                                                                                 ACCEPTED
                                                                              13-14-00428-cv
                                                             THIRTEENTH COURT OF APPEALS
                                                                    CORPUS CHRISTI, TEXAS
                                                                        5/15/2015 4:46:42 PM
                                                                           DORIAN RAMIREZ
                                                                                      CLERK

                        NO. 13-14-00428-CV
__________________________________________________________________
                                                     FILED IN
                                             13th COURT OF APPEALS
                    IN THE COURT OF APPEALS
                                          CORPUS CHRISTI/EDINBURG, TEXAS
                 THIRTEENTH DISTRICT OF TEXAS 5/15/2015 4:46:42 PM
              AT CORPUS CHRISTI / EDINBURG, TEXAS
                                               DORIAN E. RAMIREZ
                                                      Clerk
__________________________________________________________________

                     ALMA INVESTMENTS, INC.,
                                                        Appellant,
                                v.
           BAHIA MAR CO-OWNERS ASSOCIATION, INC.,
                                                      Appellee,
__________________________________________________________________

             On Appeal From the 197th Judicial District Court
                      of Cameron County, Texas
__________________________________________________________________

                       BRIEF OF APPELLEE
__________________________________________________________________

                                LANCE A. KIRBY
                                State Bar No. 00794096
                                lakirby@jgkl.com
                                PAOLA R. GUERRERO
                                State Bar No. 24038929
                                pguerrero@jgkl.com
                                JONES, GALLIGAN, KEY & LOZANO, L.L.P.
                                Town Center Tower, Suite 300
                                2300 West Pike Boulevard
                                Post Office Drawer 1247 (78599-1247)
                                Weslaco, Texas 78596
                                Telephone: (956) 968-5402
                                Telecopier: (956) 969-9402

                   ATTORNEYS FOR APPELLEE,
            BAHIA MAR CO-OWNERS ASSOCIATION, INC.

                  ORAL ARGUMENT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL

Appellant:                     Appellant’s Counsel:

Alma Investments, Inc.         Richard B. Phillips, Jr.
                               THOMPSON & KNIGHT, LLP
                               One Arts Plaza
                               1722 Routh Street, Suite 1500
                               Dallas, Texas 75201
                               Telephone: (214) 969-1700
                               Telecopier: (214) 969-1751
                               rich.phillips@tklaw.com

Appellee:                      Appellee’s Counsel:

Bahia Mar Co-Owners            Lance A. Kirby
      Association, Inc.        Paola R. Guerrero
                               JONES, GALLIGAN, KEY & LOZANO, L.L.P.
                               Town Center Tower, Suite 300
                               2300 West Pike Boulevard
                               Post Office Drawer 1247
                               Weslaco, Texas 78599
                               Telephone: (956) 968-5402
                               Telecopier: (956) 969-9402
                               lakirby@jgkl.com
                               pguerrero@jgkl.com




                                 ii
                                         TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................................ ii

Table of Contents ............................................................................................ iii, iv, v

Index of Authorities .............................................................................. vi, vii, viii, xi

Statement of the Case ................................................................................................ x

Statement on Record References .............................................................................xi

Reply to Appellant’s Issues Presented ................................................................... xii

Statement of Facts ..................................................................................................... 1

Summary of the Argument ........................................................................................ 9

Argument and Authorities ....................................................................................... 11

Reply to Appellant’s Issue No. 1 ............................................................................. 11

         A trial court’s ruling on a motion for sanctions is reviewable by an
         appellate court for abuse of discretion. The trial court did not abuse its
         discretion since it had the power to make the orders that Appellant
         failed to follow and because the death penalty sanctions were clearly
         justified as it was apparent that no lesser sanctions would promote
         Appellant’s compliance with the Texas Rules of Civil Procedure. .............. 11

         A.       The two deposition orders cannot serve as a basis to attack the
                  death penalty sanctions. ...................................................................... 12

                  1.        Appellant waived its right to object to the depositions. ........... 12

                  2.        The two deposition orders were valid orders. ........................... 14

         B.       The trial court did not commit error by ordering the death
                  penalty sanctions because it considered the factors enumerated


                                                            iii
                   by the Texas Supreme Court to determine that the sanctions
                   were warranted. ................................................................................... 20

                   1.        The death penalty sanctions directly relate to the
                             offensive conduct committed by Appellant. ............................ 21

                   2.        The death penalty sanctions were not excessive relative
                             to Appellant’s wrongful conduct because the trial court
                             properly considered and ordered lesser sanctions prior to
                             imposing the death penalty sanctions. ..................................... 24

                   3.        The death penalty sanction was appropriate because
                             Appellant’s conduct justified the presumption that its
                             defenses lacked merit. ............................................................... 29

Reply to Appellant’s Issue No. 2 ............................................................................ 31

         Appellant’s Issue 2 should be overruled because the trial court did not
         commit error by awarding attorney fees since the declaratory
         judgment action requested independent relief and since the request for
         attorney fees was not made moot by the sale of the property. ..................... 31

Reply to Appellant’s Issue No. 3 ............................................................................ 38

         Whether the trial court erred by awarding prejudgment interest on the
         attorney fee award is an issue of first impression in the Thirteenth
         Court of Appeals. Neither the Texas Supreme Court nor this Court
         have specifically determined whether an award of prejudgment
         interest on attorney fees that have been paid to the date of judgment is
         proper. ........................................................................................................... 38

Conclusion .............................................................................................................. 41

Prayer ....................................................................................................................... 41

Certificate of Compliance ....................................................................................... 42

Certificate of Service .............................................................................................. 43



                                                               iv
Appendix

     1 — Commercial Contract dated November 20, 2009 ............................ Tab 1

     2 — Order on Plaintiff’s Motion to Compel
          (Supp. CR 271) ............................................................................. Tab 2

     3 — Order Partially Granting Plaintiff’s Motion for Audit
          (CR 29) ......................................................................................... Tab 3

     4 — Order Granting Alternative Venue and Method of Depositions
          (CR 27) .......................................................................................... Tab 4

     5 — Order
          (CR 30) .......................................................................................... Tab 5

     6 — Order
          (Supp. 281-282) ............................................................................. Tab 6

     7 — Plaintiff’s Original Petition & Request for Disclosure ................... Tab 7




                                                      v
                                     INDEX OF AUTHORITIES

         Cases                                                                                                 Page

A.V.I, Inc. v. Heathington, 842 S.W.2d 712
       (Tex. App. – Amarillo 1992, writ denied) .................................................... 39

Allright, Inc. v. Van Scoyoc, 784 S.W.2d 942
      (Tex. App. – Houston [14th Dist.] 1990, no writ) ........................................ 32

Allstate Ins. Co. v. Hallman, 159 S.W.3d 640
       (Tex. 2005) .............................................................................................35, 36

Allstate Petrol. Operations, Inc. v. Morgan, No. 11-96-013-CV,
       1996 WL 33674377, at *3 (Tex. App. – Eastland
       Mar. 21, 1996, no writ) ................................................................................. 17

Alma Invs., Inc. v. Bahia Mar Co-Owners Ass'n, 999 S.W.2d 820
      (Tex. App. – Corpus Christi 1999, pet. denied) ............................................. 1

In re Ampace Freightliners, Inc., No. 05-00-00371-CV, 2000 WL 354775
       (Tex. App. – Dallas, April 7, 2000, no pet.) ................................................. 12

American Flood Research, Inc. v. Jones, 192 S.W.3d 581
     (Tex. 2006) ................................................................................................... 13

Berry Property Management Inc. v. Bliskey, 850 S.W.2d 644
      (Tex. App. – Corpus Christ 1993, writ dism’d by agr.) .........................10, 40

Bohmfalk v. Linwood, 742 S.W.2d 518
     (Tex. App. – Dallas 1987, no writ) ............................................................... 12

Camarena v. Texas Emp’t Comm’n, 754 S.W.2d 149
    (Tex. 1998) .............................................................................................35, 36

Carbona v. CH Med., Inc., 266 S.W.3d 675
     (Tex. App. – Dallas, 2008, no pet.) .............................................................. 39

Cavnar v. Quality Control Parking Inc., 696 S.W.2d 549

                                                          vi
         (Tex. 1985) ................................................................................................... 38

Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 850
      (Tex. 1992) ................................................................................................... 28

Cire v. Cummings, 134 S.W.3d 835
      (Tex. 2004) ...........................................................................11, 26, 27, 28, 30

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238
    (Tex. 1985) ................................................................................................... 11

Etan Industries, Inc. v. Lehmann, 359 S.W.3d 620
      (Tex. 2011) .......................................................................................34, 36, 37

Finley Oilwell Serv., Inc. v. Retamco Operating, Inc., 248 S.W.3d 314
      (Tex. App. – San Antonio 2007, pet. denied) .........................................11, 20

First State Bank, Bishop v. Cappell & Handy, P.C., 729 S.W.2d 917
       (Tex. App. – Corpus Christi 1987, writ ref’d n.r.e.) ..................14, 15, 19, 20

Fisher v. Cont’l Ill. Nat’l Bank & Trust Co. of Chi., 424 S.W.2d 664
      (Tex. Civ. App. – Houston [14th Dist.] 1968, writ ref’d n.r.e.) ................... 14

Hansen v. JP Morgan Chase Bank, N.A., 346 S.W.3d 769
     (Tex. App. – Dallas 2011, no pet.) .............................................32, 35, 36, 37

Hartford Casualty Insurance Co.v. Budget Rent-A-Car Systems, Inc.,
      796 S.W.2d 763 ( Tex. App. – Dallas 1990, writ denied) ......................36, 37

Imagine Auto. Grp. v. Boardwalk Motor Cars, Ltd., 430 S.W.3d 620
     (Tex. App. – Dallas 2014, pet. filed) ............................................................ 20

Kidd Pipeline & Specialties, Inc. v. Campagna, 712 S.W.2d 238
      (Tex. App. – Houston [14th Dist.] 1986, writ ref’d n.r.e.) .....................14, 19

MBM Financial Corp. v. Woodlands Operating Co, 292 S.W.3d 660
    (Tex. 2009) ................................................................................................... 34

MMR Intern. Ltd. v. Waller Marine, Inc., CIV.A. H-11-1188,
    2013 WL 6491186, at *12 (S.D. Tex. Dec. 10, 2013) ................................. 38

                                                           vii
Marrs & Smith P’ship. v. D.K. Boyd Oil & Gas Co., Inc., 223 S.W.3d 1
     (Tex. App. – El Paso 2005, pet. denied) ....................................................... 39

In re Nalle Family Limited Partnership, 406 S.W.3d 168
       (Tex. 2013) ................................................................................................... 40

Nova Cas. Co. v. Turner Construction Co., 335 S.W.3d 698
     (Tex. App. – Houston [14th Dist.] 2011, no pet.) ......................................... 38

Response Time v. Sterling Commerce (N. Am.), 95 S.W.3d 656
     (Tex. App. – Dallas 2002, no pet.) ............................................................... 20

Sanus/N.Y. Life Health Plan, Inc. v. Dube-Seybold-Sutherland Mgmt., Inc.,
      837 S.W.2d 191 (Tex. App. – Houston [1st Dist.] 1992, no writ) ............... 17

Thompson v. Dart, 746 S.W.2d 821
     (Tex. App. – San Antonio 1988, no writ) ..................................................... 14

TransAmerican Natural Gas Corporation v. Powell, 811 S.W.2d 913
     (Tex. 1991) .......................................................................................12, 28, 30

Universal Printing Co. v. Premier Victorian Homes, Inc. 73 S.W.3d 283
     (Tex. App. – Houston [1st Dist.] 2001, pet. denied) .................................. 34

Weaver v. AIDS Services of Austin, Inc., 835 S.W.2d 798
     (Tex. App. – Austin 1992, writ denied) ........................................................ 34

Williams v. Colthurst, 253 S.W.3d 353
      (Tex. App. – Eastland 2008, no pet) ............................................................. 39

Statutory Authority

Declaratory Judgment Act ...............................................................9, 10, 35, 36, 37

Texas Civil Practice & Remedies Code

         Section 37.009 ............................................................................................. 32




                                                          viii
Texas Property Code

      Section 81.209 ........................................................................................2, 22

      Section 81.209(c) ......................................................................................... 22

      Section 82.057(a) ......................................................................................... 37

Rules and Regulations

Texas Rules of Civil Procedure

      Rule 176.3 ..............................................................................................16, 18

      Rule 192.6(a) ............................................................................................... 12

      Rule 199.3 ..............................................................................................16, 18

      Rule 199.2(b)(1) .......................................................................................... 15

      Rule 199.2(b)(2) .......................................................................................... 16

      Rule 199.2(b)(2)(B) ...............................................................................15, 18

      Rule 199.2(b)(2)(C) ...............................................................................15, 16

      Rule 199.2(b)(2)(E) ...............................................................................15, 16

      Rule 199.4 ..............................................................................................12, 13




                                                        ix
                        STATEMENT OF THE CASE

Nature of the case.     This dispute involves Alma Investments, Inc.’s
                        (hereinafter “Alma” or “Appellant”) inappropriate
                        collection and use of maintenance fees, inappropriate
                        charging of management fees, and its breach of the
                        declaration restrictions for the Bahia Mar Resort. (Supp.
                        CR 103-104.)

