in Re Panina, Inc. D/B/A JA Construction Services

ACCEPTED
02-15-00004-CV
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
1/6/2015 9:47:34 PM
DEBRA SPISAK
CLERK

NO. _____________

FILED IN
IN THE 2nd COURT OF APPEALS
COURT OF APPEALS FORT WORTH, TEXAS
SECOND DISTRICT OF TEXAS AT FORT WORTH,01/06/2015
TEXAS 9:47:34 PM
DEBRA SPISAK
Clerk

IN RE: PANINA, INC d/b/a JA CONSTRUCTION SERVICES

Relator
v.

THE HONORABLE MELODY WILKINSON, JUDGE
OF THE 17th DISTRICT OF
TARRANT COUNTY, TEXAS

Respondent

PETITION FOR MANDAMUS
In Cause No. 17-266141-13 pending in the
17th Judicial District Court of
Tarrant County, Texas
Honorable Melody Wilkinson, Presiding Judge

JOHN P. KNOUSE
Law Office of John P. Knouse
16970 Dallas Parkway
Bldg 300
Dallas, Texas 75248
(972) 380-1188 (Telephone)
(921) 367-5982 (Telecopier)
e-mail: knouselaw@yahoo.com
ATTORNEY FOR RELATOR

January 6, 2015
 IDENTITY OF PARTIES AND COUNSEL

Relator/Plaintiff: PANINA, INC d/b/a JA CONSTRUCTION SERVICES

Relator/Plaintiff's Counsel John P. Knouse
SBOT No. 11624000
Law Office of John P. Knouse
16970 North Dallas Parkway, Bldg 300
Dallas, Texas 75248
E-mail:knmouselaw@yahoo.com
Tel: (972) 380-1188
Fax: (214) 367-5982

Respondent: Hon. Judge Melody Wilkinson
Tim Curry Justice Center - 8th Floor
401 W. Belknap
Fort Worth, TX 76196
Tel: (Nancy Bentley, Coordinator (817)-884-1460
Fax:.(Nancy Bentley, Coordinator: Unknown

Defendant's Counsel Lane Addison
SBOT No.2509355
Henley & Henley, P.C.
3300 Oak Lawn Avenue, Suite 700
Dallas, Texas 75219
E-mail:raddison@henleylawpc.com
Tel: (214) 821-0222
Fax: (214) 821-0124

i.
 TABLE OF CONTENTS

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

TABLE OF CONTENTS ....................................................................... .ii, iii

INDEX OF AUTHORITIES .................................................................... .iv,v

STATEMENT OF THE CASE ..................................................................... 2

STATEMENT OF JURISDICTION .............................................................. 3

ISSUES PRESENTED FOR REVIEW ............ '" ...... '" ............ '" .......... , ........ .3

ISSUE NUMBER ONE:

DID THE TRIAL JUDGE ABUSE HER DISCRETION AND EXCEED
HER STAUTORY AUTHORITY IN DENYING REALTOR'S
TRADITIONAL MOTION FOR SUMMARY JUDGMENT AND
REALTOR'S "NO EVIDENCE" MOTION FOR SUMMARY JUDGMENT
BASED SOLEL Y UPON HER IMPROPER CONSIDERATION OF
DEFENDANT'S SUMMARY JUDGMENT EVIDENCE PRESENTED BY
AFFIDAVITS OF WITNESSES PREVIOUSLY COMPLETELY
UNIDENTIFIED BY DEFENDANT IN PRIOR REPONSE TO REQUESTS
FOR DISCLOSURES, MANADTORILY EXCLUDED BY T.RC.P. RULE
193.6(a)?

ISSUE NUMBER TWO:

DID THE TRIAL JUDGE ABUSE HER DISCRETION BY PERMITING
DEFENDANT TO PRESENT A DEFENSE TO REALTOR'S SWORN
ACCOUNT, PRECLUDED AS A MATTER OF LAW BY T.RC.P. RULE
185 WHERE THE DEFENDANT'S AMENDED ANSWER DENYING THE
ACCOUNT WAS NOT PROPERLY SWORN TO BY A WITNESS
HAVING PERSONAL KNOWLEDGE AS REQUIRED BY T.RC.P. RULE
93 (10) WITHOUT A SHOWING OF PERSONAL KNOWLEDGE IN THE
AFFIDAVIT AND WHOSE AFFIDAVIT OPPOSING SUMMARY
JUDGMENT SHOWED HE HAD NO PERSONAL KNOWLEDGE BUT
ONLY HEARSAY INFORMATION?

ii.
STATEMENT OF FACTS ......................................................................... 4, 5

SlJMMAFl~ OF TIIE AFlCJlJMENT ............................................................. 6

AFlCJlJMENT AND AlJTIIOFlITIES ON ISSlJE NO. 1. .................................... 7-10

AFlCJlJMENT AND AlJTIIOFlITIES ON ISSlJE NO.2 ....................................... 10-13

PItA ~EFl FOFl FlELIEF ........................................................................... 13

CEFlTIFICATE OF SEFlVICE .................................................................... 15

VEFlIFICATION OF PETITION FOFl MANDAMlJS ........................................ 16

APPENDIX ............... '" ............ '" ........................... '" ........................... 17

iii.
 INDEX OF AUTHORITIES

Cases Page(s)
Alvarado v. Farah Mfg. Co. Inc., 830 S.W.2d 911 (Tex. 1992) ...................... 6,8

Braniff Inc. v. Lentz, 748 S.W.2d 297,300 (Tex.App.-Ft. Worth 1988) ....... 11

Brownlee v. Brownlee, 665 SW 2d 111, 112 (Tex. 1984) ...................... 11

Burke v. Satterfield, 525 SW.2d 950, 955(Tex. 1975) .......................... 11

Cantu v. Holiday Inns, Inc., 910 SW2d 113, 116 (Tex. Civ. App.-
Corpus Christi, 1995, no writ) ....................................................... 6

Gibbs v. Bureaus Investment Group Portfolio _SW3d_
(No. 14, LLC, 08-12-00330-CV) (Tex.App.-EI Paso 7-22-2014) ....................... 9

Gorrell v. Tide Prods, Inc., 532 SW2d 390, 395 (Tex. Civ. App-
Amarillo, 1975, no writ) ............................................................. .11, 12

Gutierrez v. Dallas Independent School Dist., 729 S.W.2d 691 (Tex. 1987) ..... 6,8

Hinojosa Auto v. Finishmaster, _SW2d_, (03-08-00361-CV-
Tex. Civ. App-Austin, 12-12-2008) ................................................ 12

Humphreys v. Caldwell, 888 SW2d 469,470 (Tex. 1994) ...................... 6, 11, 13

Morrow v. H.E.B., Inc., 714 S.W.2d 297,297-98 (Tex. 1986) ........................ 8,11

Oscar Luis Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 860
(Tex.App.-Dallas 2006, no pet.), ............................................................. 9

Rizk v. Financial Guardian Ins. Agency, Inc., 584 SW2d 860, 862
(Tex. 1979) ............................................................................. 6, 10, 13

Vance v. Holloway, 689 SW2d 403,404 (Tex. 1985) ............................ 6, 10, 13

Yeldell v. Holiday Hills Retirement and Nursing Center, Inc., 701 S.W.2d 243,
247 (Tex. 1985) ................................................................................. 8, 11

STATUTES AND RULES

Tex. Govt. Code Ann., § 22.201(c ) ......................................................... 3
iv.
Tex. Govt. Code Ann., § 22.221(b) (1) .................................................... 3

Texas Rule of Appellate Procedure, Rule 52 ...................................... 1

Tex. Rules of Civil Procedure §193.6(a) ................................................... 2, 6, 7, 10

Tex. Rules of Civil Procedure §185 ....................................................... .2, 7,10,13,14

Tex. Rules of Civil Procedure §92(10) .................................................... 2, 10, 14

v.
 NO. ______________

IN THE
COURT OF APPEALS
SECOND DISTRICT OF TEXAS AT FORT WORTH, TEXAS

IN RE: PANINA, INC d/b/a JA CONSTRUCTION SERVICES

Relator
v.

THE HONORABLE MELODY WILKINSON, JUDGE
OF THE 17th DISTRICT OF
TARRANT COUNTY, TEXAS

Respondent

PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Now Comes Relator/Plaintiff PANINA, INC d/b/a JA CONSTRUCTION

SERVICES, ("Panina") and files this its Petition for a Writ of Mandamus pursuant to

Texas Rule of Appellate Procedure, Rule 52. By this Petition for Mandamus, Panina

seeks relief from the Orders of the Hon. Melody Wilkinson, Judge of the 17th Judicial

District Court of Tarrant County, Texas November 19, 2014, denying both Panina's

Traditional Motion for Summary Judgment and Panina's "No Evidence" Motion for

Summary Judgment, based solely upon Judge Wilkinson's improper consideration of the

only summary judgment evidence presented by the Defendant, Heather Village, LLC,
PETITION FOR MANDAMUS Page 1
through two affidavits setting forth the testimony and evidence of two witnesses, David

Christensen and Ken Toler, neither of whom had ever been disclosed by Defendant in

response to Panina's properly served Requests for Disclosure and whose testimony by

affidavits was automatically and mandatorily excluded, as a matter of law by Texas Rule

of Civil Procedure Rule 193.6(a), the consideration of which was not within the judicial

discretion of the Hon. Judge Wilkinson, and her further denying Panina summary

judgment on its sworn account, when the Defendant Heather Village, LLC., was

precluded from presenting a defense thereto as a matter of law, by Texas Rule of Civil

Procedure 185, where there was no proper sworn denial of the sworn account had been

made by an individual who had personal knowledge, as required by Texas Rule of Civil

Procedure Rule 93(10) .

STATEMENT OF CASE

RelatorlPlaintiff, Panina, requests this Court issue a Writ of Mandamus, ordering

Hon. Melody Wilkinson, Judge of the 17th Judicial District Court of Tarrant County,

Texas, to set aside her Orders Denying Summary Judgment and to reconsider Panina's

Motion For a Traditional Summary Judgment and its Motion For "No Evidence"

Summary Judgment, after excluding from her consideration any evidence presented by

the affidavits of David Christensen and Ken Toler, who were not previously disclosed by

the Defendant, Heather Village, LLC in response to a properly served Requests For

Disclosure, in accordance with Texas Rules of Civil Procedure Rule 193.6(a) and after

disregarding any defense by Defendant, Heather Village, LLC to Panina's suit on a

PETITION FOR MANDAMUS Page 2
sworn account, as precluded by Texas Rules of Civil Procedure Rules 185 and 93(10),

by reason of its failure to properly denied the account under oath.

STATEMENT OF JURISDICTION

The question of the proper exercise of statutory judicial power and orders issued

by the Honorable Melody Wilkinson, Judge of the 17th Judicial District County of Tarrant

County, Texas, is within the appellate district of the Second District Court of Appeals.

Tex. Govt. Code Ann. § 22.201(c). This Court has authority under § 22.221(b)(1) of the

Texas Government Code to issue writs of mandamus against District Court Judges, which

includes Associate Judges for the District Judge, within its appellate district.

ISSUES PRESENTED FOR MANDAMUS

ISSUE NUMBER ONE:
DID THE TRIAL JUDGE ABUSE HER DISCRETION AND EXCEED HER
STAUTORY AUTHORITY IN DENYING REALTOR'S TRADITIONAL
MOTION FOR SUMMARY JUDGMENT AND REALTOR'S "NO EVIDENCE"
MOTION FOR SUMMARY JUDGMENT BASED SOLELY UPON HER
IMPROPER CONSIDERATION OF DEFENDANT'S SUMMARY JUDGMENT
EVIDENCE PRESENTED BY AFFIDAVITS OF WITNESSES PREVIOUSLY
COMPLETELY UNIDENTIFIED BY DEFENDANT IN PRIOR REPONSE TO
REQUESTS FOR DISCLOSURES, MANADTORILY EXCLUDED BY T.R.C.P.
RULE 193.6(a)?

ISSUE NUMBER TWO:
DID THE TRIAL JUDGE ABUSE HER DISCRETION BY PERMITING
DEFENDANT TO PRESENT A DEFENSE TO REALTOR'S SWORN ACCOUNT,
PRECLUDED AS A MATTER OF LAW BY T.R.C.P. RULE 185 WHERE THE
DEFENDANT'S AMENDED ANSWER DENYING THE ACCOUNT WAS NOT
PRO PERL Y SWORN TO BY A WITNESS HAVING PERSONAL KNOWLEDGE
AS REQUIRED BY T.R.C.P. RULE 93 (10) WITHOUT A SHOWING OF
PERSONAL KNOWLEDGE IN THE AFFIDAVIT AND WHOSE AFFIDAVIT
OPPOSING SUMMARY JUDGMENT SHOWED HE HAD NO PERSONAL
KNOWLEDGE BUT ONLY HEARSAY INFORMATION?

PETITION FOR MANDAMUS Page 3
 STATEMENT OF FACTS

On September 26, 2014, Panina, filed a Traditional Motion For Summary

Judgment on a sworn account as well as a "No Evidence" Motion For Summary

Judgment on a counterclaim filed by Defendant, Heather Village.LLC, copies of which

Motions for Summary Judgment are attached to the Appendix hereto, as Exhibits "A" and

"B". On November 7,2014, Defendant Heather Village, LLC, filed its Responses to both

Motion for Summary Judgment, attaching, as its sole summary judgment evidence in

opposition to each of Pannia's Motions for Summary judgments, the affidavits of two

witnesses, David Christensen and Ken Toler, copies of which Responses to the Motion

for Summary Judgment and said affidavits, are attached in the Appendix hereto, as

Exhibits "C" and "D". Neither of the said witnesses had ever been disclosed by

Defendant Heather Village, LLC, as "persons having knowledge" nor as "expert

witnesses" in response to Requests For Disclosure previously served by Panina upon the

said Defendant, Heather Village, LLC, six months previously on May 7, 2014, a copy of

which Requests For Disclosure is attached to the Appendix hereto, as Exhibit "E". The

failure to designate the witnesses clearly appears in Defendant's Response to Panina's

Requests for Disclosure, which was filed by Defendant Heather Village, LLC, attached to

the Appendix hereto, as Exhibit "F". Prior to the filing of Panina's Motions for Summary

Judgment, Defendant Heather Village, LLC had filed an unsworn Original Answer to

Panina's suit on a sworn account, a copy of which is attached to the Appendix hereto as

PETITION FOR MANDAMUS Page 4
Exhibit "G". On November 5, 2014, Defendant Heather Village, LLC filed its First

Amended Original Answer and Counterclaim, containing a verification by the same

undesignated David Christenson, who was neither an officer or director of Heather

Village, and whose affidavit contained no facts showing he had personal knowledge to

deny the sworn account of Panina, but whose affidavits to the Responses to Summary

Judgment clearly showed he factually could have had no personal knowledge. A copy of

Defendant's First Amended Original Answer and Counterclaim,is attached to the

Appendix hereto as Exhibit "H".

