Pierre Investments, Inc. v. David Corona D/B/A Corona and Son Construction

ACCEPTED
05-14-00896
FIFTH COURT OF APPEALS
DALLAS, TEXAS
2/26/2015 3:48:03 PM
LISA MATZ
CLERK

5th Court of Appeals
FILED: 2/26/15
Lisa Matz, Clerk
Case No. 05-14-00896-CV

IN THE FIFTH RECEIVED IN
5th COURT OF APPEALS
DALLAS, TEXAS
COURT OF APPEALS FOR 2/26/2015 3:48:03 PM
LISA MATZ
Clerk
THE STATE OF TEXAS

PIERRE INVESTMENTS, INC.

v.
DAVID CORONA d/b/a CORONA AND SON
CONSTRUCTION

On Appeal From The 162th District Court of
Dallas County Texas

AMENDED BRIEF OF APPELLANT

Walter F. Musgrove III
State Bar No. 24075514
PO Box 132274
Dallas, Texas 75313
(972)900-3116 Office
(972) 364-1235 FAX
walter@musgrovelawfirm.com

ATTORNEY FOR APPELLANT

ORAL ARGUMENT REQUESTED

0
 IDENTITY OF PARTIES AND COUNSEL

APPELLANT/PLAINTIFF

Pierre Investments, Inc.

COUNSEL FOR APPELLANT

Walter F. Musgrove III
State Bar No. 24075514
PO Box 132274
Dallas, Texas 75313
972-900-3116 (O)
972-364-1235 (F)
walter@musgrovelawfirm.com

APPELLEE/DEFENDANT

David Corona d/b/a Corona and Son Construction

COUNSEL FOR APPELLEE

Lyndon Laird
Whitaker Chalk Swindle & Schwartz PLLC
301 Commerce Street
Suite 3500
Fort Worth, Texas 76102-4135
817-878-0507 (o)
817-878-0501 (f)
llaird@whitakerchalk.com

1
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL……………………….………….iii

INDEX OF AUTHORITIES…………………………………………...…….v-vi

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

ISSUE PRESENTED…………………………………………..………………….2

STATEMENT REGARDING ORAL ARGUMENT………………………….2

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

STANDARD OF REVIEW……....………….……………..…………………..2-3

ARGUMENT……………………………………………..……………………3-7

CONCLUSION AND PRAYER………………………………………………...8

CERTIFICATE OF SERVICE…………………………………………………8

APPENDIX:

A. CORRECTED FINAL JUDGMENT

B. PLAINTIFF’S FIRST AMENDED PETITION

C. IMPROVED PROPERTY CONTRACT (Plaintiff’s exhibit 10)

D. GEHARD LUXURY HOMES – FORM AGREEMENT BETWEEN

OWNER AND CONTRACTOR (Plaintiff’s exhibit 11)

E. Termination Letters/Notice of Buyers Termination of Contract

(Plaintiff’s exhibit 15)

F. Excerpt from Mr. Ken Gazian’s trial testimony

2
 INDEX OF AUTHORITIES

CASES

Air Conditioning v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422, 425
(1952)……………………………………………………………………………….7

Basin Operating Co. v. Valley Steel Prods. Co., 620 S.W.2d 773, 776 (Tex. Civ.
App.—Dallas 1981, writ ref’d n.r.e.)…………………………………………..…15

Bayer Corp. v. DX Terminals, Ltd., 214 S.W.3d 586 (Tex. App.-Houston 2006)
………………………………………………………………………………....11-12

Chas M. Cain v. Salvatore Fontana d/b/a Fontana’s Café, 423 S.W.2d 134
(Tex.Civ.App.—San Antonio 1967)……………………………………..………………15

Cliff’s Drilling Co., v. Burrows, 930 S.W.2d 709, 712 (Tex.App.—Houston [1st
Dist.] 1996, no writ.)…………………………………………….…….…….….....7

Cline v. Insurance Exchange of Houston, 154 S.W.2d 491, 493 (Civ. App.—
Galveston 1941), aff’d, 140 Tex. 175, 166 S.W.2d 677 (1943)………..………......6

Coca-Cola Bottling Co. v. Burgess, 195 S.W.2d 379, 381 (Civ.App.-Fort Worth
1946, ref. n.r.e.)………………….……………………………….…………….…..7

Comiskey v. FH Partners, LLC, 373 S.W.3d 620 (Tex. App.-Houston [14 Dist.]
2012)…………………………………………………..……………………………7

Freeman v. Greenbriar Homes, Inc. 715 S.W.2d 394, 395 (Tex.App.-Dallas 1986,
ref. n.r.e)……………………………………….……………………………...…7, 9

George Deutsch v. Hoover, Bax & Slovacek, LP, (Tex. App.-Houston [14th Dist.]
2002)………………………………………………………………………………..8

Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985)…………16

Mangham v. Hall, 564 S.W.2d 465 (Tex. Civ. App. 1978)………………………...15

3
Meridien Hotels, Inc. v. LHO Financing Partnership I, L.P., 255 S.W.3d 807 (Tex.

App.-Dallas 2008)…………………………….…………………………………...15

M.N. Dannenbaum v. Brummerhop, 840 S.W.2d 624 (Tex. App.-Hous. [14 Dist.]
1992)……………………………………………………………………...……12-14

Murphy v. Fannin County Elec. Co-op, Inc., 957 S.W.2d 900, 903 (Tex. App.—
Texarkana 1997, no pet.)………………………………………...…………....…..15

Porterfield v. Brinegar, 719 S.W.2d 558, 560 (Tex. 1986)…………………......….7

Prudential Insurance Company of America v. Financial Review Services, Inc., 29
S.W.3d 74 (Tex. 2000)…………………………………….…………….……….8-9

Thomas v. Olympus/Nelson Property Management, 148 S.W.3d 395 (Tex. App.-
Houston [14 Dist.] 2004)………………………………...………………….…..…8

White v. Southwestern Bell Telephone Company, Inc., 651 S.W.2d 260 (Tex. 1983)
…………...…………………………………………………………………………7

Wilen v. Falkenstein, 191 S.W.3d 791 (Tex. App.-Fort Worth 2006)….……….14

Wilson & Wilson Tax Services, Inc. v. Mohammed, 131 S.W.3d 231 (Tex. App.-
Houston [14 Dist.] 2004)……………………………………………………….... 8

Yorkshire Insurance Co., Ltd. v. Seger, 279 S.W.3d 755 (Tex. App.-Amarillo
2007)……………………………………………………………………………..…8

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______________________________________________________________________________

APPELLANT’S BRIEF
__________________________________________________________________

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Appellant, Pierre Investments, Inc., and files this Appellant’s

Brief and would respectfully show:

Statement of the Case

Nature of Case
Appellant who owned two residential lots on which it had
contracts to sell the lots and build custom homes sued Appellee
for trespass to real property, tortious interference with
plaintiff’s business contracts, and tortious interference with
prospective business relations after Appellee dumped debris on
the two lots which resulted in the loss of both the contracts the
Appellant had entered. (RR Vol. 002, 72-73 and 75-771) (CR
30-34)

Trial Court

162nd Judicial District Court

Trial Court’s Disposition

Ruled as a matter of law that the Defendant trespassed onto
Plaintiff’s property but Plaintiff failed to establish a casual
connection between said trespass and claimed damages loss of a
land sale contract and construction contract. (CR. 90-91)

Statement Regarding Oral Argument

1
References to the Report’s Record will be made by (RR Vol.__, ___) showing the volume and page number.
References to the Clerk’s Record will be made by (CR __) showing page number.
5
 Pursuant to Texas Rules of Appellate Procedure 39.1, Appellant requests

oral argument and submits that it would materially aid the decisional process in

this case since the lower court’s ruling is clearly contrary to Texas case law.

Statement of Facts

On or about October 28, 2010, Appellee intentionally dumped multiple

truckloads of construction debris upon Appellant’s residential building lot located at

2000 St. Pierre Drive, Carrolton, Texas 75006. (RR Vol. 002, 79-81). As a result of

the dumping, the Appellant’s client, who had contracted to purchase the lots and

construct two custom homes, cancelled all contracts after discovering construction

debris had been dumped on the lots. (RR Vol. 002, 82-83; RR.007-Part A, 38-40; Pl.

Ex. 15). The Appellant’s client cancelled the contracts under a contractual provision,

promulgated by the Texas Real Estate Commission, stating and promising that the

lots were clean from any legal encumbrances and ready to build. (RR Vol. 007-Part

A, 20-29; Pl. Ex. 10)

Issue Presented

Was it proper for the trial court to direct verdict on Appellant’s claims for lost

profits resulting from the cancelled real estate sale and construction contracts?

Standard of Review

To instruct a verdict or to dismiss a jury and render judgment the court must

find that movant is entitled to judgment as a matter of law. Cline v. Insurance

Exchange of Houston, 154 S.W.2d 491, 493 (Civ. App.—Galveston 1941), aff’d,

6
140 Tex. 175, 166 S.W.2d 677 (1943); Coca-Cola Bottling Co. v. Burgess, 195

S.W.2d 379, 381 (Civ.App.-Fort Worth 1946, ref. n.r.e.).

An instructed verdict is proper only when the evidence is such that no other

verdict should be rendered. Thus, if there is any conflicting evidence in the record,

a determination of the issue is for the jury. See Air Conditioning v. Harrison-Wilson-

Pearson, 151 Tex. 635, 253 S.W.2d 422, 425 (1952); Porterfield v. Brinegar, 719

S.W.2d 558, 560 (Tex. 1986). The reviewing court’s task on appeal is to determine

whether the record, regarded in the light most favorable to the losing party, contains

any probative evidence to raise material fact issues in the case. Freeman v.

Greenbriar Homes, Inc. 715 S.W.2d 394, 395 (Tex.App.-Dallas 1986, ref. n.r.e);

Cliff’s Drilling Co., v. Burrows, 930 S.W.2d 709, 712 (Tex.App.—Houston [1st

Dist.] 1996, no writ.).

Argument

I. The Court’s Directed Verdict was Inappropriate

Texas courts have routinely held that where conflicting evidence exists, a

directed verdict is not proper. See White v. Southwestern Bell Telephone Company,

Inc., 651 S.W.2d 260 (Tex. 1983) (holding that the trial court erred in granting a

directed verdict since there was conflicting evidence as to Appellant’s loss in net

profits); Comiskey v. FH Partners, LLC, 373 S.W.3d 620 (Tex. App.-Houston [14

Dist.] 2012) (holding that the trial court erred by granting a directed verdict on
7
Appellant’s waiver claim); Yorkshire Insurance Co., Ltd. v. Seger, 279 S.W.3d 755

(Tex. App.-Amarillo 2007) (holding that the trial court erred in granting a directed

verdict on the issue of oppression and civil conspiracy); Thomas v. Olympus/Nelson

Property Management, 148 S.W.3d 395 (Tex. App.-Houston [14 Dist.] 2004)

(holding that a directed verdict was erroneous as to appellant’s wrongful-eviction

claim); Wilson & Wilson Tax Services, Inc. v. Mohammed, 131 S.W.3d 231 (Tex.

App.-Houston [14 Dist.] 2004) (holding that the trial court erred by granting a

directed verdict since there was a fact issue concerning the validity of a promissory

note); George Deutsch v. Hoover, Bax & Slovacek, LP, 97 S.W.3d 179 (Tex. App.-

Houston [14th Dist.] 2002) (holding that a directed verdict was improper as to

Appellant’s claim for fee forfeiture based on alleged breaches of fiduciary duty).

Specifically, with regard to granting a directed verdict for tortious interference

with a contract, in Prudential Insurance Company of America v. Financial Review

Services, Inc., 29 S.W.3d 74 (Tex. 2000), the Texas Supreme Court ruled that the

trial court erred by granting a directed verdict in favor of defendant Prudential.