Course of Proceedings. The trial court imposed death penalty sanctions against
                       Appellant by striking its answer and all of its defenses,
                       and entering a default judgment against it as to liability
                       due to its violation of three discovery orders. (CR 173-
                       175.) Two of the orders violated were sanctions orders
                       pertaining to the depositions of Appellant’s sole owner
                       and sole officers. (CR 30; CR 66-68; Supp. CR 281-282;
                       App. 5, 6.) The third was an order for production of
                       accounting records, audit of Appellant’s financial records
                       and an order for a monetary deposit. (CR 29; App. 2, 3.)

Trial Court Disposition. After a jury trial on damages, Bahia Mar Co-Owner’s
                         Association, Inc. (hereinafter “Bahia Mar” or
                         “Appellee”) was awarded actual damages and
                         prejudgment interest for Appellant’s breach of fiduciary
                         duty, attorney fees under the Declaratory Judgment Act,
                         and prejudgment interest on the attorney fees paid up to
                         the date of judgment. (2d Supp. CR 4.)




                                       x
                 STATEMENT ON RECORD REFERENCES

      Appellant is Alma Investments, Inc. (hereinafter “Alma” or “Appellant”).

Appellee is Bahia Mar Co-Owners Association, Inc. (hereinafter “Bahia Mar” or

“Appellee”). The record on this appeal consists of a Clerk’s Record, Supplemental

Clerk’s Record, Second Supplemental Clerk’s Record, Reporter’s Record, and

Supplemental Reporter’s Record. The Clerk’s Record will be hereinafter referred

to as “CR [page]”. The Supplemental Clerk’s Record will be hereinafter referred

to as “Supp. CR [page]”.     The Second Supplemental Clerk’s Record will be

hereinafter referred to as “2d Supp. CR [page]”. The Reporter’s Record will

hereinafter be referred to as “[volume] RR [page]”. The Supplemental Reporter’s

Record will hereinafter be referred to as “[volume] Supp. RR [page]”. References

to Appellee’s appendix will be designated as “App. [tab]”.




                                        xi
       REPLY TO APPELLANT’S ISSUES PRESENTED

               REPLY TO APPELLANT’S ISSUE 1

        A trial court’s ruling on a motion for sanctions is reviewable by
an appellate court for abuse of discretion. The trial court did not abuse
its discretion since it had the power to make the orders that Appellant
failed to follow and because the death penalty sanctions were clearly
justified as it was apparent that no lesser sanctions would promote
Appellant’s compliance with the Texas Rules of Civil Procedure.
Appellant’s Issue 1 should be overruled.

               REPLY TO APPELLANT’S ISSUE 2

       Appellant’s Issue 2 should be overruled because the trial court
did not commit error by awarding attorney fees since the declaratory
judgment action requested independent relief and since the request for
attorney fees was not made moot by the sale of the property.

               REPLY TO APPELLANT’S ISSUE 3

      Whether the trial court erred by awarding prejudgment interest
on the attorney fee award is an issue of first impression in the
Thirteenth Court of Appeals. Neither the Texas Supreme Court nor
this Court have specifically determined whether an award of
prejudgment interest on attorney fees that have been paid to the date
of judgment is proper.




                                   xii
                              STATEMENT OF FACTS

       This case is not the first case between these same parties to reach the court

of appeals.1 The first case involved the issue of whether Alma could own numerous

condominium units and exempt itself from paying maintenance fees for upkeep of

the common facilities while charging all of the other condominium owners. This

court held that Alma must pay its share of the fees and that it was against public

policy to allow Alma to exempt itself. Alma never followed the court’s decision

and operated the Bahia Mar Maintenance Association improperly which resulted in

the filing of this suit.

       This appeal arises out of a lawsuit filed on July 20, 2006, in the 197th

Judicial District of Cameron County by the co-owner’s association of the Bahia

Mar Resort against the Bahia Mar Maintenance Association (hereinafter

“BMMA”) and Appellant. (CR 22.) Appellant is the former owner of both the

Resort and of BMMA. (Supp. CR 103; Supp. CR 109; Supp. CR 239.) The basis of

the lawsuit involved Appellant’s inappropriate collection and use of the

maintenance fees paid by each co-owner’s association member to BMMA and

Appellant’s breach of the declaration restrictions. (Supp. CR 103-104.)

Specifically, Bahia Mar alleged that Appellant and BMMA failed to properly

maintain, manage and insure the Bahia Mar Resort common facilities, in addition

1
 The first case between these parties was Alma Invs., Inc. v. Bahia Mar Co-Owners Ass'n, 999
S.W.2d 820, 822 (Tex. App. – Corpus Christi 1999, pet. denied).


                                             1
to commingling funds and expenses between them and charging fees for the

purported services provided. (Supp. CR 110-112.) Bahia Mar further alleged that

Alma failed to allow the owners to vote on officers and directors as required by

Texas law. (Supp. CR 112-113.) While the underlying lawsuit was pending,

Appellant sold the Bahia Mar Resort for $10,000,000.00 in late 2009 early 2010.

(App. 1; 4 Supp RR 22-23.)

      During the litigation, Bahia Mar sought an audit of the financial records of

BMMA. (Supp. CR 315.) On January 19, 2010, the trial court ordered an audit

under Texas Property Code § 81.209 for the years 2000-2008. (Supp. CR 318.)

Appellant and BMMA ignored the order which required Bahia Mar to compel the

audit. (Supp. CR 271.) After a hearing, Alma was ordered to deposit $10,000.00

into the registry of the court and to produce all books and records for BMMA for

the period of 2004-2008 to the auditor by April 30, 2010. (App. 2; Supp. CR 271.)

      The audit was first conducted for the year 2004 and the results were

provided to Bahia Mar on December 9, 2011. (Supp. CR 313.) Amongst other

things, the audit revealed serious problems with the booking and accounting of

BMMA and revealed that Alma had not fulfilled its fiduciary obligations due to the

lack of proper documentation, the absence of an annual audit and the lack of timely

accountability to the owners. (Supp. CR 335-336.) Alma failed to comply with the

court’s order to turn over the accounting records which made it impossible to



                                        2
conduct a true audit. (Supp. CR 322-323.) The auditor for the 2004 audit stated, in

part, that:

       ALMA did an inadequate job of managing the financial, budgeting
       and accounting matters of BMMA. . . .Based on the results of our
       special audit procedures, the lack of proper documentation for the
       expenses, the absence of an annual audit, and the lack of timely
       accountability to the unit owners, we do not believe Alma fulfilled its
       fiduciary obligations.
(Supp. CR 335.) Based on the results of this audit, Bahia Mar filed a Motion to

Enforce Order Granting Plaintiff’s Motion for Audit, seeking the audit of the

records for the other years as had been previously ordered in January 2010. (Supp.

CR 312.) On April 11, 2012, the trial court granted Bahia Mar’s motion and

ordered the financial books and records of BMMA to be audited for the year 2005.

(CR 29; App. 3.) In addition, Appellant was ordered to deposit $20,000.00 with the

registry of the court to pay the court appointed auditor. (CR 29; App. 3.) Appellant

failed and refused to comply with this order. More than a year after the date for

compliance, their counsel claimed (without providing any evidence) that it did not

have the funds to make the deposit. (2 Supp. RR 10-11; 5 Supp. RR 19.) This

claim is highly suspect considering the property sold for $10,000,000.00, most of

which went directly to Alma related to its 501(c)(3) sale, as noted on the settlement

statement. (App. 1.) Alma never challenged the court order that required an audit

and never took any action to comply with it. In addition to failing to produce

documentation related to the audit and failing to pay for the audit, Alma refused to


                                         3
make its corporate representatives, sole owner and officers available for

deposition.

      While Alma was ignoring the audit order, Bahia Mar attempted to depose

Alma’s sole owner, Kahil Pakideh and his son Martin Pakideh who was the only

other corporate officer. (CR 27; CR 30; Supp. CR 281-282; App. 4, 5, 6.) These

depositions are the subject of three separate orders signed by the trial court. (CR

27; CR 30; Supp. CR 281-282.; App. 4, 5, 6.)

      The first order was entered on December 6, 2011 and granted an alternative

venue and method of taking the depositions. (CR 27; App. 4.) As stated therein, the

depositions of the Pakidehs were to be taken “in the place of each deponent’s

residency, or via telephone or video conferencing technology acceptable to the

Court.” (CR 27; App. 4.) Based on this order, counsel for Bahia Mar made

numerous efforts to schedule the depositions. (Supp. CR 346; Supp. CR 348; Supp.

CR 350-351.) However, Alma refused to cooperate in getting the depositions

scheduled using alternate means. (Supp. CR 346; Supp. CR 348; Supp. CR 350-

351; 2 Supp. RR 22-23.)

      On August 23, 2013, a status hearing was held at which the trial court had

discussion pertaining to Appellant’s failure to comply with the December 6th

discovery order and Bahia Mar’s need for the depositions. (2 Supp. RR 21-30.)

Alma had its in-house counsel, Josh Farr present for the hearing as a representative



                                         4
of Alma, but not as its counsel. (2 Supp. RR 5.) Counsel for Bahia Mar informed

the trial court that the Pakidehs’ depositions were necessary because the corporate

representative that had previously been produced by Alma did not have knowledge

of events prior to 2008. (2 Supp. RR 25-26.) Bahia Mar’s counsel additionally

stated that he would be willing to depose the witnesses at the Brownsville,

Cameron County office of counsel for Klas Management, if Mr. Sorola (who was

representing Klas Management) was ultimately retained by Alma. (2 Supp. RR

26.) The depositions of the Pakidehs were being discussed as corporate

representative depositions since the previous corporate representatives had no

knowledge of Alma’s operations prior to 2008. (2 Supp. RR 22.)

       At the status hearing, the trial court ordered the depositions of Appellant’s

two owners as corporate representatives to be held in Hidalgo County, essentially

as sanctions for Appellant’s failure to cooperate in working out video conferencing

for the depositions.2 (2 Supp. RR 26-30.) This second order was signed on

September 6, 2012 (although orally ordered on August 23, 2012), and stated that

the depositions of Kahil Pakideh and Martin Pakideh were to be held on September

28, 2012 at the law offices of Jones, Galligan, Key & Lozano, L.L.P., in Weslaco,

Texas, unless agreed otherwise. (2 Supp. RR 29-30; CR 30; App. 5.) After

2
  The trial judge emphasized that the order was necessary because the parties had not been able
to come to an agreement in spite of the court’s attempt to accommodate Appellant as best as it
could. (2 Supp. RR 29-30.)


