Llyasah Dupree Dba 360 Degrees Beauty Academy v. Boniuk Interests, Ltd ( 2015 )

ACCEPTED
01-14-00864-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
2/20/2015 4:30:02 PM
CHRISTOPHER PRINE
CLERK
Cause No.: o1-14-00864-CV
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
2/20/2015 4:30:02 PM
COURT OF APPEALS
CHRISTOPHER A. PRINE
FIRST DISTRICT OF TEXAS Clerk
HOUSTON, TEXAS
Llyasab Dupree d/b/a 360 Degree Beauty Academy,
Appellant
Vs
Boniuk Interest, Ltd,
Appellee
BRIEF OF THE APPELLANT
Timothy L. Williams, MBA, JD
TBN: 00791938
TL Williams & Associates
11811 North Freeway, Suite 212
Houston, Texas 77060
713.504.1882 - Office
twilliams.nhcs@yahoo.com - email
Attorney for Appellant, Llyasah Dupree
d/b/a 360 Degree Beauty Academy
ORAL ARGUMENT NOT REQUESTED
llPage
IDENTITY OF THE PARTIES
Appellant/Plaintiff
Llyasah Dupree d/b/a 360 Degree Beauty Academy
Attorney for Appellant
Timothy L. Williams, MBA, JD
TL Williams & Associates
11811 North Freeway, Suite 212
Houston, Texas 77060
Appellee/Respondent
Boniuk Interest, Ltd
Attorney for Appellant
Debra Boniuk
Boniuk Interest, Ltd
3720 San Jacinto
Houston, Texas 77004
21Page
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
INDEX OF AUTHORITIES .............................................. 5
STATEMENT OF CASE 7
ISSUES PRESENTED ................................ ............................ 7
Point of Error 1: Use of parol evidence to ascertain to intent
of the parties in the construction of the promissory note
between the Defendant landlord and Llyasah Dupree, Plaintiff
Point of Error 2: Evidence does not support the decision,
Plaintiffs tendering of payments for lease payments not
deposited by Defendant Landlord
Point of Error 3: No consideration for the amendment to the
lease agreement. The Plaintiff had a duty to pay rent under the
lease agreement and there was no additional consideration.
Point of Error 4: The court erred in not ruling that the
Appellee had committed fraud by presented business records to
the court that the Appellee testified were inaccurate and were
used to commit fraud on the Appellant
STATEMENT REGARDING ORAL ARGUMENT 8
STATEMENT OF FACTS 8
SUMMARY OF THE ARGUMENT 9
STANDARD OF REVIEW ............................................... 9
31Page
ARGUMENT .............................................................. 10
CONCLUSION AND PRAYER 21
CERTIFICATE OF SERVICE ...................................................... 21
CERTIFICATE OF COMPLIANCE 22
APPENDIX ............................................................... 23
Exhibit 1: Finding of Facts and Conclusions of Law
41Page
INDEX OF AUTHORITIES
CASES
L Harrison v. Texas Employers Ins. Ass'n, 747 S.W.2d 494,
498 (Tex. App.--Beaumont 1988, writ denied);
2. Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 837 (Tex.
App.--Houston [1st Dist.] 1987, writ refd n.r.e.), cert.
denied, 485 U.S. 994 (1988).
3. Texas Export Dev. Corp. v. Schleder, 519 S.W.2d 134, 137
(Tex. Civ. App.--Dallas 1975, no writ).
4. Town North Nat. Bank v. Broaddus, 569 S.W.2d 489, 491
(Tex. 1978).
5. Baker v. Baker, 143 Tex. 191, 183 S.W.2d 724,728 (Tex.
1944);
6. Trinity Univ. Ins. Co. v. Ponsford Bros., 423 S.W.2d 571,
574-75 (Tex. 1968).
7. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).
8. City of Pinehurst v. Spooner Addition Water Co., 432
S.W.2d 515, 518 (Tex. 1968)
9. Community Dev._ [**5] Serv., Inc. v. Replacement Parts
lvffg., 679 S.W.2d 721, 724 (Tex. App.--Houston [1st Dist.]
1984, no writ).
51Page
10. Albritton Dev. v. Glendon, 700 S.W.2d 244, 246 (Tex.
App.--Houston [1st Dist.] 1985, writ refd n.r.e.).
