                                                                           ACCEPTED
                                                                      01-14-00869-CV
                                                            FIRST COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                                                                 2/2/2015 11:37:24 AM
                                                                  CHRISTOPHER PRINE
                                                                               CLERK

                No. 01-14-00869-CV

                                                      FILED IN
                                               1st COURT OF APPEALS
         In the First Court of Appeals             HOUSTON, TEXAS
                                               2/2/2015 11:37:24 AM
                Houston, Texas                 CHRISTOPHER A. PRINE
                                                       Clerk


______________________________________________________
                 RICHARD MAKOVER,
                                  Appellant,
                          v.
                RANDY S. TURRENTINE,
                                  Appellee.
      ___________________________________________

     Appeal from the Court at Law Number Three
               Galveston County, Texas
      ___________________________________________

             BRIEF FOR APPELLANT
______________________________________________________


                        THE SMEBERG LAW FIRM, PLLC

                        Ronald J. Smeberg
                        State Bar No. 24033967
                        2010 W. Kings Hwy
                        San Antonio, Texas 78201
                        TEL (210) 695-6684
                        FAX (210) 598-7357

                        ATTORNEY FOR APPELLANT
                            IDENTITY OF PARTIES AND COUNSEL


Appellant/Plaintiff

       Richard Makover

Counsel for Appellant

       Ronald J. Smeberg
       The Smeberg Law Firm, PLLC
       2010 W. Kings Hwy
       San Antonio, Texas 78201

Appellee/Defendant

       Randy S. Turrentine

Counsel for Appellee

       Kyle L. Dickson
       Murray | Lobb, PLLC
       700 Gemini, Suite 115
       Houston, Texas 77058




Appellant’s Brief – Richard Makover v. Randy S. Turrentine    pg. ii
                                      TABLE OF CONTENTS

                                                                              Page

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

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

STATEMENT OF THE CASE……………………………………………………..……..1

ISSUES PRESENTED…………………………………………………………..………1

1.     Did the county court err in granting judgment in favor of Appellee when the
       Appellee did not meet his burden of proof and presented no evidence
       establishing his entitlement to the requested funds?

2.     Did the county court err in holding that Appellant was liable to Appellee for
       the Debts of the corporation RAM Design + Build, when Appellant signed all
       contracts as an agent/officer of RAM Design + Build?
3.     Did the county court err in holding that Appellant was liable to Appellee in
       the amount of Four Thousand Four Hundred Sixteen Dollars ($4,416.00) for
       a Construction Trust Fund violation, when appellee received only Four
       Hundred Sixty-Six and 56/100 Dollars ($466.56), if any, towards the
       Construction Trust Fund?

4.     Did the county court err in holding that, Appellee shall be awarded Five
       Thousand Dollars ($5,000.00) if Appellee prevails in the Court of Appeals,
       when Appellee did not request such amounts in its First Amended Original
       Petition?

5.     Did the county court err in holding that Appellee shall be awarded Seven
       Thousand Five Hundred Dollars ($7,500.00) if Appellee prevails in the
       Supreme Court, when Appellee did not request such amounts in its First
       Amended Original Petition?

STATEMENT OF FACTS………………………………………………………..……...2

       RAM Design + Build enters into contract with City of Friendswood………..2

       RAM uses escrow agent to receive and disburse Friendswood funds……….2

Appellant’s Brief – Richard Makover v. Randy S. Turrentine                     pg. iii
              RAM files for Chapter 7 under the United States Bankruptcy Code…………3

              Plaintiff files suit against Richard Makover……………………………………4

              Makover appeals default judgment to County Court.......................................4

       SUMMARY OF THE ARGUMENT………………………..……………………………..5

       ARGUMENT AND AUTHORITIES……………………………………..………………. 6

I.     TURRENTINE FAILED TO MEET HIS BURDEN OF PROOF………………………………..6
II.    MAKOVER NOT LIABLE FOR CORPORATE DEBTS …………………..………………...8

       a.     Turrentine’s claim lies with RAM + Design Build, not Makover

III.   CONSTRUCTION TRUST FUND VIOLATION…………………..……………………….9
       a.     Makover was not a trustee

       b.     Makover did not Misappropriate Trust Funds
       c.     If any funds were held in Trust, such funds were limited