Prudential Insurance Company of America, 29 S.W.3d at 83. The Court affirmed

the appellate court’s decision to remand the case to the trial court for a jury

determination on the issue of contract interference. Id. at 77. Specifically, the Court

found that there was inconclusive evidence regarding the defendant’s justification

defense against tortious interference. Id. at 76. Plaintiff Financial Review Services

argued that Prudential interfered with its contracts as a result of Prudential

8
dismissing Financial Review Service’s medical claims against Prudential’s

policyholders and a resulting back-billing of claims. Id. The evidence established

that Prudential’s argument that Financial Review Services is merely an agent of the

parties with whom FRS lost its contracts was without merit. Id. at 78-80. Secondly,

Prudential’s defense of justification for its interference was denied by the Court since

Financial Review Services presented evidence which established that Prudential

falsely accused it of double billing and pressured another party to the contract to stop

using Financial Review Services. Id. at 80-82.

Here, similar to Prudential Insurance Company of America, the lower court

also erred in granting Appellee’s directed verdict based on conflicting evidence.

(CR. 90-91). The testimony of the Appellant’s representative, Ken Gazian, and it

client, Inna Geyvandova, clearly established that the trespass and subsequent illegal

dumping on Appellant’s property preceded and caused the cancellation of the

contracts. (RR. Vol.003, 148-149). Any confusion or conflicting testimony

concerning the exact date of the dumping, or whether the dumping preceded

cancellation of the contracts, should be resolved in Appellant’s favor since he is the

losing party in this case. See Freeman, 715 S.W.2d at 394. In the instant case, there

is no other evidence that diminishes Appellant’s claim that Appellee’s trespass and

illegal dumping resulted in the termination of the contracts with its client Inna

Geyvandova.

9
 The lower court ignored the conflicting evidence in the record and rendered a

decision in lieu of a jury determination. The Court erred by ignoring voluminous

testimony establishing that the dumping preceded the cancellation of the contracts.

(RR Vol. 002, 72-73, 75-77, 82-83; RR. Vol.003, 148-149; RR.007-Part A, 38-40;

Pl. Ex. 15). Specifically, Inna Geyvandova testified that she cancelled her contract

with the Appellant based solely on the Appellee’s illegal dumping onto Appellant’s

lot. (RR. Vol.003, 148-149, 181). Inna Geyvandova testified:

“I didn't -- I didn't wanna think about it anymore. I was
done. When I saw those dumpings, I was done, I was out.
I wanted out of this project. I didn't wanna deal with it
anymore. I didn't trust the project anymore.”2

Further, two letters from Inna Geyvandova, which were presented during trial,

clearly indicate that the Appellee’s trespass occurred before the contract was

terminated. These letters specifically state as follows:

“…I am letting you or anyone in your firm know that our
contract dated October 1, 2010, pertaining to properties
located at 2000 and 2004 St. Pierre in Carrollton, was
terminated due to unexpected dumping activities
discovered upon my last visit to the site.”3

The subsequent letter states as follows:

“…where I discovered several piles of unknown materials
being dumped onto the site by construction trucks…I
didn’t have time nor could I afford the continuous cleanup
disputes, environmental charges or assessments, and

2
(RR. Vol. 003, 181)
3
(RR.007-Part A, 39; Pl. Ex. 15).
10
 therefore, I decided to walk away from purchasing any of
these properties and/or continue on with my anticipated
construction project.”4
Lastly, The Notice of Buyer’s Termination of Contract which was also presented

during the trial also indicates the reason Ms. Geyvandova terminated the contract

was the “unexpected dumping activity.” (RR.007-Part A, 38; Pl. Ex. 15).

In Bayer Corp. v. DX Terminals, Ltd., 214 S.W.3d 586 (Tex. App.-Houston

2006), the lower court denied defendant Bayer’s request for a directed verdict on the

basis that the evidence did not conclusively demonstrate that DX’s breach

substantially impaired the value of the whole contract and thereby justified Bayer’s

subsequent cancellation. Id. at 594. The evidence presented by Bayer during trial

failed to conclusively establish its assertion. Specifically, Bayer presented evidence

that DX failed to take the required minimum caustic soda supply as outlined in their

agreement. Id. at 595. Bayer also provided witness testimony alleging that Bayer

was not a regular supplier of caustic soda and the oversupply of caustic soda in its

inventory, due to DX’s failure to take the minimum, could have closed production

at Bayer’s entire facility. Id. However, DX established that Bayer had not objected

to previous failures to take the monthly caustic soda minimum. Id. at 596. Next, DX

presented totals taken from the alleged four month breach and said totals showed

that DX’s failure to take the monthly minimum only represented a mere three percent

of the target monthly minimum over the life of the contract. Id. at 596. Therefore,

4
(RR.007-Part A, 40; Pl. Ex. 15).
11
conflicting evidence existed as to Bayer’s claim that DX’s breach substantially

impaired the value of the whole contract and thereby justified Bayer’s subsequent

cancellation. Accordingly, the appellate court affirmed the lower court’s holding

which denied Bayer’s request for a directed verdict.

Here, similar to Bayer Corp., the evidence of record clearly demonstrates that

Inna Geyvandova cancelled her contract with Appellant solely because of

Appellant’s illegal dumping onto Appellant’s lot. (RR. Vol.003, 148-149, 181).

Therefore, conflicting evidence existed as to whether Geyvandova cancelled her

contract with Appellant due to Appellee’s actions and accordingly, the lower court’s

directed verdict was inappropriate.

In M.N. Dannenbaum v. Brummerhop, 840 S.W.2d 624 (Tex. App.-Hous. [14

Dist.] 1992), the appellate court affirmed the lower court’s directed verdict in favor

of defendant Brummerhop on the claim of tortious interference. M.N. Dannenbaum,

840 S.W.2d at 630. To prove a claim for tortious interference, one must establish

that there was a contract subject to interference, the act of interference was willful

and intentional, such intentional act was a proximate cause of plaintiff’s damage,

and actual damage or loss. Id. at 630 (citing Juliette Fowler Homes, Inc. v. Welch

Assoc., Inc., 793 S.W.2d 660, 664 (Tex. 1990). In M.N. Dannenbaum, evidence

showed that a valid contract existed between Dannenbaum and Gestra and that after

resigning from Dannenbaum, defendant Brummerhop solicited the Gestra contract.

Id. As a result, Gestra terminated its contract with plaintiff Dannenbaum and entered

12
into a contract with Brummerhop. Id. However, the appellate court affirmed the

lower court’s directed verdict in favor of defendant Brummerhop since Gestra had

the right under its contract to terminate its relationship with Dannenbaum and

Brummerhop had the right to persuade Gestra to exercise this right. Id.

Here, unlike the defendant in M.N. Dannenbaum, the Appellee in the instant

case did not rightfully persuade Inna Geyvandova to exercise her right to terminate

her contracts with Appellant. Rather, the Appellee willfully and intentionally

interfered with Appellant’s contract with Inna Geyvandova by illegally dumping

construction debris onto Appellant’s lot without permission from the Appellant.

Appellee’s act was the proximate and sole cause of Appellant’s damage as testified

to by Ken Gazian and Inna Geyvandova since there was no evidence of any other

cause of Ms. Geyvandova’s cancellation of the contract. (RR. Vol.003, 181).

Specifically, Inna Geyvandova testified the trespass was the sole reason she

terminated the contract. (R.3 at 148-49, 155).

Lastly, Appellant suffered a loss of two contracts with its client—Inna

Geyvandova. (RR. Vol.002, 91-93). When asked on direct examination if he had

damages as a result of the trespass, the Appellant testified:

“I lost two my contracts for sale of the lots. I lost my two

contracts to build two homes. I paid extra 10 percent on

13
 the city liens that they assessed the properties. I paid taxes.

I paid homeowners association dues…”5

Therefore, the instant case is distinguishable from M.N. Dannenbaum where the

appellate court affirmed the lower court’s directed verdict. In the case at hand, the

evidence shows that there is conflicting evidence in the record and that a directed

verdict was improper. In fact, there was no evidence presented by the Appellee that

the Appellant did not suffer any damages as a result of the trespass.

II. Appellant is Entitled to Damages for Trespass

To recover damages for trespass to real property, a plaintiff must prove that

1) the plaintiff owns or has a lawful right to possess real property, 2) the defendant

entered the plaintiff's land and the entry was physical, intentional, and voluntary,

and 3) the defendant's trespass caused injury to the plaintiff. Wilen v. Falkenstein,

191 S.W.3d 791, 798 (Tex. App.-Fort Worth 2006). Trespass requires only proof of

interference with the right of possession of real property and the only relevant intent

is that of the actor to enter the property. Id. The actor's awareness of the property's

ownership is irrelevant. Id.

Recovery of actual damages in trespass for temporary injury is limited to the

amount necessary to place plaintiff in the position it would have been in but for the

trespass, including cost of restoration or repair of the land to its former condition,

5
(RR. Vol.002, 91).

14
loss of use of the land, and loss of expected profits from use of land. Meridien Hotels,

Inc. v. LHO Financing Partnership I, L.P., 255 S.W.3d 807, 821 (Tex. App.-Dallas

2008). See also Mangham v. Hall, 564 S.W.2d 465, 468 (Tex. Civ. App. 1978).

Texas courts allow an owner of property to recover for lost profit due to unauthorized

dumping. In Chas M. Cain v. Salvatore Fontana d/b/a Fontana’s Café, 423 S.W.2d

134 (Tex.Civ.App.—San Antonio 1967), the court upheld a judgment for lost profits

suffered as a result of the defendant’s trespass. The defendant dumped debris in the

parking lot of the plaintiff’s café which resulted in the plaintiff losing profit.

Similar to the plaintiff in Cain, in the present case, the Appellant testified that

he also lost the profit he expected to make from the sale of the land on which the

appellee trespassed. (RR. Vol.002, 91). Further, similar to the plaintiff in Cain, the

Appellant also testified that he lost profit he expected to make from the construction

of two custom homes he planned to build on the land on which the appellee

trespassed. (RR. Vol.002, 92-93).

New Trial Should be Granted in the Interest of Justice and Fairness

If a finding is against the great weight and preponderance of the evidence, the

inquiry is whether the finding is so contrary to the overwhelming weight of all

relevant evidence as to be clearly wrong and unjust.” Murphy v. Fannin County Elec.

Co-op, Inc., 957 S.W.2d 900, 903 (Tex. App.—Texarkana 1997, no pet.). A new

trial is the proper remedy when the findings are contrary to the great weight and

preponderance of the evidence, but supported by some evidence. Basin Operating

15
Co. v. Valley Steel Prods. Co., 620 S.W.2d 773, 776 (Tex. Civ. App.—Dallas 1981,

writ ref’d n.r.e.). Clearly in this case there was evidence presented which lead the

Court to rule that there was a trespass by Appellee onto Appellant’s property. (CR

90-91). There was also testimony that the trespass occurred before the cancellation

of the contract that formed the basis of the Appellant’s damages. (RR Vol. 002, 72-

73, 75-77, 82-83; RR. Vol.003, 148-149; RR.007-Part A, 39; Pl. Ex. 16; RR.007-

Part A, 40; Pl. Ex. 16).

The trial court has broad discretion to order a new trial “in the interest of

justice.” Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985). To

not grant the new trial would be unfair and unjust as it would completely disregard

the evidence and testimony that was presented which creates fact issues for the jury

and that also supported the Appellant’s claims for trespass and damages.

WHEREFORE, Appellant respectfully requests that it’s Motion for New Trial

be GRANTED.

Conclusion and Prayer

For all the reasons cited herein, the Appellant requests that this Court hold

that:

1. The trial court erred as a matter of law in issuing a directed verdict when

there was conflicting evidence on whether the trespass was the proximate

cause of damages.