11. Rincones v. Windberg, 705 S.W.2d 846,847 (Tex. App.--
Austin 1986, no writ).
12. Hathaway v. General Mills, Inc., 711 S.W.2d 227, 228, 29
Tex. Sup. Ct. J. 333 (Tex. 1986)
13. American Nat. Ins. Co. v. Teague, 237 S.W. 248, 250 (Tex.
Comm'n App. 1922, holding approved)
14. Hill v. Heritage Res., Inc., 964 S.W.2d 89, 113 (Tex. App.n
El Paso 1997, pet. denied)
15. Havas v. O'Brien, 654 S.W.2d 801, 803 (Tex. App.--
Houston [14th Dist.] 1983, writ refd n.r.e.). I
I
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TO THE HONORABLE FIRST COURT OF APPEALS:
STATEMENT OF THE CASE
Nature of Case The court abused its discretion by admitting parol
evidence to establish the intent of the parties when
the language of the contract was unambiguous,
found a contract where no new consideration was
given for the amendment and failed to find fraud
for the submission of misleading exhibits by the
Appellee
The Trial Court The 11 th Judicial District, Harris County, Texas
Trial Court's Disposition Dismissed Plaintiffs cause of action and granted
relief to the Defendant on its counterclaim for
breach of contract
ISSUES PRESENTED
Point of Error 1: Use of parol evidence to ascertain to intent of the parties in the
construction ofthe promissory note between the Appellee and the Appellant.
Point of Error 2: Evidence does not support the decision, Appellant tendering of
payments for lease payments not deposited by Appellee.
71Page
Point of Error 3: No consideration for the amendment to the lease agreement.
The Appellant had a duty to pay rent under the lease agreement and there was no
additional consideration.
Point of Error 4: The court erred in not ruling that the Appellee had committed
fraud by presented business records to the court that the Appellee testified were
inaccurate and were used to commit fraud on the Appellant
STATEMENT REGARDING ORAL ARGUMENT
The issues regarding contract law are well cited in Texas case law and the
Appellant Plaintiff does not believe that oral arguments before the court are
necessary and are not requested by the Appellant.
STATEMENT OF FACTS
Court ruling
On July 25,2014, the 11th Judicial District Court entered judgment in open
court denying the Appellant petition for relief and granting the Appellee relief on
its counterclaim and for attorney fees.
The Appellant filed a request for Findings of Facts and Conclusions of Law
on August 2014. The Court filed its Findings of Facts and Conclusions of Law on
81Page
August 15, 2014. The Appellant filed its Notice of Appeal on November 2014.
The court repOlier filed the record on January 21, 2015. The brief of the Appellant
was due on February 20, 2015.
SUMMARY OF THE ARGUMENT
The Appellant argues that (1) the court erred in the use of parol evidence to
ascertain to intent of the parties in the construction of the promissory note between
the Appellee and the Appellant because the terms of the agreement were not
ambiguous; (2) that the court erred in ruling that the evidence does supports the
decision, by determining that the Appellant's tendering of lease payments which
were not deposited by the Appellee as not being tendered; (3) the court erred in
determining that there was consideration for the amendment to the lease
agreement. The Plaintiff had a duty to pay rent under the lease agreement and
there was no additional consideration for the amendment; and (4) by failing to rule
that the Appellee had engaged in fraud and misrepresentation to the court by
presented business records to the court that the Appellee subsequently testified
were inaccurate and were used to commit fraud on the Appellant.
STANDARD OF REVIEW
The standard of review is a preponderance of the evidence in a civil, non-
family cause of action.
91Page
ARGUMENT
Point of Error 1: Use of parol evidence to ascertain to intent of the parties in
the construction of the promissory note between the Appellee and Appellant.
1. On December 18,2009, Appellant and Appellee entered into an agreement
whereby pursuant to the plain language of the contract, the Appellant would
give the Appellant a loan in the amount of $21,499. The terms of the
agreement are plain and clear and no other consideration is mentioned in the
language within the "four comers" of the agreement.
2. In return for the loan, the Appellant was obligated to pay the Appellee
installment payments in the amount of $440 per month for 60 months.
