Professional Documents
Culture Documents
03-17-00386-CV
18775401
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/10/2017 5:10 PM
JEFFREY D. KYLE
CLERK
NO. 03-17-00368-CV
RECEIVED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
THIRD DISTRICT OF TEXAS 8/10/2017 5:10:15 PM
JEFFREY D. KYLE
Clerk
v. September 8, 2017
Carl J. Wilkerson
State Bar No. 21478400
cwilkerson@brstexas.com
200 N. Mesquite St., Suite 200
Arlington, Texas 76011
Telephone: (817) 274-5992
Facsimile: (817) 261-1671
Appellants’ counsel:
Appellees’ counsel:
ii
TABLE OF CONTENTS
iii
INDEX OF AUTHORITIES
In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185 (Tex. 2007)…………….14,15,21
SEB, Inc. v. Campbell, 2011 WL 749292, 2011 Tex. App. LEXIS 1588
(Tex. App. – Austin 2011, no pet.) (mem. op.)……8,9,10,11,12,13,14,15,17,18,19,20
iv
Texas Rules
Texas Statutes
v
STATEMENT OF THE CASE
Interlocutory On May 24, 2017, the trial court, Judge Meachum presiding,
disposition by heard Appellants’ DEFENDANTS … PLEA IN
Trial Court: ABATEMENT and MOTION TO COMPEL
ARBITRATION to compel arbitration of Appellees’ claims
arising from the parties’ Residential Construction Contract.
CR 108/App. F. RR 1/App. I.3 Judge Meachum took the
matter under advisement. RR 29:23-24/App. I. Judge
Meachum denied the Motion to Compel Arbitration, without
ruling on the Plea in Abatement. CR 540/App. A.
1
The Clerk’s Record, Volume 1 of 1, filed July 10, 2017, hereinafter referenced as “CR”.
Selected portions of the Clerk’s Record are appended hereto within the Appendix to Appellants’
Amended Brief and may be accessed by the accompanying “App. __” link.
2
The Supplemental Clerk’s Record, Volume 1 of 1, filed July 10, 2017, hereinafter referenced as
“Supp. CR”. Selected portions of the Supplemental Clerk’s Record are appended hereto within
the Appendix to Appellants’ Amended Brief and may be accessed by the accompanying “App.
__” link.
3
The Reporter’s Record, Volume 1 of 1, filed June 19, 2017, hereinafter referenced as “RR
[page:line]”. The Reporter’s Record is appended hereto within the Appendix to Appellants’
Amended Brief and may be accessed by the accompanying “App. __” link.
App. P. 26.1(b), 28.1(b). In the interest of justice, Appellant requests that oral
ISSUES PRESENTED
Lakeway Custom Homes and Renovation (“Lakeway Custom Homes”) and its
260-263/App. G. Appellees are property owners Dhiraj Handa and Ritu Handa.
the Handas each signed the Residential Construction Contract (“Contract”) for
the construction of a home on the Handas’ property at 228 Sanostee Cove (just
outside Austin city limits off Bee Cave Road). CR 114-124/App. F. By Contract,
CR 114, 119, 120/App. F. A dispute arose between the parties in November 2015.
Appellants’ new counsel responded to the Handas’ requests for “two items that
of Pejman Dargahi and Kamran Dargahi in December; and their request for
2016, Appellants filed their Plea in Abatement and Motion to Compel Arbitration
to “abate this matter for binding arbitration” based on the Contract’s arbitration
provision. CR 108/App. F.
After two prior hearing settings, the trial court, the Honorable Amy Clark
Arbitration on May 24, 2017. CR 135, 142, 144, 258. RR 1/App. I. The Handas filed
11:3/App. I. The trial court, Judge Meachum presiding, took the matter under
advisement and subsequently denied the Motion to Compel Arbitration by May 30,
2017 Order. RR 29:23-24/App. I. CR 540/App. A. That Order does not state the
Appeal of the Order denying the Motion to Compel Arbitration pursuant to TEX.
CIV. PRAC. & REM. CODE § 51.016. CR 666. Appellants also requested the trial
court to stay its further proceedings pending this Court’s review of the Order
Appellants’ request. Supp. CR 5. The trial court, the Honorable Scott H. Jenkins
presiding, heard Appellants’ request and denied the Motion to Stay Proceedings by
courts’ obligation to honor and enforce such agreement requires referral of such
compel arbitration with another must establish: (1) a valid arbitration agreement;
and (2) asserted claims are within the agreement’s scope. When established, the
trial court must discharge its obligation to honor and enforce such agreement.
parties; and (2) Appellees’ asserted claims are within the agreement’s scope.
Appellees opposed arbitration by a smoke screen that wrongly prevented the trial
court’s discharge of its obligation. This Court must reverse the trial court’s Order
that: there is “no valid arbitration clause between [Appellees] and the Dargahis”;
Appellants offer to clear the air so this Court may properly aim the parties’
dispute toward arbitration, reverse the trial court’s Order and encourage the trial
court to discharge its obligation to honor and enforce the parties’ agreement to
Standards of Review
SEB, Inc. v. Campbell, 2011 WL 749292, 2011 Tex. App. LEXIS 1588 (Tex.
App. – Austin 2011, no pet.) (mem. op.) provides this Court’s standard of review
arbitration:
This Court reviews, de novo, the trial court’s determination of the legal
This Court reviews, de novo, the trial court’s determination of the legal
applicability of the arbitration clause based upon the affidavits submitted in support
and opposition to the motion. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269
arbitration agreement among all parties within the Contract by affidavits of:
Kamran Dargahi, as member and manager of Lakeway Custom Homes; and Pejman
CR 120/App. F. Dhiraj Handa signed and Ritu Handa initialed that page of the
Contract. CR 120/App. F. The Handas signed the Contract, immediately above the
agreement between them and Lakeway Custom Homes. Appellees only dispute the
Court. See In re U.S. Home Corp., 236 S.W.3d 761, 765 (Tex. 2007). That argument
SEB at *14/App. J.
several builder employees. See id. at 763. Those homeowners argued that they did
not have to arbitrate with the individual builder employees because only U.S.
Home signed the agreement. See id. at 765. The Texas Supreme Court found that
argument without merit. Id. None of the individual defendants had a duty to the
homeowners but for the homeowners’ contracts with U.S. Home and, “[a]s the
parties’ contract rather than general obligations imposed by law, the suit is subject
compel arbitration, the homeowners argued that the only parties to the arbitration
agreement were themselves and “Circle B Homes.” Id. at *3/App. J. This Court
generally intend to include disputes about their agents’ actions because the actions
See SEB at *13 (citing In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 762 (Tex.
2006))/App. J. This Court reversed the trial court’s order denying the motion to
business as Lakeway Custom Homes, Kamran Dargahi and Pejman Dargahi are
agents and representatives of Lakeway Custom Homes. See TEX. BUS. ORG. CODE
§§ 101.251, 101.254 (a). By this Court’s SEB rule, Kamran Dargahi and Pejman
Dargahi are also covered by the arbitration agreement in the Contract and may
or outside the scope of the arbitration agreement, the Texas Supreme Court’s U.S.
Home rule requires arbitration of Appellees’ claims against Kamran Dargahi and
Since Appellees must refer to the Contract’s payment protocol to determine the
liabilities of Kamran Dargahi and Pejman Dargahi, Appellees’ claims for such
liabilities are subject to the Contract’s arbitration provision. See U.S. Home at 765.
See also In re Kaplan Higher Educ. Corp., 235 S.W.3d 206, 209 (Tex. 2007)
party generally cannot avoid unfavorable clauses by suing the other party’s agents,
similar rule necessary to place arbitration agreements on equal footing with other
contracts); In re Susan Newell Custom Home Builders, Inc., 420 S.W.3d 459, 461-462
When Appellants established that Appellees’ claims were within the scope of
properly loaded both barrels for the trial court. The trial court abused its discretion
by failing to discharge the parties’ dispute toward arbitration and failing to abate
further proceedings in the trial court until conclusion of arbitration. See In re Merrill
Lynch Trust Co. FSB, 235 S.W.3d 185, 187, 195-196 (Tex. 2007) (when claims must
arbitration is completed).
When Appellants established that Appellees’ claims were within the scope of
arbitration of Appellees’ claims. See SEB at *7/App. J. Appellees then bore the
burden to present evidence that Appellants waived their right to compel arbitration
against waiver. See id. at *15/App. J. Even if the trial court had any doubts whether
Appellees overcame such presumptions and carried their burden, the trial court
should have resolved any doubts in favor of arbitration. See id./App. J. Appellees’
evidence did not: overcome the initial presumption favoring arbitration; overcome
the strong presumption against waiver; and carry the burden to show that
arbitration. Whether a party has substantially invoked the judicial process depends
on the totality of the circumstances; key factors include the reason for the delay in
and whether the movant sought disposition on the merits. Richmont Holdings, Inc. v.
Superior Recharge Sys, L.L.C., 455 S.W.3d 573, 576 (Tex. 2014) (per curiam) (citing
Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008)). Waiver can be implied from a
party’s unequivocal conduct, but not by inaction. G.T. Leach Builders, LLC v.
Sapphire V.P., LP, 458 S.W.3d 502, 515 (Tex. 2015). Mere delay in moving to
“Defendants did not move to compel arbitration until nearly nine months after this
lawsuit was filed — a delay which approximates the amount of time establishing
time from their filing of suit on March 24, 2016 to Appellants’ December 8, 2016
Appellants are: May 10, 2016 to October 2016, from Appellants’ Original Answer
10, 2016 to December 8, 2016, from Appellants’ Original Answer to their Plea in
CR 449/App. H. Those time periods, whether five or seven months, clearly do not
274/App. H.
conducted, and such discovery may also be useful for the purpose of arbitration,
ongoing do not amount to waiver. G.T. Leach at 514. The Texas Supreme Court has
declined to find waiver even when the movant itself propounded discovery. Id. One
party has substantially invoked the judicial process is how much discovery has been
conducted and who initiated it. SEB at *16/App. J. A party who requests a
represented by Kemp Gorthey, Mr. Gorthey agreed orally to set this case for a jury
trial in this court and provided dates of availability” puffs more smoke. CR
448/App. H. Such evidence does not show that Appellants waived arbitration. See
G.T. Leach at 511. In that case, the attorney for the party moving to compel
scheduling order and a new trial date. Id. The Texas Supreme Court held that such
arbitration.” Id. Here, Appellees’ counsel’s parol testimony that Kemp Gorthey
Kemp Gorthey to “set this case for a jury trial in this court.” An oral agreement
between attorneys that does not comply with the requirements of TEX. R. CIV. P. 11
is no evidence of any agreement. See, e.g. Knapp Med. Ctr. v. De La Garza, 238
S.W.3d 767, 768 (Tex. 2007) (per curiam); Prevost v. Insurance Advisors, Inc., 46
Appellees resulting from Appellants’ conduct that substantially invoked the judicial
fees for “above-described legal services through December 8, 2017”), the incurred
amount represents “time spent pleading the case in this Court, participating in
written discovery, working with Plaintiffs’ expert, and preparing Plaintiffs’ Motion
prejudice based upon the fact of expended funds for similar legal fees, this Court
SEB at *23/App. J.
The amount of time and expense the parties have committed to the
litigation;
presumptions favoring arbitration and against waiver. When the smoke is cleared,
Appellees did not meet their burden to show that Appellants substantially invoked
the judicial process to Appellees’ detriment. The trial court’s May 30, 2017 Order
legal determination of Appellants’ waiver of their right to compel and/or the trial
among Kamran Dargahi, Pejman Dargahi, and Appellees. Upon de novo review of
those legal determinations, this Court should reverse the trial court’s Order as an
abuse of discretion, properly aim the parties’ dispute toward arbitration and
discharge the obligation to honor and enforce the parties’ arbitration agreement in
their Contract. Specifically, this Court should remand the case to the trial court
with instructions that: the trial court compel arbitration of Appellees’ claims
Contract; and the trial court abate its further proceedings pending conclusion of
the parties’ arbitration. See In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 195-
196 (Tex. 2007) (abuse of discretion when trial court fails to stay litigation in court
Kamran Dargahi, and Yekk Construction Services, LLC d/b/a Lakeway Custom
Homes and Renovation pray that this Court: reverse the trial court’s May 30, 2017
abuse of discretion; remand the case to the trial court with instructions that the
with the parties’ arbitration agreement in their Contract, and abate further
proceedings in the trial court pending conclusion of the parties’ arbitration; award
Appellants their costs on appeal; and award Appellants such other relief to which
Respectfully submitted,
CERTIFICATE OF SERVICE
David King
State Bar No. 24083310
dking@gdhm.com
Brian T. Cumings
State Bar No. 24082882
bcumings@gdhm.com
GRAVES, DOUGHERTY, HEARON & MOODY
401 Congress Ave., Suite 2200
Austin, Texas 78701
Telephone: (512) 480-5603
Facsimile: (512) 536-9942
v.
LIST OF DOCUMENTS
On this day, the Court considered Defendants' Motion to Compe l Arbitration. After
considering the Motion, Plaintiffs' written response in opposition, the evidence submiued, the
arguments of Counsel , and the pleadings and other papers on file in this case, the Court
"'":I (:J
concludes that the Motion to Compel Arbitration should be in all things, and hereby is, DENIED.
."