IV.    AWARD OF $5,000 IF PLAINTIFF PREVAILS AT COURT OF APPEALS……….………....11
       a.     The County Court Erred in Awarding Turrentine amounts not in Pleadings
V.     AWARD OF $7,500 IF PLAINTIFF PREVAILS ON MOTION FOR REHEARING OR
       APPLICATION FOR A WRIT OF ERROR………………..……………………………..12

       a.     The County Court Erred in Awarding Turrentine amounts not in Pleadings
       CONCLUSION AND PRAYER…………………………..……………………………..12

       CERTIFICATE OF COMPLIANCE……………………………………………………...14

       CERTIFICATE OF SERVICE………………………..…………………………………14




       Appellant’s Brief – Richard Makover v. Randy S. Turrentine                                pg. iv
APPENDIX

       CLERK’S RECORD, CR 1-84

           A-      Plaintiff’s First Amended Original Petition, filed August 20, 2014,
                   CR 44-62

           B-      Plaintiff’s Original Petition, CR 22-23

           C-      Default Judgment, CR 16
           D-      AIA Contract signed August 16, 2011, CR 48-62

           E-      Defendant’s Original Answer, CR 28-29

           F-      Appeal Bond, CR 30-33

           G-      Defendant’s Pro Se Answer, CR 36-40
           H-      Defendant’s Second Amended Answer, filed August 25, 2014, CR
                   63-67
           I-      Final Order, signed October 1, 2014, CR 68-69


       REPORTER’S TRANSCRIPT, RT 1-39 (Appendix J)

       EXHIBITS TO REPORTER’S TRANSCRIPT, RTE 1-52

           K-      Escrow Agreement, RTE 34-42

           L-      COP Accounting, RTE 44- 49

           M-      RAM Corporate Status, RTE 51




Appellant’s Brief – Richard Makover v. Randy S. Turrentine                         pg. v
                                    INDEX OF AUTHORITIES

CASES

Goswami v. Metropolitan Sav. and Loan,
     751 S.W.2d 487 (Tex. 1988)…………………………………………………3

Wilson v. Korthauer,
     21 S.W.3d 573 (Tex.App.—Houston [14th Dist.] 2000)……………………..3

Allstate Ins. v. Felts,
       No. 09-92-239 CV, 1993 WL 367053 (Tex.App.—Beaumont 1993), writ
       denied (Apr. 28, 1994)..………….…………….……………………..……..5

Plas-Tex, Inc. v. U.S. Steel Corp.,
      772 S.W.2d 442 (Tex. 1989)…………………………..…………………….5

INA of Texas v. Adams,
     793 S.W.2d 265 (Tex.App.—Beaumont 1990, no writ)…………………….5

Perry & Perry Builders, Inc. v. Galvan,
      No. 03-02-00091-CV, 2003 WL 21705248 (Tex.App.—Austin 2003).…….7

Webb v. Glenbrook Owners Ass’n, Inc.,
     298 S.W.3d 374 (Tex.App.—Dallas 2009)………………………………......9

Ex parte Flemming,
      532 S.W.2d 122 (Tex.Civ.App.-Dallas 1975, no writ.)……………….….......9

Loban v. City of Grapevine,
     No. 2-09-068-CV, 2009 WL 5183802 (Tex.App.—Fort Worth 2009)………9

STATUTES

Tex. Bus. & Com. Code §21.223(2)…………….……………………………….…6

Tex. Prop. Code §162.031(a)…………….………………………………………....7

Tex. Prop. Code §162.031(b)………………..……………………………………...7


Appellant’s Brief – Richard Makover v. Randy S. Turrentine           pg. vi
Tex. R. Civ. Pro. Rule 301…………………………………..……………………....8




Appellant’s Brief – Richard Makover v. Randy S. Turrentine   pg. vii
TO THE HONORABLE FIRST COURT OF APPEALS:

                               STATEMENT OF THE CASE

Nature of the case             Sub-contractor sued officer/director of general contractor
                               for failure to pay for work performed.