3. The Appellant made payments on the loan for the first three months, but did
not receive the funds from the Appellee. The failure of the Appellee to
provide the funds [See Transcript page 46, lines 8-25 and page 47, lines 1-
12] to the Appellant was a material breach of the promissory note and,
therefore, the Appellant was released from performance under the
promissory note.
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4. The court relied on exhibits provided by the Appellee to ascertain the nature
of the consideration, even though the language of the promissory note was
plain and uncontroverted. The language in the promissory note stated that
the principal amount to be paid to the Appellant is $21,499.00.
5. The court relied on exhibits to speculate that the consideration could have
been the credit for past due lease payments, although no evidence was
entered crediting the Appellant account for such action and despite the
testimony of the Appellee that the business records provided supporting such
argument were" ... inaccurate."
6. To obtain reversal of a judgment based on error in the admission or
exclusion of evidence, an appellant must show that the trial court's ruling
was in error and that the error was calculated to cause and probably did
cause rendition of an improper judgment. Harrison v. Texas Employers Ins.
Ass'n, 747 S.W.2d 494, 498 (Tex. App.--Beaumont 1988, writ denied);
Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 837 (Tex. App.--Houston
[1st Dist.11987, writ refd n.r.e.), cert. denied, 485 U.S. 994 (1988).
lllPage
7. Reversible error does not usually occur in connection with rulings on
questions of evidence unless the appellant can demonstrate that the whole
case turns on the particular evidence that was admitted or excluded. Texaco,
Inc., 729 S.W.2d at 837. The Appellant's cause of actions on the promissory
note for breach turns on whether the consideration is as stated in the note
and that the Appellant is to receive the amount listed therein. If the
consideration in the promissory note is for the amount stated therein, then
the Appellee breached the agreement by note tendering the amount to the
Appellant, even though the Appellant had performed under the promissory
note by making the requisite payments.
8. It is well settled that a written instrument may not be varied by evidence of
an oral agreement that contravenes its terms. Texas Export Dev. Corp. v.
Schleder, 519 S.W.2d 134, 137 (Tex. Civ. App.--Dallas 1975, no writ).
However, parol evidence is admissible to show (1) that the execution of a
written agreement was procured by fraud, Town North Nat. Bank v.
Broaddus, 569 S.W.2d 489, 491 (Tex. 1978); (2) that an agreement was not
to become effective except upon certain conditions or contingencies, Baker
v. Baker, 143 Tex. 191, 183 S.W.2d 724,728 (Tex. 1944); or (3) to ascertain
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the parties' true intentions, where the writing is ambiguous. Trinity Univ. Ins.
Co. v. Ponsford Bros., 423 S.W.2d 571, 574-75 (Tex. 1968).
9. If the written instrument is worded so that it can be given a certain definite
meaning or interpretation, then it is not ambiguous, and the court will
construe the contract as a matter of law. Coker v. Coker, 650 S.W.2d 391,
393 (Tex. 1983); City of Pinehurst v. Spooner Addition Water Co., 432
S.W.2d 515, 518 (Tex. 1968); Community Dev' n
[**5] Serv., Inc. v.
Replacement Parts Mfg., 679 S.W.2d 721, 724 (Tex. App.--Houston [1st
Dist.] 1984, no writ).
10. To permit parol evidence under the first of these exceptions, there must be a
showing that the payee employed some type of trickery, artifice, or device
and that the payee induced the maker to execute the note by a promise that
he would not be liable for its payment. Town North Nat'l Bank, 569 S.W.2d
at 491; Albritton Dev. v. Glendon, 700 S.W.2d 244, 246 (Tex. App.-
Houston [1st Dist.] 1985, writ refd n.r.e.). Here, there was no such trickery
or fraud, thus the requisite showing of fraud in the inducement that would be
necessary to allow introduction of parol evidence is not present.
13IPage
11. The second exception to the parol evidence rule requires that a condition
precedent was contemplated by the parties. A condition precedent is one
that postpones the effective date of the instrument until the happening of a
contingency. Baker, 183 S.W.2d at 728. In contrast, a condition subsequent
is one that excuses an already binding agreement. Rincones v. Windberg,
705 S.W.2d 846, 847 (Tex. App.--Austin 1986, no writ). While parol
evidence is admissible to prove the existence of a condition precedent to a
contract, extrinsic evidence of a condition subsequent is not admissible to
vary the terms of a valid and binding written agreement.