540
On this day. the Court considered Defendants' Motion. to S~y Proceedings and for
Expedited Hearing. After considering the Motion, Plaintiffs' written response in opposition, the
evidence submitted, the arguments of Counsel, and"the pleadings and other papers on file in this
. case, the Court concjJjd"J tha~ theJ'1otion shoulJi be in all tjlings, an~hereby is, DENIED, Wlt~
.o",~d,i.:: ~ /VI't?I>/~J~/"~y.sr;;0.kt'~~ d.-ls ~ LTtd~":::""tt-
(F' VSiGNED and ORDERED this ~ day of June, 2017. .;t /9~;r. ¥-
"''''=SIDING
Defendants, Pejman Dargahi, Kamran Dargahi, andY ekk Construction Services, LLC d/b/a
Lakeway Custom Homes and Renovation, file this Original Answer to Plaintiffs' Original Petition
WHEREFORE, Defendants respectfully pray that Plaintiffs take nothing and that
Defendants recover their costs and all other relief, general or special, at law or in equity, to which
Respectfully submitted,
15
By my signature above I hereby certifY that a true and correct copy of the foregoing
Defendants' Original Answer was forwarded on this 1Oth day of May, 2016, to Plaintiffs' counsel as
follows:
16
OCT 10 2016
At 'S
'.l9D M.f'
CAUSE NO. D-1-GN-16-001279 Velva L. Price, District Clerk
The Court hereby grants the Unopposed Motion to Substitute Counsel filed on behalf of
Defendant Pejman Dargahi, Kamran Dargahi, and Y ekk Construction Services, LLC, d/b/a
Lakeway Custom Homes and Renovation. Kemp Gorthey of The Gorthey Law Firm is withdrawn
as attorney of record for Pejman Dargahi, Kamran Dargahi, and Yekk Construction Services, LLC,
d/b/a Lakeway Custom Homes and Renovation and the following attorneys are substituted in their
place:
James Rudnicki
State Bar No. 24006148
JRudnicki1i1,BRSTexas.com
Russell Clinage
State Bar No. 00790473
RClinage(d.BRSTexas.com
Tyler Hood
State Bar No. 24097846
TH ood(i.I:B RS Texas. com
Bush Rudnicki Shelton, P.C.
200 N. Mesquite St., Suite 200 111111111111111111111111111 11111111 II IIIII III IIIIII IIII
Arlington, Texas 76011 004837769
Telephone: (817) 274-5992
Facsimile: (817) 261-1671
17
COME NOW Plaintiffs Dhiraj Handa and Ritu Handa, and file this Fourth Amended
Petition complaining of Defendants Pejman Dargahi, Kamran Dargahi, and Y ekk Construction
Services, LLC, d/b/a Lakeway Custom Homes and Renovation, and for cause of action would
show as follows:
I.
BACKGROUND AND OVERVIEW
1. This lawsuit seeks money damages based on the Defendants' wrongful and
Plaintiffs have paid 95% of the Contract Price, the Defendants have improperly refused to move
forward with the work. Instead, the Defendants are holding the project hostage by insisting upon
payment of additional amounts that are not owed and that exceed the total Contract Price.
Further, Defendants have failed to pay subcontractors, despite falsely representing to Plaintiffs
that all subcontractors had been paid. Defendants have fraudulently diverted trust fund payments
made by Plaintiffs to themselves and to other purposes, leaving Plaintiffs exposed to the risk of
146
work that the Defendants are refusing to perform. As for the work Defendants completed before
abandoning the project, Defendants did not perform such work in a good and workmanlike
manner. The resulting construction defects caused physical property damage in the form of
II.
DISCOVERY PLAN
2. Discovery in this action should proceed under Level 3 pursuant to Rule 190.4 of
III.
PARTIES
3. Plaintiffs Dhiraj Handa and Ritu Handa are residents of Travis County, Texas.
4. Defendant Pejman Dargahi, a resident of Travis County, Texas, has appeared and
answered herein.
6. Defendant Y ekk Construction Services, LLC, d/b/a Lakeway Custom Homes and
Renovation, a Texas limited liability company, has appeared and answered herein.
IV.
JURISDICTION AND VENUE
7. This Court has subject matter jurisdiction over Plaintiffs' claims, and Plaintiffs'
claims are within the jurisdictional limits of this Court. Pursuant to Tex. R. Civ. P. 47(c)(5),
& Rem. Code. Each Defendant's residence or principal office is in Travis County and all or a
substantial part of the events giving rise to Plaintiffs' claims occurred in Travis County.
v.
FACTS
Contract (the "Contract," attached hereto as Exhibit A) under which "Lakeway Custom Homes
and Renovation" agreed to build a house on a piece of unimproved land located at 228 Sanostee
Cove, Travis County, Texas, for a fixed contract price of $1,460,000.00 (the "Project"). The
Contract was executed on or around April4, 2014, by Defendant Pejman Dargahi ("Dargahi").
10. The Contract did not disclose that Lakeway Custom Homes and Renovation was a
d/b/a for Defendant Y ekk Construction Services, LLC ("Y ekk"), nor did the Contract disclose
that Dargahi was executing the Contract as the agent ofYekk or any other entity. In a November
19, 2015 email, Dargahi misrepresented to Plaintiffs that the Contract was with "Lakeway
Custom Homes LLC" (a non-existent entity), and Dargahi did not indicate that he signed the
Contract on behalf ofYekk. Dargahi has also indicated that he and his brother, Kamran Dargahi,
are "partners" in the non-existent Lakeway Custom Homes LLC. Although not disclosed in the
Contract, upon information and belief, Dargahi is the sole member and director ofY ekk.
12. In accordance with Article V, and as reflected in the Draw Schedule prepared by
the construction lender (Regions Bank), Plaintiffs have made progress payments totaling
$1,387,750 ($660,000 of which was paid directly by Plaintiffs and $727,750 of which was paid
by the construction lender). This is 95% of the Contract price. However, Dargahi has completed
less than 90% of the scheduled work at a value of $1,314,000. In other words, Dargahi has been
paid for more than he has completed, and has been overfunded by at least $73,750.
13. Dargahi's last request for a payment, in the amount of $90,520, was made in
November 2015. At that time, Dargahi was already overfunded by $29,950. Regions Bank
approved a progress payment of $43,800 on Friday, November 13, 2015, noting that this funding
was an "exception to policy" and was "the maximum amount we could get approval to fund per
management." Regions Bank stressed that "there will be no further draws from the loan until the
project is completed."
14. However, the following Monday, November 16, Dargahi disclosed to Plaintiffs
that he was still "$150,000 +/- short to finish our contract." This despite the fact that, with the
$43,800 payment made the previous Friday, Dargahi was already overfunded by $73,750.
Dargahi also declared that "no more [construction] activities could be performed unless we are
financially comfortable." At or around this same time, Dargahi abandoned the Project, leaving it
exposed to the elements, vandalism, and theft. Since that time, Dargahi has ceased all
construction work on the Project despite repeated requests from Plaintiffs to resume work.
15. In the weeks following Dargahi's refusal to complete his work on the Project in
accordance with the Contract, Plaintiffs learned that according to Dargahi's own estimate, it
repeated demands, Dargahi has refused to complete the outstanding work on the Project in
16. Plaintiffs also discovered that Dargahi owed more than $120,000 to at least
seventeen subcontractors hired by Dargahi to work on the Project, notwithstanding the fact that
Dargahi repeatedly represented to Plaintiffs prior to obtaining the last draw on November 13,
2015 that all subcontractors had been paid. With respect to a subcontractor responsible for
constructing a well for the Project, Dargahi had also obtained Plaintiffs' approval of a $20,000
change order after Dargahi falsely represented that the subcontractor had already been paid for
such work. Numerous subcontractors have filed liens on the Project or provided notice of intent
to file liens. Despite Plaintiffs' repeated demands, Dargahi has refused to pay the outstanding
debts owed to the subcontractors, and Dargahi has not discharged any subcontractors' liens.
17. Further, after Dargahi's cessation of work, Plaintiffs discovered that, all along,
Dargahi and his brother, Kamran, had been systematically diverting substantial sums of money
from Plaintiffs' progress payments to other expenses unrelated to the Project. Specifically,
according to Defendants' own bank statements and upon information and belief, the Dargahis
used Plaintiffs' money to pay for the following: (i) other construction projects (as confirmed by
affidavits obtained from Defendants' subcontractors, who worked on multiple projects for
Defendants, but who were paid only out of Plaintiffs' funds); (ii) advertising; (iii) web design;
(iv) plumbing work done on Pajeman Dargahi's personal house; (v) purchasing a car;
(vi) purchasing real estate; (vii) attorney's fees in connection with multiple disputes; and (viii)
personal expenses, including out-of-state trips, charged to an American Express credit card. As
Defendants' bank statements indicate, such payments were made directly from the bank account
18. Remarkably, the Dargahis do not dispute that they systematically diverted and
spent such funds as if they had been deposited in the Dargahis' own personal bank account.
Instead, now that their misappropriation of funds has been uncovered, the Dargahis appear to
claim that they were entitled to divert Plaintiffs' payments based on the contention that they
expected to make a profit on the Project, and they therefore should have been able to deduct their
"expected" profits from Plaintiffs' progress payments before the Project was actually completed.
Of course, this baffling contention, which was only revealed after Plaintiffs' uncovered the
diversions, is contrary to Chapter 162 of the Texas Property Code and ignores the plain language
of the Contract. Rather than promising Dargahi any type of profit, the Contract expressly
extracted from Plaintiffs before the Dargahis announced in November 2015 that they were
halting all work on the Project unless and until Plaintiffs personally paid them well in excess of
what the construction lender could release and well in excess of what Mr. and Mrs. Handa were
19. Further, Defendants did not perform the construction work they actually
completed (before abandoning the project) in a good and workmanlike manner. The resulting
construction defects caused physical property damage to the Handas' house in the form of,
among other things, cracking and other deterioration caused by moisture penetration. This
moisture damage resulted from Defendants' failure to perform work in conformity with
applicable industry standards and applicable standards of care. Specifically, in addition to other
defects and physical property damage described in the inspection report attached hereto as
Defendants' failures:
a. Foundation waterproofing and basement leaks: Multiple water leaks are present
in the basement and the cabana constructed by Defendants. Based on the severity
of the leaks, and upon information and belief, damage has been done to the
concrete foundation of the house, including but not limited to rusting and/or
b. Water heaters: The plans and specifications called for installation of recirculation
pumps on all water heaters. In addition to other issues described in the Inspection
Report, the supply lines installed by Defendants are undersized and do not allow
c. Fire Sprinklers: The supply line to the fire system is undersized and not to code,
and sprinklers were not tested properly after installation of the system.
d. Electrical: Outdoor and indoor circuits are defective, causing parts of the
e. Flat roofs: The flat roofs were built incorrectly, exposing the exterior of the
termination, the courtyard waterfall, fire sprinklers, drywall, attic access, safety
glass, countertops, exterior balconies, the kitchen range and downdraft system,
Report.
20. The Handas gave notice to Defendants on or around February 10, 2016, and
February 12, 2016, specifying in reasonable detail the construction deficiencies. Defendants did
not request to inspect the property, nor did they take any action to correct the non-conforming
VI.
CAUSES OF ACTION
A. Breach of Fiduciary Duty Under Trust Fund Act (Against All Defendants)
contract for the improvement of specific real property in Texas, and are therefore "trust funds"
pursuant to Section 162.001, Tex. Prop. Code. Defendants Pajeman and Kamran Dargahi had
control and direction over Plaintiffs' progress payments for the Project. Plaintiffs are
beneficiaries of such funds pursuant to Section 162.003, and Defendants are trustees of such
progress payments without first fully paying all current or past due obligations Defendants
incurred. Defendants did so intentionally, knowingly, and with intent to defraud. Defendants'
24. Defendants' breaches of fiduciary duties owed to Plaintiffs under Chapter 162
26. Defendants Pajeman and Kamran Dargahi represented to Plaintiffs that their
progress payments and change order payments would be used to pay for the construction of the
Project. However, Defendants never intended to use Plaintiffs' payments solely for the Project,
use. Defendants' false representations and nondisclosures induced Plaintiffs to enter the
Contract and to make progress payments and change order payments to Defendants under the
Contract.
27. Defendants Pajeman and Kamran Dargahi also represented to Plaintiffs that they
had fully paid the subcontractors hired to work on the Project knowing that seventeen
subcontractors had not, in fact, been paid-to the tune of over $120,000. Defendants' false
representations induced Plaintiffs to make progress payments and change order payments to
28. Because Defendants' fraud is in connection with "a transaction involving real
estate," Defendants are also liable for statutory fraud under Section 27.01, Tex. Bus. & Comm.
Code.
31. Defendants have wrongfully profited from their breaches of fiduciary duty
described above. Plaintiffs seek the imposition of a constructive trust upon all assets, revenues,
33. Defendants unjustly received (by taking for themselves) the portion of Plaintiffs'
those benefits by taking undue advantage of Plaintiffs. Defendants are required to make
that belongs to Plaintiffs in equity and good conscience. Plaintiffs are entitled to recover such
money.
37. As described above, Defendants unlawfully appropriated Mr. and Mrs. Handa's
money by deceiving the Handas into paying for services that were never performed by
Defendants. These actions constituted theft under the Texas Theft and Liability Act, Tex. Civ.
Prac. & Rem. Code § 134.002. Accordingly, Defendants are liable for the damages resulting
from this theft. Tex. Civ. Prac. & Rem. Code§ 134.003.
performed the work and services. Defendants were under a duty to perform at a level of
professional skill and care consistent with industry practice. Defendants failed to do so.
Defendants' negligent conduct includes, without limitation, failing to perform the construction
services in a good and workmanlike manner, failing to supervise and/or direct work using that
skill and attention used by contractors exercising ordinary care, failing to properly inspect work
before covering with subsequent work, and failing to construct the project in accordance with
All such negligence, and the resulting construction defects, have caused damage to Plaintiffs and
have caused physical property damage in and to Plaintiffs' house in the form of, among other
things, cracking and other deterioration caused by moisture penetration. Damages include but
are not limited to repair costs, investigative costs and expenses, and damage to the house.
41. Y ekk and Plaintiffs are parties to the Contract, and Pejman Dargahi is
individually liable for any breaches of Y ekk' s obligations under the Contract, as described above
42. Under the Contract, Yekk and Pejman Dargahi are obligated to "provide all labor
and materials for construction" of the Project "according to [the] Contract and the Plans," and
"pay all costs related to the Work." Exhibit A, Sections III, XIV. Y ekk and Pejman Dargahi
have breached these contractual obligations, or to the extent such breaches have not yet occurred,
Yekk and Pejman Dargahi have anticipatorily breached their obligations by stating that they do
payments to subcontractors or vendors supplying material for" the Project. Exhibit A, Section
XV. Y ekk and Pejman Dargahi have breached their contractual obligation by failing to pay at
44. Y ekk and Pejman Dargahi are further obligated to "deliver title to all the
materials, appliances and equipment used in the Work free of all liens, claims, security interests
or encumbrances." Exhibit A, Section XV. Yekk and Pejman Dargahi have breached their
45. Yekk and Pejman Dargahi have also breached their contracts and warranties, and
have not performed to the representations made. This includes, without limitation, failing to
perform the work in a good workmanlike manner as represented and agreed, failing to perform
work and services pursuant to the plans and contract documents, breaching the agreement that all
work, materials, and equipment would comply with applicable warranties, and failing to correct
46. Because ofYekk and Pejman Dargahi's breaches of the Contract and warranties,
48. Defendants have breached their contracts and warranties, and have not performed
to the representations made. This includes, without limitation, failing to perform the work in a
good workmanlike manner as represented and agreed, failing to perform work and services
pursuant to the plans and contract documents, breaching the agreement that all work, materials,
or defective work.
