                                                                                  ACCEPTED
                                                                             01-14-00864-CV
                                                                   FIRST COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                        2/20/2015 4:30:02 PM
                                                                         CHRISTOPHER PRINE
                                                                                      CLERK


               Cause No.:     o1-14-00864-CV
                                                            FILED IN
                                                     1st COURT OF APPEALS
                                                         HOUSTON, TEXAS
                                                     2/20/2015 4:30:02 PM
                       COURT OF APPEALS
                                                     CHRISTOPHER A. PRINE
                    FIRST DISTRICT OF TEXAS                  Clerk
                        HOUSTON, TEXAS



         Llyasab Dupree d/b/a 360 Degree Beauty Academy,
                            Appellant

                                Vs

                       Boniuk Interest, Ltd,
                            Appellee



                    BRIEF OF THE APPELLANT




                              Timothy L. Williams, MBA, JD
                              TBN: 00791938
                              TL Williams & Associates
                              11811 North Freeway, Suite 212
                              Houston, Texas 77060
                              713.504.1882 - Office
                              twilliams.nhcs@yahoo.com - email
                              Attorney for Appellant, Llyasah Dupree
                              d/b/a 360 Degree Beauty Academy



               ORAL ARGUMENT NOT REQUESTED
llPage
                         IDENTITY OF THE PARTIES

Appellant/Plaintiff

Llyasah Dupree d/b/a 360 Degree Beauty Academy

Attorney for Appellant

Timothy L. Williams, MBA, JD
TL Williams & Associates
11811 North Freeway, Suite 212
Houston, Texas 77060

Appellee/Respondent

Boniuk Interest, Ltd

Attorney for Appellant

Debra Boniuk
Boniuk Interest, Ltd
3720 San Jacinto
Houston, Texas 77004




21Page
                               TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                                                       2

INDEX OF AUTHORITIES ..............................................                   5

STATEMENT OF CASE                                                                     7

ISSUES PRESENTED ................................ ............................        7

       Point of Error 1: Use of parol evidence to ascertain to intent
       of the parties in the construction of the promissory note
       between the Defendant landlord and Llyasah Dupree, Plaintiff

       Point of Error 2: Evidence does not support the decision,
       Plaintiffs tendering of payments for lease payments not
       deposited by Defendant Landlord

       Point of Error 3: No consideration for the amendment to the
       lease agreement. The Plaintiff had a duty to pay rent under the
       lease agreement and there was no additional consideration.

       Point of Error 4: The court erred in not ruling that the
       Appellee had committed fraud by presented business records to
       the court that the Appellee testified were inaccurate and were
       used to commit fraud on the Appellant

STATEMENT REGARDING ORAL ARGUMENT                                                     8

STATEMENT OF FACTS                                                                    8

SUMMARY OF THE ARGUMENT                                                               9


STANDARD OF REVIEW                  ...............................................   9


31Page
ARGUMENT         ..............................................................                  10

CONCLUSION AND PRAYER                                                                            21

CERTIFICATE OF SERVICE                  ......................................................   21

CERTIFICATE OF COMPLIANCE                                                                        22

APPENDIX         ...............................................................                 23

    Exhibit 1:   Finding of Facts and Conclusions of Law




41Page
                 INDEX OF AUTHORITIES


CASES

L    Harrison v. Texas Employers Ins. Ass'n, 747 S.W.2d 494,
     498 (Tex. App.--Beaumont 1988, writ denied);

2.   Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 837 (Tex.
     App.--Houston [1st Dist.] 1987, writ refd n.r.e.), cert.
     denied, 485 U.S. 994 (1988).

3.   Texas Export Dev. Corp. v. Schleder, 519 S.W.2d 134, 137
     (Tex. Civ. App.--Dallas 1975, no writ).

4.   Town North Nat. Bank v. Broaddus, 569 S.W.2d 489, 491
     (Tex. 1978).

5.   Baker v. Baker, 143 Tex. 191, 183 S.W.2d 724,728 (Tex.
     1944);

6.   Trinity Univ. Ins. Co. v. Ponsford Bros., 423 S.W.2d 571,
     574-75 (Tex. 1968).

7.   Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).



8.   City of Pinehurst v. Spooner Addition Water Co., 432
     S.W.2d 515, 518 (Tex. 1968)

9.   Community Dev._ [**5] Serv., Inc. v. Replacement Parts
     lvffg., 679 S.W.2d 721, 724 (Tex. App.--Houston [1st Dist.]
     1984, no writ).




51Page
10.   Albritton Dev. v. Glendon, 700 S.W.2d 244, 246 (Tex.
      App.--Houston [1st Dist.] 1985, writ refd n.r.e.).

