Terrence Mann and Evelyn Mann v. Kendall Home Builders Construction Partners I, Ltd.

ACCEPTED
14-13-01069-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
4/17/2015 4:49:04 PM
CHRISTOPHER PRINE
CLERK

NO. 14-13-01069-CV

FILED IN
14th COURT OF APPEALS
In the Fourteenth District Court of Appeals HOUSTON, TEXAS
Houston Division 4/17/2015 4:49:04 PM
CHRISTOPHER A. PRINE
Clerk

TERRANCE MANN and EVELYN MANN
Appellants,

v.

KENDALL HOME BUILDERS CONSTRUCTION PARTNERS I, LTD.
Appellee.

MOTION FOR REHEARING

TO THE FOURTEENTH COURT OF APPEALS:

Defendant/Appellee Kendall Home Builders Construction Partners I, Ltd.

moves the Court for rehearing. The Court misapplied the correct standard of

review, erroneously evaluating the loan origination fee issue in paragraph

22(a) of the Plaintiff’s Original Petition (a claim of StarTex error) without also

referring to other more relevant paragraphs and relevant testimony in the

sanctions hearing. (CR 4, DX-5, pp. 10-11; Appendix 1, 2). In evaluating the

$5,000 incentive this Court analyzed paragraph 22(b)(also a claim of StarTex

error) without evaluating paragraphs 30(a), 31(b), and the testimony of Mr.

Hooper in the sanctions hearing. (CR 4; DX-5, pp. 10-11, Appendix 1, 3).
The trial judge correctly found these claims to be violations of Rule 13. All

other claims were also groundless, frivolous, and filed in bad faith.

The Court makes two incorrect assumptions with regard to Kendall

Homes’ argument relating to the claims for an extra $5,000 in incentives.

These two erroneous assumptions lead the Court to an erroneous conclusion.

The record does contain evidence that the Manns violated Texas Rule of Civil

Procedure 13 and under a correct application of the abuse of discretion

standard the evidence is more than sufficient to sustain the trial judge’s award

of sanctions.

In the concurring opinion Chief Justice Frost contends that “every single

claim” in the petition must have been groundless, that the inquiry is not “is any

claim” groundless but “is every claim” groundless? This is an erroneous

proposition of law as the cited authority does not support the conclusion and

factually erroneous as every claim in our case was groundless.

1. Standard of Review.

The Court correctly cites the standard of review as abuse of discretion,

with the judgment upheld if some evidence supports it. The Court correctly

notes that sanctions can only be awarded for the conscious doing of a wrong,

sanctions are not appropriate in cases of bad judgment, negligence, or when

Page 2 of 14
based merely on surmise or speculation, and a party cannot be sanctioned

for an allegation relating to the amount of damages in a pleadings. But this

case involves the conscious doings of many wrongs (RR 47-48, 54, see

Appendix 4), does not involve surmise or speculation, does not involve

negligence or bad judgment, and is not based on an allegation that the

Plaintiffs’ written demand for damages is sanctionable. The judgment is

supported by evidence.

With respect to the factual issues to be examined, the correct focus of

time is July 30, 2010 when the Plaintiffs’ Original Petition was filed, not a year

earlier on July 31, 2009 when the HUD-1 was executed during the

transaction. (DX-2, p. 3).

2. Overall indicia of groundless, bad faith, and harassment.

The scenery behind the portions of the painting under the appellate

microscope is of some relevance. The trial judge reviewed evidence of the

following:

A. Partial summary judgment was granted on almost all claims. (RR
54, 56).

B. The Plaintiffs filed no required pre-trial materials. (RR 30).

C. The Plaintiffs did not dismiss their claim. (RR 30).

D. The Plaintiffs did not appear for trial. (RR 30).

Page 3 of 14
 E. The Plaintiffs gave no indication to Kendall Homes that they
intended to abandon their claims. (RR 30).

F. Plaintiff’s counsel failed to give Kendall Homes a valid phone
number or address where he could be contacted. (RR 63).

G. Evelyn Mann was repeatedly listed by name as a plaintiff in both
pleadings filed, and referred to as a plaintiff numerous times, yet
she tried to evade sanctions by claiming she was never a plaintiff.
(CR4, 38; RR DX-5, 8, 9; RR pp. 24-29, 46).

The pleading should be evaluated in the context of this backdrop.

3. The $5,000 incentives claim was groundless, in bad faith, and for
harassment.

The proposed Addendum A to the contract was internally contradictory

and therefore Kendall Homes never accepted it. (DX-1; RR 8, 9, 14). Kendall

Homes’ intention was to provide a total of $5,000 in incentives. (RR 8-11, 15,

18). Since each page labeled Addendum A was prepared by the Kendall

Homes salesman, in fairness to their customer Kendall Homes fixed his error

by supplying $10,000: not $5,000 and not $8,000. (RR 15).

The opinion analyzes paragraph 22 of the Plaintiffs’ Original Petition

which alleges claims against StarTex Title Company, not Kendall Homes, as

reflected in the document and was emphasized by Mr. Hooper at the hearing.

(CR 4; RR 13). It also falsely alleges, “There is no record of the $5,000

incentive either having been credited to the Manns previously . . .”

Page 4 of 14
 The Plaintiffs’ Original Petition refers to the $5,000 cash incentive as

something that could be used for appliances or taken as cash. (CR 4, ¶16).

The petition then falsely claims:

A. The Manns were “fleeced.” (¶18).

B. The incentives were “basically fabrications.” (¶23).

C. The incentives were offered “with no intent to pay them.” (¶30a).

D. The incentives were “not applied.” (¶31b).

The documentary proof conclusively disproved all these claims. (RR; DX-4).

The Manns agreed – in writing – to the payments and specified the recipient

of each check and the amounts. (RR; DX-3). But the Manns alleged that

they should still get another $5,000 because these checks were not “the same

as cash on the HUD.” (RR, p. 37).

The effort to get the same $5,000 twice was groundless and in bad faith.

The Manns took a written document that provides, “Buyer to have a $5,000

incentive,” and after receiving the $5,000 groundlessly tried to transform the

agreement into a requirement that the five checks totaling $5,000 be “the

same as cash on the HUD.” (RR pp. 37-38). But nothing required the $5,000

to be applied on the HUD: the Manns just made up that part of their claim.

The Manns pled the $5,000 incentive was a fabrication offered with no intent

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to pay it even though they knew it had been paid. They tried to keep the

$5,000 paid in the form they requested (checks for appliances) and get an

additional $5,000. The trial judge was well within his discretion when he

decided this groundless claim was sanctionable.

