Feysal A. Ghaffari and Irana Haghnazari v. Drees Custom Homes L.P. and the Drees Company

FXt-KD IN
Court of Appeals

APR 0 3 2015
No. 05-15-00238-CV
Lisa Matz
IN THE Clerk, 5th District

FIFTH COURT OF APPEALS

AT DALLAS

FEYSAL A. GHAFFARI, AND

IRANA HAGHNAZARI

Appellant,

v.

DREES CUSTOM HOMES L.P., AND

THE DREES COMPANY

Appellee.

Appealed from the 417 Court of
Collin County, Texas

APPELLANT'S BRIEF

PRO-SE FEYSAL A. GHAFFARI,
AND IRANA HAGHNAZARI
2301 ALL SAINTS LANE
PLANO, TEXAS 75025
Tel. (972) 527-1234
Fax { }

ATTORNEY FOR APPELLEE,
WESLY C. MANESS
1000 Ballpark Way #300
Arlington, Texas 76011

(817)299-2843

(817)877-8176 (FAX)

APPELLANT REQUESTS ORAL ARGUMENT

APPELLANT'S BRIEF
 No. 05-15-00238-CV

FEYSAL A. GHAFFARI, and IRANA HAGHNAZARI

Appellant,

v.

DREES CUSTOM HOMES L.P., and THE DREES COMPANY,

Appellee.

IDENTITY OF PARTIES & COUNSEL

Appellant certifies that the following is a complete list of the parties, attorneys, and
any other person who has any interest in the outcome of this lawsuit:

1. Appellant/Plaintiff, Feysal A. Ghaffari, and Irana Haghnazari,

2. Appellee/Defendant, Drees Custom Homes L.P., and The Drees Company,

Wesly C. Maness (Lead Counsel)

Texas Bar No. 00784518

Shannon Gracy, Ratliff & Miller, L.L.P.

1000 Ballpark Way, Suite 300

Arlington, Texas 76011

(817)299-2843

(817)877-8176 (FAX)

wmaness@shannongracy.com

This list is furnished so that members of the Court may at once determine whether
they are disqualified to serve or should recuse themselves from participating in the
decision of the case.

NOTE: The law firm of Shannon Gracy, and attorney Wesly C. Maness Plaintiffs
Notice of No-Response, doing the same act of abandonment TRCP 165, never did put the
first appearance yet, so we know for the record is them Male/Female, Tall/Short, Fat/Skinny?

APPELLANT'S BRIEF
 TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL Page 2

INDEX OF AUTHORITIES Page 4

APPELLANT'S BRIEF INTRODUCTION Page 5

STATEMENT OF THE CASE page 6

ISSUES PRESENTED page 7

STATEMENT OF FACTS page 8

SUMMARY OF THE ARGUMENT page 9

ARGUMENT page 10

PRAYER page 11

APPENDIX page 12

CERTIFICATE OF SERVICE page 13

APPELLANT'S BRIEF
 INDEX OF AUTHORITIES

CASES

Missouri P.R.R. Co. v. Somers, 14 S.W. 779, 780 (Tex. 1890). In Gulf, C. & S.F.R. Co.
v. Wilson, 59 S.W. 589, 591 (Tex. App.-Houston [1st Dist.] 1900, no writ), 10

RULES

Tex. R. App. P. 34 8

Tex. R. App. P. 41 8

TRCP 194 DISCOVERY 8

CONSTITUTION

Tex. Const, art. 1, §3 7

STATUTES

Tex. Bus. & Com. Code
Section 17.43 33, 38, 43
Section 17.45(5) 6

Tex. Gov't Code, Section 312.005 6

RULES

Tex. R. App. P. 24.2 7

Tex. R. App. P. 35.1 7

TRCP 165 ABANDOMENT 6

APPELLANT'S BRIEF
 No. 05-15-00238-CV

FEYSAL A. GHAFFARI, and IRANA HAGHNAZARI,

Appellant,

v.

DREES CUSTOM HOMES L.P., and THE DREES COMPANY,

Appellee.

APPELLANT'S BRIEF

Appellant, Feysal A. Ghaffari, and Irana Haghnazari, files their brief. Appellant will
be referred to as appellant. Appellee, Drees Custom Homes L.P., and The Drees
Company, will be referred to as Drees.