11.   Rincones v. Windberg, 705 S.W.2d 846,847 (Tex. App.--
      Austin 1986, no writ).

12.   Hathaway v. General Mills, Inc., 711 S.W.2d 227, 228, 29
      Tex. Sup. Ct. J. 333 (Tex. 1986)

13.   American Nat. Ins. Co. v. Teague, 237 S.W. 248, 250 (Tex.
      Comm'n App. 1922, holding approved)

14.   Hill v. Heritage Res., Inc., 964 S.W.2d 89, 113 (Tex. App.n
      El Paso 1997, pet. denied)

15.   Havas v. O'Brien, 654 S.W.2d 801, 803 (Tex. App.--
      Houston [14th Dist.] 1983, writ refd n.r.e.).                 I
                                                                        I




6iPage
TO THE HONORABLE FIRST COURT OF APPEALS:

                         STATEMENT OF THE CASE


Nature of Case                  The court abused its discretion by admitting parol
                                evidence to establish the intent of the parties when
                                the language of the contract was unambiguous,
                                found a contract where no new consideration was
                                given for the amendment and failed to find fraud
                                for the submission of misleading exhibits by the
                                Appellee


The Trial Court                 The 11 th Judicial District, Harris County, Texas


Trial Court's Disposition       Dismissed Plaintiffs cause of action and granted
                                relief to the Defendant on its counterclaim for
                                breach of contract



                             ISSUES PRESENTED

Point of Error 1: Use of parol evidence to ascertain to intent of the parties in the

construction ofthe promissory note between the Appellee and the Appellant.



Point of Error 2: Evidence does not support the decision, Appellant tendering of

payments for lease payments not deposited by Appellee.



71Page
Point of Error 3: No consideration for the amendment to the lease agreement.

The Appellant had a duty to pay rent under the lease agreement and there was no

additional consideration.



Point of Error 4: The court erred in not ruling that the Appellee had committed

fraud by presented business records to the court that the Appellee testified were

inaccurate and were used to commit fraud on the Appellant


               STATEMENT REGARDING ORAL ARGUMENT


      The issues regarding contract law are well cited in Texas case law and the

Appellant Plaintiff does not believe that oral arguments before the court are

necessary and are not requested by the Appellant.


                            STATEMENT OF FACTS

Court ruling

      On July 25,2014, the    11th   Judicial District Court entered judgment in open

court denying the Appellant petition for relief and granting the Appellee relief on

its counterclaim and for attorney fees.

      The Appellant filed a request for Findings of Facts and Conclusions of Law

on August 2014. The Court filed its Findings of Facts and Conclusions of Law on


81Page
August 15, 2014. The Appellant filed its Notice of Appeal on November 2014.

The court repOlier filed the record on January 21, 2015. The brief of the Appellant

was due on February 20, 2015.


                      SUMMARY OF THE ARGUMENT

      The Appellant argues that (1) the court erred in the use of parol evidence to

ascertain to intent of the parties in the construction of the promissory note between

the Appellee and the Appellant because the terms of the agreement were not

ambiguous; (2) that the court erred in ruling that the evidence does supports the

decision, by determining that the Appellant's tendering of lease payments which

were not deposited by the Appellee as not being tendered;      (3) the court erred in

determining that there was consideration for the amendment to the lease

agreement. The Plaintiff had a duty to pay rent under the lease agreement and

there was no additional consideration for the amendment; and (4) by failing to rule

that the Appellee had engaged in fraud and misrepresentation to the court by

presented business records to the court that the Appellee subsequently testified

were inaccurate and were used to commit fraud on the Appellant.


                            STANDARD OF REVIEW

      The standard of review is a preponderance of the evidence in a civil, non-

family cause of action.

91Page
                                   ARGUMENT

Point of Error 1: Use of parol evidence to ascertain to intent of the parties in

the construction of the promissory note between the Appellee and Appellant.



1.      On December 18,2009, Appellant and Appellee entered into an agreement

        whereby pursuant to the plain language of the contract, the Appellant would

        give the Appellant a loan in the amount of $21,499.       The terms of the

        agreement are plain and clear and no other consideration is mentioned in the

        language within the "four comers" of the agreement.



2.      In return for the loan, the Appellant was obligated to pay the Appellee

        installment payments in the amount of $440 per month for 60 months.



3.      The Appellant made payments on the loan for the first three months, but did

        not receive the funds from the Appellee. The failure of the Appellee to

        provide the funds [See Transcript page 46, lines 8-25 and page 47, lines 1-

         12] to the Appellant was a material breach of the promissory note and,

        therefore, the Appellant was released from performance under the

        promissory note.




10   I P age
4.   The court relied on exhibits provided by the Appellee to ascertain the nature

     of the consideration, even though the language of the promissory note was

     plain and uncontroverted. The language in the promissory note stated that

     the principal amount to be paid to the Appellant is $21,499.00.



5.   The court relied on exhibits to speculate that the consideration could have

     been the credit for past due lease payments, although no evidence was

     entered crediting the Appellant account for such action and despite the

     testimony of the Appellee that the business records provided supporting such

     argument were" ... inaccurate."