12. There were no conditions precedent to the execution of the promissory note
and, therefore, the introduction of parol evidence is in error.
13. The third exception to the parol evidence rule allows testimony about the
intent of the parties when the writing contained in the document is
ambiguous. Community Dev. Serv., 679 S.W.2d at 724. The language in the
promissory note is plain and unambiguous, it states that the Appellant is to
receive the amount stated in the agreement in money, not a credit, and the
Appellant is to make monthly payments to payoff the loan.
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Point of Error 2: Evidence does not support the decision, Plaintiff's tendering
of payments for lease payments not deposited by Defendant Landlord
14. The court based its decision for the counterclaim for the Appellee and
denied relief for the Appellant on its case in chief on the fact that the
Appellant had not made payments to the Appellee.
15. The Appellee testified that the Appellant had tendered to Appellee payments
for the months of August 2010, September 201, October 2010, November
2010 and December 2010 and that Appellee had received such payments for
the above referenced months that it claimed that the Appellant had not paid
and for which it made the basis for the eviction of the Appellant from the
premises. [Transcript page 125, lines 1-22]
16. The Appellee testified that it had received checks for the full payment of the
lease agreement from the Appellant for the months of August 2010,
September 2010, October 2010, November 2010 and December 2010.
17. The Appellee testified that under the lease agreement, the Appellee had the
authority to deposit any and all of the checks tendered to it by the Appellant,
including partial payments, without waiving its rights under the lease.
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18. If the Appellee had deposited the checks and the checks had been returned
for insufficient funds, then the Appellee could argue that the appellant had
not tendered the lease payments.
19. The Appellee did not deposit the tendered funds and proceeded strainght to
eviction, without any evidence that the Appellant tendered payments were
not adequately funded.
20. Accordingly, the court erred by ruling that the appellant had not tendered the
funds for payment of lease payments for the period from August 2010 to
December 2010. The Appellant testified that she had authorized the
Appellee to cash the checks tendered for August, September, October,
November and December 2010.
Point of Error 3: No consideration for the amendment to the lease agreement.
The Plaintiff had a duty to pay rent under the lease agreement and there was
no additional consideration.
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21. The court erred by ruling that the amendment to the lease agreement was
valid and legally enforceable. An amendment to a contract has to be
supported by separate and independent consideration to be enforceable.
22. Texas courts have consistently adhered to the rule that a modification to a
contract must itself be supported by consideration to be valid. See Hathaway
v. General Mills. Inc., 711 S.W.2d 227,228,29 Tex. Sup. Ct. J. 333 (Tex.
1986); [** 14] American Nat. Ins. Co. v. Teague, 237 S.W. 248, 250 (Tex.
Comm'n App. 1922, holding approved); Hill v. Heritage Res., Inc., 964
S.W.2d 89, 113 (Tex. App.--El Paso 1997, pet. denied); Hovas v. O'Brien,
654 S.W.2d 801, 803 (Tex. App.--Houston [14th Dist.] 1983, writ refd
n.r.e.).
23. The Appellant had a pre-existing duty to pay the amounts provided for in the
alleged amendment to the lease agreement. Therefore, the Appellant did not
provide any new consideration and the amendment fails as a legally
enforceable contract due to the absence of new consideration.
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24. Without the enforceability ofthe amendment, it is impossible to determine if
the Appellee or the Appellant breached the lease agreement, or which party
breached first.
25. In addition, if the amendment to the lease agreement is deemed to fail due to
the lack of consideration, then the court's ruling that the amendment
language stating that are prior disputes between the parties are settled is in
error.
Point of Error 4: The court erred in not ruling that the Appellee had
committed fraud by presented business records to the court that the Appellee
testified were inaccurate and were used to commit fraud on the Appellant
26. The Appellee testified that the business records it offered to the court as
exhibits were authentic when in fact the Appellee knew the exhibits were in
fact inaccurate. Appellee attorney stated that Appellee Exhibit D3, when the
court raised a question concerning the exhibit, was "... a mistake in our
accounting and I will say that up front." [Transcript page 69, lines 14-16]
181Page
27. Appellee then moves to admit Appellee Exhibit D3 knowing that this
document was not accurate. [Transcript page 80, lines 7-9]
28. Appellee then states that the admitted "Defendant Exhibit No.3 is a tenant
payment list showing your [Appellant] payment history for 2010 and 2011.
