Hari Prasad Kalakonda and Latha Kalakonda v. Aspri Investments, LLC ( 2015 )

ACCEPTED 04-15-00114-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 5/21/2015 1:25:45 PM KEITH HOTTLE CLERK From, Hari Prasad Kalakonda Date: May zo-, 2015 FILED IN 4th COURT OF APPEALS Latha Kalakonda SAN ANTONIO, TEXAS 5002, Newcastle Ln, 5/21/2015 1:25:45 PM San Antonio, Texas - 78249 KEITH E. HOTTLE Clerk Tel: 210 687 4988 email: smfoodmart@Vahoo.com To Mr. Keith E. Hottle Clerk of Fourth Court of Appeals Cadena-Reeves Justice Center 300, Dolorosa, Ste. 3200 San Antonio, TX ~ 78205 Ref: Cause No: 04~15~0114~CV, Han Prasad Kalakonda and Latha Kalakonda v. Aspri Investments, LLCs. -Additional information related to appeal related cause numbers: 2014~CI~16394 and 2015~CI~1910. Dear Mr. Hottle, We are writing this letter to inform you that there were some additional developments that occurred after the appeal was filed for cause number: 20 14~CI~ 16394 (C 1) which necessitated the inclusion of records from cause number 20 15~CI~ 01910 (C2) for the appeal process to be complete. Here is a brief summary of reasons. In both the causes the parties are the same as in the appeals cause and core issues are the same. The issues are lease agreement (lease) between the parties, 0+15~0114~CV Page 1 arbitration, and confirmation of arbitration and post arbitration actions of the landlord. Aspri Investments, LLC (Aspri) is the land lord and Hari Prasad and Latha Kalakonda (Kalakondas) are the tenants who used to run the business of convenience store with gas at the location leased. The parties are bound by an arbitration clause for all the disputes related to the lease. The parties went through arbitration as required by the lease for alleged breaches, with claims and counter claims. The arbitrator awarded around $66,000 to Aspri and gave Kalakondas 30 days (up to November 10 th 2014) to pay without interest or pay a 6% interest after 30 days (after November to- 2014). Arbitrator denied Aspri's claims in the arbitration to terminate the lease and take possession of the premises. While Kalakondas were recovering from the award and planning to make the arrangements for payments, Aspri terminated the lease on October 24 th 2014 preemptively without notice for the reason of nonpayment of arbitrator's award. Aspri also ordered eviction through a letter asking Kalakondas to leave the premises within three days (letter received on October 2Th 2014) i.e., by November I" 2014. Kalakondas immediately responded saying that, Aspri's actions were neither as per the lease nor as per the arbitrator's award and requested them to review their decision. Kalakonda's have also notified Aspri that they are not waiving any of their rights and will be claiming damages by filing for an arbitration which was the only platform available to address this issue as per lease. Aspri stood by its wrong decision and asked Kalakondas to leave the premises promptly. Kalakondas' choices were limited. One is to get forcefully sent out like Aspri's other tenants like Maryam Begum Afeef and Tony Afeef (Aspri Investments, LLC v. Page 2 A feef, No. 04~10..o057 3~CV) and get insulted before the public who m they know for years as customers o r foll ow the orders and avo id violence. Kalakonda s' have no intent to leave the premises until at least the lease is over on February 28 th 2017 . Kalakondas also did not make any claim for termination of lease during the first a rbitration. The income from the convenience sto re is the so urce of income Kalakondas have relied o n for years for living and is the only so urce for payment of a rbitration award an d o ther debts accumulated to defend themselves during the a rbitration . Due to loss of main source o f income Kalakondas' have to defend them selves as pro se wh ich othe rwise they would h ave by an Attorney as they did in arb itra tion or Kalakondas would n ot have been here as they wo uld have paid the arbitration award an d continued to d o their business. While doing all these, Aspri filed a pet it ion and another ame nde d petition w ith th e district co ur t for confirmation of the ar b itr at ion award and pleaded the court for terminati on o f the lease and possession of the premises wh ich the arbitrator has explicitly denied in the arb itrat ion . However these are the claims subject to arbitration and not in the purview of the courts, to decide. While a nswering the petition Kalakondas have b rought to the notice of the court that Aspri is asking for co n firmation of an award that was breached or violated by them first, by terminating the lease and taking possession o f the premises. N o claims and co un ter claims we re m ad e, no relief was requested , no di scovery was made by Kalakondas and no h earing was conducted by the court to hear any of the issues o the r than the co nfir matio n of the award during the confirmati on hearing process. Subsequently the co u rt con firmed the award. This is all ab out cause 2 0 1 4~C I~ 16394 (Cl). 