Panina immediately filed Plaintiffs Objections and Reply To Defendant's

Response To Plaintiffs Motion For Summary Judgment on November 12, 2014, raising

the issue of the noncompliance of Defendant's First Amended Original Answer and

Counterclaim with TRCP Rules 185 and 93(10) and further formally objecting to any

consideration by Judge Melody Wilkinson, of the affidavits of either David Christensen

or Ken Tolar, based upon the complete failure of Defendant Heather Village, LLC to

have disclosed them as potential witnesses and persons with knowledge and/or expert

witnesses in response to Panina's properly served Requests For Disclosure, as being

mandatorily excludable as a matter of law under Texas Rules of Civil Procedure Rule

193.6 (a), a copy which is attached to the Appendix hereto, as Exhibit "1". On the same

date, Panina also filed formal Exceptions to Defendant's First Amended Original Answer

and Counterclaim, based on the fact that there was no proper sworn denial of Panina's

sworn account by a person having personal knowledge as required by Texas Rules of

PETITION FOR MANDAMUS Page 5
Civil Procedure Rules 185 and 93(10), a copy of which is attached to the Appendix

hereto, as Exhibit "J" to the appendix hereto. Following the oral hearing and argument of

counsel on November 14, 2014, Panina's counsel further filed Plaintiffs Supplemental

Brief on TRCP Rule 193.6(a), to clearly bring to the attention of the Hon Judge

Wilkinson current applicable case law regarding TRCP Rule 193.6(a) providing for

mandatory exclusion of evidence presented by witnesses unidentified in discovery, a

copy of which is attached to the Appendix hereto as Exhibit "K", since there was no other

summary judgment evidence proffered by Defendant Heather Village, LLC in response

to either the Traditional Motion For Summary Judgment or the "No Evidence" Motion

For Summary Judgment.

On November 19, 2014, despite the filed written objections and exceptions made

by, Panina and a Supplemental Brief on point, the Hon Judge Melody Wilkinson,

inexplicably denied both Panina's Traditional and "No Evidence" Motions for Summary

Judgment, based solely upon her improper consideration of the only summary judgment

evidence filed by Defendant Heather Village, LLC, which were the affidavits of David

Christensen and Ken Tolar, mandatorily excluded under Texas Rule of Civil Procedure

193.6(a) as witnesses who were not timely identified in response to properly served

discovery, and despite the noncompliance of Defendant's First Amended Original

Answer and Counterclaim with TRCP Rule 93(10) for failing to be a proper sworn denial

of Panina's sworn account by a person having personal knowledge and permitting

Defendant Heather Village to present a defense in complete disregard of TRCP Rule 185

PETITION FOR MANDAMUS Page 6
which precludes a defense to a sworn account where there is not a proper sworn denial, as

a matter oflaw. Copies of the Clerk's Record of the Docket Sheet and Transactions List

is attached hereto as Exhibit "L" to the Appendix. Certified Copies of the Orders

Denying Plaintiffs Traditional and "No Evidence "Motions for Summary Judgment are

attached to the Appendix hereto as Exhibit "M".

SUMMARY OF THE ARGUMENT

Texas Rule of Civil Procedure Rule 193.6 (a) specifically provides for mandatory

exclusion of evidence presented by witnesses who were not timely identified in response

to properly served discovery. The Texas Supreme Court has held the rule is mandatory,

and the penalty, exclusion of evidence is automatic, absent a showing of: (1) good cause

or (2) lack of unfair surprise or (3) unfair prejudice. Alvarado v. Farah MIg. Co. Inc., 830

S.W.2d 911 (Tex. 1992) and Gutierrez v. Dallas Independent School Dist729 S.W.2d 691

(Tex. 1987). Under TRCP Rule 193.6(a) the Hon. Judge Melody Wilkinson had no

discretion to consider evidence or testimony of witnesses excluded by the rule except on

a showing and finding of good cause or lack of unfair surprise or unfair prejudice. Id.

Defendant Heather Village LLC failed to disclose either of the witnesses providing

summary judgment evidence as persons with knowledge in its response to Panina's

properly served Requests for Disclosure. See Appendix- Exhibits E and F. There was no

showing of good cause proffered by Heather Village, LLC nor any ruling made by the

Hon. Judge Melody Wilkinson that good cause existed for the failure of Heather Village

to disclose the witnesses, nor that there was no surprise to Panina. There was no summary

PETITION FOR MANDAMUS Page 7
judgment evidence presented by Defendant, Heather Village, LLC in opposition to

Panina's Traditional and "No Evidence Motions for Summary Judgment other than the

affidavits of the unidentified witnesses, David Christensen and Ken Tolar, upon which

Judge Wilkinson could have based her decision to deny summary judgment.

The Texas Supreme Court has further repeatedly stated held that an affidavit is

insufficient where it is not based upon personal knowledge. Rizk v. Financial Guardian

Ins. Agency, Inc., 584 SW2d 860, 862 (Tex. 1979) Vance v. Holloway, 689 SW2d 403,

404 (Tex. 1985) and Humphreys v. Caldwell, 888 SW2d 469, 470 (Tex. 1994). A

showing of personal knowledge in the affidavit being denying the account is required.

Cantu v. Holiday Inns, Inc., 910 SW2d 113, 116 (Tex. Civ. App.-Corpus Christi, 1995,

no writ) Heather Village, LLC was precluded by Rule 185 of the Texas Rules of Civil

Procedure from asserting any defense to Panina's sworn account, as a matter of law,

which was also not a matter of discretion with Judge Wilkinson ..

ARGUMENT AND AUTHORITIES ON ISSUE NO. ONE

ISSUE NUMBER ONE RESTATED:

DID THE TRIAL JUDGE ABUSE HER DISCRETION AND EXCEED HER
STAUTORY AUTHORITY IN DENYING REALTOR'S TRADITIONAL
MOTION FOR SUMMARY JUDGMENT AND REALTOR'S "NO EVIDENCE"
MOTION FOR SUMMARY JUDGMENT BASED SOLEL Y UPON HER
IMPROPER CONSIDERATION OF DEFENDANT'S SUMMARY JUDGMENT
EVIDENCE PRESENTED BY AFFIDAVITS OF WITNESSES PREVIOUSLY
COMPLETELY UNIDENTIFIED BY DEFENDANT IN PRIOR REPONSE TO
REQUESTS FOR DISCLOSURES, MANADTORILY EXCLUDED BY T.R.C.P.
RULE 193.6(a)?

PETITION FOR MANDAMUS Page 8
 Texas Rule of Civil Procedure 193 .6(a) provides for mandatory exclusion of evidence

presented by witnesses who were not timely identified in response to properly served

discovery, providing as follows

(a) Exclusion of Evidence and Exceptions. A party who fails to make,
amend, or supplement a discovery response in a timely manner may
not introduce in evidence the material or information that was not
timely disclosed, or offer the testimony of a witness (other than a
named party) who was not timely identified, unless the court finds that:

(I) there was good cause for the failure to timely make, amend, or
supplement the discovery response; or

(2) the failure to timely make, amend, or supplement the discovery
response will not unfairly surprise or unfairly prejudice the other parties.
(Emphasis Added) TEX.R. Civ. P. 193.6(a).

The rule is mandatory, and the penalty, exclusion of evidence is automatic,

absent a showing of: (1) good cause or (2) lack of unfair surprise or (3) unfair

prejudice. The Texas Supreme Court held in its decision in Alvarado v. Farah MIg.

Co. Inc., 830 S.W.2d 911 (Tex. 1992):

The salutary purpose of Rule 215(5) is to require complete responses to
discovery so as to promote responsible assessment of settlement and
prevent trial by ambush. See Clark, 774 S.W.2d at 646; Gee, 765 S.W.2d at
396; Gutierrez, 729 S.W.2d at 693. The rule is mandatory, and its sole
sanction - exclusion of evidence - is automatic, unless there is good
cause to excuse its imposition. The good cause exception permits a trial
court to excuse a failure to comply with discovery in difficult or impossible
circumstances. See Clark, 774 S.W.2d at 647 (inability to locate witness
despite good faith efforts or inability to anticipate use of witness' testimony
at trial might support a finding of good cause). The trial court has
discretion to determine whether the offering party has met his burden of
showing good cause to admit the testimony; but the trial court has no
discretion to admit testimony excluded by the rule without a showing of
good cause. (Emphasis added)

PETITION FOR MANDAMUS Page 9
The holding in Alvarado, supra, was consistent with prior Supreme Court holdings in

Gutierrez v. Dallas Independent School Dist., 729 S.W.2d 691 (Tex. 1987), in which the

Court said:

We hold that if a litigant propounds an improper interrogatory question, it is
incumbent upon the party answering the request to object to the form of the
question so that it may be reurged in the proper form. If the party
answering the request does not object to the form of the question, then
later tries to call a witness that was not revealed to the opposing party,
the trial court should disallow the testimony of the witness unless good
cause can be shown under the decisions in Yeldell v. Holiday Hills
Retirement and Nursing Center, Inc., 701 S.W.2d 243, 247 (Tex. 1985),
and Morrow v. H.E.B., Inc., 714 S.W.2d 297, 297-98 (Tex. 1986).

Directly on point, the EI Paso Court of Appeals, citing the 2006 Dallas Court of

Appeals decision in Oscar Luis Lopez v. La Madeleine a/Tex., Inc., 200 S.W.3d 854, 860

(Tex.App.-Dallas 2006, no pet.), held the exclusion of a non-identified witness in

response to a Request for Disclosures mandatory, on July 22, 2014, in Gibbs v. Bureaus

Investment Group Portfolio _SW3d_( NO. 14, LLC, 08-12-00330-CV) (Tex.App.-

EI Paso 7-22-2014), stating that:

A party may obtain discovery of the name, address, and telephone number
of persons with knowledge of relevant facts, and a brief statement of each
identified person's connection with the case. TEX.R.CIV.P. 192.3(c);
TEX.R.CIV.P. 194.2(e). When responding to written discovery, a party must
make a complete response, and must amend or supplement the response if it
later learns that the response is no longer complete and correct. TEX.R.CIV.P.
193.1, TEX.R.CIV.P. 193.5(a). Page 4 A party who fails to disclose
information concerning a nonparty witness in response to a discovery
request may not offer the witness's testimony unless the court finds that
there was good cause for the failure to timely make, amend, or supplement
the discovery response or the failure to make, amend, or supplement the
discovery response will not unfairly surprise or unfairly prejudice the
other parties. TEX.R.CIV.P. 193.6(a). The sanction for failure to comply
with this rule is the" automatic and mandatory" exclusion from trial of the
PETITION FOR MANDAMUS Page 10
 omitted evidence. Oscar Luis Lopez v. La Madeleine a/Tex., Inc., 200 S.W.3d
854, 860 (Tex.App.-Dallas 2006, no pet.) (Emphasis added)

In Braniff Inc. v. Lentz, 748 S.W.2d 297,300 (Tex.App.-Ft. Worth 1988), this Court has

also recognized the necessity of timely designation of witnesses in discovery and held the

overruling of an objection to the witness by the trial court did not constitute a finding of

good cause:

Our supreme court has repeatedly held that if the identity and location
of a person with knowledge is not disclosed, on proper request, the
person may not testify at time of trial. Morrow v. HE.B., Inc., 714
S.W.2d 297,297 (Tex. 1986); Yeldell v. Page 300 Holiday Hills Retire.
& Nursing Center, 701 S.W.2d 243,247 (Tex. 1985).

For the reasons given above, this Petition for Mandamus should be granted and a

Writ of Mandamus should issue to Hon. Melody Wilkinson, Judge of the 17th Judicial

District Court of Tarrant County, Texas, to set aside her orders of November 19, 2014

denying Painina's Motions for Traditional and "No Evidence" Motions for Summary

Judgment and to reconsider in accordance with this Courts Writ of Mandamus Panina's

Traditional Motion For Summary Judgment and Plaintiffs "No Evidence" Motion For

Summary Judgment, excluding any consideration of any evidence of witnesses, David

Christensen and Ken Toler, who were not previously disclosed by the Defendant, Heather

Village, LLC in response to the Requests For Disclosure in accordance with Texas Rules

of Civil Procedure Rule 193.6(a) and further that the Hon. Judge Melody Wilkinson

should be ordered to grant Panina's Motion for Traditional Motion for Summary

Judgment on its sworn account since there was no proper sworn denial of sworn account

under Texas Rules of Civil Procedure Rules 185 and 93(10) and to grant Panina's "No
PETITION FOR MANDAMUS Page 11
Evidence" Motion for Summary Judgment, since no admissible evidence was presented

by Defendant Heather Village, LLC after excluding the affidavits of. David Christensen

and Ken Tolar.

ARGUMENT AND AUTHORITIES ON ISSUE NO. TWO

ISSUE NUMBER TWO RESTATED:

DID THE TRIAL JUDGE ABUSE HER DISCRETION BY PERMITING
DEFENDANT TO PRESENT A DEFENSE TO REALTOR'S SWORN ACCOUNT,
PRECLUDED AS A MATTER OF LAW BY T.R.C.P. RULE 185 WHERE THE
DEFENDANT'S AMENDED ANSWER DENYING THE ACCOUNT WAS NOT
PROPERLY SWORN TO BY A WITNESS HAVING PERSONAL KNOWLEDGE
AS REQUIRED BY T.R.C.P. RULE 93 (10) WITHOUT A SHOWING OF
PERSONAL KNOWLEDGE IN THE AFFIDAVIT AND WHOSE AFFIDAVIT
OPPOSING SUMMARY JUDGMENT SHOWED HE HAD NO PERSONAL
KNOWLEDGE BUT ONLY HEARS AY INFORMATION?

As stated previously, Panina also filed formal Exceptions to Defendant/Counter-

Plaintiff's First Amended Original Answer and Counterclaim, Plaintiff further objects to

Defendant/Counter-Plaintiff's First Amended Original Answer and Counterclaim, which is

not a properly sworn to and does not comply with Rules 93 (l0) and 185 of the Texas

Rules of Civil Procedure. The Texas Supreme Court has repeatedly stated held that an

affidavit is insufficient where it is not based upon personal knowledge. Rizk v. Financial

Guardian Ins. Agency, Inc., 584 SW2d 860, 862 (Tex. 1979) Vance v. Holloway, 689

SW2d 403, 404 (Tex. 1985) and Humphreys v. Caldwell, 888 SW2d 469, 470 (Tex. 1994).

A showing of personal knowledge in the affidavit being denying the account is required.

Cantu v. Holiday Inns, Inc., 910 SW2d 113, 116 (Tex. Civ. App.-Corpus Christi, 1995, no

PETITION FOR MANDAMUS Page 12
writ) It is also been held that a company officer who does not have personal knowledge of

certain matters cannot deny them under oath since the matters would be hearsay to him.