29. Appellee also testifies that the document entered as Appellee Exhibit D3 was
the Tenant Payment List for 2008-2009 and 2010-2011 [Transcript page
120, lines 10-19]
30. The court then clarifies the nature of the exhibit as the Tenant Payment List
for 2008,2009,2010 and 2011 [Transcript page 121, lines 4-7]
31. Appellee then testifies that "There are some inaccuracies in this piece of
paper right here (Appellee Exhibit D3)."
32. In addition, the Appellee states that "I don't lmow the answer to that" when
asked if he knew whether these documents were given to Ms. Dupree to
support the fact that she had not paid rent. [Transcript page 122, lines 18-20]
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33. The Appellee also testifies that the Tenant Payment List admitted as Exhibit
D3 does not show a credit to Ms. Dupree's account in the amount of the
promissory note. [Transcript page 124, lines 6-10]
34. Accordingly, Appellee has provided no evidence that it provided the
Appellant with any notice of the breach for failure to make payments, while
holding checks tendered to the Appellee by the Appellant; or the Appellee
provided the Appellant with notice of the breach for failure to make
payments with a notice, by the Appellee own admission that state that
"There are some inaccuracies in this piece of paper right here (Appellee
Exhibit D3)."
35. The Appellee testified that it knew that the business records were inaccurate
when they were offered for admission and were offered to deceive the court.
36. The exhibits should not have been admitted because they were offered based
on fraud.
37. The Appellee and the Appellee attorney were aware of the fraud and should
be sanctioned by having the exhibits stricken from the trial court record and
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the Appellee and the Appellee attorney should be held in contempt of court
for participating in the fraud.
CONCLUSION AND PRAYER
For these reasons, Appellant asks the Court to remand the case back to the
trial court and order the trial court to reverse its ruling on the issues presented
herein, to award the Appellant - Plaintiff attorney fees and court costs.
Timothy L. Wi . ms, MBA, JD
TBN: 00791938
TL Williams & Associates
11811 North Freeway, Suite 212
Houston, Texas 77060
713.504.1882 - Office
i!yill~a.ms.nhcs-®yahoo.com - email
Attorney for Appellant, Llyasah Dupree
d/b/a 360 Degree Beauty Academy
CERTIFICATE OF SERVICE
I certifY that a true and complete copy of the Appellant's Appellant's Brief
was sent to the Appellee, Boniuk Interest, Ltd, by and through its attorney of
record, Debra Boniuk, Boniuk Interest, Ltd, 3720 San Jacinto Street, Houston,
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Texas 77004 via United States Certified Mail, Return Receipt Requested on the
d-b~'aay of l£L``{lJOj\~ ,2015.
Timothy L. Wil i ms, MBA, JD
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9 ofthe Texas Rules of Appellate Procedure, this document
is formatted in typeface of 14 ~ point and the computer generated word count for
the document is 3,300.
Timothy L. Wi lr ms, MBA, JD
22 I P age
EXHIBIT 1 - FINDINGS OF FACT AND CONCLUSIONS OF LAW
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7/14/201441141 PM
Chns Darnel - Dlstnct Clerk
Harris County
Envelope No 1818431
By System user. TexFlle
CAUSE NO 2013-40231
LLYASAH DUPREE d/b/a § IN THE DISTRICT COURT OF
360 Degree Beauty Academy, §
PlamtIff/Counter-defendant §
vs § HAJUUSCOUNTY,TEXAS
BONIUK INTERESTS, LTD,
§
§
FILED
ChrIs DanIel
Defendant/Counter-plamtIff § 11TH JUDICIAL COURT DistrIct Clerk
TIme
AUG 15 2014
<./
~lfE"?t±&NfiGoml'fERof'LAIN1'lFF'S ~ FINDINGS Qii:ACT ',rI. Counly.