04~ 15..00 114~CV Page 3 Meanwhile Kalakondas have notified Asp r i about their in te n t to arbitra te lease termination and all othe r claims that they preserved righ ts for during their ea rlier arb itration . The requested arb itratio n was not about district co urt's co nfirme d award and also not about the issu es that have alrea dy been add ress ed by previo us arbitration as advertised by Aspri o n severa l occasions m isguiding the judges hearing the case. It is not Aspri, not Kalakonda and not the co urt that decides arbitrability or res judicata of the issu es presented for arb itrat ion but the arbitrator who h as been chosen by the parties for arb itr ation . Kalakonda's h ave requested the n amed arbi tr ato r in the lease to co n duct arb itration who recused himself because he handled the first arb itratio n and directed the parities to AAA arb itra tio n. Kalako ndas filed for arb itrat ion with AAA, wh ich after careful and thorough review have acce pte d the case and in itia ted the arbitration process and gave deadlines to Kalakondas and Aspr i to file claims and co u nte r claims. If there are no claims, no fee h as to be paid. After the con firmat ion of the award, Kalakondas have filed their first ever motion by setting a hearing with the court, to reconsider its decision to confirm the arbitration award. During the same h earing Aspri brought the ame nde d petition to obta in a TRO to restrain Kalakondas from filin g arb itrat ion as per the lease but to file all the dispu tes in the Bexar County district court, though parties are bound by arbi tra t ion clause. Asp ri also wan ted to restrain Kalakondas from sett ing a hear ing though they had set o n ly one hearing (curre nt one ) and declare Kalakonda's as vexatious liti gants though they n ever filed any su it agains t anyo ne in the whole co un try except co m ing to the co urt as and whe n Aspri notifies us to co me to th e co urt. Aspri never co ns ulted Kalakondas to find o ut if a hearing date is workable or not. Essentially the T RO is to restrain their bas ic rights to seek justi ce and to delay Page 4 the arbitration at any cos t. The Honorable court h as sim ply denied Aspr i's motion for TRO po int-bl ank. At this time h aving been denied a TRO by th e di strict co urt, Aspri resorted to tricks by filin g a new petition with a new cau se number but with the same relief as in the denied petition/motion. Aspri expected that a new judge will look at it (as the judges are assigne d on availab ility basis), in the district court and give a favorable result. Aspri did not formally notify the Kalakonda's about the TRO hearing though there was eno ugh time and the hearing was pre planned well ahea d, notified the wrong time to come to the court by email a day before . Kalakonda co uld not atte nd the hearing, n o co urt rep orters record was requested and the TRO was obtaine d ex-parte witho ut citing any irreparable dam age. The TRO lacked basic informati on of a TRO . This is cause number 2015~CI-01 910(C2) . Aspri immedi ately with in minutes com mun icated the TRO to AAA and asked for stay of the arbitration proceedings. In the next hearing of the cause C2, another judge he ard the case and questioned the legality of Aspri's argume n t to file the disputes regarding a lease that is subject to arb itra tio n in Bexar Co unty co urts and stro ngly q uestio ned the logic of res-judicata argume nt of Aspri. Sen sing that she may deny the TRO, Aspri suggested going ba ck to th e same judge, H onorable Karen Pozza wh o confirmed the arbitration award for clarifi cati on o n h er judgem ent. The judge suggested the pa rties to approac h Judge Pozza within 30 days for a clarification o n her arbitration co nfirma tion if it included o ther arb itra ble d isputes that occurred afte r th e first arbitra tion was co mpleted . 04~ 15-00 114-CV Page 5 Thirty days have passed and Aspri had no intent to setup a hearing as their sole intent is to delay the arbitration as long as possible at any cost and let Kalakondas lose the arbitration fee paid. Hence, Kalakonda's have requested a hearing to dissolve the TRO and a hearing was setup with Honorable Judge Karen Pozza. During the hearing, instead of asking for a clarification, Aspri requested for extension of TRO and the case was referred to the appeals court. Essentially Kalakonda's were compelled to move to appeals court for moving ahead with the arbitration. The same court that initially denied the same TRO point blank has issued the TRO though nothing has since been changed except that a new cause was opened to bypass the current judge. The district court, instead of making a decision on res judicata claims of Aspri as that is the court that confirmed the award has ambiguously extended the TRO and passed its responsibility to the appeals court. Kalakonda's have requested "Finding of Facts and Conclusion of Law" from the court and also sent a past due notice for FoF and CoL and are awaiting a response from court. The cause C2 is a child of Cl and got back and merged with parent Cl for the reasons explained above. As the parties are same and the issues and underlying artifacts are same and interwoven, we request the court to treat these two causes as one cause with main cause being Cl for the purpose of appeal. CC: Sincerely, Ms. Donna Kay McKinney Bexar County District Clerk ---------~------- (via electronic filing) / sd/ Latha Kalakonda Hari Prasad Kalakonda Latha Kalakonda 04-15-00114-CY Page 6 CERTIFICATE OF SERVICE W e certify th at on May 21, 2015, a true and correct copy of this letter was served on th e following co unsel of record via Eservice. Micha el D. Con ner Hirsch & Westheim er PC 14 15 Louisiana, 36 th Floor H ouston, TX 77002 Mr. Fred erick L. Fuhr, The Fuhr Law Fir m 107 Land ing Blvd., Sui te F League C ity, Texas 7757 3 Mr. Eric Lipp er Hirsch & W estheim er PC 1415 Louisiana, 36th Floor Houston, Texas 77002 /sd/ Latha Kalakonda Appellants Hari Prasad Kalakonda and Latha Kalakonda Ms. Donna Kay McKinney (via electronic filing) Bexar County District Clerk Page 7