                                              5
ordering the depositions, the court took up the motion to withdraw filed by Kevin

Landau as to his representation of Alma and granted his withdrawal. (2 Supp. RR

37-38.) Alma was present for the hearing through its in-house counsel Josh Farr,

and thus, received notice of the court’s order. (2 Supp. RR 35-37.) During the

hearing, the trial court also imposed a date by which Appellant was to hire new

counsel within 10 days of August 23, 2012. (2 Supp. RR 37-38.) Appellant failed

to hire new counsel until three weeks after the date it was ordered to do so even

though in-house counsel was present for the court’s order. (CR 32; CR 67.)

Additionally, appellant failed to tender the witnesses for the September 28, 2012

depositions. (CR 67.) Furthermore, appellant failed to object to the depositions or

file a motion to quash the depositions that were scheduled for September 28, 2012.

      After the Pakidehs failed to appear for their depositions, Plaintiff, on

October   25,   2012,   noticed   the   depositions   of   Defendant’s   Corporate

Representatives Kahil Pakideh and Martin Pakideh. (CR 56-58; CR 63-65.) That

same day, Appellant filed its Motion to Quash Plaintiff’s Notice of Oral Deposition

of Defendant’s Corporate Representative Kahil Pakideh and its Motion to Quash

Plaintiff’s Notice of Oral Deposition of Defendant’s Corporate Representative

Martin Pakideh. (CR 52-58; CR 59-65.) In response, Bahia Mar filed a Motion for

Contempt and Motion for Sanctions on October 30, 2012, for violation of the

previous deposition order and violation of the audit order. (CR 66.)



                                         6
      On November 13, 2012, Appellant filed affidavits on behalf of Martin

Pakideh and Kahil Pakideh in support of the October 25th motions to quash their

depositions. (CR 77-80; CR 81-84.) The affidavits were never offered into

evidence nor did the court take judicial notice of them. Thereafter, on November

19, 2012, Plaintiff noticed a third corporate representative (Kahil and Martin

Pakideh being the first two) deposition without naming the person. (CR 88-91.) As

a result, Alma filed another motion to quash the third corporate representative

deposition on November 27, 2012. (CR 85-95.) Bahia Mar filed its Plaintiff’s

Response to Defendant’s Motion to Quash Depositions on December 11, 2012,

stating that Alma’s corporate representative had never been deposed on the topics

requested by the November 19th deposition notice and that the owner(s) of Alma

were the only persons with knowledge of when and why the company had been

dissolved. (CR 96-97.)

      On December 18, 2012, the court signed the third deposition order which

stated that the depositions of Kahil Pakideh and Martin Pakideh were to be held on

January 25, 2013, again at the law offices of Jones, Galligan, Key & Lozano,

L.L.P. (Supp. CR 281-282; App. 6.) The trial court explicitly found at the hearing

on the matter that the Pakidehs transacted business in Cameron County and could

be ordered to be deposed. (4 Supp. RR 42-43.) The trial court denied Alma’s




                                        7
motions to quash the depositions.3 (Supp. CR 281-282; App. 6.) Nevertheless,

Appellant did not make its witnesses available for their depositions as ordered. (CR

152; CR 155.)

       On January 30, 2013, Plaintiff filed its First Amended Motion for Contempt

and Motion for Sanctions for Violation of Court Orders, complaining about

Appellant’s failure to comply with the court’s two discovery sanctions orders and

the audit order. (CR 131.) On May 16, 2013, the trial court granted the motion and

entered the Order on Plaintiff’s Motion for Contempt and Motion for Sanctions

(the “Sanctions Order”). (CR 173-175.) By the Sanctions Order, the trial court

imposed death penalty sanctions against Alma, striking its answer and all of its

defenses and entering a default judgment against it as to liability on Bahia Mar’s

remaining claims of breach of fiduciary duty and declaratory judgment. (CR 173.)

       Alma did not challenge the Sanctions Order, and trial on the issue of

damages was begun on January 21, 2014. (1 RR 3.) On the date of trial, however,

Alma filed an Original Writ of Mandamus and Motion for Emergency Relief in

this Court, complaining about the death penalty sanctions. The writ and motion

were denied that same day by Justices Rodriguez, Garza and Perkes in a per curiam

opinion. The next day, after trial had commenced, Alma filed a Petition for Writ of


3
  A review of the transcript of the December 13, 2012 hearing shows that Appellant neither
offered the Pakidehs’ affidavits into evidence, nor did the trial court take judicial notice of them.
(2 Supp. RR 1-40.)


                                                 8
Mandamus and Motion for Emergency Relief with the Texas Supreme Court. The

Court denied the petition for writ and motion on February 28, 2014.

      The trial court entered judgment for Bahia Mar after the jury trial on

damages. (2d Supp. CR 4.) Bahia Mar was awarded actual damages and

prejudgment interest for Alma’s breach of fiduciary duty, attorney fees under the

Declaratory Judgment Act, and prejudgment interest on the attorney fees paid by

Bahia Mar up to the date of judgment. (2d Supp. CR 4.) Thereafter, Alma’s second

motion for new trial was denied and this appeal followed. (CR 238.)

                          SUMMARY OF ARGUMENT

      Appellant’s violation of the audit order and deposition orders justified the

death penalty sanctions entered by the trial court. Alma violated the trial court’s

April 2012 order by failing to produce its accounting records and by failing to

deposit $20,000 with the registry of the court so that a court supervised audit of its

financial records could be conducted. Alma did not challenge the order nor did it

explain why it failed to comply. In addition, Alma violated the trial court’s

September 2012 and December 2012 discovery orders by failing to make its

witnesses available for deposition in Hidalgo County, even though these orders

were entered as sanctions for its failure to comply with a discovery order that

allowed the depositions to be taken at their convenience. Prior to the entry of the

Sanctions Order, these depositions and audit were the subject and cause of



                                          9
numerous delays, motions to compel, motions for continuance, and hearings.

(Supp. CR 338; Supp. CR 356; 2 Supp. RR 21-31; 3 Supp. RR 39-65.) Based on

Appellant’s flagrant disregard for the trial court’s orders and the Rules of

Procedure, in addition to thwarting Bahia Mar’s attempts at establishing its liability

and damages, the trial court’s imposition of the death penalty sanctions was “just.”

      The attorney fees awarded to Bahia Mar under the Declaratory Judgment

Act (hereinafter “DJA”) are appropriate. Bahia Mar asserts that the award of

attorney fees by the trial court was proper, as the death penalty sanctions

conclusively established Appellant’s liability under the DJA prior to the award,

and the dispute over the attorney fees was a live controversy before the trial court.

The DJA was not used as a vehicle to obtain attorney fees. The DJA action sought

different relief than the relief sought under other causes of action. Whether the

award of prejudgment interest of the attorney fees that had been paid (as opposed

to awards in contingency cases) to the date of judgment should be upheld,

however, is an issue of first impression in the Thirteenth Court of Appeals. While

other appellate courts in this State have found awards of prejudgment interest on

such attorney fees to be proper, neither this Court’s decision in Berry Property

Management Inc. v. Bliskey, 850 S.W.2d 644 (Tex. App. – Corpus Christ 1993,

writ dism’d by agr.), nor decisions made by the Texas Supreme Court directly

address this issue.



                                         10
                      ARGUMENT AND AUTHORITIES

                     REPLY TO APPELLANT’S ISSUE 1

              A trial court’s ruling on a motion for sanctions is reviewable by
      an appellate court for abuse of discretion. The trial court did not abuse
      its discretion since it had the power to make the orders that Appellant
      failed to follow and because the death penalty sanctions were clearly
      justified as it was apparent that no lesser sanctions would promote
      Appellant’s compliance with the Texas Rules of Civil Procedure.
      Appellant’s Issue 1 should be overruled.

      Whether a trial court abused its discretion is not based on whether the

reviewing court believes the facts present an appropriate case for the trial court’s

action, but “whether the court acted without reference to any guiding rules and

principles.” Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004) (quoting Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)). When

reviewing a trial court’s imposition of sanctions, appellate courts view conflicts in

the light most favorable to the trial court’s ruling, and resolve all inferences in

favor of the trial court’s judgment. Finley Oilwell Serv., Inc. v. Retamco

Operating, Inc., 248 S.W.3d 314, 319 (Tex. App. – San Antonio 2007, pet.

denied). Reversal of a trial court’s ruling on a motion for sanctions is warranted

only if the court’s ruling was arbitrary or unreasonable. Cire, 134 S.W.3d at 838.

      The record in this case demonstrates that Appellant’s wrongful conduct and

flagrant disregard for the trial court’s orders during the course of the litigation

warranted the death penalty sanctions. Moreover, the record demonstrates that the



                                         11
trial court properly considered the factors enumerated by the Texas Supreme Court

in TransAmerican Natural Gas Corporation v. Powell, 811 S.W.2d 913 (Tex.

1991) when ordering the sanctions. As a result, the trial court did not abuse its

discretion in imposing the death-penalty sanctions against Appellant.

A.    The two deposition orders cannot serve as a basis to attack the death penalty
      sanctions.

      Appellant’s attack of the deposition orders as a means to challenge the death

penalty sanctions is meritless. Contrary to Appellant’s argument, the two orders

mandating the depositions to be held in Hidalgo County were proper orders.

Furthermore, by failing to object to the depositions ordered at the August 23, 2012,

hearing, Appellant waived any objection to the time and place of the depositions

and cannot now complain.

      1.    Appellant waived its right to object to the depositions.

      To object to the time and place designated for an oral deposition, the party or

witness must file a motion for protective order or a motion to quash the notice of

deposition. Tex. R. Civ. P. 192.6(a), 199.4. A party objecting to the deposition has

a duty to object as soon as possible and the objection must be made before the date

and time of the deposition. Bohmfalk v. Linwood, 742 S.W.2d 518, 520 (Tex. App.

– Dallas 1987, no writ) (holding that the witness waived any objection to the

deposition by failing to object prior to the date of the deposition); In re Ampace



                                         12
Freightliners, Inc., No. 05-00-00371-CV, 2000 WL 354775 (Tex. App. – Dallas,

April 7, 2000, no pet.) (not designated for publication) (concluding that the party

waived any objection to the deposition notice or duces tecum because it was

required to raise any objection at or before the time of the deposition). If the

motion is filed by the third business day after service of the notice of deposition, an

objection to the time and place of the deposition stays the oral deposition until the

motion can be determined. Tex. R. Civ. P. 199.4

       Here, the trial court ordered the date and place of the Pakidehs’ depositions

during the status hearing held on August 23, 2012, at which in-house counsel for

Appellant was present. (2 Supp. RR 26-27.) The order that was signed on

September 6, 2012, specified that the depositions were to be held on September 28,

2012, at 9:00 am at the law offices of Jones, Galligan, Key & Lozano, L.L.P., in

Weslaco, Texas, unless agreed otherwise. (CR 30; App. 5.) Appellant did not

object to the time or place of these depositions as allowed by the Rules, and chose

instead to simply ignore the trial court’s order. See American Flood Research, Inc.

v. Jones, 192 S.W.3d 581, 584 (Tex. 2006) (noting that counsel should have moved

to stay the depositions as allowed by the Rules and holding that sanctions against

counsel were appropriate for employees’ failure to appear at scheduled

depositions).




                                          13
       In fact, Appellant did not object to the depositions until October 25, 2012,

after it received Bahia Mar’s subsequent deposition notices for the same

depositions that had already been ordered once before. (CR 30; CR 56-58; CR 63-

65; CR 52-58; CR 59-65; App. 5.) Consequently, Appellant waived its right to

object the depositions and cannot now complain that the orders were invalid and

the sanctions for its failure to comply with the orders are not warranted. Even if

this court finds that the objections to the depositions were not waived, the trial

court entered appropriate orders for these depositions.