16
 Respectfully submitted,

/s/Walter Musgrove
Walter F. Musgrove III
State Bar No. 24075514
PO Box 132274
Dallas, Texas 75313
(972)900-3116 Office
(972) 364-1235 FAX
walter@musgrovelawfirm.com

ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

This will certify that a true and correct copy of this pleading was served in via
facsimile and electronic mail on February 24, 2015 to:
Lyndon Laird
817-878-0501 (f)
llaird@whitakerchalk.com
Attorney for Appellee, David Corona d/b/a Corona and Son Construction

/s/Walter Musgrove_________
Walter Musgrove III

CERTIFICATE OF COMPLIANCE
This will certify that this pleading contains 3,447 words and is in compliance with
the Texas Rules of Appellate Procedure.
/s/Walter Musgrove_________
Walter Musgrove III

17
 )

.
I -

4.! \.-

CAUSE NO. DC 12-12422-I

Plaintiff §
\'. § 162 '“' JUDICIAL DISTRICT
' _ DAVID __(_,‘ORONA d/b/a CORONA _p _ p '" ‘ ' ‘
AND SON CONSTRUCTION i L L
Defendants § DALLAS COUNTY, TEXAS

CORRECTED FINAL JUDGMENT

On or about February 26, 2014. the above-referenced cause came on fer [rial and ajury

was properly impaneled. Afier considering the evidence presented during two days of testimony

Piaintiff failed lo establish a causal connection between said trespass and claimed damages for

loss ofa, land sale eontracl and construction contract.

IT IS THEREFORE OR|)l~I‘Rl~lI'), ADJUDGED AND DECREEIJ that Piainlill be

awarded $I.00 nominal damages for trespass and that Defendanfs Motion for Directed Verdict

regarding l"lain1ilTs claim for loss ofcontraet damages is herein is GRAN'l'l~Il). r

that_alI (_‘ou1:t Posts‘ are

taxed against l)efendanl. I

IT lS FURTI HER ORDERED, ADJUDGED AND DECREED that all relief not expressly

granted inThis Judgmenfis hereWdeme . —

En"fliE T§Tk" " i' "—_* i ’ "" ‘ yM;|;’|
90
 SIGNED on this the if day of 3 J lit! , 2014.

HONORABLE JUDGE PRESIDING I

c0Rrii:c'rEo FIl“\JXvI.._i-I-I_.l_IT(‘;l%’|l§i‘I_'1'_ R R
Hm“ Q PACE 2*
 FILED
D1 HLLAS COUNTY
2/6/2014 11222230 PM
GAR‘ i’ FITZSIMMONS
IIIISTRICT CLERK

CAUSE NO. 12-12422

PIERE INVESTMENTS, INC. § IN THE DISTRICT COURT
Plaintiff §
v. 162 JUDICIAL DISTRICT
§
DAVID CORONA d/b/a CORONA
AND SON CONSTRUCTION
§

Defendants § DALLAS COUNTY, TEXAS
PLAINTIFF ’S FIRST AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

PIERRE INVESTMENTS, lNC., Plaintiff complains of DAVID CORONA d/b/a

CORONA AND SON CONSTRUCTION, Defendant, and for cause of action shows:

l.
PIERRE INVESTMENTS, INC., Plaintiff is a corporation doing business in Dallas

County, Texas. DAVID CORONA dfb/a CORONA AND SON CONSTRUCTION,_Defendant is

an individual doing business in Dallas County, who may be served with citation at 156 Yale

Avenue. Lewisville, Texas 75057. Discovery is intended to be conducted under level 2 of the

Texas Rules of Civil Procedure.

2.
On or about November 3, 2010, at the time of the incident made the subject of this suit,

Plaintiff’s residential building lot located at 2000 St. Pierre Drive, Carrolton, Texas 75006 was

subjected to illegal dumping of construction debris by Defendant, or one of Defendant’s employees

acting in the course and scope of their employment. The Plaintiff does not contend that the

construction debris and/or dirt that was illegally dumped on the Plaintiff’s property was

contaminated. However, the Plaintiff does believe that if the constmction debris and dirt were not

30
 contaminated the Defendant most likely would have either stored the dirt on its development site

and/or sold the dirt.

3.
As a result of Defendant’s illegal and malicious act, Plaintiff has been damaged and

Plaintiff, as a foreseeable consequence of Defendant’s actions lost the sale of said lot and the

adjoining lot, together with a construction contract for the subject lot and the adjoining lot. Plaintiff

sues in a sum exceeding the minimal jurisdictional limits of this Court for this lost business

opportunity.

4.
Negligence Per Se
Defendant’s conduct constitutes negligence per se in that Defendant’s conduct was in

violation of one or more statutes or ordinances, including but not limited to, Chapter 365 of the

Texas Health and Safety Code. Defendant pled, “nocontest” to illegal dumping in case number

0013439, City of Carrollton vs. David Corona, and was assessed a $2,000.00 fine.

5.
Gross Negligence
Defendant’s conduct and that of its agents, servants or employees acting within the scope

of their employment constituted gross negligence in that Defendant’s actions in dumping

construction debris onto Plaintiff’s lot demonstrated an entire want of care that tends to show

Defendants conscious indifference to the welfare of Plaintiff. Defendant had both actual and

constructive knowledge that this lot did not belong to him and that dumping the construction debris

on Plaintiff’s property would constitute an extreme risk of harm and devaluation of Plaintiff’s

property.

31
 Tresspass to Real Property
Defendant’s conduct and that of its agents, servants or employees acting within the scope

of their employment constituted trespass to real property. The Plaintiff owned the land and the

Defendant entered the Plaintiff’s land intentionally and voluntarily. As a result of the trespass the

Plaintiff suffered actual damages.

7.
Tortious Interference with Plaintiff’s Business Contacts

Defendant’s conduct and that of its agents, servants or employees acting within the scope

of their employment constituted tortious interference with Plaintiff’s business contacts and

customers. At the time of the illegal dumping, there was a valid contract for the sell of the land

and signage regarding the owner of the land and the broker that was contracted to sale the land.

The Defendant willfully and intentionally interfered with the contract for the purchase of the land

which was a proximate cause of the actual damage and loss Of contract.

8.
Tortious Interference with Prospective Business Relations

Defendant’s conduct and that of its agents, servants or employees acting within the scope

of their employment constituted tortious interference with prospective business relations. At the

time of the illegal dumping, there was a probability that the Plaintifi" was going to enter into a

contract for the construction of a home with the buyer that purchased the land from the Plaintiff.

At the time the Defendant illegally dumped the dirt there were signs (broker for the sale of the land

and Pierre Investments) on the lots. By illegally dumping the construction debris on the Plaintiff’s

land, the Defendant intentionally interfered with the prospective business relationship and the

Defendant’s conduct (trespass to real property) was independently tortuous. The interference

caused the Plaintilf to lose the contract he had to sell the land and construct the house on the land.

32
 As a proximate result of the negligence, trespass, toitious interference with prospective

business relations, tortious interference with business relations tortuous and gross negligence of

Defendant, as more fully described above, Plaintiff’s sustained damages in an amount that exceeds

the jurisdictional minimum of the court for which Plaintiff sues.

Attorn ey’s Fees
For the foregoing reasons, Plaintiff is entitled to attorney’s fees and court costs pursuant to

Chapter 365 of the Texas Health and Safety Code.

Damages
As a direct result and proximate cause of Defendant’s conduct, Plaintiff has been damaged

as follows:

1. Loss of Unimproved Land Sale contract with Inna Gevandova - $76,000

2. Loss of Residential Construction contract with Inns Gevandova - $180,000

3. Interest paid to City of Carrollton liens after lost sale - $11,088

4. HOA dues after lost sale - $600

5. Taxes after lost sale - $732

WHEREFORE, Plaintiff prays that Defendant be cited to appear and answer and that, on

final trial, Plaintiff have the following:

1. Judgment against Defendant in a sum within the jurisdictional limits of this Court;

2. Prejudgment and post-judgment interest as provided by law;

3. Exemplary damages against Defendant in an amount to be determined by the trier of

fact;

4. Costs of suit;

5. Attorney’s Fees;

33
 6. Loss of land sale - $76,000.00 ($160,000 first contract which was lost contact minus

$84,000 current sale);

7. Loss of two construction contracts

8. HOA dues after lost sale

9. Interest on City of Cairollton liens after lost sale; and

10. Such other relief to which Plaintiff may be justly entitled.

Respectfully Submitted,
/s/Walter Musgrove
Walter F. Musgrove III
State Bar I.D. No. 24075514
Frank L. Hill
State Bar No. 09631500
PO Box 132274
Dallas, Texas 75202
(972)900-3116 Office
(972)364-1235 FM(
walter@musgrovelawfirm.com
ATTORNEYS FOR THE PLAINTIFF

Certificate of Service
This will certify that a true and correct copy of this pleading was served in conformance
with the Texas Rules of Civil Procedure on this 7"‘ day of February, 2014.

/s/Walter Musggove I11
Walter F. Musgrove III

34
I

1

. PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (TREC) O6-30-O8
l l°1M4.noinl-M:
UNIMPROVED PROPERTY CONTRACT y
NOTICE: Not For Use For Condominium Transactions
1. PARTIFR: The rties to this contract are 'i*i__u,i/gaiiivycg/il°,1'~i@. _(Seiler) l
and V\Ot si/an
eg _ deva- _ (Buyer). Seller agrees |
to sell and convey t Buyer and B uyer agrees to buy from Seller the Property de lned
~ below.
2.%%OPER;§;;lLot_l7R and igil _, Block A
W <3 E356-gllfl _, h of ” Addition, City or 1
g I , Countydgf‘ . _ _f l
Texas, known as_IflE /'0 (,T‘Q1‘i 733%
(address/zip code), or as described on attached exhibit together w thWe/1all rights, privileges and 1, g i
appurtenances pertaining thereto, including but not limited to: water ri hts, claims, permits,
strips and gores, easements , a n d cooperative or association memberships Fthe Probe )
3. SALES PRICE: ‘Zr; l
A. Cash portion of‘ Sales Price payable by Buyer at closing ................ .. $ '- '14’ "‘

Fr
(Qy, B. Sum of all financing described below (excluding any loan fundin I"" ."’ ‘ 2'”
I ‘T -

fee or mort age insurance premium) 9 . _ . 1I;?.,.-
/ ' .
T T W’ "
c. Sales Price ‘"3 Sum ofA and B) ......... ..IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIg "”""""""".'-- __,_i
_ _ _ jg :1/.1 III .
4. FINANCING: The portion of Sales Price not paya bl e In cash imil be paid . 0 lows.' (Check ’
plicabie boxes below)
E5’ A .THIRD PARTY FINANCING: One or more third party mortgage loans in the total amount of
(excluding any loan funding fee or mortgage insurance premium).
(1) Property Approval: Ii’ the Property does not satisfy the lenders‘ underwriting i
requirements for the loan(s), this contract will terminate and the earnest money will be
refunded to Eiuyer. -
(2), nancing Approval: (Check one box only) .
fi(a) This contract is subject to Buyer being approved for the financing described in the
U attached Third Party Financing Condition Addendum.
(b) This contract is not 5Lll3_]€Ct to Buyer being approved for financing and does not
involve FHA or VA financing
Cl B. ASSUMPTION: The assumption of the unpaid princl p al bala nce 0 f one or more promissory .
notes described
' in the attached TREC Loan Assum p tio n Ad dendum.
E1 C.SELLER FINANCING: A prornlsso ry note f ro m B uyer to Seller of $
secured by vendor's and deed of trust liens, and containing the terms and conditions
described in the attached TREC Seller Financing Addendum. if an owner policy of title
insurance is furnished,_ Buyer shall furnish Seller with a mort g a g ee p oi‘icyo F titi einsurance.
5.EARNEST MONEY: Upon execution of this rtrac‘ l.
3; l %D. Q0 as earnest m ne 'il'=2f§£rf:JE'Cs,¢? B UV er, shall d ‘CD025
with _ QQ78ci,é?’¢lC it . I Y
as crow agent, at :(.05“$'_8F€Ei'§<>Vi iQcf’E_F'£1J‘c:0, Z62 7563 9/'/¢.¢?»{@a 1*/'/[Z {Que
( address) . Bu% er shall deposit a ddit ional arnest morley of 5‘; —-—~I I I TWl‘ ti-i €scroT/v
I
agent within O days after the effective date of this contract. If Buyer fails to deposit the ‘
earnest money as required b y th'IS contract, Buyer will be in default.
6.TITLE POLICY AND SURVEY‘
A .T1TLE POLICY: Seller shall Furnish to Buyer at §XSeiier's ClBuyer's expense an owner policy of
title insurance (Title Policy) issued b Y _. . _.
(Title Company) in the amount oi’ the Sales Price, dated at or after closing, insuring . Buyer.
against loss under the provisions of the Title Policy, subject to the promu gated exclusions
including existing building and zoning ordinances) and the foliowin exceptions:
13 Restrictive covenants common i: o th
t e p la tted subdivision in whici
T the Property is located.
l 2 The standard printed exception for standby fees, taxes and assessments.
3 Liens
g created as p art o fth
t e financing described in Paragraph 4.
4 Utility easements created by the dedication deed or plat of the subdivision in which the
Property is located.
(5) Resen/_ation_s_or exceptions otherwise permitted by this cont“
lac t or as may be approved by
Buyer in writing. ii
6) The standard printed exception as to marital riglits.
(7 Tne standard printed exception as to waters, tidelands, beaches, streams, and related
matters.
(8) The standard gnnted exception as to discrepancies, conflicts, shortages in area or boundary
lines, encroac ments or protrusions, or overlapping improvements. Buyer, at Buyer's expense,
i|=i='s'
l may have the exception amended to read, "shortages in area". ii
B. COMMITMENT: Within 20 days after the Title Company receives a copy of this contract, Seller rEXHIB \

