                                                                                    ACCEPTED
                                                                                14-14-00635-CV
                                                                FOURTEENTH COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                           5/21/2015 4:21:50 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

                          NO. 14-14-00635-CV

_________________________________________________________________
                                                      FILED IN
                                                       14th COURT OF APPEALS
                                                          HOUSTON, TEXAS
            IN THE FOURTEENTH COURT OF             APPEALS
                                                       5/21/2015 4:21:50 PM
                     AT HOUSTON, TEXAS                 CHRISTOPHER A. PRINE
                                                                Clerk
_________________________________________________________________


         GUARDIAN TRANSFER & STORAGE, INC., ET AL
                        Appellant

                                  vs.

                      ERIC BEHRNDT, ET AL
                      Appellee-Cross -Appellant

 _______________________________________________________________

                 Appealed from the 164th District Court
                       of Harris County, Texas

_________________________________________________________________


                  REPLY BRIEF OF APPELLANT

__________________________________________________________________


                                        RAYMOND H. STAUFFACHER. JR.
                                        14825 St. Mary’s Lane, # 105
                                        Houston, Texas 77079-2912
                                        Tel. (713) 365-9009
                                        Fax (713) 365-0005
                                        State Bar No. 19084000
                                        Attorney for Appellant
                      IDENTITY OF PARTIES AND COUNSEL


Guardian Transfer & Storage, Inc., Et Al. . . . . . . . . . . . . . . . . . . . . . Appellant



Raymond H. Stauffacher, Jr. . . . . . . . . . . . . . . . . . . . . . . . . Counsel For Appellant
14825 St, Mary’s Lane, Suite 105
Houston, Texas 77079-2912
TBN # 19084000
Tel. 713-365-9009; Fax 713-365-0005
E-Mail: rstauffacher@rstauffacher.com



Eric Behrndt, Et Al. . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellee/Cross-Appellant



Warren Taylor. . . . . . . . . . . . . . . . . . . . . . . . Counsel for Appellee/Cross-Appellant
815 Walker, Suite 250
Houston, Texas 77002
TBN# 24068496
Tel. 713-615-6060; Fax 713-615-6070
E-Mail: Eserve@taylaw.com


                                            *****




                                                i
                                        TABLE OF CONTENTS


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

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF FACTS AND HISTORY OF THE CASE,
(SEE APPELLANTS’ BRIEF)


APPELLANTS’ RESPONSES TO APPELLEE’S REPLY POINTS:

          A.        APPELLANT'S REPLY TO APPELLEES’
                    CROSS-POINT OF ERROR ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

          B.        APPELLANT'S’ REPLY TO APPELLEES’
                    CROSS-POINT OF ERROR TWO . . . . . . . . . . . . . . . . . . . . . . . . . . 4

          C.        APPELLANT'S RESPONSE TO APPELLEES’
                    REPLY POINT ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

          D.        APPELLANT’S RESPONSE TO APPELLEES’
                    REPLY POINT TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

          E.        APPELLANT’S RESPONSE TO APPELLEES’
                    REPLY POINT THREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

          F.        APPELLANT’S RESPONSE TO APPELLEES’
                    REPLY POINT FOUR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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

 Appt-reply-brf-5-20-15                                   ii
                                   INDEX OF AUTHORITIES
Cases                                                                                                  Page

Allison v. Simmons, 306 S.W. 2d 206, 211,
( Tex. Civ. App.-Waco 1957, writ ref’d. n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Bowen v. Robinson, 227 S.W. 3d 86, 94-95
(Tex.App.-Houston[1st Dist.]2006, pet. Denied. . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

Boyce Iron Works, Inc. v. S.W. Bell Tel. Co., 747 S.W. 2d 785, (Tex. 1987) . . . . . 5

Burrow v. Arce, 997 S. W. 2d 229, 235 (Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . . 6

Coastal Transp. Co. V. Crown Central Petrol. Corp,
136 S.W. 3d 227, 232 (Tex. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

El Apple v. Olivas, 370 S.W. 3d 757,761 (Tex. 2012) . . . . . . . . . . . . . . . . . . . . . . 5

Elliott v. Hamilton, 767 S.W. 2d 262-263;
(Tex.App.–Beaumont 1989, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Houston Unlimited, Inc. v. Mel Acres Ranch, 443 S.W. 3d 820 (Tex. 2014) . . . . . 5

Maulding v. Niemeyer, 241 S.W. 2d 733 (Tex. Civ. App.–El Paso 1951) . . . . . . 10

 Mantri v. Bergman, 153 S.W. 3d 715 (Tex. App. -Dallas 2005, Pet. Den’d.) . . . 12

 Martin v. Family & Protective Services, 176 S.W. 3d 390,
 (Tex. App-Houston[1st Dist.2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