The Court’s opinion has several erroneous assumptions. Kendall

Homes never alleged sanctions were appropriate because of a request for an

amount of damages. So the “if it is Kendall’s position” language is an

erroneous assumption. Kendall Homes’ position is that no contractual

language ever required the $5,000 cash incentive to be “paid on the HUD.”

The Manns knew it was paid to their specifications and satisfaction. The

Manns did not have to sign a formal release. The filing of a suit to be paid the

same money twice based on a groundless construction of contractual

language is a bad faith claim.

The Court writes that “Kendall appears to assume” their payment

extinguished claims, but even though no unpaid actual damages exist they

can support punitive damages. But Kendall Homes does not assume that.

Kendall argues the Manns wanted $5,000, received $5,000, and then

distorted their contractual language in a groundless way in a bad faith effort

to recover the $5,000 twice plus punitive damages. There is plenty of

Page 6 of 14
evidence proving Kendall Homes was correct, and under the proper

application of the standard of review the judgment should be affirmed.

The Court’s opinion devotes a paragraph to the non-payment of the

$5,000 on page 16. But the paragraph focuses on the wrong time period (the

closing instead of when suit was filed). When the Manns filed suit there was

no factual basis for the claim that the $5,000 had not been paid: it was a

known lie. There was no legal basis to argue it had to be “paid on the HUD”:

the language only said “Buyer to have $5,000 incentive.” Thus it was always

a bad faith and groundless allegation, especially when expressed against

Kendall Homes as “offering incentives with no intent to pay them” and “$5,000

incentive not applied.”

4. The $1273 loan origination fee claim was groundless, in bad faith,
and for harassment.

The Court’s opinion misapplies the standard of review and focuses on

¶ 22(a), another claim against StarTex.

The Mann’s argument is based on an outrageous effort to misapply a

worksheet (DX-10) and falsely claim it formed part of the sales contract. (RR

32-36). The bad faith effort is false: the worksheet is not part of the contract.

(RR 40-41). Their name or lot is not even on it. No witness to events ever

testified that the Manns could stack coupons and get both $5,000 in closing

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costs and a $1,273 loan origination fee: the truth was they were to receive

$5,000 total in closing costs including the loan origination fee. (RR 18). The

worksheet itself caps the incentive at $2,200. (DX-10). Kendall Homes

increased it to $5,000 but that was enough for the Manns.

This entire claim is in bad faith because it assumes – with no proof ever

given – all of the following:

A. The Manns used an approved lender,

B. The worksheet (DX-10) was part of the contract, and

C. The Manns could stack a $1,273 loan origination fee and a
$5,000 closing cost incentive into a contractual obligation (despite
the $2,200 worksheet cap).

Trying to sneak a worksheet that was never part of a contract into the

contract is a classic act of bad faith, taken to support a groundless position,

and the trial judge had every reason to be appalled.

Item 5 of this Court’s “uncontroverted facts” is both controverted and

wrong. No separate addendum existed. Each Addendum A to the contract

(DX-1) says, “Seller will pay up to -0- loan discount points.” Mr. Briggs

testified in his eight years at Kendall Homes the worksheet (DX-10) has never

been a part of the contract. (RR 40-41). In footnote 8 the opinion quotes

portions of testimony where Mr. Briggs was imprecise and failed to catch the

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phrases “the contract” and “the addendum” in Mr. Hooper’s questions. (RR

17). But Mr. Briggs’ answers over the totality of his testimony – his words, not

Mr. Hooper’s words in questions – are clear enough and fully support

sanctions when the correct standard of review is applied. Mr. Briggs spoke

of passing any lender discount to the customer (RR 17), paying the origination

fee (RR 17), and then emphasized, “There’s nothing that says it’s additional.

It says that you get a total of $5,000 in closing costs.” (RR 18). When the

witness was focused on the issue of whether the worksheet discussing the

loan origination fee (DX-10) was part of the contract he was clear. It was not

part of the contract and never has been. (RR 40-41).

5. The Real Estate Settlement Procedures Act and Texas Insurance
Code claims were groundless, in bad faith, and for harassment.

The RESPA and Insurance Code claims are found at paragraphs 24-28

of the Plaintiffs’ Original Petition (CR 4). They falsely assume, with no proof,

A. Kendall Homes required a particular title company, and

B. StarTex paid a kickback to Kendall Homes pursuant to an
agreement.

Presuming this is in good faith stretches the presumption beyond its normal

tensile strength. The Manns paid $732.75 to StarTex, then demanded

Kendall Homes pay them 300%: $2,198.25.

Page 9 of 14
 But Kendall Homes has never required any buyer to use any title

company. (RR p. 12). Accusing Kendall Homes of an illegal kickback was

easy, but proving it was impossible since it never happened. Wrongfully and

falsely accusing a company that sells to the public of a kickback, in a publicly

filed document, is a sanctionable action.

6. The DTPA claims are groundless, in bad faith, and for harassment.

The DTPA claims are found at ¶ 29-31. The following allegations were

falsely made as to Kendall Homes:

A. “Offering incentives with no intent to pay them,”

B. “Forcing them to use a particular title company,” and

C. “Ignoring contractual terms that require a payment of an incentive

(loan origination fee) in the preparation of the HUD-1.”

All are false and disproved in testimony and documents discussed previously.

All are in bad faith: they were known lies when written.

7. The civil conspiracy claim was groundless, in bad faith, and for
harassment.

This is ¶ 33. A conspiracy is an agreement to commit a crime: it is not

an allegation to be publicly made with no support. Yet the Manns farcically

claimed the homebuilder and title company worked “in concert” to “force an

unsuspecting buyer to buy the home” and “finance it with an inside company.”

Page 10 of 14
There was never a hint of evidence that StarTex had any involvement in the

contractual process or the finance decisions: these claims are too ludicrous

for words. The proof is conclusive that the Manns obtained the house they

selected with $10,000 in incentives. The Manns expressed gratitude more

than a month after closing. (DX-3). Reading the pleading implies Kendall

Homes puts buyers under duress and swindles them at will: the truth known

to the Manns was they wanted to buy their home, they obtained $10,000 in

incentives, they were never forced to do anything, and there is no plausible

theory based in reality under which StarTex Title and Kendall Homes could

possibly unite to benefit themselves by forcing the Manns to buy a home.

8. The fraud claim was groundless, in bad faith, and for harassment.

The fraud allegations are in ¶ 34 and are fully rebutted above.

9. The breach of fiduciary duty claim did not apply to Kendall Homes.

This is ¶ 35 of the suit and only applied to StarTex.

