of the total

contract price in the sum of $23,000.00 was due and payable upon delivery of the

PL:\INTIFF r\N() COl':\fTER-()EFENIHNT'S MOTION
                                                                                  f', \(il   ~.
FOR "NO EVIDENCE "Sl''\Ht,\.RY .J(lJ)GMENT
                                          017 -266141-13

materials and commencement of work at the apartment building located at 6000 White

Dove Drive in Fort Worth, Texas for which Plaintiff submitted its invoice No.

1115201202 on November 15, 2012. Furthermore under the terms and conditions of the

written contract the remaining 50% of the total contract price in the sum of $23,000.00

was due and payable upon completion of the renovation work at the apartment building

located at 6000 White Dove Drive in Fort Worth, Texas for which Plaintiff submitted its

invoice No. 1115201203 on November 15,2012.

       C.     After performing the renovation work requested, Defendant and Counter-

Plaintiff, HEATHER VILLAGE agreed to a change order requesting Plaintiff and

Counter-Defendant, PANINA to further provide additional labor and materials in repairs

to the apartment building located at 6000 White Dove Drive in Fort Worth, Texas, which

were provided by the Plaintiff at Defendant and Counter-Plaintiff, HEATHER

VILLAGE's special instance and request in the additional sum of $5,200.00 as specified

in the Plaintiff invoice No. 1122201201 on November 22,2012.

       D.     The total reasonable value of all of the services, labor, and materials

furnished by the Plaintiff and Counter-Defendant, PANINA at the request of Defendant

and Counter-Plaintiff, HEATHER VILLAGE t is the sum of $51,200.00, which

services were specified in the written contract and is also itemized in the invoices.

Defendant and Counter-Plaintiff, HEATHER VILLAGE has made no payments toward

for the labor and materials ordered by it, and there is a balance due and owing of the full

amount of $51,200.00

"LAINTIFF AND COUNTER-DEFEN[)ANT'S MOTION
                                                                                     1':\( iF)
FOR "NO EVII>ENCE "SlMi\IARY J(IJ)GMENT
                                        017-266141-13

        E.     Although Plaintiff and Counter-Defendant, PAN INA has on numerous

occasions made demand for payment by Defendant and Counter-Plaintiff, HEATHER

VILLAGE for the balance due, ,it has failed and refused to pay Plaintiff the past due

balance for the additional services ordered or any part of it, to Plaintiffs damage in the

total sum of $51 ,200.00.

       F.     A written demand letter requesting payment of the full amount of

$51,200.00 was sent by Plaintiffs Director of Operations, Ofer Abramov and Susan

Briggeman, Plaintiffs President to Defendant's agent, Sungate Management, Inc. on

January 18,2013.

       G.     Though Plaintiff and Counter-Defendant, PAN INA has sent Defendant

and Counter-Plaintiff, HEATHER VILLAGE discovery in the form of Requests For

Admissions, a First Set of Interrogatories, a First Set of Request for Production and A

Request For Disclosures, Defendant and Counter-Plaintiff, HEATHER VILLAGE has

completely failed to produce any documentary evidence supporting its claims, stating that

it will use an "expert report" for an expert that has never been designated in response to

requests for disclosures. See Response of Defendant and Counter-Plaintiff, HEATHER

VILLAGE

                                        III.
                             ARGUMENTS AND AUTHORITIES

A.     "NO EVIDENCE" SUMMARY JUDGMENT STANDARDS.




PLAINTIFF AND COl,NTER-OEFENI)"NT'S 1\10TI01\
FOR "NO EVIDENCE "Sl:t\'liVIAI{Y Jl'DGMENT
                                             017-266141-13


         Under the "no evidence" summary judgment rule, the Movant may move for

summary judgment if, after adequate time for discovery, there is no evidence of one or

more essential elements of a claim or defense on which the non-movant would have had

the burden of proof at tria1." Galveston Newspapers, Inc. v. Norris, 981 S.W.2d 797, 799

(Tex. App.-Houston [l st Dist] 1998, pet. denied). "Once properly raised, Rule 166a(i) ...

places the burden on the non-movant to produce evidence on each and every challenged

element of his claim." Heiser v. Echerd Corp., 983 S.W.2d 313, 316 (Tex. App.-Fort

Worth 1998, no pet.); see Esco Oil & Gas, Inc. v. Sooner Pipe & Supply Corp., 962

S.W.2d 193,197 n.3 (Tex. App.-Houston [1 st Dist.] 1998, pet. denied). "Under the no

evidence summary judgment standard, the party with the burden of proof at trial will have

the same burden of proof in a summary judgment proceeding." Norris, 981 S.W.2d at 799-

800 (internal quotations omitted); also see Marsaglia v. Univ. a/Texas at El Paso, 22 S.W.

3d 1,3 (Tex. App.-EI Paso 1999, pet. denied). "The court must grant the motion unless the

respondent produces summary judgment evidence raising a genuine issue of material

fact." Tex. R. Civ. P. 166a(i); In re MohawhRubber Co., 982 S.W.2d 494,498 (Tex.

App.-Texarkana 1998, no pet.). A no-evidence summary judgment is properly granted if

the non-movant fails to bring forth more than a scintilla of probative evidence to raise a -

genuine issue of material fact as to an essential element of the non-movant's claim. See

Rodriguez v. NBC Bank, 5 S.W.3d 756, 760 (Tex. App.-San Antonio 1999). Less than a

scintilla of evidence exists when the evidence is so weak as to do no more than create a



I'LAI!'iTiFF A;"I(D COUNTER-DEFENI):\!\T'S i\lOTION
                                                                                     [",\( i I '
FOR "NO EVIDENCE "Sl:i\'IMARY ,Jl!()(;:\H:NT
                                         017-266141-13


mere surmise or suspicion of a fact, and the legal effect is that there is no evidence.

Rodriguez, 5 S.W.3d at 760

B.      Adequate Time For Discovery.

        An adequate time for discovery has passed. This case is set for trial for the week

of October 20,2014. The time for discovery under the scheduling order has passed.

C.      Heather Village Has No Evidence to Support Its Claim for Breach of
        Warranty.

        As previously stated, despite the fact that Defendant and Counter-Plaintiff,

HEATHER VILLAGE has paid nothing for the labor and materials provided to it by

Plaintiff and Counter-Defendant, PANINA, it filed counterclaim claiming that

PAN INA improperly installed exterior wood claiming that P AN INA breached an

"implied warranty of good and workmanlike services for residential construction".

        In general, an express warranty is the result of a negotiated exchange, see, e.g.,

u.s.   Pipe & Foundry Co. v. City of Waco, l30 Tex. 126, 108 S.W.2d 432, 434

(Tex.l937), and is a "creature of contract," 18 WILLISTON ON CONTRACTS § 52:45.

Accord Cipollone v. Liggett Group, Inc. 505 U.S. 504, 524 n. 23, 112 S.Ct. 2608, 120

L.Ed.2d 407 (1992) (plurality opinion) (noting that "express warranty claims are said to

sound in contract rather than in tort" and comparing legal definitions oftort and contract).

To ascertain the parties' intentions in a warranty, the Court must look to well-established

rules for interpretation and construction of contracts. See Rodriguez v. W. 0. W. Lifo Ins.

Soc., 136 Tex. 43, 145 S.W.2d 1077, 1080 (Tex. 1941). A breach of express warranty


PLAINTIFF AND COllNTEJ{-DEFENDANT'S MOTION
                                                                                      1':\(i1 ()
FOR "NO EVIDENCE "Slfl\'1MARY JUDGMENT
                                           017-266141-13


claim, like one for breach of contract, involves a party seeking damages based on an

opponent's failure to uphold its end of the bargain. See City o/Waco, 108 S.W.2d at 434.

        Plaintiff and Counter-Defendant, P ANIN A contends there is no evidence to

support the claim of Defendant and Counter-Plaintiff, HEATHER VILLAGE that

there was a breach of either an express or and implied warranty by Plaintiff and

Counter-Defendant, PANINA and hereby challenges Defendant and Counter-

Plaintiff, HEATHER VILLAGE to produce competent summary judgment evidence

of all of the essential elements supporting its claim for an alleged breach of either an

express or implied warranty of good and workmanlike services for residential

construction, including but not limited to.

       (1) Proof of the amount of consideration actually paid to Plaintiff and Counter-

           Defendant, PANINA by Defendant and Counter-Plaintiff, HEATHER

           VILLAGE for any warranty express or implied;

       (2) Proof of any negotiated warranty between Defendant and Counter-Plaintiff,

           HEATHER VILLAGE and Plaintiff and Counter-Defendant, PANINA;

       (3) Proof of any breach of any express or implied warranty by Plaintiff and

           Counter-Defendant, PANINA;

       (4) Proof of any damage caused to Defendant and Counter-Plaintiff, HEATHER

           VILLAGE by any such breach of any express or implied warranty by

           Plaintiff and Counter-Defendant, PANINA.



')LAINTIFF AND COlINTE:I{-[)EFENIHNT'S MOTION
1"01{ "NO EVII>ENCE "S(li\IMAI{Y .J(i(}(;I\1EI\;T
                                           017-266141-13

       Unless Defendant and Counter-Plaintiff, HEATHER VILLAGE can produce

competent summary judgment evidence establishing each of the above elements against

the Plaintiff and Counter-Defendant, PANINA,               Plaintiff and Counter-Defendant,

P ANINA is entitled to summary judgment on Defendant and Counter-Plaintiff,

HEATHER VILLAGE's breach of warranty claim as a matter of law. TRCP 166a(i);

Dolcefino v. Randolph, 19 S.W.3d 906,917(Tex. App.-Houston [14 th Dist.] 2000, pet.

denied) (granting no-evidence motion mandatory give non-movant fails to produce

summary judgment evidence sufficient to raise genuine issue of material fact.)


D.     Heather Village Has No Evidence to Support Its Claim for Breach of
       Contract.

       Although Defendant and Counter-Plaintiff, HEATHER VILLAGE has paid

nothing for the labor and materials provided to it by Plaintiff and Counter-Defendant,

P ANINA, filed counterclaim claiming that PANINA charged an unreasonably

excessive fee for labor and improperly installed exterior wood claiming that PANINA

breached a contract for which it also paid no consideration.

       In order to maintain a claim for a breach of contract, Defendant and Counter-

Plaintiff, HEATHER VILLAGE must establish the following elements: (1) a valid

contract; (2) the counter-plaintiff performed or tendered performance; (3) the counter-

defendant breached the contract; and (4) the counter-plaintiff was damaged as a result of

that breach. See Hussong v. Schwan's Sales Enterprises, Inc., 896 S.W.2d 320, 326

(Tex.App.-Houston [lst Dist.] 1995, no writ) .

PLAINTIFF AND COlJNTER-[}EFENI)ANT'S MOTION
                                                                                     I' ;\( iJ g
FOR "NO f<:VIDENCE: "SlIMMARY Jl.IDGMENT
                                        017-266141-13

       Plaintiff and Counter-Defendant, PANINA contends there is no evidence to

support the claim of Defendant and Counter-Plaintiff, HEATHER VILLAGE that

there was a       breach of contract warranty by Plaintiff and Counter-Defendant,

P ANINA and hereby challenges Defendant and Counter-Plaintiff, HEATHER

VILLAGE to produce competent summary judgment evidence of all of the essential

elements supporting its claim for an alleged breach of either an express or implied

warranty of good and workmanlike services for residential construction, including but

not limited to:

       (1) Proof of a valid contract between Defendant and Counter-Plaintiff,

          HEATHER VILLAGE and Plaintiff and Counter-Defendant, PANINA;

       (2) Proof that Defendant and Counter-Plaintiff, HEATHER VILLAGE

          performed under the contract by paying Plaintiff and Counter-Defendant,

          PANINA the contractual amount agreed to by the parties for labor and

          materials;

       (3) Proof that Plaintiff and Counter-Defendant, PANINA breached the

          contract; and

       (4) Proof that Defendant and Counter-Plaintiff, HEATHER VILLAGE was

          damaged by the alleged breach of contract.

       Unless Defendant and Counter-Plaintiff, HEATHER VILLAGE can produce

competent summary judgment evidence establishing each of the above elements against

the Plaintiff and Counter-Defendant, PANINA,            Plaintiff and Counter-Defendant,

PLAINTIFF AND COt!NTER-DEFEN()ANT'S MOTION
FOR "NO EVIDENCE "SliMMARV .JllDGMENT
                                             017-266141-13


PANINA is entitled to summary judgment on Defendant and Counter-Plaintiff,

HEATHER VILLAGE's breach of warranty claim as a matter of law. TRCP 166a(i);

Dolcefino v. Randolph, 19 S.W.3d 906,917(Tex. App.-Houston[14 th Dist.] 2000, pet.

denied) (granting no-evidence motion mandatory give non-movant fails to produce

summary judgment evidence sufficient to raise genuine issue of material fact.)

D.     Heather Village Has No Evidence to Support Its Claim for Damages


       No evidence has been produced by of Defendant and Counter-Plaintiff,

HEATHER VILLAGE of any damage caused to it by the actions of Plaintiff and

Counter-Defendant, PANINA, although request for production of documents

showing actual damage have been sent with no documents ever having been

produced. No evidence has been produced by Defendant and Counter-Plaintiff,

HEATHER VILLAGE by way of an expert witness which has never been designated

nor a report produced show any damage caused to it. It is not clear from the pleadings of

Defendant and Counter-Plaintiff, HEATHER VILLAGE whether or not it is seeking

damages solely based upon its contentions of breach of implied warranty and breach of

contract,. To the extent that Defendant and Counter-Plaintiff, HEATHER VILLAGE,

may attempt to argue some theory that is not pled it should be precluded from doing so

as a matter of law since Plaintiff and Counter-Defendant, PANINA and their counsel

have never been apprised of any other causes of action other than the alleged

breach of implied warranty and breach of contract.


PLAINTIFF AND   COl'NTER-[)En~NIHNT'S   MOTION
FOR "NO «:VIUENCE: ··SUM!\'IAH.Y "l!DGME"H
                                         017-266141-13


       WHEREFORE,             PREMISES         CONSIDERED,            Plaintiff and      Counter-

Defendant, PANINA, respectfully requests the court to enter an order granting this

no evidence motion for summary judgment and for any and all other relief to which

it may be justly entitled.


                                             Respectfully submitted,
                                             LA             OF JOHN P. KNOUSE



                                                       . KNOUSE
                                                     ar Number: 11624000
                                             16 0 N. Dallas Parkway
                                                g 300
                                             Dallas, Texas 75248
                                             (972) 380-1188 (Telephone)
                                             (214) 367-5982 (Telecopier)
                                             E-mail: knouselaw@yahoo.com
                                             ATTORNEY FOR PLAINTIFF




                                CERTIFICATE OF SERVICE

       This is to certify that on this /9 }-day of September, 2014, a true and correct copy of the

foregoing was served upon Defendant by facsimile to (214) 812- 0124 sent to Mr. R. Lane

Addison Esq., of Henley and Henley PC, Attorneys At Law, 3300 Oak Lawn Ave., Suite 700,

Dallas, Texas 75219, Attorneys of Record for Defendant as required by T.R.C.P. Rule 21 a.




PLAINTIFF ANI) COl!NTER-[)EFENDAl'IT'S MO 'ION.
                                                                                          1'/\(11 I I
FOR "NO EVII>ENCf. "SLIM MARY .JlI/)(;M/<~NT
                                        017-266141-13

                                             FIAT

              Notice is given that the above and foregoing Plaintiff and Counter-

Defendant's Motion for "No Evidence Summary Judgment is hereby set for the _day of

October, 2014 at _ _ _ _ _ o'clock               m.




I'L;\INTIFF ANI> COl:NTER-I>EFENI>ANT'S MOTION
                                                                           1';\( ii',   12
FOR "NO EVIDENCE "Stl'\'lMARY .H)()GMENT
                  EXHIBIT "C"
DEFENDANT'S RESPONSE TO PLAINTIFF'S TRADITIONAL
       MOTION FOR SUMMARY JUDGMENT
                                           017-266141-13                                                    FILED
                                                                                              TARRANT COUNTY
                                                                                           11/7/2014 11 :29:26 AM
                                                                                             THOMAS A. WILDER
                                          NO. 17-266141-13                                       DISTRICT CLERK


PANINA, INC. D/B/A JA                              §    IN THE DISTRICT COURT
CONSTRUCTION SERVICES                              §
Plaintiff,                                         §
                                                   §
V.                                                 §    17TH JUDICIAL DISTRICT
                                                   §
HEATHER VILLAGE, LLC D/B/A THE                     §
HEATHER VILLAGE APT                                §
Defendant.                                         §    OF TARRANT COUNTY, TEXAS

                         DEFENDANT'S RESPONSE TO
         PLAINTIFF'S TRADITIONAL MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

        NOW COMES Defendant, Heather Village, LLC d/b/a The Heather Village Apt,

Defendant herein, and requests this Honorable Court to DENY Plaintiff's Traditional Motion for

Summary Judgment.

                                         INTRODUCTION

       When a Plaintiff files a motion for summary judgment based on summary judgment

evidence, the court can grant the motion only when the Plaintiff's evidence proves, as a matter of

law, all the elements of the Plaintiff's cause of action or defense, or disproves the facts of at least

one element in the Defendant's cause or defense.

       When evaluating a motion for summary judgment, the court must:

               1.      Assume all the Defendant's proof is true;

               2.      Indulge every reasonable inference in favor of the Defendant; and

               3.      Resolve all doubts about the existence of a genuine issue of material fact

       against the Plaintiff.

                                 SUIT ON SWORN ACCOUNT

       Plaintiff filed a claim against Defendant seeking affirmative relief for a suit on a sworn
                                           017-266141-13


account. "The essential elements to prove a sworn account are: (1) that there was a sale and

delivery of merchandise or performance of services; (2) that the amount of the account is just, that

is, that the prices were charged in accordance with an agreement or were customary and reasonable

prices; and (3) that the amount is unpaid." Day Cruises Mar., L. L. C v. Christus Spohn Health Sys.,

267 S.W.3d 42,53 (Tex. App. 2008).

        This case is, at most, a breach of contract case, not a suit on a sworn account. Even so, a

jUdgment on the sworn account is improper because the Defendant has filed a verified denial as

evidenced by Exhibit C. Moreover, as evidenced by Exhibits A & B, there is a legitimate dispute as

to whether the materials charged for were ever delivered or the amounts charged by the Plaintiff

was customary and reasonable. Thus, there is a genuine issue of material fact exists as to Plaintiffs

claim of a suit on a sworn account.

                           FORECLOSURE OF MECHANICS LIEN

        Plaintiff filed a claim against Defendant seeking to foreclose it mechanics lien filed against

Defendant. The foreclosure claim is dependent, entirely, on whether the Plaintiff is entitled to a

summary judgment on its frivolous suit on a sworn account or some breach of contract.

       Because Plaintiff is not entitled to a summary judgment on its sworn account claim, and

there are clearly contested issues regarding the value of the work Plaintiff performed, Plaintiff is

not legally entitled to foreclose its mechanics lien unless, and until, it has a valid judgment against

Defendant.

                                              PRAYER

       WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court will deny

Plaintiffs Traditional Motion for Summary Judgment, or order such other relief as may be

appropriate.
                                       017-266141-13




                                           Respectfully submitted,

                                           HENLEY & HENLEY, P.c.


                                           By: lsi R. Lane Addison
                                           R. Lane Addison
                                           Texas Bar No. 24059355
                                           Email: rladdison@henleylawpc.com
                                           3300 Oak Lawn Avenue, Suite 700
                                           Dallas, Texas 75219
                                           Tel. (214) 821-0222
                                           Fax. (214) 821-0124
                                           Attorney for Defendant
                                           Heather Village, LLC dlbla The Heather Village Apt




                              CERTIFICATE OF SERVICE

        I certify that on November 7, 2014 a true and correct copy of Defendant's Response to
Plaintiffs Traditional Motion for Summary Judgment was served on John P. Knouse
electronically at knouselaw@yahoo.com.


                                           lsi R. Lane Addison
                                           R. Lane Addison
                                           E-mail: rladdison@henleylawpc.com
                                                      017-266141-13


                                                    NO. 17-266141-13

PANINA, INC. D/B/A JA                                           §     IN THE DISTRICT COURT
CONSTRUCTION SERVICES                                           §
Plaintiff,                                                      §
                                                                §
V.                                                              §     17TH JUDICIAL DISTRICT
                                                                §
HEATHER VILLAGE, LLC D/B/A THE                                  §
HEATHER VILLAGE APT                                             §
Defendant.                                                      §    OF TARRANT COUNTY, TEXAS


                                                     APPENDIX TO
                          DEFENDANT'S RESPONSE TO
           PLAINTIFF'S TRADITIONAL MOTION FOR SUMMARY JUDGMENT

                                               TABLE OF CONTENTS

          All summary judgment evidence in this appendix is incorporated by reference into

Defendant's Response to Plaintiffs Traditional Motion for Summary Judgment.