 Natural Gas Pipeline Co. Of Am. V. Justiss, 397 S.W. 3d 150, 156 ( Tex. 2012) . 5

 San Antonio v. Pollock, 284, S.W. 3d 809, 818 ( Tex. 2009) . . . . . . . . . . . . . . . 5, 6

 Spencer v. Eagle Star, 876 S. W. 2d 154 (Tex. 1994) . . . . . . . . . . . . . . . . . 9, 12, 14

 Spolaric v. Percival Tours, 708 S.W. 2d 435, 1986 Tex. Lexis 949 . . . . . . . . . . . 11

 Appt-reply-brf-5-20-15                               iii
Tony Gullo Motors v. Chapa, 212 S.W. 3d 299; 2006 Tex. LEXIS 1301 . . . . . . . 11

White v. SW Bell Tel. Co., 651 S.W. 2d 260 (Tex. 1978) . . . . . . . . . . . . . . . 12, 14


Statutes and Codes _____________________________________________________ Page

Tex. R. Civ. P. 67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Rule 274, Tex.R. Civ. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 8

Tex. R. Civ. P. 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 14

 Tex. R. Evid. 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

§ 10.002, Tex. Civ. Prac. & Rem. Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

§ 41.001, Tex. Civ. Prac. & Rem. Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tex. Penal Code Ann. §§ 31.03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

                                                       *****




Appt-reply-brf-5-20-15                                    iv
A.        REPLY TO APPELLEE’S CROSS-POINT OF ERROR ONE:

RESTATEMENT OF CROSS-POINT OF ERROR ONE:

a.        Guardian did not plead for lost profits;

b.        There is no evidence, or insufficient evidence, that any lost profits were caused

          by BCI’s failure to pay Guardian the $ 49,161.18.

REPLY TO CROSS-POINT OF ERROR ONE:

           a.            Reply   regarding “Defects in Pleadings”: Complaints now by

Plaintiff/Appellee about GUARDIAN’s pleadings are not available to them at this

time in this cause, as such complaints have been waived. Rule 274 Tex. R.Civ. P.

                GUARDIAN provided extensive documentation and video evidence of

damages incurred that were proximately caused by Plaintiffs (RR-V-29-a, b, & c,

Videos’ Exhibits 1,2, 3, 34), including lost value from the Plaintiffs’ temporary

injunction that forced the retention of the auctioned properties, and the sales by

Appellees of the valuable properties fraudulently obtained from GUARDIAN, sold

by Plaintiffs during the pendency of this cause (RR-V9, pp 228-231). These

properties and equipment comprised prospective proceeds of sale by GUARDIAN.

The damage issues of this case were tried by consent and without objection by

Appellees to the pleadings of Appellants, or to the evidence presented or to the

charge of the Court. Thus the present complaints by Appellees regarding these

pleadings, issues and/or matters in the Charge Of The Court, have been waived. Rule

Appt-reply-brf-5-20-15                          1
274, Tex. R. Civ. P.

           In addition, as to Appellees’ allegations about defects in GUARDIAN’s

pleadings, an exception to the general pleading requirement arises when “unpleaded”

issues are tried by the express or implied consent of the parties, as was the case in this

cause. See Tex. R. Civ. P. 67; see also Elliott v. Hamilton, 767 S.W.2d 262, 263 (Tex.

App.--Beaumont 1989, writ denied)], holding that even the inclusion in judgment

of parties not named in pleadings was upheld because of their open participation in

litigation without objection.

           This case remained on the trial docket for over three years, pleadings were

amended many times by both parties, and the case was tried completely without

objection to pleadings. All issues regarding pleadings have been tried by consent and

all objections have been waived.

b.         Reply regarding “LOST PROFITS”. Plaintiffs/Appellees have also waived

their claims regarding the evidence of “lost profits” by failure to object. Rule 274,

Tex.R. Civ. P.

           Appellant GUARDIAN is not required to plead specifically for “lost profits”.

GUARDIAN has pleaded for all damages proximately resulting from Plaintiffs”

actions or omissions. Plaintiff did not object to either the pleadings or to the jury

questions regarding “lost profits” in the Charge of the Court; in fact the jury charge

questions were initially proposed by Plaintiff.( See RR-V-11, pp. 10-11).

Appt-reply-brf-5-20-15                      2
           Direct damages are measured by the losses that result naturally and necessarily

from a breach of contract or tort; the mere allegation gives sufficient notice to the

opposing party of the damages claimed by the plaintiff. Accordingly, a general

allegation of damages resulting from the breach or tort is sufficient to allow proof to

support an award of direct damages. Bowen v. Robinson, 227 S.W.3d 86, 94-95 (Tex.