Plaintiffs relied on to their detriment. Defendants represented that their services had
characteristics and benefits which they do not have, and they represented that their services were
of a particular standard or quality when they were of another. In connection with the fraud claim
described above, Defendants also failed to disclose information concerning services which was
known at the time of the transaction, and which was intended to induce Plaintiffs into entering
50. Furthermore, Defendants also took advantage of Plaintiffs' lack of knowledge and
experience with home construction to a grossly unfair degree; these actions are unconscionable
and are thus actionable under the DTPA. Tex. Bus. & Com. Code§ 17.50(a)(3).
51. Plaintiffs are consumers within the meaning of Tex. Bus. & Com. Code § 17.45 in
52. Defendants have acted knowingly and intentionally in all of these actions that
constitute violations of the DTPA. Plaintiffs are thus entitled to recover treble damages pursuant
53. Further, Plaintiffs bring this claim pursuant to the authorization made in Tex. Bus.
& Com. Code Ann. § 17.505(b) with regards to giving 60 days' notice.
VII.
EXEMPLARY DAMAGES
wrongful conduct pursuant to Chapter 41, Tex. Civ. Prac. & Rem. Code, or as otherwise allowed
bylaw.
VIII.
ATTORNEY'S FEES
57. Pursuant to Tex. Civ. Prac. & Rem. Code§ 38.001 and 134.005(b), and Tex. Bus
& Comm. Code § 27.01(e), Tex. Bus. & Com. Code § 17.50, or as otherwise allowed by law,
Plaintiffs are entitled to recover reasonable and necessary attorney's fees and costs of court
IX.
CONDITIONS PRECEDENT
58. All conditions precedent have been performed or have occurred, including all
X.
REQUEST FOR DISCLOSURE
59. Plaintiffs' Request for Disclosure was set out in Plaintiffs' Original Petition and
Request for Disclosure, and that Request for Disclosure is not waived and is carried forward
herein.
PRAYER
WHEREFORE, premises considered, Plaintiffs respectfully request that the Court enter
2. Treble actual damages under Tex. Bus. & Com. Code§ 17.50;
Civ. Prac. & Rem. Code§ 38.001 and 134.005(b), Tex. Bus. & Com. Code§ 17.50, and
5. additional damages pursuant to Tex. Civ. Prac. & Rem. Code§ 134.005(a)(1); and
6. Such other and further relief, at law or in equity, to which Plaintiffs may show
Respectfully submitted,
The undersigned certifies that a true and correct copy of the foregoing has been served by
electronically via the e-filing system on counsel of record as listed below on this the 14th day of
February, 2017:
James Rudnicki
JRudnicki@BRS Texas.com
Russell Clinage
RClinage@BRSTexas.com
Tyler Hood
THood@BRSTexas.com
Bush Rudnicki Shelton, P.C.
200 N. Mesquite St., Suite 200
Arlington, Texas 76011
Telephone: (817) 274-5992
Facsimile: (817) 261-1671
1: PARTIES
LAKF·\\\\ ClSHVv!HCJi',JES :\\DRr.\OV\!lO~(Bti.LDER)IiV!THOFf'l(EAl l25SUIOO\JtR
DRIVE, At ST!\;, TX · 71':7315 agrees to construct the Improvements described below for
Ohiraj and Ritu Handa (Owner), residing at 1704 Randolph Ridge, Austin, TX •
787-t6 on the Property described below.
U: PROPI!:RTY
Lot l, Block A., Seven Oaks Section 4, also k.rwwn as 228 Sanostee Cove, Travis
County, TX. 78733 or otherwise described on attached exhibit, together with all
Improvements to be constructed Q.h the Property.
HI: l:\IPROVEMENTS
L-\KEV. .\\ Cl STOM HOMES A~D RENOVATION shall provide a!! tabor and materials for
construction of [X] a single family residence according to this Contract and the P!ans.,
prepared by Dominic Couturier of ItaUa Fim.~ Homes, Inc., and specifications <ts,
prepared by L.-\Kf.WJt. v CtSTOM H01'-IES A.'ID RE;'JOVATlON and initiated by both parties
(co!lc-ctive!y called the "Plans"). The labor and materials required to construct the
fmprovements may be referred to a,s the "Work''. Tl.; be dear, Plans include all interior,
exterior and landscape drawings as signed off between Owner & Builder.
~XHIBITA I
162
163
Xl: AlLOW.\."iCES
Ow·ner shall be entitled to ulhJ'vvances as fled in U the Plans [X] the Allowance
Schedule attached to this conrrac.t as an exhibit. -\l.J savings anributubk to allowances,
which are not spent, will be credited to 0\vner. and 0\vner \.vill be responsible for all
costs ex.cceding the Allowances lf Owner selects allowance items .in ex. cess of speci.tied
allowances, L\KEW.c\¥ 0 STOi'VI HOMES A.\D RE:\OV \liON may submit an ·'Allowance
Overage" to Owner in the tbrm of a Change Order, Upon approval by Owner. the
Allowance Overage wiU be payable with the next Payments.
XU: INSURANCE
Before beginning the Work, Lu;:r '.'> n CtST0"-1 HO\!ES -\'iD RE'.OV HIO"'i shaH obtain:
Builders risk insurance covermg all msurable risks in an amount equal to or greater
than the Contract Price; (b) Comprehensive public and automobile liability insurance.
The cost all required insunmce is included in the Contract Price. Proof of insurance
would be stibmitted to Owner pnor to start of construction. Builder will also fttmish
Owner with a financial statement of LAKEW H Ct STOi\1 HOMES .\\iD RE:-iOV .\TIO'i
prior to signing this contract
164
165
XVHhO\V:"lER'S AGREEi'\IIK'iTS
Owm;r agrees to: (al Make all to LAKE\VA) HOMES A'iD
RE"'OV.HlO" required by this agreement; (b) Perform all other of Owner
required by this agreement: and (c) Protect the title and possession
pay all taxes and assessments prior to delinquency.
166
XXIH:MECHANIC'S UE~
Owner grants to LAKEW.W CtSTO<vl Ht..fHES .-\.\l> RE.\0'\o AriON a lnechanic's lien to
secure performance of the obligations of Owner, and agrees, prior to beginning
construction, to execute a separate mechanic's !len contract acceptable t.o L\KE\VAY
CtSTOM HO,VIlJ:SA;'iO RENO'L\TW:"l and the Interim L~nder, if any. ffOwner is obtaining
an interim cot1struction loan, LAKHV-H. CtSTOiH HoMES A.'W RE...,OVATIO,.. shaH assign
to the Construction Lc:nder a portion of Contractor's mechanic's Hen equal to the
amount of the inn~rim construction loan obtained Owner and tO subordinate any
ren1aining an1.ount of L\KEW \ 'r C'r~T0\<1 HoMES -t'liV RE:'iOV\T!(Pi 's Hen to the interim
construction loan.
XXVI; N 0 ASSIGNMENT
Neither party has the right to asstgn this without the writt<.m con!'>eflf of the
other unless this .agreement is transferred per sectkm XV,
.... 7'
167
Special Provision: builder agrees that the square rootage called on dnnvlngs ar.:
approximate the builder has his own calculation and is not on the square
tbotnge table.
X."'LX: CANCEI.L\TION
After I;! payment of$43.800 is made, if there is any issue with th~t permitting process
that pn~\ent-, the builder from obt<Lining tbe permit provided all the necessary
foundation. framing destgn ts completed by Builder (& re.ceipts shown to Owner) and aU
(Water meter and tab, electrical, HOA permit, and HOA deposit are paid by the
Builder), then O~vner and Builder can mutually decide to cancel the contract with no
additional obligation to each otheL a $3500 HOA deposit payment is refunded to
by the Builder or the HOA, \.vhoever is holding the S3500 deposit.
XXXI:ATTOR;..JEY FEES
If L-\KE\-\.-\V CtsTOM HO\lES .\'iD RE\;OV.\TI0"-1 or Owner initiates any arbi.trution or
legal proceedmg in accordance \Vith the Resi.dential Construction Liability Act, brought
under or with telatJo!1 to this contract, each party !:le responsible fbr their O\ldl
168
--~-----
Ritu Handa
---------------------(';
!,:i
169
KNO\.V YOUR CONTRACTOR. Bet<xe you enter wto your agreement the
construction of improvements ~o your real property, make sure that you have investigatt::d
your contractor. Obtain and from other people '<vho have used the
contractor for the type and of construction proJect on your property.
GET IT WRITING. 'V!ake sure that you a ·written with your contractor
that includes: (I) a description ofthe work the commctorh to perf\.;nn~ (2) required
or estimated time for cornpletion the work; (3) rhe cost ofthe work or how the cost
will be determined; and (~l the procedure ancl method of payment including
tbr statutory Retainage and conditions final payment your time in reviewing
documents. if you borrow money from a lender to for the improvements, you are
entith;d to have loan closing documents rurnished to you for review at !east one business
day the closing. Do not waive this requirement a bonafide emergency or
another good cause and make sure you understand the docurnents before you
them_ if you tail to with the terms of the documents, you c.ouid lose your
property. You are .::ntitled to have your own attorney review any d:octrments. If you have
question about the meaning of a document consult an attorney,
GET A UST Of SUBCONTRACTORS AND SUPPLIERS. Bdbre construction
commences, your contractor is required to you \vith <tiist of the subcontractors
and sl!ppl iers the ~~ontractor intends to use on your project Your contractor is required to
supply updated mfom1ation on any subcontractors and suppliers added after the list
provided.
MONITOR fHE 'vVORK Lenders and governml!ntal authorities may lnspect the >vork m
progress from time to time ft)r their o~cvn purposes. Thes(~ inspections life not intended a:>
·-------/
170
\:10~ !fOR P.i\ Y\YIENT. Jf you usc a lender, your lender is required to provide you >vith
a periodic stat<::ment showing the money disbursed by the lender from the proceeds of
your loan. Your contractor is also required to furnish you \vith a statement at least once
each month money disbursed to subcontmctots and suppliers for this project Review
these statements and make sure that the money is being properly disbursed.
171
OBTAIN A UEN RELEASE AND A B!LlS-PAlD AFFf.D;. \IT. \Vhcn you receive c~
notice of claim, do not ndease withheld funds 'vvithout obtaining a signed and not;;rrizcd
release lien and claim from the claimant. You C<Ul also reduce the risk of a
claim tiled by a subcontractor or supplh::r by requiring as a condition of each paymem
rnade by you or your lender that your contractor furnish you with an affidavit stating that
all bHls have been paid. Under Texas , on nnal completion of the work and befi.xe
t1na1 payment, the contractor is required to furnish you with an affidavit stating that all
bills have been paid. ff contractor discloses any unpaid bill in the nffidavit. you
should withhold payment in the amount of the unpaid bill umil you a ~;vaiver of
lien or from that subcontractor or supplier.
(Month),
OWNERS:
WIT;\lESS:
----
172
SLBCONTR:\CTORS
PHONE TRADE
SUPPLIERS
(Month),
Contr~ctor:
173
REFLRf\( E'i
(479)
t5J2) -:UHQ27
(7!-i}
{5 l:! j 284-6 7 ~ 8
i;
174
.--\ Sum of $100.00 per would be the amount of penalty H the substantial
completion (lnchu:Hilg full landscaping) is not achieved within 460 day5 of start of
construction payabh.~ to the Owners by Lakeway Custom Homes.
A. sum of S 100.00 per day woukl be the amount of bonus if the substantial
completion (including full landscaping) is achieved before the 460 days of start of
cttnstruction payable by the Owner to Lakeway Custom Homes.
•('';,,,,..,.#
175
Framing
The structural framing wm be designed by a licensed professional engineer,
and it wm include the following minimums to meet Lakeway Custom Homes &
Renovation standards:
176
Roofing
8. Concrete Tile roofto be selected from the standan::i manufacturer colors only.
9. Metal roof: 24 gauge standard color Kynar with 1" standing seam.
10. Metal covered gutters are included all around the house
Insulation
.. ······)
~ ~""""~
177
6. Sound redu'Gtion insulation will be installed on Bee Cave Street Side. Double
sheetrock will be installed in the bedroom, family room, prep kitchen on
Cave side.
Drywall
L 5/8" Fire restraint drywall to all ceilings and garage/building common walls.
S. Tape, float and texture with heavy trowel on all walls at upper noor, rnain
t1oor and annex only, except closets -'md garages. All other area
to receive standard medium orange peel texture.
Finishes
Exterior:
Interior:
178
d. All tHe is based on $4/sf for materiaL including taxes and delivery to
jobsite
1. Interior doors shall be 1·3/4'' fir 6 panel recessed paint grade solid tore
doors.
Windovvs
3. AU windows on Bee Caves side of the road, prep & main Kitchen Wmdows
to be special "Sound reduction" windows
Exterior Door
.
';.
.
179
L All cabinets sb.1ll be custom made with wood material using knotty alder in
the living areas and paint grade material in all closets.
2. All upper cabinets shall be 42"
3. All doors to have concealed European hinges
4. Allow for pull-out trash cabinet in kitchens (near sink} and pull-out
warmer drawer (near island).
Mirrors
1. All Framed Mirrors to be selected by the Owner with budget not to exceed $1800.
Non Framed mirrors are included outside of this $1800 budget.
G He
l. All Granite to be 3cm In ail kitchen areas, bathroom areas and aH niches wi.th
3cm, level 2, glued strip/laminate edge and 2cm in other a!'eas with 3cm glued
stri pj!arni nate edge
Phunbing
'L Plumbing is inclthied in all unfinished area and its limited to rough plumbtng
and capped.