Affidavit of David Christensen.. . ... .. . . . . ... ...... . .. ... ... .. . ....... . . . . . ............... Exhibit A

Affidavit of Ken Tola, an expert witness ................................................. Exhibit B

Defendant's Amended Answer and Counter-Claim ..................................... Exhibit C
                                         017-266141-13

                                        NO. 17-266141-13

PANINA, INC. D/B/A JA                          §    IN THE DISTRICT COURT
CONSTRUCTION SERVICES                          §
Plaintiff,                                     §
                                               §
V.                                             §    17TH JUDICIAL DISTRICT
                                               §
HEATHER VILLAGE, LLC D/B/A THE                 §
HEATHER VILLAGE APT                            §
Defendant.                                     §   OF TARRANT COUNTY, TEXAS

                                          AFFIDAVIT

        BEFORE ME, the undersigned authority, personally appeared David Christensen, who

being duly sworn, deposed as follows:

        "My name is David Christensen. I am the manager of the Real Estate Team Heather

Village, LLC d/b/a The Heather Village Apt hired to get the construction under control at the

apartment complex. I am at least 18 years of age and of sound mind. I have personal knowledge of

the facts alleged in Defendant's Response to Plaintiffs Motion for No Evidence Summary

Judgment. I hereby swear that the following statements in support of Defendant's Response to

Plaintiffs Motion for No Evidence Summary Judgment are true and correct.

       "The owners of Heather Village apartment complex had grown SUSpIClOUS that

construction at the complex was not progressing as planned. Having approximately 8 years in

construction, and with my immediate family having approximately 75 years in the field of

construction, I was asked by the Heather Village complex owners to become a member of their

'Real Estate Team' to help resolve any concerns and move the project forward.

       "Around December of 2012 I was sent to Heather Village to inspect the work of JA

Construction, who had claimed they had completed, and to either approve, or not approve, using

them to side the remaining buildings.
                                          017-266141-13


        "Within minutes of arriving at the complex, JA's siding work seemed to be nothing more

than simple painting of the previous old wood siding. Closer inspection seemed to reveal that JA

replaced a few pieces 'here' and 'there' yet were charging an astronomical amount for the work

performed. If JA thought the structures needed 'full replacement' he should have insisted it be

done. The complex owners were relying on JA's professional expertise.

       "I spoke with JA of JA Construction about the work and expressed concerns that the work

was substandard and deficient. In fact, we had a meeting in late November or early December 2012

to discuss the work JA Construction had performed up to that point. At that meeting, I asked JA

Construction to provide receipts for all materials purchased and for a detailed list of the work they

performed. None of that information was ever given to me or Heather Village.

       "Also, JA apparently was intermixing wood siding with cement fiber siding (aka Hardie

Board or James Hardie Board). This intermixing method is typically never done by reputable

contractors. It's major' building 101 ' mistake. The work also lacked backer board which provides

protection against moisture damage and mold growth. (We unfortunately, discovered the no

moisture barrier aspect when we had attempted to fix some of JA's work).

       "JA did full replacement siding on a couple of buildings. They claimed to a have used

official James Hardie board for their material.

       "A short time later, I was shown a pallet of the so-called 'Hardie Board' JA had been

implementing. The look and 'feel' of these boards did not seem correct. The entire vibe of JA

construction left me with a gut instinct that 'things didn't smell right'. Given the sub-standard

work of JA, an official James Hardie Board specialist was located ('Super Siding'). Ken Tola

(owner of Super Siding) was called and he agreed to come out the following morning to meet with

the Heather Village owners, the top officials with Sun Gate Management (the Property
                                             017-266141-13


Management Company for Heather Village at that time), and all the other members of the real

estate team.

           "During the following day's meeting it became fairly heated at times for both JA

Construction and Sun Gate Management could not locate receipts for materials used in the 'partial

replacement' buildings they had worked on. We had been asking for weeks prior to this meeting

and we were promised the receipts would be shown to us at this meeting. The official for JA

Construction kept repeating something to the effect of: "Typical materials and stuff, you know."

           "Furthermore, JA Construction failed to provide a detailed assessment (neither orally nor

in writing) of the work he performed. In addition, Ken Tola informed all of us, including the

official from JA, that JA's work was shoddy. The so-called Hardie Board JA was using was, in

fact, generic/fake Hardie Board made in Mexico. That fake board does not come with a 20 year

guarantee, other than JA saying, 'if there's a problem, hey, I'll come out and fix it."

           "Needless to say, we accepted Ken Tola / Super Siding'S bid to complete the remaining

buildings using the official James Hardie board.

           "In closing, to add insult to injury, when the raining reason began, many additional pieces

of JA's siding work were falling off the structures. Drains were also not placed back properly

which caused us thousands of dollars in repairs. Flashing was either not installed properly or not

installed, causing interior flooding to apartments. This in tum, caused us to be written up by the

city. We had to pay additional thousands of dollars of interior wall/cabinet/insulationlmold

repair."
                             017-266141-13   ~,\
                                               '-\   '
                                       ___ / '--------h7T
                                                          ,
                                                         \",,/,-' \ ' "
                                                                          -"-~-.
                                                                         -~_"
                                                                                 \
                                                                                               -,


                                                                                     -" .--- -·'__   . n. . _ ' . . ,




                               -na~'id Christensen. as Representative of Heather Villal:!t\
                                1.I,e d/b/a lh: Heather Villagc ,\pl

                                                                          , v-
                                                                     I    I

       SlJBSCRIBED AND SWORN TO DEFORE ME on !\memher                ~)              2014.    b~         Dn\ id
Christensen.




                                !\lltary Public. Statt: of Cali fornia
                                            017-266141-13


                                           NO. 17-266141-13

PANINA, INC. D/B/A JA                           §    IN THE DISTRICT COlJRT
CONSTRUCTION SERVICES                           §
Plaintiff,                                      §
                                                §
V.                                              §    17TH JUDICIAL DISTRICT
                                                §
HEATHER "lLLAGE, LLC D/B/A THE                  §
HEATHER VILLAGE APT                             §
Defendant.                                      §    OF TARRANT COllNTY, TEXAS


                                    AFFIDAVIT OF KEN TOLA

       BEFORE ME, the undersigned authority. personally appeared Ken Tola, who being duly sworn,

deposed as follows:

       "My name is Ken Tola. I am at least 18 years of age and of sound mind. I have personal

knowledge of the facts alleged herein, which are true and correct.

       "l am the owner and operator of Super Siding. I have over 30 years or experience as a general

contractor and have done countless siding jobs on residential and commercial properties. I have

personally inspected all the work performed by JA Construction Services in this case, as well as the

invoices JA Construction sent to Heather Village. The work previously done was to Units 6012. 6008.

6004,6000,6001,6005.6000 and 6004.

       "My company Super Siding and Remodeling is a certified James Hardie Contractor. We have

services hundreds of commercial and residential customers, installing James Hardie certified siding. In

that time, we have not had one complaint logged by James Hardie.

       "After reviewing the invoices and work performed by JA Construction in this case, we have

identified the following deficient and substandard workmanship:

       1.     JA Construction did not utilize authentic James Hardie siding, commonly referred to as
              Hardie Board, despite charging Heather Village tor that product.
       2.     The siding installed by JA Construction was an inferior Maxitile product that was almost
              certainly less expensive and does not hold up well as James Hardie siding.
       3.     JA Construction utilized wood for trim. Wood used as trim has an extremely short shelf-
              life.
                                              017-266141-13


       4.        The repairs JA Construction made were merely cosmetic, and did not address or fix the
                 root cause of the problems.
       5.        JA Construction was not removing the rot underneath the siding they were replacing.

       "On start of work on unit 6008 we encountered an enormous amount of structural damage.

Working with the city of Fort Worth inspectors, \ve had to replace most of the support headers (2x 12s,

2xlOs, and 2x8s). We also replaced hundreds of 2 x 4 framing, rebuilt all chimneys and most of the

insulation. This remedial work was needed on all of the 18 buildings we worked on.

       "When we removed the inferior Maxitile siding, we discovered the following deficient and

substandard workmanship:

       1.        JA Construction did not install weather-barriers. We \vent back and installed Moisture
                 wrap.
       2.        JA Construction did not install window flashing. Window /lashing is necessary to stretch
                 and seal window and doors.
       3.        JA Construction did not use metal fishing or seam sealers.
       4.        We inspected many of the pressure-treated bottom plates on the previous contractors
                 units and they were rotted. JA Construction did not address these problems.
       5.        JA Construction did not rebuild any of the falling-in electrical panel boxes. As such. we
                 had to go back and rebuild those just to pass the City of Fort Worth inspection (City
                 code required this).

       '''Based on all this evidence, there is no surprise that the units JA Construction "repaired" were

in such deplorable conditions. The worked perfonned by JA Construction for Heather Village was

substandard. Most of the "repairs" does by JA Construction will need significant remedial work. In my

opinion, JA Construction knew what to do but did everything as cheap as possible and that they could

get away with.

       "Based on my extensive expenence, inspecting the property, and completing some of the

remedial work, the cost to properly fix the problems JA Construction ignored or created will cost

approximately $166,500.00."




                                              Ken         ffiant
                         017-266141-13

SUBSCRIBED AND SWORN TO BEFORE ME on November 2,2014, by Ken To!~.

                                                   •   •'1/1
                                                           j
                                                               r ".
                                      V I I -,.::UU I <t I - I,;)




                                           017-266141-13                                             FILED
                                                                                         TARRANT COUNTY
                                                                                       11/5/20141:22:29 PM
                                                                                        THOMAS A. WILDER
                                         NO. 17-266141-13                                  DISTRICT CLERK


PANINA, INC. d/b/a JA                                        §       IN THE DISTRICT COURT
CONSTRUCTION SERVICES,                                       §
Plaintiff,                                                   §
                                                             §
V.                                                           §
                                                             §
HEATHER VILLAGE, LLC d/b/a THE                               §       17TH JUDICIAL DISTRICT
HEATHER VILLAGE APARTMENTS,                                  §
Defendant, Counter-Plaintiff,                                §
                                                             §
V.                                                           §
                                                             §
PANINA, INC. d/b/a JA                                        §
CONSTRUCTION SERVICES,                                       §
Counter-Defendant                                            §      T ARRANT COUNTY, TEXAS


             DEFENDANT'S FIRST AMENDED ORIGINAL ANSWER AND
                             COUNTERCLAIM

       NOW COMES Heather Village, LLC d/b/a The Heather Village Apartments, named

Defendant and Counter-Plaintiff in the above-entitled and numbered cause, and brings this

Original Answer and Counterclaim, and shows the Court:

                                   SPECIAL EXCEPTIONS

       1.      Defendant/Counter-Plaintiff specially excepts Plaintiffs claim for relief on a

sworn account. A sworn account is improper and not available in this breach of contract matter.

                                     GENERAL DENIAL

       2.      Defendant/Counter-Plaintiff each and every allegation of Plaintiff's Original

Petition, and demands strict proof thereof as required by the Texas Rules of Civil Procedure.

                              DENIAL OF SWORN ACCOUNT

       3.     Defendant/Counter-Plaintiff specifically denies the allegations of the sworn

account. Defendant/Counter-Plaintiff specifically denies that the amount of the account is due to




DEFENDANT'S FIRST AMENDED ANSWER AND COUNTER CLAIM                                        PAGE 1
                                        017-266141-13

                                          017-266141-13

Plaintiff as alleged and further denies that all just and lawful offsets, payments, and credits have

been allowed.

                 DEFENDANT/COUNTER-PLAINTIFF'S COUNTERCLAIM

                                              FACTS

        4.       On or about March 19, 2012, Counter-Defendant agreed to perform work on

Counter-Plaintiffs property located at 6000 Boca Raton in Fort Worth, Texas ("Property"). Said

Property is a series of multifamily residential dwelling units.

        5.       The work was to include, among other things, the removal and replacement of

exterior wood.

        6.       Counter-Defendant charged Counter-Plaintiff an unreasonably excessive fee to

perform this labor.

        7.       Counter-Defendant damaged the Property by failing to properly install the

exterior wood, and Counter-Plaintiff has been forced to seek other contractors to not only

perform the work Counter-Defendant was to have performed, but also repair the damage

Counter-Defendant caused to the Property.

                       CAUSE OF ACTION: BREACH OF WARRANTY

        8.       The residential construction was not completed in a good and workmanlike

manner, which was a breach of the implied warranty of good and workmanlike services for

residential construction.

       9.        Counter-Defendant's breach of warranty directly and proximately caused injury to

Counter-Plaintiff.

                       CAUSE OF ACTION: BREACH OF CONTRACT

       10.       All conditions precedent have been met.




DEFENDANT'S FIRST AMENDED ANSWER AND COUNTER CLAIM                                          PAGE 2
                                       017-266141-13

                                          017-266141-13

          11.   Counter-Plaintiff and Counter-Defendant had a valid, enforceable contract for the

renovation of the Property.

        12.     Counter-Plaintiff performed, substantially performed, tendered performance or

was excused from performing.

        13.     Counter-Defendant breached the contract, causing injury to Counter-Plaintiff.

                                         NEGLIGENCE

        14.     In the course of the transactions between Counter-Plaintiff and Plaintiff, Plaintiff

owed Counter-Plaintiff a duty to ensure the work was completed in a professional, workman like

manner.

        15.     Counter-Plaintiff would show that Plaintiff failed to exercise ordinary care in

performing such duty. The acts and/omissions of Plaintiff as described hereinabove by which

Plaintiff breached such duty constitute a proximate cause of the damages of Counter-Plaintiff

described more fully hereinbelow, for which Plaintiff is liable to Counter-Plaintiff.

                          DAMAGES FOR COUNTER-PLAINTIFF

        16.     As a direct and proximate result of the occurrence made the basis of this lawsuit,

Counter-Plaintiff has incurred substantial expenses to fix the problems caused by Counter-

Defendant's substandard work.

       17.      Counter-Plaintiff also seeks recovery of their attorney's fees, as provided by

Chapter 38 of the Texas Civil Practice and Remedies Code.

                                            PRAYER

       Defendant/Counter-Plaintiff     prays    the    Court   enters   judgment    III   favor   of

Defendant/Counter-Plaintiff, awards Defendant/Counter-Plaintiff the costs of court, attorney's

fees, and such other and further relief as Defendant/Counter-Plaintiff may be entitled to in law or




DEFENDANT'S FIRST AMENDED ANSWER AND COUNTER CLAIM                                          PAGE 3
                                    017-266141-13

                                        017-266141-13

in equity.

                                            Respectfully submitted,

                                            HENLEY & HENLEY, P.e.



                                            /s/ R. Lane Addison
                                            R. Lane Addison
                                            Texas Bar No. 24059355
                                            rladdison@henleylawpc.com
                                            Geoff 1. Henley
                                            Texas Bar No. 00798253
                                            ghenley@henleylawpc.com
                                            3300 Oak Lawn Avenue, Suite 700
                                            Dallas, Texas 75219
                                            214/821-0222 (Telephone )
                                            214/821-0 124 (Facsimile)

                                            ATTORNEYS FOR COUNTER-PLAINTIFF


                                CERTIFICATE OF SERVICE

       On this the _ _ day of November, 2014 I hereby certify that a true and correct copy of
the foregoing has been sent to Plaintiff/Counter-Defendant, PANINA INC. d/b/a JA
CONSTRUCTION SERVICES, by and through the following:

John P. Knouse
16970 Dallas Parkway, Bdg. 300
Dallas, Texas 75248
214.380.1188-tel.
214.367.5982-fax

                      _ _ _ HAND-DELIVERY                   XXX FACSIMILE
                      _ _ _ ELECTRONIC MAIL               _ _ _ REGULAR MAIL
                      _ _ _ CERTIFIED MAIL



                                            /s/ R. Lane Addison
                                            R. Lane Addison




DEFENDANT'S FIRST AMENDED ANSWER AND COUNTER CLAIM                                   PAGE 4
                                          017-266141-13


                                           VERIFICATION

        BEFORE ME, the undersigned authority, personally appeared David Christensen, who

after being by me duly sworn, deposed as follows:

        liMy name is David Christensen. I have been granted to speak on behalf of the

shareholder(s) / owner(s) of Heather Village, L.L.c. regarding the foregoing lawsuit. I am

at least 18 years of age and of sound mind.     I am personally acquainted with the facts alleged

in the foregoing an:IN_~r_reg_~rding. the denial of the sworn a"c0C:'   .!- Whi\true and correct."
                                                    ~                    ~. \
               '
              c--
                                  }--5                                    =.             ~-=--
                   __ --------1JaViCfLflrlstet1$;n, representative for Heather Village, LLC


                                                                                th
       SUBSRIBED AND SWORN TO BEFORE ME on November 5                                ,   2014 by David

Christensen.




                             Notary Public, State of California
                   EXHIBIT "D"
DEFENDANT'S RESPONSE TO PLAINTIFF'S "NO EVIDENCE"
        MOTION FOR SUMMARY JUDGMENT
                                           017-266141-13                                                 FILED
                                                                                           TARRANT COUNTY
                                                                                        11/7/2014 11 :27:56 AM
                                                                                          THOMAS A. WILDER
                                          NO. 17-266141-13                                    DISTRICT CLERK

PANINA, INC. D/B/A JA                             §   IN THE DISTRICT COURT
CONSTRUCTION SERVICES                             §
Plaintiff,                                        §
                                                  §
V.                                                §   17TH JUDICIAL DISTRICT
                                                  §
HEATHER VILLAGE, LLC D/B/A THE                    §
HEATHER VILLAGE APT                               §
Defendant.                                        §   OF TARRANT COUNTY, TEXAS

                          DEFENDANT'S RESPONSE TO
          PLAINTIFF'S NO EVIDENCE MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

        NOW COMES Defendant, Heather Village, LLC d/b/a The Heather Village Apt,

Defendant herein, and requests this Honorable Court to DENY Plaintiffs No Evidence Motion for

Summary Judgment.

                                      OBJECTION TO MOTION

        Defendant objects to Plaintiff s motion for no-evidence summary judgment on the grounds

that it is insufficient as a matter of law. The motion does nothing but state the elements of

Defendants causes of action and states that there is no evidence to support any of the elements. In

effect the Plaintiff is asking that the Defendant marshal evidence in support of all its claims,

instead of identifying what specific element Defendant cannot meet their evidentiary burden. This

is an improper use of a no-evidence motion for summary judgment that does nothing but raise the

cost of litigation for all the parties.

        For example, Plaintiffs motion states that there is no evidence that the parties had a valid

contract. See Plaintiff and Counter-Defendant's "No-Evidence" Motion for Summary Judgment,

Pg. 9. At the same time, Plaintiff has sued Defendant for breach of a written contract. Clearly the

Plaintiff is not advancing any legitimate claims in their motion and, as such, the motion should be
                                          017-266141-13


denied or refiled to confonn with the Texas Rules of Civil Procedure.

                                         INTRODUCTION

        When a party files for a no-evidence summary judgment, the Plaintiff must allege that the

Defendant has no evidence to support at least one element of Defendant's claim or defense.

        The burden is on the Defendant to produce summary judgment evidence raising a genuine

issue of material fact as to the challenged element.

        The Court must view the evidence so produced in a light most favorable to the Defendant,

indulging every reasonable inference and resolving any doubts in Defendant's favor.

                                   BREACH OF WARRANTY

        Plaintiff asserts there is no evidence to support at least one of the essential elements of

Defendant's counterclaim of Breach of Warranty. Plaintiff does not identify which specific

element Defendant cannot prove, only that there is no evidence that Plaintiff breached any

warranty with the Defendant.

        Attached hereto and incorporated herein by reference, is an appendix containing affidavits

and live pleadings that set forth summary judgment proof of the existence of a material fact

concerning the existence of a valid warranty and the failure of Plaintiff to honor that warranty. In

fact, the tenns of the un-honored warranty are spelled out in the Plaintiffs original petition.

                                   BREACH OF CONTRACT

        Plaintiff asserts there is no evidence to support at least one of the essential elements of

Defendant's counterclaim of Breach of Contract. Plaintiff does not identify which specific element

Defendant cannot prove, only that there is no evidence that Plaintiff breached any of the elements

for breach of contract.

       Attached hereto and incorporated herein by reference, is an appendix containing affidavits
                                         017-266141-13


and live pleadings that set forth summary judgment proof of the existence of a material fact

concerning the existence of a valid warranty and the failure of Plaintiff to honor that warranty.