App.--Houston [1st Dist.] 2006, pet. denied.

           A general plea for “damages” includes a plea for “specific” damages, and in

the absence of objection to the pleading or to the jury questions, GUARDIAN is

entitled to recover all of its damages, including the lost profits and lost values of the

properties proximately resulting from Plaintiffs’ fraud, actions and omissions, and the

losses and expenses caused by the malicious filing of this lawsuit, from the

fraudulent and intentional pursuit and perpetuation of the injunction prohibiting the

use or disposition of the properties by GUARDIAN in the regular course of its

business, and from the losses from related delays and expenses from pursuit of this

suit, all as found by the unanimous jury.

           GUARDIAN provided substantial evidence regarding the values and profits

in the production parts that were the products of the machining business, including

details on the market values of the many parts that had substantial profit margins,

(RR-V-8, pp-30-31).          Much of these products were fraudulently obtained by

Appellees and sold, to the damage of Appellant, GUARDIAN, whose business

Appt-reply-brf-5-20-15                        3
income was principally comprised of the sale of personal properties recovered from

its warehouse/moving and storage business, including the sale of properties like those

fraudulently obtained and sold by Appellees. The losses and damage to GUARDIAN

were not limited to the failure of Appellees to pay the contracted auction sum, as

alleged by Appellees, but extended to the losses in business operations caused by the

fraud of Appellees’ in obtaining and selling the valuable machine products, and by

filing and maintenance of this frivolous suit. Due to the injunction maintained by

Appellees extended the burden of overhead, such as warehouse lease/rental charges

in excess of $14,000.00 per month, over the period this cause remained on the trial

Court’s docket.

All issues regarding pleadings of Appellants have been tried by consent and the

present objections by Appellees have been waived. Rule 274, Tex. R. Civ. P.

                                           *****

B.         REPLY TO APPELLEE’S CROSS-POINT OF ERROR TWO:

RESTATEMENT OF CROSS-POINT OF ERROR TWO:

           The judgment awarding attorneys’ fees to Guardian should be reversed since

there is no evidence, or insufficient evidence, to support the award.

REPLY REGARDING ATTORNEY FEES:

           Appellants filed their election in the Trial Court to recover damages and relief

proximately caused by the torts of Appellees, and instead elected not to seek

Appt-reply-brf-5-20-15                        4
recovery of attorneys fees to which they are entitled by reason of the breaches of

contract found by the jury. However, the jury may also consider and award

reasonable attorney's fees as an element of exemplary damages or in assessing

exemplary damages. Allison v. Simmons, 306 S.W.2d 206, 211 (Tex. Civ. App.--Waco

1957, writ ref'd n.r.e.).

 Appellants are entitled to obtain judgment on the theory entitling them to the most

favorable relief. Boyce Iron Works, Inc. v. S. W. Bell Tel. Co., 747 S. W. 2d 785

(Tex.1987), in this case, by electing damages from fraud in lieu of damages from

breach of contract.

1.         Appellee complains that the attorney fee evidence by Appellant is not

sufficient to support the award of fees by the jury, and cites El Apple v. Olivas, 370

S.W. 3d 757,761 (Tex. 2012); Houston Unlimited, inc. v Mel Acres Ranch, 443 S.W.

3d 820 (Tex. 2014); and San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009).

           When an expert opinion is admitted into evidence without objection, "it may

be considered probative evidence even if the basis for the opinion is unreliable." City

of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009). "But if no basis for the

opinion is offered, or the basis offered provides no support, the opinion is merely a

conclusory statement and cannot be considered probative evidence, regardless of

whether there is no objection." Id. This is because the evidentiary value of expert

testimony is derived from its basis, not from the mere fact that the expert has said it.

Appt-reply-brf-5-20-15                      5
See, e.g., Natural Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156 (Tex.

2012); San Antonio v. Pollock, 284 S.W.3d at 816.

           In Houston Unlimited, Inv. V. Mel Acres Ranch, 443 S. W. 3d 820 (Tex. 2014),

cited by Appellee, the expert based her opinion on facts that did not support her

opinion; although testifying otherwise, the Court found that the expert did not really

use “comparable sales” to support her opinion, provided no evidence that the

damages            alleged   to   support   her   opinion   were   due    to/from     the

contamination/remediation that was the basis of the claim, provided no support for

comparison made between the allegedly “comparable properties’ alleged damages”;

thus her testimony was held to be “conclusory”.