shall furnish to Buyer a com itment for title insurance (Commitment) and, at Buyer’s fNT
PLA
expense, legible copies of res 'i ive covenants and documents evidencing exceptions in the
i T -H quuiallg

Initlaieci for iclentification by BU)/E’I‘_ _ PE ir-(‘PERU Seller _ "gr TREC i\.lO. 9-7
 ContractConcerning mi 5/ \‘}IZll1I_ 7594/V
g
7% 20f 8 Oo-30—(vd
(Address of Property)
Commitment (Exception Documents) other than the standard printed exceptions. Seller
authorizes the Title Company to deliver the Commitment and Exception Documents to Buyer at
Buyer's address shown in Paragraph 21. If the Commitment and Exception Documents are not
delivered to Buyer within the specified time, the time for delivery will be automatically extended
up to 15 days or the Closing Date , whichever is ea rier.
l‘
C. SUR¥ElY: The survey must be made by a registered professional land surveyor acceptable to
e it e C ompanygand
‘ Buyer's lender(s). (Check one box only)
(1) Within_ Z days after the effective date of this contract, Seller shall furnish to Buye"
and Title Company Seller's existing survey of the Property and a Residential Real
Property Affidavit promulgated by the Texas Department of Insurance (Affidavit). If thiz:
existing survey _or Affidavit is not ceptable to Title Com p an y or B uyers ' l ender(s),.
Buyer shall obtain a new survey atfi Seller's El Buyer's expense no later than 3 day "
prior
' to CI osing Date. If Seller fails to furnish the existing survey or Affidavil:
within the time prescribed, Buyer shall obtain a new survey at Seller's .eXp6l1S(i!
no later than 3 days prior to Closing Date.
El (2) Within days after the effective date of this contract, Buyer shall obtain a new
survey at Buyer's expense. Buyer is deemed to receive the survey on the date of actual
receipt orlthe date specified in this paragraph, whichever is earlier. »
El (3) Within days after the effective date of this contract, Seller, at Seller's expense
shall furnish a new survey to Buyer.
D. OBJECTIONS: Buyer may object in writing to (i) defects, exceptions, or encumbrances to title:
disclosed on the sun/ey other than items 6A(1) throu h (7) above; or disclosed in the
Commitment other than items 6A(1) through (8) above; (is any portion of the Property lying in
a special flood hazard area (Zone V or A) as sh own on th e current Federal Emergency>
Management Agency map; or (iii) any exceptions which prohibit the following USE OI‘ activity:

Buyer must objectthe earlier of (i) the Closing Date or (ii) I33 days after Buyer receives the
Commitment, Exception Documents, and the survey. Buyer's failure to object within the time
allowed will constitute a waiver of Buyer's right to object; except that the requirements in
Schedule C of the Commitment are not waived. Provided Seller is not obligated to incur ary
expense, Seller shall cure the timely objections of Buyer or any third party lender within 15
days after Seller receives the objections and the Closing Date will be extended as necessary. ijf
objections are not cured within such 15 day period, this contract will terminate and the earnest
money will be refunded to Buyer unless Buyer waives the objections.
E. TITLE NOTICES:
(1) ABSTRACT OR TITLE POLICY: Broker advises Buyer to have an abstract of title_covering tr e
Property examined by an attorney of Buyer's selection, or Buyer should be furnished with or
obtain a Title Policy. If a Title Policy is furnished, the Commitment should be prompty
rejviewed by an attorney of Buyer's choice due to the time limitations on Buyer's right lio
o 'ect. .
(2) PRJOPERTY OWNERS‘ ASSOCIATION MANDATORY MEMBERSHIP: The Property iii is El is.
not subject to mandatory membership in a property owners‘ association. If the Property is
suiaject to mandatory membership in a property owners‘ association, Seller notifies Buye-
un er §5.012, Texas Property Co e, that, as a purchaser of property in the residential
community identified in Paragraph 2 in which the Property is located, you_are obligated tr,
be a member of the property owners‘ association. Restrictive covenants governing the use
and occupancy of the Property and a dedicatory instrument_ governing the
establishment, maintenance, and operation of this residential community have been or wil
be recorded in the Real Property Records of the county in which the Property is located.
Copies of the restrictive covenants and dedicatory instrument may be obtained from the
county clerk. You are obligated to pay assessments to the property owners‘ association.
The amount of the assessments is subject to change. Your failure to pay the assessments
could result in a lien on and the foreclosure of the Property. If Buyer is concerned abouit
these matters, the _TlREC promulgated Addendum for Property Subject ti;| -
Mandatory Membership in a Progerty Owners‘ Association should be used.
(3) STATUTORY TAX'DISTRICTS: If t e Property is situated in a utility o_r_other statutorily
created district providing water, sewer, drainage, or flood control facilities and services,
Chapter 49, Texas Water Code, requires Seller to deliver and Buyer to sign_the statutoy
notice relating to the tax rate, bonded indebtedness, or standby fee of the district prior 1:0
final execution of this contract.
(4) TIDE WATERS: If the Property abuts the tidally influenced waters of the state, §33.13l5,
Texas Natural Resources Code, requires a notice regarding coastal area progerty to he
included in the contract. An addendum containing the notice promulgated y TREC or
required by the parties must be used. i
(5) ANNEXATION: If the Property is located outside the limits of a municipality, Seller notifies
Buyer under §5.o11, Texas Property Code, that the Property may now or later be included
in the extraterritorial jurisdiction of a municipality and may now or later be subject ::o
Initialed for identification by Buyerfil-"‘“I>_[>~.__ and Seller __i_ TREC N(l, 9-7
 (Contract Concerning W P740, ragga?’ &CA T
If ,__ Page 3 Of 8 O6-30-(B
(Address of Property)
annexation by the municipality. Each municipality maintains a map that depicts its
boundaries and extraterrito ria ' l jurisdiction.
' To determine if the Property _is located_ within a
municipality's extraterritorial jurisdiction or is likely to be locate within a m_un|cipality's.
extraterritorial jurisdiction, contact all municipalities located in the general proximity of the:
Property for further information.
(6) PROPERTY LOCATED IN A CERTIFICATED SERVICE AREA OF A UTILITY SERVICE PROVIDER‘
Notice required by §13.257, Water Code: The real properly, described in Paragraph 2, that
you are about to purchase may be located in a certi icated water or sewer ser_vice area
which is authorized by law to provide water or sewer service to the properties in the:
certificated area. If your Eroperty is located in a certificated area there may be special costs:
or charges that you will e required to pay before you can receive water or Sewer service.
There may be a period required to construct lines or other facilities necessary to Dl"OVlCl(l'
water or sewer service to your property. You are advised to determine if the property is in ii
certificated area and contact. the utility service provider to determine the cost that you will
be required to pay and the period, if any, that is required to provide water or sewer servicii
to your property. The undersigned Buyer hereby acknowledges receipt of the foregoing
notice at or efore the execution of a binding contract for the purchase of the real propertw
described in Paragraph 2 or at closing of purchase of the real property.
(7) PUBLIC IMPROVEMENT DISTRICTS: If the Property is in a public improvement districi,
§5.014, Property Code, requires Seller to notify Buyer as follows: As a purchaser of this
parcel of real property you are obli ated to pay) an assessment to a municipality or count .1
for an improvement project undertalaen by a pu lic improvement district under C apter 372 ,
Local Government Code. The assessment may be due annually or in periodic installments.
More information concerning the amount of the assessment and the due dates of that
assessment may be obtaine from the municipality or county levying the assessment. Th is
amount of the assessments is subject to change. Your failure to pay the assessments could
result in a lien on and the foreclosure of your property.
(8) TEXAS AGRICULTURAL DEVELOPMENT DISTR CT: The Property El is Egis not located in a
(Texas Agricultural Development District. For additional information, contact the Texas
Department of Agriculture.
PROPERTY CONDITION:
A .ACCESS, INSPECTIONS AND UTILITIES: Seller shall permit Buyer and Buyer's agents access
to the Property at reasonable times . Bu y er m ay h ave the Procperty inspected by inspectors
selected by Buyer and licensed by TREC or otherwise Tpermitte by law to make ll"lSpeClIi0n:;.
Seller at Seller's expense shall turn on existing utilities or inspections. _
EIOTICE: Bayer should determine the availability of utilities to the Property suitable to satisly
uyer’s nee s. I
. ACCEPTANCE OF PROPERTY CONDITION: (Check one box only)
,% (1) Buyer accepts the Property in its present condition
(2) Buyer accepts the Property in its present condition-provided Seller, at Seller's expense,
shall complete the following specific repairs and treatments: ,_
.COMPLETION OF REPAIRS: Unless otherwise agreed in writing, Seller shall complete all agreifd
repairs prior to the Closing Date. All re q uired permits
‘ must e obtained,
' and repairs must lie
performed by persons who are licensed or OthGi'WlSG permitted by law to provide such repairs.
At Buyer's eection, any transferable warranties received by Seller with respect to the repairs
will be transferred to Buyer at Buyer's expense. If Seller fails to complete any agreed repairs
prior to the Closing Date, Buyer may do so and receive reimbursement from Seller at closing
The Closing Date will be extended up to 15 days, if necessary, to complete repairs.
.ENVIRONMENTAL MATTERS: Buyer is advised that the presence of wetlands, toxic Substance»,
including asbestos and wastes or other environmental hazards, or the dpresence of a
threatened or endangered species or its habitat may affect Buyer's inten ed use of tre
Property. If Buyer is concerned about these matters, an addendum promulgated by TREC is-r
required by the parties should be used.
SELLER’S DISCLOSURES: Except as othen/vise disclosed in this contract, Seller has ro
knowledge of the following:
(1)
2 any flooding
. of the Property;
any pending or threatened litigation, condemnation, or special assessment affecting tre
Property-
(3)
4 any environmental
. hazards
. or conditions affecting the Property;
any dumpsite, landfill, or underground tanks or containers now or previously located on tr e
Property; '
5 any wetlands, as defined by federal or state law or regulation, affecting the Property; or
6 any threatened or endangered species or their habitat affecting the Property.
8. BROKERS‘ FEES: All obligations of the parties for payment of brokers’ fees are contained in separaze
written agreements.