Again, the actual contract is part of the Plaintiff s live pleadings. As specified in the attached

affidavits, the work Plaintiff performed pursuant to that contract was substandard, shoddy,

incompetent and deficient. Thus there is more than sufficient evidence to survive this motion.

                                          DAMAGES

       Plaintiff asserts there is no evidence to support at least one of the essential elements of

Defendant's counterclaim of Breach of Contract. As evidenced by the attached affidavit of Ken

Tola, Defendant has been damaged by Plaintiff s conduct.

                                           PRAYER

       WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court will deny

Plaintiffs Motion for No Evidence Summary Judgment, and for such other and further relief that

may be awarded at law or in equity.



                                             Respeclfully submitted,

                                             HENLEY & HENLEY, P.c.


                                             By: lsi R. Lane Addison
                                             R. Lane Addison
                                             Texas Bar No. 24059355
                                             Email: rladdison@henleylawpc.com
                                             3300 Oak Lawn Avenue, Suite 700
                                             Dallas, Texas 75219
                                             Tel. (214) 821-0222
                                             Fax. (214) 821-0124
                                             Attorney for Defendant
                                             Heather Village, LLC dlbla The Heather Village Apt
                                       017-266141-13



                              CERTIFICATE OF SERVICE

        I certify that on November 7, 2014 a true and correct copy of Defendant's Response to
Plaintiffs Motion for No Evidence Summary Judgment was served on John P. Knouse
electronically at knouselaw@yahoo.com.



                                           /s R. Lane Addison
                                           R. Lane Addison
                                           E-mail: rladdison@henleylawpc.com
                                                                      017-266141-13

                                                                    NO. 17-266141-13

PANINA, INC. DIB/A JA                                                             §       IN THE DISTRICT COURT
CONSTRUCTION SERVICES                                                             §
Plaintiff,                                                                        §
                                                                                  §
V.                                                                                §       17TH JUDICIAL DISTRICT
                                                                                  §
HEATHER VILLAGE, LLC DIB/A THE                                                    §
HEATHER VILLAGE APT                                                               §
Defendant.                                                                        §       OF TARRANT COUNTY, TEXAS

                                     APPENDIX TO
                               DEFENDANT'S RESPONSE TO
               PLAINTIFF'S NO EVIDENCE MOTION FOR SUMMARY JUDGMENT

                                                            TABLE OF CONTENTS

      All summary judgment evidence in this appendix is incorporated by reference into
Defendant's Response to Plaintiffs Motion for No Evidence Summary Judgment.

Affidavit of David Christensen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Exhibit A

Affidavit of Ken Tola, an expert witness ................................................. Exhibit B

Plaintiffs Original Petition ................................................................. Exhibit C
                                         017-266141-13


                                        NO. 17-266141-13

PANINA, INC. D/B/A JA                          §    IN THE DISTRICT COURT
CONSTRUCTION SERVICES                          §
Plaintiff,                                     §
                                               §
V.                                             §    17TH JUDICIAL DISTRICT
                                               §
HEATHER VILLAGE, LLC D/B/A THE                 §
HEATHER VILLAGE APT                            §
Defendant.                                     §    OF TARRANT COUNTY, TEXAS

                                          AFFIDAVIT

       BEFORE ME, the undersigned authority, personally appeared David Christensen, who

being duly sworn, deposed as follows:

       "My name is David Christensen. I am the manager of the Real Estate Team Heather

Village, LLC d/b/a The Heather Village Apt hired to get the construction under control at the

apartment complex. I am at least 18 years of age and of sound mind. I have personal knowledge of

the facts alleged in Defendant's Response to Plaintiffs Motion for No Evidence Summary

Judgment. I hereby swear that the following statements in support of Defendant's Response to

Plaintiffs Motion for No Evidence Summary Judgment are true and correct.

       "The owners of Heather Village apartment complex had grown SUSpICIOUS that

construction at the complex was not progressing as planned. Having approximately 8 years in

construction, and with my immediate family having approximately 75 years in the field of

construction, I was asked by the Heather Village complex owners to become a member of their

'Real Estate Team' to help resolve any concerns and move the project forward.

       "Around December of 2012 I was sent to Heather Village to inspect the work of JA

Construction, who had claimed they had completed, and to either approve, or not approve, using

them to side the remaining buildings.
                                          017-266141-13


        "Within minutes of arriving at the complex, JA's siding work seemed to be nothing more

than simple painting of the previous old wood siding. Closer inspection seemed to reveal that JA

replaced a few pieces 'here' and 'there' yet were charging an astronomical amount for the work

performed. If JA thought the structures needed 'full replacement' he should have insisted it be

done. The complex owners were relying on JA's professional expertise.

       "I spoke with JA of JA Construction about the work and expressed concerns that the work

was substandard and deficient. In fact, we had a meeting in late November or early December 2012

to discuss the work JA Construction had performed up to that point. At that meeting, I asked JA

Construction to provide receipts for all materials purchased and for a detailed list of the work they

performed. None of that information was ever given to me or Heather Village.

       "Also, JA apparently was intermixing wood siding with cement fiber siding (aka Hardie

Board or James Hardie Board). This intermixing method is typically never done by reputable

contractors. It's major 'building 101' mistake. The work also lacked backer board which provides

protection against moisture damage and mold growth. (We unfortunately, discovered the no

moisture barrier aspect when we had attempted to fix some of JA's work).

       "JA did full replacement siding on a couple of buildings. They claimed to a have used

official James Hardie board for their material.

       "A short time later, I was shown a pallet of the so-called 'Hardie Board' JA had been

implementing. The look and 'feel' of these boards did not seem correct. The entire vibe of JA

construction left me with a gut instinct that 'things didn't smell right'. Given the sub-standard

work of JA, an official James Hardie Board specialist was located ('Super Siding'). Ken Tola

(owner of Super Siding) was called and he agreed to come out the following morning to meet with

the Heather Village owners, the top officials with Sun Gate Management (the Property
                                             017-266141-13


Management Company for Heather Village at that time), and all the other members of the real

estate team.

           "During the following day's meeting it became fairly heated at times for both JA

Construction and Sun Gate Management could not locate receipts for materials used in the 'partial

replacement' buildings they had worked on. We had been asking for weeks prior to this meeting

and we were promised the receipts would be shown to us at this meeting. The official for JA

Construction kept repeating something to the effect of: "Typical materials and stuff, you know."

           "Furthermore, JA Construction failed to provide a detailed assessment (neither orally nor

in writing) of the work he performed. In addition, Ken Tola informed all of us, including the

official from JA, that JA's work was shoddy. The so-called Hardie Board JA was using was, in

fact, generic/fake Hardie Board made in Mexico. That fake board does not come with a 20 year

guarantee, other than JA saying, 'if there's a problem, hey, I'll come out and fix it."

           "Needless to say, we accepted Ken Tola / Super Siding'S bid to complete the remaining

buildings using the official James Hardie board.

           "In closing, to add insult to injury, when the raining reason began, many additional pieces

of JA's siding work were falling off the structures. Drains were also not placed back properly

which caused us thousands of dollars in repairs. Flashing was either not installed properly or not

installed, causing interior flooding to apartments. This in tum, caused us to be written up by the

city. We had to pay additional thousands of dollars of interior wall/cabinetlinsulationlmold

repair."
                             017-266141-13               '"     ,-   \--.   \


                                      .'- ~-) ~'-.S~_ \~\- ---
                               -na\ id Christl'nsen. as     RepresentatiH' of Heather Village.
                                u.r Jib:a    rill'   Heather Vii lag\.: .\pt


       SUBSCRIBED AND S\VORN TO BEFORE ME on             t\on~mher              2014. by   l)rl\   id
Christensen.



                                  ~,
                                              ----------~-------------------
                                t\()tary Public. State of California
                                          017-266141-13


                                           NO. 17-266141-13

PANINA, INC. D/B/A JA                            §   IN THE DISTRICT COURT
CONSTRUCTION SERVICES                            §
Plaintiff,                                      §
                                                §
V.                                              §    17TH JUDICIAL DISTRICT
                                                §
HEATHER \lLLAGE, LLC D/B/A THE                  §
HEATHER VILLAGE APT                             §
Defendant.                                      §    OF TARRANT COUNTY, TEXAS


                                    AFFIDAVIT OF KEN TOLA

       BEFORE ME, the undersigned authority, personally appeared Ken Tola, who being duly sworn,

deposed as follows:

       "My name is Ken Tola. I am at least 18 years of age and of sound mind. I have personal

knowledge of the facts alleged herein, which are true and correct.

       "I am the owner and operator of Super Siding. I have over 30 years of experiencc as a general

contractor and have done countless siding jobs on residential and commercial properties. I have

personally inspected all the work perfonned by JA Construction Services in this case, as well as the

invoices JA Construction sent to Heather Village. The work previously done was to Units 6012,6008.

6004, 6000, 6001, 6005. 6000 and 6004.

       "My company Super Siding and Remodeling is a certified James Hardie Contractor. We have

services hundreds of commercial and residential customers, installing James Hardie certified siding. In

that time, we have not had onc complaint logged by James Hardie.

       "After reviewing the invoices and \\ork perfonned by JA Construction in this case, we have

identified the following deficient and substandard workmanship:

       1.     JA Construction did not utilize authentic James Hardie siding, commonly referred to as
              Hardie Board, despite charging Heather Village for that product.
       2.     The siding installed by JA Construction was an inferior Maxitile product that was almost
              certainly less expensive and does not hold up well as James Hardie siding.
       3.     JA Construction utilized wood for trim. Wood used as trim has an extremely short shelf-
              life.
                                              017-266141-13

       4.        The repairs JA Construction made were merely cosmetic, and did not address or fix the
                 root cause of the problems.
       5.        JA Construction was not removing the rot underneath the siding they were replacing.

       "On start of work on unit 6008 we encountered an enonnous amount of structural damage.

Working with the city of Fort Worth inspectors. we had to replace most of the support headers     C~x 12s,


2xlOs. and 2x8s). We also replaced hundreds of 2 x 4 framing, rebuilt all chimneys and most of the

insulation. This remedial work was needed on all of the 18 buildings we worked on.

       "When we removed the inferior Maxitile siding, we discovered the following deficient and

substandard workmanship:

       I.        JA Construction did not install weather-barriers. We went back and installed Moisture
                 wrap.
       2.        JA Construction did not install window flashing. Window Hashing is necessary to stretch
                 and seal window and doors.
       3.        JA Construction did not use metal fishing or seam sealers.
       4.        We inspected many of the pressure-treated bottom plates on the previous contractors
                 units and they were rotted. JA Construction did not address these problems.
       5.        JA Construction did not rebuild any of the falling-in electrical panel boxes. As such. we
                 had to go back and rebuild those just to pass the City of Fort Worth inspection (City
                 code required this).

       "Based on all this evidence, there is no surprise that the units JA Construction "repaired" were

in such deplorable conditions. The worked perfonned by JA Construction for Heather Village was

substandard. Most of the "repairs" does by JA Construction will need significant remedial work. In my

opinion, JA Construction knew what to do but did everything as cheap as possible and that they could

get away with.

       "Based on my extensive expenence, inspecting the property, and completing some of the

remedial work, the cost to properly fix the problems JA Construction ignored or created will cost

approximately $166,500.00."




                                               Ken~
                           017-266141-13
SUBSCRIBED AND SWORN TO BEFORE ME on November :f, 2014, by Ken Tola.
                                                 -I--          r----   -'.
",
     ..                                   017-266141-13




                                                  017 266141 13
                                   CAUSE NO. _ _ _ _ __

           PANlNA, INC dIbIa                       §
           JA CONSTRUCfJON SERVICES                §
                PJalDtHr                §
                                        §
           VI.                          §
                                        §
           HEATHER VILLAGE, LLC., DIBIA §
           THE HEATHER VlLLAGE                     §
           APARTMENTS                              §
                 ~eDdaDt                           §

                                   PLAINTIFF'S ORIGINAL PETITION
           TO THE HONORABLE JUDGE OF SAID CQURT:
                 NOW      COMES,      PANINA, INC         d/b/a   SA   CONSTRUCTION
          SERVICES, referred to herein as 'tplaintiff' or "PANINA", and files this, its
          Original Petition, complaining of HEATHER VILLAGE, LLC" DIB/A THE
          HEATHER VILLAGE APARTMENTS. hereinafter referred to herein as
          "Defendanf' or "IlEATHER VILLAGE" and for cause of action, Plaintiff would
          respectfulJy show the Court the following:

                                                  I.
                                  PLAN OF DISCOVERY LEVEL 3

             Pursuant to T.R.C.P. Rule 190.3, discoverywiJ1 be conducted under Level 3.

                                                 u.
                                             PARTIES

                 Plaintiff, PANlNA, INC d/b/a lA CONSTRUcnON SERVCES. is a

          Texas Corporation, having its principal place of business in the City of DaUas,

          Dallas County, Texas.

                Defendant,   ~THER        VILLAGE, LLC. is a Texas Limited Liability

          Corporation, with its principal place of business located at 1281S SB Riverqest

                                                                                    Pap!
                                   017-266141-13




  Dr4. Vancouver, WA 98683-6623.• Defendant owns opemtcs. and does business

  as the THE HEATHER VILLAGE APARTMENTS, located at 6000 Boca

  Raton in Fort Worth, Tarrant County, Texas 75112. Defendant may be served

  with process by serving its Registered Agent fot        S~ce,    Charles Gillis, at its

  registered address for service at 8 East Greenway Parkway, Ste. 818, Houston,

  Texas 71046.

                                            m
                                 FACTUALBACKGROPND
          A.       On October 11, 2012, the Defendant, HEATHER VILLAGE,

 LLC, by and tbrough its agents and representatives, SUIlgate Management, Inc. ,

 located at 9S50 Skillman Street, Ste. 210, Dallas, Texas, signed and accepted on

 November 14,2012, entered into a written ~tract with PJaintifi; PANINA, INC.

 d/b/a JA CONSTRUCl'ION SERVICES, requesting Plaintiff to perform wood

 replacement and exterior paint repairs to Defendant's property, known as THE

 HEATHER VllLAGE APARTMENTS, located at 6000 Boca Raton in Fort

 Worth, Tarrant County, Texas 75112 for a total sum of $46,000.00. A copy of the

 written contract is at1ached hereto as Exhibit 1 and is incorporated herein by

referen~     for all purposes.

        B.       Under the tcmu and conditions of the written COD1ract SO% of tfu: total

contract price in the sum of $23,000.00 was due and payable upon delivery of the

materials and commenceroent of work at the apmtment building located at 6000 White

Dove Drive in Fort Worth, Texas for "which plaintiff submitted its invoice No.

1115201202 on November IS, 2012, wbich is attached hereto as Exln'bit 2 and is
PlalDcur. 0riJi... Petitiou
                                   017-266141-13




 incorporated herein by reference for all purposes. FurdJermore under the terms and

 conditions of the written contract the remaining 50% of the total contract price in the sum

 of $23.000.00 was doc and payable upon rompletion ofthc renovation work at the

 apa1tll1ent   building located at 6000 White Dove Drive in Fort Worth, Texas for which

 Plaintiff submitted its invoice No. 1115201203 on November 15, 2012, which is

 attac.bed hereto as Exht"bit 3 and is incorporated herein by reference for all

 purposes.

        C.        After performing the rcnovatioo work requested. Defendant agreed

 to a change order requesting Plaintiff       (0   funher provide additional lab« and

materials in repairs to the ap8l'tlllenl banding located at 6000 White Dove Drive in Fort

Worth. Texas, which were provided by the Plaintiff at Defendant'l! special instance

and m)Ucst in the additiooal sum of $5,200.00 as specified in the Plaintiff invoice

No. 1122201201 on November 22~ 2012, which is attached hereto as ExJu"bit 4 and is

incorporated herein by reference for aU purposes.

       D.        The total xeasonable value of all of the services, labor, and materials

fumiahed by the Plaintiff at the request of Defendant is the sum of $51,200.00.

which services were specified in the written contract and life also itemized in the

invoices attached .hereto as Exhibits 1, 2, 3, and 4. Defendant            ha.~   made no

payments toward for the labor and materials ordered by it. and there is a balance

due and owing of the full amount of $51,200.00

       E.        Although PJaint:iff has on numerous occasions made demand for

payment by Defendant fOl' the balance due, Defendant has failed and refused to
                                   017-266141-13




  pay Plaintiff the past due balance for the additional services ordered or any part of

  it, to Plaintifrs damage in the total sum of$51,200.00.

          F.       A written demand letter requesting payment of the full amount of

  $S 1,200.00 was sent by Plaintiff's Director of Operations, Ofer Abnunov and

 Susan Briggeman, Plaintiff's President            to Defendant's agent, Sungatc

 Management, Inc. on January 18, 2013, which is attached hereto as Exhibit "5"

 and which is incmporated herein by reference for all purposes.

                                    IV.
                  FIRST CAUSE OF ACllON- SWORN ACCOUNT

          A.      Plaintiff' incorporates the ''Factual Background", set forth in

 Paragrapb III, A..F, by reference.

         B.       plaintiff would show the Court that Defendant is indebted to

 Plaintiff in the sum of $51,200.00 on a mutual, open and CU1'I'ellt account. The

 swn is the balance due and owing by the Defendant to the Plaintiff to provide

 exterior repairs and painting for Defendant, HEATBER VILLAGE, LLC, on its

property known as the "THE HEATHER VILLAGE APARTME~', located

at 6000 Boca Raton and 6000 White Dove Drive, in Fort W~ Tarrant Cmmty,

Texas 75112, as described in invoices submitte<i therefor, dated November 15

2012, and November 22, 2012; which are attached hereto as Exhibits 2, 3, and 4,

which labor and materials were provided to the Defendant by Plaintiff at

Defendant's request. In, consideration therefore, the Defendant agreed to pay

Plaintiff the reasonable prices charges for such labor and materials. An itcmizeds


PlafDtItr'. OrtglaaJ PetldoD
                                  017-266141-13




 verified statement of account for abe traosactions contained in the said three

 invoices. which are attached, and marked as Exhibit "2. 3, and 4" , which are

 incorporated. herein by reference for all purposes    IS   fully as if the same were

 copied vexbatim hemn.

          C.   The aggregate value of all of the labor and services        perf~

 specified in the itemized, verlfied statement of account, attached as Exhibits

 2,3,and 4 is the sum of $51.200.00 of which no payments have been paid by the

Defendant to Plaintiff, leaving a mtal ba1ance due, owing and unpaid of

$51,200.00. Although Plaintiff has on numerous occasions made demand for

payment by Defendant (or the balance due, Defendant has fwled and rcruw to

pay P.Iaintiff the past doe balance or any part of it to Plaintiff's damage in the sum

of $51,200.00.

          D.   Prior to the commencement of this 8Clion. Plaintiff presented its

claim to the Defendant, more than thirty (30) days preceding the filing of this

lawsuit as shown by the account and invoices, dated November 15, 2012 and

November 22. 2012. attached IlS Exhibits 1'2, 3, and 4", as well as in the demand

letter from Plaintiff to Defendant·s agent, Suogate Management, Inc. on January

18, 2013, which is attached hereto as ExlnOit "5",    an of which are incorporated
berein by Teferencc for all purposes as fully as if the same were copied verbatim

herein.

      £.       It has been necessary for Plaintiff to employ Iohn P. Knouse,

Attorney at Law, whose address is 16970 Dallas Parkway, Building 300, Dallas.

                                                                               Pqe!
                                 017-266141-13




 Texas, 75248, to represent it in collection of this claim. Plaintiff would show the

 Court that because more than thirty (30) days bas elapsed since Plaintiff presented

 this claim to Defendant; Plaintiff is entitled to recover said attorney's fees as

 provided by Section 38.001 et seq. of the Texas Civil Practices and Remedies

 Cod~ as pled   for herein. Plaintiff is entided to recover from Defendant reasonable

attor:ney's fees. which Plaintiff represents     ~    be in the minimum sum of

$10.000.00 for collection of the account but the amoont of the atiorneyfs fees may

increase depending upon the difficulty and work involved in obtaining the

judgment. In the event a judgment shall be entered in this case and the case shall

be appealed to the Court of Appeals for the Fifth District of Texas, Plaintiff will

also be entitled to recover reasonable attomey's fees on appeal which Plaintiff

allege will be in a minimum sum of $10,000.00. In the event that either party shall

ftle a Petition for Review to the Supreme Court for the State of Texas, Plaintiff

will further be entitled reasonable auomets fees in a minimnm sum of an

.Iditional $10,000.00.