       2.     The two deposition orders were valid orders.

       The rules as to the taking of depositions vest broad discretion in the trial

court. Fisher v. Cont’l Ill. Nat’l Bank & Trust Co. of Chi., 424 S.W.2d 664, 670

(Tex. Civ. App. – Houston [14th Dist.] 1968, writ ref’d n.r.e.). The trial court has

broad discretion to determine whether a deposition should be taken and can control

the time, place, and manner of taking depositions. Thompson v. Dart, 746 S.W.2d

821 (Tex. App. – San Antonio 1988, no writ). Because a trial court has great

latitude in ordering discovery, such orders should not be reversed absent an abuse

of discretion. First State Bank, Bishop v. Cappell & Handy, P.C., 729 S.W.2d 917,

922 (Tex. App. – Corpus Christi 1987, writ ref’d n.r.e.); Kidd Pipeline &

Specialties, Inc. v. Campagna, 712 S.W.2d 238, 241 (Tex. App. – Houston [14th

Dist.] 1986, writ ref’d n.r.e.).



                                         14
      The Texas Rules of Civil Procedure provide the locations where the

deposition of a witness can be taken. For corporate representative depositions

under 199.2(b)(1), the depositions may be taken in the county of suit. Tex. R. Civ.

P. 199.2(b)(2)(C). Bahia Mar was seeking to take the Pakidehs’ depositions as

corporate representatives. (2 Supp. RR 22.) It is important to note that Bahia Mar’s

need for these corporate representative depositions stemmed, in part, from the fact

that the corporate representative that had been designated by Alma did not have

information prior to 2008. (2 Supp. RR 25-26.) After the Pakidehs failed to appear

for the court ordered depositions on September 28, 2012, the corporate

representative notices were sent out again. (CR 56-58; CR 63-65.) Appellant

attempted to quash the notices, but Appellant’s motions to quash were denied. (CR

281-282; 4 Supp. RR 48-49.)

      The fact that the depositions were not ordered to occur in Cameron County,

as required under either Rule 199.2(b)(2)(B) or (b)(2)(C), but in the adjoining

county of Hidalgo, does not mean the orders were improper. The trial court was

authorized to order the depositions be held at any other convenient location. See

Tex. R. Civ. P. 199.2(b)(2)(E). And the record demonstrates that the trial court

considered the convenience of the Pakidehs when ordering the location of the

depositions. (4 Supp. RR 43-44.) See Tex. R. Civ. P. 199.2(b)(2)(E). Thus, the trial

court was authorized to order the depositions to take place in Hidalgo County, even



                                        15
though it was not the county of suit. See First State Bank, Bishop, 729 S.W.2d at

922-923 (holding that the order requiring the company chairman to appear at a

location outside the county of suit was reasonable because the witness had been

difficult and the court had gone to great lengths to oblige the company and

chairman). Since the depositions were noticed as corporate representative

depositions (Alma did not object to the failure to include topics), the place for the

depositions was appropriate under the rules and the court’s findings.

      Even if this Court ignores the fact that the depositions were noticed as

corporate representatives, the depositions were appropriate for other reasons.

Under Rule 199.2(b)(2), the deposition of a witness can be held in “the county

where the witness is employed or regularly transacts business in person.” Tex. R.

Civ. P. 199.2(b)(2)(B). If the witness is a “party or a person designated by a party”

to testify on its behalf, the deposition can be taken in the county of suit. Tex. R.

Civ. P. 199.2(b)(2)(C). The deposition can also be held “at any other convenient

place directed by the court in which the cause is pending.” Tex. R. Civ. P.

199.2(b)(2)(E). In addition, if the witness “is a party or is retained by, employed

by, or otherwise subject to the control of a party,” the Rules allow the witness to be

deposed at those same locations, in addition to any other location permitted under

Rule 199.2(b)(2). See Tex. R. Civ. P. 176.3, 199.3.




                                         16
      Based on its broad discretionary power, the authority granted by the Rules,

and the evidence before it, the trial court determined that Appellant’s witnesses

could be deposed in Hidalgo County. The trial court was the trier of fact upon the

issues of control over the witnesses, the extent to which they transacted business in

the county, and the reasonableness of the place designated for the taking of their

depositions. See Allstate Petrol. Operations, Inc. v. Morgan, No. 11-96-013-CV,

1996 WL 33674377, at *3 (Tex. App. – Eastland Mar. 21, 1996, no writ) (not

designated for publication) (citing Sanus/N.Y. Life Health Plan, Inc. v. Dube-

Seybold-Sutherland Mgmt., Inc., 837 S.W.2d 191, 199 (Tex. App. – Houston [1st

Dist.] 1992, no writ). In that role, the trial court could draw reasonable inferences

from the evidence presented. See id. With regard to Alma’s two owners, the trial

court explicitly found that:

      [Y]our people, for better or for worse, owned property in Cameron
      County that got itself into litigation. So your people are here in
      Cameron County, and need to --- they are a corporation, and these are,
      I believe, people they control.

(3 Supp. RR 42.)

      [F]rom what I understand, . . . I am under the impression that the main
      thing, this will be what qualifies as a small business, and they had a
      number of people down here, and the people that basically owned the
      corporation were on the ground, manager, local management, and
      they were involved in it.

(3 Supp. RR 44.) Based on the evidence, the trial court determined that the

Pakidehs were under the control of Alma and were involved in managing the

                                         17
corporation. See Tex. R. Civ. P. 176.3, 199.3. The trial court also determined that

the evidence supported a finding that the Pakidehs transacted business in person in

Cameron County. See Tex. R. Civ. P. 199.2(b)(2)(B). Accordingly, the trial court

stated:

       [T]he court is going to deny the motion to quash. In so doing, I’m
       taking into account those matters that have been raised today as well
       as things that have been raised in the past relative to this issue where
       this issue has been both procedurally litigated in recent months and,
       secondly, on the issue of whether or not – because the Pakidehs raise
       issues in their affidavits about the extent of their involvement with the
       company Alma, the defendant, one of the defendants, the court is
       going to take into account everything that has transpired in this case.
       From the beginning the court has heard numerous hearings on
       numerous things, witnesses under oath. And to the extent there has
       been testimony in those matters referencing Pakideh this and Pakideh
       that and so forth. The Court takes all that into account and does find
       that these individuals have sufficient connection with the actual
       portion of parts of this case that may involve them as witnesses, that
       they do have sufficient knowledge to be required to attend. They were
       doing business in Cameron County. And I’m going to order their
       depositions to occur.

(4 Supp. RR 42-43.) Although it was not admitted into evidence, Martin Pakideh

specifically acknowledged in his affidavit that as an owner of Alma, he was

involved with the property. (CR 79.) Similarly, Khalil Pakideh’s purported

affidavit (also not admitted into evidence and signed by Klas Management LLC)

admitted that he visited the property approximately 3 times a year for 5 days to

make sure it was “in good shape” and admitted that he was the sole owner. (CR

84.)



                                          18
      Thus, based on the trial court’s findings and the Rules, the trial court was

authorized in ordering the Pakidehs be deposed in Texas. Furthermore, trial court

orders mandating depositions in circumstances similar to those here, where the

overall nature and circumstances of the cause of action make it necessary to depose

the witness as the sole possessor of certain corporate knowledge, have been found

to be proper. See Kidd Pipeline & Specialties, Inc., 712 S.W.2d at 241 (finding that

the former president of the company could be deposed in spite of claims that the

she was not a party to the lawsuit).

      It is clear that this is not a situation where the trial court abused its discretion

by ordering the deposition of a non-resident, non-party witness be held in a place

not authorized by Rule 199.2, as is claimed by Appellant. Nor is this a situation

warranting reversal of the sanctions due to an invalid deposition order. In fact,

appellate courts have affirmed the imposition of sanctions against corporate

entities where their witnesses have failed to comply with deposition orders that

were found to be valid. See First State Bank, 729 S.W.2d at 920-922 (holding that

the failure to comply with discovery requests and the trial court’s orders permitting

the deposition of the company chairman justified sanctions); Kidd Pipeline &

Specialties Inc., 712 S.W.2d 238, 241-242 (holding the trial court did not abuse its

discretion in dismissing the case due to the witness’ failure to comply with

discovery requests and court orders).



                                           19
      Because the deposition orders entered by the trial court in this case were

proper, Appellant’s argument that the death penalty sanctions order should be

vacated fails.

B.    The trial court did not commit error by ordering the death penalty sanctions
      because it considered the factors enumerated by the Texas Supreme Court to
      determine that the sanctions were warranted.

      Discovery sanctions serve three purposes: (1) to secure the parties’

compliance with the discovery rules; (2) to deter other litigants from violating the

discovery rules; and (3) to punish parties who violate the discovery rules. Imagine

Auto. Grp. v. Boardwalk Motor Cars, Ltd., 430 S.W.3d 620, 633 (Tex. App. –

Dallas 2014, pet. filed); Response Time v. Sterling Commerce (N. Am.), 95 S.W.3d

656, 659 (Tex. App. – Dallas 2002, no pet.). In assessing sanctions, the trial court

may consider everything that has occurred during the litigation. Finley Oilwell

Serv., Inc. v. Retamco Operating, Inc., 248 S.W.3d 314, 319 (Tex. App. – San

Antonio 2007, pet. denied); First State Bank, Bishop v. Cappell & Handy, P.C.,

729 S.W.2d 917, 921 (Tex. App. – Corpus Christi 1987, writ ref’d n.r.e.). Here, the

record demonstrates that the death penalty sanctions were warranted because

Appellant had so abused the rules of procedure, in spite of the trial court’s

imposition of lesser sanctions, that its position could be presumed to lack merit and

it would have been unjust for it to have been allowed to present it.




                                         20
      1.     The death penalty sanctions directly relate to the offensive conduct
             committed by Appellant.

      The trial court did not abuse its discretion because the record shows that the

sanctions directly related to Appellant’s offensive conduct and its disregard for

three court orders.

      The death penalty sanction was, in part, a final sanction for Appellant’s

failure to comply with two prior deposition sanctions orders and an audit order.

(CR 173-174.) Notably, Appellant did nothing to attack the two discovery orders

or audit order. Instead, Appellant simply ignored the court’s mandates, causing

significant delays in the proceeding. (Supp. CR 340-341; Supp. CR 358-359; 2

Supp. RR 21-22; 3 Supp. RR 40-42.) In addition, Appellant’s actions ultimately

prevented Bahia Mar from obtaining information that was essential to its claims

and which could only be provided by the Pakidehs. For example, since Alma

allegedly “no longer exists” as of 2012, no persons other than the Pakidehs could

provide information regarding the entity and its financial status. (CR 84, 96-97.)

And although the deposition of a corporate representative had been taken, the

record shows that the person designated did not have information prior to 2008. (2

Supp. RR 25-26.)

      The death penalty sanction was also imposed due to Appellant’s failure to

comply with the order for audit of BMMA’s financial records. (CR 29; CR 173-



                                        21
174; Supp. CR 271; App. 2, 3.) Similar to the deposition orders, Appellant’s failure

prevented Bahia Mar from obtaining essential information to its lawsuit. In

addition to failing to pay for the audit, Alma was ordered to turn over accounting

documents which it never did. (Supp. CR 271.) The results of the audit were

necessary for Bahia Mar to determine if money had been comingled, if it had been

properly accounted for, if the financial statements were accurate, if the expenses

had been comingled and if Alma took money from BMMA. (Supp. CR. 340.)