           Although expert opinion testimony often provides valuable evidence in a case,

"it is the basis of the witness's opinion, and not the witness's qualifications or his/her

bare opinions alone, that can settle an issue as a matter of law; a claim will not stand

or fall on the mere ipse dixit of a credentialed witness. Burrow v. Arce, 997 S.W.2d

229, 235 (Tex. 1999). Opinion testimony that is just conclusory or speculative is not

relevant evidence, because it does not tend to make the existence of a material fact

"more probable or less probable." See TEX. R. EVID. 401. The Court has held that

a party may complain that “conclusory” opinions alone are legally insufficient

evidence to support a judgment even if the party did not object to the admission of the

testimony. And when an expert opinion is not just “conclusory” but the basis offered

Appt-reply-brf-5-20-15                        6
for it is unreliable, a party who objects may complain that the evidence is legally

insufficient to support the judgment. However, in that situation an objection is

required to give the proponent a fair opportunity to cure any deficit and thus prevent

trial by ambush.. As explained in Coastal, there is a distinction between challenges

to an expert's scientific methodology and “no evidence” challenges where, on the

face of the record, the evidence lacked probative value. Coastal Transp. Co. v. Crown

Central Petrol. Corp., 136 S.W.3d 227, 232 (Tex. 2004). When the expert's

underlying methodology is challenged, the court necessarily looks beyond what the

expert said to evaluate the reliability of the expert's opinion. When the testimony is

challenged as conclusory or speculative and therefore non-probative on its face,

however, there is no need to go beyond the face of the record to test its reliability. The

Courts therefore conclude that when a reliability challenge requires the court to

evaluate theunderlying methodology or foundational data used by the expert, an

objection must be timely made so that the trial court has the opportunity to conduct

this analysis. However, when the challenge is restricted to the face of the record -- for

example, when expert testimony is speculative or conclusory on its face -- then a

party may challenge the legal sufficiency of the evidence even in the absence of any

objection to its admissibility.

           The attorney fee evidence/testimony in this case was based on accounting

records maintained by counsel, and referred to in the testimony. (RR-V9/ 121-123);

Appt-reply-brf-5-20-15                      7
although exchanged between counsel, accounting documents were not introduced into

the record. There was no cross examination or objection to the Appellants’ fees

testimony by Appellee. In addition, the jury questions regarding attorney fees was

proposed by Appellee (RR-V-11, 20-24) and there was no objection to the jury charge

on the attorney fee issue. The attorney fee evidence/testimony in this case was based

on time/accounting records kept thoughout the case, the testimony was not merely

“conclusory” or unsupported, was not objected to by Appellee when in trial or in the

jury charge. Appellees’ current complaint regarding the sufficiency of the attorney fee

evidence in this case has been waived and the fee award found by the jury should be

affirmed by this Court. Rule 274, Tex.R. Civ. P.

C.         APPELLANTS’ RESPONSE TO APPELLEE’S REPLY POINT ONE.

(Appellees’ response to Appellants’ Points of Error One and Two)

           Appellee submits that the judgment refusing to grant the jury’s damage award

for fraud should be affirmed because (a) the was no evidence that Behr Construction,

Inc. committed fraud, (b) there was no evidence any damages were suffered as result

of the alleged fraud; and ( c) the award of both profits and lost value of equipment

would constitute a double recovery.

           Appellant shows that this cause was tried , the jury charged and the verdict

rendered without formal objection by Appellees; in fact Appellees submitted the

proposed jury charge sent to the jury in its current form, including the accompanying

Appt-reply-brf-5-20-15                      8
instruction, without objection. The conduct of Appellees that comprises or supports

the claims by Appellants exactly fits the jury instruction in question 8-c.

Appellees’contention on appeal that there was no evidence of fraud, or damages due

to fraud, have been waived. Rule 274, Tex.R. Civ. P.

           Appellants’ points of error One and Two show that the Trial Court erred in

disregarding the jury verdicts that were supported by the evidence produced in trial.

The Trial Court may not disregard jury findings that are supported by the evidence.

Rule 301, Tex.R.Civ.P.; Spencer v. Eagle Star, 876 S.W. 2d 154 (Tex. 1994).

In trial Appellees persisted in misrepresenting that the issues of this case arose from

a dispute about storage charges and credits allowed to other, different parties on

their accounts with GUARDIAN; Appellees sought reduction in their charges many

months after they were incurred and long after Appellees’ default. Appellee Behrndt

claimed similar credits should be given to him against his obligations to pay the

agreed auction transaction charges, apparently in an effort to justify or excuse his

contract breach, and fraudulent actions and conduct. This same effort was presented

in trial, but was rejected by the jury, and was referred to previously in Appellants’

Brief in this cause in Appellants’ Point of Error One.

           Examples of fraud by Appellees are referenced and described in Point of

Error One of Appellants’ brief.