                                         v.
           SECOND CAUSE OF ArnON-BREACH OF CONTRACT

      A.     Pleading further and in the alternative, if necessary,        PlaiDtiff

incorporaa:s the "Factual Background", set forth in Paragmpb III, A-F, by

reference.

      B.     As    previously state<t Plaintiff. PANlNA, INC. d/b/a JA

CONSTRUCTION SERVICES, is a Texas Corporation, baving its principal
                                 017-266141-13




 office and place of business at 5421 Alpha Road, Suite 100, in Dallas, Dallas

 County, Texas. Plaintiff would show the Court that at all times reJevant hereto,

 the Defendant, HEATHER VILLAGE, LLC, owned and operated the

 HEATHER VILLAGE APARTMENTS.

        c.     On October 11, 2012, the Defendant, Defendant, HEATHER

 VILLAGE, LLC, by and through its agents and representatives, Sungate

 Management, Inc., located at 9550 Skillman Street:, Ste. 2 J0, Dallas, Texas,

 signed and accepted on November 14,2012, entered into 8 contract with Plaintiff,

 PANINA, INC. d/b/a JA CONSTRUCfION SERVICES, to perfonn repairs

and painting to the exterior of Defendant's property, known as the HE.ATHER

VILLAGE APARTMENTS~ Jocated at 6000' Boca Raton and 6000 White Dove

Drive in Fort Worth, Tammt County, Texas 75112 for a total sum of$46,ooo.OO.

A copy of the written contract is attached hereto as Exhibit I and is incorporated

herein for all purposes. As stated previously under the terms and conditions of tile

written contract 50% of the total contract price in the sum of $23,000.00 was due

and payable upon delivery of the materials and commencement of work at the

apartment building located at 6000 White Dove Drive in Fort Worth, Texas for

which Plaintiff submitted its invoice No. 1115201202 on November IS, 2012,

which is attached hereto as Bxhibit 2 and is incorporated herein by reference for

all purposes. Furthennore under the terms and conditions of the written contract

the remaining 50% of the total contract price in the sum of $23,000.00 was due

and payable upon completion of the renovation work at the apartment bwlding
                                   017-266141-13




 located at 6000· Vlhitc Dove Drive in Fort Worth. Texas for which Plaintiff

 submitted its invoice No. 1115201203 on November 15, 2012, which is attached

 hereto as Exhibit 3 and is incorporated herein by reference for aU purposes.

        D. In addition, Defendant's agents and representatives by a change       or~

 further requested Plaintiff to perfonn additional repairs to the apartment building

 located at 6000 White Dove Drive in Fort Worth Texas which are specified the

 invoice therefor attached to this Original Petition, as Exhibits 4, which is

 incorporated herein by reference for all putpOSes and for which Defendant

 contracted to pay Plaintiff the additional sum 0($5,200.00.

        E.     Plaintiff would show the Court that it fully performed its oontract for

additional   servi~   performing all of the exterior repair services and providing

labor and materials, obligating Defendant to pay the total contract price of

SS1,200.00.

       F.     Plaintiff would show the Court that no payments were ever made by

the Defendant:J HEATHER VILLAGE, LLC DIB/A THE HEATHER

VD.,LAGE APARTMENTS for the labor and materials requested by it through

its agents and representatives, and performed by Plaintiff.

       G.     Plaintiff would show the Court that although Plaintiffhas demanded

payment, contract balance ofSSl,200,OO, the Defendant, HEATHER VILLAGE,

LLC DIDIA THE HEATHER VILLAGE APARTMENTS, bas failed and

refused and still fails and refUses to make any payment on the past due balance of

SSl,200.00 in breacb of its contmct(s) to pay the.Plaintiff for its services and for

                                                                                PageS
                                 017-266141-13




 the labor and materlals provided as fore-descrlbed. By reason of the Defendant's

 breach of its contract:, Defendant is obligated to pay the balance due under the

 contract(s) for the labor and materials provided by Plaintiff under the contract in

 the total sum of $Sl~.OO, for which Plaintiff seeks judgment against the

 Defendant, HEATHER VILLAGE, LLC D/B/A THE HEATHER VILLAGE

 APARTMENTS.

        G     Prior to the commencement of this action, Plaintiff presented its

-claim to the Defendant. more than thirty (30) days pIeCeding the filing of this

 lawsuit, as shown by the invoices attached hereto as Exhibit "2,   3~   and 4", and in

 the demand letter by Plaintiff sent to Defendant's agent and representative Sungate

Management. Inc. , attached hereto as Exhibit "5". wbiclJ are incorporated herein

by reference for all purposes. As a result of Defendant's breach of cont!3ct and

refusal to pay the balance due under the contract. it baS been necessary for

P1aintiff to employ John P. Knouse, Attorney At law, whose address is 16970

Dallas Pkwy., Bldg 300, Dallas, Texas to repraent it in the prosecution of this

bteacb of contract claim. Plaintiff would show the court that because more tba.n

thirty (30) days has elapsed since Plaintiff presented this claim to Defendant, that

Plaintiff is- entitled to Reaver said attorney's fees pled for herein as provided by

Section 38.001. et seq of the Texas Civil Practk:e and Remedies Code. Plaintiff is

entitled to recover from Defendant reasonable attorney's fees, which Plaintiff

represents to be the minimum sum of $10,000.00 for the breach of contrac4 which

altomey's fees may incn:ase depending upon the difficulty and work involved in
                                  017 -266141-13




 obtaining the judgment In the event a judgment shall be entered in this case and

 if the case shaJI be appealed to the Court of Appeals for the Fifth District of Texas,

 Plaintiff will also be entitled to recover reasooable attorney's fees on appeal,

 which Plaintiff aDeges to be the minimum sum of $10,000.00. IIi the event that

 either party shall me a Petition for, Review to the Supreme Court of the State of

 Texas. Plaintiff will further be· entitled to reasonable attorney's fees in the

 minimum sum cf $10,000.00.

                                          VI.
                     1IJIRD CAUSE OF ACTION.. IMPLIE!!
                        CONTRACT/QUANTUM MERUIT

         A.     Pleading further and in the alternative, if necessary,       Plaintiff

incorporates the '':actual Background", set forth in Paragraph ill, A.F, by

refen::nce •

         B.     Plaintiff would show the Court that plaintiff has I.'eDdeled valuable

services to Defendant for the specific improvement of Defendant'B property

known as tbe "THE IlEATHER VULAGE APARTMENTS" located at 6000

Boca Raton and 6000 White Dove Drive in Fort Worth, Tammt County, Texas

76112, as described in the Factual Background and as described in the invoices

attached as Exhibits 2, 3, and 4, incorporated herein by reference.

         C.    Plaintiff perfOIJDed the services rendered to Defendant at

Defendant's request. In addition, Defendant accepted, and bas used and enjoyed

the   serviCes provided by Plaintiff, in that   Defendant has lcept and is using the



                                                                              Page It
                                   017-266141-13




 improvements to its property made by Plaintiff, which Defendant acknowledges

 and for which it 11M offered only to pay the costs of matrziaJs.

        D.       Under these circumstances, Defendant had, or should have had.

 reasonable notice that PlainCiff expeCted that Defendmt would pay plaintiff for tho

 services Plaintiff peIformed for Defendant

        E.       Defendant has been unjustly and unfairly enriched, in Ihal Defendant

 has benefitted by the services performed on its behalf by Plaintiff, but fails and

 refuses to pay. Plaintiff for the reasonable value of those setvices and materials

pro~         which Plaintiff alleges to be in the sum of $51,200.00

       F.        Requiring that Defendant make restitution for the services

performed by Plaintiff at Defendant's request and on Defendant's behalf will not

result in a material change in the Defen~t's position.

                                         VB.
roUBm CAUSE OF ACfION-FOBECLOSURE OF MECHANIC'S LIEN
       A.       Plaintiff incorporates the   '~ua1      Background "set forth in

Paragraph    m, A-F by reference •
                     t



       B.       Plaintiff would show tho Court that on February 5, 2013, Plaintiff

sent a notice of its claim to Defendant. HEATHER VlLLAGF..,           LLC, by certified

mail. retmn receipt requested. advising Defendant that a lien would be filed and
making a demand for payment of balan<:e due and owing in the sum of

$S 1.200.00 for the repairs. painting and other services pedormed at the request of

Defendant, REATBER V1LLAGEt LLC • prior to the filing an Affidavit for a
                                017-266141-13




 Mechanic's Lien. A copy of Plaintiffs written Fmal Demand Before Claim of

 Lien, dated February S~ 2013, is attached as Exhibit "&" and is incorporated herein

 by reference for all pwposes as fu.lly as if the same were copied verbatim herein.

        C.     After no payment was made by the Defendant. HEATHER

 VILLAGE, LLC, on February 21, 2013, Plaintiff ftIed an Affidavit for a

 Mechanic's Uen for the labor per£onned and materials furnished on the behalf of

 DefCDdant. HEATHER VILLAGE, LLC, for wood rep1accmeot, repairs.

 painting, labor and materials furnished to its property known as the IlEATHER

 VILLAGE APARTMENTS commencing in October, 2012.for the total amount

 of $51.200.00, a copy of which is attached hereto as Exhibit ar and incorporated

 herein for all purposes.

       D.      Plaintiffprays that after a fmal bearing herein. and upon a judgment

being entered by the Court based either the Plaintifrs claim for breach of contract

or Plaintifrs claim for sworn account Cor the labor and materials provided to the

Cross·DeCendant, that the Court include in its final order and judgment, a

foreclosure of the Mechanic's Lien on the BEA'I1lEK VILLAGE

APARTMENTS owned and operated by Ooss-Defendant, HEATHER

VILLAGE, LLC .

       WHEREFORE, PREMISES CONSIDERED, Plaintiff, PANINA, INC.

d/b/a JA CONSTRUC'I10N SERVICES, prays that Defendant, REATBER

VILLAGE, LLC. d/b/a HEATHER VILLAGE APARTMENTS, be cited to

appear and answer Plaintiff's Original Petition, as required by law, and that upon
                                  017-266141-13




final hearing hereof. Plaintiff have judgment against Defendant for the total sum

of $51,200.00. with postjudgmcnt interest thereon at the rate of 1096 per annum

from the date of judgment until paid In full. as provided by law. together with

reasonable 8ttomcyt S fees, and   an costs of court; for foreclosure of it Mechanic's
lien on Plaintiff's property known              as the HEATHER VILLAGE

APARTMENTS and that Plaintiff be granted such other and further relief. both

general and special, at law or in eqoity, to which Plaintiff may be justly entitled.

                                           Respectfully submitted,




                                           JO      P.KNOUSE
                                                e Bar Number: 11624000
                                                 oNorth Dallas Parkway
                                           Bldg~OO
                                           Dallas, Texas 75248
                                           (972) 380-1188 (Telephone)
                                           (214) 367-5982 (Telecopier)

                                          A1lORNEY FOR PLAINTIFF,
                                          PANlNA., INC. dIbIa JA
                                          CONSTRUCl'ION SERVICES
                                     017 -266141-13




 THE STATE OF TEXAS                   §
                                      §
 COtJN1Y OF DALLAS                    t
        BEFORE MB, the Wldersigned authority, on this day personaUy appeared

 SUSAN BRIGGEMAN. who. being by me duly swom, upon her oaCh states that
 she is the President of PlaiDtiff, PANINA, INC., a corporation inCOlpOl3lCd and

 exis1ing under the Jaws. of the State of Texas, having its principal office and place

 of business in Dallas, Dallas County. Texas, doing business as JA

 CONSTRUcnON SERVICES and that abc bas authority                  85   the President of

PANlNA,      me.      to make this affidavit o.n its bdJalf;   that she bas read the

 foregoing PlaintiffoS Original· Petition and the matteB alleged in the Plaintiff's

Original Petition are true and correct of her own      ~nal     knowledge; that the

·itemized   accocmt   of Plaintiff PANINA, INC. dNa JA CONSTRUCI10N

SERVICES and the        .ui, thereon against HEATHER VILlAGE, ILC.., D/B/A
THE HEATHER VILLAGE APARTMENTS, for the sum of $51.200.00, as

specified in the contract attached as Exhibit "I" and in the inyoices attached at

Exhibits '"2, 3, and 4" to Plaintiff's Orlgioal Petition, is within her pemmal

knowledge, just and true; and that the ac:count is due; and that all just aDd lawful

assets, payments and credits have been    aUowedA,         ~~                  .
                                           ~
                                           Pan;., Iar..
                          017-266141-13




       SWORN TO AND SUBSCRIBED before me by the said SUSAN
BRIGGEMAN, on thiS~y of May, 2013, to which witocss my hmd and seal
of office.


                                 U,1~     ~,



                                 NOTARY PUBUC IN AND FOR
                                 THE STATE OF TEXAS




                                                            Par,el!
017-266141-13




EXHIBIT "1"
                                                                                      2143213051    p.l

-.......
      '




                                                                Cciiiik!rdat




           0cIDha' 11. 20J2


           9""',....•
           AttaIlod;'. .a.........
           . . . . . 'auper&J .........
           B508UIN.1f.
           s..:ne
           DIIJIIlX'DG
           II:      E1IedPr llIIOv.IIIonI an 61JOO,6G09111d 60 13 WbII& DIm
                    Jlt6rVDatAplt..
                    &1000 Baal JlIma lSlvd.
                    Fat"_ .11   'IX
           .u.axal'lWClWl'I 1IllVIC115 WILl. J1JRNIIII ALL LAlIOJI.lUftJllALArm
           DIImtANCI ~mPDrOJIM 1'D IOLLOMNGOJIf 'I'JIE.DOft
           JlDQI'lIfCD I'ROIBC'I'.




                                    bmo¥e 1Id...,..10,t'l(X) Itol.....11 IIdJDa wtd!.HIrdtI c.pI_
                                    I2I,4OOJII)

                                    1aIIaD),ooo Ifot 1 a'lIp _ lIP oedIr
                                    'lG,$GO.oo
                                    fWbmalJ MeDI..,. ....... lII4do1eolf t ~dcIIctt
                                    .1.200.10
                                    IaIIDtM m4 nplD1 .... at" xl.mt
                                    1525.00
                                    . . . . . . npIIot 1.112 lfot"1rfm-lx:z. J s 6, l:a~ 1x ....
                                    W7J.GO
                                    hl1IllJdiIMr to IIIIIdt buiIdtDp -twJy l'IIated

                                    c.tfor ..... fI6II: M.«J4"

           -".""'PRII
                                    ~ad'" 8,OOOIfGfrlwntpd . . . dl HIrdJ.CtmpJallk
                                    a~~                               .
                                    bd2.000 11011 X I lip-lIP GIdu
                                    17,000.00
                                                                    2143213051




              •       ldnIlDiICCIMIl1 tadq aa4 &:bI air "eaiordDICII
                      IIOG.DO
                      RcIDIm aul rtpbce 56ab uf ~ J: I.a
                      ~.OO

                     ~1DII~4,DOOlfot• • • -l x2.1 1I:6.1x4,1 &1-.
                     Su,mo,oo
                     Pllnt .......1UII:h IIaIIIfI'qa uwJy ptilted




IM.W"'''PoD
                     IaDm _",il00 l2.OOO lf~ d""'lOlf IfdIDJ 'rib Hdt CcmpJak
                     ll2tf"m
                     leMe ID4rrp-3,ooo lfafJ X'1ap JDd ppoedlf
                     Ito,5OO.oo
                     1'trtIce . . . . :IIIIIdN
                     ~
                                                 tD"   off 12 ..... cIoseC.1

                     ltam&nIalDd lepta ).oGOlfafadlc. trim-I x2.1
                     $1.-,0)
                                                                         Ie" I x" 1   J: I,tto.



                     ~ G11qtJa U .... of" x .1OIBt1Dldl:r1ll
                     '1.12.5.00




5:121 Alpbt 8qId. Jutrc 200 • D"III. lX p210· tmHn-1M, • EU: tm)..3jt-19Q?
                                                                                2t4a213D51                     p.3

....... -"
      n .....




                T......

                ~.CIII,.rIltlOr . . .  .,.txt
                ...... _aIMIdIJ dnm Cd h ......... OWJIII' ..., .... otJlftlllOlll W'lXdnp........U
                                            V . . . . . . . WlIlIIdj. n. WE11Ut)' Oft pliDdlwdl beb
                ,..011»«_ atle.., '" JilaIIctL •       WlltliiylbllJ tonlwa. . ....,....ot'wmt ad II
                ~,,"'1aa..unNp0tM-""'"                      n. ..i . . cma....IDItftl6itarc.
                'DI WItIIII,7 a.J1Oteowt"' __ aqIect, .......... maIaant. Acta otGad.
                t:a)'llellfl:
                lAfIIlIII*- ademJIt)'IIlCi til"" be mmcllpClldebeIJ r411111eria1a IIId "iF,. . . . . alworfc
                1IIS,.., ........ o"'wkdon.


                n.m:)'OII 1Ir00000rartdt-." .. Ioaklnard -lItIIbHMJacapei busfIeIa ......., db,aaud
                )VIIr~t.l6e"'"
                Jf)'Oa haft." ....... pllaldoaat ...... «IIdIct ....




                "PC''''''.




                ~rnm __~~
                        ___________

                                -)(/Llf~1 a .
017-266141-13·




EXHIBIT "2"
                                                 017-266141-13


•    ~ Iae. dIM J.A.     c..a...doD Se:ti ,ita
                                                                                   INVOICE
     5421 Alpha Road
     Suite 100
     DaDas, TX 75240                                                        11llSfl012 1115201202
     PHONE (972) 392-1669

          BILL TO
        HealberVWap Apts
        Attn: Jody Blanlrabauker
        6000 Boaa Raton BoWma:d
        Port Worth 'IX 76112




                                                                    DUE DATE

                                                                   1111 Sl1012


    Fa Dmw: 50-" down for delivery ofmatcrlals                                         23,000.00
    and COIIB.lCIM:m!Qlt ofwork at bIdS 6000 White
    Dove Dr.




                                                                 Talal               $23,000.00


                                                                 Balance Due
017-266141-13




EXHIBIT "3"
                                                017-266141-13


.     PaiD, hie. Aa J.A. o.ndioD Senicra
                                                                                    INVOICE
     5421~RDad
     Suite 100 .
     Dallas, 'IX 75240                                                    1111511012 1115201203
     PHONE (911) 392-1669

           an..L TO

        Heather ViUap Apls
        AItD= .Jody BJaukenbarker
        0000 Boca Raton Boulevard
        Fort Worth TIC 761 J2




                                                                   OUEDATE         PROJECT NAME

                                                                  1111512012       .Headl« VIJJBp

                         DESCRJPnON                                                    N.fOCMf'
     CompJet.ioG ofreoovadons at BJdgs. 6000 White .                                     23,000.00
     Dow Dr Final SO-"




    Thank you for your basiIas.
                                                                Total                 $'.23.000.00
                                                                Payments/Credits
                                                                                              "..00
                                                                Balance Due              mOoa.oa
017-266141-13




EXHIBIT "4"
                                              017-266141-13


 ~ &c. dhll~ eo..tnr. .            8emc.                                             INVOICE
  5421 AJpba Road
  Suite 100                                                                   DATE       INVOICE.
. Dallas, LX 75240                                                       lJ~012        1122201201
 PHONE (972) 392·1669

       DIU. TO
     HeadIer ViDap Apts
     Attn: 10dy BJankaIbratker
     6000 Boca RatDD BoulevIrd
     Fort Worth 1'X 761 J2




                                                                 DUEOATE         PROJECT NAME

                                                                IltrJ.l2OJ2      Hadler ViJla.. · .

                   DESCRlPTJON                                                        AMOUNT
 0Jange Order 6000 Wbite Dove Dr:                                                        5.200.00
 Remove aml replace 40 If ot2 x 4- baiJdi"l' studs
 ~ and iDsIaIJ new hOuse wrap for moisture
barrie:r~ mfiamiDg
.ImtaU 1200 sf offelt !or- insulation
Rcm~ and replace 45 sheets ofOSB
Remove IDd rcpJacc 200 If of2 x 4 buildiDg plates
InstaU new metal brackets for headers per iDspector
Remove and repJace 45 sbccts of4- x Splywood
decking
Rano\Te and K.epla£e 100 If of2 It 8 joisls
Haul off1111 debris and ck:ao worbke daily and
upon compJetjoq




ThaWc)'OU for JVUr business.
                                                              Total                   $5,200.00
                                                              Paymenta/Credits               fO.OO

                                                              Balance Due                Sj,200.OO
017-266141-13




EXBIBIT"S"
                                       017-266141-13




 llDUalY 11, 2013

 Attn: Jody Blabnblbr
 SUDpto MaIJa&emenl, IDe.
 9550 SkiJllUIl SL. see. 210
 Dallas TIC 7S243
 Rc:      HCIItb« Village Apts.
          6012 WoodIbrush
          For Wonh TX 1~112

 Dear Joel)'.

