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