           Fraudulent representations communicated to another may be comprised of

Appt-reply-brf-5-20-15                     9
actions and conduct that communicates the fraud; this may be done by actions or

conduct, with or without verbal statements, and the fraudulent intent can be

determined by the actions taken that confirm the fraud, and the intent to induce

reliance on the fraudulent representations. Behrndt’s intent to defraud Guardian and

avoid payment for the materials and equipment he induced Guardian to permit him

to take after the auction transaction was confirmed by his subsequent conduct in the

receipt and appropriation of the $ 20,000.00 provided to him by his then business

associate, Truong Duong, on the same evening of the auction. Behrndt convinced

Truong Duong that he intended to keep the Guardian properties without payment. See

RR-V9/187-199.

           Fraudulent intent is the only conclusion to be reached in reviewing the

preparation and presentation of the “affidavit” behrndt and his personal assistant

constructed by computer printing the “affidavit” document using a multi-layer

printing process. See Defendants’ Exhibits 42, 42-a, b & c. This fraudulent affidavit

was calculated to damage Guardian in the amount of at least $ 17,000, and could have

irreparably damaged the business and the reputation of its principals; fortunately

Guardian was able to minimize that damage, which is now difficult to quantify.

           Contrary to the implication of Appellees, Guardian has not and does not

contend that just the failure of Appellees to pay the Auction contracted balance to

Guardian was Fraud, although the ridiculous excuses that Appellees used in their

Appt-reply-brf-5-20-15                    10
effort to avoid the payment do support the logical conclusion that they never intended

to pay.

           Intent to defraud is not subject to direct proof, but must be proved by

Circumstantial evidence. Maulding v. Niemeyer, 241 S.W. 2d 733, (Tex.Civ.App. --

El Paso 1951). Only “slight circumstantial evidence” will support a finding of fraud.

Spolaric v. Percival Tours, 708 S.W. 2d 435, 1986 Tex. Lexis 949; Tony Gullo

Motors v. Chapa; 212 S.W. 3d 299; 2006 Tex. LEXIS 1301.

           As noted herein, a fraudulent “statement” is not the only way that fraud arises,

and conduct may also be “fraud”. It was uncontroverted in trial that the allegations

that produced the “affidavit” allegedly signed by Truong , alleging the $ 17,000.00

payment to Guardian, and involvement of the constable in exchanging property

outside of the auction transaction, was “untrue”, and was known to be untrue by

Appellees and their associates when they generated it. All expense and other damage

incurred by Guardian in dealing with that fraud and slander by Appellees supports

a finding of fraud, and damages from that “affidavit” fraud are presumed, since the

slander alleged a criminal violation.(Tex. Penal Code Ann. §§ 31.03).

           The Court was not required to consider the jury findings of the being in same

amount of damage, whether from fraud or from breach of contract, and the judgment

would not involve a “double recovery”, especially since Appellants made the clear

election to recover its damages for fraud rather than for the breach of contract found

Appt-reply-brf-5-20-15                        11
by the jury. Since there is evidence to support the jury’s findings, the Trial Court is

not authorized to substitute its fact findings for the jury’s and judgment for the

damages for fraud should be rendered. Rule 301, Tex. R. Civ. P.; Spencer v. Eagle

Star, 876 S.W. 2d 154 (Tex. 1994); White v. SW Bell Tel. Co., 651 S.W. 2d 260 (Tex.

1978).

D.         APPELLANTS’ RESPONSE TO APPELLEE’S REPLY POINT TWO

(Appellees’ response to Appellants’ Points of Error Four and Five)

           Appellee submits that the judgment refusing to award actual and punitive

damages for filing an alleged frivolous lawsuit should be affirmed since there is no

such cause of action, also contending that the trial Court declined to award sanctions

and there is no evidence of any independent damages.

1.         The jury verdict found Appellants suffered actual damages caused by

Appellees in Jury Answers to Question 47. The jury further found that these actual

damages were caused by the intentional actions and conduct of Appellees ( Jury

Question 47) who had actual awareness of the falsity of their claims and probable

damage from their actions. (Jury Question 48). These jury findings were supported

by the evidence introduced without objection, and findings were made in answers to

Jury Questions submitted without objection. Appellee’s complaints about the verdict

on this issue have been waived. Rule 274, Tex. R. Civ. P.


Appt-reply-brf-5-20-15                    12
2.         The jury also found exemplary damages should be awarded to Appellants.

3.         Appellees cite Mantri v. Bergman, 153 S.W. 3d 715 (Tex. App.–Dallas 2005,

Pet. den’d) in support of their claim that Sect. 10.002, Tex. Civ. Prac. & Rem. Code

controls the exemplary damage verdict in this case.; “ Mantri” cites Martin v.