6.   To obtain reversal of a judgment based on error in the admission or

     exclusion of evidence, an appellant must show that the trial court's ruling

     was in error and that the error was calculated to cause and probably did

     cause rendition of an improper judgment. Harrison v. Texas Employers Ins.

     Ass'n, 747 S.W.2d 494, 498 (Tex. App.--Beaumont 1988, writ denied);

     Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 837 (Tex. App.--Houston

     [1st Dist.11987, writ refd n.r.e.), cert. denied, 485 U.S. 994 (1988).




lllPage
7.      Reversible error does not usually occur in connection with rulings on

        questions of evidence unless the appellant can demonstrate that the whole

        case turns on the particular evidence that was admitted or excluded. Texaco,

        Inc., 729 S.W.2d at 837. The Appellant's cause of actions on the promissory

        note for breach turns on whether the consideration is as stated in the note

        and that the Appellant is to receive the amount listed therein.       If the

        consideration in the promissory note is for the amount stated therein, then

        the Appellee breached the agreement by note tendering the amount to the

        Appellant, even though the Appellant had performed under the promissory

        note by making the requisite payments.



8.      It is well settled that a written instrument may not be varied by evidence of

        an oral agreement that contravenes its terms. Texas Export Dev. Corp. v.

        Schleder, 519 S.W.2d 134, 137 (Tex. Civ. App.--Dallas 1975, no writ).

        However, parol evidence is admissible to show (1) that the execution of a

        written agreement was procured by fraud, Town North Nat. Bank v.

        Broaddus, 569 S.W.2d 489, 491 (Tex. 1978); (2) that an agreement was not

        to become effective except upon certain conditions or contingencies, Baker

        v. Baker, 143 Tex. 191, 183 S.W.2d 724,728 (Tex. 1944); or (3) to ascertain




12   I P age
      the parties' true intentions, where the writing is ambiguous. Trinity Univ. Ins.

      Co. v. Ponsford Bros., 423 S.W.2d 571, 574-75 (Tex. 1968).



9.    If the written instrument is worded so that it can be given a certain definite

      meaning or interpretation, then it is not ambiguous, and the court will

      construe the contract as a matter of law. Coker v. Coker, 650 S.W.2d 391,

      393 (Tex. 1983); City of Pinehurst v. Spooner Addition Water Co., 432

      S.W.2d 515, 518 (Tex. 1968); Community Dev'            n
                                                                 [**5] Serv., Inc. v.

      Replacement Parts Mfg., 679 S.W.2d 721, 724 (Tex. App.--Houston [1st

      Dist.] 1984, no writ).



10.   To permit parol evidence under the first of these exceptions, there must be a

      showing that the payee employed some type of trickery, artifice, or device

      and that the payee induced the maker to execute the note by a promise that

      he would not be liable for its payment. Town North Nat'l Bank, 569 S.W.2d

      at 491; Albritton Dev. v. Glendon, 700 S.W.2d 244, 246 (Tex. App.-

      Houston [1st Dist.] 1985, writ refd n.r.e.). Here, there was no such trickery

      or fraud, thus the requisite showing of fraud in the inducement that would be

      necessary to allow introduction of parol evidence is not present.




13IPage
11.      The second exception to the parol evidence rule requires that a condition

         precedent was contemplated by the parties.       A condition precedent is one

         that postpones the effective date of the instrument until the happening of a

         contingency. Baker, 183 S.W.2d at 728. In contrast, a condition subsequent

         is one that excuses an already binding agreement. Rincones v. Windberg,

         705 S.W.2d 846, 847 (Tex. App.--Austin 1986, no writ).            While parol

         evidence is admissible to prove the existence of a condition precedent to a

         contract, extrinsic evidence of a condition subsequent is not admissible to

         vary the terms of a valid and binding written agreement.



12.      There were no conditions precedent to the execution of the promissory note

         and, therefore, the introduction of parol evidence is in error.



13.      The third exception to the parol evidence rule allows testimony about the

         intent of the parties when the writing contained in the document is

         ambiguous. Community Dev. Serv., 679 S.W.2d at 724. The language in the

         promissory note is plain and unambiguous, it states that the Appellant is to

         receive the amount stated in the agreement in money, not a credit, and the

         Appellant is to make monthly payments to payoff the loan.




14    I P age
Point of Error 2: Evidence does not support the decision, Plaintiff's tendering

of payments for lease payments not deposited by Defendant Landlord



14.      The court based its decision for the counterclaim for the Appellee and

         denied relief for the Appellant on its case in chief on the fact that the

         Appellant had not made payments to the Appellee.



15.      The Appellee testified that the Appellant had tendered to Appellee payments

         for the months of August 2010, September 201, October 2010, November

         2010 and December 2010 and that Appellee had received such payments for

         the above referenced months that it claimed that the Appellant had not paid

         and for which it made the basis for the eviction of the Appellant from the

         premises. [Transcript page 125, lines 1-22]



16.      The Appellee testified that it had received checks for the full payment of the

         lease agreement from the Appellant for the months of August 2010,

         September 2010, October 2010, November 2010 and December 2010.