5. Re-circulating pump
180
Performance:
Electrical
181
Exterior Concrete
Fireplaces:
1. All Fireplaces to be 42" metal fireplaces..
for the following items at owner discretions: Note: The Owner has elected to
exclude Allowances from contract, but would deliver all to the builder at his
cost The builder Is only responsible for instalLation of the aHowance Items
excluding all the low voltage wiring am! equipment.
a. Electrical Fixture
b. Plumbing fixtures
c. Appliances
d. f'ront Door
e. B;:~th Tubs
182
Please Note:
Change the pool deck and upper courtyard to stamped concrete in lieu
of for th:e sum of $0 (Zero DoHars) to be a-dded to the contract
sum.
An 19" berm wm be built along Bee Caves Road until the end of the
driveway.
183
184
185
187
Feb 10,2016
Please Note: While I carefully inspected the property over the course of several days and
discussed the project with multiple subcontractors involved, my findings cannot be
considered a comprehensive list of all defects or issues. I am merely providing all of the
information that I was able to discover with limited time, at a point in the project where
defects can be hard to easily detect and identifY I am focusing here on deficiencies and
problems that I see as significant based on my over 20 years in Residential construction
working with several builders, in several cities with multiple home inspectors.
Foundation Waterproofing:
It is quite clear that several areas of the foundation, basement and retaining walls have
failed several times, and continue to leak. I have applied a water test to the inside comer
of intersection of the foundation wall and wood framed wall adjacent to the fountain
twice and it has failed far below the porch pan and waterproofing installed by Precision
roofing. (See Image 1,2,3 below). It is leaking in several spots starting 12" below the
finished tile and stucco and at points further down the wall. There are numerous holes in
Exhibit B
188
The same material was used on the front of the house on the foundation from north east
of the front entry to retaining wall for the lower basement. This material is not rated for
this application. It is not meant for indefinite exposure to UV light. It is not acceptable
as a finished product, and it was not installed correctly. See Image 4,5 and 6. In image 7
it is clear that material is not integrated into the rest of the waterproofing system on the
house behind the stucco, and also blocks the weep holes integrated in the stucco design to
let water drain away from the structure, as prescribed by code.
This material was also used to waterproof the courtyard door landing areas, and the
courtyard drainage area. The material was not integrated with stucco or roof flashings,
door pans, or door flashing, and cannot be finished in an appealing and secure manner,
and is already failing to bond to the substrate. See Image 8
189
190
191
192
193
194
Image 6
195
Image 8:
Bond failure. Also Not applied behind stucco waterproofing system ..
196
AQUAFLASH or EQUIVAlENT
10
197
sheathing paper
protects wall from
moisture ami
extends down to
overlap bottom
flashing
brick lug
or moist projects
slightly beyond foundation edge
11
198
As this is also a finish dependant detail, finished flooring grades should be coordinated
with the stucco crew so the exact location of the weep screed can established so that
clearances are consistent and professional to industry standards. See Images 11 and 12.
12
199
Image 10
13
200
14
201
Flat RoofAreas:
The flat roof areas were built incorrectly leaving exposed Radiant Barrier OSB between
the metal roof edge and stucco. OSB is not rated for this application. The material is
already delaminating as it absorbs ambient moisture. This will likely cause the stucco to
crack, and one crack, the only stucco crack I observed on the entire project, has formed.
These areas currently do not meet industry standards and are also aesthetically
unacceptable.
The metal roofing needs to be removed, the roof framing and plywood cut back to the
correct size, and the metal roofs and flashing installed in a manner that is integrated with
stucco and to industry standards . See Images 13 and 14
15
202
Image 14
203
Image 20 is the stonework cladding the staircase. There is no visible footing. Stonework
integrated into the building should have a brick ledge a minimum of 4" above grade to
allow drainage through weep holes and prevent termite intrusion.
Image 21 is another example of stone cladding that is integrated into the building
envelope that extends below finished grade.
17
204
18
205
Image 19
19
206
Image 21
20
207
Image 21
Plumbing:
Plumbing is incomplete currently. House was designed and "roughed in" for
recirculating water heaters. Current units do not have circulating pumps and with the
long distances from the fixtures to the installed location of the heaters, long lag times for
hot water can be expected. This is unacceptable on this level of home. These heaters
should have recirculation pumps.
Multiple fixtures are not installed.
Hose bibs are not secured to framing, and very susceptible failing and necessitating a
costly repair. The supply pipe is designed to support the hose bib. Hose bibs should
always be properly secured.( Image 22 and 23)
'Floor Drains were set above finished floor height and are not functional. The foundation
needs to be jack hammered and the drains set to the correct height. (Image 24 and 25)
Propane Tankless Water Heater installed with inadequate clearance to AC Condenser.
Image 26
Improper drain connection at dishwasher-dishwasher will not slide into finished location.
21
208
Image 22
Image 23
Image 24
22
209
23
210
Image 26
24
211
Courtyard drainage pipes may be undersized for the square footage of exposure they are
relied upon to drain. Drains are not terminated properly in the courtyard and incomplete.
Drains are incorrectly terminated on the exterior wall and may allow water to get behind
the stucco and cause significant water damage. Drains are also severely clogged with
construction debris and not designed or rated to used as drains. (Image 27)
Several drain pipes are incomplete, damaged, or incorrectly located. (Image 28)
See comments on Image 29 and 30.
Image 27
Image 28
25
212
26
213
Several patches need to be complete after waterproofing and repairs are made.
Overall stucco job is excellents except where it appears site conditions caused issues with
weep screed height. Expansion joint placement is to code, finish looks consistent, no
cracks, properly caulked no additional defects.
All flat stucco surfaces should be capped with a proper metal cap to prevent water
damage and subsequent stucco failure Should be installed by the roofer. See Image 31.
27
214
Courtyard Waterfall:
This is an unacceptable situation. The stucco is not designed as a substrate for a water
feature. Proper water proofing, isolating the stucco system and allowing it to drain would
be needed. Electrical GFCI plug cannot be located here. Water supply is improperly
located. Light location conflicts
See Image 32
Image 32
28
215
Incomplete. Need to be completed by a licensed installer. See image 33. However there
are multiple areas incomplete
29
216
Drywall:
Drywall texture was not adequately sanded, "punched" and corrected prior to paint.
Texture is inconsistent, and unprofessional looking in many areas. The overall texture is
a hand-troweled look, and as such there should not be large areas of spray texture and
inconsistencies in finish from one surface to the next. Not up to industry standards or the
quality level of this home. See Image 34 and 35
All shower ceilings incomplete. Steam showers and saunas should have a Hardibacker
substrate, Not drywall. See Image 36
30
217
Image 35
31
218
All attic access doors must have an insulated and weatherstripped access door that can be
secured. None are in place. Additionally many home inspectors require attic stairs for
access doors greater than 10' from finished floor. The ceilings here are 12'. See image
37 and 38
32
219
Code requires safety glass in bathroom, stair chambers, walkways and near egress doors.
Multiple locations did not have safety glass stamps. These units will need to be replaced
if they are not safety glass.
33
220
IRC does not allow any electrical outlets including switches near baths and showers. We
have several clear violations of this code. Image 40 as an example
Image 41
34
221
Image 42
35
222
Image 43(B)
36
223
The kitchen range and downdraft system purchased by the owner were not adequately
planned for. The system expressly requires a 10" pipe to be correctly located to service
the downdraft. The roughed in pipes are only 6" and in the wrong location. Electrical
and gas pipe are in the wrong location and prevent the install of the downdraft unit. The
granite counter top was cut incorrectly to accommodate this system- the rough opening is
too large. The countertop will need to be replaced, the gas and electrical re-routed, and
the cabinets modified. The cabinet next to the stove will need to be modified and
replaced and the stucco will have to be repaired after a new, correctly located 10" exhaust
pipe and supply wire are re-routed.
Image 44
37
224
225
39
226
Interior Staircases
IRC and local code enforcement agencies strictly enforce code on stairways. Risers may
not exceed 7 %". Maximum variance on riser height is 3/8" to prevent tripping hazards.
On this project they vary over%" creating a safety hazard. See image 47 and 48
Also stairs are incomplete and not properly finished. See image 49
\
40
227
41
228
42
229
43
230
Foundation should be underpinned or "mortar washed" with cement for a smooth finish
per plans, and per code. All voids and "honeycombs" should be filled. Exposed
foundation should be uniform, finished, and attractive. See images 50 51 and previous
1mages
Image 50
Image 51
44
231
The vast majority of the exterior doors were set too low, or with the incorrect thresholds.
Thresholds are below finished tile by varying dimensions and are not consistent,
aesthetically appealing, or correctly serving their function. See Images 52, 53 and 54.
Stucco and stone clad houses should be largely maintenance free. I do not agree with
installing wood trim around doors in vulnerable locations as it will quickly rot. See
Image 55.
45
232
Image 53
46
233
I
Image 55
47
234
It appears that adequate steps to protect the bathtubs was not taken. Tubs are dirty,
scratched and full of debris from several trades. See Image 56. Tub and motor not
adequately supported from below. Ground wires not attached to motor pump.
48
235
Outdoor Kitchens
Framing was not installed correctly to allow for adequate clearance around combustible
and was incorrectly sized on both kitchen. Frame and rock veneer at lower kitchen was
installed%" (See image 57) out oflevel front to back and 1 3/8" out oflevel over 10' .
Trash can installed below finished tile grade.
Outdoor kitchens, rough-framed only and incomplete.
49
236
Granite Countertops
Countertops are not complete throughout the house. Many tops are missing and were
never installed, (images 58-60) approximately 90% of the tops were never set and glued
in place (Images 61-62). Tops were also not cut square to create a straight line across the
length of the countertop and need to be re-worked (Image 62) Sinks are not sealed with
silicone, splashes are not set or sealed. Multiple chips, cracks and damaged areas.
Fabricator attempted, poorly, to mask defects with black epoxy in an unacceptable
manner-( Images 63-65)
Outdoor Kitchens Incomplete (Image 66)
50
237
Image 60
Image 61 Image 62
51
238
Image 64
52
239
53
240
54
241
55
242
Stairwells over 4 risers are to have a continuous grab bar per IRC code 311.7. 71-3
See Image 67 and 68
Image 67
56
243
57
244
Per the plans, there is to be a gate installed at the breezeway between the lower garage
and the pool bath area. This also a code requirement to isolate the pool area from public
access if car gates are left open for entertaining. See Image 69
Image 69
58
245
The three flat roofs on the front elevation are clearly visible from the upstairs windows.
Roofs should be clean and clear of debris, stucco and paint, and installed in a clean
professional manner. One of the roofs also has multiple exposed nail penetrations.
See Image 70
Image 70
59
246
As discussed above in Image 23, the motor courtyard has improper drainage and the
design is causing excessive standing water. Without a path for drainage the water is
backing up across the courtyard area and is in danger of backing up into the garage. It is
also dangerously close to electrical fixtures. With improper drainage, the landscaping
cannot be completed in a satisfactory way. Notice the high water mark near the stone.
This rain event produced about 2 inches on dry soil conditions. More significant rain
events would raise serious concerns.
Image 71
Image 72
60
247
Image 72 Image 73
Wine Room Stairwell, Bar Area and Basement Kitchen: Water intrusion after heavy
rains noted by homeowner. April 2016 See Attached Correspondence with
waterproofing manufacturer. Pages 65-66
61
248
Image 75
62
249
Exterior Doors not installed correctly. Hardware incorrectly installed. Doors have
excessive movement in wind, setting off alarm sensors. Air and water intrusion issues.
14 doors need re-installation, tment or · See also 52-55
Image 77
63
250
64
251
65
252
66
253
67
254
68
255
69
256
70
257
RENOVATION ("Defendants") and file this, their Plea in Abatement and Motion to Compel
(the "Contract") with Plaintiffs Dhiraj and Ritu Handa ("the Handas") for the construction of a
residence in Travis County, Texas. Pursuant to the terms of the Contract, Defendants are entitled
to abate this matter for binding arbitration. Paragraph XXIX of the Contract provides as follows:
108
The arbitration provision clearly provides that if a disputes arises between the parties, the
parties must attempt to resolve the dispute informally. If the dispute cannot be settled
informally, mediation through an agreed upon mediator must be attempted, and if that is
unsuccessful, the dispute must be submitted to binding arbitration. To date, the parties have
attempted to resolve the dispute both informally and through mediation, and no resolution of the
dispute has been reached. As a result, pursuant to the terms of the Contract, the parties have
agreed to resolve the dispute via binding arbitration with the American Arbitration Association
created in favor of arbitration. Henry v. Gonzalez, 18 S.W.3d 684, 688 (Tex. App.- San Antonio
2000, pet. dism'd by agmt.). The burden then shifts to the party opposing arbitration to present
evidence which invalidates the agreement to arbitrate or otherwise establishes that arbitration is
an improper forum. !d. Texas law favors referring matters to arbitration, a presumption exists
favoring agreements to arbitrate, and courts are duty bound to resolve any doubts about an
arbitration agreement's scope in favor of arbitration. In re FirstMerit Bank NA., 52 S.W.3d 749
(Tex. 2001); Cantella & Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996); Green Tree Fin.
109
establish a defense to arbitration. In re Oakwood Mobile Homes, Inc., 987 S.W.2d at 573.
Based on the clear arbitration provision at issue in this case, and the presumption in favor of
arbitrability, Defendants move the Court for an order compelling all claims and causes of action
II. PRAYER
A. that the Court abate and/or dismiss this case in its entirety and enter an
order compelling the Plaintiffs to binding arbitration;
B. that Defendants be awarded such other relief to which they may be justly
entitled in law or in equity.
110
Jarne& udnicki , f /
State BarNo. 2400~'I48
Russell Clinage
State Bar No. 00790473
Stephanie H. Lugo
State Bar No. 00793927
Tyler Hood
State Bar No. 24097846
ATTORNEYSFORDEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was delivered to
all counsel of record in accordance with Rule 21 a of the Texas Rules of Civil Procedure, via first
class mail, fax or by electronic delivery for those counsel available through the e-filing system,
on this the 8th day ofDecember, 2016.
David A. King
dkingiZt~gdhm.com
GRAVES, DOUGHERTY, HEARON & MOODY, P.C.