Based on the results of the previous year’s audit, it was clear that the 2005 audit

would have contained information relevant to its claims. Moreover, Bahia Mar was

entitled to the information by law under the Texas Property Code Ann. § 81.209,

which states that “the books and records of a condominium regime must comply

with good accounting procedures and must be audited at least once a year by an

auditor who is not associated with the condominium regime.” Tex. Prop. Code

Ann. § 81.209(c) (West 2014). Appellant’s counsel claimed (without providing

any evidence) that it did not comply with the order because it did not have the

financial ability to do so, and that it was denied its constitutional due process rights

as a result. However, Alma should have been obtaining and paying for an audit of

the financial records of BMMA on an annual basis under Texas law without being

court-ordered to do so, and its failure to comply with its legal obligation cannot be

the basis for such a claim. (Appellant’s Brief at 24) (5 Supp. RR 23.) Moreover,



                                          22
the veracity of Appellant’s claim is highly questionable given that it sold the Bahia

Mar Resort for $10,000,000.00.4 (5 Supp. RR 22; App. 1.) Because Appellant

refused to make its witnesses available for deposition, Bahia Mar was also denied

the opportunity to obtain essential information regarding Alma’s ability to pay for

the audit and its use of those sale proceeds. 5 (CR 99; CR 103-106; 5 Supp. RR 22.)

       It is clear from the record that the sanction bore a direct relationship to the

abuse committed by Appellant and to its flagrant disregard for the trial court’s

orders. Appellant’s actions in refusing to make its witnesses available for

deposition and refusing to conduct an audit and to turn over its financial records

hindered the discovery process, caused significant delays, and ultimately thwarted

Bahia Mar’s efforts to establish Alma’s liability and damages. As a result, the trial

court found that:

       There is a direct relationship between the sanction and the offensive
       conduct in that Alma has been previously ordered to remit $20,000.00
       into the registry of the Court to pay for a court ordered audit of their
       books. For more than one year, Alma has failed and refused to remit
       such funds. . . . The Court also finds that Alma’s refusal to abide by
       Court orders requiring depositions has prevented Plaintiff from
       obtaining discovery that it is entitled to obtain. Alma should not be


4
  The sale of the Bahia Mar Resort is now the basis of a separate lawsuit styled Bahia Mar Co-
Owners Association, Inc. v. MSP Partners Realty, LLC, et al., Cause No. 2014-DCL-04099, in
the 197th Judicial District of Cameron County, in which Bahia Mar asserts that the sale proceeds
were fraudulently transferred. (App. 7.)
5
  In fact, the record shows that Appellant attempted to use to its benefit Bahia Mar’s lack of
evidence regarding the Pakidehs’ ownership of Alma and the sale of the Bahia Mar Resort. (5
Supp. RR 23-26.)


                                              23
         allowed to present defenses when it refuses to abide by discovery
         orders and other orders of the court.

(CR 174.) The finding in the Sanctions Order that the failure to comply with the

three discovery orders was directly attributable to Alma is also supported by the

record. (CR 174; 5 Supp. RR 52-53.) Appellant was not only the entity owned by

the deponents, but it was also the entity that owned and controlled BMMA. (Supp.

CR 103.) Therefore, the death penalty sanction was properly directed against the

abuse committed by Alma and towards remedying the prejudice caused Bahia Mar

by its actions.

         2.    The death penalty sanctions were not excessive relative to Appellant’s
               wrongful conduct because the trial court properly considered and
               ordered lesser sanctions prior to imposing the death penalty sanctions.

         Appellant claims that the death penalty sanctions were excessive because the

trial court neither considered nor ordered lesser sanctions before entering the death

penalty sanctions. This claim is not supported by the record and consequently,

fails.

         In support of its argument that the sanctions were excessive, Appellant states

that there were a number of lesser sanctions that would have been effective.

(Appellant’s Brief at 25.) However, the record demonstrates that none of the lesser

sanctions suggested by Appellant would have achieved their purpose. Appellant

argues that the trial court could have ordered the Pakidehs to be deposed by



                                           24
telephone, videoconference or in Michigan. (Appellant’s Brief at 25.) However,

this is exactly what the trial court ordered in the original discovery order that

Appellant ignored. (CR 27; App. 4.) Appellant also argues that Alma could have

been ordered to pay for Bahia Mar’s counsel to travel to Michigan to take the

depositions. (Appellant’s Brief at 26.) However, counsel for Bahia Mar made that

same request to Appellant and Appellant did not agree or even attempt to come to

agreeable terms regarding the request. (Supp. CR 346; Supp. CR 348; Supp. CR

350.) Furthermore, by this time, Alma’s counsel was taking the position that Alma

was unable to pay for anything. An order to pay for travel expense would have also

been ignored. Additionally, Appellant argues that the trial court could have

excluded testimony from either of the Pakidehs unless they agreed to be deposed in

Texas. (Appellant’s Brief at 27.) Excluding their testimony would not have cured

the problem. Bahia Mar wanted and was entitled to their testimony. Their

testimony would have supported Bahia Mar’s case. (CR 30; Supp. CR 281-282;

App. 6.) In regard to the order for audit, Appellant argues that Bahia Mar could

have paid for it itself. (Appellant’s Brief at 28.) However, Texas law required

Appellant to conduct the audit and the fact that it was requested in litigation does

not change that. Additionally, Alma never provided the financial records they were

ordered to provide so there was nothing to audit. (Supp. CR 271; App. 2.)




                                        25
      Appellant then states that the trial court could have ordered discovery to

determine Alma’s ability to pay for the audit. (Appellant’s Brief at 28.) However,

Bahia Mar attempted to obtain this information through the Pakidehs’ court-

ordered depositions that did not occur. (CR 99; CR 103-106; 5 Supp. RR 22.)

Finally, Appellant argues that the sanction could have been limited to its books and

records for 2005. (Appellant’s Brief at 28.) However, the record shows that

Appellant’s misconduct extended past the 2005 audit, as Appellant ignored an

order for audit of years 2000-2008.6 (Appellant’s Brief at 28; Supp. CR 318.) Thus,

it is clear that the lesser sanctions suggested by Appellant would not have been

effective.

      Turning toward the actions taken by the trial court, the Sanctions Order

reflects a finding that the sanction was no more severe than necessary. (CR 174.)

The record shows that the trial court considered other lesser sanctions before

imposing the death penalty sanctions, but determined that those would not have

been effective. See Cire v. Cummings, 134 S.W.3d 835, 840 (Tex. 2004) (stating

that “the trial court must analyze the available sanctions and offer a reasoned

explanation as to the appropriateness of the sanction imposed.”). For example, the

trial court found that due to Alma’s having failed for more than one year to remit

the funds ordered for the audit, “monetary sanctions against Alma are not

6
  Appellant incorrectly states that Bahia Mar “never sought an audit for any other year.”
(Appellant’s Brief at 28.)


                                           26
effective.” (CR 173-174.) The trial court also found that due to Appellant’s

“egregious misconduct,” a sanction lesser than the death-penalty sanctions could

not be imposed. (CR 174.) The Sanction Order states:

       A lesser sanction cannot be imposed because Alma committed
       egregious misconduct in failing to comply with three separate court
       orders. This Court considered lesser sanctions, but they would not
       have been effective. Monetary sanctions would not be effective
       because Alma has failed and refused to pay $20,000.00 to the registry
       of the Court to conduct another year’s audit, and counsel for Alma has
       stated that Alma does not have the ability to pay any monetary
       sanctions. Further, Mr. Pakideh has stated in his affidavit filed
       November 12, 2013, that ‘Alma no longer exists.’ A lesser sanction of
       again ordering the witnesses to appear for depositions would not be
       effective as that has been ordered twice, and Alma has not complied
       with this order.

(CR 174.)

       In addition, the Sanctions Order reflects a finding that lesser sanctions had

been ordered against Appellant prior to it being subjected to the death penalty

sanctions.7 (CR 174 at paragraph b.) Because the trial court recognized that

Appellant failed to comply with the two deposition sanctions orders, it

consequently found that “[t]hose orders were not sufficient as sanctions as the

witnesses failed to appear for their depositions.” (CR 174; 5 Supp. RR 26-27.)

Thus, the record shows that the trial court properly ordered lesser sanctions.8 The

7
  Consequently, a finding by the trial court that the misconduct was of the exceptional nature that
would have allowed it to impose death penalty sanctions without trying lesser sanctions first, as
required by Cire, was not necessary. (Appellant’s Brief at 30.)
8
  The record even shows that Appellant considered as sanctions the order requiring the deposit of
$20,000 into the registry of the court. (5 Supp. RR 19.)


                                                27
trial court was not required to order every lesser sanction that could possibly be

imposed before imposing death penalty sanctions. See Cire v. Cummings, 134

S.W.3d 835, 842 (Tex. 2004).

      The situation here is not like that found in either TransAmerican Natural

Gas Corporation v. Powell, 811 S.W.2d 913 (Tex. 1991) or Chrysler Corp. v.

Blackmon, 841 S.W.2d 844, 850 (Tex. 1992), cases relied upon by Appellant,

where the trial court failed to consider or even test lesser sanctions. See

TransAmerican Natural Gas Corp., 811 S.W.2d at 918 (additionally finding that

no determination was made regarding whether the party or its attorney was at fault

for the discovery abuse); Chrysler Corp., 841 S.W.2d at 850 (finding no direct

relationship between the conduct and the sanction, that the sanction was excessive,

and no evidence to support that the defenses lacked merit). Instead, the record here

demonstrates that the trial court did not abuse its discretion because it not only

considered the availability of lesser sanctions, but also ordered other lesser

sanctions, and found that those sanctions were ineffective. (CR 174; 5 Supp. RR

52.) Furthermore, the Sanction Order contains an “extensive, reasoned explanation

of the appropriateness of the sanction imposed, demonstrating that the trial court

considered the availability of less stringent sanctions,” as required. See Cire, 134

S.W.3d at 843.




                                        28
      Consequently, the record and Sanctions Order reflect that due to Appellant’s

misconduct and flagrant disregard for the three court orders, the ineffectiveness of

ordering the witnesses to appear for deposition for the fourth time, and the fact that

Appellant claims that it does not have the ability to pay any monetary sanctions

and continued to refuse to produce accounting records as ordered, the death penalty

sanctions ordered in this case were not excessive.

      3.        The death penalty sanction was appropriate because Appellant’s
                conduct justified the presumption that its defenses lacked merit.

      Appellant’s argument that its conduct did not support a presumption that its

defenses lacked merit also fails. By claiming that Bahia Mar should have taken

different action with regard to the depositions and audit, minimizing the effect of

the 2004 audit results, disregarding that it was required under Texas law to obtain

(and pay for) the 2005 audit requested, and ignoring the fact that it had previously

been granted the opportunity to have the depositions taken at their convenience,

Appellant’s argument fails. (Appellant’s Brief at 32-35.) Regardless of Appellant’s

characterization of the events, the fact is that Appellant violated three court orders,

two of which were imposed as lesser sanctions. (CR 174 at paragraph b.) Due to

Appellant’s actions, the trial court correctly determined that Appellant’s conduct

justified the presumption that its defenses lacked merit. Accordingly, the Sanctions

Order states:



                                          29
      Alma’s conduct justifies the presumption that its defenses lack merit.
      Alma has refused to allow the depositions of owners of Alma in this
      case. In affidavits filed with the court on November 12, 2013, Khalil
      Pakideh and Martin Pakideh acknowledge that they were owners of
      Alma and state that Alma no longer exists. Alma has refused to allow
      another audit to be conducted. In the audit that was conducted for the
      2004 year the court appointed auditor, Moises Gomez, on October 10,
      2011, concluded as follows: ‘Based upon the results of our special
      audit procedures, the lack of proper documentation of expenses, the
      absence of an annual audit, and the lack of timely accountability to the
      unit owners, we do not believe Alma fulfilled its fiduciary
      obligations.’ Alma’s failure to allow additional audits and the failure
      to appear for depositions justifies the death penalty sanctions.

(CR 174.) Consequently, the facts and circumstances of this case meet the Texas

Supreme Court’s directive when it stated that:

      Discovery sanctions cannot be used to adjudicate the merits of a
      party’s claims or defenses unless a party’s hindrance of the discovery
      process justifies a presumption that its claims or defenses lack merit.
      However, if a party refuses to produce material evidence, despite the
      imposition of lesser sanctions, the court may presume that an asserted
      claim or defense lacks merit and dispose of it.