Trial Court                    Galveston County Court at Law No. Three

Trial court’s disposition Awarded plaintiff damages in the amount of $4,416.00,
                          plus additional amounts if appealed.

                                       ISSUED PRESENTED
1.     Did the county court err in granting judgment in favor of Appellee when the
       Appellee did not meet his burden of proof and presented no evidence
       establishing his entitlement to the requested funds?

2.     Did the county court err in holding that Appellant was liable to Appellee for
       the Debts of the corporation RAM Design + Build, when Appellant signed all
       contracts as an agent/officer of RAM Design + Build?
3.     Did the county court err in holding that Appellant was liable to Appellee in
       the amount of Four Thousand Four Hundred Sixteen Dollars ($4,416.00) for
       a Construction Trust Fund violation, when appellee received only Four
       Hundred Sixty-Six and 56/100 Dollars ($466.56), if any, towards the
       Construction Trust Fund?
4.     Did the county court err in holding that Appellee shall be awarded Five
       Thousand Dollars ($5,000.00) if Appellee prevails in the Court of Appeals,
       when Appellee did not request such amounts in its First Amended Original
       Petition?
5.     Did the county court err in holding that Appellee shall be awarded Seven
       Thousand Five Hundred Dollars ($7,500.00) if Appellee prevails in the
       Supreme Court, when Appellee did not request such amounts in its First
       Amended Original Petition?




Appellant’s Brief – Richard Makover v. Randy S. Turrentine                           pg. 1
                                     STATEMENT OF FACTS

RAM enters into Contract with City of Friendswood

       RAM + Design Build (“RAM”) was hired by the City of Friendswood to

rehabilitate and make additions to a fire station.1 In the regular course of the

construction business, RAM hired RST Designs (“RST”) as a subcontractor to help

complete the Friendswood project.2

       The Friendswood Project was covered by a bond through Evergreen National

Indemnity Company (“ENIC”) for an amount of $302,054.00.3

RAM uses escrow agent to receive and disburse Friendswood funds

       RAM was not in charge of receiving payments or making disbursements on

the Friendswood project.4 All payments were received by an escrow agent, Contract

Operations Planning, LLC (“COP”).5 Payments were disbursed by COP to all

subcontractors upon timely receipt of applications, payroll, invoices, etc.6

       COP disbursed a payment to RAM on May 9th, 2012 for all work and labor

performed by RAM prior to that date.7 Plaintiff performed his work sometime in

June of 2012.8 Then, RAM received a payment of $466.56 from COP on July 19,


1
  Testimony of Turrentine, RT 7:1; Testimony of Makover, RT 12:14-15
2
  Testimony of Turrentine, RT 6:20; AIA Contract, CR 48-62
3
  COP Accounting, RTE 44
4
  Testimony of Makover, RT 13:6-15.
5
  Id.; Escrow Agreement, RTE 34-42
6
  Escrow Agreement, RTE 34-42
7
  COP Accounting, RTE 47
8
  Testimony of Turrentine, RT 9:21-10:5
Appellant’s Brief – Richard Makover v. Randy S. Turrentine                     pg. 2
2012.9 This was the last payment RAM received for the Friendswood Project and

the only payment received after Plaintiff performed his work on the Friendswood

Project.10

       Funds were disbursed to contractor and subcontractors as they were applied

for or as they became available.11 Subcontractors, if unpaid, could claim from the

surety bond with ENIC.12

RAM files for Chapter 7 under the United States Bankruptcy Code

       Due to several construction projects that fell through, ran over budget, or were

completed late, through no fault of RAM, RAM had to file for bankruptcy on April

15, 2013.13 RAM originally filed for Chapter 11, but the case was eventually

converted into a Chapter 7 Bankruptcy.14 Due to its insolvency, RAM doesn’t have

any non-exempt assets from which to pay Plaintiff for any Friendswood payments

not received.15




9
  COP Accounting, RTE 47
10
   COP Accounting, RTE 47; Testimony of Makover, 17:13-23
11
   Id.
12
   Escrow Agreement, RTE 34-42; Email to Turrentine from Surety, RTE 5-7; Testimony of
Makover, RT 18:11-19;
13
   Testimony of Makover, RT 20:17-21:1
14
   Id.
15
   Id.
Appellant’s Brief – Richard Makover v. Randy S. Turrentine                               pg. 3
Plaintiff files suit against Richard Makover

