                                                                             ACCEPTED
                                                                        03-14-00503-CV
                                                                                3641199
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                   1/2/2015 10:27:53 PM
                                                                       JEFFREY D. KYLE
                                                                                 CLERK
                 Cause No. 03-14-00503-CV

                                                        FILED IN
                                                 3rd COURT OF APPEALS
                                                     AUSTIN, TEXAS
                                                 1/2/2015 10:27:53 PM
                          IN THE
                                                   JEFFREY D. KYLE
                                                         Clerk

              THIRD COURT OF APPEALS

                       AT AUSTIN


                    Kohler v. Chiquillo



Original Proceeding From the Hays County Court at Law No. 1



              Appellant's Brief on the Merits



                                      Kent Kohler
                                      7500 Shadowridge Run, #64
                                      Austin, Texas 78749
                                      (512) 663-5458
                                      Kent kohler@praxair.com
                                      Pro Se Appellant
             IDENTITY OF PARTIES AND COUNSEL

Appellant.

Party, Kent Kohler.

Prose Appellant. 7500 Shadowridge Run #64, Austin, Texas 78749,
Telephone: (512) 663-5458, Email: kent kohler@praxair.com.

Appellee.

Party, Claudia Chiquillo.

Appellee. 120 Victoria Court, Austin, Texas 78747. Telephone: (512) 497-
9098. Email: cayachilO@gmail.com
                                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................... .i
TABLE OF
CONTENTS ........... .. ............... .................. ............. ...... ............... . . .ii

TABLE OF
AUTHORITIES ...................................... .. ......... ... ... .. ................ .... .. .iv

STATEMENT OF THE CASE .............................................. .. ............. l

ISSUES PRESEN1'ED . ......... .. ..... ...................... . .. .. ...... ............... ...... 2

STATEMENT OF FACTS ... ......... ....... ... .... ............. ......... .......... . .. ......3

SlJMMARY OF THE ARGUMENT.......................................................6

ARGUMENT

       STANDARD OF REVIEW ..........................................................7

I.     THE TRIAL COURT ERRED IN GRANTING SUMMARY
       JUDGMENT AGAINST MR. KENT KOHLER .................................?
       A. The trial court erred in granting summary judgment because it refused to
          hear Appellant's arguments against summary judgment.. .......................?
       B. The trial court erred in granting summary judgment because Appellee's
          own evidence provides a presumption of bad faith, thereby raising a fact
          issue as to whether Appellee was entitled to recover any damages
          whatsoever ..........................................................................9
       C. The trial court erred in granting summary judgment because the
          pleadings and proof provided by Appellee did not determine as a matter
          of law that Mr. Kohler was not due a partial or full refund of his security
          deposit. ........... .... ........ ... ....... .... .. ... . .... ............................. 12
       D. The trial court erred in granting summary judgment because it
          determined as a matter of law that Appellee was entitled to summary
          judgment based on the affirmative defense of Contributory Negligence in
          a breach of contract action ... . ... .. ..... ... ........ .. .......................... .12
       E. The trial court erred in granting summary judgment because it
          determined as a matter of law that Appellee was entitled to summary



                                                      ii
            judgment based on the affirmative defense of Estoppel when the
            pleadings and evidence do not support such a claim............................... 13


CONCLUSION .......... .............. .................................... .. ................ 14

CERTIFICATE OF SERVIC£ ............................................................ 16

CERTIFICATE OF COMPLIANCE ............... ............ ....... ... ............... .17

PRAYER ................... .. ... ..... ... ... .. ..... .............. .. ............. ... .......... . l8

APPENDIX .................................................................... .. ........ .. .. 19

        Order Granting Defendant's Motion for Summary Judgment .................20




                                                       iii
                                TABLE OF AUTHORITIES

CASES                                                                                     PAGE(S)

Coleman v. Woolf, 129 S.W.3d 744 (2004) .. .............................................. 9

Goforth v. Bradshaw, 296 S.W.3d 849 (2009) ... .. .... .... .. . .. .. .. .. .. .. ...... ...........8

Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985) .. .. .. .. .......7

STATUTES

Texas Civil Practices and Remedies Code Chapter 33 ....... ... .... ...... . . .... ... 12, 13