Initialed for identification by Buyerfi_:"I. and Seller TREC 9-7
 Contract Concerning (Z"e"£é8?’4;’fi/ H 7J%P€g€ 4 of 8 06-30-(i3
(Address of Property)
9. CLOSING:
A. The closing of the sale will be on or before so 3'0 , 20 /5 , or within 7 days
after objections made under Paragraph 6D have been cured or waived, whichever date is later
(Closing Date). If either party fails to close the sale by the Closing Date, the non~defaulting
party may exercise the remedies contained in Paragraph 15.
B. At closing: .
(1)Seller shall execute and deliver a general warranty deed conveying title to the Property to
Buyer and showing no additional exceptions to those permitted in Paragraph 6 and furnish
tax statements or certificates showing no delinquent taxes on the Property.
(2)Buyer shall pay the Sales Price in good .funds acceptable to the escrow agent
( 3 )Seller and Buyer shall execute and deliver .
any notices, statements, certificates affidavit
releases, loan documents and other documents required of them b y this co'ntract , t h5.e
Colmmitment or law necessary for the closing of the sale and the issuance of the Title
. Po icy.
(4)There will be no liens, assessments, or security interests against the Property which will not
be satisfied out of the sales p rocee d s unless securing the payment of any loans assumed by
Buyer and assumed loans will not be in default.
10. POSSESSION: Seller shall deliver to Buyer possession of the Property in its present or requirec
condition upon closing and funding.
11.SPECIAL PROVISIONS: (Insert only factual statements and business details applicable to the
sale . TREC rules pro hib it licensees from adding factual statements or business details for which a
‘ contract addendum or other form has been promulgated by TREC for mandatory use.) y
‘Y1
/5: /77'epic./‘ fic; Q4»c er flay” ‘M7 {'
/d')"€L/zcvqj _r
0/(J/»L,fzJ fry.

F/1|/6 6/(1% /~¢j’&a/cal”/wry’ (44,/1/‘rv F0flfl ‘

/B’_¢'¢,¢,%)¢* WC r§‘¢’~S' as/E” /4% <‘LOc'4J"'/§“(.c@/<1\9""§ 6'»

/reef‘?

12.SETTLEMENT AND OTHER EXPENSES:
A. The following expenses must be paid at or prior to closing:
(1)Expenses payable by Seller (Seller's Expenses)-
(a)Releases of existing liens, including prepayment penalties and recording fees; release of
Seller's loan liability; tax statements or certificates; preparation of eed; one-half cf
escrow fee" and other expenses payable by Seller under this contract. _
(b)Seller shall also pay an amount not to exceed $ 2 to be applied in the
- following order: Buyer's Expenses which Buyer is prohibited from paying by FHA, VA,
Texas Veterans Land Boar or other governmenta loan programs, and then to other
Buyer's Expenses as allowed by the lender.
(2) Expenses payable by Buyer (Buyer's Expenses):
a)Loan origination, discount buy—down, and commitment fees (Loan Fees).
b Appraisal fees; loan application fees; credit reports; preparation of loan documents:
interest on the notes from date of disbursement to one month prior to dates cf
first monthly payments; recording fees; copies of easements and restrictions; mortgagee
title policy with endorsements required by lender; loan—related inspection fees; photos;
amortization schedules; one-half of escrow fee; all prepaid items, including required
premiums for flood and hazard insurance, reserve deposits for insurance, ad va oreri
taxes and special governmental assessments; final compliance inspection; courier fee;
re air inspection; underwriting fee; wire transfer fee; expenses inci ent to any loan; and
otfier expenses payable by Buyer under this contract.
B. Buyer shall pay Private Mortgage Insurance Premium (PMI), VA Loan Funding Fee, or FHA
C lvtjortgage Insurance Premium (MIP) as required by the lender.
. I any expense exceeds an amount expressly Stated in
' this
' contract for such expense to be
paid by a party, that party may terminate this contract unless the other party agrees to pa ~/
such excess . Buyer may not pay charges and fees ex p re ssy
l pro hbi
i ‘ted by FHA, VA, Texas
Veterans Land Board or other governmental loan program regulations.

Initialed for identification by Bu\/ericf L\,_ and Seller TREC NCT9-7
 ContractConcerning>:m"?“5/264%/jgff /dgafifié 7? 7-réyé 7
/ “Page 50f 8 06-30 )8
(Address of Property)
13. PRORATIONS AND ROLLBACK TAXES:
A. PRORATIONS: Taxes for the current year, interest, maintenance fees assessments d
and rents will be prorated through the Closing Date. The tax proration, may be calculated , ue~s
taking into consideration any change in exemptions that will affect the current year's taxes. if
taxes for the current year vary from the amount prorated at closing, the parties shall adju t
the prorations when tax statements for the current year are available.
' ' it
If taxes are not paid
or prior to closing , Buyer shall pay taxes for th ecurrent year. 4

B. ROLLBACK TAXES-. If this sale or B uyers ' use
' of the Property after closing results in the
assessment of additional taxes, penalties or interest (Assessments) for periods prior to closini i,
the Assessments will be the obligation of Buyer. If Seller's change in use of the Property priiir
txo closing gr dfenial of a special use valuation on the Property claimed by S_eller results n
sses smen s or periods ' ' to closing,
prior ‘ the Assessments will' be the obligation fSel
Obligations imposed by this paragraph will survive closing. o lei
14. CQSUALTY LOSS: If any part of the Property is damaged or destroyed by fire or Other casu l
a er the effective date of this contract, Seller shall restore the Property to its previous condition
8 V
as soon as reasonably possible, but in any event by the Closing Date. If Seller fails to do so diie
to factors beyond Seller's control, Buyer may (a) terminate this contract and the earnest moni y
will be refunded to Buyer (b) extend the time for performance up to 15 days and the Closing Dale
will be extended as necessary or (c) accept the Property in its damaged condition with zin
assignment of insurance proceeds and receive credit from Seller at closing in the amount of tlie
deductiblle under the insurance policy. Seller's obligations under this paragraph are ifldepende 1t
ofan y ot er ob'iga ti ons of Seller under this
' contract.
15. DEFAULT‘. If Buyer fails to com p l y with th'is contract, Buyer will be in default, and Seller may (a)
enforce specific performance, seek such other relief as may be provided by law, or both, or (J)
terminate this contract and receive the earnest money as liquidated damages, thereby releasiiig
both parties from this contract. If, due to factors beyond Seller's control, Seller fails within tlie
time allowed to make any non-casualty repairs or deliver the Commitment, or survey, if requir->d
of Seller, Buyer may (a) extend the time for performance up to 15 days and the Closing Date v ill
b e ext en d ed as necessary or (b) terminate
' this
' contract as the sole remedy and receive t
g
earnest money. If Seller fails to comply with this contract for any other reason,_Seller will be ie
in
default and Buyer may (a) enforce specific
V peiformance seek such other relief as may )e
provided by law, or both, or (b) terminate this contract anld receive the earnest money, there >y
releasing both parties from this contract.
16. MEDIATION: It is the policy of the State of Texas to encoura e resolutio o f d‘isputes throuiih
alternative dispute resolution procedures such as mediation. gAny disputen between S er aid
Buyer related to this contract which is not resolved th roug h informal
' '
discussion Elwill ‘
be submitted to a mutually acceptable mediation sen/ice or provider. The parties to the %Wl|l
m diatirot
)I'1
shall bear the mediation costs equ all y . This
‘ paragraph does not preclude a party from seeki' ig
equitable relief from a court of C0i'flp6tel"llI_]Ul‘lSdlC'ClO|'i.
' ' ' ' r
17. ATTORNEY‘Si FEES: A Buyer, Seller, Listing Broker, Other Broker, or escrow agent who prevails
in any legal" proceeding related to this contract is entitled to recover reasonable attorney's fees
and all costs o f suc h proceeding.
" r .
18. ESCROW:
A. ESCROW'. The escrow a g ent’is no t (i) a party to this contract and does not have liability lor
the performance or nonperformance of any party tothis contract, (ii) liable for interest on he
earnest money and (iii) liable for the loss of any earnest money caused by the failure of any
financial institution in which the earnest money has been deposited unless the f‘
institution is acting as escrow agent. inancial
B. EXPENSES: At closing, the earnest money must be applied first to any cash down pa meiit
th en to Buyers
' Expenses and any excess refunded to Buyer _
If no closing occurs Vescriivv
agent may require payment of unpaid expenses incurred on behalf of the it‘ '
written release of liability of escrow agent from all parties. pa ies and a
C. DEMAND . Upon termination of this contract I eith er party or the escrow agent may send a
-release of earnest money to each party and the parties shall execute counterparts of the
release and deliver same to the escrow agent. If either party fails to execute the release,
either party may make a written demand to the escrow agent for the earnest money. If only
one party makes written demand for the earnest money, escrow agent shall promptly provi je
a copy of the demand to the other paity. If escrow agent does not receive written objection to
the demand from the other party within 15 days, escrow agent may disburse the earne st
money to the party making demand reduced by the amount of unpaid expenses incurred an
behalf of the party receiving the earnest money and escrow a g ent ma y pay th e same to the
creditors. If escrow agent complies with the provisions of this paragraph, each party hereby
g releases escrow agent from all adverse c l aims
' related to the disbursal of the earnest money
Initialed for identification by Buyer-£17 (Q and Seller 7 TREC NCI 9 7
 , Contract Concerningmfififil 7~7@¢’ K S ‘
, / ge 6 of 8 06-30-I B
(Address of Prcfperty)
D. DAM AGES: Any party who wrongfully fails or refuses to sign a release acceptable to the
escrow agent within 7 days of receipt of the request will be liable to the other party fo"
liquidated damages in an amount equal to the sum of: (i) three times the amount of the
earnest money; (ii) the earnest money; (iii) reasonable attorney's fees; and (iv) all costs oi’
suit.
E. NOTICES; Escrow agent's notices will be effective when sent in compliance with Paragrapli;
21. Notice of objection to the dema n d w ill b e d eemed effective
' upon receipt' by escrow agent ._
19. REPRESENTATIONS: All covenants, representations and warranties in this contract SUl"VlVlE!
closing. If any representation of Seller in this contract is untrue on the Closing Date, Seller wi l
be in default. Unless expressly prohibited by written agreement, Seller may continue to show
the Property and receive, negotiate and accept back up offers.
20. FEDERAL TAX REQUIREMENTS: If Seller is a 'Tforeign person," as defined by applicable law or
if Seller fails to deliver an affidavit
Q to Buyer that Seller is not a "foreign person_ " then Bu yers h a l
withhold from the sales proceeds an amount sufficient to comply with appli'cable tax law anal
deliver the same to the Internal Revenue Service together with appropriate tax forms. Internal
Revenue Service regulations require filing written re p orts if currency i n excess of specifie ' '.1
amounts is received in the transaction.
21. NOTICES: All notices from one party to the other must be in writing and are effective wher
mailed to, hand-delivered at, or transmitted by facsimile or electronic transmission as follows:
To Buyer at: To Seller at:
,-

//ma A‘-”7w/ia/were Jase 450 12.»? 552» ,_
Qua ¢ fixaxaflé 5». I
732% 1I.WrJ' _

%°aém'zf/ea; .717 ‘Ffflf.1
Telephone! 1??/1) J7?‘ 5/Q3 Telephone: M51) Z6’,Z- 7f'_?Jf_ _
Facsimile: . ( ) Facsimile: ) 70.-fl =' WZZ76 ,_

E-mail: _////24,5;/fgil 44/. <:014-_ E-mail: ,ée/1ai:"42/.§£?0F(§é5¢:,7¢ééi;[€’/z4;7‘§

22. AGREEMENT OF PARTIES: This_cont_ract contains the entire a reement of the partie
cannot be changed except by} their written agreement. Addendja which are a part ofs and
ths
contract are (check all applica le boxes):
in‘ Third Party Financing Condition Addendum Q Addendum for "Back-Up" Contract
Q Seller Financing Addendum Q Addendum for Coastal Area Property
M Addendum for Property Subject to Q Environmental Assessment, Threatened
Mandatory Membership in a Property or Endangered Species and Wetlands
Owners’ Association Addendum
Q Buyer's Temporary Residential Lease Q Addendum for Property Located Seawarc
of the Gulf Intracoastal Waterway
Q Seller's Temporary Residential Lease Q Addendum for Sale of Other Property by
Buyer
Q Other (list):

Initialed for identification by Buyer£"v*_ Q and Seller /fr£1 TREC NC‘. 9-7
Contract Concerningn"2$;0§ ‘£497 57‘: /4 _fi. £2/ . 7f Page 7 of8 06-30—(:3K
(Address, of Property)
23. TERMINATION OPTION: For nominal conside ra t'iOI'i,‘ the receiptegi which is hereby
acknowledged by Seller, and Buyer's agreement to pay Seller $___"___i_ _(0ption Fee)
within 2 days after the effective date o this contract, Seller grants Buyer the unrestricted right to
terminate this contract by giving-notice of termination to Seller within _days after the
effective date of this contract. If no dollar amount is stated as the Option Fee or if Buyer fails to
pay the Option Fee to Seller within the time prescribed, this paragraph will not be a part of this
contract and Buyer shall not have the unrestricted right to terminate this contract. If Buyer gives
notice of termination within the time prescribed, the Option FE willtflot be refunded'_ owevei",
any earnest money will be refunded to Buyer. The Option Fee will will not be credited to the
Sa es Pri ce a t closing.
' '
Time ' of the essence for this
is ' paragraph and strict compliance
with the time for performance is required.
24. CONSULT AN ATTORNEY : Real estate licensees cannot give legal advice. READ THIE5
CONTRACT CAREFULLY. If you do not understand the effect of this contract, consult an attorney
BEFORE signing.