Gorrell v. Tide Prods, Inc., 532 SW2d 390,395 (Tex. Civ. App-Amarillo, 1975, no writ) In

the instant case, Defendant/Counter-Plaintiffs First Amended Original Answer and

Counterclaim is sworn to by David Christiansen, who signed his affidavit as a

representative for Heather Village LLC, and is not officer nor a person that purports to

have personal knowledge as to whether the sworn account is true or not, but simply says:

"I have been granted to speak on the behalf of the shareholder(s)/owner(s) of
Heather Village, LLC regarding the foregoing lawsuit. I am at least 18 years of age
and of sound mind. I am personally acquainted with the facts alleged in the
foregoing answer regarding the denial of the foregoing account, which is true and
correct."

Mr. Christensen's statement in his affidavit that he "is acquainted with the facts" does not

demonstrate any basis for personal knowledge, but merely confirms that he is "acquainted

with the facts alleged in the foregoing answer regarding the denial of the foregoing

account." The Texas Supreme Court has repeatedly held that an affidavit that does not

positively and unqualifiedly represent the facts as disclosed in the affidavit to be true with

in the affiant's personal knowledge is legally insufficient as a matter of law. Brownlee v.

Brownlee, 665 SW 2d Ill, 112 (Tex. 1984); Burke v. Satterfield, 525 SW.2d 950,

955(Tex. 1975).

In another case involving a denial of a sworn account, where the affiant was actually

an officer of the defendant company, the court held that the representation that he had

personal knowledge did not mean that he had sufficient personal knowledge of specific

PETITION FOR MANDAMUS Page 13
items and services alleged to have been provided in this account and he could not properly

denied them under oath since they would be hearsay to him. Gorrell v. Tide Prods, Inc.,

supra at p. 395. Even where an attorney for a party in an affidavit denying a sworn account

stated that "I have personal knowledge of the facts stated herein", was held the insufficient

where nothing in the verification demonstrated a basis of the attorney's personal

knowledge. Hinojosa Auto v. Finishmaster, _SW2d_, (03-08-00361-CV (Tex. Civ.

App-Austin, 12-12-2008).

There is no statement III the affidavit to Defendant/Counter-Plaintiffs First

Amended Original Answer and Counterclaim that Mr. Christensen even has "personal

knowledge" of anything to do with the account sued upon by Panina. There is absolutely

nothing in the affidavit of Mr. Christensen, indicate that he has personal knowledge of

specific items and services alleged to have been provided in the account sued upon by

Panina Inc. against Heather Village LLC. Mr. Christensen is not even an officer of

defendant corporation, nor is he a custodian of the records of Heather Village LLC, nor has

he stated anything in his affidavit attached to Defendant/Counter-Plaintiffs First Amended

Original Answer and Counterclaim to show that he personally had anything to do with the

account involved to prove that he had personal knowledge of specific items and services

alleged to have been provided in the account sued upon by Panina, but simply that he is a"

representative of the owner", and generally that he is "acquainted with the facts", without

stating the facts with which is acquainted. As a matter of law Mr. Christensen cannot deny

PETITION FOR MANDAMUS Page 14
the account of Panina, Inc. under oath, since he has no personal knowledge other than

hearsay information.

Because the Defendant's sworn written denial did not comply with Rules 93(10) and

185 of the Texas Rules of Civil Procedure, as a matter of law, Defendant Heather Village

LLC is not permitted to deny the receipt of services or the correctness of charges of the

sworn account filed by Plaintiff, Panina, Inc. See Rizk v. Financial Guardian Ins. Agency,

Inc., supra at 862 (Tex. 1979) Vance v. Holloway, supra at 404 (Tex. 1985) and Humphreys

v. Caldwell, supra at 470 (Tex. 1994). The Court should further issue its writ of mandamus

directing Hon. Judge Melody Wilkinson, not to consider any defense by Heather Village to

the sworn account according to the provisions of Rule 185 of the Texas Rules of Civil

Procedure.

PRAYER

For the reasons given above, this Petition for Mandamus should be granted and a

Writ of Mandamus should issue to Hon. Melody Wilkinson, Judge of the 17th Judicial

District Court of Tarrant County, Texas, to set aside her orders of November 19, 2014

denying Painina's Motions for Traditional and "No Evidence" Motions for Summary

Judgment and to reconsider in accordance with this Courts Writ of Mandamus Panina's

Traditional Motion For Summary Judgment and Plaintiffs "No Evidence" Motion For

Summary Judgment, excluding any consideration of any evidence of witnesses, David

Christensen and Ken Toler, who were not previously disclosed by the Defendant, Heather

Village, LLC in response to the Requests For Disclosure in accordance with Texas Rules

PETITION FOR MANDAMUS Page 15
of Civil Procedure Rule 193.6(a) and further that the Hon. Judge Melody Wilkinson

should be ordered to grant Panina's Motion for Traditional Motion for Summary

Judgment on its sworn account since there was no proper sworn denial of sworn account

under Texas Rules of Civil Procedure Rules 185 and 93(10) and to grant Panina's "No

Evidence" Motion for Summary Judgment, since no admissible evidence was presented

by Defendant Heather Village, LLC after excluding the affidavits of. David Christensen

and Ken Tolar.

Respectfully submitted,

LAW OF E OF JOHN P. KNOUSE

orth Dallas Parkway
S ·te 110
alIas, Texas 75248
(972) 380-1188 (Telephone)
(214) 367-5982 (Telecopier)
E-mail: knouselaw@yahoo.com

ATTORNEY FOR RELATORIPLAINTIFF

PETITION FOR MANDAMUS Page 16
 CERTIFICATE OF SERVICE

This is to certify that on this -J-
J..a-ay of January 2015, a true and correct copy of

the above and foregoing Petition for Mandamus will be sent following filing by certified

mail, return receipt requested to:

Respondent: Hon. Judge Melody Wilkinson
Tim Curry Justice Center - 8th Floor
401 W. Belknap
Fort Worth, TX 76196
Tel: (Nancy Bentley, Coordinator (817)-884-1460
Fax:(Nancy Bentley, Coordinator Unknown

Defendant's Counsel Lane Addison
SBOT No. 2509355
Henley & Henley, P.e.
3300 Oak Lawn Avenue, Suite 700
Dallas, Texas 75219
E-mail:raddison@henleylawpc.com
Tel: (214) 821-0222
Fax: (214) 821-1J...I-7:'-

PETITION FOR MANDAMUS Page 17
 VERIFICATION OF PETITION FOR MANDAMUS
UNDER T.R.A.P. RULE 52.3(j)

THE STATE OF TEXAS §
§
COUNTY OF DALLAS §

BEFORE ME, the undersigned authority on this day personally appeared,

JOHN P. KNOUSE, who, being by me duly sworn, upon his oath stated he is the

Attorney for Relator, PANINA, INC d/b/a JA CONSTRUCTION SERVICES, and

certifies as required by T.R.A.P. Rule 52.30) that he has read and reviewed the Petition

for Writ of Mandamus of Relator, and has concluded that every factual statement in the

Petition for Writ of Mandamus is supported by competent evidence included in the

appendix or record. This Affidavit is made for attachment to the Petition for Writ of

Mandamus of Relator, PANINA, INC d/b/a JA CONSTRUCTION SERVICES, made

pursuant to T.R.A.P. Rule 52.30).

SWORN TO AND SUBSCRIBED BEFORE ME, this the £ day of

January, 2015, to which witness my hand and seal of office.

ANN MARIE GAOIEMY
My CommIIIiOn bpIrIt
OctalMr 2. 201' Notary Public in and for the Sta e of Texas

PETITION FOR MANDAMUS Page 18
 APPENDIX

Plaintiffs Motion for Traditional Summary Judgment. ........................... Exhibit A

Plaintiffs Motion for "No Evidence" Summary Judgment ...................... Exhibit B

Defendant's Response to Plaintiff s Motion for Traditional
Summary Judgment ..................................................................... Exhibit C

Defendant's Response to Plaintiffs Motion for "No Evidence"
Summary Judgment ..................................................................... Exhibit D

Plaintiffs Requests For Disclosure ............................................ Exhibit E

Defendant's Response to Plaintiff s Requests For Disclosure ..............Exhibit F

Defendant's Original (unsworn) Answer and Counterclaim ............... Exhibit G

Defendant's First Amended Original
Answer and Counterclaim ...................................................... Exhibit H

Plaintiffs Objections and Reply to Defendant's Responses To
Plaintiffs Motions For Summary Judgment .................................... Exhibit I

Plaintiffs Exceptions to Defendant's First Amended Original
Answer and Counterclaim ...................................................... Exhibit J

Plaintiffs Supplemental Brief on TRCP Rule 193.6 (a) Providing
Mandatory Exclusion of Evidence By Unidentified Witnesses ............ Exhibit K

Copies of Clerk's Record of Docket Sheet and Transaction List. .......... Exhibit L

Certified Copies of Orders Denying Plaintiffs Traditional
Motion for Summary Judgment and Plaintiffs. "No Evidence"
Motion for Summary Judgment. ................................................. Exhibit M

PETITION FOR MANDAMUS Page 19
 EXHIBIT "A"
PLAINTIFF'S TRADITIONAL MOTION FOR SUMMARY
JUDGMENT
 CAUSE NO. 17-266141-13

PANINA, INC d/b/a § IN THE 17th JUDICIAL
JA CONSTRUCTION SERVICES §
Plaintiff §
§
VS. § DISTRICT COURT OF
§
HEATHER VILLAGE, LLC., D/B/A §
THE HEATHER VILLAGE §
APARTMENTS §
Defendant § TARRANT COUNTY, TEXAS

PLAINTIFF'S TRADITIONAL MOTION FOR SUMMARY JUDGMENT

NOW COMES, Plaintiff PAN INA, INC d/b/a JA CONSTRUCTION

SERVICES ("Panina") and files its Traditional Motion for Summary Judgment against

Defendant HEATHER VILLAGE, LLC. d/b/a THE HEATHER VILLAGE.

APARTMENTS ("Heather Village"), and would show unto the Court the following:

I.
FACTUAL BACKGROUND

Plaintiff, PANINA filed suit against Defendant, HEATHER VILLAGE, based

upon a sworn account, and, in the alternative, for breach of contract, unjust

enrichment, and quantum meruit, based upon the following facts:

A. On October 11, 2012, the Defendant, HEATHER VILLAGE, LLC, by and

through its agents and representatives, Sungate Management, Inc. , located at 9550

Skillman Street, Ste. 210, Dallas, Texas, signed and accepted on November 14,2012,

entered into a written contract with Plaintiff, P AN INA, INC. d/b/a JA

CONSTRUCTION SERVICES, requesting Plaintiff to perform wood replacement

PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT P.\GE I
and exterior paint repalrs to Defendant's property, known as THE HEATHER

VILLAGE APARTMENTS, located at 6000 Boca Raton in Fort Worth, Tarrant

County, Texas 75112 for a total sum of $46,000.00. See Exhibit "A"-Affidavit of Susan

Briggeman- Exhibit 1. .

B. Under the terms and conditions of the written contract 50% of the total

contract price in the sum of $23,000.00 was due and payable upon delivery of the

materials and commencement of work at the apartment building located at 6000 White

Dove Drive in Fort Worth, Texas for which Plaintiff submitted its invoice No.

1115201202 on November 15, 2012. See Exhibit "A"-Affidavit of Susan Briggeman-

Exhibit 2. Furthermore under the terms and conditions of the written contract the

remaining 50% of the total contract price in the sum of$23,000.00 was due and payable

upon completion of the renovation work at the apartment building located at 6000

White Dove Drive in Fort Worth, Texas for which Plaintiff submitted its invoice No.

1115201203 on November 15, 2012. See Exhibit "A"-Affidavit of Susan Briggeman-

Exhibit 3.

C. After performing the renovation work requested, Defendant agreed to a

change order requesting Plaintiff to further provide additional labor and materials in

repairs to the apartment building located at 6000 White Dove Drive in Fort Worth,

Texas, which were provided by the Plaintiff at Defendant's special instance and request

in the additional sum of $5,200.00 as specified in the Plaintiff invoice No. 1122201201

on November 22,2012. See Exhibit "A"-Affidavit of Susan Briggeman - Exhibit 4.

PLAINTIFF'S MOTION FOR TRADITIONAL
1',\(;1:: 2
SUMMARY JUDGMENT
 D. The total reasonable value of all of the servIces, labor, and materials

furnished by the Plaintiff at the request of Defendant is the sum of $51 ,200.00.which

services were specified in the written contract and are also itemized in the invoices

attached to the Affidavit of Susan Briggeman as Exhibits 1, 2, 3, and 4. Defendant has

made no payments toward for the labor and materials ordered by it, and there is a

balance due and owing of the full amount of $51,200.00. See Exhibit "A"-Affidavit of

Susan Briggeman.

E. Although Plaintiff has on numerous occasions made demand for payment

by Defendant for the balance due, Defendant has failed and refused to pay Plaintiff the

past due balance for the additional services ordered or any part of it, to Plaintiffs

damage in the total sum of$51,200.00. See Exhibit "A"-Affidavit of Susan Briggeman.

F. A written demand letter requesting payment of the full amount of

$51,200.00 was sent by Plaintiffs Director of Operations, Ofer Abramov and Susan

Briggeman, Plaintiff's President to Defendant's agent, Sungate Management, Inc. on

January 18, 2013, which is attached hereto as Exhibit "5" and which is incorporated

herein by reference for all purposes. See Exhibit "A"-Affidavit of Susan Briggeman.

G. Plaintiff performed the services rendered to Defendant at Defendant's

request. In addition, Defendant accepted, and has used and enjoyed the services

provided by Plaintiff, in that Defendant has kept and is using the improvements to its

property made by Plaintiff, which Defendant acknowledges and for which it has offered

only to pay the costs of materials. Under these circumstances, Defendant had, or should

PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT PAGE 3
have had, reasonable notice that Plaintiff expected that Defendant would pay Plaintiff

for the services Plaintiff performed for Defendant. Defendant has been unjustly and

unfairly enriched, in that Defendant has benefitted by the services performed on its

behalf by Plaintiff, but fails and refuses to pay Plaintiff for the reasonable value of

those services and materials provided, which Plaintiff alleges to be in the sum of

$51,200.00. See Exhibit "A"-Affidavit of Susan Briggeman.

H. On February 5, 2013, Plaintiff sent a notice of its claim to Defendant,

HEATHER VILLAGE, LLC, by certified mail, return receipt requested, advising

Defendant that a lien would be filed and making a demand for payment of balance due

and owing in the sum of $51,200.00 for the repairs, painting and other services

performed at the request of Defendant, HEATHER VILLAGE, LLC, prior to the

filing an Affidavit for a Mechanic's Lien. See Exhibit "A"-Affidavit of Susan

Briggeman-Exhibit "6".

I. After no payment was made by the Defendant, HEATHER VILLAGE,

LLC, on February 21, 2013, Plaintiff filed an Affidavit for a Mechanic's Lien for the

labor performed and materials furnished on the behalf of Defendant, HEATHER

VILLAGE, LLC, for wood replacement, repairs, painting, labor and materials

furnished to its property known as the HEATHER VILLAGE APARTMENTS

commencing in October, 2012 for the total amount of $51,200.00. See Exhibit "A"-

Affidavit of Susan Briggeman-Exhibit "7".

PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT "AG E 4
 II.
SUMMARY JUDGMENT EVIDENCE

In support of its Traditional Motion for Summary Judgment, Plaintiff, PANINA

relies upon the pleadings and summary judgment evidence on file at the time of the

hearing and, in specific, the following summary judgment evidence: (1) Exhibit "A"-

Affidavit of Susan Briggeman and the attachments thereto; (2) Exhibit "B" Affidavit of

John P. Knouse, Attorney at Law. In addition, Defendant, Heather Village has failed to

deny the sworn account cause of action which was the foundation of Plaintiff s suit,

supported by an affidavit under oath as required by TRCP Rule 93( 10). See Exhibit

"C"-Defendant's unsworn Original Answer and Counterclaim. Having failed to file a

written denial under oath as require by the Texas Rules of Civil Procedure, under TRCP

Rule 185, the Defendant is not permitted to deny the claim or any item therein.

III.
ARGUMENTS AND AUTHORITIES

A. THE SUMMARY JUDGMENT MOTION STANDARDS.

In a traditional summary judgment motion, the movant must show that no

genuine issue of material fact exists and that the movant is entitled to judgment as a

matter of law. Tex.R.Civ.P. 166a(c); Nixon v. Mr. Property Management Co., Inc., 690

S.W.2d 546, 548-49 (Tex.l985). All reasonable inferences and any doubts are resolved in

favor of the non-movant Nixon, 690 S.W.2d at 549. Once the movant establishes a right

to summary judgment, the burden shifts to the non-movant to present evidence raising a

genuine issue of material fact. See Casso v. Brand, 776 S.W.2d 551,556 (Tex. 1989).

PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT PAGE :;;
 1. Plaintiff is Entitled to Summary Judgment on Its Suit for Sworn Account as
a Matter of Law.

The essential elements for proof of a sworn account are generally (1) the sale

and delivery of the merchandise or performance of the services and (2) that the amount

of such account is just and that the prices charged are in accordance with an express

agreement or, in the absence of such express agreement, that they are usual, customary

or reasonable. Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357 (Tex.Civ.App.-

Dallas 1963, no writ); Marr v. Craddock, 406 S.W.2d 278 (Tex.Civ.App.-Tyler 1966,

no writ); Parker v. Center Grocery Company, 387 S.W.2d 903 (Tex.Civ.App.-Tyler,

1965, no writ); Brooks v. Eaton, Yale & Towne, Inc., 474 S.W.2d 321 (Tex.Civ.App.-

Waco 1971, no writ); Blue Bell, Inc. v. Isbell, 545 S.W.2d 563 (Tex.Civ.App.-El Paso

1976, no writ).

Plaintiff, P ANINA has presented summary judgment evidence to the Court as to

each and every element required by Texas law for proof of a sworn account. There is

no genuine issue of material fact as to any element of Plaintiff s cause of action for

sworn account and to Defendants' liability therefore. Plaintiff is therefore entitled to

summary judgment on its suit for sworn account.

In specific, Plaintiff, P ANINA, has provided summary judgment evidence of:

(1) On October 11,2012, the Defendant, HEATHER VILLAGE, LLC, by and

through its agents and representatives, Sungate Management, Inc. , located at 9550

Skillman Street, Ste. 210, Dallas, Texas, signed and accepted on November 14,2012,

entered into a written contract with Plaintiff, PANINA, INC. d/b/a JA

PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT f>AGE6
CONSTRUCTION SERVICES, requesting Plaintiff to perform wood replacement

and exterior paint repairs to Defendant's property, known as THE HEATHER

VILLAGE APARTMENTS, located at 6000 Boca Raton in Fort Worth, Tarrant

County, Texas 75112 for the agreed price of $46,000.00, which were also reasonable and

customary charges for the work done. See Exhibit "A"-Affidavit of Susan Briggeman-

Exhibit 1.

(2) Plaintiff submitted its invoice No. 1115201202 on November 15,2012 at

the commencement of the work per the contract for $23,000 and under the terms and

conditions of the written contract the remaining 50% of the total contract price in the

sum of $23,000.00, was due and payable upon completion of the renovation work for

which Plaintiff submitted its invoice No. 1115201203 on November 15, 2012. See

Exhibit "A"-Affidavit of Susan Briggeman- Exhibits 2 and 3. After performing the

renovation work requested, Defendant agreed to a change order requesting Plaintiff to

further provide additional labor and materials in repairs to the apartment building

located at 6000 White Dove Drive in Fort Worth, Texas, which were provided by the

Plaintiff at Defendant's special instance and request in the additional sum of $5,200.00

as specified in the Plaintiff invoice No. 1122201201 on November 22, 2012. See

Exhibit "A"-Affidavit of Susan Briggeman - Exhibit 4.

(3) The total reasonable value of all of the services, labor, and materials

furnished by the Plaintiff at the request of Defendant is the sum of $51,200.00 which

services were specified in the written contract and are also itemized in the invoices

PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT PAGE 7
attached to the Affidavit of Susan Briggeman as Exhibits 1, 2, 3, and 4. Defendant has

made no payments toward for the labor and materials ordered by it, and there is a

balance due and owing of the full amount of $51,200.00. See Exhibit "A"-Affidavit of

Susan Briggeman.

(4) Although Plaintiff has on numerous occasions made demand for payment

by Defendant for the balance due, Defendant has failed and refused to pay Plaintiff the

past due balance for the additional services ordered or any part of it, to Plaintiff s

damage in the total sum of $51,200.00, after all just and lawful offsets, credits and

payments have been allowed. See Exhibit "A"-Affidavit of Susan Briggeman.

(5) A written demand letter requesting payment of the full amount of

$51,200.00 was sent by Plaintiffs Director of Operations, Ofer Abramov and Susan

Briggeman, Plaintiffs President to Defendant's agent, Sungate Management, Inc. on

January 18, 2013, which is attached hereto as Exhibit "5" and which is incorporated

herein by reference for all purposes. See Exhibit "A"-Affidavit of Susan Briggeman

(6) Plaintiff, PANINA has sued for attorney's fees as provided by Section

38.001 et seq., of the Texas Civil Practices and Remedies Code. The written demand

dated January 18, 2013, was sent more than thirty days prior to the filing of the lawsuit

on May 29, 2013. The supporting affidavit of John P. Knouse, Attorney at Law, is

attached, stating that the reasonable fees charges by him to the present date is the sum of

$11,710.00, for preparation and prosecution of the lawsuit. See Exhibit "B"- Affidavit

of John P. Knouse, Attorney at Law. Mr. Knouse further states in his affidavit that in

PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT PAGES
 the event of an appeal to the Court of Appeals by any party, a reasonable fee would be

the sum of $10,000, and in the event a Petition for Review was filed by any party to the

Texas Supreme Court, that a reasonable fee for handling the matter would be the sum of

$10,000, for all of which Plaintiff, PANINA has requested judgment against

Defendants.

In addition as stated previously, Defendant, Heather Village failed to deny the

sworn account cause of action, which was the foundation of Plaintiffs suit, supported

by an affidavit under oath as required by TRCP Rule 93 (10). See Exhibit "C"-The suit

for sworn account was properly supported by an affidavit by Susan Briggeman,

swearing that such claim was, within her knowledge, just and true, that was due and

that all just and lawful offsets, payments and credits had been allowed. See TRCP Rule

185, the Plaintiff s Original Petition on file, Exhibit "A"-Affidavit of Susan Briggeman,

and Exhibit "C" -Defendant's unsworn Original Answer and Counterclaim. Having

failed to file a written denial under oath as require by the Texas Rules of Civil

Procedure, under TRCP Rule 185, the Defendant is not permitted to deny the claim or

any item therein, which provided in applicable part:

Rule 185. Suit on Account.

"When any action or defense is founded upon an open account or other
claim goods, wares and merchandise, including any claim for a
liquidated monetary demand based upon a written contract or founded
business dealings between parties, or is for personal service rendered, or
labor done or labor or materials furnished, on which a systematic record
has been, and is supported by the affidavit of party, his agent or
attorney taken for some officer authorized to administer oaths, to the
effect that such claim is, within the knowledge of affiant, just and true,

PLAINTIFF'S MOTION FOR TRADITIONAL
('AGE 9
SUMMARY JUDGMENT
 that it is due, and that all just and lawful offsets, payments and credits
have been allowed, the same shall be taken as prima facie evidence
thereof unless party resisting such claim shall file a written denial,
under oath. A party resisting such a sworn claim shall comply with
the rules pleading as are required in the other kind of suit,
provided, however that if he is not timely file a written denial,
under oath, he shall not be permitted to deny the claim, or any item
therein, as case may be .... " (emphasis added)

By reason of the foregoing, Plaintiff, PAN INA is entitled to judgment as a

matter oflaw against Defendants for the sum of$51,200.00, plus reasonable attorney's

fees as set out in the attached affidavit and for pre-judgment and post judgment interest

as provided by law. In the alternative, Plaintiff, PANINA has pled for judgment by

reason of a breach of contract by Defendant, HEATHER VILLAGE, unjust

enrichment by reason of the Defendants benefiting from the labor and services of

Plaintiff, P ANINA in perform wood replacement and exterior paint repairs to

Defendant's property or in the alternative under quantum meruit by reason of Plaintiff,

P ANINA delivering valuable services and goods to the Defendants which were

accepted by the Defendants who have enjoyed the use and benefit of the wood

replacement and exterior paint repairs to Defendant's property by Plaintiff, PANINA.

Under the alterative pleadings, Plaintiff, P ANINA is entitled to recover the reasonable

value of its labor and materials in the sum of$51,200.00.

PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT P,\GE 10
 2. Plaintiff is Entitled to Summary Judgment on Its Suit to Foreclose its
Mechanic's Lien, as a Matter of Law.

To perfect a Mechanic's Lien, a contractor is s required to sign an affidavit with

specified contents, see Tex. Prop. Code Ann. § 53.054 timely file the affidavit with the

county clerk, see id. § 53.052(a), and provide notice of the filed affidavit to the property

owner and the original contractor, and to provide prior notice of the unpaid balance to

the property owner and the original contractor. See id. § 53.056. Ready Cable Inc. v. R

JP Southern Comfort Homes Inc., 295 S.W. 3d 763,765 (Tex App- [Third Dist] Austin,

2009). It is well settled that the mechanic's and materialman's lien statutes are to be

liberally construed for the purpose of protecting laborers and materialmen. First Nat'l

Bank v. Whirlpool Corp., 517 S.W.2d 262,269 (Tex. 1974). Generally, for purposes of

perfecting the lien, only substantial compliance is required in order to fulfill the

statutory requirements. Occidental Neb. Fed. Sav. Bank v. East End Glass Co., 773

S.W.2d 687, 688 (Tex.App.-San Antonio 1989, no writ); see Tex. Prop. Code Ann. §

53.054(a). In addition, courts have been more willing to excuse a mistake or omission

in cases where no party is prejudiced by the defect. Mustang Tractor & Equip. Co. v.

Hartford Accident & Indem. Co., 263 S.W.3d 437, 441 (Tex.App.-Austin 2008, pet.

denied); Richardson v. Mid-Cities Drywall, Inc., 968 S.W.2d 512, 515 (Tex.App.-

Texarkana 1998, no pet.) (" Substantial compliance is shown to exist where no one has

been misled to his prejudice").

PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT "AGE II
 The summary judgment evidence attached shows Plaintiff fully complied with

the statutory provisions of the Texas Property Code to perfect a Mechanics Lien on the

Heather Village Apartments property belonging to Defendant, HEATHER VILLAGE,

LLC. Plaintiff sent a notice of its claim to Defendant, HEATHER VILLAGE, LLC,

the owner of the Heather Village Apartments, who contracted for the work, on February

5, 2013, by certified mail, return receipt requested, advising Defendant that a lien

would be filed and making a demand for payment of balance due and owing in the sum

of $51,200.00 for the repairs, painting and other services performed at the request of

Defendant, HEATHER VILLAGE, LLC, as required by Tex. Prop. Code § 53.055,

prior to the filing an Affidavit for a Mechanic's Lien. See Exhibit "A"-Affidavit of

Susan Briggeman-Exhibit "6". After no payment was made by the Defendant,

HEATHER VILLAGE, LLC, on February 21, 2013, Plaintiff timely filed an

Affidavit for a Mechanic's Lien for the labor performed and materials furnished on the

behalf of Defendant, HEATHER VILLAGE, LLC, for wood replacement, repairs,

painting, labor and materials furnished to its property known as the HEATHER

VILLAGE APARTMENTS for the total amount of $51,200.00 as required by as

required by Tex. Prop. Code § 53.052. See Exhibit "A"-Affidavit of Susan Briggeman-

Exhibit "7".

For the foregoing reasons, Plaintiff is entitled to a judgment foreclosing its

Mechanics Lien on the Heather Village Apartments property belonging to Defendant,

HEATHER VILLAGE, LLC.

PLAINTIFF'S MOTION FOR TRADITIONAL
PAGE 12
SUMMARY JUDGMENT
 WHEREFORE, PREMISES CONSIDERED, Plaintiff, PANINA requests that

this matter be set for a hearing on the same date as trial, to wit: October 20, 2014, and

that upon completion of the hearing, the Court grant in all things the Motion for

Traditional Summary Judgment filed by Plaintiff P ANINA, INC d/b/a JA

CONSTRUCTION SERVICES in that Court enter a summary judgment in favor of

Plaintiff PANINA, INC d/b/a JA CONSTRUCTION SERVICES against Defendant

HEATHER VILLAGE, LLC, d/b/a THE HEATHER VILLAGE.

APARTMENTS, in the sum of $51,200.00, plus all reasonable attorney's fees

attorney's fees incurred by Plaintiff in prosecuting in defending the lawsuit, as well as

for attorney's fees in the event of an appeal to the Court of Appeals and in the event of

a petition for review to the Supreme Court of Texas, plus all costs court incurred, as

well as for a judgment foreclosing its Mechanic's Lien on the Heather Village

Apartments property belonging to Defendant, HEATHER VILLAGE, LLC for

payment of the full amount of the judgment attorney's fees and costs court and that the

Court grant Plaintiff, PANINA such other and further relief, to which Plaintiff, PANINA

may be justly entitled.

PLAINTIFF'S MOTION FOR TRADITIONAL
PAGE \3
SUMMARY JUDGMENT
 Respectfully submitted,
LAW OFFte OF JOHN P. KNOUSE
. ~-

/JOHN. OUSE

lJ 1
tate Number: 11624000
N. Dallas Parkway
ld 300
Dallas, Texas 75248
(972) 380-1188 (Telephone)
(214) 367-5982 (Telecopier)
E-mail: knouselaw@yahoo.com
ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE

This is to certify that on this ~~ay of September, 2014, a true and correct copy of

the foregoing was served upon Defendant by facsimile to (214) 812- 0124 sent to Mr. R. Lane

Addison Esq., of Henley and Henley PC, Attorneys At Law, 3300 Oak Lawn Ave., Suite 700,

Dallas, Texas 75219, Attorneys of Record for Defendant as req,uired by T.R.C.P. Rule 21a.