Cire, 134 S.W.3d at 839 (quoting TransAmerican Natural Gas Corp., 811 S.W.2d

at 918). This is exactly what happened in this case. Alma was ordered in 2010 to

produce its books and records for the 2004-2008 time period. (Supp. CR 271; App.

2.) Alma did not even provide the records for the audited year of 2005 and

provided nothing for the remaining years. (Supp. CR 322-323.) Because the record

demonstrates that Alma refused to make its witnesses available for deposition and

refused to allow an audit of its financial records despite the imposition of lesser




                                        30
sanctions, the trial court did not abuse its discretion in imposing the death penalty

sanctions.

                      REPLY TO APPELLANT’S ISSUE 2

             Appellant’s Issue 2 should be overruled because the trial court
      did not commit error by awarding attorney fees since the declaratory
      judgment action requested independent relief and since the request for
      attorney fees was not made moot by the sale of the property.

      The relief requested by the declaratory judgment was a substantial reason for

the filing of the lawsuit and the claim makes clear that one of the major issues

involved was the owners’ right to vote on directors and officers of BMMA.

Plaintiff’s 10th Amended Petition states:

      Taxation without representation…the founding bedrock of the United
      States of America…the reason for the revolution. The thirteen British
      colonies and citizens of America grew weary of paying taxes to Great
      Britain while not having any representatives in the British Parliament.
      Great Britain was happy to tax the colonies but refused to give them
      any political voice for their taxes. Alma Investments has taken a
      similar approach since the year 2000 after the judgment of the Court
      became final on appeal. Alma Investments did not like the Court’s
      ruling requiring it to pay its share of maintenance fees. Since that
      time, Alma Investments has ruled as a dictator while taking money
      from owners in the form of assessments. Since the ruling on the
      previous case became final, Alma Investments has refused to give any
      voice or any vote to the persons who are paying these assessments.
      Such conduct violates public policy and violates the spirit of the
      condominium act, and this conduct as well as the poor management
      (occurring after the previous judgment) has forced the filing of this
      subsequent lawsuit.

      Appellant’s liability under the declaratory judgment act was established

prior to trial at the time the death penalty sanctions were ordered. (CR 173.) When

                                            31
a default judgment is rendered, the defendant’s liability for all causes of action

pled is conclusively established and all allegations of fact in the petition, except the

amount of damages, are deemed admitted. See Allright, Inc. v. Van Scoyoc, 784

S.W.2d 942, 945 (Tex. App. – Houston [14th Dist.] 1990, no writ). Therefore,

Appellant’s liability under the DJA, and thus, Bahia Mar’s right to the declaration

granted, was conclusively established before the damages and attorney fees were

awarded.

      At the time of trial, the only issue involving the declaratory relief requested

was the amount of fees that should be awarded to Bahia Mar through its request for

attorney fees under the DJA. (CR 173.) Under the Act, “the court may award costs

and reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ.

Prac. & Rem. Code Ann. § 37.009 (West 2008). A party to a declaratory judgment

action is not required to prevail to recover an award of attorney fees. Hansen v. JP

Morgan Chase Bank, N.A., 346 S.W.3d 769, 773 (Tex. App. – Dallas 2011, no

pet.). However, as Appellant’s liability was established by the death penalty

sanctions, the trial court did not err in awarding Bahia Mar its attorney fees as the

prevailing party to the action.

      Appellant’s arguments that the declaratory judgment claim was used as a

vehicle to obtain otherwise impermissible fees and that there was no real

controversy between the parties also fail to establish Appellant’s right to relief.



                                          32
First, the record does not support the argument that the claim was made solely to

obtain the fees. As demonstrated by Bahia Mar’s 10th Amended Petition, the

declaratory judgment claim sought specific relief, separate and apart from the relief

sought by the claim for breach of fiduciary duty. The declaratory judgment action

sought the right to vote and a declaration

      that the Maintenance Association as run by Alma is contrary to public
      policy and void in that it does not provide for officers and a board
      with voting rights being granted pro-rata to its members in accordance
      with the square footage that they lease.
(Supp. CR 114.) On the other hand, the breach of fiduciary claim asserted that

Alma breached its fiduciary duty

      by using Maintenance Association funds to pay the bills of Alma
      Investments, by comingling Maintenance Association funds with
      those of Alma Investment, by failing to property maintain the
      common elements of the Maintenance Association, by overcharging
      the owners, and by failing to pay its own dues.
(Supp. CR 120.) and

      by failing to obtain insurance on the common elements which caused
      damage when there was no insurance for the damage caused by
      Hurricane Dolly.

(Supp. CR 121.) Clearly, the declaratory judgment claim does not merely duplicate

the issues litigated in the breach of fiduciary duty claim. A determination that

Appellant violated Texas law by not allowing members of BMMA to vote is

neither related or necessary to a determination that Appellant breached its fiduciary

duty to those members through its mishandling of BMMA’s financial and


                                         33
maintenance issues. The breach of fiduciary claim could not have achieved the

equitable result that Texas law required. The owners had the right to vote which

was being denied to them. Unlike the circumstances in Etan Industries, Inc. v.

Lehmann, 359 S.W.3d 620 (Tex. 2011) and MBM Financial Corp. v. Woodlands

Operating Co, 292 S.W. 3d 660 (Tex. 2009), cases relied on by Appellant, the

declaratory claim here was not used for the sole purpose of obtaining an award of

attorney fees.9 See Etan Indus. Inc., 359 S.W.3d at 624 (finding that the declaratory

judgment duplicated the trespass claim by declaring that neither the easements nor

the pole attachment agreements gave the right to place lines on the properties);

MBM Fin. Corp., 292 S.W. 3d at 671 (finding that the declarations about timely

notice and designation of a return location were part of the contract claim). Since

Bahia Mar’s pleadings demonstrate that the issues involved with its claims are not

duplicative, Appellant’s argument cannot be a basis to conclude that the award was

erroneous.

       Next, Appellant argues the declaratory judgment claim was “merely

pretextual” because there was no real controversy between the parties at the time of
9
  Instead, the situation here can be more likened to that in Universal Printing Co. v. Premier
Victorian Homes, Inc. 73 S.W.3d 283 (Tex. App. – Houston [1st Dist.] 2001, pet. denied) and
Weaver v. AIDS Services of Austin, Inc., 835 S.W.2d 798 (Tex. App. – Austin 1992, writ denied).
Although Appellant cited these to support its position, the appellate court in each case rejected
the argument that the declaratory judgment claim was used solely as a means to obtain attorney’s
fees and found that its use was appropriate. See 73 S.W.3d at 296 (holding that the declaratory
judgment action was appropriate); 835 S.W.2d at 803 (rejecting the appellant’s attempt to
characterize the declaratory judgment action as a means of providing an “avenue to attorney’s
fees”.)


                                               34
trial. While it is true that Alma sold the Bahia Mar property for $10,000,000.00 in

2010, and it is true that the new owner is allowing the owners to vote, that did not

make the dispute over attorney fees moot. (App. 1.) Alma never allowed the

owners to vote and never agreed that it had an obligation to do so. Regardless, a

dispute over attorney fees is a “live controversy” that prevents a declaratory

judgment claim from becoming moot. See Camarena v. Texas Emp’t Comm’n, 754

S.W.2d 149, 151 (Tex. 1998); Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642-

643 (Tex. 2005); Hansen v. JP Morgan Chase Bank, N.A., 346 S.W.3d 769, 773

(Tex. App. -Dallas 2011, no pet.). The 10th Amended Petition specifically sought

an award of attorney fees pursuant to the Declaratory Judgment Act. (Supp. CR

124.) At the time of the trial on damages, Bahia Mar continued to seek those

attorney fees and continues to assert its entitlement to the award in this appeal.

Thus, Bahia Mar’s claim for those fees is a live controversy.

      The situation here is similar to that in Hansen v. JP Morgan Chase Bank,

N.A., 346 S.W.3d 769, 773 (Tex. App. – Dallas 2011, no pet.). In that case, the

executor of a homeowner’s estate filed a declaratory judgment action against the

members of the homeowner’s family and a prospective buyer of the homeowner’s

house, seeking a declaration that it had authority to sell the house. Id. at 771-772.

Prior to the day of trial, the homeowner’s son dropped his objections to the sale

and after being assigned the rights in the contract for sale by the buyer, became the



                                         35
ultimate purchaser of the property. Id. at 772. As a result, the plaintiff amended its

petition and withdrew its declaratory judgment claim, but continued to seek

attorney fees. Id. The trial court awarded the fees, and upon the defendants’

complaints, the appellate court was faced with determining whether the plaintiff’s

claim for the fees prevented the declaratory judgment action from becoming moot

when the house was sold. Id. at 772-773. After analyzing the Supreme Court’s

decisions in Camarena and Allstate Insurance Co., the court concluded that those

cases “stand for the proposition that a case under the Declaratory Judgment Act

remains a live controversy, even if all requests for substantive declaratory relief

become moot during the action’s pendency, as long as a claim for attorneys’ fees

under the Act remains pending.” Id. at 774-775. Thus, the court determined that the

plaintiff’s claim for attorney fees kept the claim from becoming moot even though

the homeowner’s son dropped his objection to the sale and the house was sold

prior to trial. Id. at 775. Alma never allowed voting. It simply sold the property,

however, the claim for attorney fees remained after the sale.

      Like in Hansen, Bahia Mar’s declaratory judgment claim was not moot, in

spite of the change in Alma’s involvement with the Bahia Mar Resort. The

decisions in Etan Industries, Inc. and Hartford Casualty Insurance Co.v. Budget

Rent-A-Car Systems, Inc., 796 S.W.2d 763 ( Tex. App. – Dallas 1990, writ denied),

cases relied upon by Appellant, do not change this result. First, the court in each of



                                         36
those cases concluded that the declaratory judgment claims were merely

duplicative of the other claims asserted. See Etan Indus. Inc., 359 S.W.3d at 624;

Hartford Cas. Ins. Co., 796 S.W.2d at 772 (noting that the plaintiff had no need for

declaratory relief because a “declaratory relief plea may not be coupled to a

damage action simply in order to pave the way to recover attorney fees”). Indeed,

the court in Hansen noted that cases in which the declaratory judgment claim

duplicated other claims were distinguishable from the case before it. See Hansen,

346 S.W.3d at 775. Second, the courts in Etan Industries, Inc. and Hartford

Casualty Insurance Co. did not consider the issue of whether the plaintiff’s claim

for attorney fees under the Declaratory Judgment Act prevented the claim from

becoming moot, as is the case here. See Hansen, 346 S.W.3d at 775.

      Consequently, the trial court did not err in awarding attorney fees and

Appellant’s Issue 2 should be overruled. The finding in the court’s judgment to the

effect that “Alma's operation of the Maintenance Association violated Texas law in

that Alma did not allow members of the Association to vote or have a voice in the

Maintenance Association” is, at worst, an unnecessary finding by the court. Under

Texas law, this finding is certainly correct. See Tex. Prop. Code Ann. § 82.057(a)

(West 2014). Appellant argues that the finding is moot because Alma had sold the

property. Even if that is the case, the request for attorney fees related to the

declaratory judgment action was not moot.



                                        37
                    REPLY TO APPELLANT’S ISSUE 3

            Whether the trial court erred by awarding prejudgment interest
      on the attorney fee award is an issue of first impression in the
      Thirteenth Court of Appeals. Neither the Texas Supreme Court nor
      this Court have specifically determined whether an award of
      prejudgment interest on attorney fees that have been paid to the date
      of judgment is proper.

      Appellant complains in its third issue that prejudgment interest was

improperly awarded because the attorney fees that had been paid up to the date of

judgment are not damages. This is an issue of first impression in the Thirteenth

Court of Appeals.