Buyer's Seller's
Attorney is: Attorney is: __

Telephone: ,( ) Telephone: ( .)

Facsimile: ( ) Facsimile: ( ) _

E-mail: E-mail:

EXECUTED the 0/ day of flcyééee , zo/9 (EFFECTIVE DATI.
( BRO KER.- FILL IN THE DATE OF FINAL ACCEPTANCE.)

dfilsuyer \§ f
Selley ’_

Buyer Seller ’_

The form of this contra ct has been approved by the Texas Real Estate Commission. TREC forms are intended for u=:e
only by trained real estate licensees . No representation 'is ma d e as to the legal validity or adequacy of any provision in
any specific transactions. It is not intended for complex transactions. Texas Real Estate Commission, P.O. Box 1218B,
Austin, TX 78711-2188, 1-soo-250-8732 or (512) 459-6544 (http://www.i‘:rec.state.tX.us) TREC NO. 9-7. This fOl'Ti
replaces TREC NO. 9-6.

TREC N(Ii; 9-7
 9.
. _ 12-10—li7
PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (mac) 7
OPPORTUNITY '

THIRD PARTY FINANCING CONDITION ADDENDUM
_ TO CONTRACT CONCERNING THE PROPERTY AT 7

_ gtooo met awar 54. 1” i‘e/not Cane/ififmi 7} flood g
' (Street Address and City) '
Buyer shall apply promptly for all financing described below and make every reasonable effort
0 btain :;o
‘ approval for the financing (Financing Approval). Buyer shall furnish all information and
documents required by lender for Financing Approval. Financing Approval will be deemed to ha\i'e
been obtained when (1) the terms of the ioan(s) described below are available and (2) lend er
determines that Buyer has satisfied all of -lender's financial requirements (those items relating :10
Buyer's "assets, income and cred-it history). If Buyer cannot obtain Financing Approval, Buyer miiy
give written notice to Seller within Z-0 days after the effective date of this contract and ti’ is
contract will terminate and the earnest money will be refunded to Buyer. If Buyer does not giiie
such notice within the time. required, this contract will no longer be subject to Financing
Approval. Time isjof the essence for this paragraph and strict compliance with the tiniie
for performance is "required. ‘ 7 -
NOTE: Financing Approval does not include approval of lender's underwriting requirements ibr
the Property, as specified in Paragraph 4.A. (1) of the contract.
Each note must be secured by vendor's and deed of trust liens.
CHECK APPLICABLE BOXES:
m A. CONVENTIONAL FINANCING: _
_ in (1) A first mortgage loan in the principal amount of $ (excluding
any financed PMI premium), due in full in -5" year(s), with interest not to
exceed 8 % per annum for the first —-—— year(s) of the loan with Loan Fees
(oan
I origination, discount, buy—down, and commitment fees) not to exceed
' % of the loan
El (2»)~A second mortgage -loan in the principal amount of $ . (excludiwg
Q ' an_y;fina_n,_ced_ PM_I premium), due in full in _ year(s), with interest not to
i ” exceed) _ %_g per annum for the first
y i ' Loan
year(s) of the loan with '
Fees ‘(;l-oa_ri,.. origin_ation,_discount, buy-down, and commitment fees) not to exceed
% of the loan.
El B. TEXAS VETERANS LOAN: A ioan(s) from the Texas Veterans Land Board of $
for a period in the total amount of years at the interest rate established by the Texas iX

Veterans Land Board. "
EIC. FHA INSURED FINANCING: A Section FHA insured loan of not less than
(excluding any financed MIP), amortizable monthly for not less than
years, with interest not to exceed % per annum for the first yeari s)
of the loan with Loan Fees (loan origination, discount, buy-down, and commitment fees) rot
to exceed % of theQ loan . As required by HUD - FHA , if FHA va I ua t‘ion 'is unknovi n,
"It is expressly agreed that, notwithstanding any other provision of this contract, the
- purchaser (B uyer) sh all not ‘be obl/gated
' to complete the purchase of the Property described
herein or to incur any penalty by forfeiture of earnest money deposits or otherwise unless
the purchaser (Buyer) has been given in accordance with HUD/FHA or VA requirements a
written statement issued‘ by the Federal Housing Commissioner, Department of Veterans
Affairs, or a‘ Direct ‘Endorsement Lender setting forth the appraised value of the Property
of not less thanV $ _ _ _ i . The purchaser (Buyer) shall have the privilege and
option or proceeding with consummation of the contract without regard to the amount of the

Tl"\il'iFilPr1 for inenririmrinn hv iaiii/.=i»'i""' 1"» and caiiarl/T61.
'l‘D|:f‘ l\ii“i Afl o
Third Party Financing Condition Addendum Concerning “ - Page 2 of 2 12-10-(i7
élfibfi GMJ swell gff. Pfee/any (Q/vrzr/ff/cz%, rfwé 1 it ' __
_Addresso Pro erty

appraised valuation. The appraised valuation is arrived at to determine the maximun
. mortgage the Departmentof Housing and Urban Development will insure. HUD does not
warrant the value or the condition of the Property. The purchaser (Buyer) should satisfy
himself/herself that the price and the condition of the Property are acceptable. "
NOTE: HUD 92564~CN "For Your Protection: Get a Home Inspection" must be attached |:o
this Addendum. . o . » 1 1
E] D. VA GUARANTEED FINANCING: A VA guaranteed loan of not less than $ A
(6XC|UdlhQ- any financed Funding Fee), amortizable monthly for not less than years,
% with~interést not t'o1e'>‘tly
give notice to Buyer. Buyer may terminate the contract prior to closin
V g by giving
' ' written
' notice: to
Seller if: (i) any of the Subdivision Information provided was not true; or (ii) any material adverse
change in the _Su~bdivi_sion Information occurs prior to closing, and the earnest money will be
refunded to Buyer. ’
B. FEES: Buyer shall pay any Association fees resulting from the transfer of the Property not to exceed“
, $ 300t 00 and Seller shall pay any excess.
~ NOTICE TO BUYER REGARDING REPAIRS BY THE ASSOCIATION: The Association may have the
sole responsibility to make certain repairs to the Property. If you are concerned about the conditio 'l of
any part of the Property which the Association is req ui red to repair,
' you should not sign
' the cont-'act
unless you are satiékg that the Association will make the desired repairs.
r

Buyer L / Seller V Oz

Buyer Seller

The form of this addendum has been approved by the Texas Real Estate Commission for use only with similarly approved or
_
promulgated ’ contracts. Such approval
forms of V relates to this contract form only. TREC forms are intended for use only by
trained real estate licensees. No representation is made as to the legal validity or adequacy of any provision in any specific
transactions. It is not intended for complex transactions . Texas Real Estate Commission, P.O. Box 12188, Austin, TX 78711~'
2188, 1-800-250-8732 or (512) 459—6544 (http://www.l:rec.state.tx.us) TREC No. 36-5. This form replaces TREC No. 36-4.

‘TD|:r* in/-i oc 1:
 Approved by the Texas Real Estate Commission for Voluntary Use
Texas law requires all real estate licensees to give the following infonnation
about brokerage services to prospective buyers, tenants, sellers and landlords.

._ —: "mu
information About Brokerage Services
’=r' =: i % = ' r ':"" * , r re
l
efore working with a real estate bnoker, you should Act. The broker must obtain the written consent of ea ch
know that the duties of a broker depend on whom party to the transaction to act as an intermediary. "line
the broker represents. If you are a prospective written consent must state who will pay the broker and in
seller or landlord (owner) or a prospective buyer or conspicuous bold or underlined print, set forth the broke >r‘s
tenant (buyer), you should know that the broker who lists obligations as an intennediary. The broker is required to
the property for sale or lease is the owner's agent. A treat each party honestly and fairly and to comply with
broker who acts as a subagent represents the ovlmer in The Texas Real Estate License Act. A broker who acts
cooperation with the listing broker. A broker who acts as as an intermediary in a transaction:
a buyer's agent represents the buyer. A broker may act as (1) shall treat all parties honestly;
an intermediary between the parties if the parties (2) may not disclose that the owner will accept a
consent in writing. A broker can assist you in locating a price less than the asking price unless authorizer in
properly, preparing a contract or lease, or obtaining writing to do so by the owner;
financing without representing you. A broker is obligated (3) may not disclose that the buyer will pay a pice
by law to treat you honestly. greater than the price submitted in a written cfiier ii
unless authorized in writing to do so by the buyer, and
IF THE BROKER REPRESENTS THE OWNER: (4) may not disclose any confidential informatior or
The broker becomes the owner's agent by entering into an any infonnation that a party specifically instructs the
agreement with the owner, usually through a written -
listing agreement, or by agreeing to act as a subagent by
broker in writing not to disclose unless 3Ui|'lOFlZ8rIl in rrM.
writing to disclose the information or required to do so
accepting an offer of subagency from the listing broker. A by The Texas Real Estate License Act or aicaurt
subagent may work in a different real estate office. A order or if the infomration materially relates to the
listing broker or subagent can assist the buyer but does condition of the property. ll
not represent the buyer and must place the interests of With the parties‘ consent, a broker acting as an
the owner first. The buyer should not tell the owner's intemwecliary between the parties may appoint a person who
agent anything the buyer would not want the owner to is licensed under The Texas Real Estate License Act
know because an owner's agent must disclose to the and associated with the broker to communicate with and rr
owner any material information known to the agent. carry out instructions of one party and another person who
is licensed under that Act and associated with the brrker
IF THE BROKER REPRESENTS THE BUYER: to communicate with and carry out instructions oilthe I1
The broker becomes the buyer's agent by entering into an other party.
agreement to represent the buyer, usually through a
l written buyer representation agreement. A.buyer‘s agent If you choose to have a broker represent you,
r can assist the owner but does not represent the owner
and must place the interests of the buyer first. The owner
you should enter into a written agreement with the broker
that clearly establishes the broker's obligations and your
should not tell a buyers agent anything the owner would obligations. The agreement shouldstate how anll by
not want the ‘buyer to know because a buyers agent must whom the broker will be paid. You have the riglrt to
disclose to the buyer any material information known to the choose the type of representation, if any, you WlS'l to
agent. receive. Your payment of a fee to a broker does not
necessarily establish that the broker represents you. ll you
IF THE BROKER ACTS AS AN INTERMEDIARY: have any questions regarding the duties and
A broker may act as an intermediary between the parties responsibilities of the broker, you should resolve trose
if the broker complies with The Texas Real Estate License questions before proceeding.
_ nu _ in .1 In ' " -in ,___~» "'5"-I-ii-; L. :_ _ _ . W’ ' J e _
ll
Rea e te licensee asks that you acknowledge receipt of this inforrnatron a bout brokerage sen/ices for the .licensee‘s records,

Buyer, S , La dlord or Tenant
l0£0lLt0iO r
Dat

Texas Real Estate Brokers and Sales persons are l‘rcensed and regulated by the Texas Real Estate Commission (TREC). If you have a question
or complaint regarding a real estate licensee, you should contact TREC at P.O. BOX 12186 RUSH
. -
n. Texas 7871121B8or512-465-3960.
1!)
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.
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‘T: \i*‘\ 5
 TABLE OF ARTICLES

1. The Contract Document

2. The Work of This Contract

3. Relationship of the Parties

4. Date of Commencement and Substantial Completion

5. Time

6. Contract Sum and Guaranteed Price

7. Payments

8. Changes in the Work

9. Extent of Contractor's Responsibility

10. Extent of Owner's Responsibility

11. Miscellaneous Provisions

12. Termination of the Contract by the Contractor

13. Termination of the Contract by the Owner

s’
Pl.AlMTlFF’S
EXHIBIT
fl
L
Mm-N.lwmnr.
 GEHARD LUXURY HOMES
Standard Form of Agreement Between Owner and Contractor

AGREEMENT made as of the 12 day of October in the year of 2010.