AND CONCLUSIONS OF LAW Dapu
,
TO, THE HONORABL~ JUD~ OF SAID C O t
COMES NOW. Plamtl~ BONISK IN RESTS, LTD ,y.. uests the Court to enter L e
followmg Fm~lof Fact and ~1'lons of eabove referenced d moered cause 0
~ctIon
l~Fmdmgs of Fact
1 Bomuk Interests, Ltd (Landlord) and Llyasah M Dupree (Tenant) entered mto a wntten lease
agreement on September 30, 2007, whereby counter-plamuff; Landlord, leased real property
(approxImately 10,000 square feet) located m a commercIal shoppmg center (4815 HIghway 6 North,
Houston, HarriS County, Texas - the Premises) to counter-defendant, Tenant, for use as a beauty
cosmetology school and related actlVllies
2 The lease was for an eIghty-four (84) month mllial tenn commencmg on January 28, 2008
3 Tenant promIsed to pay the mmlmum rent under the Lease, whICh was $70000 per month
(months 1 - 3), $1,400 per month (months 4 - 7), $5,000 per month (months 8 - 24), and $6,00000 per
month (months 25 - 84) In addItIOn, the Tenant agreed to pay the addItIOnal charges for Common Area
Mamtenance, taxes and msurance, and water/sewer addmg an additIOnal $1,323 00 per month begmmng
RECORDER S MEMORANDUM
ThiS lnstrument IS of poor quality
at the lime of Imagmg
m month 8, resultmg m a total gross rent oblIgatIon of $6,323 per month (months 8 - 24), and $7,323 00
per month (months 25 - 84)
4 The Lease was amended on September 26, 2008
5 Tenant entered mto possessIOn of the premises, and, despite landlord's fuJI perfonnance of all
oblIgatIOns and conditIOns of the lease, tenant faIled to pay the rent pursuant to the tenns of the lease
6 Dupree struggled to pay the rental payments at various tImes durmg the time penod she occupied
the premises
7 During December 2009, Dupree requested that she start the new year (2010) With a zero ($0)
balance so that the busmess debt-to-mcome ratIO would look better for the government auditors Thus,
on or about December 18, 2009, Llyasah M Dupree executed and delIvered to BOnIuk Interests, Ltd a
promissory note dated December 18, 2009, whereby Llyasab Dupree promised to pay to the order of
BonmkInterests, Ltd the sum of$21,499 00
8 Tenant breached the lease by faIlmg to pay rent due and contmued m default despite Landlord
glVlng Llyasab Dupree notice of default
9 On or about March 10, 201 I, Landlord exercised It nghts pursuant to the Lease Agreement
(SectIOn 19) and the Texas Property Code (sectIOn 93002) to change the locks on the Premises for
f",lure to pay rent due Llyasah M Dupree did not pay her rental arrears to re-enter the preIlllses
10 On March 22, 2011, LJyasab Dupree filed a WrIt of Re-entry With a Tenant's Sworn Complalllt
m the JustIce of the Peace Court, Precmct 5, Place 2, case number EV52C0309272 A hearIng was held
on March 24, 2011 @ 4 00 pm at which time Judgment was entered III favor of the landlord confinnmg
that the lockout was lawful
11 ge the 100
~DN\
on th lease space and
Ille funllture a d Ixtur s ~
which a valId h ad eXisted ,
12 Landlord conunenced efforts to re-Iet the premises Immediately On July I, 20ll, Bomuk
Interests, Ltd contraoted with a third party to lease the premises at 4815 Highway 6 North, Houston,
Hams County, Texas The rent conunencement date under the terms of this new lease was November 4,
2011
13 Plamtlff/oounter-defendant defaulted In faIling to pay her rental payments when due
14 The Lease has been breached the lease by filliure to pay rent due under the tenos of the lease
15 Counter-plaintiff bas requested counter-defendant to pay counter-plamtlff those sums due and
owmg to counter-plamtlff
16 On or about March 28, 2011, counter-plamtlff presented a olalm on the Lease to oounter-
defendant for payment The claIm was Inade by letter received by oounter-defendant on March 30, 2011
Via certified mall, RRR (7011 0110 0000 4181 9822), demandmg payment of past due rent
17 Agam on July 19, 2013, counter-plamtlff presented a claim on the Lease to counter-defendant
through her attorney of record for payment The claim was made by letter reCeIved by counter-defendant