10. The concurring opinion misreads and misapplies Nath.

The trial court, Court of Appeals, and Supreme Court all disapproved of

Dr. Nath’s abuse of Dr. Shenaq’s medical history and records. This clearly

formed the primary reason for the sanctioning of Dr. Nath. The trial court

called it “an abuse of process” and “a form of extortion.” Nath v. Texas

Page 11 of 14
Children’s Hospital, 446 S.W.3d 355, 366 (Tex. 2014). The Supreme Court

agreed that using a legal mechanism to force damaging, irrelevant information

into the public domain “and thereby compel a more favorable settlement”

constitutes an improper purpose. Nath, 366. But the misuse of health

information is not a cause of action or a claim.

The Sixth Amended Petition alleged a cause of action for “intentional

infliction of emotional distress and conspiracy to commit same.” (See

Appendix 5, a true and correct copy of Nath’s Sixth Amended Petition). The

Supreme Court never held the cause of action to be groundless, in bad faith,

or for harassment. Yet the Court did conclude that “all of Nath’s petitions are

sanctionable.” Nath, 371. There is simply no language in Nath that supports

the idea that every claim must be groundless. Rule 13 requires “the

instrument” to be groundless. Not every claim and not every cause of action:

just the instrument.

If fifteen outrageously groundless claims are filed, and one legitimate

cause of action also gets alleged, it cannot be the law that no sanctions are

appropriate. The Texas Supreme Court and our Courts of Appeal have

repeatedly made it clear that there is a remedy for abuse of the pleading

Page 12 of 14
process and nothing in Nath limits those remedies to proof that every claim

is groundless.

Even if Kendall Homes is wrong in this legal analysis, Kendall Homes

is correct that applying the proper standard of review to the facts of our case

results in the conclusion that all of the claims filed were false, unlikely to

receive evidentiary support, based upon efforts to falsify the contract and

distort its meaning, and some evidence supports the trial court’s imposition

of limited sanctions.

Respectfully submitted,

HERZOG & CARP

By: /S/ Harry Herzog
Harry Herzog
State Bar No. 09548200
P.O. Box 218845
Houston, Texas 77218-8845
713-781-7500 Telephone
713-781-4797 Facsimile
Hherzog@hcmlegal.com

ATTORNEY FOR KENDALL HOME
BUILDERS CONSTRUCTION
PARTNERS I., LTD

Page 13 of 14
 CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing Appellee’s
Motion for Rehearing has been sent to the following parties and/or counsel of record listed
below via this court’s electronic filing system and in the manner listed below on the 17th day
of April, 2015.

Via email: mhooper@hooperlawfirm.net
Michael R. Hooper
The Hooper Law Firm
State Bar No. 24037849
PO Box 2134
Frisco, Texas 75035

/S/Harry Herzog
Harry Herzog

Page 14 of 14
Appendix
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Flied 10 J!-IY so A2;09
LDrtn Jacklon • Dletltcl Clt!k
2010-47169 I Court: 113 HantsCou~
ED101J01~
By: Nelllon Cuero
CAUSE N O . - - - - - -

TERRENCE MANN and EVELYN MANN, § IN THE DISTRICT COURT OF
§
Plaintiffs, §
§
v. §
§ HARRIS COUNTY, TEXAS
KENDALL HOME BUILDERS §
CONSTRUCTION PARTNERS, I. LTD and §
STARTEX TITLE COMPANY, L.L.C. §
§
Defendants. § JUDICIAL DISTRICT

PLAINTIFFS' ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES, Terrence Mann and Evelyn Mann (collectively "Plaintiffs" or "Manns")

and file this Original Petition complaining of Kendall Home Builders Construction Pattners, I.

LTD. ("Kendall Homes"), and Startex Title Company, L.L.C. ("Stattex") and which would

re~pectfully show the Cou11:

I,
DISCOVERY

l. Plaintiffs intend to conduct discovery under Leve12 of TEx. R. CIV. P. 190.

II.
PARTIES

2. Plaintiffs are individual residents of Harris County, Texas and may be served through

their counsel of record.

3. Defendant Kendall Home Builders Construction Partners, I. LTD. is a Texas Limited

Partnership and can be served via its Registered Agent for service of process, C/0 Kenneth D.

Wickens, 427 Mason Pao·k Blvd, Katy, Texas 77450.

Pl.AINTIFF'S ORIGINAL PETITION PAGE 1

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4. Defendant, StarTex Title Company, L.L.C. is a Texas Corporatton, and can be served

via its Registered Agent for service of process, Edgar D. Lester, 4700 W. Sam Houston Pkwy N

#145, Houston, Texas 77041.

5. At all times relevant hereto, Defendants acted as agents for and on behalf of one

another and in conspiracy with one anothe1·.

III.
JURISDICTION

6. This Court has subject matter jurisdiction over the controversy because the amount in

controversy exceeds the minimum jurisdictional limits of this CoUI1,

IV.
VENUE

7. Venue is proper in this county because all or substantially all of the events giving rise

to the causes of action listed below took place in Harris County, Texas. The defendants also

maintain their principal place of business in Harris County.

v.
ACTS OF AGENTS

8. Wheneve1· in this Petition it is alleged that any Defendant performed any act 01· thing,

it is meant that the respective Defendant(s) or its agents, servants, employees, or representatives

performed such act or thing and at the time such act or thing was done, it was done with the full

authorization or ratification of said respective Defendant(s) and was done in the normal routine

course and scope of employment as respective Defendant(s) officers, agents, servants,

employees, or representatives, unless otherwise specified.

VI,
FACTS

A, Searching For The American Dream

Pl.AINTIFF'S ORIGINAL PETITION PAGE 2

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9. On June 26, 2009, and after a long and exhaustive search, TeiTence and Evelyn Mann

found what they believed was the perfect candidate for their first-ever home. On that day the

Manns, feeling all the typical first-time-buyer emotions: excitement, anxiousness, and

trepidation, met with a Mr. Doug Birdsell, salesperson for Kendall Homes in the Saddle Ridge

Subdivision in Humble, Texas, to go over the terms and conditions that would lead the Manns to

the American Dream of home ownership.

10. It was probably fairly obvious to Mr. Birdsell, who appeared to have extensive

experience selling homes, that the Manns were novice home buyers. He ce1~ainly knew that they

had never purchased a home before as they informed him of the fact that this was their first

pm·chase- spurred on by the generous tax credit offered by the Federal Government.