      In Cavnar v. Quality Control Parking Inc., 696 S.W.2d 549 (Tex. 1985), the

Texas Supreme Court held that “a prevailing plaintiff may recover prejudgment

interest compounded daily (based on a 365-day year) on damages that have

accrued by the time of judgment.” (italics in original). Based on this holding,

awards of prejudgment interest on attorney fee awards have been affirmed by

appellate courts in this state. For example, the court in Nova Cas. Co. v. Turner

Construction Co., 335 S.W.3d 698, 706 (Tex. App. – Houston [14th Dist.] 2011, no

pet.) held that prejudgment interest is allowed on awards of attorney fees where

there is evidence that the fees have already been paid. This case was cited with

approval by the Federal Southern District of Texas in MMR Intern. Ltd. v. Waller

Marine, Inc., CIV.A. H-11-1188, 2013 WL 6491186, at *12 (S.D. Tex. Dec. 10,

2013) when applying Texas law to award prejudgment interest on the attorney fees

                                       38
that had been paid before the entry of judgment. Similarly, the court of appeals in

Williams v. Colthurst, 253 S.W.3d 353, 362 (Tex. App. – Eastland 2008, no pet)

found that the trial court had not erred in awarding prejudgment interest on the

attorney fees that had been paid prior to the entry of judgment. And in A.V.I, Inc. v.

Heathington, 842 S.W.2d 712 (Tex. App. – Amarillo 1992, writ denied), the court

found that the award of prejudgment interest on the attorney fees paid by the time

of judgment was “entirely proper.” See also Marrs & Smith P’ship. v. D.K. Boyd

Oil & Gas Co., Inc., 223 S.W.3d 1, 25-26 (Tex. App. – El Paso 2005, pet. denied)

(recognizing that prejudgment interest on attorney fees paid at the time of

judgment is recoverable and therefore, limiting the award accordingly).

       The circumstances underlying the award of prejudgment interest to Bahia

Mar mirror those in the foregoing cases. Bahia Mar had paid its attorney fees and

provided evidence of those statements at the trial. (3 RR 85-90.) The judgment

reflected prejudgment interest only on the attorney fees that had been paid up to

the date of judgment. (2d Supp. CR 4.) Based on the weight of authority,10 the trial

court did not err in awarding prejudgment interest on Bahia Mar’s “damages” –

attorney fees that had been paid up to the time of trial.




10
  The only Texas Court of Appeals that has denied prejudgment interest on attorney fees where
the fees were paid before trial is the Fifth Court of Appeals. See Carbona v. CH Med., Inc., 266
S.W.3d 675, 688 (Tex. App. – Dallas, 2008, no pet.)


                                              39
      Appellant argues that this Court should reverse the attorney fee award and

affirm its holding in Berry Property Management Inc. v. Bliskey, 850 S.W.2d 644

(Tex. App. – Corpus Christ 1993, writ dism’d by agr.); however, the facts of that

case are distinguishable from those here. That case involved an award of

prejudgment interest for attorney fees that had not been paid prior to judgment.

Thus, Berry Property Management Inc. did not address the situation at hand.

      Nor has the Texas Supreme Court directly addressed the issue. In In re Nalle

Family Limited Partnership, 406 S.W.3d 168 (Tex. 2013), a case relied on by

Appellant, the Court held that attorney fees were neither compensatory damages

nor costs for purposes of suspending enforcement of a money judgment under

Texas Civil Practice & Remedies Code § 52.006. Id. at 176. Although it did not

specifically address the issue of prejudgment interest, the Court stated that attorney

fees are not “damages.” Id. at 173. Consequently, how In re Nalle Family Limited

Partnership, Cavner, Berry Property Management Inc., and case law from the

appellate courts in Texas affirming awards of prejudgment interest on attorney fees

that had been paid up to the time of trial should apply here is an issue for this Court

to decide. Appellant notes that the cases awarding prejudgment interest on attorney

fees were decided before the Supreme Court held that attorney fees are not

damages in a different context. However, since the issue has not been decided in




                                          40
the Corpus Christi court of appeals, Appellee leaves this issue of first impression in

this court’s capable hands.

                                   CONCLUSION

      The law and the record demonstrate that the trial court did not abuse its

discretion in ordering the death penalty sanctions against Appellant. Appellant’s

violation of three court orders not only hindered the discovery process, but it also

prevented Bahia Mar from obtaining evidence essential to its case and caused

significant delays in the proceedings. Most importantly, it also demonstrated

Appellant’s flagrant disregard for the Texas Rules of Civil Procedure and for the

authority of the trial court for a period of over 3 years. The record shows that the

sanction was directly related to Appellant’s wrongful conduct, that it was not

excessive because lesser sanctions were considered and ordered, and that

Appellant’s conduct warranted a presumption that its defenses lacked merit.

Consequently, the trial court’s imposition of death penalty sanctions and award of

attorney fees was not error.

                                      PRAYER

      For the reasons stated herein, Appellee, Bahia Mar Co-Owner’s Association,

asks the Court to overrule Appellant, Alma Investments Inc.’s issues and that it

affirm the judgment of the 197th Judicial District Court of Cameron County, and

grant any other relief to which it may show itself justly entitled.



                                          41
                                    Respectfully submitted,



                              By:         /s/ Lance A. Kirby
                                    LANCE A. KIRBY
                                    State Bar No. 00794096
                                    lakirby@jgkl.com
                                    PAOLA R. GUERRERO
                                    State Bar No. 24038929
                                    pguerrero@jgkl.com
                                    JONES, GALLIGAN, KEY & LOZANO, L.L.P.
                                    Town Center Tower, Suite 300
                                    2300 West Pike Boulevard
                                    Post Office Drawer 1247 (78599-1247)
                                    Weslaco, Texas 78596
                                    Telephone: (956) 968-5402
                                    Telecopier: (956) 969-9402

                                    COUNSEL FOR APPELLEE
                                    BAHIA MAR CO-OWNERS
                                        ASSOCIATION, INC.

                     CERTIFICATE OF COMPLIANCE

      As required by Texas Rule of Appellate Procedure 9.4(i)(3), I certify that
this document was produced on a computer using Microsoft Word 2010 and
contains approximately 10,208 words as determined by the computer software’s
word-count function, excluding the sections of the document listed in Texas Rule
of Appellate Procedure 9.4(i)(1).


                                        /s/ Lance A. Kirby
                                    LANCE A. KIRBY




                                      42
                         CERTIFICATE OF SERVICE

       As required by Texas Rules of Appellate Procedure 6.3 and 9.5(b), (d), (e), I
hereby certify that I have served the foregoing instrument on all parties – which are
listed below – on this 15th day of May, 2015, in the manner indicated:

      Dorian E. Ramirez, Clerk                              VIA ELECTRONIC FILING
      Thirteenth Court of Appeals
      Administration Building
      100 E. Cano, 5th Floor
      Edinburg, Texas 78539

      Richard B. Phillips, Jr.                            VIA ELECTRONIC SERVICE
      THOMPSON & KNIGHT, LLP
      One Arts Plaza
      1722 Routh Street, Suite 1500
      Dallas, Texas 75201
      Telephone: (214) 969-1700
      Telecopier: (214) 969-1751
      rich.phillips@tklaw.com


                                           /s/ Lance A. Kirby
                                       LANCE A. KIRBY




                                         43
TAB
  1
Gommercial Contract for 63(30 Padre Boulevard, South Padre islahd, Texas



                            GOMWIERGIAL CONTRACT - liyiPRC^EO PF^f^RTY
                           BAHIA MAR HOTEL RESORT «^<®NFeRENOE RENTER
This Gommercial GontraQt for Improved Property {"Agreemenf) is made effective: tills                          of Noyember. 2Q09
("EffectiveDate*').

1. PARTIES: Seller agrees, to sell andconvey to Buyer the Pcppejly described In PgraSraph% Buyer agrefes to .buy the
   Property from Seller for the sales price stated In Paragraph. 3. The partjes.tothis .cohtrect are:
     Seller: WISP Partners Reaify, LLC. (fOFmeriy known as Alma Investments,^ Iiie.)
     Address: mpakldehiikiasmanagemenkcom;
     Phone: {246) 203-2128                                   Fax: (246) 203-24#6
     klandau(5)klasmanaaement.CQm

     Buyer NewBaHla lWarDeVelopmehty
     Address: 36Q5 Booa Ciilca, Suite 11. Brownsville, Texas 78521
     Phone: 1956) ^3731                                               Fax:        5##65
     dsanGhez@swlz.eem

2.   PROPERTY:

     A. "Property" means-that real property, and all linprovemettls, .eqoiprnent.and perpphal.
         situated In South Padre Island, Ganneron County, Texas at                     .Bpu^vardirS^oath Pad^^ Island, Gamefoh
         County, Texas.and that Is legally described on the attaehed Exhibit A             the sdrvey oflhe Property Is a
         hereto as Exhibit B.

     B, Sellerwill sell and conveythe Property together with
        (1) all buildings, improvements, and fixtures;
         (2) all rights, privileges^and appurtenances pertaining tOthe='Prqpert|, ;inpl^^^^^^ SellaTs: right, tille, and interest in
             =any minerals, ufilltles, adiaeent streets, alleys, stripSi.gores, ahd dght^#wayi:
         (3) Seller's interest in afl leases, rents, time share contracts, andsecurity deposits fojf all or part Of the Property;
         (4) Seller's interest In all llcenses.and permits related to the Property;
         (5) Seller's interest In all third party warranties or guaraoties, if transferable, relating to the Property, or any
             fixtures;
         (6) Seller's Developer Rights and Interest In any potion of the Property {ndiudmg;            malntenancB agreements,
             management agreements in connection with the Property (Incjbding all Of Sellers InteTest Ift any Bahia Mar
             Maintenance Association and other corporate entity which provides malntenaTiee or managerial services to
             any portion ofthe Property (hereafter the "Development Rights"); and
         (7) all Seller's tangible personal property, if any, located on the Property that is used In connection with the
             Property's operations;

3. SALES PRIGE; At or before closing, Buyer wilfpay the following sales price forThe ppoperty:

Cash payable by Buyer at closmg (Ten Million andno/i06 Dollars),..,                                              ,$10,000,000.00
4. Intentionally Left Blank.

5.   EARNESTWIONEY:

     A. Contemporaneous with the execution ofthis Agreement by both Parties, Buyer Will deposit as earnestmoney, two
                                                                                                                        P age I




                                                                                                                   ALMA POST 000013
TAB
  2
MAR. 30.2010 2;04PM           J..6..K..&L 956-96H402                                     NO. 607      P. 3


                                        CAUSE NO. 2006-07-3289-C

   BAHIA MAR CO-OWNERS                                        §       IN THE DISTRICT COURT
   ASSOCIATION, INC.                                          §
                                                              I
   V8                                                         §       197®' JUDICIAL DISTRICT
                                                              §
   BAHIAMAR MAINTENANCE                                       §
   ASSOCIATION,                                               §
   ALMA INVESTMENTS. INC.                                     §
   d/b/a TEXAS ALMA INVESTMENTS. INC.                         §       CAMERON COUNTY,


                            ORDER ON PLAINTIFFS MOTION TO COMPEL


          After considering plaintiff, Bahia Mar Co-Ownors Association. Inc.'s motion to
   compel, Alma Investments, Inc.'s motion for reconsideration, the response, and
   arguments of counsel, the court
           GRANTS plaintiffs motion to compel in part and ORDERS Alma Investments, inc.
   d/b/a Texas Alma Investments. Inc. to:

               • Deposit $10,000.00 Into the registry ofthe court by April 30, 2010 In relation
                   to the audit;

           The Court FURTHER ORDERS Alma Investments, Inc. and Bahia Mar
   Maintenance Association to:

               •   Produce to Moises Gomez ail books and records for the period from 2004
                   through 2008 for Bahia Mar Maintenance Association, including but not
                   limited to the original bank statements, cancelled checks. Invoices supporting
                   payment of expendKures, receipts for payment of association dues and any
                   other records needed to audit Bahia Mar Maintenance Association by April
                   30, 2010. To the extent that any books and records related to Alma
                   Investments, Inc. are needed to conduct the audit, such information shall
                   also be produced.
           SIGNED on                        '      . 2010.