Texas Property Code Section 92 ...................................................3, 10, 11

Texas Rules of Civil Procedure Section 21a .. ..... . ... ... . ... ......... ....... ........8, 15

Texas Rules of Civil Procedure Section 166a... .. ..... .... .. .. ....... ..... . ....... .......9




                                                    iv
                           STATEMENT OF THE CASE

      This case arose from a dispute over the security deposit Appellant, tenant,

paid upon moving into the property of Appellee, landlord. Appellant initiated a

claim against Appellee for return of the deposit in the Justice Court, Precinct 1,

Place 1, in Hays County, Texas. Appellee did not appear for the hearing, so

Appellant was granted a default judgment for the full amount of his deposit,

$1,950. Appellee appealed the default judgment, thereby invoking the appellate

jurisdiction of County Court at Law Number 1 in Hays County, Texas, wherein the

presiding judge granted a traditional summary judgment in favor of Appellee.

Appellant has appealed to the 3rd Court of Appeals in Austin, Texas.




                                           1
                               ISSUES PRESENTED

Whether the court erred when it refused to hear Appellant's arguments against
summary judgment in his response to Appellee's motion for summary judgment,
because Appellant failed to include a Certificate of Service in the response, even
though Appellee acknowledged actual service of the response eight days before the
hearing.

Whether the court erred in granting Appellee's motion for summary judgment on
Appellee's counterclaim for breach of contract when there was a genuine issue of
material fact as to whether Appellee was entitled to deduct any amount, let alone
the entire amount, from Appellant's security deposit when there was a presumption
of bad faith on the part of Appellee, per Texas Property Code, for not providing
either an itemized list of deductions, or a refund of the deposit, within 30 days of
receiving Appellant's written notice and change of address.

Whether the court erred in granting Appellee's motion for summary judgment
since Appellee failed to disprove an element of Appellant's claim for breach of
contract by failing to prove, as a matter of law, that Appellant was not entitled to a
return of his security deposit.

Whether the court erred in granting Appellee's motion for sunnary judgment on
Appellee's affirmative defense of Contributory Negligence against an action for
breach of contract.

Whether the court erred in granting Appellee's motion for summary judgment on
Appellee's affirmative defense ofEstoppel




                                           2
                             STATEMENT OF FACTS

      In August 2010, Appellant entered into a lease agreement with Appellee, for

her property at 120 Victoria Court, Austin, Texas 78737. (C.R. 123). Appellant

paid a security deposit in the amount of$1,950.00. (C.R. 133). Appellant moved

out on May 5, 2013, leaving the home in excellent condition. In a text message

from Appellant to Appellee, Mr. Kohler offered to have several neighbors verify to

Ms. Chiquillo that the home was in excellent shape when he moved out, with the

exception of some damage to the wood floors. In this text message, dated May 11,

2013, Appellant provided Appellee with his new address and requested the

remainder of his security deposit. (C.R. 180).

      Pursuant to TEXAS PROPERTY CODE 92.109, a landlord is required to

refund a security deposit on or before the 30th day after the tenant surrenders the

premises, provided the tenant gives a written forwarding address. A landlord who

fails to return the deposit or to provide an itemization of deductions on or before

the 30th day after tenant has surrendered possession is presumed to have acted in

bad faith. A landlord who retains a tenant's security deposit in bad faith may not

withhold any portion of the security deposit or bring suit against tenant for

damages to the premises, and is liable to the tenant in an amount equal to the sum

of $100, three times the portion of the deposit wrongfully withheld (here, the entire

deposit since the landlord forfeited the right to withhold any amount for damages

                                           3
to the premises), as well as the tenant's reasonable attorney's fees in a suit to

recover the deposit.

      Ms. Chiquillo did not refund any portion of Mr. Kohler's security deposit,

nor did she provide an itemized list of deductions until June 11, 2013. (C.R. 237).

This itemized list was in response to numerous attempts by Mr. Kohler to discuss

the return of the security deposit. Ms. Chiquillo's email providing the itemized list

was in response to an email from Mr. Kohler, also dated June 11, 2013, alerting

Ms. Chiquillo to the fact that he received a quote to fix the floors in the amount of

$650, and requested a refund in the amount of$1,300. (C.R. 108). Since Ms.