       For reasons unknown to Defendant, Plaintiff did not claim against the Surety

bond.16 Also, knowing that he could not recover from RAM due to its bankruptcy,

Plaintiff filed its original suit against Makover for breach of contract in small claims

court.17 Plaintiff was granted default judgment against Makover.18

Makover appeals default judgment to County Court

       Makover appealed the default judgment to county court claiming defenses for

defect in parties, suit in wrong capacity, laches, and failure to mitigate.19

       Plaintiff amended his complaint to sue solely on the basis of a Construction

Trust Fund Violation.20 While neither Plaintiff’s amended petition nor defendant’s

amended answer were timely filed, the Court did not indicate that it was only basing

its judgment upon timely filed pleadings, nor did it strike either late filed pleading,

therefore, the Appellate Court should presume that the Court based its judgment

upon the latest filed pleadings.21



16
   Testimony of Turrentine, RT 9:15-18;
17
   Plaintiff’s Original Petition, CR 22-23
18
   Default Judgment, CR 16
19
   Defendant’s Original Answer, CR 28-29; Defendant’s Pro Se Answer, CR 36-40; and
   Defendants Second Amended Answer, CR 63-67
20
   Plaintiff’s First Amended Original Petition, CR 44-62
21
   Goswami v. Metropolitan Sav. And Loan, 751 S.W.2d 487, 490 (Tex. 1988)(finding trial court
   granted leave to file late pleading where pleading was filed within seven days of summary
   judgment proceeding, which is considered a trial within the meaning of Rule 63); Wilson v.
   Korthauer, 21 S.W.3d 573, 577-78 (Tex. App. 2000)(holding that Appellate court must
   presume the trial court granted leave to file a late pleading even though the filer failed to
   request leave when: (1) the records fails to show that the trial court did not consider the
Appellant’s Brief – Richard Makover v. Randy S. Turrentine                                 pg. 4
       To perfect his appeal, Makover had to post an appeal bond with the court.22

Upon rendering judgment, the court ordered that the funds of the bond be turned

over to Plaintiff.23

                                SUMMARY OF THE ARGUMENT

       Appellant, Richard Makover, raises five issues on this appeal. First, Makover

argues that the court erred in rendering judgment on behalf of Appellee when

Appellee did not satisfy its burden of proof. Appellee presented no evidence nor

testimony which showed that Makover misappropriated Construction Trust Funds.

       Second, Makover believes that the trial court granted judgment in favor of

Plaintiff in error, as the correct party to be sued is RAM + Design Build. Makover

is merely an officer/director of RAM, and therefore is not personally liable for the

debts and liabilities of RAM.

       Second, Makover believes that he was not a trustee as defined by the

Construction Trust Fund Doctrine in Tex. Prop. Code §162.002. However, if

Makover is a trustee, Makover did not intentionally or knowingly misappropriate

trust funds. Rather, all trust funds were used to pay actual expenses related to the

Friendswood project. Moreover, after Appellee completed his work, Makover only




   amended pleading, and (2) there is not a sufficient showing of surprise or prejudice on the part
   of the opposing party)
22
   Appeal Bond, CR 30-33
23 Final Judgment, CR 68-69


Appellant’s Brief – Richard Makover v. Randy S. Turrentine                                     pg. 5
received $466.56 from the project owner. Therefore, at most, there could be only

$466.56 of trust funds in Makover’s control.

       Third, the trial court erred in granting Plaintiff an award of $5,000 if Plaintiff

were to prevail in the Court of Appeals, when such relief was not sought nor

requested in the Plaintiff’s pleadings.

       Finally, the trial court erred in granting Plaintiff an award of $7,500 if Plaintiff

were to prevail in a Motion for Rehearing or an Application for a Writ of Error, when

such relief was not sought nor requested in the Plaintiff’s pleadings.