APPELLANT'S BRIEF
 STATEMENT OF THE CASE

Plaintiff sued defendant on 3/4/2014 for 10 years valid until 12/17/2014, Structural
Warranty Breach and violations of the DTPA 17.45 by purchase. (CR 23). Defendant
filed a general denial and asserted the affirmative defense of limitations. (CR 13). That
the defendant made material misrepresentations and practicing warranty fraud to plaintiff,
which were fraudulent and violated the DTPA and 60 days Fair Notice was given and
RCLA was not violated. (CR 12). Defendant filed motions for entry of automatic order
of abatement (CR 40). Plaintiff response to defendant motion to abate and show
authority was filed on 4/28/2014. (CR21). Defendant abandonment the case TRCP 165,
and refused to answer the discovery. (CR 26). Defendant knowingly did not appear on
10/16/2014 abatement hearing first default judgment. (CR 50). Second default judgment
took place on 11/13/2014 intentionally failure to abate. (CR 54). Third failure to
abate/default judgment was on 12/12/2014 which defendant knowingly/intentionally
refused to put appearance, and the judge could not Erred by issuing no answer from
parties signing Order of dismissal for want of prosecution, when this plaintiff was present
and the Court Reporter Recorded plaintiffs prove up. (CR 64). plaintiff filed for new
trial. (CR 65). Plaintiff made verified motion to reinstate. (CR 69). After 75 days
overruled by operation of law, plaintiff filed notice of appeal on 3/2/2015. (CR 73). The
trial court rendered order of dismissal on 12/12/2014. (CR 64).

APPELLANT'S BRIEF
 ISSUES PRESENTED FOR REVIEW

Issue 1: The Court Reporter Records evidence does not support the Order of
Dismissal for want of prosecution 12/12/2014, and questions about practicing warranty
fraud. (RR 01), Line 14, "Hearing on motion for default judgment".
Issue 2: The trial court should not have making this type great mistakes to
demolishing the plaintiffs Rights ofrecovery after prove up of 12/12/2014, intentionally
calling plaintiff absent, and taking side awarding defendant dismissal, when defendants
do not deserve winning. (CR 64).

Issue 3: The trial court should not have rendered dismissal order against plaintiff for
cumulative damages for concurrent causes of actions arising out of the same acts.

Issue 4: Plaintiff on 4/28/2014 finalized the defendant's request for abating
3/28/2014, the automatic order of abatement of 5/3/2014 was improper; never hearing
date to remove this matter within 60 days was unjustifiable. (CR 40).
Issue 5: Wholly three defaults of defendant and abandonment TRCP 165 of
defendant knowingly and intentionally not showing interest by refusing Notice of No
Response. (RR 02 Line 7).

Issue 6: FairNotice of December 12, 2013 the 60 days final demand notice is given
for DTPA, and RCLA Damage limitation of $495,558.00 prove up on 12/12/2014 has
been made during the defendant's third (3rd) default judgment hearing. (RR 05 Line 23).
Issue 7: Hearing of 12/12/2014 was for default judgment not want of prosecution
hearing. (RR 01) Line 14.

Issue 8: Ten years foundation warranty breach was in effect, valid until 12/17/2014.

Issue 9: Defendant's Original answer asked for abatement, it's over a year and
defendant knowingly refused to abate, created three default judgments in absentia. This
cause of action must be dismissed in favor of the plaintiff.

Issue 10: The trial court never met the defendant(s), or it's representative(s), to
know if that is a he/she/it, tall/short, black/white, or fat/skinny, non-existing defendant
never put any appearances in court yet, (Online-Collin County Court #417)? and won.

APPELLANT'S BRIEF
 STATEMENT OF FACTS

Feysal A. Ghaffari and Irana Haghnazari, plaintiff, purchased this residential called
Drees custom home located in 2301 All Saints lane Piano, Texas 75025, in 2008. (RR 2).
Christmas 2011 plaintiff noticed foundation cracks on the floor, contacted Drees to do the
foundation warranty repairs, they were buying time verses get down to the repair
business, and Drees advised plaintiffs to do not do any repairs or your warranty will be
null & void, after long time and no job has been promised, Drees repair crew brought
some unmatched ceramics and wanted to change only few tiles, we did not agree to this
minor unmatched tile repair, plaintiff demanded foundation repair must be done first
before laying down entire new tiles replacing the entire old tiles since it was going to be
different colors, Drees did not agree to do it right repair job, and challenged plaintiff to
legal action, on December 12, 2013 the 60 days Fair-Notice been sent, See attached
exhibit "C", to the plaintiffs Original Petition of 3/4/2014. (CR 12).

Defendant's Original Answer of March 28, 2014 came with plea in Abatement and
motion to show authority, plaintiff overcome and furnished everything on 4/28/2014 the
defendant asked for, including the statute of limitations has run, which plaintiff proved
Drees being wrong again, and warranty is valid until 12/17/2014. (CR 23). Suddenly
the unreasonable automatic order of abatement on 5/3/2014 and that is why the defendant
went to hideout and never put any appearances, and flatly intentionally refused to abate,
on 10/16/2014, 11/13/2014, and 12/12/2014 with a help of judge Harold Gaither who
think that he is above the Law, switching from Hearing on motion for default judgment.
(RR 01). TO: an non-existing Order of dismissal for want of prosecution. (CR 64).