Chiquillo failed to provide a refund or itemized list on or before the 30th day after

Mr. Kohler surrendered the premises and provided a written forwarding address,

she is presumed to have acted in bad faith.

      On July 12, 2013, Appellant filed a claim for "rent deposit in the amt of

$1,950" in the Justice Court, Precinct 1, Place 1, Hays County, Texas. (C.R.

22,23). Appellee has misstated that Appellant was attempting to sue for "rent and

security deposit." (C.R. 126). Mr. Kohler used the phrase "rent deposit"

colloquially as a synonym for "security deposit", as evidenced by the amount of

the claim, $1,950.00, which was the amount of his security deposit. Mr. Kohler

was now requesting the entire security deposit, and not the reduced amount of

$1,300, since Ms. Chiquillo did not act within the 30 days required by the Texas


                                           4
Property Code. Since Ms. Chiquillo failed to appear at the original hearing, a

default judgment was granted and signed on August 19,2013. (C.R. 4). On August

27, 2013, the justice court rescinded the default judgment and set a court date for

October 1, 2013. On October 16, 2013, the justice court found for Mr. Kohler in

the amount of$1,300.00. (C.R. 15). On October 23, 2013, Appellee filed a Notice

of Appeal with the Hays County Court at Law. (C.R. 8). Appellee filed a motion

for summary judgment on a counterclaim for breach of contract, as well as two

affirmative defenses: Contributory Negligence and Estoppel, on March 11,2014.

(C.R. 123). The hearing was set in the County Court of Law in Hays County,

Texas for April2, 2014. Mr. Kohler and Ms. Chiquillo were present. Ms.

Chiquillo's attorney, Mr. Avera, did not appear. Mr. Avera contends in Appellee's

response to Appellant's motion for new trial that "(t]hrough a series of agreed

setting changes, the matter was finally heard on April30, 2014." (C.R. 262). There

was no series of agreed setting changes; the parties were forced to reschedule due

to Mr. Avera's failure to appear. On April22, 2014, Appellant filed a response to

Appellee's motion for summary judgment. Appellant included a cross motion for

summary judgment. The court did not accept Appellant's cross motion for

summary judgment because it was not filed 21 days prior to the hearing date of

Apri130, 2014. The court also did not accept Appellant's response to Appellee's

motion for summary judgment because it did not contain a Certificate of Service,


                                          5
even though it was timely sent and Appellee acknowledged receipt of the response

eight days prior to the hearing. (C.R. 262).

      The county court granted Appellee's motion for summary judgment on April

30, 2014. (C.R. 241). On May 30, 2014, Appellant filed a motion for new trial with

the county court. (C.R. 242). The motion for new trial was denied on July 16,

2014. (C.R. 265). On August 13,2014, Appellant filed notice of appeal in this

Court. (C.R. 267).

                           SUMMARY OF THE ARGUMENT

      The trial court erred in granting summary judgment against Mr. Kohler

when (1) it refused to hear Appellant's arguments against summary judgment; (2) a

fact issue exists as to Appellee's bad faith and whether she was entitled to damages

at all; (3) the pleadings and proof provided by Appellee did not determine as a

matter of law that Mr. Kohler was not due a partial or full refund of his security

deposit; (4) it determined as a matter of law that Appellee was entitled to summary

judgment based on the affirmative defense of Contributory Negligence in a breach

of contract action; (5) it determined as a matter of law that Appellee was entitled to

summary judgment based on the affirmative defense ofEstoppel when the

pleadings and evidence do not support such a claim.




                                           6
                                   ARGUMENTS



STANDARD OF REVIEW

       An appellate court applies the following in reviewing a summary judgment:

       1. The movant has the burden of showing that no genuine issue of material

          fact exists and that he is entitled to judgment as a matter of law;

       2. In deciding whether a disputed material fact issue precludes summary

         judgment, the court must take evidence favorable to the non-movant as

          true;

       3. The court must indulge every reasonable inference in favor of the non-

          movant and resolve any doubts in its favor.