                                ARGUMENT AND AUTHORITIES

Turrentine failed to meet his Burden of Proof

       “The test used to determine factual insufficiency of the evidence is to consider

all the evidence including that which is contrary to the judgment.”24 “A factual

insufficiency point may be sustained if this Court determines that the findings of a

vital fact is so contrary to the great weight and preponderance of the evidence as to

be clearly wrong and unjust.”25




24
   Allstate Ins. v. Felts, No. 09-92-239 CV, 1993 WL 367053, at *3 (Tex.App.—Beaumont
   1993), writ denied (Apr. 28, 1994) (citing to Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d
   442 (Tex.1989)).
25
   Allstate Ins. v. Felts, No. 09-92-239 CV, 1993 WL 367053, at *3 (Tex.App.—Beaumont
   1993), writ denied (Apr. 28, 1994) (citing to INA of Texas v. Adams, 793 S.W.2d 265
   (Tex.App.—Beaumont 1990, no writ)).
Appellant’s Brief – Richard Makover v. Randy S. Turrentine                                    pg. 6
          Plaintiff’s sole claim was for a violation of the Construction Trust Fund.26 At

trial, the only physical evidence the Plaintiff presented was a copy of the contract

Plaintiff had with RAM.27 Further, Plaintiff presented no testimony as to how the

funds were misappropriated, or rather if the funds were misappropriated.28

          Plaintiff testified that he entered into a contract with RAM to perform work

on the Friendswood project.29 Further, he states that Makover assured him he would

get paid, and that was the reason he filed suit.30

          Turrentine’s evidence references a contract with RAM not Makover. 31 He

made no arguments, nor presented any evidence toward a Construction Trust Fund

Violation. However, Makover, did present evidence that he was not a Trustee.32 For

these reasons, the court erred in granting judgment in favor of Plaintiff who failed

to meet his burden of proof. In the current case, the court made a decision not based

on the evidence, which was so contrary to vital facts and evidence presented

rendering the judgment wrong and unjust. For these reasons, the trial court’s

judgment should be reversed and judgment should be rendered in favor of Appellant.




26
     Plaintiff’s First Amended Original Petition, CR 44-62
27
   AIA Contract, CR 48-62
28
   Testimony of Turrentine, RT 6-11, 29-33
29
   Id. at RT 6:20-21
30
   Id. at RT 29:10-12
31
   Id. at RT 6:20-21
32
   Testimony of Makover, RT 13:6-15

Appellant’s Brief – Richard Makover v. Randy S. Turrentine                          pg. 7
Makover not liable for Corporate Debts

       As a matter of law, Makover is not personally liable for any corporate

accounts or debts in the name of RAM Design + Build, if any such accounts exist.

Makover, as a director and registered agent of RAM, “may not be held liable to the

corporation or its obliges with respect to any contractual obligation of the

corporation or any matter relating to or arising from the obligation.”33

       RAM was at all times a corporate entity, and the contracts signed by Makover

and Turrentine state that the contracts were between RAM and RST. Further,

Makover signed as “President” of RAM, not in an individual capacity. 34 The

contract was executed on August 16, 2011 and Makover established at trial that his

corporation was in good standing at all relevant times.35 Further, Plaintiff testified

at trial that he understood RAM was a Corporation and he was not challenging its

status.36 Therefore, because Makover was an officer of RAM, which was a valid

Texas corporation at all relevant times, and Plaintiff’s contract was with RAM, the

Trial Court erred in granting judgment to Plaintiff against Makover in an individual

capacity. For these reasons, the trial court’s judgment should be reversed and

judgment should be rendered in favor of Appellant.



33
   Tex. Bus. & Com. Code §21.223(2).
34
   AIA Contract, CR 48-62
35
   AIA Contract, CR 48-62; Testimony of Makover, RT 12:19-22; RAM Corporate Status, RTE
51
36 Testimony of Turrentine, RT 8:3-14


Appellant’s Brief – Richard Makover v. Randy S. Turrentine                          pg. 8
Construction Trust Fund Violation

     A. Makover was not a Trustee

       Plaintiff’s sole claim for a Construction Trust Fund Violation should fail

because Makover was not a Trustee of any Construction Trust Funds, and plaintiff

did not provide any evidence to show otherwise. The escrow agent, COP, received

and disbursed all payments according to any applications it received.37 Makover

made no determinations on which subcontractors got paid and in which order they

were paid.38 Because Makover had no control of the project funds, the trial court’s

judgment should be reversed and judgment should be rendered in favor of Appellant.