Family and Protective Services, 176 S.W.3d 390 (Tex. App.-Houston [1st Dist, 2004

]). However, these cases cited deal only with “motions for sanctions” made under

Sect. 10.002, Tex. Civ. Prac. & Rem. Code ; None deal with claims governed by

Section 41.001, Et Seq, Tex. Civ. Prac. & Rem. Code, which relates to “exemplary

damages”.

            There were no motions for sanctions made in trial, at the time of submission

of the case to the jury or in the charge to the jury, and Appellees made no objections

to the charge regarding these referenced jury questions. Appellee’s complaints about

the verdict on this issue have been waived. Rule 274, Tex. R. Civ. P.

E.         APPELLANTS’ RESPONSE TO APPELLEE’S REPLY POINT THREE


(Appellees’ response to Appellants’ Point of Error Three)


           Appellees ask this Court to affirm the action of the Trial Court in disregarding

the verdict of the jury, which found conspiracy by Appellees and damages to

Appellant caused by their conspiracy.

           In their brief, Appellants submitted record references to the actions and

Appt-reply-brf-5-20-15                        13
conduct by Appellees and their agents and employees that showed the multiple events

and things undertaken by Appellees to harm Appellants, including the conspiracy to

obtain the properties of Appellants without payment despite the delivery of another

of his associates of $ 20,000.00, to pay his auction charges, conspiracy in which

Plaintiff/Appellee, BEHRNDT, participated with his associate NIKKI VIARS, to libel

and otherwise damage Appellants (RR-V-9, p.204), conspiring to obtain credit

against his auction charges by alleging illegal “under the table” payment to

GUARDIAN with the fraudulently constructed “affidavit” allegedly made by a then-

business associate, “Truong Duong”, with the alleged participation of the Constable.

All of these conspiratorial acts were conducted by              BEHRNDT,        BEHR

CONSTRUCTION, INC., EZ MANAGEMENT, LLP, and VIARS, who worked

together to accomplish their mutual goal to gain a benefit to the damage of

Appellants.

           As stated elsewhere herein, the intent of the conspirators is shown by their

actions, proved by circumstantial evidence that was uncontroverted in trial of this

cause.

           All of the conspiratorial acts and conduct were shown to have as their

principal effect financial benefit to Appellees, delay and damage to Appellants, since

the      filing and maintaining this lawsuit impacted the conduct of business of

Appellees, required the payment of continued business overhead expense without

Appt-reply-brf-5-20-15                      14
opportunity to conduct business and dispose of the auction properties, and enabled

Appellees to sell and dispose of the properties fraudulently obtained by Appellees

without payment.

           The Trial Court erred by its failure and refusal to render judgment for the

damages caused by the conspiracy of Appellees, as found by the jury. The Trial Court

may not disregard jury findings that are supported by the evidence. Rule 301, Tex. R.

Civ. P.; Spencer v. Eagle Star, 876 S.W. 2d 154 (Tex. 1994), White v. SW Bell Tel.

Co., 651 S.W. 2d 260 (Tex. 1978).

F.         APPELLANTS’ RESPONSE TO APPELLEE’S REPLY POINT FOUR

(Appellees’ response to Appellants’ Points of Error Six)

           Appellees contend that no “substantive” liability finding against BEHRNDT

or EZ MANAGEMENT, or there is “insufficient evidence” that BEHRNDT was the

“alter ego” or “responsible” for the conduct of BEHR CONSTRUCTION, INC. or

EZ MANAGEMENT , LLC.

The instruction to the Jury advised the BEHRNDT is responsible if they follow the

specific items in the instruction; this will require the finding of “substantive” facts.

See the jury question and instructions (See Clerk’s Record CR-V1-p.305). The jury

instruction required them to find:

a.         BEHRNDT caused BEHR CONSTRUCTION, INC. or EZ MANAGEMENT


Appt-reply-brf-5-20-15                     15
           to be used to defraud GUARDIAN, or

b.         Actually perpertrated actual fraud on GUARDIAN, and

c.         BEHRNDT caused BCI or EZ to perpertrate fraud against GUARDIAN for

           his direct personal benefit.

                         The jury was further charged to answer the questions propounded

regarding the “alter ego” issue, with the accompanying instructions:

BEHRNDT is responsible if you find:

           a.            BEHR CONSTRUCTION or EZ MANAGEMENT were organized and

                         operated as a mere tool or business conduit of BEHRNDT, or

           b.            If there was such unity between them that the separateness had ceased

                         and holding only BCI or EZ responsible would result in injustice , or

           c.            If BEHRNDT caused BCI or EZ to be used for the purpose of

                         perpetuating and did perpetuate actual fraud on GUARDIAN for the

                         direct personal benefit of BEHRNDT;

           d.            The Jury was also instructed to consider (1) the separateness of the

                         property of the parties; (2) the financial ownership and control

                         BEHRNDT maintained over the companies and (3) whether the

                         companies had been used for his personal purposes.