401 Congress A venue, Suite 2200
Austin, Texas 78701
ATTORNEY FOR PLAINTIFFS
Stephlrlie H. Lu~o ( /
111
BEFORE ME, the undersigned notary public, on this day personally appeared Kamran
Dargabi, who, first being duly sworn according to law, on his oath deposed and said:
3. It is the regular practice ofYekk Construction Services, LLC to make this type of
record at or near the time of each act, event, condition, opinion, or diagnosis that
was recorded.
4. The records were made by, or trom information transmitted by, persons with
knowledge of the matters set forth in the record.
5. The records were kept in the course of regularly conducted business activity.
112
113
H: PROPERTY
Lot1, Block A, Seven Oaks Section 4, also known as 228 Sanostee Cove, Travis
County, TX. 78733 or othenvise described on attached exhibit, together with an
Improvements to be constructed on the Property.
IH: IMPROVEMENTS
LAKEWAY CUSTOM HOMES A1'\fD RENOVATION shall provide all labor and materials for
construction of [X] a single family residence according to this Contract and the Plans,
prepared by Dominic Couturier of ltalia Fine Homes, Inc., and specifications as,
prepared by LAKEWAY CUSTOM HOMES AND RENOVATiON and initiated by both parties
(collectively called the "Plans"). The labor and materials required to construct the
Improvements may be referred to as the "Work". To be clear, Plans include all interior,
exterior and landscape drawings as signed off between Owner & Builder.
.A
114
115
XI: ALLOWANCES
Owner shall be entitled to allowances as specified in [] the Plans [X] the Allowance
Schedule attached to this contract as an exhibit. All savings attributable to allowances,
which are not spent, will be credited to Owner, and Owner will be responsible for all
costs exceeding the Allowances. If Owner selects allowance items in excess of specified
allowances, LAKEWAY CUSTOM HOMES AND RENOVATION may submit an "Allowance
Overage" to 0\:vner in the form of a Change Order. Upon approval by Owner, the
Allowance Overage will be payable with the next Prot,rress Payments.
XII: INSUR<\NCE
Before beginning the Work, LAKEWAY CUSTOM HOMES AND RENOVATION shall obtain:
(a) Builders risk insurance covering all insurable risks in an amount equal to or greater
than the Contract Price; (b) Comprehensive public and automobile liability insurance.
The cost for all required insurance is included in the Contract Price. Proof of insurance
would be submitted to Owner prior to start of construction. Builder will also furnish the
O~'ller with a financial statement of LAKEWAY Cl!STOM HOMES AND RENOVATION
prior to signing this contract.
116
117
118
XXHI:MECHANIC'S LIEN
Owner grants to LAKEWAY CUSTOM HOMES AND RENOVATION a mechanic's lien to
secure performance of the obligations of Owner, and agrees, prior to beginning
construction, to execute a separate mechanic's lien contract acceptable to LAKEWAY
CUSTOM HOMES AND RENOVATION and the Interim Lender, if any. If Owner is obtaining
an interim construction loan, LAKEWA'I:,. CUSTOM HOMES AND RENOVATION shall assign
to the Interim Construction Lender a portion of Contractor's mechanic's lien equal to the
amount of the interim construction loan obtained by Owner and to subordinate any
remaining amount of LAKEWAY CUSTOM HOMES AJ'TD RENOVATION's lien to the interim
construction loan.
X.C'XVI; NO ASSIGNMENT
Neither party has the right to assign this agreement without the written consent of the
other unless this agreement is transferred per section XV.
119
Special Provision: builder agrees that the square footage called on drawings are
approximate and the builder has his own calculation and is not relying on the square
footage table.
XXX: CANCELLATION
After l sr payment of$43,800 is made, if there is any issue with the permitting process
that prevents the builder from obtaining the permit, provided all the necessary septic,
foundation, framing design is completed by Builder (& receipts shown to Owner) and all
fees (water meter and tab, electrical, HOA permit, and HOA deposit are paid by the
Builder), then Owner and Builder can mutually decide to cancel the contract with no
additional obligation to each other, except a $3500 HOA deposit payment is refunded to
Owner by the Builder or the HOA, whoever is holding the $3500 deposit
120
In the event of any cont1ict or inconsistency between the provisions of Section f through
XXXIV of this contract and the provisions of any of the attached exhibits and addenda,
the provisions of the attached exhibits and addenda shall govern and control.
um Dargahi
WAY CUSTOM HOME~""""-'+~fFI
121
Ki\TOW YOUR RIGHTS AND RESPONSIBILITIES UNDER THE LAW. You are
about to enter into a transaction to build a new home or remodel existing residential
property. Texas law requires your contractor to provide you with this brief overview of
some of your rights, responsibilities, and risks in this transaction.
Kl"JOW YOUR CONTRACTOR. Before you enter into your agreement for the
construction of improvements to your real property, make sure that you have investigated
your contractor. Obtain and verify references from other people who have used the
contractor for the type and size of construction project on your property.
GET fT fN \VRITfNG. Make sure that you have a written agreement with your contractor
that includes: (l) a description ofthe work the contractor is to perform; (2) the required
or estimated time for completion of the work; (3) the cost of the work or how the cost
will be determined; and (4) the procedure and method of payment, including provisions
for statutory Retainage and conditions for final payment. Take your time in reviewing
documents. If you borrow money from a lender to pay for the improvements, you are
entitled to have loan closing documents furnished to you for review at least one business
day before the closing. Do not waive this requirement unless a bonafide emergency or
another good cause exists, and make sure you understand the documents before you sign
them. If you fail to comply with the terms ofthe documents, you could lose your
property. You are entitled to have your own attorney review any documents. If you have
any question about the meaning of a document, consult an attorney.
GET A LIST OF SUBCONTR.A.CTORS AND SUPPLIERS. Before construction
commences, your contractor is required to provide you with a list of the subcontractors
and suppliers the contractor intends to use on your project. Your contractor is required to
supply updated infom1ation on any subcontractors and suppliers added after the list
provided.
MONITOR THE WORK Lenders and govemmental authorities may inspect the work in
progress from time to time for their o;;vn purposes. These inspections are not intended as
122
MONITOR PAYMENT. If you use a lender, your lender is required to provide you with
a periodic statement showing the money disbursed by the lender from the proceeds of
your loan. Your contractor is also required to furnish you with a statement at ieast once
each month of money disbursed to subcontractors and suppliers for this project. Review
these statements and make sure that the money is being properly disbursed.
During construction and for 30 days after final completion, termination, or abandonment
of the contract by the contractor, you should withhold or cause your lender to withhold 10
percent of the amount of payments made for the work performed by your contractor. This
is sometimes referred to as 'statutory Retainage.' If you fail to withhold the 10 percent
for at least 30 days after final completion, termination, or abandonment ofthe contract by
the contractor and if a valid claim is timely made by a claimant, you may be personally
liable and your property may be subject to a lien up to the amount that you failed to
withhold. If a claim is not paid within a certain time period, the claimant is required to
file a mechanic's lien affidavit in the real property records in the county where the
property is located. A mechanic's affidavit is not a lien on your property, but the filing of
the affidavit could result in a court imposing a lien on your property if the claimant is
successful in litigation to enforce the lien claim.
123
·'
~,~ {i-;.,
r Ll~l.i·l~c·lt'i..
Client: Ritu Handa
124
RENOVATION ("Defendants") and file this Supplemental Affidavit in Support of their Plea in
Abatement and Motion to Compel Arbitration and would show the Court as follows:
Defendants attach hereto and incorporate herein by reference Exhibit "B", the Affidavit of Pejman
Dargahi.
II. PRAYER
A. that the Court abate and/or dismiss this case in its entirety and enter an
order compelling the Plaintiffs to binding arbitration;
B. that Defendants be awarded such other relief to which they may be justly
entitled in law or in equity.
Jamelw. Rudnickfi>"\"/'/
State Bar No. 24006148
JRudni cki (iV,B RST exas. com
Russell E. Clinage
State Bar No. 00790473
RC! inage(CuB RS Texas.com
Stephanie H. Lugo
State Bar No. 00793927
ATTORNEYSFORDEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was delivered to
all counsel of record in accordance with Rule 21 a of the Texas Rules of Civil Procedure, via first
class mail, fax or by electronic delivery for those counsel available through the e-filing system,
on this the 23rd day of May, 2017.
David A. King
dking(t7)gdhm.corn
GRAVES, DOUGHERTY, HEARON & MOODY, P.C.
401 Congress A venue, Suite 2200
Austin, Texas 78701
ATTORNEY FOR PLAINTIFFS
261
BEFORE ME, the undersigned notary public, on this day personally appeared Pejman
Dargahi, who, first being duly sworn according to law, on his oath deposed and said:
2. A Certificate of Formation for Yekk Construction Services, LLC was filed with
the Texas Secretary of State on approximately July 16, 2001. On or about July
20, 2007, Yekk Construction Services, LLC filed an Assumed Name Certificate
with the Texas Secretary of State, indicating Lakeway Custom Homes &
Renovation as its assumed name. Yekk Construction Services, LLC, d/b/a
Lakeway Custom Homes & Renovation is still a valid existing business in the
state of Texas.
3. Attached to this affidavit are five (5) pages of records comprising the Texas
Secretary of State filings indicated above. These are original records or exact
duplicates of the original records.
4. It is the regular practice of Yekk Construction Services, LLC to make this type of
record at or near the time of each act, event, condition, opinion, or diagnosis that
was recorded.
Exhibit B
262
6. The records were kept in the course of regularly conducted business activity.
8. J signed the Contract on behalf of Yekk Construction Services, LLC. At the time
that the Contract was executed, I was a member and manager of Yekk
Construction Services, LLC, and I executed the Contract in my capacity as a
member of Yekk Construction Services, LLC.
SUBSCRIBED AND SWORN TO BEFORE ME on this the ;)j day of May 2017 by
Pejman Dargahi, member and manager of Yekk Construction Services, LLC, d/b/a Lakeway
Custom Homes and Renovation, to certify which witness my hand and official seaL
NICOLE BURROW
My Notary !D # 128728242
Expires August 30, 2019
Exhibit B
263
/ ··~
( l
264
The assumed name under which the business or professional service is, or is to be, conducted or
rendered is: ___ Lak'etJay cus/pm 1-/omes, /;/felfilo Vq f1o 11
;:~~~~attq1f
0 Other
Specify type of entity ifthere U;; no check box applicable.
The file number, if any, issued to the filing entity by the secretary of state is: 7093/7<'f 2 2.
The state, country, or other jurisdiction of formation is: --cJ.D_~~~(f::!-.::!5!!:..-.,----:----------
The registered or similar office of the entity in the jurisdiction of formation is:
[l;t The entity is required to maintain a registered office and agent in Texas.
The address of its
registered office in Texas and the name of the registered agent at such address is:
-0 The entity is not required to maintain a registered office and agent in Texas. Its office address in
RECEIVED
Jue;lo
__
2flo7
.~o,...,.,..;,
4
265
0 The entity is not incorporated, organized or associated under the laws of Texas. The address of
the principal place of business in this state is:
· · .· .D1B9Jtiijur'·. ·
~~----------~~--~~~~-=~~~
The period during which the assumed name will be used is 10 years from the date of filing with
the secretary of state.
OR
0 The period during which the assumed name will be used is _ _ years from the date of filing
with the secretary of state (not to exceed 10 years).
OR
0 The assumed name will be used until (not to exceed 10 years).
--------~~--------
mmlddlyyyy
co~~~~f~~·?
~----------------~~~~~~~~~~--~--
·· ;~~d:N.meused
The county or counties where business or professional services are being or are to be conducted or
rendered under the assumed name are:
~ All counties
0 :\ ll co untie~ with the exce;Jtion ofthe following countit:!s:
The undersigned signs this document subject to the penalties imposed by law for the submission of a
materially false or fraudulent instrument. If the undersigned is acting in the capacity of an attorney in
fact for the entity, the undersigned certifies that the entity has duly authorized the undersigned in
writing to execute this document.
Date:
266
J 23.:2007
Y ekk Construction,
J 25 Schooner Dr.
Lakeway. TX 78738
;\ssurned :\anre:
Tt has been our pleasure to file assumed name ccni for the above referenced entity. Enclosed
is the certificate evidencing i:il Pa\mcnt the fi · Cce is ackno\v!cdgcd hy this letter.
ln addition to filing the SecreTary Slate. Chapter the Texas Business and Commerce Code
requires filing of assumed name ficatc \\Jrh county clerk in the county in \vhich the
principai oiTicc of the !s located. lf the entity is required by ]U\\ to maintain a registered office
in T'exas+ assun1cd nantc cert1 is also required 10 in the county in which the registered
office is located.
Corporations Section
Business & Public Filings Division
Enclosure
267
!
L
~ '~ \ .
268
COME NOW Plaintiffs and file this Response to Defendants' Plea and Abatement and
Motion to Compel Arbitration, and would respectfully show the Court the following:
I. Summary
Defendant Y ekk Construction Services, LLC, d/b/a Lakeway Custom Homes and
Renovation ("Y ekk Construction"), along with its sole officer and member Pejman Dargahi and
his brother Kamran Dargahi (collectively, "Defendants"), were hired to build Plaintiffs' home
under a fixed-price contract. Since construction began in 2014, Plaintiffs have paid Defendants
95% of the contract price. However, in November 2015, Defendants halted all work on the
project, insisting that Plaintiffs pay much more than the contract price. Unbeknownst to
Plaintiffs until then, the Dargahis had been using Plaintiffs' money for tens of thousands of
dollars' worth of expenses that have nothing to do with the construction of Plaintiffs' home,
including not only different construction projects, but also personal expenses such as plumbing
work on Pejman Dargahi's personal home, purchasing real estate, and attorneys' fees. Following
269
Defendants' work.
Plaintiffs filed this lawsuit against Defendants on March 24, 2016, claiming that, by
misappropriating Plaintiffs' funds and failing to complete the project, Defendants had violated
the Texas Construction Trust Fund Act, engaged in fraud, and breached the construction
contract. Plaintiffs also alleged claims in connection with Defendants' defective work.