See Nixon v. Mr. Property Management Co., 690 S.W.2d 546,548-49 (Tex. 1985).


  I.      THE TRIAL COURT ERRED IN GRANTING SUMMARY
          JUDGMENT AGAINST MR. KENT KOHLER

       A. The trial court erred in granting summary judgment because it refused to
          hear Appellant's arguments against summary judgment.

             Appellant submitted a response to Appellee's motion for summary

          judgment on April22, 2014, eight days prior to the hearing of Apri130,

          2014. Included in the response was a cross-motion for summary

          judgment. Appellee argued in a motion presented the day of the hearing,

          April 30, 2014, that Appellant's arguments against summary judgment

                                           7
should not be heard because they were not timely. Appellant concedes

that his cross-motion for summary judgment was not timely; however,

his response to Appellee's motion for summary judgment was timely.

The trial court refused to hear the arguments included in the response

because the response lacked a Certificate of Service, and because the

response was considered defective due to lack of an affidavit attesting to

the veracity of the evidence.

   Appellee acknowledged through her motion of April30, 2014 that she

did indeed receive Appellant's response eight days prior to the hearing.

According to Goforth v. Bradshaw, "[t]hough a certificate of service is

required by Rule 21 a and is recognized as presumptively establishing

service, here we have acknowledged, actual delivery. We believe that is

the key ... " Goforth v. Bradshaw, 296 S.W.3d 849,854 (2009). Although

Appellant did not strictly comply with Rule 21 a to presumptively

establish service, through Appellee's own motion we have actual,

acknowledged service. It is Appellant's beliefthat actual, acknowledged

service should be considered superior to presumptive service, and his

arguments should have been considered since timely service was proven

beyond doubt.




                                8
      Appellant received Appellee's objection to Appellant's summary

  judgment evidence just minutes before the hearing on April30, 2014. In

   order to correct the defect, Appellant requested a continuance on two

   separate occasions and was denied. According to Coleman v. Woolf,

  "when a summary judgment movant objects to summary judgment

   evidence proffered by the non-movant, the burden lies upon the non-

   movant to request relief under rule 166a(f), including a continuance or

   the opportunity to cure any formal defects in the non-movant's summary

  judgment evidence." Coleman v. Woolf, 129 S.W.3d 744,750 (2004). Per

   Rule 166a(f) of the Texas Rules of Civil Procedure, defects in form of

   affidavits are not grounds for reversal unless they are pointed out by the

   opposing party and given an opportunity to amend, but refusing to do so.

   Tex. R. Civ. P. 166a(f). Appellant was handed Appellee's objections just

   moments before the hearing, twice requested a continuance and was

   twice denied, and was not afforded an opportunity to amend.

B. The trial court erred in granting summary judgment because Appellee's
   own evidence provides a presumption of bad faith, thereby raising a fact
   issue as to whether Appellee was entitled to recover any damages
   whatsoever.

      In Appellee's reply to Appellant's response to Appellee's motion for

   summary judgment, Appellee states that Appellant provided his

   forwarding address to Ms. Chiquillo on May 11, 2013. (C.R.Supp., 8).

                                   9
Ms. Chiquillo did not provide an itemized list of deductions until June

11, 2013 . (C.R., 27). In this itemized list, the amount to repair the

flooring was listed as $1,534.17. Id. However, in her motion for summary

judgment, she requested over four times that amount for flooring,

$6,231.57. (C.R., 132). According to the proposal, attached as Exhibit F

to the motion for summary judgment, she received two quotes from the

flooring company. One for $1,534.17 to replace the wood in the damaged

areas. The proposal states that replacing the damaged planks would "fit

almost perfectly," with a possibility of a "fme height difference." (C.R.,

158). The second quote, $6,231.57, was to sand and refmish the entire

house to "make all look like it is new." Id. Appellant was not under any

obligation to make Appellee's home look like it was new upon moving

out. His obligation was to repair any damaged areas, which he had agreed

to do, excepting normal wear and tear.

   The Texas Property Code imposes strict requirements on landlords

regarding the return of security deposits. Specifically, a landlord ''who

fails to return a security deposit or to provide a written description and

itemization of deductions on or before the 30th day after the date the

tenant surrenders possession is presumed to have acted in bad faith." Tex.