Plaintiff filed motion for new trial on 12/15/2014, the trial Court refused to have a
hearing on that fiat, Notice of Appeal, and Docketing Statement, also defendant flatly
refused and violated the Rule 194, to do request for Disclosure, Interrogatories, requests
for Admissions, request for Productions, and Special Exceptions, without any
consequences, there is no Notice of Response from 12/15/2014 until presentyet. (RR 4).

No Notice ofResponse means the fourth (4th) default judgment is demanded.

APPELLANT'S BRIEF
 SUMMARY OF THE ARGUMENT

Plaintiffs first argument challenges the sufficiency of the judge's findings of liability
on Warranty Breach and DTPA. Defendant candidly admits there is evidence in the
record that supports the fraud and DTPA finding by refusing to show &tell and by hiding
discovery procedures. However, considering the legal standards that must be applied
when a testimony is inconsistent, plaintiff believes testimony should be disregarded as a
matter oflaw. Once the court subtracts Drees's incredible explanation of Abatement he
made to the court, the credible evidence will not support the verdict. In the alternative,
plaintiff argues that even if there is some evidence, the evidence is factually insufficient
and the court should reverse the order to judgment and should not remand for anew trial
because of biasness of the trial court.

Plaintiffs second argument challenges the submission of the general issue on
damages. By submitting the issue as it did during the prove up. How could damage
prove up be overruled by the court switching from hearing on motion for default
judgment. (RR 01). to non existing issue of dismissal for want of prosecution. (CR64)
Plaintiffs last argument is that the trial judge permitted the plaintiff to recover for
both fraud and DTPA for the same act of the defendant, clearly adouble recovery. At a
minimum, defendant is entitled to have the order to judgment reformed and subtract the
damages for one of the causes of action, and to eliminate the prejudgment interest on
those damages. See attached Exhibit "D", which the Court Reporter also should have it.

APPELLANT'S BRIEF
 ARGUMENT

Issue 1: The evidence does not support the judge's answers to questions about
violations of the DTPA, and the questions about fraud/warranty breach.
Argument & Authorities

The entire argument under the legal and factual sufficiency challenges hangs on
Drees's credibility. If Drees is credible, then his version of the negotiations with plamtitt
should stand and honor the foundation warranty, and the court should overrule his points
challenging the sufficiency of the evidence to support the verdict. If however, Drees is
not credible, the court should reverse the trial court's order to judgment to favor of
plaintiff.
The Supreme Court has permitted the credibility of a party to be questioned on
appeal when the party's testimony is inconsistent and is contradicted by ^ f ^
faith non-existed abatement. Missouri P.R.R. Co. v. Somers, 14 S.W. 779, 780 (lex
1890) In Gulf, C. &S.F.R. Co. v. Wilson, 59 S.W. 589, 591 (Tex. App.-Houston [1st
Dist.] 1900, no writ), there was no abatement in reality, just another excuse.

10

APPELLANT'S BRIEF
 PRAYER

The only explanation for Drees's problem with the foundation problem is that the
homes they are building is no custom at all, and has no quality, but; Drees done these
fraudulent activities so many times, out of half million dollars profits per home, they pay
few thousand to attorney Wesly Maness to clean up Drees's warranty fraud for peanut,
creating incredible motion for abatement to win by default, but; the three and with the
fourth default judgment being in this Appellate Court so far with Notice of No Response,
for the reasons stated in this brief, plaintiff asks the court to sustain the legal sufficiency
issues and render judgment for plaintiff. If the court overrules the legal sufficiency
challenge to the evidence, defendant asks the court to reverse and do not remand because
of biasness, based on the factual sufficiency issues or the error in the charge. In the
alternative, plaintiff asks the court to modify the order to judgment to delete the double
damages and prejudgment interest on the double damages rewarding the plaintiff for this
intentional non custom built home sufferings past many years, and just.

Respectfully submitted,

&
Pro-Se Feysal A. Ghaffari & Irana
2301 All Saints Lane
Piano, Texas 75025
(972) 527-1234

11

APPELLANT'S BRIEF
 No. 05-15-00238-CV

FEYSAL A. GHAFFARI, and IRANA HAGHNAZARI,
Appellant,

v.

DREES CUSTOM HOMES L.P., and THE DREES COMPANY,
Appellee.