on July 19, 2013 via faCSimile transmission and on July 24, 2013 Via certified mail, RRR (7011 0110
0000 4181 8665), demandlOg payment of past due rent III the aIUount of 91, 168 00
18 Counter-defendant bas faIled to pay SaId account to counter-plallltiff
19 That the correct balance due to counter-plalOtlfffor rental payments III thiS laWSUit IS $91,168 00
20 On or about December 18, 2009, at Houston, Texas, Llyasah M Dupree (Borrower) executed
and delivered to Bomuk Interests, Ltd (Lender) a promissory note dated December 18,2009, whereby
Llyasah Dupree promised to pay to the order of Bomuk Interests, Ltd the sum of $21,499 00, due and
payable In equal monthly Installments of $440 00 from February I, 2010 through February 1, 2015 at
Houston, Texas
21 Said note bears mterest from February 1, 2010 at the rate of eight percent (8%) per annum until
matunty and from maturity unnl paJd at the rate of fifteen percent (15%) per annum Bomuk Interests,
Ltd, as the legal owner and holder of such note, IS the entIty enlltied to enforce It
22 LIyasah Dupree made only one payment towards the note, $1,452 00 on June 10,2010 DespIte
Lender's demand for payment from LIyasah Dupree after the note became due and payable, Llyasah
Dupree made only one payment towards the note, $1,452 00 on June 10, 2010
23 Plamllff/counter-defendant defaulted m fRllmg to pay her note payments when due
24 The Note has been breached by faIlure to pay payment obhgatlOns due under the terms of the note
25 Counter-plamlIff has requested counter-defendant to pay counter-plamtlff those sums due and
owmg to counter-plamtlff
26 On or about January 11, 2011, Lender sent notice of default and mtent to accelerate to Llyasah
Dupree On or about March 28, 2011, Lender accelerated the matunty of the note and demanded
payment of the note In full by LIyasah Dupree, but no addIlIonal payments have been made Fmally, on
or about July 19, 2013, Bomuk lnterests, Ltd sent demand for payment of the note In the amount
$28,49745
27 Counter-defendant has faIled to pay said account to counter-plamtlff
28 That the correct balance due to counter-plamtIfffor note payments m thiS laWSUIt IS $28,497 45
29 In January, 2008, durmg the bUIld-out but pnor to tenant occupymg the
premIses, the premIses were damaged durmg a storm from a roof faIlure that
allowed ramwater to flood the premIses ThIS delayed tenant's occupancy of the
premIses and damaged some of tenant's personal property
30 The September 26, 2008 lease amendment abated the rent for the months of
September, October and November, 2008 It also deferred $3000 per month of
rent for the months of December, 2008 through March, 2009, WIth the agreement
that tenant would pay these deferred amounts m mcrements of $500 per month for
24 months begmnmg October, 2009 ThIS amendment also mcluded a mutual
release of all claIms between the partIes eXlstmg at the tIme of the amendment
-.
ConclusIOns of Law
The Lease has been breached for failure to pay rents due to Landlord pursuant to the terms
ofthe Lease Agreement Counter·defendant defaulted under the Lease by fadmg to pay the
rent due
2 The unpaid balance due from counter-defendant to counter-plamhff IS $91,168 00
3 Counter· plamtdfhas satIsfied all conditIOns precedent to complete performance of the
Lease and has fully performed ItS oblIgatIOns under the lease Counter-plamtlff IS entitled to
recover aU damages owed under the Lease and/or permitted by law Counter-plamtlff IS also
enhtled to recover prejudgment and post-Judgment mterest as prOVided m the Lease andlor
permitted by law, attorney's fees and court costs
4 The Note has been breached for fOllure to pay pnnclpal and mterest due to Lender pursuant
to the terms of the Promissory Note Counter-defendant defaulted under the Note by falhng
to pay the mstaUments due
5 The unpaid balance due from counter-defendant to counter-plOlntlffunder the terms ofthe
Note IS $28,497 45
6 Counter- plamtlff has sahsfied aU conditIOns precedent to complete performance of the
Promissory Note and has fully performed ItS oblIgatIOns under the note Counter-plalllhff IS