           Based on the jury questions and instructions, there is ample evidence in the
Appt-reply-brf-5-20-15                             16
record to support the verdict findings that BEHRNDT is the alter-ego of both

companies and is responsible for their conduct, as well as his own conduct.

Supporting evidence includes the following:

1.         ERIC BEHRNDT, individually filed this case and later brought in all other

           plaintiffs.( CR-p 6; CR-p 105);

2.         BEHRNDT individually bid in and took receipt for the properties at the

constable’s auction sale, although he had led his partners to believe he was

purchasing for their group. ( RR-V-10, pp 11-12); (Plaintiffs’ Exh.10, RR-V-14,

p124).

3.         ERIC BEHRNDT individually took possession of the properties GUARDIAN

           allowed him to have after the auction, based on his representation he would

           return and pay for the moving and storage charges due on the properties;

4.           ERIC BEHRNDT received and kept a $20,000.00 cash payment that his

           business associate, Truong Duong, provided, through EZ MANAGEMENT

           cash facilities, that was intended by his partners/fellow shareholders to be paid

           on the Guardian charges. This money was not ever booked or returned back

           to EZ MANAGEMENT, but was kept by BEHRNDT.(V10, p-24, l-8-10).

5.         ERIC BEHRNDT individually owned BEHR CONSTRUCTION, INC., and

           after taking out his “partners” or fellow shareholders by threats and extortion,


Appt-reply-brf-5-20-15                        17
           after he and his associates defrauded and conspired to damage Appellants, he

           was also the sole owner of EZ MANAGEMENT, LLC. ( RR-V-10, p-30-34).

6.         ERIC BEHRNDT individually arranged an “output contract” with his other

           partner, Truong Duong (Micro-Machines LLC) by extortion and threats of

           criminal charges. (RR-V-9, p.202, l-1-12);

7.         ERIC BEHRNDT, in fraud and conspiracy with his associates, including

           Nickki Viars, his female business associate, prepared a fraudulent “affidavit”

           by multi-staged electronic copying of a document             to fraudulently

           misrepresent a document to be an “affidavit” of Truong Duong, the principal

           of Micro-Machines and debtor in the execution process. (RR-V-9, p-216-217),

           to support the fraudulent allegation of illegal acts by the constable and

           Guardian (RR-V-9, p-204) in an effort to extort credit on his auction bid

           charges.

           The record clearly shows that BEHRNDT individually controlled and operated

BEHR CONSTRUCTION, INC. and EZ MANAGEMENT, LLC, all of the entities

in this cause, he operated them solely for his own individual benefit, and individually

filed, maintained and perpetuated this frivolous suit, individually took advantage of

every opportunity to benefit himself personally, eliminated his fellow business

shareholders/partners, kept all of the properties Guardian allowed him to take after



Appt-reply-brf-5-20-15                       18
the auction, without payment, on the fraudulent representation that he would return

and pay the charges and obtain the balance of the auction properties, and many if not

all of the properties he sold. None of the evidence provided in trial by Guardian or

other witnesses, as to the fact that BEHRNDT was individually taking the actions

taken, was ever controverted by BEHRNDT, either individually or as an officer of

BEHR CONSTRUCTION, INC., or EZ MANAGEMENT, LLC. No evidence was

introduced to show that any of the actions taken in the events of this case were

allegedly corporate actions, rather than actions by BEHRNDT in his individual

capacity.

                                PRAYER FOR RELIEF

           NOW COME GUARDIAN TRANSFER & STORAGE, INC. and STUART

C. STAUFFACHER, Appellants, and pray the Nunc Pro Tunc Amended Final

judgment of the Trial Court, dated July 18, 2014, be reversed, amended and rendered

as follows:

1.         The Nunc Pro Tunc Amended Final judgment dated July 18, 2014, finding by

           the Trial Court of “no evidentiary support for Jury Answers to Questions 42

           and 43" be stricken and set aside, and the judgment that Counter-Plaintiffs

           take nothing from ERIC BEHRNDT individually be reversed, amended and

           set aside, and instead confirm the jury verdict that ERIC BEHRNDT is the



Appt-reply-brf-5-20-15                     19
           Alter Ego of BEHR CONSTRUCTION, INC. and EZ MANAGEMENT, LLC

           and is individually responsible for his conduct and the conduct of both

           entities, as found by the jury, and that judgment be entered that BEHRNDT

           is individually responsible for the judgments against him and against those

           entities;

2.         The Nunc Pro Tunc Amended Final judgment be reversed, amended and

           rendered to provide for and award judgment to Appellants against ERIC

           BEHRNDT, individually, in addition to the liability of BEHR

           CONSTRUCTION, INC., for all damages determined by the jury, including,

           without limitation, damages for lost profits both in the past and in the future,

           and for lost market value of $ 1,200,000.00, as found by the jury;