B. The Bait and SwiU:h

II. Not wanting to waste any time, Mr. Birdsell began by discussing the pl'ice of the

home. Surp1isingly, however, this discussion (as it was ce1~ainly not a negotiation) did not

involve the buyer-salesman haggling that often leads the parties to an agreement where each

believes they got the best deal. Instead, Mr. Birdsell basically presented two price options for

the home. The fu-st option allowed the Manns to purchase the home at the asking price of

$127,000.00. The second option, which Mr. Birdsell labeled "the no closing cost option"

provided for an increase of the sales price of the home to $132,000.00 and then Kendall Homes

would pay $5000.00 towards closing costs.

12. To help drive the point home, Mr. Birdsell provided a graphical aid captioned

"payments/costs" which showed tho Manns tho difference in the total "out of pocket" costs to

buy the home based on which option they chose. There are several remarkable items contained

in this, assumingly standard, fmm. First, in bold letters next to the caption arc the words "FHA

PLAINTIFF'S ORIGINA~ PETITION PAGE 3

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Loan with Comparison." In the middle of the page, between the option one and two

comparisons, is a box containing "Credit Score 580." At the bottom of the form is another box

which promotes the fact that "Seller To Pay For Origination Fee, When Buyer Uses Approved

Lender."

13. What make-~ these items "remarkable" is that this form seems to represent loan

information or terms, and yet has no "Equal Housing Lender" disclosure or Annual Percentage

Rate as required. It was also promulgated by Mr. Birdsall (M his name appears after the "Sales

Representative:" field and he provided the form to the Manns) and yet there is no evidence that

Mr. Birdsell is a licensed or approved FHA loan originator. If he is, there was certainly no

disclosure of that fact, as is also required by the Real Estate Settlement Procedure's Act. FHA

had a published minimum credit standard of 620 at the time, so it is unclear why the number

"580" appears on the form. Finally, there is no furthet definition or clarification of what,

exactly, an "Approved Lender" is; or what the maximum dollar amount or percentage for the

"Origination Fcc" the builder is willing to pay.

14. Additionally, in another document, labeled "Addendum A," and also provided to the

Manns on the same day, Kendall Homes agreed to pay for the Owner's Policy of Title Insurance

if, and only if, the Manns used the builder's "approved lender." 1 However, there is no

designation in the Sales Contract or the Addendum that mentions how a closing agent will be

selected save the following language:

"The sale under this contract shall be closed within three (3)
days after the completion date as defined below in this contract
and under those Sales Conditions and Closing Practices set
forth on page two of this contract and by reference made a
part hereof, at such time and place as Selller may designate."

Tho Plllintiffs tire unable to provide lillY facts th~t would rovetllthc business reason for the builder paying for a title
1

policy for the use of nu unreloted and unaffiliated service and therefore relies on the l)efendants to provide the
cxphmation.

PLAINTIFF'S OR! GINA. PETITION PAGE4

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15. Perhaps if there were actually a paragraph captioned "Sales Conditions and Closing

Practices on page two (or any page) of the Sales Contract, Plaintiff could provide clarification for

the language quoted above in tenns of the choice of settlement agent, Unfortunately, since no

such paragraph exists anywhere in the Sales Contract, Plaintiff is unable to do so.

16. Presumably to "seal the deal," Mr. Birdsell offered the Manns an additional $5000.00

"incentive" (as it is labeled on Addendum A) to the Manns which he stated could be used for

their closing costs, the purchase of appliances, or that they could just take it in cash at the

closing. While an exciting proposition to the unlearned Manns, the reality of this misleading

promise is that, first, it would cause the Manns to excite the six percent seller contribution cap

imposed by FHA (incentive offe1-ed = $10,000 plus origination fee: incentive allowed =

$7920.00); and, second, FHA (and pretty much every lender) does not allow a bon-ower to

receive cash back at the closing table; unless it is a return of excess earnest money.

17. Up until this point, the Manns had been doing their own research to find a mortgage

company. However, after Mr. Birdsell gave them this document which promises the payment of

large (and impossible) incentives, the approval of a loan for a lower CI'edit score than ally other

FHA lender had offered, and the quite inexplicable payment for the Owner's Policy for the usc

of an "Approved" but not "affiliated" lender, the Manns were sold.

C. The Choice of Settlment Providers

18. After being completely fleeced at the contract signing, the Manns audaciously

infonned the builder that they would like to choose the settlement agent (title company) since

they had shopped and found one in particular that seemed to offer a low fee schedule. First,

Mr. Birdsell informed them that they had no choice in the matter a!ld that Kindall Home.<; would

choose the title company (although this assertion is not entirely clear in the contract). When the

PLAINTiff'S ORIGINAL PETITION PAGES

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MannH provided greater detail in an email exchange with Birdsell, he pushed the question off to

corporate who provided a very interesting response. The builder informed the Manns that they

could not have possibly found a bette1' deal because it was quite impossible for a title company to

accurately quote fees and costs without having the builder's file in front of them.

19. This asse11ion was, of course, l'idiculous. Title premium is regulated in Texas; so if

one knows his purchase price and loan amount (which thanks to the "Cost Comparison" sheet the

Manns certainly did) then a title company can provide a very accurate estimate of fees and costs.

However, being ignorant of this fact, the Manns were an easy target for a builder that deals with

the issue every day.

D. Closina Day Surprises
20. About a month after they signed the Sales Contt·act, the house and the Manns were

ready. On July 31, 2009, the Manns purchased a cashier's check for their closing costs and

headed to Startex for the closing.

21. One of the duties of Startex is to prepare the HUD-1 Settlement Statement; a

~tandardi•ed form promulgated by HUD to show the receipt and then subHequent diHbursement

of all monies in the tt·ansaction. In order for Startex to prepare the HUD·l con-ectly, it must look

at the sales contract to find the correct pm·chase price, party name(~). incentives to be paid, etc.

lt also has to carefully examine the lender's instructions to insure those fees and costs are

accurately stated on the HUD-1.