enhtled to recover all dOlDages owed under the Note andlor penmtted by law Counter-
plamllff IS also entitled to recover prejudgment and post-Judgment mterest as prOVided III the
Note andlor permitted by law, attorney's fees and court costs
7 As a result of counter-defendant's fOllure and refusal to pay the clOlms, counter-plamlIffhas
been reqUired to retam the underSigned legal counsel to defend thIS cause of actIOn and
prosecute thiS counterclaim Counter-plamtlff IS, therefore, entitled to recover the additIOnal
sum of$15,000 as compensatlOn for Its attorney's fees, whIch sum IS a reasonable
fee for the servIces rendered m mstltutmg and prosecutmg thIs actlOn
8 The September 26, 2008 lease amendment released tenant's claIms agamst
landlord stemmmg from the water mtruSlOn event m January, 2008
9 The statute ofhmltatlOns barred tenant's claIms stemmmg from the January,
2008 water mtruslOn event
10 PlamtIffLlyash Dupree failed to prove the followmg causes of actIon alleged
m PlamtIffs Ongmal PetItlOn breach oflease, wrongful eVictIon, retalIatory
eVictIOn, unjust ennchment ["Reimbursement"], fraud and vlOlatlOn of the Texas
DeceptIve Trade PractIces Act
11 Plamtlff Llyash Dupree dba 360 Degree Beauty Academy IS entitled to no
recovery agamst Defendant on any of her claims
, SIgned thiS IS day of August, 2014
Mike MIller Judge Presldmg
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STATE OF TEXAS .~ "IO· .. ·~······~.,. ,.:::>
COUNTY OF HARRIS ``'l//It/Jtll'~-<\'``
I.. Chris Danl.l, DI.lrlct CI'.'" 01 Harri. Coun~, TOIla\; oOiIIly thlt
tnl, I. a\rue .n-
prejudgment interest on the sum of $119,664.45 at the annual rate of.pe~('Io) per annum
~S- ~
beginning July 19, 2013 through July it, 2014 ~sfjudg:n;mt) `` _6_t sf SEVEN
~
Tl:1el:fSANf)'eNE HUNDREIrSBVEN'f'l-NINE MID 93/1e6 ~LAAS ($},Ii9.'B) fm a
~
teta:! of ONE HUNDltED I WENfY·SIX TIlOUS1\}ID ~ HlINDRlID FORTY FIVE
~
At-ID 33flQQ ~ ($L~6,845 38) as sf.ffily 22, 2 9F d post-judgment interest on the;;>
45flOO DOLLARS ($119,665.4ii) at the annual ra
~;ve
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percent (e%) per annum from the date
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of signing as set forth below until this jUdgme~ been paid in full.
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2) The Court further orders tha~oniuk Interests, Ltd., defendant/counter-plaintiff,
10'
recover from L1yasah Thj~, plaintif!lcounter-defendant, an additional sum of
,,=~
FIFTEEN THOUSfiitr"U 001100 DOLLARS ($15,000.00) as attorneys' fees.
3) The Court further~ders that Boniuk Interests, Ltd., defendant/counter-plaintiff,
``
recover from ~:ili Dupree, plaintifllcounter-defendant, all taxable court costs.
4) The court~rs execution to issue for this judgment.
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5) ~enies alI relief not granted in this judgment. JUL 25 2014
The
Signedthis$· day of a 25201. ,2014.
JUDGE PRESIDING
APPROVED AS TO FORM AND SUBSTANCE:
Debra Boniuk
Attorney at Law
3720 San Jacinto
Houston, Texas 77004
(713) 984-8300
(713) 984-9399 Facsimile
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Debra Boniuk
TBN 17500280 /fft~'
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ATTORNEY FOR DEFENDANT/COUNTER-PL~F
~
CERTIFIC``F SERVICE
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I hereby certifY that on this ~ day of July 2014, a true and correct copy of the
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foregoing Final Judgment was se~Certified Mail, Return Receipt Requested or facsimile
transaction or regular mail or h~Q~liVery, to the following party andlor counsel of record:
Timothy L. Williams Q~
TL Williams & Associate(jl
11811 North Freeway, SlI@ 212
Houston, Texas 7706fjjjpY
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ViaFACSIM:I:l£~SMISSIONat(281)417180l ~ O-'-D
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And via certifi~'ail, RRR 7010 18700001 83397014
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Debra Boniuk