PLAINTIFF'S MOTION FOR TRADITIONAL
SUMMARY JUDGMENT PAGE 14
 FIAT

IT IS ORDERED that the hearing on Plaintiffs Traditional Motion For

Summary Judgment be in the same, are hereby set for hearing on the _day of

_ _ _ _ _ _ 2014, at _ o'clock _.m., in the courtroom of the _ _ District

Court of Tarrant County, Texas

SIGNED this _ day of _ _ _ _ _, 2014.

JUDGE PRESIDING

PLAINTIFF'S MOTION FOR TRADITIONAL
PAGE: 15
SUMMARY JUDGMENT
 EXHIBIT "A"
Affidavit of Susan Briggeman, President of
Plaintiff, Panina, Inc. d/b/a JA Construction Services
 CAUSE NO. 17-266141-13

PANINA, INC d/b/a § IN THE 17th JUDICIAL
JA CONSTRUCTION SERVICES §
Plaintiff §
§
VS. § DISTRICT COURT OF
§
HEATHER VILLAGE, LLC., D/B/A §
THE HEATHER VILLAGE §
APARTMENTS §
Defendant § TARRANT COUNTY, TEXAS

AFFIDA VIT OF SUSAN BRIGGEMAN IN SUPPORT OF PLAINTIFF'S
TRADITIONAL MOTION FOR SUMMARY JUDGMENT

STATE OF TEXAS §
§
COUNTY OF DALLAS §

SUSAN BRIGGEMAN, who, being by me duly sworn, upon my oath

deposed and stated as follows:

1. My name is SUSAN BRIGGEMAN and I am the President of Plaintiff,
PANINA, INC d/b/a JA CONSTRUCTION SERVICES. In my capacity
as its president, I have authority to make this affidavit on the behalf of
PANINA, INC d/b/a JA CONSTRUCTION SERVICES. I am over
twenty-one years of age, have never been convicted of a felony, and I have
personal knowledge of each and every statement made in this my affidavit,
which statements are true and correct. I have been in the business of
remodeling construction for over 20 years, and I am familiar with the
reasonable and customary charges for the work involved in this matter in
Tarrant County, Texas.

2. On October 11, 2012, the Defendant, HEATHER VILLAGE, LLC,
("Heather Village") by and through its agents and representatives, Sungate
Management, Inc., located at 9550 Skillman Street, Ste. 210, Dallas, Texas,
signed and accepted on November 14,2012, entered into a written contract
with Plaintiff, P ANINA, INC. d/b/a JA CONSTRUCTION SERVICES,
("Panina') requesting Plaintiff, PANINA, to perfonn wood replacement
and exterior paint repairs to Defendant's property, known as THE

AFFIDAVIT OF SUSAN BRIGGEMAN IN
SUPPORT OF PLAINTIFF'S TRADITIONAL PAGE I
MOTIN FOR SUMMARY JUDGMENT
 HEATHER VILLAGE APARTMENTS, located at 6000 Boca Raton in
Fort Worth, Tarrant County, Texas 75112 for a total sum of $46,000.00. A
true copy of the written contract of the parties is attached to my affidavit
and is designated as Exhibit 1.

3. Under the terms and conditions of the written contract 50% of the total
contract price in the sum of $23,000.00 was due and payable upon delivery
of the materials and commencement of work at the apartment building
located at 6000 White Dove Drive in Fort Worth, Texas for which Plaintiff,
PANINA submitted its invoice No. 1115201202 on November 15, 2012, a
true copy of which invoice is attached to my affidavit and is designated as
Exhibit 2. Furthermore under the terms and conditions of the written
contract the remaining 50% of the total contract price in the sum of
$23,000.00 was due and payable upon completion of the renovation work at
the apartment building located at 6000 White Dove Drive in Fort Worth,
Texas for which Plaintiff, PANINA submitted its invoice No. 1115201203
on November 15, 2012, a true copy of which invoice is attached to my
affidavit and is designated as Exhibit 3.

4. After performing the renovation work requested, Defendant HEATHER
VILLAGE agreed to a change order, requesting Plaintiff to further provide
additional labor and materials in repairs to the apartment building located at
6000 White Dove Drive in Fort Worth, Texas, which were provided by the
Plaintiff, PAN INA at Defendant HEATHER VILLAGE's special
instance and request in the additional sum of $5,200.00 as specified in its
invoice No. 1122201201 on November 22, 2012, a true copy of the invoice
for the additional labor and materials is attached to my affidavit and
designated as Exhibit 4.

5. The total reasonable value of all of the services, labor, and materials
furnished by the Plaintiff, P ANINA at the request of Defendant
HEATHER VILLAGE is the sum of $51,200.00, which services were
specified in the written contract and in the additional change order, also
itemized in the invoices attached to my affidavit, as Exhibits 1, 2, 3, and 4.
Defendant HEATHER VILLAGE has made no payments toward for the
labor and materials ordered by it, and there is a balance due and owing of
the full amount of $51 ,200.00.

6. Although Plaintiff, P ANINA has on numerous occasions made demand for
payment by Defendant HEATHER VILLAGE for the balance due,
Defendant HEATHER VILLAGE has failed and refused to pay Plaintiff,

AFFIDAVIT OF SUSAN BRIGGEMAN IN
SUPPORT OF PLAINTIFF'S TRADITIONAL PAGE 2
MOTIN FOR SUMMARY JUDGMENT
 P ANINA the past due balance for the additional services ordered or any
part of it, to Plaintiffs damage in the total sum of$51,200.00.

7. A written demand letter requesting payment of the full amount of
$51,200.00 was sent by Plaintiff, PANINA's Director of Operations, Dfer
Abramov and myself to Defendant HEATHER VILLAGE's agent,
Sungate Management, Inc. on January 18, 2013, which is attached to my
affidavit as Exhibit "5".

8. Plaintiff, P ANINA performed the services rendered to Defendant
HEATHER VILLAGE at its request. In addition, Defendant HEATHER
VILLAGE accepted, and has used and enjoyed the services provided by
Plaintiff, P ANINA, and has kept and is using the improvements to its
property made by Plaintiff, which Defendant HEATHER VILLAGE
acknowledges and for which it has offered only to pay the costs of
materials. Under these circumstances, Defendant HEATHER VILLAGE
had, or should have had, reasonable notice that Plaintiff, P ANINA
expected that Defendant HEATHER VILLAGE would pay it for the
services which Plaintiff, P ANINA performed for Defendant. Defendant
HEA THER VILLAGE has been unjustly and unfairly enriched, in that
Defendant HEATHER VILLAGE has benefitted by the services
performed on its behalf by Plaintiff, P ANINA, but has failed and refused
and still fails and refuses to pay Plaintiff, PANINA for the reasonable value
of those services and materials provided, which Plaintiff, P ANINA alleges
to be in the sum of $51,200.00 and for which Plaintiff, PANINA seeks
judgment against Defendant HEATHER VILLAGE.

9. On February 5, 2013, Plaintiff, PAN INA sent a notice of its claim to
Defendant, HEATHER VILLAGE by certified mail, return receipt
requested, advising Defendant that a lien would be filed and making a
demand for payment of balance due and owing in the sum of $51,200.00
for the repairs, painting and other services performed at the request of
Defendant, HEATHER VILLAGE, prior to the filing an Affidavit for a
Mechanic's Lien, a true copy of which notice is attached to my affidavit as
Exhibit "6".

10. After no payment was made by the Defendant, HEATHER VILLAGE on
February 21, 2013, Plaintiff, PANINA timely filed an Affidavit for a
Mechanic's Lien for the labor performed and materials furnished on the
behalf of Defendant, HEATHER VILLAGE for wood replacement,
repairs, painting, labor and materials furnished to its property, known as the

AFFIDAVIT OF SUSAN BRIGGEMAN IN
SUPPORT OF PLAINTIFF'S TRADITIONAL PAGE3
MOTIN FOR SUMMARY JUDGMENT
 HEATHER VILLAGE APARTMENTS, for the total amount of
$51,200.00, a true copy of which Affidavit for Mechanic's Lien is attached
to my affidavit as Exhibit "7". Foreclosure of the Mechanic's Lien is sought
by Plaintiff, P ANINA.

11. As stated, the charge of $51,200.00, to perform wood replacement and
exterior paint repairs to Defendant's property was agreed and was also the
usual, customary and reasonable charges to perform the wood
replacement and exterior paint repairs done to Defendant's property in
Tarrant County, Texas. The labor and materials furnished would not
have been furnished but for the written agreement of the parties and the
specific authorization and request of Defendant HEATHER VILLAGE.
No written or oral warranties were ever made by any agent
representative of Plaintiff, PANINA as to work performed. No warranties
have been paid for by Defendant HEATHER VILLAGE.

12. Pursuant to the terms of the written contract and the change order,
Plaintiff, P ANINA. has fully performed all obligations and conditions
precedent. Despite demand for payment being made, have refused and
continue to fail or refuse to perform according to the terms of the
agreement and has caused actual damages to Plaintiff, P ANINA. Plaintiff,
P ANINA' s claim is for liquidated money damages based upon an
agreement founded upon business dealings between the parties of which a
systematic record has been kept.

13. I am the custodian of the records for Plaintiff, PANINA, INC. Attached to
my affidavit is a true and correct copy of the written contract between
Plaintiff, PANINA, INC. and, which is designated as Exhibit "I". Also
attached to my affidavit are true and correct copies of invoices of Plaintiff,
PANINA, INC. submitted to Defendant HEATHER VILLAGE,
designated as Exhibits 2, 3,and 4. Also attached to my affidavit is a true
and correct copy of a demand letter for payment sent to Defendant
HEATHER VILLAGE, dated on January 18, 2013, which is designated
as Exhibit "5". Also attached to my affidavit is a true and correct copy of
a notice that was sent by certified mail to Defendant HEATHER
VILLAGE on February 5, 2013, prior to filing an affidavit for mechanics
lien, which is designated as Exhibit "6". I have also attached to my
affidavit a copy of the Affidavit for Mechanic's Lien filed on February 21,
2013, which is designated as Exhibit "7". Each of such records were kept
by Plaintiff, PANINA, INC. in the regular course of business. It was the
regular course of the business of Plaintiff, P ANINA, INC. for it or an
officer, director, employee or representative of Plaintiff, PANINA, INC.

AFFIDA VIT OF SUSAN BRIGGEMAN IN
SUPPORT OF PLAINTIFF'S TRADITIONAL
MOTIN FOR SUMMARY JUDGMENT
 with personal knowledge of the act, event or condition recorded to make
the records and to transmit or receive information thereof to be included
in such records. Each of such records attached hereto, were made or
received at or near the time of the act, event or condition recorded or
reasonably soon thereafter. Each copy attached hereto as Exhibits "1
through 7" are exact duplicated of the original record and each copy was
made or received under my personal supervision."

14. Defendant HEATHER VILLAGE defaulted by not making payment on
the account. The principal balance due to Plaintiff, PANINA of the
account is $51,200.00, after all just and lawful offsets, credits, and
payments have been allowed. Plaintiff, PANINA Plaintiff, PANINA sent a
written demand for payment to the Defendant HEATHER VILLAGE on
January 18, 2013, attached hereto as Exhibit "6", but the Defendant
HEATHER VILLAGE has failed to pay the account in whole or in part."

15. Plaintiff, PANINA has retained the services of John P. Knouse, Attorney at
Law, to enforce the rights between the parties and is entitled to recover
reasonable and necessary attorney's fees. Plaintiff, PANINA also presented
a written demand more than thirty (30) days prior to filing suit as required
by Chapter 38 of the Texas Civil Practice and Remedies Code. Prior to filing
this Motion for Traditional summary judgment, Plaintiff, PANINA has paid
reasonable and necessary attorney's fees of $6,860.00, which fees do not
include the additional attorney's fees incurred in filing a "No Evidence"
Motion For Summary Judgment in regard to the counterclaim filed by
Defendant, HEATHER VILLAGE, nor the attorney's fees involved in
preparing and filing the Traditional Motion For Summary Judgment for the
hearing thereon. Plaintiff, PANINA requests that a judgment for all of the
reasonable and necessary attorney's fees it has incurred for preparation and
trial of this case in the amount and additional attorney's fees in the event of
an appeal or other proceedings before the Court of Appeals or the Supreme
Court of Texas."

SWORN TO AND SUBSCRIBED TO BEFORE ME, this the;;1Ylr
of September, 2014.

$ m , I Ill· . . .SIiJlJ8J I

AFFIDAVIT OF SUSAN BRIGGEMAN IN
SUPPORT OF PLAINTIFF'S TRADITIONAL
MOTIN FOR SUMMARY JUDGMENT
 :\ .....",
;'~~Y~t.;~ RACHEL P-':NINA ABRAMOV
I':W.'''s Notary Public, State of Texas
\~~f~J My Commission Expires
~4~t.:~~,,,, Januarv 13. 2015

Tl (. WEI.

AFFIDAVIT OF SUSAN BRIGGEMAN IN
SUPPORT OF PLAINTIFF'S TRADITIONAL p_\la. t:

MOTIN FOR SUMMARY JUDGMENT

------------------------------------------------
EXHIBIT "I"
Ma~ 23 2013 9:05AM S. .ATE MANAGEMENT INC. 2H 13051 p. 1

-'.....---...

~-Famlly a IndUstrfal

October t t, 2012

AttII: .Jod;' ............,
W.lter ,........
Sup_Property Manqtmat
tHI . . . . . St.
Ste. ::na
. . . . TX'52G
&t: Exterior KeIlOWtioM IJR 6OOO,6OO91P1d 60 13 White Dove
IiII6Ir VillIa. Apts.
6000 Boca iblDl1 Blvd.
Fort Worth TX 761 U

J.A. CON'ftBvC'ftON S&RVICES WILL J'1JRNI5R ALL LABOR, MAT&1UAL AND
INSVltANCE NKCES8AJlYTO ftlUORM THE FOLWWING ON THE ABOVE
IlD'ERENCED PROJECl'.