17.      The Appellee testified that under the lease agreement, the Appellee had the

         authority to deposit any and all of the checks tendered to it by the Appellant,

         including partial payments, without waiving its rights under the lease.

15    I P age
18.      If the Appellee had deposited the checks and the checks had been returned

         for insufficient funds, then the Appellee could argue that the appellant had

         not tendered the lease payments.



19.      The Appellee did not deposit the tendered funds and proceeded strainght to

         eviction, without any evidence that the Appellant tendered payments were

         not adequately funded.



20.      Accordingly, the court erred by ruling that the appellant had not tendered the

         funds for payment of lease payments for the period from August 2010 to

         December 2010.      The Appellant testified that she had authorized the

         Appellee to cash the checks tendered for August, September, October,

         November and December 2010.



Point of Error 3: No consideration for the amendment to the lease agreement.

The Plaintiff had a duty to pay rent under the lease agreement and there was

no additional consideration.




16    I P age
21.      The court erred by ruling that the amendment to the lease agreement was

         valid and legally enforceable.   An amendment to a contract has to be

         supported by separate and independent consideration to be enforceable.



22.      Texas courts have consistently adhered to the rule that a modification to a

         contract must itself be supported by consideration to be valid. See Hathaway

         v. General Mills. Inc., 711 S.W.2d 227,228,29 Tex. Sup. Ct. J. 333 (Tex.

         1986); [** 14] American Nat. Ins. Co. v. Teague, 237 S.W. 248, 250 (Tex.

         Comm'n App. 1922, holding approved); Hill v. Heritage Res., Inc., 964

         S.W.2d 89, 113 (Tex. App.--El Paso 1997, pet. denied); Hovas v. O'Brien,

         654 S.W.2d 801, 803 (Tex. App.--Houston [14th Dist.] 1983, writ refd

         n.r.e.).



23.      The Appellant had a pre-existing duty to pay the amounts provided for in the

         alleged amendment to the lease agreement. Therefore, the Appellant did not

         provide any new consideration and the amendment fails as a legally

         enforceable contract due to the absence of new consideration.




17    I P age
24.   Without the enforceability ofthe amendment, it is impossible to determine if

      the Appellee or the Appellant breached the lease agreement, or which party

      breached first.



25.   In addition, if the amendment to the lease agreement is deemed to fail due to

      the lack of consideration, then the court's ruling that the amendment

      language stating that are prior disputes between the parties are settled is in

      error.



Point of Error 4:       The court erred in not ruling that the Appellee had

committed fraud by presented business records to the court that the Appellee

testified were inaccurate and were used to commit fraud on the Appellant



26.   The Appellee testified that the business records it offered to the court as

      exhibits were authentic when in fact the Appellee knew the exhibits were in

      fact inaccurate. Appellee attorney stated that Appellee Exhibit D3, when the

      court raised a question concerning the exhibit, was "... a mistake in our

      accounting and I will say that up front." [Transcript page 69, lines 14-16]




181Page
27.      Appellee then moves to admit Appellee Exhibit D3 knowing that this

         document was not accurate. [Transcript page 80, lines 7-9]



28.      Appellee then states that the admitted "Defendant Exhibit No.3 is a tenant

         payment list showing your [Appellant] payment history for 2010 and 2011.



29.      Appellee also testifies that the document entered as Appellee Exhibit D3 was

         the Tenant Payment List for 2008-2009 and 2010-2011 [Transcript page

         120, lines 10-19]



30.      The court then clarifies the nature of the exhibit as the Tenant Payment List

         for 2008,2009,2010 and 2011 [Transcript page 121, lines 4-7]



31.      Appellee then testifies that "There are some inaccuracies in this piece of

         paper right here (Appellee Exhibit D3)."



32.      In addition, the Appellee states that "I don't lmow the answer to that" when

         asked if he knew whether these documents were given to Ms. Dupree to

         support the fact that she had not paid rent. [Transcript page 122, lines 18-20]




19    I P age
33.      The Appellee also testifies that the Tenant Payment List admitted as Exhibit

         D3 does not show a credit to Ms. Dupree's account in the amount of the

         promissory note. [Transcript page 124, lines 6-10]



34.      Accordingly, Appellee has provided no evidence that it provided the

         Appellant with any notice of the breach for failure to make payments, while

         holding checks tendered to the Appellee by the Appellant; or the Appellee

         provided the Appellant with notice of the breach for failure to make

         payments with a notice, by the Appellee own admission that state that

         "There are some inaccuracies in this piece of paper right here (Appellee

         Exhibit D3)."



35.      The Appellee testified that it knew that the business records were inaccurate

         when they were offered for admission and were offered to deceive the court.



36.       The exhibits should not have been admitted because they were offered based

          on fraud.