For nine months after Plaintiffs filed suit, Defendants never sought to enforce the
construction contract's arbitration clause. Instead, Defendants filed an answer, agreed to set the
case for trial, responded to discovery requests, and served third party discovery requests. It was
only after Plaintiffs filed a motion for summary judgment in December 2016 that Defendants, in
an effort to delay a judgment against them, sought to compel arbitration. Defendants' tactic must
Further, even if arbitration were not waived, only one of the defendants-Y ekk
Construction-is bound by and can enforce the arbitration clause. Accordingly, and in the
alternative, Plaintiffs' claims against Pejman Dargahi and Kamran Dargahi cannot be compelled
to arbitration, because there is no valid arbitration clause between Plaintiffs and the Dargahis.
II. Facts
(the "Contract") with Yekk Construction for the construction of a house on a piece of
unimproved land located at 228 Sanostee Cove, Travis County, Texas, for a fixed contract price
of $1,460,000.00 (the "Project"). 1 Defendant Pejman Dargahi has taken the position that he
1
See Exhibit 1 (2014 Contract).
2
270
Plaintiffs filed this lawsuit on March 24, 2016, 3 alleging damages ansmg from
negligent performance of construction work. 4 On May 10, 2016, Defendants filed their Original
Answer generally denying Plaintiffs' allegations. Defendants' Answer makes no reference to the
In June 2016, Plaintiffs propounded written discovery, including numerous requests for
Plaintiffs' discovery requests on August 11, 2016, 8 and signed a Rule 11 agreement regarding the
scope and timing of production of documents. 9 At no time during this agreed-to discovery
process did Defendants ever invoke the Contract's arbitration clause or argue that they were not
2
Exhibit 2, December 9, 2015 Letter from Kemp Gorthey ("[Paje Dargahi] signed as an agent .... ").
3
Exhibit 3, Plaintiffs' Original Petition and Request for Disclosure.
4
A detailed factual summary of Plaintiffs' causes of action can be found in Plaintiffs' Motion for Summary
Judgment and the exhibits thereto, which are incorporate herein by reference in their entirety and attached hereto as
Exhibit 13.
5
Exhibit 4, Defendants' Original Answer.
6
Exhibit 5, Plaintiffs' First Request for Production.
7
Exhibit 6, Plaintiffs' Motion to Compel Discovery Responses and Production of Documents.
8
Exhibit 7, Defendants' Response to Plaintiffs' First Request for Production of Documents.
9
Exhibit 8, Rule 11 Agreement Re: Plaintiffs' Motion to Compel.
3
271
dates of availability. 10 During these discussions, Defendants' counsel never indicated that
Defendants would seek arbitration. The arbitration clause was not even mentioned.
investigate the scope of damage to Plaintiffs' home, and Plaintiffs disclosed Mr. Clawson's
On October 3, 2016, over six months after Plaintiffs filed their lawsuit and with litigation
well underway, Defendants filed a motion to substitute counsel. It was only after Defendants
retained new counsel that Defendants, through their new counsel, mentioned the Contract's
arbitration clause for the first time. However, even then, Defendants' new counsel did not
of Plaintiffs' construction funds and other wrongdoing, Plaintiffs filed their Motion for Summary
Judgment against Defendants on December 2, 2016. 14 Only then, with the evidence against them
clearly set forth in Plaintiffs' Motion and the prospect of a judgment looming, did Defendants
10
See Exhibit 12, Affidavit of David A. King, at~ 16.
11
Exhibit 9, Plaintiffs' First Amended Petition (Clawson report attached as Exhibit B).
12
Exhibit 10, November 9, 2016 Email.
13
Exhibit 11, Defendants' Notice oflntent to Take Deposition by Written Questions.
14
Exhibit 13, Plaintiffs' Motion for Summary Judgment.
4
272
Defendants have waived arbitration by substantially invoking the judicial process in ways
that are fundamentally at odds with an arbitration proceeding and that prejudice the Handas'
right to a resolution of this dispute. See Perry Homes v. Cull, 258 S.W.3d 580, 589-90 (Tex.
2008) (holding that a party impliedly waives arbitration "by [1] substantially invoking the
A party substantially invokes the judicial process by "taking specific and deliberate
actions after a suit has been filed that are inconsistent with the right to arbitrate." In re Castro,
246 S.W.3d 756, 761 (Tex. App.-Eastland 2008, no pet.). Courts consider a "wide variety of
factors" in determining whether a litigant has substantially invoked the judicial process,
• whether and when the movant knew of the arbitration agreement during the
period of delay;
• whether the movant requested the court to dispose of claims on the merits;
• the extent of the movant's engagement in pretrial matters related to the merits
(as opposed to matters related to arbitrability or jurisdiction);
• the amount of time and expense the parties have committed to the litigation;
5
273
No single factor is required to show waiver, and "courts have found waiver based on a
few, or even a single one" of the above-described factors. !d. Here, the key factors weigh
Standing alone, substantial delay in moving to compel arbitration can be enough to show
waiver. See Perry Homes, 258 S.W.3d at 591; Nova Info. Sys., Inc. v. Nidhi & Roneil, Inc., 14-
05-00845-CV, 2007 WL 925813, at *3 (Tex. App.-Houston [14th Dist.] Mar. 29, 2007, no pet.)
("A party can waive arbitration if that party delays seeking to compel arbitration and the delay
results in prejudice.").
Here, Defendants did not move to compel arbitration until nearly 9 months after this
lawsuit was filed-a delay which approximates the amount of time establishing waiver in other
cases. See, e.g., Perry Homes, 258 S.W.3d at 591 (waiver based on 14-month delay); Tuscan
Builders, LP v. 1437 SH6 L.L.C., 438 S.W.3d 717, 720-21 (Tex. App.-Houston [1st Dist.]
2014, review denied) (13 months); PRSI Trading Co. LP v. Astra Oil Trading, NV, 01-10-
00517-CV, 2011 WL 3820817, *3 (Tex. App.-Houston [1st Dist.] Aug. 25,2011, pet. denied)
(11 months).
for the 9-month delay. Indeed, the first time that Defendants ever even mentioned the arbitration
clause was after they engaged new counsel to defend them in October 2016. But the fact that
Defendants chose not to invoke the arbitration clause for over six months when represented by
6
274
At the same time, Defendants do not and cannot assert that they were unaware of the arbitration
clause in the Contract. It is Defendants' own form contract, and Defendants' counsel had a copy
Seeking arbitration on "the eve of trial" is a crucial factor in determining waiver. Perry
Homes, 258 S.W.3d at 584 ("[A] party cannot substantially invoke the litigation process and then
switch to arbitration on the eve of trial."). Not unlike seeking arbitration on the eve of trial,
Defendants are seeking arbitration on the eve of the Court's disposition of a summary judgment
motion. Indeed, Defendants filed their motion to compel arbitration within a week of Plaintiffs'
Motion for Summary Judgment. Thus, it was only when Defendants faced the imminent
prospect of a judgment against them that they sought to delay that judgment by filing their
For months, Defendants fully engaged in pretrial matters without once mentioning the
arbitration clause. Specifically, Defendants (i) filed an answer to Plaintiffs' Original Petition
without requesting arbitration; (ii) agreed to set the case for trial; (iii) responded to Plaintiffs'
Request for Production and Request for Disclosure; (iv) supplemented their discovery responses
after Plaintiffs filed a motion to compel discovery; and (v) issued a subpoena for production of
Numerous courts have found that pretrial activities such as these may g1ve nse to
invocation of the judicial process. See, e.g., In re Castro, 246 S.W.3d at 761-62 (filing motion to
7
275
dispositive motions, serving discovery requests, filing motion to compel, and taking deposition);
In re Christus Spohn Health Sys. Corp., 231 S.W.3d at 481-82 (motion for continuance,
substantive discovery, third-party petition, and motion for contempt); Cent. Nat. Ins. Co. of
Omaha, 856 S.W.2d at 494-95 (obtaining written discovery and filing general denial, motion for
continuance, and counterclaim); see also Electrostim Med. Services, Inc. v. Health Care Serv.
Corp., CIV.A. H-11-2745, 2012 WL 5373462, at *8 (S.D. Tex. Oct. 30, 2012) (Rosenthal, J.)
(obtaining written discovery and filing amended answer, joint discovery/case management plan,
iv. Significant Time and Expense Has Been Committed to Resolving This
Case on the Merits.
In the nearly nine months before Defendants moved to compel arbitration, and with the
Court's resolution of Plaintiffs' Motion for Summary Judgment Motion looming, the parties-
"Prejudice refers to the inherent unfairness caused by 'a party's attempt to have it both
ways by switching between litigation and arbitration to its own advantage."' Tuscan Builders,
LP, 438 S.W.3d at 721 (quoting Perry Homes, 258 S.W.3d at 597). The party opposing
arbitration need only show "the fact of prejudice," not "its extent." Perry Homes, 258 S.W.3d at
599.
"A party opposing arbitration may establish that it suffered actual prejudice by showing
that it incurred costs and fees due to the movant's actions or delay." In re Castro, 246 S.W.3d at
15
See Exhibit 12, Affidavit of David A. King, at~ 15.
8
276
and in connection with preparing Plaintiffs' Motion for Summary Judgment. Though Plaintiffs
need not specify any particular amount expended in order to show prejudice from the
Defendants' delay in seeking arbitration, see Cent. Nat. Ins. Co. of Omaha, 856 S.W.2d at 495,
their expenses to date certainly reflect the extensive amount of pretrial activities undertaken
under the Texas Rules of Civil Procedure. Before Defendants moved to compel arbitration,
Plaintiffs incurred over $35,000 in attorneys' fees from pleading the case in this Court,
participating in written discovery, working with Plaintiffs' expert, and preparing Plaintiffs'
Further, while Plaintiffs' costs and fees are enough to show prejudice, Plaintiffs have also
been prejudiced because Defendants have engaged in third-party discovery that they may not
have otherwise received in arbitration. See Perry Homes, 258 S.W.3d at 599 (rejecting argument
that no prejudice should be found from discovery without proof that the arbitrator would have
Further, while all Defendants have waived the arbitration clause, it is only one of the
defendants-Y ekk Construction-that would have any right to invoke the arbitration clause in
the first place. The individual defendants-Pejman and Kamran Dargahi-are not parties to the
arbitration clause and, accordingly, have no right to compel the claims against them to
arbitration.
16
Exhibit 12, Affidavit of David A. King, at~ 15.
9
277
exists and that the claims at issue fall within the scope of that agreement." G. T. Leach Builders,
LLC v. Sapphire VP., LP, 458 S.W.3d 502, 524 (Tex. 2015). Plaintiffs do not dispute that a
valid arbitration clause exists, but that clause, on its face, is only between two parties: Plaintiffs
and Y ekk Construction. By contrast, a valid arbitration clause does not exist between Plaintiffs
It is axiomatic that, "[a]s a general rule, an arbitration clause cannot be invoked by a non-
party to the arbitration contract." !d. (internal quotation marks omitted). To determine whether a
valid arbitration clause exists between specific parties, the Court must look to the "intent of the
Here, the plain language of the arbitration clause speaks for itself:
Thus, the intent of the parties is clear on the face of the arbitration clause: The only
parties bound by the clause are Lakeway Custom Homes and Renovation (i.e., Y ekk
Further, even if the arbitration clause were not express (although it is), the Dargahis
themselves have separately argued that they are not bound by any of the terms of the Contract. 18
Of course, the Dargahis cannot have it both ways, claiming on one hand that they are not bound
17
Exhibit 1, Contract Section XXIX (emphasis in original).
18
See Exhibit 2, December 9, 2015 Letter from Kemp Gorthey ("[Paje Dargahi] signed as an agent .... ").
10
278
Given that the arbitration clause is completely silent as to any parties other than Plaintiffs
and Y ekk Construction, the Dargahis have not met their burden of proving that a valid arbitration
agreement exists between them and Plaintiffs. See Murdock v. Trisun Healthcare, LLC, 03-10-
00711-CV, 2013 WL 1955767, at *3 (Tex. App.-Austin May 9, 2013, pet. denied) ("To be
entitled to compel arbitration under the FAA, [movant] had the initial burden of establishing as a
Finally, Defendants also offer no evidence (or even an argument) that Plaintiffs are
equitably estopped from refusing to allow the Dargahis to benefit from the arbitration clause. It
is no wonder that Defendants do not make this argument, because it is the rare case when a non-
this exception to the general rule is appropriate only when the claims against the non-signatories
seek "a direct benefit from a contract containing an arbitration clause." G.T. Leach Builders,
when the substance of the claim arises from general obligations imposed by state
law, including statutes, torts and other common law duties, or federal law, rather
than from the contract, "direct benefits" estoppel does not apply, even if the
claim refers to or relates to the contract.
Here, Plaintiffs' primary causes of action against the Dargahis-e.g., breach of fiduciary
duty under the Texas Trust Fund Act, fraud, and unjust enrichment-are derived from
"obligations imposed by state law, including statutes, torts and other common law duties, or
federal law, rather than from the contract." Thus, regardless of whether these claims refer or
relate to the Contract between Plaintiffs and Y ekk Construction, Plaintiffs are not estopped from
11
279
the general contract, the mere fact that the claims would not have arisen but for that contract is
deny Defendants' Motion to Compel Arbitration. Plaintiffs further pray for such other and
further relief at law and/or in equity to which they may be justly entitled.
Respectfully submitted,
12
280
The undersigned certifies that a true and correct copy of the foregoing has been served by
electronically via the e-filing system on counsel of record as listed below on this the 24th day of
May, 2017:
James Rudnicki
JRudnicki@BRS Texas.com
Russell Clinage
RClinage@BRSTexas.com
Tyler Hood
THood@BRSTexas.com
Stephanie Lugo
SLugo@brstexas.com
Bush Rudnicki Shelton, P.C.
200 N. Mesquite St., Suite 200
Arlington, Texas 76011
Telephone: (817) 274-5992
Facsimile: (817) 261-1671
13
281
H: PROPERTY
Lot l, Block:\, Seven Oaks Section 4. also known as 228 Sanostee Cove, Travis
County, TX. 78733 or otherwise described on attached exhibit together vvith all
improvements to be constructed on the Property.