BETWEEN the Owner: INNA GEYVANDOVA

And the Contractor: PIERRE INVESTMENTS, INC / GEHARD Luxury Homes

The Project is:
(Name, address and brief description) 2000 AND 2004 SAINT PIERRE, CARROLLTON, TX 75006

Also known as Lot 17R & 18R, Block A, Subdivision JOSEY PARK ESTATES

Addition to the city of Carrollton, DALLAS County, Texas, as recorded in Volume 2004019, Page
30, Map Records, Dallas County, Texas

The Architect/Designer is:

The OWNER and the CONTRACTOR agree as set forth below:

ARTICLE 1
THE CONTRACT DOCUMENTS

The Contract Documents consist of this Agreement signed by the Owner and Contractor, the Spec-
ifications, Drawings, Addenda issued prior to execution of this Agreement, written Change Orders
or orders for minor changes in the Work issued after execution of this Agreement, and other docu-
ments, if any, listed in this Agreement. These form the Contract, and are all as fully a part of the
Contract as if attached to this Agreement of repeated herein. The Contract represents the entire
and integrated agreement between the parties hereto and supersedes prior negotiations, representa-
tions or agreements, either written or oral.

ARTICLE 2
THE WORK OF THIS CONTRACT

The Contractor shall execute the entire work described in the Contract Documents for the con-
struction of a single-family residences located at 2000 Saint Pierre and 2004 Saint Pierre, Carroll-
ton, Texas, 75006, DALLAS County, Texas, except to the extent specifically indicated in the Con-
tract Documents to be the responsibility of others, and described in Article l0 ifii.
(BEI-i/XTQED
7*" 1D,‘&1';£2_ ~/<1 £46//It ,/¢_¢ .J'4'(;e 2.000 .3"/I. /7-‘liwlfi inlnrmnnnnimse

ARTICL 3 _-Z Q, DOCUMENT GLH l1-2002
RELATIONSHIP OF THE PARTIES
OWNER-CONTRAI lTOR
Z 6-? .
The Contractor accepts the relationship of trust and confidence established by this Agreement and
AGREEMENT

covenants with the Owner to cooperate with the Architect and exercise the Contractor’s skill and P.O. Box 852832
judgment in furthering the interest of the Owner; to furnish efficient business administration and Richardson, Tx 75 I85-2832
superintcndence; to use the best efforts to fumish at all time an adequate supply of workers and

lee!
materials; and to perform the Work in the most expeditious and economical manner consistent
with the interests ofthe Owner. .-Kc; I
 The Owner agrees to fumish or approve, in a timely manner, information required by the
Contractor as described in Article 10, and to make payments to the Contractor in accordance with
the requirements ofthe Contract Documents, as described in Article 7.

ARTICLE 4
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION

The date of commencement of the Work shall be the date of this Agreement, unless a different
date is stated below or provision is made for the date to be fixed in a notice to proceed issued by
theOwner:* ahe-lei/la ,-H1‘;

As soon ascompletingthe lots purchase and the interim construction funds are available.

lf, prior to commencement of the Work, the Owner requires time to file mortgages, mechanic’s
liens and other security interests, the Owner’s time requirement shall be as follows:

NOT TO EXCEED THIRTY (30) DAYS.

The Contractor shall achieve **Substantial Completion of the entire Work not later than Twelve
112) Months from the date of commencement, subject to adjustments of this Contract Time as
provided in the Contract Documents, and described in Article 5.

Substantial Completion is defined as issuance of a “Building Final” by the City of Carrollton, or
Owner’s occupancy or utilization the Work for its intended use, whichever comes first.

ARTICLE 5

The Contract Time shall be measured from the date of commencement.

Time limits stated in the Contact Documents are ofthe essence of the Contract.

If the contract is delayed at any time in progress of the Work by changes ordered in the Work, as
or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes
beyond the Contractor’s control, the Contract Time shall be extended by Change Order for such
reasonable time as the Owner may determine.

TICLE 6
CONTRACT SUM AND GUARANTEED MAXIMUM PRICE

The Contract Sum in the Agreement is the total Cost of the Work and the Contractor’s Fee payable
by the Owner to the Contractor for performance of the Work under the Contract Documents, and is
guaranteed by the Contractor not to exceed the amount indicated in Paragraph 6.2. This maximum
sum is referred to in the Contract Documents as the Guaranteed Maximum Price.

The Owner agrees to pay the Contractor the Contract Sum in current funds for the Contractor’s
performance of the Contract. The agreed Contract Sum is THREE HUNDRED SEVENTY- FIVE
THIUSAND and 00/100 DOLLARS ($375,000), including the land cost, but subject to additions
E
and deductions as provided in the Contract Documents.
DOCUMENT GLl- I31-2002
The Contract Sum and Contract Time as described in Article 5 shall be subject to equitable adjust-
ment if concealed or unknown physical conditions are encountered at the site that differ materially OWNER-CONTRI CTOR
AGREEMENT
from those indicated in the Contract Documents or from those conditions ordinarily found to exist.
P.O. Box 852832
Richardson, Tx 75 i085-2832

lit
I
ARTICLE 7
PAYMENTS

7.1 The Owner payments to the Contractor for the Contract Sum shall be made immediately,
following Contractor’s receipt of an itemized request stating the Cost of Work, which draw
requests shall be submitted by Contractor to Owner no more than (7) per month.

7.2 in the event any payment is not made when due, contractor may stop construction activity until
payment is made and for five (5) days thereafter. In the event any payment is not made within ten
(10) days after it is due, Contractor may take such action as may be necessary, including legal
proceedings, to enforce its rights here under.

7.3 Payments due and unpaid under the Contract shall bear interest from the date payment is due at the
rate of 3%, or in the absence thereof, at the legal rate prevailing from time to time at the place of
the Project is located.

7.4 The Owner’s final payment, constituting the entire unpaid balance of the Contract Sum, shall be
made by the Owner to the Contractor when the Contract has been fully performed by the
Contractor; such final payment shall be made by the Owner not more than l5 days after the
Substantial Completion described in Paragraph 4.2.

7.5 Owner shall not have possession of the structure until such time as the payment described in
Article 6 has been fully made or performed by the Owner. If possession of structure is taken by
Owner before the above obligations are met, without the written consent of Contractor, it shall be
considered as acceptance of the structure, by the owner, as complete and satisfactory.

ARTICLE §
CHANGES IN THE WORK

8.1 From time to time after execution of the Contract, the Owner, without invalidating the Contract
may order changes in the Work within the general scope of the Contract consisting of additions,
deletions or other revisions accomplished by Change Order Request; the Contract Sum and
Contract Time being adjusted accordingly.

8.2 A Change Order Request shall be a written order to the Contractor signed by the Owner and
Architect to change the Work, Contract Sum or Contract Time.

ARTICLE Q
EXTENT OF CONTRACTOR'S RESPONSIBILITY

9.1 The Contractor agrees to exercise reasonable skill and judgment in the preparation of schedules
and estimates, and guarantees all specified line items within in the schedule, approved by the
Owner. The recommendations and advice of the Contractor concerning design alternatives shall
be subject to the review and approval of the Owner. It is not the Contractor responsibility to
ascertain that the Drawings and Specifications and in accordance with applicable laws, statutes,
ordinances, building codes, rules and regulations. However, if the Contractor recognizes that
portions of the Drawings and Specifications are at variance, the Contractor shall promptly notify
the Owner and/or Architect.
C3Ei—lAl'QC)
rm
9.2 The Contractor shall consult with the owner and Architect regarding site use and improvements,
and the selection of materials and building systems. The Contractor shall provide recommenda- DOCUMENT GLH '11-2002
tions on construction feasibility; time requirements for construction completion; and factors
related to construction cost including estimates of alternative designs or materials, preliminary OWNER-CONTRA IZTOR
AGREEMENT
budgets and possible economies. r
P.O. Box 852832
9.3 When the Owner has sufficiently identified the Project requirements and the Architect has Richardson, Tx 751185-2832
prepared other basic design criteria, the Contractor shall prepare, for the approval of the Owner, a
preliminary cost estimate utilizing area, volume or similar conceptual estimating techniques. If
any estimate submitted to the Owner exceeds previously approved estimates or the Owner’s budg-
et, the Contractor shall make appropriate recommendations to the Owner and Architect.
lit:
 9.4 The Contractor shall meet with the Owner to review the Proposal. In the event that the Owner
discover any inconsistencies or inaccuracies in the information presented, the Owner shall prompt-
ly notify the Contractor, who shall make appropriate adjustments to the Proposal. When the Pro-
posal is acceptable, the Owner shall approve by signing.

9.5 Tests, inspections and approvals of portions of the Work required by the Contract Documents or
by laws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be
made at an appropriate time.

9.6 Contractor shall not be responsible for damages to persons or property occasioned by Owner or his
agents, third parties or other causes beyond contractor's control. Owner shall hold contractor
completely harmless from, and shall indemnify contractor for, all costs, damages, losses, and
expenses, including judgments and attorneys fees, resulting from claims arising fi'om causes
enumerated in this paragraph.

ARTIQLE 10
EXTENT OF OWNER'S RESPONSIBILITY

10.1 The Owner shall fumish evidence of Project financing prior to the start of the Construction and
from time to time thereafier as the Contractor may request. Furnishing of such evidence shall be a
condition precedent to commencement or continuation of the Work.

10.2 The Owner shall establish and update an overall budget for the Project, based on consultation with
Contractor, which shall include contingencies for changes in the Work and other costs, which are
the responsibility of the Owner.

10.3 The Owner shall furnish free of charge 8 copies of the Drawings, and as many additional copies as
the Contractor may require.

10.4 The Owner shall fumish the Surveys and Tests concerning the conditions of the site, which are
required by law, following with reasonable promptness and the Owner’s expense.
The surveys and legal information shall include adjacent drainage; restrictions, easements, deed
restrictions and contours of the site. All information on the survey shall be referenced to a project
benchmark. The services of a geotechnical engineer, when such services are requested by the
Contractor, may include but are not limited to test borings, test pits, determinations of soil bearing
values, percolation tests, ground conosion and resistance tests, including necessary operations for
anticipating subsoil conditions, with reports and appropriate professional recommendations. The
Contractor shall be entitled to rely upon the accuracy of any such information, reports, surveys,
drawings and tests described herein.