37.       The Appellee and the Appellee attorney were aware of the fraud and should

          be sanctioned by having the exhibits stricken from the trial court record and


20    I P age
        the Appellee and the Appellee attorney should be held in contempt of court

        for participating in the fraud.



                           CONCLUSION AND PRAYER

        For these reasons, Appellant asks the Court to remand the case back to the

trial court and order the trial court to reverse its ruling on the issues presented

herein, to award the Appellant - Plaintiff attorney fees and court costs.




                                          Timothy L. Wi . ms, MBA, JD
                                          TBN: 00791938
                                          TL Williams & Associates
                                          11811 North Freeway, Suite 212
                                          Houston, Texas 77060
                                          713.504.1882 - Office
                                          i!yill~a.ms.nhcs-®yahoo.com - email
                                          Attorney for Appellant, Llyasah Dupree
                                          d/b/a 360 Degree Beauty Academy




                            CERTIFICATE OF SERVICE

         I certifY that a true and complete copy of the Appellant's Appellant's Brief

was sent to the Appellee, Boniuk Interest, Ltd, by and through its attorney of

record, Debra Boniuk, Boniuk Interest, Ltd, 3720 San Jacinto Street, Houston,




21   I P age
Texas 77004 via United States Certified Mail, Return Receipt Requested on the

d-b~'aay of l£L~~{lJOj\~                         ,2015.




                                         Timothy L. Wil i ms, MBA, JD




                       CERTIFICATE OF COMPLIANCE

        Pursuant to Rule 9 ofthe Texas Rules of Appellate Procedure, this document

is formatted in typeface of 14   ~   point and the computer generated word count for

the document is 3,300.




                                          Timothy L. Wi lr ms, MBA, JD




22   I P age
        EXHIBIT 1 - FINDINGS OF FACT AND CONCLUSIONS OF LAW




23   I P age
                                                                                              7/14/201441141 PM
                                                                                              Chns Darnel - Dlstnct Clerk
                                                                                              Harris County
                                                                                              Envelope No 1818431
                                                                                              By System user. TexFlle


                                     CAUSE NO               2013-40231

LLYASAH DUPREE d/b/a                              §              IN THE DISTRICT COURT OF
360 Degree Beauty Academy,                        §
PlamtIff/Counter-defendant                        §
vs                                                §            HAJUUSCOUNTY,TEXAS

BONIUK INTERESTS, LTD,
                                                  §
                                                  §
                                                                                                   FILED
                                                                                                       ChrIs DanIel
Defendant/Counter-plamtIff                        §             11TH JUDICIAL      COURT              DistrIct Clerk

                                                        TIme
                                                                                                     AUG 15 2014
                                                                                                               <./
         ~lfE"?t±&NfiGoml'fERof'LAIN1'lFF'S ~ FINDINGS Qii:ACT                                         ',rI. Counly.
                             AND CONCLUSIONS OF LAW                                                       Dapu
                             ,
TO, THE   HONORABL~ JUD~ OF SAID C O t
         COMES NOW. Plamtl~ BONISK IN                   RESTS, LTD ,y..            uests the Court to enter L e

followmg   Fm~lof Fact and ~1'lons of                                 eabove referenced   d     moered cause    0


~ctIon
                                      l~Fmdmgs of Fact
1        Bomuk Interests, Ltd (Landlord) and Llyasah M Dupree (Tenant) entered mto a wntten lease

agreement on September 30, 2007, whereby counter-plamuff; Landlord, leased real property

(approxImately 10,000 square feet) located m a commercIal shoppmg center (4815 HIghway 6 North,

Houston, HarriS County, Texas - the Premises) to counter-defendant, Tenant, for use as a beauty

cosmetology school and related actlVllies

2        The lease was for an eIghty-four (84) month mllial tenn commencmg on January 28, 2008

3        Tenant promIsed to pay the mmlmum rent under the Lease, whICh was $70000 per month

(months 1 - 3), $1,400 per month (months 4 - 7), $5,000 per month (months 8 - 24), and $6,00000 per

month (months 25 - 84) In addItIOn, the Tenant agreed to pay the addItIOnal charges for Common Area

Mamtenance, taxes and msurance, and water/sewer addmg an additIOnal $1,323 00 per month begmmng




                                            RECORDER S MEMORANDUM
                                            ThiS lnstrument IS of poor quality
                                                  at the lime of Imagmg
m month 8, resultmg m a total gross rent oblIgatIon of $6,323 per month (months 8 - 24), and $7,323 00

per month (months 25 - 84)

4       The Lease was amended on September 26, 2008

5       Tenant entered mto possessIOn of the premises, and, despite landlord's fuJI perfonnance of all

oblIgatIOns and conditIOns of the lease, tenant faIled to pay the rent pursuant to the tenns of the lease