     B. Makover did not Misappropriate Trust Funds

       If it is determined that Makover was a trustee, the code only prohibits a trustee

from intentionally or knowingly retaining, using, disbursing, or otherwise diverting

trust funds without fully paying all current or past due obligations incurred by the

trustee to the beneficiaries.39 COP disbursed all amounts for applications received

from subcontractors.40 If RAM received any funds from COP, it disbursed them

accordingly or used them to pay other actual expenses directly related to the

Friendswood project.41 The code provides that a trustee has an affirmative defense



37
   Escrow Agreement, RTE 34-42
38
   Id.; Testimony of Makover, RT 14:12-15:12
39
   Tex. Prop. Code §162.031(a)
40
   COP Accounting, RTE 44-49
41
   COP Accounting, RTE 44-49; Testimony of Makover, RT 17:2-12, 27:10-16
Appellant’s Brief – Richard Makover v. Randy S. Turrentine                         pg. 9
if, instead of paying trust beneficiaries, the trustee used the funds to pay other actual

expenses directly related to the construction project.42

        RAM and Makover were not trustees because they did not retain any funds.

All funds were used to pay actual expenses directly related to the Friendswood

project.43 Because RAM holds no trust funds, and did not misappropriate any trust

funds, neither it nor Makover can be held liable for a Construction Trust Fund

Violation under §162.031(a). Further, because RAM used all the construction funds

to pay expenses of the project, the Court should reverse the trial court’s judgment

and should render judgment in favor of Appellant.

     C. If any funds were held in Trust, such funds were limited

        The last payment RAM received for the project prior to Appellee beginning

his work was received on May 9, 2012.44 The payment received was for work done

prior to Appellee beginning his work.45 The only other payment received by RAM

after the May 9th payment was received on July 19, 2012 in the amount of $466.56.46

There was no evidence that any of the money from the prior payment remained after

Appellee finished its work.47 Therefore, the only evidence of potential “trust funds”


42
   Tex. Prop. Code §162.031(b); Perry & Perry Builders, Inc. v. Galvan, No. 03-02-00091-CV,
2003 WL 21705248, at *4 (Tex.App.—Austin 2003)
43
   Testimony of Makover, RT 17:2-12, 27:10-16
44
   COP Accounting, RTE 47
45
   Testimony of Makover, RT 16:18-17:12
46
   COP Accounting, RTE 47
47
   Even if funds remained from the prior payment, Makover contends those funds would have
been from prior work unrelated to Appellee’s work. To hold that funds from prior work needed
Appellant’s Brief – Richard Makover v. Randy S. Turrentine                              pg. 10
was the $466.56 payment received on July 19, 2012. To the extent the Appellate

Court finds there was sufficient evidence that the $466.56 were in fact trust funds

that should have been paid to subcontractors, Makover requests the Court reverse

the trial courts judgment and render a verdict in favor of plaintiff in an amount

limited to $466.56.

Award of $5,000 if Plaintiff prevails at Court of Appeals
       Plaintiff’s amended petition requested the following relief “Actual damages

in an amount not less than Four Thousand Four Hundred Sixteen and No/100 Dollars

($4,416.00) plus pre- and post-judgment interest; and Costs of Court.”48 Plaintiff

did not request relief for additional damages or costs in the event the case was

appealed to the Court of Appeals, nor did the petition contain a “Mother Hubbard”

clause.