 We arc &ware that the 0wDcr ofHeadl« Village has comr:aeted with IDOIbet eompID)''' ~ the
 R2tOY&1IonJ oftile property. We blrve removed all ofour tDaferialI Jiorn the job site I1Id have asbd the City
 of Fort Worth to provide us with a CIedi& gU the two addilioaal pamits that we had opeu.l am sony 1bat we
 were unabJa D ecmtiDue wortiDs OIl Cbls project wiIh the Owner and Su.DpIe MIDIa- 1M IllDd«sflDd
 that they ~ to wort with ClOthei' CUltndur. It is very disappoIntias to lIS '\bat we ball to leamor~
 devdO,Pmalb 011 our own and DO one took the time co iDfonD 115 1hat we bad lost Ihe job or dIaak. us k
 bidding on it.

()Jt coneem is 'that tbe OWner has not paid us tJac dowu payment,. baIlPce or c:t.dge order on tho last
bui1diJJg that we completed whk:h b 6012 Wood lbrush Dr. 'IM CDOfDlb of.,. invoices Ire $23,000.00,
Sll,OOO.oo ad SS,1AJO.oo collectiwl)' which COIDe3 to I total of 551.200.00. We bavnotmatie ~ Jeg&l
iIUeWPb 10 c:ollec:t these funds because ofour JdadoDSblp wi1h your COIq'8Uy azxl oar pt:e\'Ious hIsIory
with abo OWDCf IIDdlsis staffbutwe aroamemefy~ bylbe fact tbUyou.caamot1dl us .... to
expect payaw:Dt. 'fbat is amacceptable.. 1btJ ffnt invoice . . ICI1tto)'OQ on No\Wlbet )5.2012 aad ihas
COIIIC to the point where we Mast protBCt oar lien n,hts. This siluItfoD has become tortIler egregious duo to
the fitu:t diet DOW someone else is WOIkfna on the property 8Dd their dmumds for paymeDt Will c:ame first..
To date, we }aave teCCivecl DO pbooc ca&,1otters. QQlib or lues whicb stItO dial there is-.ything
defective i.tho work we perbmcd md the City issood a fiuaJ green lag on this buildmg quite awhile aao.
1be Owner bas no!'C1SOD DOt to pay tor wad: perfbnned. lftbcre is a financial dif'liadr;y _his lido IItd lie
needed 10 pay IhiJ 0'Ief timo Chen we slIoukl b1l\'e been iDf.armed loDg ago lJ ldakc 1rJ'1Il8CDlent'J with 111m.

Also. the ~ mat we eacb sfpcd stated that the ~ terms were to b6 a dmrlJPOO.
commencement ofwOlt for SO% of abe project, a tiDal dntw of50% oud payIIlCDt of any ehauge orden at
c:ompldion. [(we do 1IOt .ave Ihe fUlhwn duo toU$ br the close ofbusinm 011 Friday. lanwy 25d1 1hen.
we wiU eoJltlet our aItot'IICY and begin the lien process DO this property. Wo wlU like my mel an )cpt
~ aecessary to close o.t lien and file sua qaiast aU paties for breach of COIltrIet and fhalda tlds
coatract was f4Jsely repnssented to us. We hope \0 hear toIDe!IdDg ftam you to avert thJt proccu. Please
maD tho Owner awan: of our httcntlcms. ThaDkyou.




Ofa' A.....DlOY, Dirmor ofOperattoa
SUsau .......... ~t
Paafu lite. dba JA CODStruetion Sef"Ikes


Wl Alpha Bood" Suite 300 "!!allas llZ5240 ·(272)-3?Z·16j9" Wti (2n)·3?2~1!Q2
                 •
017 -266141-13




EXHIBIT "6"
                                    017-266141-13




                      FINAL NOTICE BEFORE CLAIM OF LIEN


       Date: 215/13

        To:     Heather VdIa&e, LLC.
                12815 BE Rivererest Dr.
                Vanemnrer WA 98W-6623

        cc:     Stmga1e Management, Inc.
                95S0 SIdlman St~ Ste. 210
                Dalla.9 TX 7S243
        Seat Via Emu and Certif1ed Mall: 7009-3410-0000-3S13-7048


Demand is hereby made for payment of the smn of, Fifty ODe thousaad ad two
hudred doIIan and BO ceats (551,200.00)


due to the undetsigned and in arrears since November 15, 2012.

Failure to remit payment within (7) days of date of this notice will result in immediate
claim of lien on the above mentioned property~ litigation to perfect the lien and collection
of all damages and legal fees.

                      THERE WRL BE NO FURTHER NOTICE



                                                          Pmipa Inc. dba JA Construction
                                                                                   Creditor

                                                         5421 Npba Road Suite 100
                                                                                Address
                                                          Dallas. Texas 75240 .


                                                                                 Telephone
  Print                                                                                     Page 1 ofl
                                            017-266141-13


  rn..: jessica@iaccmstructionservfccs.net (jessica@jaconstnJctionservices.od)
  To: Jmouselaw@yahoo.oom;
  Date: Tho, May 23,2013 12:22:04 PM
  Ce:
  SabJed: Fw: U.S. Postal Service Track&am.p; ContinnemailRestora1ion· 70093410000038137048
  John,

  This is the notice before claim oruen proof of delivery that you requested.




 > ----Original Message
 > From: US Postal Service@ums.com
 > To: iessica@jaconstructiomcrviccs.com                                           .
 > Subject: u.s. Postal Service Track &, Coo1bm email Restoration .. 70093410000038137048
 > Sent: May 22 '13 2:06pm
 >
 > This is a post.anly message. Please do not respood.
 >
 > Susan Briggeman bas ~ that you receive this restoration information
 > for Track &; Confirm as listed below.
 >
 > Current Track &:. Confirm e-mail1nfoanation provided by the U.S. Posaal
 > Service.
 >
 >   Label~~:7009J410000038137048
 >
 > Service Type: Certified Ma.i}ATII
 >
 > Shipment Activity Location Date &; Time
>>----------------------------------------..---------------
> Delivered DALLAS TX 75243 February 6.2013 3:01 pm
> Depert USPS Sort Facility DALLAS TX 75260 February 6, 2013
> Processed at USPS Origin Sort Facility DALLAS TX 75260 February 6,2013
> 2:11 am
> Dispatched to Sort Facility DALLAS TX 75240 Febrwny 5,2013 7:26 pm
> Acceptance DALLAS TX 75240 February 5,20134:09 pm
>
> USPS bas notverl.tied the: validity of 8Dy email addresses submitted via its
> online Track & Confirm root
>
> For more iDformatioo. or ifyou have additionnJ questioos on Track &
> Coofirm services and f.eaturcs, please visit the Frequently Asked Questions
> (FAQs) section of our Track &. Confirm tool at
> h«P:llwww.usps.comfshiP.PingJtmckandconfirmfaas.hkn.




http://us.mg205.maiLYahoo.comIdcIJauneh'l.gx=1&.rand=e20ihilbi4dej                     5fl7fl013
                     •
     017-266141-13
..




     EXHIBIT "7"
                                                  017-266141-13




          COUN1Y CLERK
                                                                   100W8stWealJerford FortWofth. TX 76196-0401
                                                                   PHONE (811) 884-1195


         PANINA INC D8A1JA CONSTRUCTION SERVICES
         5421 ALPHA RD STE 100
         DALLAS. TX 75240




         Subtnftter.   PANINA .NC OBA/JA
                       cONSTRUcnoNs~ces




                                  DO NOr DES TRQy'
              JtUiBNING .. THIS IS PART OF THe OffiCIAL RECRRD~
                 Filed For Reglstralkwl:   212112013 1:37 PM
                          Instn.lment'l:   0213044e64
                                           ~F                  a     PGS              $20.00




           0213044664


    At(( PROVISION WilCH
                       RESTRICTS THE 8AlE. RENTAl OR USE OF THE DESCRIBED REAL PROPERTY
          BECAUSe OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAl LAW.




PrepaJ'8d by: MGSALAZAR
                                     017-266141-13




 "My nmne is Smaa L Brfgmtao. ad I am the Pmident and Regfsta'ed Agent of
 P..... 1De. .... JA c...tradioa Senfca (CWm••t) which has a pbysic:aJ IIDd
 maiUog addIas of5421 Alpha Rd.t BtL 180, J)aIIa TX 75l4O.1 am c:ompetcnt and
 autbmlzed to make this aftidaviL I haw perIODId JmowJedge of the facts set forth below.
 and they arc true aDd corm:t.

        -"ursumt to c:ontracts by and ~ C1aimaut and Heather Village LLC which
        hat. last known mailing address of 12815 SE Rivenaea Dr. Vaacouvcr, WA
        98683-6623 and Sungate Manugenem, Inc. 9,SSO Skillman ~ !te. 2] 0, DaIJaJ
                                                                                                .   _-_.
        TX 75243. Claimant pa{oJ:med labor and :fumisbed materials for improvemmtts
        to the following described real JtiOP"2ty (the Property):


                                Baa RatOD I'.ut Blk.l Lo.l




        "The Jabor performed and materials 1\r.misbed may be genemUy describai as
        wood replacement and painting commenclog in October,2012.

               1'Iae owaer or RpUftd 0WDeI' of tile Prvpeny It:
               Headier VDLrp, LLC IoaIted .t 12815 SE Rivererat pro VUlCCHlVer,
               WA 98QJ3-66l3

ff}'o date, CJahnant bas fully pe;rfOrm:d all work required UDder its COIJfraCS3 with Heather
Village, LLC. Aftao allowing au just ~ts and offsets, the lID1ODD1 0( $5l,2ODM
remains unpaid aDd is due aDd owing to Claimant under said eontract aDd C1aimaot
claims a stamtory lieu on the Ploperty and the improvements located on the PJopcrty to
8CCIDe the payment oftbe ab<m amount.

       "CJaimaztt sent:nocice of its claim to 0wDer by United States certified mail. mum
       zcceipt requested, au February 5.2013 aftei numerous tclq:D3ne caDs. emai1s,
       I~ and faxes." Certified Mail No. 7009.34tO-OOOO-3813·7048


                                      ...   }.
                             017-266141-13




        AfFJl!AVIT I'ORMEC1L\NIC8' AND MA]JRIALMEN'S LIEN




                                               .,
STATE OF TEXAS
COt.:~TY   OFD.ALLAS



      SUSCRIBED AND SWORN TO BEFORE ME on this 19th day ofFebruary,
      2013 by SusanL Brfgpnan..




Psmiaa III~ elba JA CoDstndloD Serrica
5421 AIpIaa Rd.
Ste..l00
DaJlu TX 75240




                                    -2-
                                     017-266141-13




                                 lato c9ffftd
                                           of
                             JoJJntl.-


                                     May 24, 2013
 Tarrant County District CJerk
 Tammt County Justice Center            017 266141 13
 401 W. Belknap Sf.
 Fort Worth, Te«as 76196-0225

               Rc:    Panina. Inc. d/b/a J.4. COlUtructlon Services v. Heather Village, uc,
                      d/b/o '11Ie Heather Aporlme1lls
Dear Clerk:

        Enclosed. herewith please fmd an original and four copies of the Plaintiff's Original
Petition, which I would appreciate your filing. Also enclosed hmewith you will find my dteclc in
the sum 0($257.00 in payment of the $249.00 filing fee~ plus an additional $8.00 for issuance of
citation. Please stamp ~ec:r 1he additional copies and return them to mcin the enclosed,
stamped, self..addressed envelope. Also please issue citation and mum it to me with an Bltaclled
pleading in the enclosed stamped , self-addressed envelope. so that I may have it served upon
Charle! Gillis. the registered agent for Defendant whose registered address for service is 8
Greenway ParkwaY. Ste 818 in Houst~ Texas.

       Tbaok you for your kind cooperation in this matter.




00:   Ms. Susan Brigg~·Prcsident ofPanina, Inc.
      Mr. Ofcr Abramov, Director of Operations ofPanaina, Inc.
            EXHIBIT "E"
PLAINTIFF'S REQUESTS FOR DISCLOSURE
                  CAUSE NO. 17-266141-13
PANINA, INC d/b/a           §     IN THE 17th JUDICIAL
JA CONSTRUCTION SERVICES    §
     Plaintiff              §
                                              §
vs.                          §                           DISTRICT COURT OF
                             §
HEATHER VILLAGE, LLC., D/B/A §
THE HEATHER VILLAGE          §
APARTMENTS                   §
    Defendant                §                           TARRANT COUNTY, TEXAS


  PLAINTIFF/COUNTER-DEFENDANT'S REQUEST FOR DISCLOSURES TO
                DEFENDANT/COUNTER-PLAINTIFF

TO:    HEATHER VILLAGE, LLC. , D/B/A, THE HEATHER VILLAGE
       APARTMENTS. by and through its Attorney of Record, Mr. R. Lane
       Addison Esq., of Henley & Henley, PC, Attorneys At Law, 3300 Oak Lawn
       Avenue, Suite 700, Dallas, Texas 75219.

       NOW COMES, PANINA, INC d/b/a JA CONSTRUCTION SERVICES,

Plaintiff/Counter-Defendant in the above-numbered and styled cause, and pursuant to

Rule 194 of the Texas Rules of Civil Procedure, you are requested to disclose, within 30

days of service of this request, the information or material described in Rule 194.2 as

follows:

REQUEST (a):         The correct names of the parties to the lawsuit of Plaintiff/Counter-
Defendant and the counterclaim of DefendantiCounter-Plaintiff;

RESPONSE:


REQUEST (b):        The name, address, and telephone number of any potential parties
to the lawsuit of Plaintiff/Counter-Defendant and to the counterclaim of
DefendantiCounter-Plaintiff;

RESPONSE:




Plaintiff /Counter-Defendant's Request For Disclosures
To Defendant/Counter-Plaintiff                                                     Page 1
REQUEST (e):        The legal theories and, in general, the factual bases of
Defendant/Counter-Plaintiffs defenses to Plaintiff/Counter-Defendant's lawsuit and the
legal theories and, in general, the factual bases of Defendant/Counter-Plaintiffs
counterclaims:

RESPONSE:



REQUEST (d):         The amount and any method of calculating economic damages
alleged by DefendantiCounter-Plaintiffin its counterclaim;

RESPONSE:


REQUEST (e):         The name, address, and telephone number of persons having
knowledge of relevant facts, and a brief statement of each identified person's connection
with the case.

RESPONSE:


REQUEST (0:             For any testifying expert:

  (1)   the expert's name, address, and telephone number;

  (2)   the subject matter on which the expert will testify;

  (3)   the general substance of the expert's mental impressions and opinions and a brief
        summary ;

  (4)   if the expert is retained by, employed by, or otherwise subject to your control:

        (A)      all documents, tangible things, reports, models, or data compilations that
                 have been provided to, reviewed by, or prepared by or for the expert in
                 anticipation of the expert's testimony; and

        (B)      the expert's current resume and bibliography;

RESPONSE:




Plaintiff' /Counter-Defendant's Request For Disclosures
To Defendant/Counter-Plaintiff                                                        Page 2
REQUEST (g):           Any indemnity and msurmg agreements described m Rule
192.3(f);

RESPONSE:


REQUEST (h):           Any and all discoverable settlement agreements described in Rule
192.3(g);

RESPONSE:


REQUEST (i):           Any and all discoverable witness statements described in Rule
192.3(h);

RESPONSE:

REQUEST 0):             In a suit alleging physical or mental injury and damages from the
occurrence that is the subject of the case, all medical records and bills that are reasonably
related to the injuries or damages asserted or, in lieu thereof, an authorization permitting
the disclosure of such medical records and bills;

RESPONSE:


REQUEST (k):          In a suit alleging physical or mental injury and damages from the
occurrence that is the subject of the case, all medical records and bills obtained by the
responding party by virtue of an authorization furnished by the requesting party.

RESPONSE:


                                              Respectfully submitted,
                                              L    0 ICE OF JOHN P. KNOUSE


                                                           NOUSE
                                                       ar Number: 11624000
                                                    o N. Dallas Parkway
                                                 dg 300
                                                allas, Texas 75248
                                              (972) 380-1188 (Telephone)
                                              (214) 367-5982 (Telecopier)
                                              e-mail:knouselaw@yahoo.com
                                              ATTORNEY FOR PLAINTIFF


Plaintiff /Counter-Defendant's Request For Disclosures
To Defendant/Counter-Plaintiff                                                        Page 3
                              CERTIFICATE OF SERVICE

       This is to certify that on this   ~'day of May 2014, a true and correct copy of the
foregoing was served upon Defendant bye-mail. by facsimile to (214) 812- 0124 sent to

Mr. R. Lane Addison Esq., of Henley and Henley PC, Attorneys At Law, 3300 Oak Lawn

Ave., Suite 700, Dallas, Texas 75219, Attorneys of Record for Defendant, and by

certified mail, return receipt requested, as required by T.R.C.P. Rule 21a.




Plaintiff /Counter-Defendant's Request For Disclosures
To Defendant/Counter-Plaintiff                                                     Page 4
                  EXHIBIT "F"
DEFENDANT'S RESPONSE TO PLAINTIFF'S REQUESTS FOR
                  DISCLOSURE
                                    NO. 17-266141-13

 PANINA, INC. d/b/a JA                         §           IN THE DISTRICT COURT
 CONSTRUCTION SERVICES,                        §
 Plaintiff,                                    §
                                               §
 V.                                            §
                                               §
 HEATHER VILLAGE, LLC d/b/a                    §           17TH JUDICIAL DISTRICT
 THE HEATHER VILLAGE                           §
 APARTMENTS,
                                               §
                                               §
 V.                                            §
                                               §
 PANINA, INC. d/b/a JA                         §
 CONSTRUCTION SERVICES,                        §
 Counter-Defendant                             §         TARRANT COUNTY, TEXAS

      RESPONSE TO PLAINTIFF'S FIRST SET OF DISCLOSURES TO PLAINTIFF

TO:    Plaintiff, Panina Inc, through their attorney of record, John Knouse, 16970 North
       Dallas Parkway, Building 300, Dallas, Texas, 75248.

       Defendant, Heather Village, LLC, by and through her attorney of record, R. Lane
Addison, serves the Plaintiffs First Set of Interrogatories to Defendant, as allowed by
Texas Rule of Civil Procedure 197.

                                            Respectfully submitted,

                                            HENLEY & HENLEY, P.c.



                                            By: IslPatrick Murphy'
                                            R. Lane Addison
                                            State Bar No.24059355
                                            Geoff J. Henley
                                            State Bar No. 00798253
                                            David Gonzales
                                            State Bar No. 24073258
                                            Patrick Murphy
                                            State Bar No. 24085488
                                            3300 Oak Lawn Avenue, Suite 700
                                            Dallas, Texas 75219
        RESPONSE TO PLAINTIFF/COUNTER FIRST SET OF DISCLOSURES
                                                           Page 1 of 6
                                           (214) 821-0222 (Telephone)
                                           (214) 821-0124 (Facsimile)
                                           Attorneys for Plaintiff


                               CERTIFICATE OF SERVICE

        On this the _7_ day of _ _June           ,2014, I hereby certify that a true and
correct copy of the foregoing has been sent to Counter-Defendant, PANINA INC. d/b/a
JA CONSTRUCTION SERVICES, by and through the following:

John P. Knouse
16970 Dallas Parkway, Bdg. 300
Dallas, Texas 75248
214.380.1188-tel.
214.367.5982-fax

                    - - - HAND-DELIVERY                     XXX FACSIMILE
                    _x _ _ ELECTRONIC MAIL                _ _ _ REGULAR MAIL
                    _ _ _ CERTIFIED MAIL



                                                                  Is/Patrick Murphy
                                                                  Patrick Murphy




       RESPONSE TO PLAINTIFFICOUNTER FIRST SET OF DISCLOSURES
                                                           Page 2 of 6
REQUEST (a):         The correct names of the parties to the lawsuit;

RESPONSE:

       1.     PANINA, INC d/b/a JA CONSTRUCTION SERVICES, Plaintiff

     2.  HEATHER    VILLAGE,                    LLC.,      d/b/a,       THE   HEATHER
VILLAGE AP ARTMENTS, Defendant

REOUEST (b):         The name, address, and telephone number of any potential parties;

RESPONSE:            There are none

RE~UEST     (c):     The legal theories and, m general, the factual bases of

Plaintiffs claims.