6       Dupree struggled to pay the rental payments at various tImes durmg the time penod she occupied

the premises

7       During December 2009, Dupree requested that she start the new year (2010) With a zero ($0)

balance so that the busmess debt-to-mcome ratIO would look better for the government auditors Thus,

on or about December 18, 2009, Llyasah M Dupree executed and delIvered to BOnIuk Interests, Ltd a

promissory note dated December 18, 2009, whereby Llyasab Dupree promised to pay to the order of

BonmkInterests, Ltd the sum of$21,499 00

8       Tenant breached the lease by faIlmg to pay rent due and contmued m default despite Landlord

glVlng Llyasab Dupree notice of default

9       On or about March 10, 201 I, Landlord exercised It nghts pursuant to the Lease Agreement

(SectIOn 19) and the Texas Property Code (sectIOn 93002) to change the locks on the Premises for

f",lure to pay rent due Llyasah M Dupree did not pay her rental arrears to re-enter the preIlllses

10      On March 22, 2011, LJyasab Dupree filed a WrIt of Re-entry With a Tenant's Sworn Complalllt

m the JustIce of the Peace Court, Precmct 5, Place 2, case number EV52C0309272 A hearIng was held

on March 24, 2011 @ 4 00 pm at which time Judgment was entered           III   favor of the landlord confinnmg

that the lockout was lawful
11                                                                          ge the 100
                                                                                                         ~DN\
                                                                                          on th lease space and

Ille                                                                                 funllture a d Ixtur s   ~
which a valId h       ad eXisted                                                     ,

12         Landlord conunenced efforts to re-Iet the premises Immediately            On July I, 20ll, Bomuk

Interests, Ltd contraoted with a third party to lease the premises at 4815 Highway 6 North, Houston,

Hams County, Texas The rent conunencement date under the terms of this new lease was November 4,

2011

13        Plamtlff/oounter-defendant defaulted In faIling to pay her rental payments when due

14        The Lease has been breached the lease by filliure to pay rent due under the tenos of the lease

15         Counter-plaintiff bas requested counter-defendant to pay counter-plamtlff those sums due and

owmg to counter-plamtlff

16         On or about March 28, 2011, counter-plamtlff presented a olalm on the Lease to oounter-

defendant for payment The claIm was Inade by letter received by oounter-defendant on March 30, 2011

Via    certified mall, RRR (7011 0110 0000 4181 9822), demandmg payment of past due rent

17         Agam on July 19, 2013, counter-plamtlff presented a claim on the Lease to counter-defendant

through her attorney of record for payment The claim was made by letter reCeIved by counter-defendant

on July 19, 2013 via faCSimile transmission and on July 24, 2013          Via   certified mail, RRR (7011 0110

0000 4181 8665), demandlOg payment of past due rent III the aIUount of 91, 168 00

18         Counter-defendant bas faIled to pay SaId account to counter-plallltiff

19         That the correct balance due to counter-plalOtlfffor rental payments III thiS laWSUit IS $91,168 00

20         On or about December 18, 2009, at Houston, Texas, Llyasah M Dupree (Borrower) executed

and delivered to Bomuk Interests, Ltd (Lender) a promissory note dated December 18,2009, whereby

Llyasah Dupree promised to pay to the order of Bomuk Interests, Ltd the sum of $21,499 00, due and
payable In equal monthly Installments of $440 00 from February I, 2010 through February 1, 2015 at

Houston, Texas

21       Said note bears mterest from February 1, 2010 at the rate of eight percent (8%) per annum until

matunty and from maturity unnl paJd at the rate of fifteen percent (15%) per annum Bomuk Interests,

Ltd, as the legal owner and holder of such note,   IS   the entIty enlltied to enforce It

22       LIyasah Dupree made only one payment towards the note, $1,452 00 on June 10,2010 DespIte

Lender's demand for payment from LIyasah Dupree after the note became due and payable, Llyasah

Dupree made only one payment towards the note, $1,452 00 on June 10, 2010

23       Plamllff/counter-defendant defaulted m fRllmg to pay her note payments when due

24       The Note has been breached by faIlure to pay payment obhgatlOns due under the terms of the note

25       Counter-plamlIff has requested counter-defendant to pay counter-plamtlff those sums due and

owmg to counter-plamtlff

26       On or about January 11, 2011, Lender sent notice of default and mtent to accelerate to Llyasah

Dupree     On or about March 28, 2011, Lender accelerated the matunty of the note and demanded

payment of the note   In   full by LIyasah Dupree, but no addIlIonal payments have been made Fmally, on

or about July 19, 2013, Bomuk lnterests, Ltd sent demand for payment of the note In the amount

$28,49745

27       Counter-defendant has faIled to pay said account to counter-plamtlff

28       That the correct balance due to counter-plamtIfffor note payments m thiS laWSUIt IS $28,497 45
29 In January, 2008, durmg the bUIld-out but pnor to tenant occupymg the
premIses, the premIses were damaged durmg a storm from a roof faIlure that
allowed ramwater to flood the premIses ThIS delayed tenant's occupancy of the
premIses and damaged some of tenant's personal property

30 The September 26, 2008 lease amendment abated the rent for the months of
September, October and November, 2008 It also deferred $3000 per month of
rent for the months of December, 2008 through March, 2009, WIth the agreement
that tenant would pay these deferred amounts m mcrements of $500 per month for
24 months begmnmg October, 2009 ThIS amendment also mcluded a mutual
release of all claIms between the partIes eXlstmg at the tIme of the amendment
-.