22. Even a quick examination of the HUD-1 shows Startexs perfo1mance with respect to

those duties here is, to say the least, lacking. The litany of errors and failures of Startex in this

regard are listed as follows:

Pl!IINTIPF'S 0RIGINA~ PETITION PAGE 6

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a. The builder never paid the mOitgage 01igination fee as promised. While Line 801

reflects an origination fee charged to the builder, the markings on the form made

by the closing agent at Startex show that amount to be added into the $5000.00

closing cost incentive which the builder also, and separately from the origination

fee, agreed to pay, Coincidentally, the origination fee that the lender, Open

Mortgage LLC did charge, when added to other lending costs and prepaids added

up to $5000.00 exactly. Given the odd nature of such a charge (.98% origination

fee), it seems clear that the builder had some influence on the lender's pricing.

b. There is no record of the $5000.00 incentive either having been credited to the

Manns pl'eviously or l'eflected on the HUD-1; yet Stattex made no inquiry to the

builder about this. The Manns inquired, to be sure, and then were subsequently

told by Mr. Birdsell that they would get a check from Kendall Homes after the

closing.

c. Startex charged the Manns $25.00 for a title search fee which is not allowed in

Texas by virtue of the Te11as Insurance Code and the regulations promulgated by

the Texas Depat1ment of Insurance.

d. Startex chru·ged the Manns an attorney fee for document prepru·ation; but the

Plaintiffs never requested such preparation or knew about the charge.

e. Startex charged the Manns $275.75 in title premium, However, since the Manns

were required by Kendall Homes to use Startex, RESPA forbids such a charge.

f. Startex charged the Manns an escrow fee of $300.00: but only chru·ged Kendall

Homes $250.00 thereby giving the builder an obvious discount for the refmal of

settlement services which is prohibited by RESPA as well.

PLAINTIFF'S ORIGINAl. PETITION PAGE 7

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g, Sta1tex charged the Manns $65.00 delivery fee but it is unclear what they

delivered that gave rise to such a cost.

h, Sta1'tex charged the Manns $22.00 for a copy of deed restrictions that had already

been given to the Manns by Kendall Homes over a month ago.

i, Sta1'tex charged the Manns $30.00 to record a deed that cost $20.00 to record; and

$40.00 to record a Notice To Purchasers document that cost $20.00 to record.

Such overcharging is specifically disallowed by the Texas Department of

Insurance,

E. The Bottom Line

23, It seems reasona.bly clear how the Defendants wo,'ked together to take advantage of

the Manns. The builder first sells the house by manufacturing a "good deal" with the payment of

closing costs, when really the buyer is paying the closing costs through the inflated sales price of

the home. Next the builder dissuades unsuspecting buyers from shopping for services by

promising them credit guidelines and incentives that are basically fabrications. Finally, the

builder requires the use of the settlement provider so that they can, at the very least, control the

transaction and the money flow. The other players, such as Startex, take the "captured referral"

l1S an opportunity to gouge, overcharge, and basically ignore the fiduciary duties imposed on it

by the law.

CAUSES OF ACTION

A. VIOLATION OF RESPA AND TEXAS INSURANCE CODE

24. Section 9 of Real E~tate Settlement Procedures Act ("RESPA") provides:

No seller of property that will be purchased with the assistance of a federally
related mortgage loan shall require dh·ectly or indirectly, as a condition to selling
the property, that title insurance covering the property be purchased by the buyer
from a particular title company.

Pl.i\INTIFF'S ORIGINAL PETITION PAGES

11
ProDoc Faxservice Page 50 of 106

25. The required use of a particular settlement agent (Strutex) and then subsequent

charges to the Manns of fees and costs charged by that agent, violated RESPA, Section 9(a), and

Regulation X §3500.16.

26. By reason of their aforesaid conduct, and pursuant to Section 7 of RESPA,

Defendants are jointly and sevemlly liable to Plaintiffs for treble the amount of their title

in~urance charges paid in connection with the purchase of a re~idential dwelling from Kendall

Homes together with costs and reasonable attorney's fees. The total damages alleged under this

section (exeusiveofattomey's fees) is therefore: $2198.25.

27. Defendants additionally violated RESPA Section 8 and Section 2502.051 of the

Texas InsUl·ance Code by providing a rebate and/or kickback to Seller, Specifically, in exchange

for the referral by Kendall Homes to their title company, Startex discounted Kendall Homes'

costs by undercharging the escrow fee and charging the title premium to the Manns which they

knew was not allowable under the law. .

28. In accordance with Section 8(a) and S(b), a seller who receives a fee, kickback or

"thing of value" pursuant to any agreement or understanding that business incident to or part of a

settlement service shall be referred to any person, or receives a percentage of any charge made or

received for the rendeling of a settlement service is liable to the person charged for the

settlement service involved in the violation in an amount equal to three times the amount of the

charge paid for such settlement service. The Manns paid a total of $732.75 to Startex and are

therefore entitle to damages in the amo11nt of $2198.25.

Pl.AINTIFF'5 ORIGINAL PETITION PAGB9

12
Proooc Faxservice Page 51 of 106

B. VIOLATION OF TEXAS DECEPTIVE TRADE PRACTICES ACT
29. In addition, with regard to the numerous misrt:presentations made by agents and

employees of both Kendall Homes and St'Vices which was known at

the time of the transaction when such failure to disclose such information was

intended to induce the consumer into a transaction which the consumer would not

have entered had the information been disclosed.

30. Since both Defendants, directly and indirectly represented that the contract obligated

the Manns to take certain actions which are prohibited by law:

a. Offeling incentives with no intent to pay them and by simply increasing the price

of the home to offset such incentives;

b. Forcing them to use a particular title company and then making them pay title

insurance premium), then both Defendants have committed a deceptive trade

practice within the meaning of the law;

c. lgnoling contractual terms that require a payment of an incentive (loan origination

fee) in the preparation of the HUD-1;

d. Charging for unallowable items (Search and Exam Fee);

PIJ\INTIFF'S ORIGINAL PETITION PAGE 10

13
ProDoc Faxservice Page 52 of 106

e. Overcharging for items (Delivery Fee; Recording Fees)

31. The economic damages suffered by the Manns as a direct result of the defendants

multiple mis>'epresentations are summarized as follows:

a. $1273 not credited for the loan origination fee

b, $5000 incentive not applied

c. $180 in overcharges for title fees (Startex charges)

d. $732.75 in title premium and fees (which includes the $180 above)

Total economic damages: $7005.75.

32. Since the defendants acted knowingly and purposefully in their web of deception, the

law allows the Manns to recove,· u·eble economic damages plus attorney's fees. This brings the

total alleged damage amount under this cause ofaetion to: $21,017.25 (exclusive of attorney's

fees).

C. CIVIL CONSPIRACY

33. It is clear from the facts that the Defendants work in concert to serve a common

purpose. As summariz;ed in paragraph 23 above, both Defendants work in concert to force an

unsuspecting buyer to buy the home, finance it with an "inside" company and close the

transaction with a "friendly" title company who will provide them discounts while at the same

time gouging the consumer. As a result of their concerted and purposeful actions, each

Defendant is liable jointly and severally for all damages to the plaintiffs.