       According to Texas Rules of Civil Procedure “the judgment of the court shall

conform to the pleadings.”49 Further, “a court’s jurisdiction to render judgment is

invoked by pleadings, and a judgment unsupported by pleadings is void.”50




to be held to pay for future work would mean that contractors could not receive any payment for
their own operating expenses until a job was completed. No courts have held that the trust fund
statute requires such retention and as stated, no evidence was presented to suggest any such prior
funds remained.
48
   Plaintiff’s First Amended Original Petition, CR 44-62
49
   Tex. R. Civ. Pro. Rule 301
50
   Webb v. Glenbrook Owners Ass'n, Inc., 298 S.W.3d 374, 380 (Tex.App.—Dallas 2009)
   (citing to Ex parte Flemming, 532 S.W.2d 122, 123 (Tex.Civ.App.-Dallas 1975, no writ.).
Appellant’s Brief – Richard Makover v. Randy S. Turrentine                                  pg. 11
Following this reasoning, more cases have held “A judgment that is not supported

by any pleading or tried by consent is void.”51

           For these reasons, the court erred in granting Plaintiff the relief not requested

in Plaintiff’s First Amended Petition and the trial court’s judgment should be

reversed and judgment rendered in favor of Appellant.

Award of $7,500 if Plaintiff prevails on Motion for Rehearing or Application for
a Writ of Error

           Defendant incorporates all arguments related to above Section entitled

“Award of $5,000 if Plaintiff prevails at Court of Appeals.”

           For these reasons, the court erred in granting Plaintiff the relief not requested

in Plaintiff’s First Amended Petition and the trial court’s judgment should be

reversed and judgment rendered in favor of Appellant.

                                          CONCLUSION AND PRAYER

           WHEREFORE, PREMISES CONSIDERED, Appellant respectfully requests

that the trial court’s judgment be reversed as to 1) Makover’s personally liability, 2)

the amount of damages awarded to Plaintiff, 3) additional amounts awarded to

Plaintiff which were not stated in Plaintiff’s pleadings, and 4) for all further and just

relief to which Appellant is entitled.




51
     Loban v. City of Grapevine, No. 2-09-068-CV, 2009 WL 5183802, at *2 (Tex.App.—Fort Worth 2009).


Appellant’s Brief – Richard Makover v. Randy S. Turrentine                                             pg. 12
       Appellant further requests that judgment be rendered in favor of Appellant,

Richard Makover, and order that all funds pertaining to this case that have been

received by Appellee be returned to Makover. If the Court finds that Richard

Makover was a trustee in regard to the $466.56 received by RAM after Appellee

began his work, Makover requests this Court render judgment in favor of Appellee

in the amount of $466.56 and order that all funds pertaining to this case that have

been received by Appellee be returned to Makover minus the $466.56. Appellant

further requests all relief to which he is justly entitled.

Date: February 2, 2015
                                               Respectfully Submitted,
                                               The Smeberg Law Firm, PLLC.

                                               By:    /s/ Ronald J. Smeberg
                                               RONALD J. SMEBERG
                                               State Bar No. 24033967
                                               2010 West Kings Hwy.
                                               San Antonio, Texas 78201-4926
                                               (210) 695-6684, Telephone
                                               (210) 598-7357, Facsimile
                                               ron@smeberg.com
                                               ATTORNEY FOR RICHARD
                                               MAKOVER




Appellant’s Brief – Richard Makover v. Randy S. Turrentine                     pg. 13
                           CERTIFICATE OF COMPLIANCE

         This brief was prepared with a conventional 14-point typeface, with footnotes

in 12point typeface.          The computer program used to prepare this document

determined the word count to be 3802, which includes all words contained in this

brief.

                                                             /s/ Ronald J. Smeberg
                                                             Ronald J. Smeberg




                               CERTIFICATE OF SERVICE

               I hereby certify that on February 2, 2015, a copy of the forgoing was

served electronically or by regular United States mail to all interested parties listed

below.

         Kyle L. Dickson
         Murray | Lobb, PLLC
         700 Gemini, Suite 115
         Houston, Texas 77058

         and

         Randy S. Turrentine
         d/b/a RST Designs
         5511 East Bellaire
         Santa Fe, Texas 77510


                                                             /s/ Ronald Smeberg
                                                             Ronald J. Smeberg
Appellant’s Brief – Richard Makover v. Randy S. Turrentine                           pg. 14