Jlcmove IItd. replloel0,OOO If or dIImapd IidJns with IJantie CempIAulk
S2I..-iOO.OO
btaD 3.000 Ifof 1 x Slap and pp eodIr
$10,500.00

PedIrm all aeceuuy hmiq and clote of1 6 exterior dwcta
$1,200.00

llemove md. replace 7 5becta of 4 x a soffit
"2',00
hmove IMl"fPlace 1.112 If of mile. trim - 1 x 2, 1 x 6, 1 x 4, 1 x I,ate.
$5,375.00

PaiDI: oxtaior to matdl buildiDp n.wly pejDted

' .... 1& ' " Mite Dew,

Remov. and replKe 8,000 If of damapd tidiDa witb Hardi. CempJaIlk:
$21,610.00
1DItall2,OOO If of 1 x Slap IDd lIP cedIr
$7,000.00

j421A1ph& _ -lUftI11ZQ.- Pa'Ias. JJ 75210· tm)..392"66?· fIX; t9nl-m"9QIl
 Ma~ 23 2013 9:05AM f jATE MANAGEMENT INC. 21- 13051 p.2

_......If"
.""....,; ;

0 Renomtan Spedaltfes ConInercfal ~lti·FIIIIfty a Industl1ll

Permnn III oeeCIICY frlmina and cIoIc off .. exterior cloIIcta
saoo.OO
Remove IDd I'IpIace 6 ahem of 4 x 'lOftit
$4j().00

Remove IIUI RpIlCC 4,000 If of JIl&sc. trim - 1 x 2. 1 x 6, 1 :x 4, I x I,etc.
S12,010.oo

Paint ma.ior to matdI buildfDgt aewly peiDted

CDItfor Baildlnr 6"9: Ul,1J(J(J. fJ(J

R.emove IUd nplac:c 12,000 If of damaap:d sidiDa with Hardie Ccmplank
S32.41'.00
R.emove and ~lKe 3,000 If of 1 x Slap and gap -------Original Message-------
> From: US Postal Service@usps.com
> To: jessica@jaconstructionservices.com
> Subject: U.S. Postal Service Track & Confirm email Restoration - 70093410000038137048
> Sent: May 22 '13 2:06pm
>
> This is a post-only message. Please do not respond.
>
> Susan Briggeman has requested that you receive this restoration information
> for Track & Confirm as listed below.
>
> Current Track & Confirm e-mail information provided by the u.s. Postal
> Service.
>
> Label Number: 70093410000038137048
>
> Service Type: Certified Mail"TM
>
> Shipment Activity Location Date & Time
> -------------------------------------------------------------------------------------------------------------------
>
> Delivered DALLAS TX 75243 February 6, 2013 3:07 pm
> Depart USPS Sort Facility DALLAS TX 75260 February 6, 2013
> Processed at USPS Origin Sort Facility DALLAS TX 75260 February 6, 2013
> 2:11 am
> Dispatched to Sort Facility DALLAS TX 75240 February 5, 2013 7:26 pm
> Acceptance DALLAS TX 75240 February 5, 2013 4:09 pm
>
> USPS has not verified the validity of any email addresses submitted via its
> online Track & Confirm tool.
>
> For more information, or if you have additional questions on Track &
> Confirm services and features, please visit the Frequently Asked Questions
> (FAQs) section of our Track & Confirm tool at
> http://www.usps.comlshipping/trackandconfmnfags.htm.

http://us.mg205.mail.yahoo.comldcllaunch? .gx= 1&.rand=e20ihilbi4dej 5/27/2013
EXHIBIT "7"
 =~ISE GARCIA ...........
~

COUNTY CLERK
8'
ENCE "SlMi\IARY J(IJ)GMENT
 017-266141-13

E. Although Plaintiff and Counter-Defendant, PAN INA has on numerous

occasions made demand for payment by Defendant and Counter-Plaintiff, HEATHER

VILLAGE for the balance due, ,it has failed and refused to pay Plaintiff the past due

balance for the additional services ordered or any part of it, to Plaintiffs damage in the

total sum of $51 ,200.00.

F. A written demand letter requesting payment of the full amount of

$51,200.00 was sent by Plaintiffs Director of Operations, Ofer Abramov and Susan

Briggeman, Plaintiffs President to Defendant's agent, Sungate Management, Inc. on

January 18,2013.

G. Though Plaintiff and Counter-Defendant, PAN INA has sent Defendant

and Counter-Plaintiff, HEATHER VILLAGE discovery in the form of Requests For

Admissions, a First Set of Interrogatories, a First Set of Request for Production and A

Request For Disclosures, Defendant and Counter-Plaintiff, HEATHER VILLAGE has

completely failed to produce any documentary evidence supporting its claims, stating that

it will use an "expert report" for an expert that has never been designated in response to

requests for disclosures. See Response of Defendant and Counter-Plaintiff, HEATHER

VILLAGE

III.
ARGUMENTS AND AUTHORITIES

A. "NO EVIDENCE" SUMMARY JUDGMENT STANDARDS.

PLAINTIFF AND COl,NTER-OEFENI)"NT'S 1\10TI01\
FOR "NO EVIDENCE "Sl:t\'liVIAI{Y Jl'DGMENT
 017-266141-13

Under the "no evidence" summary judgment rule, the Movant may move for

summary judgment if, after adequate time for discovery, there is no evidence of one or

more essential elements of a claim or defense on which the non-movant would have had

the burden of proof at tria1." Galveston Newspapers, Inc. v. Norris, 981 S.W.2d 797, 799

(Tex. App.-Houston [l st Dist] 1998, pet. denied). "Once properly raised, Rule 166a(i) ...

places the burden on the non-movant to produce evidence on each and every challenged

element of his claim." Heiser v. Echerd Corp., 983 S.W.2d 313, 316 (Tex. App.-Fort

Worth 1998, no pet.); see Esco Oil & Gas, Inc. v. Sooner Pipe & Supply Corp., 962

S.W.2d 193,197 n.3 (Tex. App.-Houston [1 st Dist.] 1998, pet. denied). "Under the no

evidence summary judgment standard, the party with the burden of proof at trial will have

the same burden of proof in a summary judgment proceeding." Norris, 981 S.W.2d at 799-

800 (internal quotations omitted); also see Marsaglia v. Univ. a/Texas at El Paso, 22 S.W.

3d 1,3 (Tex. App.-EI Paso 1999, pet. denied). "The court must grant the motion unless the

respondent produces summary judgment evidence raising a genuine issue of material

fact." Tex. R. Civ. P. 166a(i); In re MohawhRubber Co., 982 S.W.2d 494,498 (Tex.

App.-Texarkana 1998, no pet.). A no-evidence summary judgment is properly granted if

the non-movant fails to bring forth more than a scintilla of probative evidence to raise a -

genuine issue of material fact as to an essential element of the non-movant's claim. See

Rodriguez v. NBC Bank, 5 S.W.3d 756, 760 (Tex. App.-San Antonio 1999). Less than a

scintilla of evidence exists when the evidence is so weak as to do no more than create a

I'LAI!'iTiFF A;"I(D COUNTER-DEFENI):\!\T'S i\lOTION
[",\( i I '
FOR "NO EVIDENCE "Sl:i\'IMARY ,Jl!()(;:\H:NT
 017-266141-13

mere surmise or suspicion of a fact, and the legal effect is that there is no evidence.

Rodriguez, 5 S.W.3d at 760

B. Adequate Time For Discovery.

An adequate time for discovery has passed. This case is set for trial for the week

of October 20,2014. The time for discovery under the scheduling order has passed.

C. Heather Village Has No Evidence to Support Its Claim for Breach of
Warranty.

As previously stated, despite the fact that Defendant and Counter-Plaintiff,

HEATHER VILLAGE has paid nothing for the labor and materials provided to it by

Plaintiff and Counter-Defendant, PANINA, it filed counterclaim claiming that

PAN INA improperly installed exterior wood claiming that P AN INA breached an

"implied warranty of good and workmanlike services for residential construction".

In general, an express warranty is the result of a negotiated exchange, see, e.g.,

u.s. Pipe & Foundry Co. v. City of Waco, l30 Tex. 126, 108 S.W.2d 432, 434

(Tex.l937), and is a "creature of contract," 18 WILLISTON ON CONTRACTS § 52:45.

Accord Cipollone v. Liggett Group, Inc. 505 U.S. 504, 524 n. 23, 112 S.Ct. 2608, 120

L.Ed.2d 407 (1992) (plurality opinion) (noting that "express warranty claims are said to

sound in contract rather than in tort" and comparing legal definitions oftort and contract).

To ascertain the parties' intentions in a warranty, the Court must look to well-established

rules for interpretation and construction of contracts. See Rodriguez v. W. 0. W. Lifo Ins.

Soc., 136 Tex. 43, 145 S.W.2d 1077, 1080 (Tex. 1941). A breach of express warranty

PLAINTIFF AND COllNTEJ{-DEFENDANT'S MOTION
1':\(i1 ()
FOR "NO EVIDENCE "Slfl\'1MARY JUDGMENT
 017-266141-13

claim, like one for breach of contract, involves a party seeking damages based on an

opponent's failure to uphold its end of the bargain. See City o/Waco, 108 S.W.2d at 434.

Plaintiff and Counter-Defendant, P ANIN A contends there is no evidence to

support the claim of Defendant and Counter-Plaintiff, HEATHER VILLAGE that

there was a breach of either an express or and implied warranty by Plaintiff and

Counter-Defendant, PANINA and hereby challenges Defendant and Counter-

Plaintiff, HEATHER VILLAGE to produce competent summary judgment evidence

of all of the essential elements supporting its claim for an alleged breach of either an

express or implied warranty of good and workmanlike services for residential

construction, including but not limited to.

(1) Proof of the amount of consideration actually paid to Plaintiff and Counter-

Defendant, PANINA by Defendant and Counter-Plaintiff, HEATHER

VILLAGE for any warranty express or implied;

(2) Proof of any negotiated warranty between Defendant and Counter-Plaintiff,

HEATHER VILLAGE and Plaintiff and Counter-Defendant, PANINA;

(3) Proof of any breach of any express or implied warranty by Plaintiff and

Counter-Defendant, PANINA;

(4) Proof of any damage caused to Defendant and Counter-Plaintiff, HEATHER

VILLAGE by any such breach of any express or implied warranty by

Plaintiff and Counter-Defendant, PANINA.

')LAINTIFF AND COlINTE:I{-[)EFENIHNT'S MOTION
1"01{ "NO EVII>ENCE "S(li\IMAI{Y .J(i(}(;I\1EI\;T
 017-266141-13

Unless Defendant and Counter-Plaintiff, HEATHER VILLAGE can produce

competent summary judgment evidence establishing each of the above elements against

the Plaintiff and Counter-Defendant, PANINA, Plaintiff and Counter-Defendant,

P ANINA is entitled to summary judgment on Defendant and Counter-Plaintiff,

HEATHER VILLAGE's breach of warranty claim as a matter of law. TRCP 166a(i);

Dolcefino v. Randolph, 19 S.W.3d 906,917(Tex. App.-Houston [14 th Dist.] 2000, pet.

denied) (granting no-evidence motion mandatory give non-movant fails to produce

summary judgment evidence sufficient to raise genuine issue of material fact.)

D. Heather Village Has No Evidence to Support Its Claim for Breach of
Contract.

Although Defendant and Counter-Plaintiff, HEATHER VILLAGE has paid

nothing for the labor and materials provided to it by Plaintiff and Counter-Defendant,

P ANINA, filed counterclaim claiming that PANINA charged an unreasonably

excessive fee for labor and improperly installed exterior wood claiming that PANINA

breached a contract for which it also paid no consideration.

In order to maintain a claim for a breach of contract, Defendant and Counter-

Plaintiff, HEATHER VILLAGE must establish the following elements: (1) a valid

contract; (2) the counter-plaintiff performed or tendered performance; (3) the counter-

defendant breached the contract; and (4) the counter-plaintiff was damaged as a result of

that breach. See Hussong v. Schwan's Sales Enterprises, Inc., 896 S.W.2d 320, 326

(Tex.App.-Houston [lst Dist.] 1995, no writ) .

PLAINTIFF AND COlJNTER-[}EFENI)ANT'S MOTION
I' ;\( iJ g
FOR "NO f<:VIDENCE: "SlIMMARY Jl.IDGMENT
 017-266141-13

Plaintiff and Counter-Defendant, PANINA contends there is no evidence to

support the claim of Defendant and Counter-Plaintiff, HEATHER VILLAGE that

there was a breach of contract warranty by Plaintiff and Counter-Defendant,

P ANINA and hereby challenges Defendant and Counter-Plaintiff, HEATHER

VILLAGE to produce competent summary judgment evidence of all of the essential

elements supporting its claim for an alleged breach of either an express or implied

warranty of good and workmanlike services for residential construction, including but

not limited to:

(1) Proof of a valid contract between Defendant and Counter-Plaintiff,

HEATHER VILLAGE and Plaintiff and Counter-Defendant, PANINA;

(2) Proof that Defendant and Counter-Plaintiff, HEATHER VILLAGE

performed under the contract by paying Plaintiff and Counter-Defendant,

PANINA the contractual amount agreed to by the parties for labor and

materials;

(3) Proof that Plaintiff and Counter-Defendant, PANINA breached the

contract; and

(4) Proof that Defendant and Counter-Plaintiff, HEATHER VILLAGE was

damaged by the alleged breach of contract.

Unless Defendant and Counter-Plaintiff, HEATHER VILLAGE can produce

competent summary judgment evidence establishing each of the above elements against

the Plaintiff and Counter-Defendant, PANINA, Plaintiff and Counter-Defendant,

PLAINTIFF AND COt!NTER-DEFEN()ANT'S MOTION
FOR "NO EVIDENCE "SliMMARV .JllDGMENT
 017-266141-13

PANINA is entitled to summary judgment on Defendant and Counter-Plaintiff,

HEATHER VILLAGE's breach of warranty claim as a matter of law. TRCP 166a(i);

Dolcefino v. Randolph, 19 S.W.3d 906,917(Tex. App.-Houston[14 th Dist.] 2000, pet.

denied) (granting no-evidence motion mandatory give non-movant fails to produce

summary judgment evidence sufficient to raise genuine issue of material fact.)

D. Heather Village Has No Evidence to Support Its Claim for Damages

No evidence has been produced by of Defendant and Counter-Plaintiff,

HEATHER VILLAGE of any damage caused to it by the actions of Plaintiff and

Counter-Defendant, PANINA, although request for production of documents

showing actual damage have been sent with no documents ever having been

produced. No evidence has been produced by Defendant and Counter-Plaintiff,

HEATHER VILLAGE by way of an expert witness which has never been designated

nor a report produced show any damage caused to it. It is not clear from the pleadings of

Defendant and Counter-Plaintiff, HEATHER VILLAGE whether or not it is seeking

damages solely based upon its contentions of breach of implied warranty and breach of

contract,. To the extent that Defendant and Counter-Plaintiff, HEATHER VILLAGE,

may attempt to argue some theory that is not pled it should be precluded from doing so

as a matter of law since Plaintiff and Counter-Defendant, PANINA and their counsel

have never been apprised of any other causes of action other than the alleged

breach of implied warranty and breach of contract.

PLAINTIFF AND COl'NTER-[)En~NIHNT'S MOTION
FOR "NO «:VIUENCE: ··SUM!\'IAH.Y "l!DGME"H
 017-266141-13

WHEREFORE, PREMISES CONSIDERED, Plaintiff and Counter-

Defendant, PANINA, respectfully requests the court to enter an order granting this

no evidence motion for summary judgment and for any and all other relief to which

it may be justly entitled.