                                                                                                   DE LA GARZA, CLERK

                                                                                               APR 05 2010
   cp.e,»: APR 06 2010
   Lanoo A. Klrby, Po«t Office Dfiwef 1247, Wetiaco, Texas 78588; Fax (856) 868-8402
   Richard Valder, Esquire, 316 WSst Tyler, Herllngen, Texee 78550; Fax (956) 425-6665
   Nathan Barrow, 802N. Carancahua, Suite 1300, Corpus Christ!, Texas 78470; Fax(3B1) 684-7261
   Dennis Sanchez, 3505BocaChtea Blvd., Ste. 100, BfownsvHIe, Texas 78521-4064; Faxili (956) 546-3766




                                                                                                         271
TAB
  3
APR. 10.2012   9:33AM      J..G.,K.,&L 956-969-9402                                  NO. 843     P. 3



                                    CAUSE NO. 2008-07.3289.0

   BAHIA MAR CO.OWNERS                                 §       IN THE DISTRICT COURT
  ASSOCIATION, INC.                                    §
                                                       §
                                                       §
  vs.                                                  §      197^^ JUDICIAL DISTRICT
                                                       §
   BAHIA MAR MAINTENANCE                               §
  ASSOCIATION,                                         §
  ALMA INVESTMENTS, INC.                               §
  d/b/a TEXAS ALMA INVESTMENTS, INC.                   §      CAMERON COUNTY,


               ORDER PARTIALLY GRANTING PLAINTIFF'S MOTION FOR AUDIT



        After considering plaintiff, Bahia Mar Co-Owners Association. Inc.'s motion to
  enforce order granting plaintiffs motion for audit, the response, and arguments of counsel,
  the court

          GRANTS plaintiffs motion In part as follows:
          IT IS THEREFORE ORDERED. ADJUGED AND DECREED, that the financial
  books and records of BahIa Mar Maintenance Assoclatlo^e audited by Morses Gomez,
  who will conduct an audit for the calendar year                        . To the extent necessary,
  the auditor is authorized to review records of Alma Investments, Inc. if needed In the
  auditing process.

         IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that Alma Investments,
  inc. d/b/a Texas Alma Investments, Inc. shall pay the named independent auditor for
  perfomriing the audit of financial records. Alma shall deposit $20,000.00 with the registry of
  the court by no later than July 16,2012 at the close of business.
         SIGNED on      CiphJb II             2012.




                                                              PRESIDIN^UDGE


                                                                       APR 11 M12

  Copies to: !SPRnZOI2
  Lance A. Wrby, Post Office Drawer 1247, Weslaco, Texas 78699; Fax (966) 969-9402
  Kevin Landau, 38500 Woodward Ave.. 8te. 200, Bloomfield, Ml 46304; Fax (248) 203-2448
  Hector J. Torres, 416 East Dove Ave., McAllen, Texas 78504; Fax (966) 630-0189
  Louis S.Sorola             1999 W. Jefferson St. - Brownsville, Tx                           78520


                                                                                                  29
TAB
  4
                                      CAUSE NO. 2006-07-003289-0

  BAHIA MAR CO-OWNERS                                                     IN THE DISTRICT
  ASSOCIATION, INC.
               Plaintiff,                                                 197th JUDICIAL DISTRICT
  Alma Investments, Inc. dba Texas Alma Investments
  vs.



  BAHIA MAR MAINTENANCE                                                   CAMERON COUNTY,
  TEXAS
  ASSOCIATION, ALMA INVESTMENTS, INC.
  d/b/a TEXAS ALMA INVESTMENTS, et al
                 Defendants.




         ORDER GRANTING ALTERNATIVE VENUE AND METHOD OF DEPOSmONS

  After considering the Defendants', Alma Investments and Bahia Mar Maintenance Association, objections
  to the Plaintiffs Motion for Continuance ofthe Summary Judgment Submission Date, the pleaings,
 response and arguments of counsel;

         ITIS THEREFORE ORDERED AND ADJUDGED that the parties shall cooperate infinding a
 mutually agreeable, alternative venue forthetaking ofdepositions for thedefendants', their agents,
 consultants oremploys and that such depositions shall be taken in the place ofeach deponents residency,
 or, via telephone, or, videoconferencing technology acceptable to the Court.

         ITIS FURTHER ORDERED AND ADJUDGED that theDefendants' costs, expenses and
 attorney fees, forhaving to oppose the Plaintiffs' untimely Motion for a continuance, shall betaken under
 advisement by the Court fora period not to exceed 90 days from the datehereof.

         ITISFURTHER OPRDERED AND ADJUDGED thattheparties shall, in a timely manner, not
 toexceed Sixty (60) days from the date hereof, use all reasonable prudence and cooperation in completing
 the following three (3) depositions ofthe Defendants, asnamed by Plaintiffs counsel on the record; (a)
 Khalil Pakideh; (b)Martin Pakideh and (c)Alma's corporate representative previously deposed.
         NOW, THEREFORE, ITIS ORDERED AND ADJUDGED that the Defendant's Summary
 Judgment Submission Date shall beextended until March 9,2012, or sooner, provided, that, no
 unforeseen circumstances arise such as a natural disaster, thereby preventing such submission from
 occurring.


 SIGNED on                        2011.

 12/07/11 COPIES TO:
                                                                 JUDGE PRESIDING
 ON.    LANCE A. KIRBY
HON.    DENNIS SANCHEZ                                                                O'CLOCK^
HON.    KEVIN LANDAU                                                    AURORA DE LA QARZA, CLEW
HON.    ROBERT L. GUERRA
                                                                                DEC 06 2011
TAB
  5
»   M 23.2012 1:46PM             J., 6., K. .& L 956-969-94(^2                               NO. 328         P. 2



                                          CAUSE NO. 2006-07-3289-C

      BAHIA MAR CO-OWNERS                                      §       IN THE DISTRICT COURT
      ASSOCIATION. INC.                                        §
                                                               §
                                                               §
      vs.                                                      §       187"* JUDICIAL DISTRICT

      BAHIA MAR MAINTENANCE
      ASSOCIATION,
      ALMA INVESTMENTS, INC.
      d/b/a TEXAS ALMA INVESTMENTS, INC.                               CAMERON COUNTY.


                                                       ORDER



              On August 23, 2012 a status hearing was held.
             After considering the arguments of counsel, the court hereby
              ORDERS Kahil Pakideh and Martin Pakldeh to appear for deposition at the law
      offices of Jones. Galllgan, Key & Lozano, L.L.P., 2300 West Pike Blvd. Suite 300,
      Weslaco, Texas 78696. (956) 968-5402 on September 28. 2012 at 9:00 a.m., unless
      agreed otherwise.

              The court FURTHER sets Defendants' motion for summary judgment for
      submission (no hearing will be held) before the 197^ Judicial District Court, on
         November 19. 2012 at 9:00 a.m.                  and orders Plaintiff to file their response by
         November 9. 2012

              SIGNED                                 2012.




                                                                      PRESioiNGlUDGE                     /
                                                                           FlJED^mli—O'CLOCK,
                                                                                       O'CLOCK
                                                                               ORADELAQARZACIERK
                                                                           AUnORAOElAQARZA.'

                                                                                  OCT 01 2012
                                                                                 COURT                 '.TEXAS
       OCT 0 1                                                                                            PUTY

      Copies to:
      Lance A. Wrtjy, Post OfRce Drawer 1247, Weslaco, Texas 76699; Fax (966) 969-9402
      HactOf J. Torres, 418 East Dove Ave., McADen, Texas 78604; Fax (966) 630-0189
      LouisS. Sorola, 1999 West Jefferson Street Brownsville, Texas 78620; Fax (966) 644-7766
      Alma inveatments, inc.. 38600 V\toodward Ave Suite 200, BloomfielO Hills, Michigan 48304; Fax (248)671-0884
      TERRY D. KEY
      DENNIS SANCHEZ
      BAHIA MAR INAINTENANCE ASSOCIATION


                                                                                                                 30
TAB
  6
                              CAUSE NO. 2006^-^89-0

BAHIAMAR CO-OWNERS                            §      IN THE DISTRICT COURT
ASSOCIATION. INC.                             §
                                              §

V8.                                           §      19/^ JUDICIAL DISTRICT
                                              §
BAHIA MAR MAINTENANCE                         §
ASSOCIATION.                                  §
ALMAINVESTMENTS. INC.                         §
   TEXAS ALMA INVESTMENTS. INC.               §      CAMERON COUNTY.


                                        ORDER



      On December 13,2012 a hearing was held on^he fbRowIng moOone:
      1.    Defandanfs Motion to Quaih Plainlifrs Notioe of Oral Deposilion of Oefendanft
            Kahl PaMdeh (dad 1(V2S/12);

      z.     uorancunrt Moaon to uunn rnamiirs nouoo oi urai uspotnon or Mwim paKxMn
             (flled1(V28^12)and;

      3.     Motion to Quash Plaintttrs Notioe of Oral Depotttions of Defendant's Corporate
             Representative (dad 11/21/12);

      AAar considering the arguments of counsel, along with the pievioue order requalng
depositions to take plaM that is dated September 6.2012. the court hereby
       ORDERS KahM Paiddeh and Martin Palddeh to appear for depositions at the law
ofRoes of Jones, QeRgtti. Key & Lozano, LLP., 2300 West Pflre Blvd. Suite 300,
WoBlaco, Texas 78598, (9M) 968-5402 on January 26,2013 at MO ajn. and 1:00 pjn.
respectively. Kahl Palddeh. Martin PaMdeh andfor Alma Investments. Inc. wd be
responsfcte for Kahfland Martin Palddeh's transportation expenses to and from Wdslaco.

      The court FURTHER ORDERS that the deposition of Akna Inveshnents. Inc.'s
oorporsAe repfesentativeCs) which is the sutiiect of item 3 atwve win not take piaoe until
after March 1.2013.




                                        Pao6lof2




                                                                                  281
TAB
  7
                                                                      FILED
                                                                      2014-DCL-04099
                                                                      6/23/2014 12:01:29 PM
                                                                      Aurora De La Garza
                                               ^ rv/%1 AitnoQ         Cameron County District Clerk
                              CAUSE NO. 2014-DCL-U4U5>»               By Oralia White Deputy Clerk
BAHIA MAR GO-OWNERS                             §     IN THE DISTRICT COURT
ASSOCIATION, INC.                               §
  Plaintiff,                                    §
                                                §
vs.                                             §
                                                §
MSP PARTNERS REALTY, LLC, a Florida             §               JUDICIAL DISTRICT
Limited Liability Company,                      §
MSP PARTNERS REALTY, VLC a Texas                §
Limited Liability Company,                      §
Alma Investments, Inc.,                         §
KHALILPAKIDEHand                                §
MARTIN S. PAKIDEH                               §
   Defendants.                                  §     CAMERON COUNTY, TEXAS


            PLAINTIFF'S ORIGINAL PETITION & REQUEST FOR DISCLOSURE


       1.      Plaintiff seeks onlymonetary relief over $1,000,000.00, including damages

of any kind, penalties, costs, expenses, prejudgment interest, and attorney fees. TRCP
47(c)(6).

                             A. DISCOVERY CONTROL PLAN

       2.      Plaintiff intends to conduct Level 3 discovery under Texas Rule of Civil

Procedure 190.4.

                                       B. PARTIES

       3.      Plaintiff, Bahia Mar Co-Owners Association, Inc., is a corporation that is

organized under the laws of the State of Texas.
       4.       Defendant, MSP Partners Realty, LLC, a Florida limited liability company

"MSP", is a corporation that is incorporated under the laws of the State of Florida.

Defendant MSP was originally incorporated in Texas as MSP Partners Realty, LLC, a

Texas Limited Liability Company ("MSP Texas"). In 2010, MSP Texas converted into

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