D. FRAUD

34. Defendant Kendall Homes made numerous misrepresentations to Plaintiff during the

course of the sale and closing of the home as have been e~haustively outlined above. The

Manns, like any reasonable people, relied on the statements as to incentives, payments, and loan

PLAINTIFF'S 0RIGINA. PETITION PAUE 11

14
Proooc Faxservice Page 53 o£ 106

terms offered by Kendall Homes. But this reliance came at a price. The Manns did not receive

all of the incentives and they overpaid for their settlement costs. The damages as a result of this

reliance have been previously stated herein.

E. BREACH OF FIDUCIARY DUTY

35. There is no question that a title company owes a fiduciary duty to the buye1· as well

as the seller in its dealings with both. There is absolutely no question that by ignoring contract

terms, illegally charging for non-allowable items, by overcharging and then providing discounts

to Kendall Homes, Startex has breached the fiduciary duty it owed to the Manns. As a result, the

Manns have suffered damages in the amounts previously specified.

DAMAGES

36. As a direct and proximate result of the occu11ences made the basis of this lawsuit,

Plaintiffs were caused to suffer losses and damages as specified herein, which includes

reasonable attorney's fees where allowed by law or vested within the sound discretion of the

court, as the case may be.

EXEMPLARY DAMAGES

37. Pursuant to the Damages Act, Tex. Civ, Prac, & Rem. Code § 41.002(a), (b) and

41.003, to protect unwary consumers, and to discourage similar egregious violations, Plaintiffs

hereby request this Court award exemplary damages to the plaintiffs in an amount to be

determined by the Court.

JURY TRJAL DEMANDED

38. Plaintiffs demand that this case be set for jury Ilia! and tender the appropriate fee

with this filing.

PLAINTIFF'S ORIGINAL PETITION PAGE lZ

15
ProDoc Faxservice Page 54 o£ 106

PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs requests that upon final hearing,

that Defendant~ be cited to appear and an~wer, and, the Court enter judgment in favor of

Plaintiffs as herein plead and award prejudgment interest and post judgment interest as allowed

by law; and grant all other relief, in law and in equity, to which Plaintiffs tnay be entitled,

Respectfully submitted,

THE HOOPER LAW FIRM

lsi Michael R. Hooper
Michael Hooper
State Bar No. 24037849
2830 Commercial Center Blvd
Suite 103
Katy, TexM 77494
(281) 395-0724
(28 I) 395-0720 (Facsimile)
ATTORNEY FOR PLAINTIFFS

PLAINTIFF'S ORIGINAL PETITION PAGE 13

16
Appendix
2
 "PAYMENTS I COSTS" FHA Loan
with Comparison
in Saddle Ridge
DOUG BIRDSELL nffice: 446-6666 fu:

Buyer(5)N•me: Plan II :

Address: Model :

City: State: Zip: Lot II : Block/1: _ _

TOTAL MONTHLY INVESTMENT
Sales Price ............... $127,000 Sales Price ............. .. $132,000 ·
Down Payment{%) ........... 3.5% Down Payment(%) ........ . 3.5%
Down Payment (S) .......... - $4,450 Down Payment ($) ........ - $4,650
Base Loan Amt ........... $122,550 ,-- - ----.,.Base Loan Amt ......... .. $127,350
Credit Score
UMIP (Up Front MIP) ..... + $2,451 SSO UM£P (Up Front MJP) ........ + $1,910
Total Loan Amt ......... , $125,001 Total Loan Amt .......... $129,260
Interest Rate(%) ......... @ 4.5 % Interest Rate(%) .. ....... @ 4.5%
Principal & Interest........... .. + $633 Principal & lnterest............. + $655
MlP (Mongage Ins Protection) ... + $56 MIP (Mortgage Ins Protection) ...... + $53
EST Taxes (after Homestead) ... + $251 EST Taxes (after Homestead) ..... + $261
Est. Home Owners Ins .. ..... + $65 Est. Home Owners Ins....... + $65
('"Ccimptruon .with Closina Cosl
ii!d PteP"d.! Rolled Otck tiltG Loto'"J

*Est. Monthly Payment ( $1 1005 ,.10) "'Est. Moutbly Payment ( $1,034 Mo.)
TOTAL ''MOYE-lN" INVESTMENT
Down Payment ................ $4,450 Down Payment .............. .. S4,650
Closing Costs ................ .. + $2,800 Closing Costs ................. .. + $0

Prepaids .......................... + S2,200 Prepaids ................, ....... .. + so
("'CornpuitOII .wilh Cl..toa COlt
tnd PttPtlds Rolllld llt~ysicians that would result from fewer nerve-grafting surgeries would
~
~ significantly reduce their profitability.

(iii) While an employee of Baylor and in furtherance of Defendants' scheme to

discredit Dr. Nath, Dr. Shenaq wrote one or more letters falsely complaining of

Dr. Nath and having others sign the letters as their own, or exerted undue

pressure and duress to have them written and/or signed. For example, Dr. Arturo

-6-
 Armenta reportedly performed multiple surgeries for Dr. Shenaq when Dr.

Shenaq was not in the operating room. These surgeries were performed at First

Street Surgical Hospital in Houston and Cornerstone Hospital in the Rio Grande

Valley. On information and belief, at that time Dr. Armenta had limited training

and supervision, and yet was allowed to perform independent ~ations on these
~:@
patients as an agent of Defendants. Dr. Armenta appare~ would perform the

surgeries and Dr. Shenaq would bill as if he had {lb
p~.med the surgeries. Dr.
~
Armenta apparently would receive payment d~from Dr. Shenaq for his role

in performing these unsupervised operatio~ With this financial relationship
:iff'
with Dr. Armenta ongoing, Dr. SheQ~ed a false document purporting to be
a complaint by Dr. Armenta agaj!l§'bnr. Nath. Reportedly, on information and
~(!r

belief, Dr. Armenta refused~n this document and it was either later forged
1, ~-

or signed under duress. i:J~
(0
(iv) Drs. Grossman an~fjJilicardi, along with Baylor and TCH, knew that Dr. Nath

was concerned ~ut and knowledgeable of Dr. Shenaq's condition and were

fearful thaJ;fjt~ath
Q~
would make Dr. Shenaq's condition public. Baylor and

TCH ~Yquently prevented Dr. Nath from having access to patients and patient
o@j
~~·and continued to refer his patients to Dr. Shenaq. In an apparent attempt
-~
iQb further conceal Dr. Shenaq's compromised medical condition even after his
~
. ""'~ death, Baylor reportedly settled a lawsuit brought by Dr. Shenaq's estate for
several million dollars.