Prop. Code section 92.1 09( d). When a landlord acts in bad faith, and


                                 10
wrongfully retains a security deposit, the landlord is liable for "an

amount equal to the sum of$100, three times the portion of the deposit

wrongfully withheld, and the tenant's reasonable attorney's fees in a suit

to recover the deposit." Tex. Prop. Code section 92.109(a). Further, when

the landlord does not provide a written description and itemized list of

damages and charges, the landlord:

   ( 1) Forfeits the right to withhold any portion of the security deposit or

      to bring suit against the tenant for damages to the premises; and

   (2)Is liable for the tenant's reasonable attorney's fees in a suit to

      recover the deposit. Tex. Prop. Code section 92.109(b).

   Ms. Chiquillo's own evidence shows a text from Appellant with his

forwarding address on May 11, 2013. She also provided as evidence an

email from herself to Appellant giving an itemized description of

damages on June 11, 2013. Since the written description and itemized list

of damages was not provided on or before the 30th day after Appellant

surrendered possession and provided a forwarding address, Ms. Chiquillo

forfeited her right to withhold any portion of the deposit for damages.

She is also presumed to have acted in bad faith, and as such owes

Appellant $100 plus three times the amount of his security deposit of

$1,950.


                                 11
C. The trial court erred in granting summary judgment because the
   pleadings and proof provided by Appellee did not determine as a matter
   of law that Mr. Kohler was not due a partial or full refund of his security
   deposit.

      As stated in section B, there are questions of bad faith on the part of

   Appellee, as well as a large discrepancy in the amounts that Appellee

   provided as necessary to repair the damaged floors. The discrepancy

   between the Appellee's own proposed amounts to ftx the damage are

   enough to show that there is a question of fact regarding whether she had

   any lawful right to retain any of Appellant's security deposit. The Justice

   Court awarded Appellant $1 ,300, which was equal to the security

   deposit, minus $650 for the repairs to the floors. (C.R., 10). If Appellee's

   own discrepancies aren't enough to show a question of fact, surely the

   difference between her proposals and the amount awarded by the Justice

   Court should.

D. The trial court erred in granting summary judgment because it
   determined as a matter of law that Appellee was entitled to summary
   judgment based on the affirmative defense of Contributory Negligence in
   a breach of contract action.

      Appellee's motion for summary judgment included an affirmative

   defense of contributory negligence. Appellee's motion stated that the

   defense of contributory negligence was codifed in Chapter 33 of the

   Texas Civil Practices and Remedies Code. Chapter 33 of the Texas Civil


                                   12
   Practices and Remedies Code refers to Proportionate Responsibility, not

   Contributory Negligence. The applicability of Proportionate

   Responsibility is codified in section 33.002 of the Texas Civil Practices

   and Remedies Code. The provision states that "[t]his chapter applies to:

   (1) any cause of action based on tort in which a defendant, settling

   person, or responsible third party is found responsible for a percentage of

   the harm for which relief is sought; or (2) any action brought under the

   Deceptive Trade Practices-Consumer Protection Act. .. in which a

   defendant, settling person, or responsible third party is found responsible

   for a percentage of the harm for which relief is sought."

         If Appellee meant to plead the affirmative defense of Proportionate

   Responsibility, it should not have been accepted as a matter of law since

   the case is a breach of contract action, not a tort action or DTPA action.

E. The trial court erred in granting summary judgment because it
   determined as a matter of law that Appellee was entitled to summary
   judgment based on the affirmative defense of Estoppel when the
   pleadings and evidence do not support such a claim.

      The court erred by granting the motion for summary judgment

   because Appellant raised a fact issue regarding Appellee's affrrmative

   defense of Estoppel. In Appellee's motion for summary judgment, she

   raised the affirmative defense of estoppel, and listed the elements of

   estoppel, but failed to explain how the elements applied to the specific
                                   13
         facts of this case. In Appellee's motion of April 30, 2014, she did

         describe how she applied the elements of Estoppel to the facts of the

         case; however, the application was improper. Appellee's argument was

         that Appellant agreed to pay $600 for the floors on May 11, 2013, and

         then sued for the full amount of the security deposit. (C.R.Supp., 18-19).