                                            ConclusIOns of Law

         The Lease has been breached for failure to pay rents due to Landlord pursuant to the terms

         ofthe Lease Agreement Counter·defendant defaulted under the Lease by fadmg to pay the

         rent due

     2   The unpaid balance due from counter-defendant to counter-plamhff IS $91,168 00

     3   Counter· plamtdfhas satIsfied all conditIOns precedent to complete performance of the

         Lease and has fully performed ItS oblIgatIOns under the lease Counter-plamtlff IS entitled to

         recover aU damages owed under the Lease and/or permitted by law Counter-plamtlff IS also

         enhtled to recover prejudgment and post-Judgment mterest as prOVided m the Lease andlor

         permitted by law, attorney's fees and court costs

     4   The Note has been breached for fOllure to pay pnnclpal and mterest due to Lender pursuant

         to the terms of the Promissory Note Counter-defendant defaulted under the Note by falhng

         to pay the mstaUments due

     5   The unpaid balance due from counter-defendant to counter-plOlntlffunder the terms ofthe

         Note IS $28,497 45

     6   Counter- plamtlff has sahsfied aU conditIOns precedent to complete performance of the

         Promissory Note and has fully performed ItS oblIgatIOns under the note Counter-plalllhff IS

         enhtled to recover all dOlDages owed under the Note andlor penmtted by law           Counter-

         plamllff IS also entitled to recover prejudgment and post-Judgment mterest as prOVided III the

         Note andlor permitted by law, attorney's fees and court costs

     7   As a result of counter-defendant's fOllure and refusal to pay the clOlms, counter-plamlIffhas

         been reqUired to retam the underSigned legal counsel to defend thIS cause of actIOn and

         prosecute thiS counterclaim Counter-plamtlff IS, therefore, entitled to recover the additIOnal
    sum of$15,000 as compensatlOn for Its attorney's fees, whIch sum IS a reasonable
    fee for the servIces rendered m mstltutmg and prosecutmg thIs actlOn

    8 The September 26, 2008 lease amendment released tenant's claIms agamst
    landlord stemmmg from the water mtruSlOn event m January, 2008

    9 The statute ofhmltatlOns barred tenant's claIms stemmmg from the January,
    2008 water mtruslOn event

    10 PlamtIffLlyash Dupree failed to prove the followmg causes of actIon alleged
    m PlamtIffs Ongmal PetItlOn breach oflease, wrongful eVictIon, retalIatory
    eVictIOn, unjust ennchment ["Reimbursement"], fraud and vlOlatlOn of the Texas
    DeceptIve Trade PractIces Act

    11 Plamtlff Llyash Dupree dba 360 Degree Beauty Academy        IS   entitled to no
    recovery agamst Defendant on any of her claims



,   SIgned thiS   IS   day of August, 2014




                                             Mike MIller Judge Presldmg
                                            \\\\\\\\\\ II) IIIIII/.
                                         \'" . ~ HARb 1/,;;.


                                   fi*~C%1~~'
                                   ?ol
                                  ~~f
                                                                      \.~~


                                  ."~~\
                                   -'l   ",_n.   ".
                                                               /~~~J
                                                             .- ..J.,,~   "
STATE OF TEXAS                              .~ "IO· .. ·~······~.,. ,.:::>
COUNTY OF HARRIS                             ~~'l//It/Jtll'~-<\'~~
I.. Chris Danl.l, DI.lrlct CI'.'" 01 Harri. Coun~, TOIla\; oOiIIly thlt
tnl, I. a\rue .n<! comet copy 01 tli. onglnel rBCOrd ,ted and or NIOr@<!
In my ofIIce, .I.cironlcally or h.rd copy, " It.ppears on thle data,
W1tn... mr             ~~ .~<II f C<l thl.
               EXHIBIT 2 - FINAL JUDGMENT




24   I P age
                                                                                              7/24/201421636 PM
                                                                             Chns Oamel- DIstrict Clerk Hams County
                                                                                              Envelope No 1935004
                                                                                           By JONATHAN PATTON




                                   CAUSE NO. 2013-40231

LL YASAH DUPREE d/b/a                        §         IN THE DISTRICT COURT OF
360 Degree Beauty Academy,                   §
Plaintiff/Counter-defendant                  §
vs.                                          §         HARRIS COUNTY, TE~
                                             §                                 ",~
                                                                             "'-~.
BONIUK INTERESTS, LTD,                       §                              fF~
Defendant/Counter-plaintiff                  §         nTH JUDICIAL     coim?i
                                                                         ~
                                      FINAL JUDGMENT
                                                                  ~
                                                                 00
       On July 22, 2014, the Court called this case for trial.   ~ Interests, Ltd. (Taxpayer