Respectfully submitted,
LA OF JOHN P. KNOUSE

. KNOUSE
ar Number: 11624000
16 0 N. Dallas Parkway
g 300
Dallas, Texas 75248
(972) 380-1188 (Telephone)
(214) 367-5982 (Telecopier)
E-mail: knouselaw@yahoo.com
ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE

This is to certify that on this /9 }-day of September, 2014, a true and correct copy of the

foregoing was served upon Defendant by facsimile to (214) 812- 0124 sent to Mr. R. Lane

Addison Esq., of Henley and Henley PC, Attorneys At Law, 3300 Oak Lawn Ave., Suite 700,

Dallas, Texas 75219, Attorneys of Record for Defendant as required by T.R.C.P. Rule 21 a.

PLAINTIFF ANI) COl!NTER-[)EFENDAl'IT'S MO 'ION.
1'/\(11 I I
FOR "NO EVII>ENCf. "SLIM MARY .JlI/)(;M/<~NT
 017-266141-13

FIAT

Notice is given that the above and foregoing Plaintiff and Counter-

Defendant's Motion for "No Evidence Summary Judgment is hereby set for the _day of

October, 2014 at _ _ _ _ _ o'clock m.

I'L;\INTIFF ANI> COl:NTER-I>EFENI>ANT'S MOTION
1';\( ii', 12
FOR "NO EVIDENCE "Stl'\'lMARY .H)()GMENT
 EXHIBIT "C"
DEFENDANT'S RESPONSE TO PLAINTIFF'S TRADITIONAL
MOTION FOR SUMMARY JUDGMENT
 017-266141-13 FILED
TARRANT COUNTY
11/7/2014 11 :29:26 AM
THOMAS A. WILDER
NO. 17-266141-13 DISTRICT CLERK

PANINA, INC. D/B/A JA § IN THE DISTRICT COURT
CONSTRUCTION SERVICES §
Plaintiff, §
§
V. § 17TH JUDICIAL DISTRICT
§
HEATHER VILLAGE, LLC D/B/A THE §
HEATHER VILLAGE APT §
Defendant. § OF TARRANT COUNTY, TEXAS

DEFENDANT'S RESPONSE TO
PLAINTIFF'S TRADITIONAL MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Defendant, Heather Village, LLC d/b/a The Heather Village Apt,

Defendant herein, and requests this Honorable Court to DENY Plaintiff's Traditional Motion for

Summary Judgment.

INTRODUCTION

When a Plaintiff files a motion for summary judgment based on summary judgment

evidence, the court can grant the motion only when the Plaintiff's evidence proves, as a matter of

law, all the elements of the Plaintiff's cause of action or defense, or disproves the facts of at least

one element in the Defendant's cause or defense.

When evaluating a motion for summary judgment, the court must:

1. Assume all the Defendant's proof is true;

2. Indulge every reasonable inference in favor of the Defendant; and

3. Resolve all doubts about the existence of a genuine issue of material fact

against the Plaintiff.

SUIT ON SWORN ACCOUNT

Plaintiff filed a claim against Defendant seeking affirmative relief for a suit on a sworn
 017-266141-13

account. "The essential elements to prove a sworn account are: (1) that there was a sale and

delivery of merchandise or performance of services; (2) that the amount of the account is just, that

is, that the prices were charged in accordance with an agreement or were customary and reasonable

prices; and (3) that the amount is unpaid." Day Cruises Mar., L. L. C v. Christus Spohn Health Sys.,

267 S.W.3d 42,53 (Tex. App. 2008).

This case is, at most, a breach of contract case, not a suit on a sworn account. Even so, a

jUdgment on the sworn account is improper because the Defendant has filed a verified denial as

evidenced by Exhibit C. Moreover, as evidenced by Exhibits A & B, there is a legitimate dispute as

to whether the materials charged for were ever delivered or the amounts charged by the Plaintiff

was customary and reasonable. Thus, there is a genuine issue of material fact exists as to Plaintiffs

claim of a suit on a sworn account.

FORECLOSURE OF MECHANICS LIEN

Plaintiff filed a claim against Defendant seeking to foreclose it mechanics lien filed against

Defendant. The foreclosure claim is dependent, entirely, on whether the Plaintiff is entitled to a

summary judgment on its frivolous suit on a sworn account or some breach of contract.

Because Plaintiff is not entitled to a summary judgment on its sworn account claim, and

there are clearly contested issues regarding the value of the work Plaintiff performed, Plaintiff is

not legally entitled to foreclose its mechanics lien unless, and until, it has a valid judgment against

Defendant.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court will deny

Plaintiffs Traditional Motion for Summary Judgment, or order such other relief as may be

appropriate.
 017-266141-13

Respectfully submitted,

HENLEY & HENLEY, P.c.

By: lsi R. Lane Addison
R. Lane Addison
Texas Bar No. 24059355
Email: rladdison@henleylawpc.com
3300 Oak Lawn Avenue, Suite 700
Dallas, Texas 75219
Tel. (214) 821-0222
Fax. (214) 821-0124
Attorney for Defendant
Heather Village, LLC dlbla The Heather Village Apt

CERTIFICATE OF SERVICE

I certify that on November 7, 2014 a true and correct copy of Defendant's Response to
Plaintiffs Traditional Motion for Summary Judgment was served on John P. Knouse
electronically at knouselaw@yahoo.com.

lsi R. Lane Addison
R. Lane Addison
E-mail: rladdison@henleylawpc.com
 017-266141-13

NO. 17-266141-13

PANINA, INC. D/B/A JA § IN THE DISTRICT COURT
CONSTRUCTION SERVICES §
Plaintiff, §
§
V. § 17TH JUDICIAL DISTRICT
§
HEATHER VILLAGE, LLC D/B/A THE §
HEATHER VILLAGE APT §
Defendant. § OF TARRANT COUNTY, TEXAS

APPENDIX TO
DEFENDANT'S RESPONSE TO
PLAINTIFF'S TRADITIONAL MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS

All summary judgment evidence in this appendix is incorporated by reference into

Defendant's Response to Plaintiffs Traditional Motion for Summary Judgment.

Affidavit of David Christensen.. . ... .. . . . . ... ...... . .. ... ... .. . ....... . . . . . ............... Exhibit A

Affidavit of Ken Tola, an expert witness ................................................. Exhibit B

Defendant's Amended Answer and Counter-Claim ..................................... Exhibit C
 017-266141-13

NO. 17-266141-13

PANINA, INC. D/B/A JA § IN THE DISTRICT COURT
CONSTRUCTION SERVICES §
Plaintiff, §
§
V. § 17TH JUDICIAL DISTRICT
§
HEATHER VILLAGE, LLC D/B/A THE §
HEATHER VILLAGE APT §
Defendant. § OF TARRANT COUNTY, TEXAS

AFFIDAVIT

BEFORE ME, the undersigned authority, personally appeared David Christensen, who

being duly sworn, deposed as follows:

"My name is David Christensen. I am the manager of the Real Estate Team Heather

Village, LLC d/b/a The Heather Village Apt hired to get the construction under control at the

apartment complex. I am at least 18 years of age and of sound mind. I have personal knowledge of

the facts alleged in Defendant's Response to Plaintiffs Motion for No Evidence Summary

Judgment. I hereby swear that the following statements in support of Defendant's Response to

Plaintiffs Motion for No Evidence Summary Judgment are true and correct.

"The owners of Heather Village apartment complex had grown SUSpIClOUS that

construction at the complex was not progressing as planned. Having approximately 8 years in

construction, and with my immediate family having approximately 75 years in the field of

construction, I was asked by the Heather Village complex owners to become a member of their

'Real Estate Team' to help resolve any concerns and move the project forward.

"Around December of 2012 I was sent to Heather Village to inspect the work of JA

Construction, who had claimed they had completed, and to either approve, or not approve, using

them to side the remaining buildings.
 017-266141-13

"Within minutes of arriving at the complex, JA's siding work seemed to be nothing more

than simple painting of the previous old wood siding. Closer inspection seemed to reveal that JA

replaced a few pieces 'here' and 'there' yet were charging an astronomical amount for the work

performed. If JA thought the structures needed 'full replacement' he should have insisted it be

done. The complex owners were relying on JA's professional expertise.

"I spoke with JA of JA Construction about the work and expressed concerns that the work

was substandard and deficient. In fact, we had a meeting in late November or early December 2012

to discuss the work JA Construction had performed up to that point. At that meeting, I asked JA

Construction to provide receipts for all materials purchased and for a detailed list of the work they

performed. None of that information was ever given to me or Heather Village.

"Also, JA apparently was intermixing wood siding with cement fiber siding (aka Hardie

Board or James Hardie Board). This intermixing method is typically never done by reputable

contractors. It's major' building 101 ' mistake. The work also lacked backer board which provides

protection against moisture damage and mold growth. (We unfortunately, discovered the no

moisture barrier aspect when we had attempted to fix some of JA's work).

"JA did full replacement siding on a couple of buildings. They claimed to a have used

official James Hardie board for their material.

"A short time later, I was shown a pallet of the so-called 'Hardie Board' JA had been

implementing. The look and 'feel' of these boards did not seem correct. The entire vibe of JA

construction left me with a gut instinct that 'things didn't smell right'. Given the sub-standard

work of JA, an official James Hardie Board specialist was located ('Super Siding'). Ken Tola

(owner of Super Siding) was called and he agreed to come out the following morning to meet with

the Heather Village owners, the top officials with Sun Gate Management (the Property
 017-266141-13

Management Company for Heather Village at that time), and all the other members of the real

estate team.

"During the following day's meeting it became fairly heated at times for both JA

Construction and Sun Gate Management could not locate receipts for materials used in the 'partial

replacement' buildings they had worked on. We had been asking for weeks prior to this meeting

and we were promised the receipts would be shown to us at this meeting. The official for JA

Construction kept repeating something to the effect of: "Typical materials and stuff, you know."

"Furthermore, JA Construction failed to provide a detailed assessment (neither orally nor

in writing) of the work he performed. In addition, Ken Tola informed all of us, including the

official from JA, that JA's work was shoddy. The so-called Hardie Board JA was using was, in

fact, generic/fake Hardie Board made in Mexico. That fake board does not come with a 20 year

guarantee, other than JA saying, 'if there's a problem, hey, I'll come out and fix it."

"Needless to say, we accepted Ken Tola / Super Siding'S bid to complete the remaining

buildings using the official James Hardie board.

"In closing, to add insult to injury, when the raining reason began, many additional pieces

of JA's siding work were falling off the structures. Drains were also not placed back properly

which caused us thousands of dollars in repairs. Flashing was either not installed properly or not

installed, causing interior flooding to apartments. This in tum, caused us to be written up by the

city. We had to pay additional thousands of dollars of interior wall/cabinet/insulationlmold

repair."
 017-266141-13 ~,\
'-\ '
___ / '--------h7T
,
\",,/,-' \ ' "
-"-~-.
-~_"
\
-,

-" .--- -·'__ . n. . _ ' . . ,

-na~'id Christensen. as Representative of Heather Villal:!t\
1.I,e d/b/a lh: Heather Villagc ,\pl

, v-
I I

SlJBSCRIBED AND SWORN TO DEFORE ME on !\memher ~) 2014. b~ Dn\ id
Christensen.

!\lltary Public. Statt: of Cali fornia
 017-266141-13

NO. 17-266141-13

PANINA, INC. D/B/A JA § IN THE DISTRICT COlJRT
CONSTRUCTION SERVICES §
Plaintiff, §
§
V. § 17TH JUDICIAL DISTRICT
§
HEATHER "lLLAGE, LLC D/B/A THE §
HEATHER VILLAGE APT §
Defendant. § OF TARRANT COllNTY, TEXAS

AFFIDAVIT OF KEN TOLA

BEFORE ME, the undersigned authority. personally appeared Ken Tola, who being duly sworn,

deposed as follows:

"My name is Ken Tola. I am at least 18 years of age and of sound mind. I have personal

knowledge of the facts alleged herein, which are true and correct.

"l am the owner and operator of Super Siding. I have over 30 years or experience as a general

contractor and have done countless siding jobs on residential and commercial properties. I have

personally inspected all the work performed by JA Construction Services in this case, as well as the

invoices JA Construction sent to Heather Village. The work previously done was to Units 6012. 6008.

6004,6000,6001,6005.6000 and 6004.

"My company Super Siding and Remodeling is a certified James Hardie Contractor. We have

services hundreds of commercial and residential customers, installing James Hardie certified siding. In

that time, we have not had one complaint logged by James Hardie.

"After reviewing the invoices and work performed by JA Construction in this case, we have

identified the following deficient and substandard workmanship:

1. JA Construction did not utilize authentic James Hardie siding, commonly referred to as
Hardie Board, despite charging Heather Village tor that product.
2. The siding installed by JA Construction was an inferior Maxitile product that was almost
certainly less expensive and does not hold up well as James Hardie siding.
3. JA Construction utilized wood for trim. Wood used as trim has an extremely short shelf-
life.
 017-266141-13

4. The repairs JA Construction made were merely cosmetic, and did not address or fix the
root cause of the problems.
5. JA Construction was not removing the rot underneath the siding they were replacing.

"On start of work on unit 6008 we encountered an enormous amount of structural damage.

Working with the city of Fort Worth inspectors, \ve had to replace most of the support headers (2x 12s,

2xlOs, and 2x8s). We also replaced hundreds of 2 x 4 framing, rebuilt all chimneys and most of the

insulation. This remedial work was needed on all of the 18 buildings we worked on.

"When we removed the inferior Maxitile siding, we discovered the following deficient and

substandard workmanship:

1. JA Construction did not install weather-barriers. We \vent back and installed Moisture
wrap.
2. JA Construction did not install window flashing. Window /lashing is necessary to stretch
and seal window and doors.
3. JA Construction did not use metal fishing or seam sealers.
4. We inspected many of the pressure-treated bottom plates on the previous contractors
units and they were rotted. JA Construction did not address these problems.
5. JA Construction did not rebuild any of the falling-in electrical panel boxes. As such. we
had to go back and rebuild those just to pass the City of Fort Worth inspection (City
code required this).

'''Based on all this evidence, there is no surprise that the units JA Construction "repaired" were

in such deplorable conditions. The worked perfonned by JA Construction for Heather Village was

substandard. Most of the "repairs" does by JA Construction will need significant remedial work. In my

opinion, JA Construction knew what to do but did everything as cheap as possible and that they could

get away with.

"Based on my extensive expenence, inspecting the property, and completing some of the

remedial work, the cost to properly fix the problems JA Construction ignored or created will cost

approximately $166,500.00."

Ken ffiant
 017-266141-13

SUBSCRIBED AND SWORN TO BEFORE ME on November 2,2014, by Ken To!~.