(v) On March 23, 2004, Dr. Shenaq operated on minor patient "JK" after falsely

telling the child's mother that Dr. Nath had disappeared from Baylor. The child's

mother had initially consulted Dr. Nath to take care of her child's brachial plexus

-7-
 InJury. (Ultimately, JK's mother allowed Dr. Shenaq to operate on her child).

At that operation, Dr. Shenaq petformed a phrenic to biceps nerve transfer,

resulting in paralysis of JK's diaphragm and permanent breathing difficulties.

(vi) In 2004, TCH scheduled "DS," the parent of a minor patient of Dr. Nath, for an

appointment, without informing her that Dr. Nath would no ~er be working
~@
at TCH. DS first discovered Dr. Nath was not there whe~':~%enaq entered the
~
exam room. At that time, Dr. Shenaq and TCH em ee Lisa Thompson told
"~
DS that Dr. Nath had simply left TCH and Ba~d they did not know where
he had gone. Given these representations0 ~·~ent forward with the exam with
~'W

Dr. Shenaq. Thus, Dr. Shenaq aQ~ndants deceived DS for their own
financial gain. o~"dJ
~
(vii) Also, in 2004, TCH, throuat<~ployees Lisa Davis and Lisa Thompson, on
"cr..
separate occasions told "~'another parent of one of Dr. Nath's minor patients,
. ~lll»
that among other t~ Dr. Nath had left Baylor and no one knew where he had
~~
gone-that he h~i:st disappeared. When, as a result of these false statements,

SW agreecl~
. Q•
examined by Dr. Shenaq, he falsely told her that Dr. Nath had

been~~ming unauthorized surgeries and the surgery Dr. Nath had petformed
of/jY
~~·daughter was experimental and had been disproved on adults. He also
{i~
~~formed her that any positive effect from the surgery would not be longstanding.
~· TCH also refused SW's request to timely transfer her records to Dr. Nath. Thus,

Defendants deceived SW for their own financial gain.

(viii) On June 14,2004, "AD," a parent of a minor patient of Dr. Nath, had contacted

Dr. Nath and stated that she would have gone to him had either TCH and Dr.

Shenaq advised her that Dr. Nath was no longer at the Clinic. The litigation

-8-
 revealed that Defendants' failure to inform AD that Dr. Nath was no longer at the

Clinic was intended to and did deceive her for their own financial gain. The

litigation further revealed that apparently Dr. Shenaq performed an inappropriate

surgery on her child, leaving scarring for no justified medical reason. When the

child was taken to Dr. Shenaq's office for follow-up care foll~g surgery, Dr.
•q)i
""''@
Shenaq initially refused to see the child, instead sending r~nts to perform this
~
duty. Reportedly, when the mother insisted that ~henaq see the child, he
.:;,~
verbally berated the child in front of the hor~·mother and ancillary office

staff when the child expressed pain duri~g. Shenaq's rough handling of her
immediate postoperative wound. AD,~
Q(!? a letter of complaint to Defendants
regarding this incident, notifying ~m that she was very unhappy because she
~
would not have allowed Dr. ~q to operate on her child if she had known Dr.
"~-
Nath was no longer wor~)with him.
"®
(ix) In 2004, "CB ," ano~~rent of a minor patient of Dr. Nath, understood that she
--~
had scheduled a~dical examination with Dr. Nath and TCH, but instead, when

she reporte
~e~d in the past, she allowed Dr. Shenaq to perform the surgery. Dr. Shenaq's
:p~
·y~d Defendants' deception for their own financial gain again denied the patient's
~~wishes.
(x) In 2004, Lisa Thompson told "JA," another parent of a minor patient of Dr. Nath,

that she had not seen Dr. Nath in weeks, that Dr. Nath was a "terrible doctor,"

and that TCH was conducting inquiries regarding him.

(xi) In 2004, Lisa Thompson and Dr. Shenaq told "SD" and "BD," parents of another

-9-
 minor patient of Dr. Nath, that Dr. Nath was no longer performing surgeries, but

instead had retreated to solely conducting research. As a result, SO and BD

allowed Dr. Shenaq to perform surgery on their child. Dr. Shenaq and Ms.

Thompson again deceived another of Dr. Nath's patients for Defendants' financial

(xii)
gam.
·~· *
. .!f;,
In late 2004/early 2005, TCH published a false letter st~g that Dr. Nath had

left TCH and gone into private research. ~~~
·~
\"'~
21. In late 2009, TCH has, on information and belief~ affirmative action to cause
the Texas Medical Board (TMB) to prosecute Plaintiff. TC~ used at least one document that
~
it received in its credentialing capacity in an intentioQ~t, together with Baylor, to advance
what is now clearly a professional vendetta against ~~th for having "blown-the-whistle" on their

reckless exposure of children to a half-blind ~~on. TCH apparently notified TMB attorney,
U'
Roger Calhoun, of certain depositions in th~se and caused Mr. Calhoun to be present at them.
:®!
During the deposition of Brenda Dre:_~.'"Dr. Nath's former assistant, she repeated outlandish

allegations against Dr. Nath
~
whic~re furnished to her by TCH lead counsel in a meeting a few
weeks prior to the deposition.~er, TCH's counsel, Mr. Mizell, was observed actively conferring
with Mr. Calhoun who ~Qd notes to Mizell during the deposition, and conferred at deposition
o c?fY
breaks with both T~nd Baylor's counsel outside the presence of Plaintiff's counsel. Following
~
the deposition of~. Devaul, although there are several reasons to doubt her credibility, TMB filed
~
a complaint ~inst Dr. Nath, parroting almost verbatim certain of the same allegations that were
furnished to and repeated by Ms. Devaul.

22. The most recent events in this litigation reveal that, the day after meeting with Dr.

Nath in January 2004 regarding Shenaq's blindness, Dr. Shenaq called a meeting of the Baylor

Plastic Surgery Faculty. At the meeting were several physicians, including but not limited to Dr.

-10-
Samuel Stal, Dr. Larry Hollier, Dr. Michael Klebuc, Dr. Jeffrey Friedman, and Dr. Aldona Spigel,

who were present together in a conference room. Dr. Shenaq stated to those assembled that Dr.