RESPONSE: The factual basis for Plaintiffs Heather Village's claims as stated              III
Heather Village's Original Answer and counterclaim Petition are as follows:

     On or about March 19,2012, Counter-Defendant agreed to perform work on
Counter-Plaintiff's property located at 6000 Boca Raton in Fort Worth, Texas
("Property"). Said Property is a series of multifamily residential dwelling units.
The work was to include, among other things, the removal and replacement of exterior
wood.                                                .

Counter-Defendant used low grade wood, only partially replaced the siding and did a
substandard job in replacing the siding they actually replaced. The siding was so cheap
that it began falling off prior to the completion of the project. Counter-Defendant
charged an unreasonably excessive fee to perform this labor. Counter-Defendant never
completed the project to workmanlike quality. Counter-plaintiff entered into a second
contract with Counter-Defendant to allow them to correct their mistake.

Counter-Plaintiff has been forced to seek other contractors to not only perform the work
Counter-Defendant was to have performed, but also repair the damage Counter-
Defendant caused to the Property.

Counter-Plaintiff alleged breach of the implied warranty of good and workmanlike
services for residential construction. Additionally, Counter-Plaintiff alleged the breach of
contract against the Counter-Defendants.

 REQUEST (d):        The amount and any method of calculating economic damages;

RESPONSE,;,Counter-plaintiff are currently seeking an Expert Report regarding the
     RESPONSE TO PLAINTIFF/COUNTER FIRST SET OF DISCLOSURES
                                                            Page 3 of 6
amount of damages cause by the faulty workmanship and breach of contract. The best
quote to date for the cost of repairing all the buildings is $962,876.00.

REQUEST     (e):         The name, address, and telephone number of persons having
knowledge of relevant facts, and a brief statement of each identified person's connection
with the case.

RESPONSE:
        Shyrah Butcher
        7852 Sorrel Lane
        Corona, California 92880

Shyrah Butcher is a representative of Heather Villages, LLC, D/B/A the Heather
Villages. She is aware of all the facts surrounding the property.

        Mr. Roy Jackson
       Mr. Jody Blankenship
       Mr. Walter Fingelman
       Sungate Management
        9550 Skillman St, Dallas, TX 75243
        (214) 660-0909
Mr. Jackson, Mr. Blankenship, and Mr. Fingelman, were all with Sundgate Management
Inc. a company that managed the Heather Village Apartments in 2012.

RE---.QUEST (t):       For any testifying expert:
                   (1)   the expert's name, address, and telephone number;

                   (2)    the subject matter on which the expert will testify;

                   (3)    the general substance of the expert's mental impressions and
                          opinions and a brief summary ofthe basis for them, or ifthe expert
                          is not retained by, employed by, or otherwise subject to your
                          control.

                   (4)    if the expert is retained by, employed by, or otherwise subject to
                          your control:

                          (A)    all documents, tangible things, reports, models, or data
                                 compilations that have been provided to, reviewed by, or
                                 prepared by or for the expert in anticipation of the expert's

       RESPONSE TO PLAINTIFF/COUNTER FIRST SET OF DISCLOSURES
                                                               Page 4 of 6
                             testimony; and

                      (B)    the expert's current resume and bibliography;

RESPONSE:

This response is deemed further to be a designation of experts as required by the
Scheduling Orders of the 429th District Court in both Cause No. 429-02728-2013 and
in Cause No. 429-55011-2011 and as required by the Texas Rules of Civil Procedure.

            Names of Experts

                     Lane Addison
                     Attorney At Law
                     3300 Oak Lawn Ave. Suite 700
                     Dallas, TX 75219
                     214.821.0222
                     Fx 214.821.0124

                     David Gonzales
                     Attorney At Law
                     3300 Oak Lawn Ave. Suite 700
                     Dallas, TX 75219
                     214.821.0222
                     Fx 214.821.0124

        (2)     Lane Addison and David Gonzales can testify to their attorney's fees
relating to damages sought in this lawsuit. Lane Addison and David Gonzales can testify
to the amount of the reasonable and necessary attorney's fees charged by their firm
in regard to and may refute the necessity and reasonableness of any claims for
attorney's fees made by Plaintiff in either case.




      RESPONSE TO PLAINTIFF/COUNTER FIRST SET OF DISCLOSURES
                                           Page 5 of 6
   (A) There are no documents to attach the present time, however it is expected that
      Defendant will rely upon itemized statements as to the work done and spent by him at
      the time of trial, which will be produced a reasonable period of time prior to trial.
   (B) Plaintiff also anticipate naming an expert from Super Siding and Remolding, LLC to
      discuss the reasonableness of the repairs. That information will be supplemented as it is
      received.
               Super Sliding and Remolding LLC
               4620 Colleyville Blvd,
               Colleyville, TX 76034
               (972) 900-0122

RE~UEST    (g):
  Any indemnity        and Insunng agreements          described       in Rule 192.3(t);


  There are none.

RE~UEST      (h):

 Any and all discoverable settlement agreements described in Rule 192.3(g);

 There are none.
RE~UEST (i):


 Any and all discoverable witness statements described in Rule 192.3(h);

  There are none.

REQUEST 0): In a suit alleging physical or mental injury and damages from the occurrence
that is the subject of the case, all medical records and bills that are reasonably related to the
injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of
such medical records and bills.

  RESPONSE:              There are no medical records ..

REQUEST (k): All medical records and bills obtained by the responding party by virtue of an
authorization furnished by the requesting party.

  RESPONSE:              There are no medical records.




           RESPONSE TO PLAINTIFF/COUNTER FIRST SET OF DISCLOSURES
                                                               Page 6 of 6
                 EXHIBIT "G"
DEFENDANT'S ORIGINAL (UNSWORN) ORIGINAL ANSWER
              AND COUNTERCLAIM
                                         NO. 17-266141-13

PANINA, INC. d/b/a JA                               §              IN THE DISTRlCT COURT
CONSTRUCTION SERVICES,                              §
Plaintiff,                                          §
                                                    §
V.                                                  §
                                                    §
HEATHER VILLAGE, LLC d/b/a THE                      §              17TH JUDICIAL DISTRlCT
HEATHER VILLAGE APARTMENTS,                         §
Defendant, Counter-Plaintiff,                       §
                                                    §
v.                                                  §
                                                    §
P ANINA, INC. d/b/a JA                              §
CONSTRUCTION SERVICES,                              §
Counter-Defendant                                   §             TARRANT COUNTY, TEXAS


                         DEFENDANT'S ORIGINAL ANSWER AND
                                 COUNTERCLAIM

        NOW COMES HEATHER VILLAGE LLC d/b/a THE HEATHER VILLAGE

APARTMENTS, named Defendant and Counter-Plaintiff in the above-entitled and numbered

cause, and brings this Original Answer and Counterclaim, and shows the Court:

                                       GENERAL DENIAL

        1.     DefendantJCounter"Plaintiff each and every allegation of Plaintiffs Original

Petition, and demands strict proof thereof as required by the Texas Rules of Civil Procedure.

               DEFENDANT/COUNTER-PLAINTIFF'S COUNTERCLAIM

                                              FACTS

       2.      On or about March 19, 2012, Counter-Defendant agreed to perfonn work on

Counter-Plaintiffs property located at 6000 Boca Raton in Fort Worth, Texas ("Property"). Said

Property is a series of multifamily residential dwelling units.

       3.      The work was to include, among other things, the removal and replacement of




                                                                                          PAGE 1
 exterior wood.

        4.        Counter-Defendant charged Counter-Plaintiff an unreasonably excessive fee to

perform this labor.

        5.        Counter-Defendant damaged the Property by failing to properly install the

exterior wood, and Counter-Plaintiff has been forced to seek other contractors to not only

perform the work Counter-Defendant was to have performed, but also repair the damage

Counter-Defendant caused to the Property.

                        CAUSE OF ACTION: BREACH OF WARRANTY

        6.        The residential construction was not completed in a good and workmanlike

manner, which was a breach of the implied warranty of good and workmanlike services fur

residential construction.

        7.        Counter-Defendanfs breach of warranty directly and proximately caused injury to

Counter-Plaintiff.

                        CAUSE OF ACTION: BREACH OF CONTRACT

       8.      All conditions precedent have been met.

       9.         Counter-Plaintiff and Counter-Defendant had a valid, enforceable contract for the

renovation of the Property.

       10.     Counter-Plaintiff perfonned, substantially p erfonn ed, tendered perfonnance or

was excused from performing.

       11.     Counter-Defendant breached the     contract~   causing injury to Counter-Plaintiff.

                            DAMAGES FOR COUNTER-PLAINTIFF

       12.     As a direct and proximate result of the occurrence made the basis of this lawsuit,

Counter~Plaintiff    has incurred substantial expenses to fix the problems caused by Counter·




DEEID"DAJ'!!'S ANSWER AND CQWTERCLAIM,                                                         PAGE 2
Defendant.s substandard work.

        13.    Counter-Plaintiff also seeks recovery of their attomey)s fees, as provided by

Chapter 38 of the Texas Civil Practice and Remedies Code.

                                           PRAYER

        Defendant/Counter-Plaintiff   prays    the   Court   enters     judgment   In   favor   of

DefendantlCOllllter-Plaintiff, awards Defendant/Counter-Plaintiff the costs of court, attorney's

fees, and such other and further relief as DefendantiCounter-Plaintiffmay be entitled to in law or

in equity.

                                              Respectfully submitted,

                                              HENLEY & HENLEY, P.c.




                                           ~ane Addison
                                              Texas Bar No. 00798253
                                              rladdison@henleylawpc.com
                                              Geoff J. Henley
                                              Texas Bar No. 00798253
                                              ghenley@henleylawpc.com
                                              David F. Gonzales
                                              Texas Bat No. 24073258
                                              dgonzales@henleylawpc.com
                                              3300 Oak Lawn Avenue, Suite 700
                                              Dallas, Texas 75219
                                              214/821-0222 (Telephone)
                                              214/821-0124 (Facsimile)

                                              ATTORNEYS FOR COUNTER-PLAINTIFF




                                                                                          PAGE 3
                                           CERTIFICATE OF SERVICE

        On this the 12th day of August 2013, I hereby certify that a true and correct copy of the
 foregoing has been sent to Counter-Defendant, PANINA INC. d/b/a JA CONSTRUCTION
 SERVICES, by and through the following:

John P. Knouse
16970 Dallas Parkway, Bdg. 300
Dallas, Texas 75248
214.380.1188·tel.
214.367.5982-fax

                           _~_   HAND-DELlVER,Y              xxx FACSIMILE
                           _~_ ELECTRONIC MAIL             _ _ _ REGULAR MAIL
                           _ _ _ CERTIFIED MAIL




D§.f&NDANT'S AI'I§WER ANt:! (;QIJliTERCLAIM.                                             PAGE 4
                 EXHIBIT "H"
DEFENDANT'S FIRST AMENDED ORIGINAL ANSWER AND
                COUNTERCLAIM
                                         NO. 17-266141-13

PANINA, INC. d/b/a JA                               §          IN THE DISTRICT COURT
CONSTRUCTION SERVICES,                              §
Plaintiff,                                          §
                                                    §
v.                                                  §
                                                    §
HEATHER VILLAGE, LLC d/b/a THE                      §          17TH JUDICIAL DISTRICT
HEATHER VILLAGE APARTMENTS,                         §
Defendant, Counter-Plaintiff,                       §
                                                    §
v.                                                  §
                                                    §
PANINA, INC. d/b/a JA                               §
CONSTRUCTION SERVICES,                              §
Counter·Defendant                                   §        TARRANT COUNTY, TEXAS


             DEFENDANT'S FIRST AMENDED ORIGINAL ANSWER AND
                             COUNTERCLAIM

       NOW COMES Heather Village, LLC d/b/a The Heather Village Apartments, named

Defendant and Counter-Plaintiff in the above-entitled and numbered cause, and brings this

Original Answer and Counterclaim, and shows the Court:

                                    SPECIAL EXCEPTIONS

        1.    Defendant/Counter-Plaintiff specially excepts Plaintiffs claim for relief on a

sworn account. A sworn account is improper and not available mthis breach of contract matter.

                                      GENERAL DENIAL

       2.     Defendant/Counter-Plaintiff each and every allegation of Plaintiffs Original

Petition, and demands strict proof thereof as required by the Texas Rules of Civil Procedure.

                              DENIAL OF SWORN ACCOUNT

       3.     Defendant/Counter-Plaintiff specifically denies the allegations of the sworn

account. Defendant/Counter-Plaintiff specifically denies that the amount of the aCcOllllt is due to




D&WlDANT'S FIRST /WgNpED ANSWER   ANQ COVtf\"ER CLAIM                                      PAGEl
Plaintiff as alleged and fwther denies that all just and lawful offsets, payments, and credits have

been allowed.

                 DEFENDANT/COUNTER-PLAINTIFF'S COUNTERCLAIM

                                                 FACTS

        4.       On or about March 19, 2012, Counter-Defendant agreed to perfonn work on

Counter-Plaintiff's property located at 6000 Boca Raton in Fort Worth, Texas ("Property'} Said

Property is a series of multifamily resjdential dwelling units.

        S.       The work was to include, among other things, the removal and replacement of

exterior wood.

        6.       Counter-Defendant charged Counter-Plaintiff an umeasonably excessive fee to

perform this labor.

        7.       Counter-Defendant damaged the Property by failing to properly install the

exterior wood, and Counter-Plaintiff has been forced to seek other contractors to not only

perfonn the work      Counter~Defendant       was to have performed, but also repair the damage

Counter-Defendant caused to the Property.

                       CAUSE OF ACTION: BREACH OF WARRANTY

        8.       The residential construction was not completed in a good and workmanlike

manner, which was a breach of the implied warranty of good and workmanlike services for

residential construction.

        9.       Counter-Defendant's breach of warranty directly and proximately caused injury to

Counter-Plaintiff.

                        CAUSE OF ACTION: BREACH OF CONTRACT

        10.      All conditions precedent have been met.




PEFgNI;!ANT'S FIRST t.m:NDED   MISWCS ANP C0tJNTt& CLAIM                                   PAGE :z
      11.

renovation of the property.

        12.
 was e~cused from performing·
        13.     counter.p.fondant breached the contract, causing injury to C(JIlJlIef'Plaintilf.

                                                 NEGLIGENCE
            14.         In the course of the =actions between Counter·Plaintiff and Plaintiff, Plaintiff

   owed Counter.Plaintiff a duty to ensure the work wOS completed in • professional, .,or\<lnan like


   manner.
              15.        counter-Plaintiff would show that Plaintiff failed to """,cise ordioary .... in

    perfomUng such duty. The acts and/omissions of plaintiff as described hereinabove by.,bieb
                                                                                      es
    plaintiff breaChed sucb dUty         constitute a proximate cause of the damaS         of Counter·Plaintiff

     ....enDed more fully hereinbelow, for wbieb Plaintiff is liable to counter.Plaintiff.

                                     DAMAGES FOR COUNTER-PLAINTIFF
                  16.      As' direCt and pro.;mate result of the ()CCIII!CllC< mode the basis of this lawsuit,

      Counter-Plaintiff bos incw:r            substantial ..penses to fix the probleOlS caused by Counter·
                                         ed

      Defendant's sl.lbstandard work.
             17.      Counter-Plaintiff also seeks rec,werj of their attorney's fees, os provided by

       Chapter 38 ofthe Te:ll6S Civil Practice and Remedies Code.
                                                          PRAYER

                    Defendant/Counter.Plaintiff proys        tho   court    enter&   judgment      in favor       of

        Pefondant/Counter.PlaintifI, awards DefendantlCmmter.Plaintiff the costs of court, attomey's

        fees, and such other and Iilrther relief as DefendantJCounter-Plaintiff may be entitled to in law or
                                                                                                                       /

                                                                                                       !ACEJ
                  ._--.--- -
                                             Respectfully submitted,

                                             HENLEY & HENLEY, P.c.



                                             /sl R. Lane Addison
                                             R. Lane Addison
                                             Texas BarNo. 24059355
                                             rladdison@henleylawpc.com
                                             Geoff J. Henley
                                             Texas Bar No. 00798253
                                             ghenley@hen1eylawpc.com
                                             3300 Oak Lawn Avenue, Suite 700
                                             Pallas, Texas 75219
                                             214/821-0222 (Telephone)
                                             214/821-0124 (Facsimile)

                                             ATTORNEYS FOR COUNTER-PLAINTIFF


                                CERTIFICATE OF SERVICE

      On this theS.d..day of November, 2014 I hereby certify that a txue and correct copy of
the foregoing has been sent to Plaintifti'Counter-Defendant, PANlNA INC. d/bla JA
CONSTRUCTION SERVICES, by and through the following:

JohnP. Knouse
16970 Dallas Parkway, Bdg. 300
Dallas, Texas 75248
214.380.1188-tel.
214.367.5982-fax

                      _ _ _ HAND-DELIVERY                    xxx FACSIMILE
                      _ _ _ ELECTRONIC MAIL                _ _ _ REGULAR MAIL
                      _ _ _ CERTIFIED MAIL



                                             /s/ R. Lane Addison
                                             R. Lane Addison




p~NtWIT.S   FIRST AMENQgl) AN§~P. AND COUNTER CLAIM                                  PAGE 4
                                        VERIFICATION

       BEFORE ME, the undersigned authority, personally appeared David Christensen, who

after being by me duly sworn, deposed as follows:

       "My name is David Christensen.    J have   been granted to speak on behalf of the

shareholder(s) / owner(s) of Heather Village, Ll.C. regarding the foregoing lawsu.it. I am

at least 18 years of age and of sound mind,   I am personally acquainted with the facts alleged

in the foregoing an,we< 'egarding the deni,l of the sworn a=U~i h is true and co"e"."

                                   ]              ,.
                _-----eawi'ft'hhlristensen, representative for Heather Village, LLC


                                                                                        th
       SUBSRIBED AND SWORN TO BEFORE ME on November 5                                        ,   2014 by David

Christensen.




                           Notary Public, State of California



                                                                ,r"'-:;"~          SCOTT 6ETTENCOUFU
                                                            -{'-;;!f''<;~';t:.''''~'     CommisSIon' # 2003'33
                                                            f ,\:.),,,..,,::
                                                                ,,-4111            'N                          r
                                                                                          Olafy Publi, • California
                                                                    ..;"!f!h'!i./ , ,. Los Ang!!les Caumy
                                                                                                                     z
                                                                                                                     ~
                                                                                     t"y "Olllm f~ptre5 Jan 30. 2017

                               "
                  EXHIBIT "I"
PLAINTIFF'S OBJECTIONS AND REPLY TO DEFENDANT'S
 RESPONSE TO PLAINTIFF'S MOTIONS FOR SUMMARY
                   JUDGMENT
                            CAUSE NO. 17-266141-13

PAN INA, INC d/b/a           §                IN THE 17th JUDICIAL
JA CONSTRUCTION SERVICES     §
     Plaintiff               §
                             §
vs.                          §                DISTRICT COURT OF
                             §
HEATHER VILLAGE, LLC., D/B/A §
THE HEATHER VILLAGE          §
APARTMENTS                   §
     Defendant               §                TARRANT COUNTY, TEXAS


 PLAINTIFF'S OBJECTIONS AND REPLY TO DEFENDANT'S RESPONSE TO
   PLAINTIFF'S TRADITIONAL MOTION FOR SUMMARY JUDGMENT

       NOW COMES, Plaintiff PAN INA, INC d/b/a JA CONSTRUCTION

SERVICES ("Panina") and files its objections and reply to Defendant's Response To

Plaintiffs Traditional Motion for Summary Judgment against Defendant HEATHER

VILLAGE, LLC. d/b/a THE HEATHER VILLAGE. APARTMENTS ("Heather

Village"), and would show unto the Court the following:

                              I.
  OBJECTIONS TO DEFENDANT'S FIRST AMENDED ORIGINAL ANSWER
    AND COUNTERCLAIM AND REPLY TO DEFENDANT'S RESPONSE
                     RELYING THEREON

      Concurrently with the filing today of Plaintiff s formal Exceptions to

Defendant/Counter-Plaintiffs First Amended Original Answer and Counterclaim,

Plaintiff further objects to Defendant/Counter-Plaintiffs First Amended Original Answer

and Counterclaim, which is not a properly sworn to and does not comply with Rules 93

(10) and 185 of the Texas Rules of Civil Procedure. The Texas Supreme Court has

                                                                                       1'1

PLAINTIFF'S MOTION FOR TRADITIONAL
                                                                              P\GL I
SUMMARY JUDGMENT
repeatedly stated held that an affidavit is insufficient where it is not based upon personal

knowledge. Rizk v. Financial Guardian Ins. Agency, Inc., 584 SW2d 860, 862 (Tex.