• •'1/1
j
r ".
 V I I -,.::UU I ----Original Message
> From: US Postal Service@ums.com
> To: iessica@jaconstructiomcrviccs.com .
> Subject: u.s. Postal Service Track &, Coo1bm email Restoration .. 70093410000038137048
> Sent: May 22 '13 2:06pm
>
> This is a post.anly message. Please do not respood.
>
> Susan Briggeman bas ~ that you receive this restoration information
> for Track &; Confirm as listed below.
>
> Current Track &:. Confirm e-mail1nfoanation provided by the U.S. Posaal
> Service.
>
> Label~~:7009J410000038137048
>
> Service Type: Certified Ma.i}ATII
>
> Shipment Activity Location Date &; Time
>>----------------------------------------..---------------
> Delivered DALLAS TX 75243 February 6.2013 3:01 pm
> Depert USPS Sort Facility DALLAS TX 75260 February 6, 2013
> Processed at USPS Origin Sort Facility DALLAS TX 75260 February 6,2013
> 2:11 am
> Dispatched to Sort Facility DALLAS TX 75240 Febrwny 5,2013 7:26 pm
> Acceptance DALLAS TX 75240 February 5,20134:09 pm
>
> USPS bas notverl.tied the: validity of 8Dy email addresses submitted via its
> online Track & Confirm root
>
> For more iDformatioo. or ifyou have additionnJ questioos on Track &
> Coofirm services and f.eaturcs, please visit the Frequently Asked Questions
> (FAQs) section of our Track &. Confirm tool at
> h«P:llwww.usps.comfshiP.PingJtmckandconfirmfaas.hkn.

http://us.mg205.maiLYahoo.comIdcIJauneh'l.gx=1&.rand=e20ihilbi4dej 5fl7fl013
 •
017-266141-13
..

EXHIBIT "7"
 017-266141-13

COUN1Y CLERK
100W8stWealJerford FortWofth. TX 76196-0401
PHONE (811) 884-1195

PANINA INC D8A1JA CONSTRUCTION SERVICES
5421 ALPHA RD STE 100
DALLAS. TX 75240

Subtnftter. PANINA .NC OBA/JA
cONSTRUcnoNs~ces

DO NOr DES TRQy'
JtUiBNING .. THIS IS PART OF THe OffiCIAL RECRRD~
Filed For Reglstralkwl: 212112013 1:37 PM
Instn.lment'l: 0213044e64
~F a PGS $20.00

0213044664

At(( PROVISION WilCH
RESTRICTS THE 8AlE. RENTAl OR USE OF THE DESCRIBED REAL PROPERTY
BECAUSe OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAl LAW.

PrepaJ'8d by: MGSALAZAR
 017-266141-13

"My nmne is Smaa L Brfgmtao. ad I am the Pmident and Regfsta'ed Agent of
P..... 1De. .... JA c...tradioa Senfca (CWm••t) which has a pbysic:aJ IIDd
maiUog addIas of5421 Alpha Rd.t BtL 180, J)aIIa TX 75l4O.1 am c:ompetcnt and
autbmlzed to make this aftidaviL I haw perIODId JmowJedge of the facts set forth below.
and they arc true aDd corm:t.

-"ursumt to c:ontracts by and ~ C1aimaut and Heather Village LLC which
hat. last known mailing address of 12815 SE Rivenaea Dr. Vaacouvcr, WA
98683-6623 and Sungate Manugenem, Inc. 9,SSO Skillman ~ !te. 2] 0, DaIJaJ
. _-_.
TX 75243. Claimant pa{oJ:med labor and :fumisbed materials for improvemmtts
to the following described real JtiOP"2ty (the Property):

Baa RatOD I'.ut Blk.l Lo.l

"The Jabor performed and materials 1\r.misbed may be genemUy describai as
wood replacement and painting commenclog in October,2012.

1'Iae owaer or RpUftd 0WDeI' of tile Prvpeny It:
Headier VDLrp, LLC IoaIted .t 12815 SE Rivererat pro VUlCCHlVer,
WA 98QJ3-66l3

ff}'o date, CJahnant bas fully pe;rfOrm:d all work required UDder its COIJfraCS3 with Heather
Village, LLC. Aftao allowing au just ~ts and offsets, the lID1ODD1 0( $5l,2ODM
remains unpaid aDd is due aDd owing to Claimant under said eontract aDd C1aimaot
claims a stamtory lieu on the Ploperty and the improvements located on the PJopcrty to
8CCIDe the payment oftbe abtj G; A 1A?
~ ;81 ( 3 u:;.. Jf7"
NAMES Of PARTIES ATTORNEYS JAfz;Jr/tlp (= 4iu(14 ~.o;13~ ,
Date Filed
OS/29/2013
PANINA, INC ET AL i
1

KNOUSE, JOHN P
16970 N DALLAS PKWY BLDG,' 300
:
1

1'0/20/ /J, p. . . /o!q 114 tl,0l.~
h,~ j ~~J1?fJ://>D 6r~/6~
If(%(. 1/JIi I '
q '/ ff~ ;f~;~ /Ol.t
1 1
Jury 1- DALLAS, TX 75248 1
Fee $ vs. 1 BarID: 11624000TX Ph (972) 380-1188 PLTF I ~~~ ~ /Y~ • " I~
1 LAW OFFICE OF JOHN P KNOUSE I;') f7t 15" ~ p'" ,/ pI, S- ~ g.. 1~f0 ~
I r' ~~~,. (lh-col44@J4 r
By 161 lEST. /?£--:J.q :../+ i~ ~ ~{;I Z~'- t*1a t I auz'?I;(h
r-------------------------~ ~A.~LDER 1
DlSTRICTI~~ 1
Date of Orders
~~g! - Was Steno Used?
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 prnttrim337281
TARRANT COUNTY DISTRICT CLERK'S OFFICE page: 1
ALL IMAGED TRANSACTIONS FOR A CASE Date: 12/29/2014
Time: 13:42
Cause Number: 017-266141-13 Date Filed: OS/29/2013
PANINA, INC ET AL v HEATHER VILLAGE, LLC ET AL
s
Cause of Action: CONTRACT, DEBT/CONTRACT
Case Status .... : PENDING
Filemark Description Fee Total
OS/29/2013 PLTF ORIG PETITION NI 249.00
OS/29/2013 Citation-ISSUED ON HEATHER VILLAGE LLC-On NUl 8.00
08/09/2013 Citation Tr# 3 RET EXEC(HEATHER VILLAGE LLC) on 07 I 0.00
08/12/2013 DEFN'S ORIG ANSWER & COUNTER CLAIM I 0.00
08/16/2013 *ORDER SETTING SCHED CONF 9/18/13 3PM* 1M 0.00
09/06/2013 LETTER (W/ORDER) I 0.00
09/09/2013 *AGREED DOCKET CONTROL ORDER TRIAL 4/28/14* 1M 0.00
02/12/2014 *ORDER RE: TRIAL SETTING ON 4/28/14* 1M 0.00
04/03/2014 UNOPPOSED JOINT MOT FOR CONTINUANCE-NEED NEW ORDER I 0.00
04/08/2014 LTR RE: PROPOSED ORDER ON UNOPPOSED JT MOT/CONT I 0.00
04/08/2014 (PROPOSED) ORDER ON UNOPPOSED JT MOT FOR CONT I 0.00
04/15/2014 MOT TO COMPEL-SET 5/2/14 @ 2PM NOT 4/16/14 I 0.00
04/15/2014 (PROPOSED) ORDER GRANTING MOT TO COMPEL I 0.00
04/22/2014 NOT OF HRG 4/24/14 @ 2PM-MOT FOR CONTINUANCE I 0.00
04/23/2014 LTR RE: HRG SET 5/2/14 2PM MOT TO COMPEL-NEED I 0.00
04/23/2014 LTR RE: PROPOSED ORDER ON AGRD UNOPPOSED JT MOT I 0.00
04/23/2014 LTR RE: ORDER ON AGRD UNOPPOSED JOINT MOT FOR CONT I 0.00
04/23/2014 *ORDER ON AGRD UNOPPOSED MTN FOR CONT-TRL 10/20/14 1M 0.00
07/31/2014 *ORDER RE: TRIAL ON 10/20/14* 1M 0.00
09/11/2014 MOT FOR WITHDRAWAL OF COUNSEL I 0.00
09/19/2014 (PROPSOED) ORDER GRANTING WiD OF COUNSEL I 0.00
09/19/2014 PLTF & CDEF'S NO EVIDENCE MSJ I 0.00
09/19/2014 COVER LTR TO MSJ I 0.00
09/26/2014 PLTFS TRAD MOT FOR SUMM/JUDGMENT I 0.00
09/26/2014 LTR RE: PLTS MOT FOR TRAD SUMM/JUDGMNT I 0.00
09/26/2014 LTR RE: PLTFS MOT FOR TRAD S/JDGMNT SET HRG I 0.00
09/30/2014 DEFN'S MTN FOR CONT I 0.00
09/30/2014 PLTF AND COUNTER-DEFNS FIRST AGRD MTN FOR CONT I 0.00
09/30/2014 LTR RE: PLTF AND CO-DEFNS FIRST AGRD MTN FOR CONT I 0.00
09/30/2014 LTR RE: PLTF AND CO-DEFNS FIRST AGRD MTN FOR CONT I 0.00
10/03/2014 LTR RE: PROPOSED AGRD ORDER I 0.00
10/03/2014 (PROPOSED) ORDR GRANTING AGRD MOTION FOR CONT OF I 0.00
10/03/2014 LTR RE: FAXED PLTFS AND CO-DEFNS LIST OF PROPOSED I 0.00
10/03/2014 PLTFS AND CO-DEFNS LIST OF PROPOSED WITNESSES AND I 0.00
10/10/2014 COVER LTR I 0.00
10/10/2014 (PROPOSED) AGD ORD GRANTING MTNS FOR CONT OF I 0.00
10/13/2014 **AGRD ORDER GRANTING AGRD MTNS FOR CONTINUANCE OF 1M 0.00
10/20/2014 NOT OF HRG 11/14/14 @ 10AM-MSJ I 0.00
10/20/2014 COVER LTR I 0.00
11/05/2014 DEFN'S 1ST AMD ORIG ANS/COUNTERCLAIM I 0.00
11/07/2014 DEFN'S RESP TO PLTF'S TRADITIONAL MSJ I 0.00
11/07/2014 DEFN'S RESP TO PLTF'S NO-EVID MSJ I 0.00
11/07/2014 LTR FROM ATTY KNOUSE TO ATTY LANE ADDISON I 0.00
11/12/2014 PLTF'S EXCEPTIONS TO DEFN'S 1ST AMND ORIG ANS AND I 0.00
11/12/2014 CORRESPONDENCE LTR FROM ATTY KNOUSE TO ATTY ADDISO I 0.00
11/12/2014 LTR FROM ATTY KNOUSE TO THE COURT I 0.00
11/12/2014 PLTF'S OBJ/REPLY TO DEFN'S RESP TO PLTF'S MTN FOR I 0.00
11/12/2014 LTR FROM ATTY KNOUSE TO ATTY R LANE ADDISON I 0.00
11/12/2014 LTR FROM ATTY KNOUSE TO THE COURT I 0.00
11/14/2014 LTR FROM ATTY KNOUSE TO THE COURT I 0.00
11/14/2014 ORD GRANT PLTF'S EXCEPT TO DEFN/COUNTER-PLTF'S I 0.00
page 1
 prnttrim337281
TARRANT COUNTY DISTRICT CLERK'S OFFICE page: 2
ALL IMAGED TRANSACTIONS FOR A CASE Date: 12/29/2014
Time: 13:42
cause Number: 017-266141-13 Date Filed: OS/29/2013
PANINA, INC ET AL v HEATHER VILLAGE, LLC ET AL
s
Cause of Action: CONTRACT, DEBT/CONTRACT
Case Status .... : PENDING
Filemark Description Fee Total
11/14/2014 DEPUTY REPORTER STATEMENT (CAROLIN PEEK) I 0.00
11/17/2014 PLTF'S SUPPL BRIEF ON TRCP RULE 193.6(A) PROVIDING I 0.00
11/17/2014 LTR FROM JOHN P KNOUSE TO MR LANE ADDISON I 0.00
11/17/2014 LTR FROM ATTY KNOUSE TO THE COURT I 0.00
11/19/2014 * ORD DENYING PLTF'S MTN FOR SUMMARY JUDGMENT * 1M 0.00
11/19/2014 * ORD DENYING PLTF'S MTN FOR NO EVID SUMM JDG * 1M 0.00
11/25/2014 * ORDER REGARDING TRIAL SETTING ON 02/09/15 1M 0.00
Total Number of Records Printed: 58
-'i'-

page 2
 EXHIBIT "M"
CERTIFIED COPIES OF ORDERS DENYING PLAINTIFF'S
MOTION FOR TRADITIONAL SUMMARY JUDGMENT AND
PLAINTIFF'S "NO EVIDENCE" MOTION FOR SUMMARY
JUDGMENT
 A CERTIFIEP_CprV /'
A11'EST: IfL «:i. - _
(I
THOMAS A. WILDER
DISTRICT CLERK
TAR~,
COUN ,'~~fh-L
By:~/K2LlLUL
DE
NO. 17-266141-13

PANINA, INC. DIB!A JA § IN THE DISTRICT COURT
CONSTRUCTION SERVICES §
Plaintiff, §
§
V. § 17THJUDICIALDISTRICT
§
HEATHER VILLAGE, LLC DIB!A THE §
HEATHER VILLAGE APT §
Defendant. § OF TARRANT COUNTY, TEXAS

ORDER DENYING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

On November 14, 2014, the Court considered the PLAINTIFF'S TRADITIONAL

MOTION FOR SUMMARY JUDGMENT, and the response thereto, and after reviewing the

evidence and hearing the arguments, the Court finds that the Motion should be DENIED.

IT IS THEREFORE ORDERED that the Motion for Summary Judgment is denied and

this cause shall proceed to trial.
/
SIGNED on NO"U"hul~'20~v~
JUD ING

Court's Mlnutal 10 II
Transaction # _....,;J......'-r
____

·s
....: , . E-MAILED
!I-eZO-(~
 NO. 17-266141-13

PANINA, INC. D/B/A JA § IN THE DISTRICT COURT
CONSTRUCTION SERVICES §
Plaintiff, §
§
V. § 17TH JUDICIAL DISTRICT
§
HEATHER VILLAGE, LLC D/B/A THE §
HEATHER VILLAGE APT §
Defendant. § OF TARRANT COUNTY, TEXAS

ORDER DENYING
PLAINTIFF'S MOTION FOR
NO EVIDENCE SUMMARY JUDGMENT

On November 14, 2014, the Court considered the PLAINTIFF'S MOTION FOR NO

EVIDENCE SUMMARY JUDGMENT, and after reviewing the evidence and hearing the

arguments, the Court finds that the Motion should be DENIED.

IT IS THEREFORE ORDERED that the Motion for No Evidence Summary Judgment is

denied and this cause shall proceed to trial.

SIGNED on NOV"f1!6rd'tlO~~

JUD E ING

Court's Mlnutal
::.;Uisaction # /0.'b

E-MAILED
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