APPELLANT'S APPENDIX

LIST OF ATTACHED DOCUMENTS

1. appealable order dated 12/12/2014 (CR 64) Exhibit A
2. statutes, or constitutional provisions relied upon (CR 25) Ex l rt
3. Contracts or any other document that is central to the case (CR 12) Exhibit C
4. Any other documents or items relied upon, excerpts from the record PROVE UP...Exhibit D

12

APPELLANT'S BRIEF
 CERTIFICATE OF SERVICE

I certifv that I faxed acopy of Appellant's Brief to Wesly C. Maness, counsel of
record for DrS and whose adLss is'lOOO Ballpark Way Suite 300 Arlington Texas
76011, (817) 299-2843, and whose fax number is (817) 877-8176, on April o3,2015.

Pro-Se Feysal A. Ghaffari, Appellant

13

APPELLANT'S BRIEF
 12/16/2014 SCANNED Page 1

NO. 417-00816-2014

Feysal AGhaffari and Irana Haghnazari vs. In The 417th District Court
Drees Custom Homes L.P. and The Drees
Company
Of Collin County, Texas

ORDER OF DISMISSAL FOR WANT OF PROSECUTION

On December 12,2014, having been set on the Court's dismissal docket, with the
case being called, and no answer from the parties, the Court finds that the above-
numbered and styled case should be dismissed for want of prosecution.
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that the
above-numbered and styled case be, and (including Registry monies) the same hereby is
dismissed for WANT OF PROSECUTION.

SIGNED this the _^L day of „*, )eo«-V/^ 2014.

JUDGE PRESIDING

0tt!^T
 Drees
IH| CUSTOM HOMiS»

May 16, 2012

Irana Haghnazari
2301 All Saints Lane
Piano, TX. 75025

Dear Irana Haghnazari:

In response to your request work order #1089517 you were concerned about a potential structural
ailS of the foundation due to hairline cracks in the tile. Upon inspection by Advanced Foundation
and Ir^an Conner, Drees Warranty Representative, it was found that these cracks; are.due to
seasonal movement and not related to a structural failure as noted in the 10-Year Structural
Wa'ant Program, Per conversations with Mr. Conner we have agreed to replace the area in
Son with aTe materia! and grade of tile. At this time we have not been able to make contact
JKu to schedule an appointment for the replacement. Once you receive this letter will you
cttacUhe Customer Care Department and we will re-issue awork order to have the cracked tile
replaced.
Customer Care Department can be reached at 800-827-5998 or via email at
dreeswarranrvdfw@.dreeshomesxojri

Your 10-Year Structural Warranty is valid until December 17, 2014.
Thank you for selecting Drees Custom Homes as your homebuilder.
Sincerely,
Drees Custom Homes-L.P.

Mike Davis
Customer Care Manager

cc: Customer File
Marcus Cummings, Construction Manager

S225 North State Highway 161. Suite 400 | Irving, Texas 75038-2225
Be Yourself p!<}7>) 953-4500! F(972) 953-080! !www.dreeshomes.com
 MeMr Comrmngs, I'm glad that you did not change the floor tiles in 2010, or 2011,2012, and this year 2013 becaus
you did-NOT have "THE-SAME-MATCHING TILES" every year, since you were NOT going to do a
To Marcus Cummings
Dec 12,2013

fro" Sad'tha^you did not change the floor tiles in 2010, or 2011,2012, and this year 2013 becaus you did-
NOT have 'THE-SAME-MATCHING TILES" every year, since you were NOT going to do anything to the
FOUNDATION, only changing the few-tiles, by now since the FOUNDATION-CRACKS damages are all
over and conestantly damages are growing, multi-color-TILES would not help.to sell this c"STOM-
BUILT-HOME of yours {I know a$30,000.00 Fox &Jacob 30 years old has NO-FOUNDATION-Probiem).
According to the Law for Deceptive Trade Practice Act we have to give Drees Custom Homes Builders
SIXTY (60) DAYS-FINAL-DEMAND-NOTICE before filing the lawsuit of February 2014, which you
Chalenged us, verses taking care of this warranty-work responsibility after this many years of sufenngs
S&OOtomes you pocketed and called it CUSTOM, which is worst than $30,000.00 Fox &Jacob,
and refusing to service your warranty work, what a CUSTOM-MADE-DEAL.
Happy Holidays anyway
Show message history

On Thursday, December 12,2013 11:32 AM, Marcus Cummings
Mr°Nazar Ireceived your ©matt dated 12/11/13. Attached is the Advanced Foundation recommendation
tetter and elevation surveys from 12/20/11 and 8/14/05. The foundation was within industry specifications
She survey dated 12/20/11 and required no structural repairs. As discussed by phone. Drees is willing
to take elevations on your foundation again to assure you it is within industry specifications. Please
contact me with available dates toschedule this appointment.
I
Thank You,

Marcus Cummings | Construction Manager

6225 State Hwy 161 | Suite 150 | Irving, Tx 75038
P: 972-953^1561 \ F: 972-953-0394
dreeshomes.com

F^nSL SrSdreesrKimes.com [mailto.nalias sr.ans