         What Appellee failed to take into consideration was the fact that

         Appellant agreed to pay $650 for the floor repairs, until Appellee began

         acting in bad faith by not refunding his deposit or sending him an

         itemized list of deductions. It was after this display of bad faith on the

         part of Appellee that Appellant sued for the full amount of his deposit.

         Bad faith on the part of Appellee began on June 11, 2013; Appellant sued

         for refund of security deposit in July, 2013. This fully negates Appellee's

         estoppel defense.

                                 CONCLUSION

      The trial court erred in granting summary judgment for Appellee because it

1) refused to hear Appellant's response to Appellee's motion for summary

judgment because it did not include a certificate of service and because there was a

defect in the response; 2) ignored discrepancies in Appellee's own summary

judgment evidence, as well as the disparity between Appellee's summary judgment

evidence and the amount awarded by the Justice Court; 3) because of such

                                         14
discrepancies, it was not proven as a matter of law that Mr. Kohler was not due at

least a partial refund; 4) ignored the fact that the affirmative defense of

contributory negligence does not apply in a breach of contract cause of action; 5)

accepted the affirmative defense of estoppels even though the pleadings and

evidence provided by Appellee alone do not support such a defense. Appellee

acknowledged actual service eight days prior to the hearing; therefore, a

presumption of service provided by Rule 21 a was not necessary in this instance.

Appellant requested time to correct the defect in his response and was not granted

the time to do so. With three different amounts provided as estimates for the repair

of the wood floors, a matter of fact is shown that should have been decided once

the case was heard on its merits. Also, since there were differences in the proposals

gathered to repair the damaged flooring, a matter of fact remains as to whether

Appellant was due a full refund, partial refund or no refund. Appellee's non-

compliance with the Texas Property Code also provided a matter of fact in whether

Appellee should have been permitted to make any deductions whatsoever from

Appellant's security deposit. Lastly, neither affirmative defense of Appellee

applies to this case and these facts.




                                           15
                         CERTIFICATE OF SERVICE

             I certify that on December 29, 2014, a true and correct copy of
Appellant's brief was served by email on Claudia Chiquillo of 120 Victoria Court,
Austin, Texas 78737, at cayachi10@gmail.com .




                                                       !L--
                                                   Kent Kohler
                                                   7500 Shadowridge Run, #64
                                                   Austin, Texas 78749
                                                   (512) 663-5458
                                                   kent kohler@praxair.com
                                                   ProSe Appellant




                                         16
                      CERTIFICATE OF COMPLIANCE

               Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby
certify that this brief contains 3,313 words, excluding the cover sheet, identity of
parties, table of contents, table of authorities, certificate of service, certificate
of compliance, prayer and appendix.




                                                         ~(_--
                                                     Kent Kohler
                                                     7500 Shadowridge Run, #64
                                                     Austin, Texas 78749
                                                     {512) 663-5458
                                                     kent kohler@praxair.com
                                                     Pro Se Appellant




                                          17
                                     PRAYER

      Appellant, Kent Kohler, respectfully, for the reasons stated above, asks the

Court to reverse the judgment of the trial court and remand the case for a new trial.


                                                    Respectfully submitted,



                                                         \
                                                    Kent Kohler
                                                    7500 Shadowridge Run #64
                                                    Austin, Texas 78749
                                                    (512) 663-5458
                                                    kent kohler@praxair.com
                                                    Pro Se Appellant




                                          18
APPENDIX




   19
                                                                    0
                                         NO. 13-0839-C                           FILED
KENT KOHLER                                      §   IN THE COUNTY C~R JO                            A
Plaintiff,                                       §                                                   !1 1/: 5.
                                                 §                            ~.n.       tl'/
v.
                                                                                c~UNl
                                                                                   &.f~~t,;-.!-<V
                                                                                     I    ) :   1\            ,
                                                 §   Number                              \ . 1 i'l
                                                                                             ;;
                                                 §                          H         CLf:?RiJ'
                                                                                     r'
                                                                             AYS cou•.o-.1               •v
CLAUDIA CHIQUILLO                                §                                         '"' • TGXAS
Defendant.                                       §   OFHAYSCOUNTY,TEXAS




       On                                      the Court considered Defendant's Motion for

Suffi!llary Judgment and requests that the Court enter Summary Judgment in favor of Movant on

the counterclaim and affirmative defenses set forth therein and against Plaintiff Kent Kohler.