LD. #XX-XXXXXXX), hereinafter referred to as      defendanti~ter-Plaintiff,      appeared by and

through its attorney of record and aonounced ready       ~~al.        Llyasah Dupree, hereinafter
                                                        «;::jt
referred to as plaintiff/counter-defendant, appeareq   ~   and through her attorney of record and
                                                   ~)
aonounced ready for trial. All matters in contr,;w~.' factual and legal, were heard by the court.
                                             Qr'
The court heard the   evidence presented by ~ parties.       The Court, after hearing the evidence

and argument of counsel, rendered ~~~t for Boniuk Interests, Ltd., the defendant/counter-

plaintiff, and against Llyasah Dupr~ plaintifflcounter-defendant, in all respects.

       Accordingly, IT IS     ~FORE          ORDERED, ADJUDGED AND DECREED that

Llyasah Dupree,    Plaint~~ter-defendant,        take nothing from Boniuk Interests, Ltd,
                         ~
defendant/counter-pl~
                   "tIfu:
                 r.sdl
       IT IS FUR .

in favor of
                  f
                  D
              ~~. Interests,
                            ORDERED, ADJUDGED AND DECREED that judgment be entered

                                Ltd., defendant/counter-plaintiff, based on its counter-claim, as

follows:
1)        The Court orders that Boniuk Interests, Ltd., defendant/counter-plaintiff, recover from

L1yasah Dupree, plaintifllcounter-defendant, the sum of ONE HUNDRED NINETEEN

THOUSAND SIX HUNDRED SIXTY-FIVE AND 45/100 DOLLARS ($119,665.45), plus
                                                                         fiv'l. ~>-
prejudgment interest on the sum of $119,664.45 at the annual rate of.pe~('Io) per annum
                                           ~S-                     ~
beginning July 19, 2013 through July it, 2014       ~sfjudg:n;mt) ~~ _6_t sf                SEVEN
                                                                          ~
Tl:1el:fSANf)'eNE HUNDREIrSBVEN'f'l-NINE MID 93/1e6 ~LAAS ($},Ii9.'B) fm a
                                                                  ~
teta:! of ONE HUNDltED I WENfY·SIX TIlOUS1\}ID                   ~ HlINDRlID          FORTY FIVE
                                                                   ~
At-ID 33flQQ    ~ ($L~6,845 38) as              sf.ffily 22, 2 9F d post-judgment interest on the;;>



45flOO DOLLARS ($119,665.4ii) at the annual ra
                                                       ~;ve
                                                            ~
                                                                        >
                                                                percent (e%) per annum from the date
                                                     0~?}

of signing as set forth below until this   jUdgme~ been paid in full.
                                                 U
     2)      The Court further orders tha~oniuk Interests, Ltd., defendant/counter-plaintiff,
                                              10'
             recover from L1yasah Thj~, plaintif!lcounter-defendant, an additional sum of

                                 ,,=~
              FIFTEEN THOUSfiitr"U 001100 DOLLARS ($15,000.00) as attorneys' fees.

     3)       The Court further~ders that Boniuk Interests, Ltd., defendant/counter-plaintiff,
                                ~~
              recover from ~:ili Dupree, plaintifllcounter-defendant, all taxable court costs.

     4)       The   court~rs execution to issue for this judgment.
                        (r"i"

     5)  ~enies alI relief not granted in this judgment. JUL 25 2014
              The

Signedthis$· day of   a 25201.                    ,2014.




                                                 JUDGE PRESIDING
APPROVED AS TO FORM AND SUBSTANCE:

Debra Boniuk
Attorney at Law
3720 San Jacinto
Houston, Texas 77004
(713) 984-8300
(713) 984-9399 Facsimile
                                                                          U*  !(5~

                                                                         ~
                                                                       0'0'
                                                                      ~
    Q~G-b~                                                      Q~)
Debra Boniuk
TBN 17500280                                                /fft~'
                                                          iff
ATTORNEY FOR DEFENDANT/COUNTER-PL~F

                                                    ~
                                   CERTIFIC~~F SERVICE
                                         ~~'
       I hereby certifY that on this      ~       day of July 2014, a true and correct copy of the
                                          r?~
foregoing Final Judgment was       se~Certified Mail,      Return Receipt Requested or facsimile

transaction or regular mail or   h~Q~liVery, to the following party andlor counsel of record:
Timothy L. Williams       Q~
TL Williams & Associate(jl
11811 North Freeway, SlI@ 212
Houston, Texas 7706fjjjpY
                   "~~
ViaFACSIM:I:l£~SMISSIONat(281)417180l ~ O-'-D
                                                                       '~Dfu
And via certifi~'ail, RRR 7010 18700001 83397014
            ~                                                                    .
               ,                                          ();wrahifrJ
                                                       Debra Boniuk