ARTICLE 11
MISCELLANEOUS PROVISIONS

11.1 Terms used in this agreement, which are defined in the Contract Documents, shall have the
meanings designated in those Contract Documents.

11.2 All Work required to be done by the Contractor hereunder shall be done in accordance with the
Drawings furnished to the Contractor by the Owner. It is understood that Owner believes it has
employed competent engineers, designers and architects. Owner alone shall be responsible for the
C-BE!-IA RID
adequacy of design, sufficiency of the Contract Documents, the safety of the structure and the I_L_lI*’_L.J|lT\' i- I )l\Al_‘Q

practicability of the Contractor to make certain that the Documents are in accordance with
applicable laws, statutes building codes and regulations. The Contractor will not be liable or in DOCUMENT GU 01-2002
any way responsible for work done in accordance with the Drawings and Specifications supplied
OWNER-CONTRI BTOR
by and/or approved by the Owner, and the Contractor makes no express or implied warranty AGREEMENT
(including merchantability, fitness or a particular purpose, habitability, and workmanlike
construction), and there are no oral agreements, representations and conditions except as expressly P.O. Box 852832
Richardson, Tx 7. F085-2832
stated herein or in the Contract Documents.

11.3 Claims, disputes or other matters in question between the parties to this Agreement shall be
resolved by mediation or by arbitration, rather than through litigation. Prior to arbitration, the z. at
parties shall endeavor to reach settlement by mediation.
Ia 6*
 ARTIQLE 12
TERMINATION OF THE CONTRACT BY THE CONTRACTOR

12.1 If the Owner fails to make payments as defined in Article 7, the Contractor may terminate the
Contract and recover from the Owner payment for Work executed and for proven loss with respect
to materials and labor, including reasonable overhead, profit and damages.

12.2 In the event Contractor cannot obtain a building permit within thirty (30) days of the date ofthis
agreement, contractor may declare the Agreement of no further force or effect.

ARTICLE 13
TERMINATION OF THE CONTRACT BY THE OWNER

13.1 The Owner may tenninate the Contract if the Contractor:

.l persistently or repeatedly refuses or fails to supply enough properly skilled workers and materials;
.2 fails to make payments to Subcontractors for materials or labor in accordance with the respective
agreements between the Contractor and the Subcontractors;
.3 persistently disregards laws, ordinances, or rules, regulations or orders of a public authority having
jurisdiction;

This Agreement is entered as of the day and year first written above and is executed in at least two original
copies, of which one is to be given to the Owner, and the other to the Contractor.

1» /
OWNER (Signature) CONTR7TOR (Signature)

$2 <51 gfi/Q/zr-/C“?
_ PIERRE INVESTMENTS, INC. / Gehard Luxury Homes
(Printed name) (Printed name and title) Y

tfil t
(SE1-I/\l'"Ql:)
§

DOCUMENT GLH l1-2002

OWNER-CONTRA ICTOR
AGREEMENT

P.O. Box 852832
Richardson, Tx 75 385-2832

I
 O6-30-O8

‘ PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (TREC)

I NOTICE OF BUYER'S TERMINATION OF CONTRACT

CONCERNING THE CONTRACT FOR THE SALE OF THE PROPERTY AT

ZOQD Wot 200 Y _iv‘.gP[.;>,g/;;=_..; Q4.Qa@l>Z-K04 7&9 ¢/~’/
(Street §\d’dr'-ass aiild City) T T I W K V

BETWEEN THE UNDERSIGNED BUYER AND /D/' -£11 F ~ v[-T” *1’ 1‘ "Ci / _7* ° . l.

__ 7 ,_____ g U g g O _ g _, _ g u (SELLER)
Buye I’ notifies Seller that the contract is terminated pursuant to the following‘.

the unrestricted right of Buyer to terminate the contract under Paragraph 23 oi’ the
contract.

51(2) Buyer cannot obtain Financing Approval in accordance with the Third Party Financing
Condition Addendum to the contract.

i
51(3) the Property does not satisfy the lenders‘ underwriting requirements for the loan under
Paragraph 4A(1) of the contract.

l 51(4) Buyer elects to terminate under Paragraph A of the Addendum for Property Subject to
Mandatory Membership in a Property Owners‘ Association.
51(5) Buyer elects to terminate under Paragraph 78(2) of the contract relating to the Sells:-:r’s
Disclosure Notice. i

We Other (ideritify the paragraph/lumber of contract or theyaddendu/n)‘
L/.4 1//t/I/Deer‘/r/<¢ w/ 19;“/av/0 } 129/ 47 C/75 ’/’/""9'<_3

NOTE; Re/ease of the earnest money is governed by the terms of the contract.
j 1
///0/1/"0
Buye r ( T Date lBuyer oat;

' " ' "Ls":
. at f=es1 app|w:*.reci by the.. Te"-'as
.. Real Estate
_ C omnii<'ion
_: f O." ‘ '-‘Nth
L118 ‘ iili‘-‘illBi'l“-1 Qpprgg/qrj 3|":
. .p.;n.r.i;a-rec’ -:oiiLr&:1ct Forms. Such approval relates to this form only. TREC forms are intended For use only
spy trained real estate licensees. i».io representation is ‘ made Fas Lo the legal validi‘:-y or adnou" "~
__‘ day ‘_\T'
__ J .n-_,1 ,
_prox-'ision i"l .=_.n y _sp ec ifi.c l"EiI'i§HClIl’)"‘S
_. _ '. . it .is |"Jl.'
.r *'..1blQ
sin“ r \_corn..pi_ex tran ea.‘
actio ns. Tiexas Reel Estateii
iifozrzrnlssion, P.O. Box 12188, Austin, TX 78711-2188, ‘t—800~250~87 32 Ior ism) 459-on-=4 "“ (w=,:r-;,i/‘ .
‘wwrl.trec.si:ate.ix.us) TREC ilo. 38-2. The ' ie[)l3C:S
l_ form - " “'|Ri:C
" iio.
‘~ ~
38-1.
- ___ ._, ‘
i
4
l" Pl.AlNTlFF’S '
- EXHIBIT 'i'P.EC No.38-2
/5
__..,._,..__----—
N.
MGAO-Ictoanc
E
 m:::n: hbi B418 P.1/1

1

Inna Geyvandnva
2309 Foxcwek Dr.
Richardson, TX 75082

February 2|, 2011

Pierre Investments, Inc.
S580 LBJ Freeway, Suite 550
Dallas, ‘D4 75240

RE: Purchase Contract for 2000 and 2004 Saint Pierre

Tu Whom It May Cuncem:

As per your request, I am Icuing ynu or anymlu in your firm know that our contract dated
October 01. 2010. vmflining no propenics located at 2000 and 2004 Sr. Pierre in Carrollton, was
terminated due to unexpected dumping activities discovered upon my last visit to the site- I was
not imcrcstcd in carrying forward the responsibilities ofpoiaemial cnvironmenml claims to deal
with aflcr the closing. Sony that] walked away from the properties and the house construction,
but ! alsn didn’t have time nor could I afford any clean-up disputes, environmental charges, or
855055708015.

Regards,

/

j V
 I C

Inna Geyvandova
2309 Foxcreek Drive
Plano, TX 75082

rlprii 30, 2011

Pierre Investments, inc.
5580 LBJ Freeway, Suite 550
Dallas, TX 75240 _

RE: Land Purchase Contract for 2000 and 2004 Saint Pierre and Construction

To Whom It May Concern:

As I already stated earlier in my letter, l am confirming to you or anyone in your firm that our Land
Purchase Contract dated October 01, 2010, pertaining to the propertlgs listed algqve, was terminated due
to unexpected dumping activities discovered upon my site visit. I w§s'g;éar so Cipoiimniy last visit totha pcopertyfwherpl discovorélfsoiieral piles of unknown materials z
being dumped onto the site by construction trucks. l never anticipated nor agreed for being engaged in
Mr’ your continuous environmental responsibilities. I didn't have time nor could I afford the continuous clean-
up disputes, environmental charges or assessments, and therefore, I decided to walk away from purchasing;
any of these properties and/or continue on with my anticipated construction project.

Regards, i

. 5_ '.' v _ ,_
4 is , W V _ ~-am ~_ . 7 ..
" -. I ‘ ' -.»
lnna GeWa_-, __gva_'i '

IN WITNESS WHEREOF the undersigned have exécuted this Affidavit as of the Effective Date.

STATE OF TEXAS §
§
coumv or lg Mg; §
This instrument was acknowledged before me this 30 day of égg-1 / 2911, by M5_ "ma
Geyvandova

\_, iv‘Q W“ nomnvvusuc as d 4” ’/ as d
'®' STATEOFTEXAS NOTARY PUBLIC in and for the State of Texas
“”' ‘*9 MYCOMM.EXE5i22l20l2
L
 91
Ken Gazian — February 26, 2014
Direct Examination by Mr. Musgrove

Q Per?

' A Per lot.

Q So how much did you pay to the closing ——

sorry, the title company?
y A I paid 74 something. $74,500.

Q Is this a copy of the check, cashier's
check?

A Right.

Q What was the price that you paid for the

liens?

A My mistake. $73,500.

Q Were you ultimately damaged as a result of
the dumps?

A I lost two my contracts for sale of the
lots. I lost my two contracts to build two homes. I
paid extra 10 percent on the city liens that they
assessed the properties. I paid taxes. I paid
1homeowners association dues. Everything that I had

to hold on to the lots, try to find another seller ——

another buyer who will not only buy the land, but
lgive me the opportunity to build because I'm a
builder. I'm not in flipping properties.

>
Q Now, you stated that you want to itemize
>

your damages here. So there was —— the contract with
your sister was for how much?

itfiin-Q. , __ ._..

Sheretta L. Martin, CSR — 162nd Civil District Court
Phone: 214-653-6260
Email: slmartin@dalIasCounty.org
 92
Ken Gazian - February 26, 2014
Qn—— _ Direct Examination by Mr. Musgrove
_ _ _*'

A Contract for sale of the land?

Q Yes.

A $160,000.

Q How much was the contract for the sale of
the lots with Mr. Fabian?

A $84,000.

Q So is that a difference of $76,000?
. A If that's what you have, yes.

Q Now, you also stated that you lost the sale
on the —— the profit for the construction of the
homes?

A Yes, correct.

Q Now, what was your total profit for that,
your profit you would have made?
I A My normal profit or discount to Inna?

Q Yes, for Inna.

A For Inna, my profit would have been $75,000
for each house.

Q And how did you come to calculate the 75?
A Simple. It's -— I profit 55 -- I profit
30, but I discounted to Inna to $25 per square foot.

That's 3,000 square foot -- I normally profit $30 per
square foot. I discounted to Inna $25 per square

foot in the construction times 3,000 square feet
times two homes. That's $75,000 times two. That's

. Jr J" '
Sheretta L. Martin, CSR — l62nd Civil District Court
Phone: 214-653-6260
Email: Slmartin@dallascounty.org
 92
Ken Gazian — February 26, 2014
Direct Examination by Mr. Musgrove

$150,000.
Q Now, the 3,000, is that the -— was that the

contract? Is that what you're anticipating building

a 3,000 square foot home?

A I think so. It's even in the contract.

Q Did you have any other expenses involving
the upkeep and maintenance of the lots for the two
years?

A Small stuff. Mowing grass, homeowners
association. I paid taxes to the City of Carrollton,

taxes to the independent school district.

Q Now you stated that one of the —— were
there any liens that had to be paid during this time,
any interest on those liens?

A 10 percent interest per year, yes.

Q And do you have any -— did you receive any
statements from the City of Carrollton regarding
these liens?
A Sure.

MR. MUSGROVE: At this time,
Your Honor, I would like to offer Exhibit 24 into

evidence?

THE COURT: 24 is already admitted.
< Q (By Mr. Musgrove) Ken, what is this -- what
is this picture? What is this document?

Inn: I I

Sheretta L. Martin, CSR - 162nd Civil District Court
Phone: 214-653-6260
Email: s1martin@dal1ascounty.org