Nath was "a cancer that needed to be cut out." Later, after conspiring with Drs. Brunicardi and

Grossman to create the false letter of June 2004, Shenaq stated to these doctors and others that "Nath

would never work again." Dr. Shenaq further stated that he, Dr. Brunicardi, m:irnr. Grossman
~:@
would jointly benefit by increases in Baylor and TCH patient volume as·~e;ult of Nath being
."~
"fired." This deep hatred of Dr. Nath by these defendants was reveale>i.£Ja deposition of Dr. Stal
"~~·
on March 3, 2010. This awful revelation by Dr. Stal correspond~~at Dr. Nath now knows was

and is a vendetta against him by these Defendants as evideJl~by the previously unknown and
~
undiscoverable outrageous comments. Q:i/f/"
23. Dr. Nath is now suffering from extreJIL~motional distress that is the direct result of
~
the intentional vendetta aimed at him person~~Among other facets of Dr. Nath's emotional
G~)
distress is the fact that he, a world-class .~eon, a healer of children who has never had a
·~
malpractice lawsuit filed against him~~bas to absorb being characterized as a "cancer that needs

to be cut out." Additionally, TC~d Baylor have caused Dr. Nath's excellent care of injured
children to be considered sub-;;~"'\rd by the TMB. This has exacerbated the emotional injury. Dr .
.f'~
Nath and his wife live i~eatof the daily mail delivery for new accusations "under investigation"
os?iY
by the TMB? e,~Cif
<:i,~J
24. D~ath now understands that many patients were operated on or treated by Dr.
Shenaq at B~~and TCH after Dr. Shenaq had become partially or completely blind in one eye
after suffering a detached retina in November 2003, including patient JK (such patients are referred

to herein as "Eyesight Affected Patients"). Although Dr. Nath subsequently learned of Dr. Shenaq's

' Ironically, in his 14 years of practice, no claims or lawsuits have ever been leveled against Dr. Nath.

-11-
emergency surgery for repair of his detached retina and thereafter had suspected that Dr. Shenaq's

eyesight was severely impaired, he possessed no information at the time that could confirm the

lasting impact the surgery had on Dr. Shenaq's eyesight. However, as stated above, Dr. Nath

repeatedly raised the issues with individuals in leadership positions at both Baylor and TCH. Dr.

Nath also had knowledge that others repeatedly raised this issue with Baylor an~H. However,
~'@
apparently no action to remedy or address this serious issue was taken by eit~Baylor or TCH, and
~~
Dr. Shenaq not only continued to perform surgeries on minor patients~"'~e BP Clinic beginning
~~· ..
in early 2004, Baylor and TCH encouraged Dr. Shenaq to do so ~tinuous referrals of patients
to him. Even after Dr. Shenaq was fired from his position at0~.~ ,r in June 2005, both Baylor and
~
TCH continued to refer patients to him for treatment a~~ery.
Q
V. CAUSE OF ACTION: INTEN,;{I~?NAL INFLICTION OF
"'~
EMOTIONAL DISTRESS AND PIRACY TO COMMIT SAME
" .
25. Plaintiff incorporates herein ~@";reference the allegations set forth in paragraphs 15,
@!
45, 46, and 47 as though fully set fort~~rein.
~
26. At time of trial, D(Nath will prove that these defendants, acting singly or in

combination, engaged in ou~us
Q!
conduct as part of a small-minded, professional vendetta

designed to intentionall~JC:J\ct severe emotional distress upon him. As a proximate result of
o/ff
Defendants' intentig~ wrongful conduct, Plaintiff has suffered and continues to suffer severe
{i~~
emotional distr~iir which he is entitle to damages in an amount to be determined by the trier of
fact. Defen~ts' conduct also constitutes malice as defined in TEX. CIV. PRAC. & REM. CODE§
41.001(7) for which he is entitled to exemplary damages under§ 41.003(a)(2).

VI. DISCOVERY RULE

27. Plaintiff pleads the discovery rule as to the cause of action.

-12-
 VI. DEMAND FOR JURY TRIAL

28. Plaintiff demands a trial by jury and has previously tendered the appropriate fee.

VII. REQUEST FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that upon final

hearing or trial, Plaintiff have and recover from Defendants (a) actual, consequ~ffil, and punitive
~V!j:
damages as proven at trial; (b) costs of Court; (c) Pre-judgment and post-~ent interest at the
."~
highest lawful rates; and (d) all other relief, general and special, at l~d in equity, to which he
o@j
may show himself to be justly entitled. :t;J~

Respec!~ submitted,
~'l
~
DQ®JiJ. SHEA, P.C.

~: ~
·.~ Di\NiELiSHEA,Le Counsel
,c, ~· State BarNo. 18163850
rg~ 1928 West Bell Street
@:! Houston, TX 77019-4814
t:: :(t (713) 942-7500 Telephone
. \~ (713) 942-7507 Telecopier
(] Djs7500@aol.com

.~~
,?9
-and-

~· MICHAEL A. LOGAN
~
oi!fj? State BarNo. 12497500
·~ BRUCE M. FLOWERS

~
t~ State Bar No. 07175480
'~ KARIN M. ZANER
Q•
~~ State Bar No. 00791183
C. JEFFREY NOVEL
State BarNo. 24037198
KANE RUSSELL COLEMAN & LOGAN, P.C.
1601 Elm St., Suite 3700
Dallas, TX 75201
(214) 777-4200
(214) 777-4299- Facsimile

-and

-13-
 CHARLA ALDOUS
State Bar No. 20545235
ALDOUS LAW FIRM
2305 Cedar Springs Rd., Suite 200
Dallas, TX, 7520 I
(214) 526-5595
(214) 526-5525- Facsimile

ATTORNEYS FOR PLA~F,
RAHUL K. NATH, ~2['

CERTIFICATE OF SERVICE .J'~
0~
The undersigned hereby certifies th~t a true ~d co.rrect c~py oft~e~gr.document has been
served upon the counsel of record VIa electromc fihng notice on~ I 2010:

Ms. Shauna Johnson Clark
FULBRIGHT & JAWORSKI, L.L.P.
o
~/
·W
1301 McKinney, Suite 5100 ;F!J?lf
Houston, TX 77010-3095 ~
ATTORNEYS FOR DEFENDANT, o ~
BAYLOR COLLEGE OF MEDICIN~

Mr. Patrick W. Mizell t (j
VINSON & ELKINS, L.L.P. i()~
I 00 I Fannin St., Suite 2300 ·w""'~
~~
Houston, TX 77002-6736~Q
ATTORNEYS FOR DEF ANT,
TEXAS CHILDRENS ~ !TAL

cg~
~~
:(J
~ bANIELiSHEA
:~©
t,~'
,<:("'
ro~
~/
~.

-14-