       After due consideration of the summary judgment evidence, including affidavits and

documentary evidence, and the argument of counsel, this Court finds that Defendant's Motion is

due to be GRANTED and makes the following findings:

       The Court finds there is no genuine issue of material fact as to Defendant's counterclaim

for Breach of Contract and Defendant is entitled to summary judgment thereon.

       The Court finds there is no genuine issue of material fact as to Defendant's affirmative

defense of Contributory Negligence and Defendant is entitled to summary judgment thereon.

       The Court finds there is no genuine issue of material fact as to Defendant's affirmative

defense of Estoppel and Defendant is entitled to summary judgment thereon.

       The Court finds that Defendant has proven the counterclaim and disproved at least one

element of Plaintiffs claim for Plaintiffs claims.

       The Court finds that Plaintiff has not pled any affirmative defense that would preclude

summary judgment in this cause.
                           0                                      0
       IT IS THEREFORE ORDERED that judgment is entered in favor of Defendant and

against Plaintiff on the counterclaim of Breach of Contract, in the amount of $6501.73, (One and

No/100 Dollars).

       IT IS FURTHER ORDERED that Defendant recovers judgment against Plaintiff in the

sum of $1500, as attorney fees for the benefit of Robert Avera. Such Judgment, for which

execution shall issue, shall bear interest at the rate of 5% per annum, compounded annually from

the date of this judgment, until paid.

       IT IS FURTHER ORDERED that Defendant recovers judgment against Plaintiff in the

sum of $1,500.00 (One Thousand Five Hundred and No/1 00 Dollars, as attorney fees for the

benefit of Robert A vera. Such Judgment, for which execution shall issue, shall bear interest at

the rate of 5% per annum, compounded annually from the date of this judgment, until paid. This

judgment of attorney fees is conditioned on the pursuit by Defendant of Post-Judgment

Discovery.

       IT IS FURTHER ORDERED that Defendant recovers judgment against Plaintiff in the

sum of $10,000.00, (Ten Thousand and No/100 Dollars), as attorney fees for the benefit of

Robert Avera on intermediate appeal, with costs and expenses.        Such Judgment, for which

execution shall issue, shall bear interest at the rate of 5% per annum, compounded annually from

the date of this judgment, until paid. This judgment of attorney fees on appeal is conditioned on

the pursuit by Plaintiff of an ultimately unsuccessful appeal.

       IT IS FURTHER ORDERED that Defendant recovers judgment against Plaintiff in the

sum of $10,000.00, (Ten Thousand and No/100 Dollars), as attorney fees for the benefit of

Robert Avera on appeal to the Texas Supreme Court, with costs and expenses. Such Judgment,

for which execution shall issue, shall bear interest at the rate of 5% per annum, compounded
                          0                                         0
annually from the date of this judgment, until paid. This judgment of attorney fees on appeal is

conditioned on the pursuit by Plaintiff of an ultimately unsuccessful appeal.

       IT IS FURTHER ORDERED that Defendant recovers costs of court incurred in the

course of this cause in the sum of $257. Such judgment, for which let execution issue, shall bear

interest at the rate of 5%, compounded annually from the date of this judgment, until paid.

       IT IS FURTHER ORDERED that Defendant is entitled to enforce this judgment

through abstract, execution, and any other process.

       This judgment finally disposes of all parties and all claims and is appealable.

       Signed on   f ho /1 d.
                      I       I




Robert Avera
Attorney for Defendant Claudia Chiquillo
13062 Hwy 290 W
Austin, TX 78737
Tel. (512) 615-3578
Fax. (512) 615-3583




                          --
Kent Kohler, ProSe Plaintiff
7500 Shadowridge Run #64
Austin, Texas 78749
Tel. Unknown
Fax. Unknown