HI: I'IPROVEMENTS
L\.KE\V.\ Y CLSTOM HO\IES A.'W RE:"iO\ATIO\i shall prmide all labor and materials for
construction of [X] a single family residence according to this Contract and the Plans.
prepared by Dominic Couturier of Italia Fine Homes, Inc., and specifications as,
prepared by L-\KEWA Y Ct ST0\1 HOMES \.'liD RE.\OYATIO'i and initiated by both parties
(collectively called the "Plans"). The labor and materials required to construct the
improvements may be referred to as the "vVork". To be clear, Plans include all interior,
exterior and landscape drawings as signed off between Owner & Builder.
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283
XI: ALLO\VANCES
Ovvner shall be entitled to allowances a~~ spcci fied m [] th..;: Plans [X] the Allowance~
Schedule altached to this contract as an exhibit. ,All savmgs attributable to allov;,ances.
\Vhich are not spent, vvill be credited to Chvner. and Ovvner \\ill be responsible for all
costs exceeding the A.llo\vances. If Owner se kcts allo\vance items in excess of specified
al!ovvanccs, L\KEV\· A Y CCST0\1 HO.\IES \'iD RL\0\ -\ TIO'i may submit an ....\ltowance
Overage" to 0\vner in the fom1 of a Change Order. C:pon approval by Owner. the
Allowance Overage vvill be payable vvith the next Progress Payments.
XII: 1:\Sl.'RANCE
Before beginning the vVork, LAKE\'~> AY CtST0.\1 HO\IES A~D R£:\OV.\TlO:\ shall obtain:
(a) Builders risk insurance covering all insurable risks in an amount equal to or greater
than the Contract Price: {b) Comprehensive public and autornobi le liabd ity insurance.
The cost for ali required insurance is inc! uded in the Contract Price. Proof of insurance
would be submitted to Owner prior to start of construction. Builder ~.>vitl also furnish the
Ov1ner \Vith a financial statement L)f L--\KE\\ A Y CI ST0\1 H<HIES \'iD RE.'tO\'.\TIO'Ii
prior to signing this contract.
284
XV: E\lENTS OF DEF.ALLT BY LAKE\\\ 'l: CtST0.\1 Hn\IES .\.'iD RE'iO\ HIO'i
Each of the following shall be deemed an Event of Default by L.AKE\VA Y CtSTO\f
HO\rF:S .\\!) RE.\0\ .\.TlO'i and a material breach of this agreement: (a) L\KE\V \ Y
Ct ST0\1 HoMES A'<D RE\0\.\TIO'<'s failure, \vithout cause, to make payments to
subcontractors or vendors supplying materiJl for the \York: (b) A breach by L\KEWAY
Ct ST0\1 HOMES \'iD R£\0\ \riO:". of a covenant or agreerncnt contained in this
agreernent: (c J The filing of a voluntary petition in bankruptcy, making an assignment for
the benefit of any creditoL being adjudicated a bankrupt or insol'n:nt. or applying for or
consenting to the appointment of a receiver. tru:nee or liquidator of all or substantial part
of L\KE\\ \\ Cl STtHI HovtES A.'iD RE'-0\.\TlO'i ·s assets.
285
286
XXIII::HECHA:"iJC'S LIE:\'
Owner t,'Tants to L\KE'.V.\Y CtST0\1 HO.\IES A.'iD RE'<OV-\TIO'i a mechanic's lien to
secure performance of the obligations of Owner, and agrees. prior to beginning
construction, to execute a separate mechanic's lien contract acc.::ptable to L-\KE\\ \\
CtSTO\f HO\IES .\.'iD RE'iOV \ TrO"i and the fnterim Lender, if any. If Owner i:~ obtaining
an interim construction loan, LAKE\\.\ Y Ct STOM HO.\tES A.\ D RE'iOV-\ TIO"' shaH assign
ti.J the Interim Construction Lender a portion ofCtJntractor's mechanic's lien cqual to th.:
amount of the interim con::;truction loan obtained by Owner and to subordinate any
remaining amount l)f L\KE\v H CtSTO\f HO\IES .\'iD RDOYAT!O'; ':s lien to the interim
construct1on loan.
287
Special Provision: builder agrees that the square fbotage called on dnnvings are
approximate and the builder has his 0\vn calculation and is not relying on the square
footage table.
XXX: CA:"iCELLATIO:"'
After l '' payment of S4J.800 is made, if there is ~my issue vvith the pem1itting process
that pre\enrs the builder from obtaining the p,;;:rmit. provided all the necessary septi.c.
foundation, framing design is completed by Builder (&receipts shtwm to Owner) and all
fees (water meter and tab, electricaL HO.-\ permit, and HO-\ deposit are paid by the
Builder). then O~:vner and Builder ~_:an mutually decide to cancel the contract \vith no
additional obligatJon to each other, e'\cept a $3500 HO.\ deposit payment is refunckd to
Owner by the Builder or the HO.-\. vvhoever is holding the SJ500 deposit
288
ln the event of any con f1ict or inconsistenq· bet\Veen the provisions of Section I through
XXXIV ofthis contract and th~ provisions of any of the attached exhibits and addenda,
the provisions of the attached exhibits ::md addenda shall govern and controL
289
K:\O'v'v. YOLJR RIGHTS AND RESPO'iSIBTUTIES LNDER THE L\.\V. You are
about to '-:::nter intL) a transaction to build a new horne or remodel existing residential
property. Texas la\v requires your contractor to provide you \vitb this brief crverviev;; of
some ofyour rights. responsibilities. and risk:-; in this transaction.
KNO\V YOUR CONTR.ACTOR. Bdore you enter into your agreement for tho;;
construction of improvements to your real property, make sure that you have investigated
your contractor. Obtain and verify ret·erences from other people \vho have used the
contractor for the type and size of construction project on your property.
GET IT 1\l 'vVRlTL\lG. i\fake sure that you have a \vritten agreement \Vith your contractor
that inc lucks: t 1 l a description of rhe ~;vork the con tractor is to perform: ( 2) the required
or estimated time for compktion of the \vork: 13 l the cost of the 'A·ork or ho\V the cost
\viii be determined: and t-1-) the procedure and method ofpayrnent. inclw..ii11g provisions
for statutory Retainage and conditions for final payment. Take your time in revi~wing
documents. !f you borrov. . money from a lender to pay for the improvements, you are
entitl<::!d to have loan closing documents furnished to you for review at kast one business
day before the closing. Do not waive this requirement unless a bonafide emergency or
anothcr good cause exists, and make sure you understand the documents before you sign
tbern. If you t~lil to comply \Vtth the terms of the documents, you coLdd lose your
property. You are entitled to have your own attorney review any documents. If you ha\e
any question about th.: meaning of a document. consult an attorney.
GET A UST Of SLBCO.\JTRACTORS AND SCPPLIERS. Beton~ construction
commences, your contractor is required. to provide you \vith a llst of the :->ubcontractors
and supplters the contractor intends to uso:: on your project Your contrJctor is required to
supply updated information on any subcontractors and suppli.::rs added after the list
pro'vickd.
:\10~ lTOR ntE \\ORK. Lenders and gmernrnental authontics may inspecr the work in
progress from time to time fur their own purposes. These inspections are not i.ntended as
290
VIO:-.ilTOR P.-\ Y:VlE:-.iT lfyou use a lender, your knder is required to provide you \Vtth
a oeriodic statement shO\.ving the monev disbursed bv the lender from the oroceeds of
l '-.,-• v .. •
your loan. Your contractor is also required to furnish you \Vith a statement at least once
e:.1ch month of money disbursed to subcontractors and suppliers tor this project. Review
these statements and rnakc sure that the nH. mcy is being properly disbursed.
Dwing construction and for 30 days after final wmpletion, termination, or abandonment
of the contract by th.;; contractor. yoll should \vithhold or cause your lender to withhold ! 0
percent of the amount of payments made for the work performed by your contractor. This
is sometimes referred to as ·statutory Retainage,' ff you r~lil to \V!thhold the l 0 percent
for at least 30 days after final completion. termination. or abandonment of the contract by
the contractor and if a valid claim is timely made by a claimant. you may be personai.ly
liable and your property may be subject to a hen up to the amount that you failed to
v.,i thhold. If a claim is not paid \Vi thin a certain time period, the claimant is required to
fik a mechanic's lien affidavit in the real property records in the county vvhere the
property is located. A mechanic's affidavit is not a lien on your property, but the filing of
the affidavit could result in a court imposing a !Jen on your property if the claimant is
successful in litig:::Hion to enforce the lien claim .
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OBTAI'\i A LIE'\i RELEASE .c\'iD A BILLS-PAID AFFlDA \'IT. \Vhcn vou receive a
notice of claim, do not release withheld funds vvithout obtaining a signed and notarized
release of lien and claim from the claimant. You can also reduce the risk of having a
claim tiled by a subcontractor or supplier by requiring as a condition of each payment
made by you or your lender that your contractor furnish you with an affidavit stating that
all bills have been paid. LJnder Texas la\v. on final completion of the work and before
final payment. the contractor ts required to furnish you \vith an aftldavit stating that all
bills have been paid. If the contractor discloses any unpaid bill in the affidavit. you
.shoulc! withhold payment in the amount of the unpaid bill until you recc:~ive a \.Vaiver of
lien or rekase from that subcontractor or supplier.
0\VNERS:
\HTNESS: _ _ _ _--,---·~-----~~-
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Pursuant to Property Coi..k: Sc:c. 53.256. t\.;I!O<v\ ing i::; a l of .,ubcuntractors and supplkrs
vvho may perforrn vvork on your resid-:nce: this !i:-;r 1S subject to change \vithout prior
notice: nev\ information shall be made available upon request to Client( si.
SLBCO'iTRACTCJRS
SUPPL.lERS
PHONE TRADE
( :Vfonth ), 2.\:J-+~3
Contractor:
293
. ( ;
RFFl:Rf'\( t'S
r 512) -B J-,~227
{ ;
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A Sum of $100.00 per day would be the amount of penalty if the substantial
completion (including full landscaping) is not achieved within .460 days of start of
construction payable to the Owners by Lake;\ay Custom Homes.
A sum of $100.00 per day would be the amount of bonus if the substantial
completion (including full landscaping) is achieved before the 460 days of start of
construction payable by the nvvner to Lakc\vay Custom Homes.
J
t\
Executed on
i
/t ... ._,... ,.._....~,~~:';>
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2. Vapor barrier: provide 6 mil polyethylene vapor barrier belovv entire slab
area.
Framing
The structural framing will be designed by a licensed professional engineer,
and it will include the following minimums to meet Lakeway Custom Homes &
Renovation standards:
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8. Nailing and attachment oi' all framing members and sheeting shall be as
specified in the International Residential code Nailing Schedule.
9. Lakeway Custom Homes & renovation may have the roof designed using roof
trusses at her discretion.
10. All exterior walls shall be of 2 x 6 Southern pine No.2 Y.P.
Roofing
3. Concrete tile roof. Hanson large barreL or approved equaL Roof vvould have
hand blended with 3 different colors from manufacturer standard color
selection.
6. Vdlley flashing shall extend minirnum 11" from center and have splash
d rter rib 1" high.
8. Concrete Tile roof to be selected from the standard manufacturer colors only.
9. Metal roof: 24 gauge standard color Kynar with 1" standing seam.
10. iV'letal covered gutters are induded all around the house
Insulation
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6. Sound reduction insulation will be installed on Bee Cave Street Side. Double
sheetrock will be installed in the bedroom. family room, prep kitchen on Bee
Cave side.
Drywall
L 5/B" Fire restraint drywall to all ceilings and garage/building common walls.
5. Tape, lloat and texture with heavy trovvel on all walls at upper floor, main
t1oor and garage annex only, except the closets and the garages. All other area
to 1·eceive standard medium ocange peel texture.
Finishes
Exterior:
• All wood to receive oil based primer and two coats of latex.
Interior:
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c. Owner to select maximum of 2 colors per room on vv;:llls and one color
on ceiling per room.
d. All tile is based on $4/sf for material, including taxes and delivery to
jobsite
1. !nterior doors shall be 1-3/4'' fir 6 panel recessed paint grade solid core
doors.
Windovvs
L All windows shall be Pella double pane with lovv E glass, brown color
Vinyl windows.
3. i-\Jl windows on Bee Caves side of the road, pt'ep & main Kitchen Windows
to be special "Sound !'eduction" windows
Exterior Door
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1. All cabinets shaU be custom made vvith wood material using knotty alder in
the living areas and paint grade material in all closets.
2. All upper cabinets shalt be 42''
3. All doors to have concealed European hinges
4. Allow for pull-out trash cabinet in kitchens (near sink) and pull-out
warmer drawer (near island).
Mirrors
1. Ail Framed Mirrors to be selected by the Owner with budget not to exceed $1800.
Non-Framed mirrors are included outside of this $1800 budget.
Granite
1. All Granite to be 3cm all kitchen areas, bathroom areas and all niches with
3cm, level 2, glued strip/laminate edge and 2cm in other areas with 3cm glued
stn pjlaminate edge
Plumbing
·-;· ..·
300
Note: 4 systems are included (2 for Main floor, 1 for upper floor, 1 forGE). All
provisions for additional 1 system r basement wilt be made mc!uding compressor
pad.
Performance:
Electrical
301
Exterior Concrete
Fireplaces:
L All Fireplaces to be 42" metal fireplaces.
Allowances
vVe have provided the following allowances vvithin our proposal; sales
taxes and delivery to jobsite are included vvithin allowances. However,
Builder coordinate the delivery schedule on behalf of Owner.
$0 for the following items at owner discretions: Note: The Owner has elected to
exclude Allovvances from this contract, but would dellver all to the builder at his
cost. The builder is only responsible for installation of the allowance [terns
excluding all the lovv voltage ring and equipment.
a. Electrical Fixture
b. Plumbing fixtur·es
c. Appliances
d. Front Door
e. Bath Tubs
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Please Note:
Change the pool deck and upper courtyard to stamped concrete in lieu
of pavers for the sum of $0 (Zero Dollars) to be added to the contract
sum.
An 18" berm will be built along Bee Caves Road until the end of the
driveway.
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: i
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305
307
December 9~ 2015
Dear David:
As you know, I represent Pejman Dargahl, Kmnran Dargahi, and their company Yekk
Construction Services, LLC d/b/a Lakeway Custom Homes & Renovations.