1979) Vance v. Holloway, 689 SW2d 403, 404 (Tex. 1985) and Humphreys v. Caldwell,

888 SW2d 469,470 (Tex. 1994). A showing of personal knowledge in the affidavit being

denying the account is required. Cantu v. Holiday Inns, Inc., 910 SW2d 113, 116 (Tex.

Civ. App.-Corpus Christi, 1995, no writ) It is also been held that a company officer who

does not have personal knowledge of certain matters cannot deny them under oath since

the matters would be hearsay to him. Gorrell v. Tide Prods, Inc., 532 SW2d 390, 395

(Tex. Civ. App-Amarillo, 1975, no writ) In the instant case, DefendantlCounter-

Plaintiff s First Amended Original Answer and Counterclaim is sworn to by David

Christiensen, who signed his affidavit as a representative for Heather Village LLC, and is

not officer nor a person that purports to have personal knowledge as to whether the sworn

account is true or not, but simply says:

       "I have been granted to speak on the behalf of the shareholder(s)/owner(s) of
      Heather Village, LLC regarding the foregoing lawsuit. I am at least 18 years of
      age and of sound mind. I am personally acquainted with the facts alleged in the
      foregoing answer regarding the denial of the foregoing account, which is true and
      correct."

Mr. Christensen's statement in his affidavit that he "is acquainted with the facts" does

not demonstrate any basis for personal knowledge, but merely confirms that he is

"acquainted with the facts alleged in the foregoing answer regarding the denial of

the foregoing account." The Texas Supreme Court has repeatedly held that an affidavit

that does not positively and unqualifiedly represent the facts as disclosed in the affidavit
                                                                                   II I I
PLAINTIFF'S MOTION FOR TRADITIONAL
                                                                                  1',\(;1:2
SUMMARY JUDGMENT
to be true with in the affiant's personal knowledge is legally insufficient as a matter of

law. Brownlee v. Brownlee, 665 SW 2d Ill, 112 currencies Tex. 1984); Burke v.

Satterfield, 525 SW.2d 950, 955(Tex. 1975)

      In another case involving a denial of a sworn account, where the affiant was

actually an officer of the defendant company, the court held that the representation that

he had personal knowledge did not mean that he had sufficient personal knowledge of

specific items and services alleged to have been provided in this account and he could not

properly denied them under oath since they would be hearsay to him. Gorrell v. Tide

Prods, Inc., supra at p. 395. Even where an attorney for a party in an affidavit denying a

sworn account stated that "I have personal knowledge of the facts stated herein", was

held the insufficient where nothing in the verification demonstrated a basis of the

attorney's personal knowledge. Hinojosa Auto v. Finishmaster, _SW2d_, (03-08-

00361-CV (Tex. Civ. App-Austin, 12-12-2008).

      There is no statement in the affidavit to Defendant/Counter-Plaintiffs First

Amended Original Answer and Counterclaim that Mr. Christensen even has "personal

knowledge" of anything to do with the account sued upon by Panina. There is absolutely

nothing in the affidavit of Mr. Christensen, indicate that he has personal knowledge of

specific items and services alleged to have been provided in the account sued upon by

Panina Inc. against Heather Village LLC. Mr. Christensen is not even an officer of

defendant corporation, nor is he a custodian of the records of Heather Village LLC, nor

has he stated anything in his affidavit attached to Defendant/Counter-Plaintiffs First


PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT
Amended Original Answer and Counterclaim to show that he personally had anything to

do with the account involved to prove that he had personal knowledge of specific items

and services alleged to have been provided in the account sued upon by Panina, but

simply that he is a" representative of the owner", and generally that he is "acquainted

with the facts", without stating the facts with which is acquainted. As a matter of law

Mr. Christensen cannot deny the account of Panina, Inc. under oath, since he has no

personal knowledge other than hearsay information.

      In addition, even though Plaintiff sent Requests For Disclosure to Defendant on

May 8, 2014, Mr. Christensen has never been designated as a "person with knowledge" at

any time by Defendant. Under the Texas Rules of Civil Procedure, Defendant was under

obligation to reveal Mr. Christensen as a person with knowledge and answering the

Requests For Disclosure, which he was not, nor were the Requests For Disclosure

supplemented more than 30 days prior to trial, being the hearing on the Plaintiffs

Motions for Summary Judgment, as required by the Texas Rules of Civil Procedure.

Further, Defendant completely failed to list Mr. Christensen as a witness and provide that

to the court as required by the scheduling order of the court which was due at the last

pretrial in October, 2014.

      Because the Defendant's sworn written denial does not comply with Rules 93(10)

and 185 of the Texas Rules of Civil Procedure, as a matter of law, Defendant Heather

Village LLC is not permitted to deny the receipt of services or the correctness of charges

of the sworn account filed by Plaintiff, Panina, Inc. See Rizk v. Financial Guardian Ins.
                                                                                          I

PLAINTIFF'S MOTION FOR TRADITIONAL
                                                                                P'\CI:4
SUMMARY JUDGMENT
Agency, Inc., supra at 862 (Tex. 1979) Vance v. Holloway, supra at 404 (Tex. 1985) and

Humphreys v. Caldwell, supra at 470 (Tex. 1994). Plaintiff is entitled to granting of

Plaintiffs Traditional Motion For Summary Judgment, as a matter of law.

                                           II.
PLAINTIFF'S OBJECTION AND MOTION TO STRIKE THE AFFIDAVITS OF
   DAVID CHRISTENSEN AND KEN TOLA, WHO HAVE NEVER BEEN
  DESIGNATED BY DEFENDANT AS PERSONS WITH KNOWLEDGE AS
 POTENTIAL WITNESSES OR AS EXPERT WITNESSES IN RESPONSE TO
          PROPERLY SERVED REQUEST FOR DISCLOSURE

      As previously stated Plaintiff served Defendant's counsel with Requests For

Disclosure to Defendant on May 8, 2014, neither David Christensen nor Ken Tola have

ever been designated as "persons with knowledge" at any time by Defendant, with any

indication as to what facts they might have knowledge of regarding the sworn account or

any aspect of the lawsuit, whether as to the claims of Plaintiff for the defenses of

Defendant Heather Village, LLC. Attached is a copy of Plaintiffs Request For

Disclosures as well as Defendants Responses To Disclosres, as Exhibibits "A" and B",

which are incorporated herein for all purposes. Under the Texas Rules of Civil Procedure,

by Furthermore, Defendant was under obligation to designate David Christensen nor Ken

Tola as an expert witness and to answer fully all of the Requests For Disclosure. No

expert witnesses were designated other than defendant's attorneys for attorney's fees. In

addition defendant failed to supplement the Requests For Disclosure to add and reveal

either David Christensen nor Ken Tola as witnesses and persons with knowledge of facts

involving the lawsuit, or as expert witnesses, more than 30 days prior to trial, being the

date for the hearing on the Plaintiffs Motions for Summary Judgment, as required by the

PLAINTIFF'S MOTION FOR TRADITIONAL
                                                                                PAC I: :;
SUMMARY JUDGMENT
Texas Rules of Civil Procedure. Furthermore, Defendant completely failed to list David

Christensen nor Ken Tola as a witnesses or as expert witnesses and to provide that to the

court and to counsel as required by the scheduling order of the court which was due at the

last pretrial set in early October, 2014.

       Where the foregoing reasons and the complete failure of Defendant, Heather

Village LLC to designate David Christensen nor Ken Tola as witnesses are expert

witnesses in response properly served Requests For Disclosure and discovery, the

affidavits of both David Christensen nor Ken Tola should be stricken and should in no

way be considered by the Court as any type of summary judgment evidence responding

to either Plaintiffs Traditional Motion For Summary Judgment or to Plaintiffs "No

Evidence" Motion For Summary Judgment.

                            III.
DEFENDANT HAS ADMITTED THAT THE ELEMENTS TO SHOW A BREACH
  OF CONTRACT AS A MATTER OF LAW IN RESPONSE TO PLAINTIFF'S
                  REQUESTS FOR ADMISSIONS

       On May 8, 2014, Plaintiff served Defendant's counsel with Requests For

Admissions, to which Defendant responded on June 7, 2014. A copy of Plaintiffs

Request for Admissions and Defendant's Response thereto are attached hereto as

Exhibits   "c" and "D" and incorporated herein for all purposes.   In addition to suing upon

a sworn account, Plaintiff also sued Defendant for breach of contract, which has been

admitted to by the Defendant in response to the following Request for Admissions:




PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT
      Request for Admission No.1.

                     HEATHER VILLAGE, LLC., d/b/a THE
      Admit that Defendant,
      HEATHER VILLAGE APARTMENTS, by and through its agent and
      representative Sungate Management, Inc. entered into a contract with Plaintiff,
      PANINA, INC., d/b/a JA CONSTUCTION SERVICES, dated October 11,
      2012, to perform repairs and painting the exterior Defendant's property known as
      the Heather Village Apartments, alleged as the basis for the above entitled and
      numbered lawsuit.

      Admit or Deny: Admit

      Request for Admission No.2.

      Admit that Exhibit 1 to Plaintiffs Original Petition is a true and correct copy of the
      written contract between Defendant, HEATHER VILLAGE, LLC, d/b/a THE
      HEATHER VILLAGE APARTMENTS and Plaintiff, PANINA, INC., d/b/a JA
      CONSTUCTION SERVICES.

      Admit or Deny: Admit


      Request for Admission No.3.

      Admit that Exhibit Number 2 to Plaintiffs Original Petition, is a true and correct copy
      of Invoice Number 1115201202, submitted to Defendant, HEATHER VILLAGE,
      LLC, d/b/a THE HEATHER VILLAGE APARTMENTS by Plaintiff, PANINA,
      INC., d/b/a JA CONSTUCTION SERVICES, on November 15,2012.

      Admit or Deny: Admit

       Request for Admission No.5.

       Admit that the failure of Defendant, HEATHER VILLAGE, LLC, d/b/a THE
       HEATHER VILLAGE APRTMENTS, to pay Invoice Number 1115201202 for
       50% of the total contract price of $46,000 in the sum of $23,000 upon delivery of the
       materials commencement of work at the Heather Village Apartments to Plaintiff,
       PANINA, INC., d/b/a JA CONSTUCTION SERVICES, was a breach of the
       contract between the parties.

       Admit or Deny: Admit


While Defendant did deny Request for Admission number four


PLAINTIFF'S MOTION FOR TRADITIONAL
                                                                                      1'.\(;1: 7
SUMMARY JUDGMENT
        WHEREFORE, PREMISES CONSIDERED, Plaintiff, PANINA requests that this

matter be set for a hearing on the same date as trial, to wit: October 20, 2014, and that upon

completion of the hearing, the Court grant in all things the Motion for Traditional Summary

Judgment filed by Plaintiff PAN INA, INC d/b/a JA CONSTRUCTION SERVICES in

that Court enter a summary judgment in favor of Plaintiff PAN INA, INC d/b/a JA

CONSTRUCTION SERVICES against Defendant HEATHER VILLAGE, LLC, d/b/a

THE HEATHER VILLAGE. APARTMENTS, in the sum of $51,200.00, plus all

reasonable attorney's fees attorney's fees incurred by Plaintiff in prosecuting in defending

the lawsuit, as well as for attorney's fees in the event of an appeal to the Court of Appeals

and in the event of a petition for review to the Supreme Court of Texas, plus all costs court

incurred, as well as for a judgment foreclosing its Mechanic's Lien on the Heather Village

Apartments property belonging to Defendant, HEATHER VILLAGE, LLC for payment

of the full amount of the judgment attorney's fees and costs court and that the Court grant

Plaintiff, PANINA such other and further relief, to which Plaintiff, PANINA may be justly

entitled.




                                            F
PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT
                                                                       . KNOUSE




                                           Da as, Texas 75248
                                           (972) 380-1188 (Telephone)
                                           (214) 367-5982 (Telecopier)
                                           E-mail: knouselaw@yahoo.com
                                           ATTORNEY FOR PLAINTIFF




                              CERTIFICATE OF SERVICE

                                                ./:,:::::;e ~
       This is to certify that on this I/J'-day ofTuwer, 2014, a true and correct copy of

the foregoing was served upon Defendant by facsimile to (214) 812- 0124 sent to Mr. R. Lane

Addison Esq., of Henley and Henley PC, Attorneys At Law, 3300 Oak Lawn Ave., Suite 700,

Dallas, Texas 75219, Attorneys of Record for Defendant as required by T.R.C.P. Rule 21a.




PLAINTIFF'S MOTION FOR TRADITIONAL                                                    1',\(;1: II
SUMMARY JUDGMENT
                                          FIAT

        IT IS ORDERED that the hearing on Plaintiffs Traditional Motion For

 Summary Judgment be in the same, are hereby set for hearing on the _day of

 _ _ _ _ _ _ 2014, at          o'clock   .m., in the courtroom of the - - District

 Court of Tarrant County, Texas

       SIGNED this _     day of _ _ _ _ _, 2014.



                                             JUDGE PRESIDING




PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT
                 EXHIBIT "J"
 PLAINTIFF'S EXCEPTIONS TO DEFENDANT'S FIRST
AMENDED ORIGINAL ANSWER AND COUNTERCLAIM
                              CAUSE NO. 17-266141-13

PANINA, INC d/b/a                         §      IN THE 17th JUDICIAL
JA CONSTRUCTION SERVICES                  §
     Plaintiff                            §
                                          §
VS.                                       §     DISTRICT COURT OF
                                          §
HEATHER VILLAGE, LLC. ,D/B/A §
THE HEATHER VILLAGE          §
APARTMENTS                   §
     Defendant               §                  TARRANT COUNTY, TEXAS

      PLAINTIFF'S EXCEPTIONES TO DEFENDANT'S FIRST AMENDED
               ORIGINAL ANSWER AND COUNTERCLAIM

        NOW COMES, Plaintiff PANINA, INC d/b/a JA CONSTRUCTION

SERVICES and files its Exceptions to Defendant HEATHER VILLAGE, LLC. d/b/a

THE HEATHER VILLAGE. APARTMENTS' First Amended Original Answer and

Counterclaim and as grounds therefor would show unto the Court the following:

                              I.
  EXCEPTIONS TO DEFENDANT'S FIRST AMENDED ORIGINAL ANSWER
                     AND COUNTERCLAIM

      Plaintiff excepts to Defendant/Counter-Plaintiff s First Amended Original Answer

and Counterclaim which is not a properly sworn to and does not comply with Rules 93

(l0) and 185 of the Texas Rules of Civil Procedure. The Texas Supreme Court has

repeatedly stated held that an affidavit is insufficient where it is not based upon personal

knowledge. Rizk v. Financial Guardian Ins. Agency, Inc., 584 SW2d 860, 862 (Tex.

1979) Vance v. Holloway, 689 SW2d 403, 404 (Tex. 1985) and Humphreys v. Caldwell,

888 SW2d 469, 470 (Tex. 1994). A showing of personal knowledge in the affidavit being
                                                                                       11m

PLAINTIFF'S EXCEPTIONS TO DEFENDANT'S
FIRST AMENDED ORIGINAL ANSWER AND                                                 1'\(;1: I
COUNTERCLAIM
denying the account is required. Cantu v. Holiday Inns, Inc., 910 SW2d 113, 116 (Tex.

Civ. App.-Corpus Christi, 1995, no writ) It is also been held that a company officer who

does not have personal knowledge of certain matters cannot deny them under oath since

the matters would be hearsay to him. Gorrell v. Tide Prods, Inc., 532 SW2d 390, 395

(Tex. Civ. App-Amarillo, 1975, no writ) In the instant case, Defendant/Counter-

Plaintiff s First Amended Original Answer and Counterclaim is sworn to by David

Christiensen, who signed his affidavit as a representative for Heather Village LLC, is not

officer nor a person that purports to have personal knowledge as to whether the sworn

account is true or not, but simply says:

       "I have been granted to speak on the behalf of the shareholder(s)/owner(s) of
      Heather Village, LLC regarding the foregoing lawsuit. I am at least 18 years of
      age and of sound mind. I am personally acquainted with the facts alleged in the
      foregoing answer regarding the denial of the foregoing account, which is true and
      correct."

Mr. Christensen's statement in his affidavit does not demonstrate any basis for personal

knowledge but merely confirms that he is "acquainted with the facts alleged in the

foregoing answer regarding the denial of the foregoing account." The Texas Supreme

Court has repeatedly held that an affidavit that does not positively and unqualifiedly

represent the facts as disclosed in the affidavit to be true with in the affiant's personal

knowledge is legally insufficient as a matter of law. Brownlee v. Brownlee, 665 SW 2d

111, 112 currencies Tex. 1984); Burke v. Satterfield, 525 SW.2d 950, 955(Tex. 1975) In

a similar case, a stronger statement by an attorney for a party in a sworn account denial

that "I have personal knowledge of the facts stated herein", where nothing in the

PLAINTIFF'S EXCEPTIONS TO DEFENDANT'S
FIRST AMENDED ORIGINAL ANSWER AND                                                1',\(;El
COUNTERCLAIM
verification demonstrated a basis of the attorney's personal knowledge was held the

insufficient. Hinojosa Auto v. Finishmaster, _SW2d_, (03-08-00361-CV (Tex. Civ.

App-Austin, 12-12-2008). Another denial of a sworn account case, where the affiant was

an officer of the defendant company, the court said the representation did not mean that

he had sufficient personal knowledge of specific items and services alleged to have been

provided in this account and he could not properly denied them under oath since they

would be hearsay to him. Gorrell v. Tide Prods, Inc., supra at p. 395. Mr. Christensen

cannot deny the account of Panina, Inc. under oath, since he has no personal knowledge

other than hearsay information.

      For the foregoing reasons and established case law, Plaintiffs Exceptions to

Defendant/Counter-Plaintiffs First Amended Original Answer and Counterclaim as not a

properly sworn denial of the sworn account as not complying with Rules 93 (10) and 185

of the Texas Rules of Civil Procedure, should be in all things granted and declared to be

insufficient as a matter of law.


      WHEREFORE, PREMISES CONSIDERED, Plaintiff, PANINA requests that

Plaintiffs Exceptions to Defendant/Counter-Plaintiffs First Amended Original

Answer and Counterclaim be set for a hearing on the same date as the hearing on

Plaintiffs Motions For Summary Judgment, to wit: October 14, 2014, and that upon

completion of the hearing, the Court grant in all things to Defendant/Counter-Plaintiffs

First Amended Original Answer and Counterclaim which is not a properly sworn to

                                                                                        I I

PLAINTIFF'S EXCEPTIONS TO DEFENDANT'S
FIRST AMENDED ORIGINAL ANSWER AND                                                 I',\GFJ
COUNTERCLAIM
and does not comply with Rules 93 (l0) and 185 of the Texas Rules of Civil

Procedure and that the Court grant Plaintiff, PANINA such other and further relief, to

which Plaintiff may be justly entitled.


                                                   Respectfully submitted,
                                                   LAW        ICE OF JOHN P. KNOUSE

                                                                      -----_   .


                                                            • KNOUSE
                                                   State ar Number: 11624000
                                                   16     N. Dallas Parkway
                                                   B1 300
                                                /' D las, Texas 75248
                                                   (972) 380-1188 (Telephone)
                                                   (214) 367-5982 (Telecopier)
                                                   E-mail: knouselaw@yahoo.com
                                                   ATTORNEY FOR PLAINTIFF




                                CERTIFICATE OF SERVICE

       This is to certify that on this   l2th   day of October, 2014, a true and correct copy of the

foregoing was served upon Defendant by facsimile to (214) 812-0124 sent to Mr. R. Lane

Addison Esq., of Henley and Henley PC, Attorneys At Law, 3300 Oak Lawn Ave., Suite 700,

Dallas, Texas 75219, Attorneys of Record for Defendant as required by T.R.C.P. Rule 21a.
                                                            ~.,
                                                        ,         \




PLAINTIFF'S EXCEPTIONS TO DEFENDANT'S
                                                                                                 ;,..
FIRST AMENDED ORIGINAL ANSWER AND
COUNTERCLAIM
                                              FIAT

        IT   IS   ORDERED        that   the   hearing   on   Plaintiffs   Exceptions    to

 Defendant/Counter-Plaintiffs First Amended Original Answer and Counterclaim be

 in the same, are hereby set for hearing on the 14th day of October 2014, at 9: 15

 o'clock a.m., in the courtroom of the 17th District Court of Tarrant County, Texas

        SIGNED this _      day of _ _ _ _ _, 2014.