3.         The Nunc Pro Tunc Amended Final judgment be reversed, amended and

           rendered to provide judgment of individual, joint and several liability of ERIC

           BEHRNDT, in addition to the liability of BEHR CONSTRUCTION, INC., for

           recovery by Counter-Plaintiffs/Appellants GUARDIAN TRANSFER &

           STORAGE, INC., and STUART C. STAUFFACHER, of their attorney fees

           through trial and all appeals;

4.         The Nunc Pro Tunc Amended Final judgment be reversed, amended and

           rendered to award judgment for Counter-Plaintiffs/Appellants providing for



Appt-reply-brf-5-20-15                        20
           individual, joint and several liability of ERIC BEHRNDT, in addition to the

           liability of BEHR CONSTRUCTION, INC., for all pre-judgment interest at

           the rate of 5 Percent per annum from May 26, 2011 and post-judgment interest

           at the legal rate provided by law, on all damages awarded to Appellants in this

           cause, including, without limitation, damages for lost profits both in the past

           and in the future and for lost market value;

5.         The Nunc Pro Tunc Amended Final judgment be reversed and rendered to

           provide individual, joint and several liability of ERIC BEHRNDT, in addition

           to the liability of BEHR CONSTRUCTION, INC., for all costs of Court in

           this cause;

6.         The Nunc Pro Tunc Amended Final judgment be reversed, amended and

           rendered to provide that Appellant GUARDIAN have judgment against ERIC

           BEHRNDT individually for damages from conspiracy in the amount of

           $1,650,000.00, as found by the jury;

7.         The Nunc Pro Tunc Amended Final judgment be reversed, amended and

           rendered      to   award   judgment    against    BEHRNDT        and   BEHR

           CONSTRUCTION, INC. for attorney fees awarded for trial of this cause shall

           be allocated in the amounts found the jury, in the original amount of

           $165,000.00 to BEHRNDT, $110,000.00 to BEHR CONSTRUCTION, INC.,

           and -0- to EZ MANAGEMENT, LLC.;
Appt-reply-brf-5-20-15                       21
8.         The Nunc Pro Tunc Amended Final judgment be reversed, amended and

           rendered to provide for judgment against ERIC BEHRNDT and BEHR

           CONSTRUCTION, INC., individually, jointly and severally, for GUARDIAN

           TRANSFER & STORAGE, INC. in the amount of $ 300,000.00, and for

           STUART STAUFFACHER in the amount of $ 200,000.00 for their actual

           damages for the filing of this suit merely for purposes of harassment;

9.         The Nunc Pro Tunc Amended Final judgment be reversed, amended and

           rendered to provide that counterplaintiffs GUARDIAN MOVING &

           STORAGE, INC. and STUART C. STAUFFACHER have judgment against

           ERIC BEHRNDT in the amount of $ 2,000,000.00 and against BEHR

           CONSTRUCTION, INC. in the amount of $ 1,000,000.00 for the exemplary

           damages found by the jury;

 Appellants further pray to have their costs in this matter expended and such other

relief as this Court shall find appropriate to grant.

                                                 Respectfully submitted,

                                                 /S/Raymond H. Stauffacher, Jr.
                                                 Raymond H. Stauffacher, Jr.
                                                 14825 St. Mary’s Lane, Suite 105
                                                 Houston, Texas 77079-2912
                                                 Tel. 713-365-9009; Fax. 713-365-0005
                                                 State Bar No. 19084000
                                                 Attorney for Appellants
Appt-reply-brf-5-20-15                      22
                                          APPENDIX


Charge To The Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Clerk’s Record Page 281


Amended Final Judgment . . . . . . . . . . . . . . . . . . . . . . Clerk’s Record-Supplement




                          CERTIFICATE OF COMPLIANCE


       I hereby certify compliance with Rule 9, T.R.A.P. regarding 14- Point Type
Font and Word Count: Word Count is 5499.


                                                     /S/Raymond H. Stauffacher, Jr.
                                                        Raymond H. Stauffacher, Jr.




                              CERTIFICATE OF SERVICE



       I hereby certify that on this the 21st day of May, 2015, a true and correct copy
of the foregoing Reply Brief Of Appellant, was forwarded to Appellee/Cross-
Appellant, by and through counsel, Warren Taylor, 815 Walker, Suite 250, Houston,
Texas 77002, in accordance with Rule 21a T.R.C.P..


                                                     /S/Raymond H. Stauffacher, Jr.
                                                        Raymond H. Stauffacher, Jr.




Appt-reply-brf-5-20-15                          23