PLAINTIFF'S EXCEPTIONS TO DEFENDANT'S
FIRST AMENDED ORIGINAL ANSWER AND                                                 /'\GI: :'
COUNTERCLAIM
                EXHIBIT "K"
PLAINTIFF'S SUPPLEMENTAL BRIEF ON TRCP RULE
 193.6(a) PROVIDING MANDATORY EXCLUSION OF
     EVIDENCE BY UNIDENTIFIED WITNESSES
                             CAUSE NO. 17-266141-13

PANINA, INC d/b/a            §                IN THE 17th JUDICIAL
JA CONSTRUCTION SERVICES     §
     Plaintiff               §
                             §
Vs.                          §                DISTRICT COURT OF
                             §
HEATHER VILLAGE, LLC., D/B/A §
THE HEATHER VILLAGE          §
APARTMENTS                   §
     Defendant               §                TARRANT COUNTY, TEXAS


PLAINTIFF'S SUPPLEMENTAL BRIEF ON TRCP RULE 193.6(a) PROVIDING
MANDATORY EXCLUSION OF EVIDENCE BY UNIDENTIFIED WITNESSES

        NOW COMES, Plaintiff PAN INA, INC d/b/a JA CONSTRUCTION

SERVICES and files its supplemental brief on TRCP Rule 193.6(a) Providing For

Mandatory Exclusion of Evidence By Unidentified Witnesses, and would show unto the

Court the following:

   1. TRCP Rule 193.6(A) Provides For Mandatory Exclusion Of Evidence
      Presented By Witnesses Was Not Timely Identified.

      At the hearing held on last Friday, November 14, 2013, Plaintiff urged its

Objections and Motion To Strike to the evidence presented by the affidavits of David

Christensen and Ken Tola, who had never been designated as a "person with knowledge"

or as expert witnesses by Defendant in its Response To Disclosures. The court inquired

as to whether Plaintiff s counsel had a case on point, which is the sole reason for this

supplementary brief.




PLAINTIFF'S SUPPLEMENTAL BRIEF ON TRCP
RULE 193.6(A) REQUIRING MANADATORY                                            PAGE I
EXCLUSION OF EVIDENCE
         Texas Rule of Civil Procedure 193.6(a) is entitled "Failing to Timely Respond- Effect

on Trial" provides:

           (a) Exclusion of Evidence and Exceptions. A party who fails to make,
          amend, or supplement a discovery response in a timely manner may not
          introduce in evidence the material or information that was not timely
          disclosed, or offer the testimony of a witness (other than a named party)
          who was not timely identified, unless the court finds that:

           (1) there was good cause for the failure to timely make, amend, or supplement
          the discovery response; or

          (2) the failure to timely make, amend, or supplement the discovery response
          will not unfairly surprise or unfairly prejudice the other parties. (Emphasis
          Added)TEX.R. Civ. P. 193.6(a).

        The rule is mandatory, and the penalty, exclusion of evidence is automatic, absent

a showing of: (1) good cause or (2) lack of unfair surprise or (3) unfair prejudice. The

Texas Supreme Court held in its decision in Alvarado v. Farah Mfg. Co. Inc., 830

S.W.2d 911 (Tex. 1992):

          The salutary purpose of Rule 215(5) is to require complete responses to
          discovery so as to promote responsible assessment of settlement and prevent
          trial by ambush. See Clark,774 S.W.2d at 646; Gee, 765 S.W.2d at 396;
          Gutierrez, 729 S.W.2d at 693. The rule is mandatory, and its sole sanction
          - exclusion of evidence - is automatic, unless there is good cause to
          excuse its imposition. The good cause exception permits a trial court to excuse
          a failure to comply with discovery in difficult or impossible circumstances. See
          Clark, 774 S.W.2d at 647 (inability to locate witness despite good faith efforts
          or inability to anticipate use of witness' testimony at trial might support a
          finding of good cause). The trial court has discretion to determine whether the
          offering party has met his burden of showing good cause to admit the testimony;
          but the trial court has no discretion to admit testimony excluded by the rule
          without a showing of good cause.

The holding in Alvarado, supra, was consistent with pnor Supreme Court holdings in

Gutierrez v. Dallas Independent School Dist., 729 S.W.2d 691 (Tex. 1987) , in which the

Court said:


PLAINTIFF'S SUPPLEMENTAL BRIEF ON TRCP
RULE 193.6(A) REQUIRING MANADATORY                                                        PAGE 1
EXCLUSION OF EVIDENCE
           We hold that if a litigant propounds an improper interrogatory question, it is
           incumbent upon the party answering the request to object to the form of the
           question so that it may be reurged in the proper form. If the party answering
           the request does not object to the form of the question, then later tries to
           call a witness that was not revealed to the opposing party, the trial court
           should disallow the testimony of the witness unless good cause can be
           shown under the decisions in Yeldell v. Holiday Hills Retirement and
           Nursing Center, Inc., 701 S.W.2d 243, 247 (Tex. 1985), and Morrow v.
           H.E.B., Inc., 714 S.W.2d 297, 297-98 (Tex. 1986).

          Directly on point, the EI Paso Court of Appeals, citing the 2006 Dallas Court of

Appeals decision in Oscar Luis Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 860

(Tex.App.-Dallas 2006, no pet.), held exclusion of a non-identified witness in response to a

Request for Disclosures mandatory, on July 22, 2014, in Gibbs v. Bureaus Investment Group

Portfolio _SW3d_( NO. 14, LLC, 08-12-00330-CV) (Tex.App.-EI Paso 7-22-2014)

stating that:

           A party may obtain discovery of the name, address, and telephone number of
           persons with knowledge of relevant facts, and a brief statement of each
           identified person's connection with the case. TEX.R.CIV.P. 192.3(c);
           TEX.R.CIV.P. 194.2(e). When responding to written discovery, a party must make
           a complete response, and must amend or supplement the response if it later learns
           that the response is no longer complete and correct. TEX.R. ClV.P. 193.1,
           TEX.R.ClV.P. 193.5(a). Page 4 A party who fails to disclose information
           concerning a nonparty witness in response to a discovery request may not offer
           the witness's testimony unless the court finds that there was good cause for the
           failure to timely make, amend, or supplement the discovery response or the
           failure to make, amend, or supplement the discovery response will not unfairly
           surprise or unfairly prejudice the other parties. TEX.R.CIV.P. 193.6(a). The
           sanction for failure to comply with this rule is the "automatic and mandatory"
           exclusion from trial of the omitted evidence. Oscar Luis Lopez v. La Madeleine of
           Tex., Inc., 200 S.W.3d 854, 860 (Tex.App.-Dallas 2006, no pet.).


          For the reasons given above, the exclusion of summary judgment evidence submitted

through the affidavits David Christensen and Ken Tola is mandatory and is not discretionary.

There is no summary judgment
                                                                                            11

PLAINTIFF'S SUPPLEMENTAL BRIEF ON TRCP
RULE 193.6(A) REQUIRING MANADATORY
EXCLUSION OF EVIDENCE
There is no admissible summary judgment evidence which has been presented by the

Defendant in response to either the Plaintiffs Traditional Motion For Summary

Judgment are to Plaintiffs"No    Evidence~~Motion    For Summary      Judgment~   which should

be granted as a matter of law.

                                                             OF JOHN P. KNOUSE



                                             State B
                                             1697     . Dallas Parkway
                                             B g 0
                                               all ,Texas 75248
                                             (972) 380-1188 (Telephone)
                                             (214) 367-5982 (Telecopier)
                                             E-mail: knouselaw@yahoo.com
                                             ATTORNEY FOR PLAINTIFF


                               CERTIFICATE OF SERVICE

       This is to certify that on this 1t h day of November, 2014, a true and correct copy of the

foregoing was served upon Defendant by facsimile to (214) 812- 0124 sent to Mr. R. Lane

Addison Esq., of Henley and Henley PC, Attorneys At Law, 3300 Oak Lawn Ave., Suite 700,

Dallas, Texas 75219, Attorneys of Record for Defendant as required by T.R.C.P. Rule 21a.




PLAINTIFF'S SUPPLEMENTAL BRIEF ON TRCP
RULE 193.6(A) REQUIRING MANADATORY
EXCLUSION OF EVIDENCE
                 EXHIBIT "L"
COPIES OF CLERK'S RECORD OF DOCKET SHEET AND
              TRANSACTION LIST
        .
        r"
              \.
             ~~'."
                     /.
                      t

                                                                                                                                                  .,."
                                                                                                                                                 'i
                                                                                                                                                         •
                                                                                                                                                             I,'
                                          Civil Docket                          Discovery: 3                             017 -266141- '13
                                                                                                                1--                ---.
                                                                                                                        Ail U
Cause Of Action: CONTRACT, DEBT/CONTRACT                                                                        1
                                                                                                                1 "f>tj G;           A 1A?
                                                                                                                           ~ ;81 ( 3 u:;.. Jf7"
                                   NAMES Of PARTIES                              ATTORNEYS                      JAfz;Jr/tlp (= 4iu(14 ~.o;13~ ,
     Date Filed
     OS/29/2013
                                  PANINA, INC   ET AL      i
                                                           1

                                                               KNOUSE, JOHN P
                                                               16970 N DALLAS PKWY BLDG,' 300
                                                                                                                :
                                                                                                                1

                                                                                                                    1'0/20/  /J, p. . . /o!q 114 tl,0l.~
                                                                                                                      h,~ j ~~J1?fJ://>D 6r~/6~
                                                                                                                    If(%(.     1/JIi   I       '
                                                                                                                     q '/ ff~ ;f~;~ /Ol.t
                                                           1                                                    1
Jury                                                       1- DALLAS, TX 75248                                  1
Fee $                                   vs.                1 BarID:   11624000TX       Ph (972) 380-1188   PLTF I   ~~~ ~ /Y~ • " I~
                                                           1 LAW   OFFICE OF JOHN P KNOUSE                      I;') f7t 15" ~ p'" ,/ pI, S- ~ g.. 1~f0 ~
                                                           I                                                    r'       ~~~,. (lh-col44@J4   r
By                                                                        161 lEST. /?£--:J.q :../+             i~ ~ ~{;I Z~'- t*1a t I auz'?I;(h
                          r-------------------------~                        ~A.~LDER                           1
                                                                                DlSTRICTI~~                     1
 Date of Orders
                                                                          ~~g!                                 - Was Steno Used?
     ~/(~/(~
                          I                                                                                                               ~4'u
tJt:t- 09- ;LOll !.-s...
10 ... ' 3-2.Q1'f                                       ~ ~l.L.LA.., ~                                                                      ~
                                                                                                                                                              ~
                                                                                                                                            Jd." ~~/~
----,   tJ
        IlJ
        n
        11>
        o,...,
                 "
                                   prnttrim337281
                  TARRANT COUNTY DISTRICT CLERK'S OFFICE       page:    1
                    ALL IMAGED TRANSACTIONS FOR A CASE         Date: 12/29/2014
                                                               Time: 13:42
             Cause Number: 017-266141-13    Date Filed: OS/29/2013
   PANINA, INC ET AL                  v      HEATHER VILLAGE, LLC ET AL
                                       s
      Cause of Action: CONTRACT, DEBT/CONTRACT
      Case Status .... : PENDING
 Filemark    Description                                                Fee Total
OS/29/2013   PLTF ORIG PETITION                                   NI       249.00
OS/29/2013   Citation-ISSUED ON HEATHER VILLAGE LLC-On            NUl        8.00
08/09/2013   Citation Tr# 3 RET EXEC(HEATHER VILLAGE LLC) on 07    I         0.00
08/12/2013   DEFN'S ORIG ANSWER & COUNTER CLAIM                    I         0.00
08/16/2013   *ORDER SETTING SCHED CONF 9/18/13 3PM*                1M        0.00
09/06/2013   LETTER (W/ORDER)                                      I         0.00
09/09/2013   *AGREED DOCKET CONTROL ORDER TRIAL 4/28/14*           1M        0.00
02/12/2014   *ORDER RE: TRIAL SETTING ON 4/28/14*                  1M        0.00
04/03/2014   UNOPPOSED JOINT MOT FOR CONTINUANCE-NEED NEW ORDER    I         0.00
04/08/2014   LTR RE: PROPOSED ORDER ON UNOPPOSED JT MOT/CONT       I         0.00
04/08/2014   (PROPOSED) ORDER ON UNOPPOSED JT MOT FOR CONT         I         0.00
04/15/2014   MOT TO COMPEL-SET 5/2/14 @ 2PM NOT 4/16/14            I         0.00
04/15/2014   (PROPOSED) ORDER GRANTING MOT TO COMPEL               I         0.00
04/22/2014   NOT OF HRG 4/24/14 @ 2PM-MOT FOR CONTINUANCE          I         0.00
04/23/2014   LTR RE: HRG SET 5/2/14 2PM MOT TO COMPEL-NEED         I         0.00
04/23/2014   LTR RE: PROPOSED ORDER ON AGRD UNOPPOSED JT MOT       I         0.00
04/23/2014   LTR RE: ORDER ON AGRD UNOPPOSED JOINT MOT FOR CONT    I         0.00
04/23/2014   *ORDER ON AGRD UNOPPOSED MTN FOR CONT-TRL 10/20/14    1M        0.00
07/31/2014   *ORDER RE: TRIAL ON 10/20/14*                         1M        0.00
09/11/2014   MOT FOR WITHDRAWAL OF COUNSEL                         I         0.00
09/19/2014   (PROPSOED) ORDER GRANTING WiD OF COUNSEL              I         0.00
09/19/2014   PLTF & CDEF'S NO EVIDENCE MSJ                         I         0.00
09/19/2014   COVER LTR TO MSJ                                      I         0.00
09/26/2014   PLTFS TRAD MOT FOR SUMM/JUDGMENT                      I         0.00
09/26/2014   LTR RE: PLTS MOT FOR TRAD SUMM/JUDGMNT                I         0.00
09/26/2014   LTR RE: PLTFS MOT FOR TRAD S/JDGMNT SET HRG           I         0.00
09/30/2014   DEFN'S MTN FOR CONT                                   I         0.00
09/30/2014   PLTF AND COUNTER-DEFNS FIRST AGRD MTN FOR CONT        I         0.00
09/30/2014   LTR RE: PLTF AND CO-DEFNS FIRST AGRD MTN FOR CONT     I         0.00
09/30/2014   LTR RE: PLTF AND CO-DEFNS FIRST AGRD MTN FOR CONT     I         0.00
10/03/2014   LTR RE: PROPOSED AGRD ORDER                           I         0.00
10/03/2014   (PROPOSED) ORDR GRANTING AGRD MOTION FOR CONT OF      I         0.00
10/03/2014   LTR RE: FAXED PLTFS AND CO-DEFNS LIST OF PROPOSED     I         0.00
10/03/2014   PLTFS AND CO-DEFNS LIST OF PROPOSED WITNESSES AND     I         0.00
10/10/2014   COVER LTR                                             I         0.00
10/10/2014   (PROPOSED) AGD ORD GRANTING MTNS FOR CONT OF          I         0.00
10/13/2014   **AGRD ORDER GRANTING AGRD MTNS FOR CONTINUANCE OF    1M        0.00
10/20/2014   NOT OF HRG 11/14/14 @ 10AM-MSJ                       I          0.00
10/20/2014   COVER LTR                                            I          0.00
11/05/2014   DEFN'S 1ST AMD ORIG ANS/COUNTERCLAIM                 I          0.00
11/07/2014   DEFN'S RESP TO PLTF'S TRADITIONAL MSJ                I          0.00
11/07/2014   DEFN'S RESP TO PLTF'S NO-EVID MSJ                    I          0.00
11/07/2014   LTR FROM ATTY KNOUSE TO ATTY LANE ADDISON            I          0.00
11/12/2014   PLTF'S EXCEPTIONS TO DEFN'S 1ST AMND ORIG ANS AND    I          0.00
11/12/2014   CORRESPONDENCE LTR FROM ATTY KNOUSE TO ATTY ADDISO   I          0.00
11/12/2014   LTR FROM ATTY KNOUSE TO THE COURT                    I          0.00
11/12/2014   PLTF'S OBJ/REPLY TO DEFN'S RESP TO PLTF'S MTN FOR    I          0.00
11/12/2014   LTR FROM ATTY KNOUSE TO ATTY R LANE ADDISON          I          0.00
11/12/2014   LTR FROM ATTY KNOUSE TO THE COURT                    I          0.00
11/14/2014   LTR FROM ATTY KNOUSE TO THE COURT                    I          0.00
11/14/2014   ORD GRANT PLTF'S EXCEPT TO DEFN/COUNTER-PLTF'S       I          0.00
                                       page 1
                                          prnttrim337281
                          TARRANT COUNTY DISTRICT CLERK'S OFFICE           page:    2
                           ALL IMAGED TRANSACTIONS FOR A CASE             Date: 12/29/2014
                                                                          Time: 13:42
                     cause Number: 017-266141-13      Date Filed: OS/29/2013
           PANINA, INC ET AL                  v        HEATHER VILLAGE, LLC ET AL
                                                 s
              Cause of Action: CONTRACT, DEBT/CONTRACT
              Case Status .... : PENDING
         Filemark    Description                                                  Fee Total
        11/14/2014   DEPUTY REPORTER STATEMENT (CAROLIN PEEK)                I         0.00
        11/17/2014   PLTF'S SUPPL BRIEF ON TRCP RULE 193.6(A) PROVIDING      I         0.00
        11/17/2014   LTR FROM JOHN P KNOUSE TO MR LANE ADDISON               I         0.00
        11/17/2014   LTR FROM ATTY KNOUSE TO THE COURT                       I         0.00
        11/19/2014   * ORD DENYING PLTF'S MTN FOR SUMMARY JUDGMENT *         1M        0.00
        11/19/2014   * ORD DENYING PLTF'S MTN FOR NO EVID SUMM JDG *         1M        0.00
        11/25/2014   * ORDER REGARDING TRIAL SETTING ON 02/09/15             1M        0.00
Total Number of Records Printed:            58
-'i'-




                                                 page 2
                  EXHIBIT "M"
 CERTIFIED COPIES OF ORDERS DENYING PLAINTIFF'S
MOTION FOR TRADITIONAL SUMMARY JUDGMENT AND
 PLAINTIFF'S "NO EVIDENCE" MOTION FOR SUMMARY
                    JUDGMENT
                                                                         A CERTIFIEP_CprV /'
                                                                         A11'EST: IfL «:i. - _
                                                                                                (I
                                                                            THOMAS A. WILDER
                                                                                  DISTRICT CLERK
                                                                         TAR~,
                                                                           COUN ,'~~fh-L
                                                                         By:~/K2LlLUL
                                                                                          DE
                                     NO. 17-266141-13

PANINA, INC. DIB!A JA                        §    IN THE DISTRICT COURT
CONSTRUCTION SERVICES                        §
Plaintiff,                                   §
                                             §
V.                                           §    17THJUDICIALDISTRICT
                                             §
HEATHER VILLAGE, LLC DIB!A THE               §
HEATHER VILLAGE APT                          §
Defendant.                                   §    OF TARRANT COUNTY, TEXAS


                                 ORDER DENYING
                   PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

        On November 14, 2014, the Court considered the PLAINTIFF'S TRADITIONAL

MOTION FOR SUMMARY JUDGMENT, and the response thereto, and after reviewing the

evidence and hearing the arguments, the Court finds that the Motion should be DENIED.

        IT IS THEREFORE ORDERED that the Motion for Summary Judgment is denied and

this cause shall proceed to trial.
                                                                                                       /
        SIGNED on     NO"U"hul~'20~v~
                                          JUD              ING




                                                                  Court's Mlnutal 10 II
                                                                  Transaction # _....,;J......'-r
                                                                                               ____



                                                                           ·s
                                                                          ....:   ,   .   E-MAILED
                                                                                           !I-eZO-(~
                                         NO. 17-266141-13

PANINA, INC. D/B/A JA                             §   IN THE DISTRICT COURT
CONSTRUCTION SERVICES                             §
Plaintiff,                                        §
                                                  §
V.                                                §   17TH JUDICIAL DISTRICT
                                                  §
HEATHER VILLAGE, LLC D/B/A THE                    §
HEATHER VILLAGE APT                               §
Defendant.                                        §   OF TARRANT COUNTY, TEXAS

                                  ORDER DENYING
                              PLAINTIFF'S MOTION FOR
                          NO EVIDENCE SUMMARY JUDGMENT

       On November 14, 2014, the Court considered the PLAINTIFF'S MOTION FOR NO

EVIDENCE SUMMARY JUDGMENT, and after reviewing the evidence and hearing the

arguments, the Court finds that the Motion should be DENIED.

       IT IS THEREFORE ORDERED that the Motion for No Evidence Summary Judgment is

denied and this cause shall proceed to trial.

       SIGNED on      NOV"f1!6rd'tlO~~

                                                JUD     E   ING




                                                               Court's Mlnutal
                                                               ::.;Uisaction #   /0.'b

                                                                           E-MAILED
                                                                   ··:s     ;1/;2{}-/W