You asked that we provide a preliminary outline of possible terms of settlement prior to the
mediation tomorrow at 2:30 p.m. with Ben Cunningham at the Lakeside Mediation Center.
Yekk Construction Services, LLC C'Yekk") owns 2 lots, 411 Goodnight Drive,
Georgetown, value approximately $220,000, loan a1nount approximately $110,000, and 408
Indigo Lane, Georgetown, value approximately $165,000, loan a1nount approximately $80,000.
We are going to put the lots on the market and sen them. We would use the cash proceeds to
contribute toward cost of finishing construction of the Handas' home. In order to expedite the
construction process, we would suggest possibly using the lots as collateral for some type of loan,
assuming the costs of the loan are not prohibitive. This would generate funds for immediate use
even if we could only borrow say 50% loan to value on the equity. Once the lots are sold, we
would then have aH of the equity available to pay back the loan and to contribute further to
construction costs.
Yekk also has approximately $10,000 in its account representing draws on the Handa
construction loan, plus approximately $70,000 left m the loan.
We would contribute aU of these funds toward the construction and Ka1nran Dargahi would
devote his time to completing the construction.
I do want to make dear that we regard the Handa's claim as an obligation of Yekk
Construction Services, LLC, and not Pejman Dargahl, personally. I have previously provided the
paperwork to Rick showmg ·that Lakeway Custom Homes & Renovation was registered in 2007
with the Texas Secretary of State as the assumed name of Yekk Construction Services, LLC, and
that Yekk Construction Services, LLC was identified as the contracting party and the entity to
308
Sincerely,
KG/ch
309
COME NOW Plaintiffs Dhiraj Handa and Ritu Handa, and file this Original Petition
complaining of Defendants Pejman Dargahi, Karuran Dargahi, and Yekk Construction Services,
LLC, d/b/a Lakeway Custom Homes and Renovation, and for cause of action would show as
follows:
I.
BACKGROUND AND OVIl:RVIEW
1. This lawsuit seeks money damages based on the Defendants' wrongful and
Plaintiffs have paid 95% of the Contract Price, the Defendants have improperly refused to move
forward with the work. Instead, the Defendants are holding the project hostage by insisting upon
payment of additional amounts that are not owed and that exceed the total Contract Price.
Further, Defendants have Jailed to pay subcontractors, despite falsely representing to P1ainti1Ts
that all subcontractors had been paid. Defendants have fraudulently diverted trust fund payments
made by Plaintiffs to themselves and to other purposes, leaving PlaintHis exposed to the risk of
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n.
DISCOVERY PLAN
2. Discovery in this action should proceed under Level 3 pursuant to Rule 190.4 of
HI.
PARTIES
3. Plaintiffs Dhiraj Handa and Ritu Handa are residents of Travis County, Texas.
County, Texas, and may be served with process at 6425 Old Harbor Lane, Austin, Texas, 78739.
6. Defendant Yekk Construction Services, LLC, d/b/a Lakeway Custom Homes and
Renovation is a Texas limited liability company with its principal office in Lakeway, Travis
County, Texas, and may be served with process by serving its registered agent, }Jejman Dargahi,
IV.
JUIUSDICTION AND VENUI~
7. This Court has subject matter jurisdiction over Plaintiffs' claims, and Plaintiffs'
claims are within thejmisdictionallimits ofthis Court. Pursuant to Tex. R. Civ. P. 47(c)(4),
Plaintiffs seek monetary relief over $200,000 but not more than $1,000,000.
8. Travis County is a county of proper venue under Section 15.002, Tex. Civ. Prac.
& Rem. Code. Each Defendant's residence or principal offi.ce is in Travis County and all or a
substantial part of the events giving rise to Plaintiffs' claims occurred in Travis County.
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Contract (the "Contract," attached hereto as Exhibit A) under which "Lakeway Custom Homes
and Renovation" agreed to build a house on a piece of unimproved land located at 228 Sanostee
Cove, Travis County, Texas, for a flxed contract price of$1,460,000.00 (the "Project"). Tbe
Contract was executed on or around April 4, 2014, by Defendant Pejman Dargahi ("Dargahi").
10. The Contract did not disclose that Lakeway Custom Homes and Renovation was a
d/b/a for Defendant Yekk Construction Services, LLC ("Yekk"), nor did the Contract disclose
that Dargahi was executing the Contract as the agent ofYekk or any other entity. In a November
19, 2015 email, Dargahi misrepresented to Plaintiffs that the Contract was with "Lakeway
Custorn Homes LLC" (a non-existent entity), and Dargahi did not indicate that he signed the
Contract on behalf of Yekk. Dargahi has also indicated that he and his brother, Kamran Dargahi,
are "partners" in the non-existent Lakeway Custom H<;mms LLC. Although not disclosed in the
Contract, upon infonnation and belief, Dargahi is the sole member and director of Yckk.
312
the construction lender (Regions Bank), Plaintiffs have made progress payments totaling
$1.387,750 ($660,000 of which was paid directly by Plaintiffs and $727,750 of which was paid
by the construction lender). This is 95% of the Contract price. However, Dargahi has completed
less than 90% of the scheduled work at a value of $1,314,000. In other words, Dargahi has been
paid for more than he has completed, and has been overfunded by at least $73,750.
13. Dargahi's last request for a payment, in the am.ount of$90,520, was made in
November 2015. At that time, Dargahi was already ovcrfunded by $29,950. Regions Bank
approwd a progress payment of$43,800 on Friday, November 13, 2015, noting that this fhnding
was an "exception to policy" and was Hthe maximum amount we could get approval to fund per
management." Regions Bank stressed that "there will be no further draws fl·om the loan until the
project is completed."
14. However, the following Monday, November 16, Dargahi disclosed to Plaintiffs
that he was still "$150,000 +I~ short to finish our contract." This despite the fact that, with the
$43,800 payment made the previous Friday, Dargahi was already ovetfunded by $73,750.
Dargahi also declared that "no more [construction] acilvities could be performed unless we are
financially comfortable." At or around this same time, Dargahi abandoned the Project, leaving it
exposed to the elements, vandalism, and theft. Since that time, Dargahi has ceased all
construction work on the Project despite repeated requests from Plaintiffs to resume work.
15. In the weeks following Dargahi's refusal to complete his work on the Project in
accordance with the Contract, Plaintiffs learned that according to Dargahi's own estimate, it
would cost over $130,000 to complete the remaining work on the Project. Despite Plaintiffs'
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16. Plaintiffs also discovered that Dargahi owed more than $120,000 to at least
seventeen subcontractors hired by Dargahi to work on the Project, notwithstanding the fact that
Dargahi repeatedly represented to Plaintiffs prior to obtaining the last draw on November 13,
2015 that all subcontractors had been paid. With respect to a subcontractor responsible for
constructing a well fbr the Project, Dargahi had also obtained Plaintiffs' approval of a $20,000
change order after Dargahi falsely represented that the subcontractor had already been paid for
such work. Numerous subcontractors have filed liens on the Project or provided notice of intent
to file liens. Despite Plaintiffs' repeated demands, Dargahi has refused to pay the outstanding
debts owed to the subcontractors, and Dargahi has not discharged any subcontractors' liens.
17. Further, after Dargahi's cessation of work, Plaintiffs discovered that, all along,
Dargahi and his brother, Kamran, had been systematically diverting substantial sums of money
from Plaintiffs' progress payments to other expenses unrelated to the Project. Specifically,
according to Defendants' own bank statements and upon information and belief, the Dargahis
used Plaintiffs' money to pay ibr the following: (i) other construction projects (as confirmed by
af11davits obtained from Defendants' subcontractors, who worked on multiple pn~jects for
Defendants, but who were paid only out of Plaintiffs' funds); (ii) advertising; (iii) web design;
(iv) plumbing work done on Pajeman Dargahi's personal house; (v) purchasing a car; (vi)
purchasing real estate; (vii) attorney's fees in connection with multiple disputes; and (viii)
personal expenses, including out-of-state trips, charged to an American Express credit card. As
Defendants' bank statements indicate, such payments were made directly from the bank account
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18. Remarkably, the Dargahis do not dispute that they systematically diverted and
spent such funds as if they had been deposited in the Dargahis' own personal bank account.
Instead, now that their misappropriation of fhnds has been uncovered, the Dargahis appear to
claim that they were entitled to divert Plaintiffs' payments based on the contention that they
expected to make a profit on the Project, and they therefore should have been able to deduct their
"expected" profits from Plaintiffs' progress payments before the Project was actually completed.
Of course, this bafl:Hng contention, which was only revealed after Plaintiffs' uncovered the
diversions, is contrary to Chapter 162 of the Texas Property Code and ignores the plain language
of the Contract. Rather than promising Dargahi any type of profit, the Contract expressly
provides for a fixed payment of$1 A60,000--95% of which ($1,387,750) was fraudulently
extracted t}om Plaintiffs before the Dargahis announced in November 2015 that they were
halting all work on the Project unless and until Plaintiffs personally paid them well in excess of
what the construction lender could release and well in excess of what Mr. and Mrs. Handa were
VI.
CAUSES OF ACTION
contract for the improvement of specific real property in Texas, and are therefore "trust funds"
pursuant to Section 162.001, Tex. Prop. Code. Defendants Pajeman and Karnran Dargahi had
control and direction over Plaintiffs' progress payments for the Project. Plaintiffs are
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progress payments without first fully paying all cwTent or past due obligations Defendants
incurred. Defendants did so intentionally, knowing1y, and with intent to defraud. Defendants'
22. Defendants' breaches of fiduciary duties owed to Plaintiffs under Chapter 162
24. Defendants Pajeman and Kamran Dargahi represented to Plaintiffs that their
progress payments and change order payments would be used to pay for the construction of the
Project. However; Defendants never intended to use Plaintiffs' payments solely for the Project,
use. Defendants' false representations induced Plaintiff:., to enter the Contract and to make
progress payments and change order payments to Defendants under the Contract.
25. Defendants Pajeman and Kamran Dargahi also represented to Plaintiffs that they
had fully paid the subcontractors hired to work on the Project knowjng that seventeen
subcontractors had not, in fact, been paid·-·-·to the tune of over $120,000. Defendants' false
representations induced Plaintiffs to make progress payments and change order payments to
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28. Defendants have wrongfully profited from their breaches of fiduciary duty
described above. Plaintiffs seek the imposition of a constructive trust upon all assets, revenues,
and profits that Defendants have received and continue to receive as a result of their wrongful
30. Defendants unjustly received (by taking for themselves) the portion of Plaintiffs'
those benefits by taking undue advantage of Plaintiff..'). Defendants are required to make
that belongs to Plaintiffs in equity and good conscience. Plaintiff.s are entitled to recover such
money.
317
individually liable for any breaches of Yekk's obligations under the Contract, as described above
35. Under the Contract~ Yekk and Pejman Dargahi are obligated to "provide all labor
and materials for construction" ofthe Project "according to [the] Contract and the Plans," and
"pay all costs related to the Work." Exhibit A, Sections III, XIV. Yekk and Pejman Dargahi
have breached these contractual obligations, or to the extent such breaches have not yet occurred,
Yekk and Pejman Dargahi have anticipatorily breached their obligations by stating that they do
36. Yekk and Pejman Dargahi are further obligated under the Contract to "make
payments to subcontractors or vendors supplying material for" the Project. Exhibit A, Section
XV. Yekk and Pejman Dargahi have breached their contractual obligation by failing to pay at
37. Yckk and Pcjman Dargahi are further obligated to "deliver title to all the
materials, appliances and equipment used in the Work free of all Hens, claims, security interests
or encumbrances." Exhibit A, Section XV. Yckk and Pejman Dargahi have breached their
38. Because ofYekk and Pejman Dargahi's breaches ofthe Contract, Plaintiff's have
VII.
EXEMPLARY DAMAGES
318
wrongful conduct pursuant to Chapter 41, Tex. Civ. Prac. & Rem. Code, or as otherwise allowed
by law.
VIH.
ATTORNEY'S FEES
42. Pursuant to Tex. Civ. Prac. & Rem. Code§ 38.001, or as otherwise allowed by
law, Plaintiffs are entitled to recover reasonable and necessary attorney's fees and costs of court
IX.
CONDITIONS PRECEDI~NT
43. All conditions precedent have been performed or have occurred, including all
x.
REQUEST FOR DISCLOSURE
44. Pursuant to Tex. R. Civ. P. 194, Plaintiffs request that Defendants disclose within
50 days of service of this request all information or material described in Rule 194.2 (a)-(I).
PRAYER
WHEREFORE, premises considered, Plaintiffs respectfully request that the Court enter
pursuant to Tex. Civ. Prac. & Rem. C~)de § 38.001, or as otherwise allowed by law; and
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Respectfully submitted,
By:
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Defendants, Pejman Dargahi, Kamran Dargahi, and Yekk Construction Services, LLC d/b/a
Lakeway Custom Homes and Renovation, file this Original Answer to Plaintiffs' Original Petition
WHERE FORE, Defendants respectfully pray that Plaintiffs take nothing and that
Defendants recover their costs and all other relief, general or special, at law or in equity, to which
Respectfully submitted,
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By my signature above I hereby certify that a true and correct copy of the foregoing
Defendants' Original Answer was forwarded on this lOth day of May, 2016, to Plaintiffs' counsel as
follows:
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TC: Defer.dants Pejman [ argahi, Kamran Dargahi, and Yekk Cor.struction Services,
LLC, d/b/a Lakeway ~.:ustom .t-Iomes and Renovation by and through their
attorney for record a:: listed ir. the Certificate of Service, below.
Pursuant to Rule 196, Texas }~ules o;· Civil Procedure, Plaintiffs Dhiraj Handa c.nd Rf!·~)
Construction Services, LLC, d/b/a Lakeway 2ustom Homes and Renov~!tion serve a wdtten
response tc this First Request for Productior~ and produce the documents described in ;.>.e
attached Exhibit A for inspection and copyir,g in the offices of these Plaintiffs' undersigned
counsel nr,, later than 30 Gays from f 0 date c7 service hereof, or at such other place and time as
·'
may be m•tually agreed upon by the parties. Each of the three Defendants is further requested to
•·
amend or supplemer.~ as necessary r ;d. as re·~·1ired under Rule 193.5, Texas Rules of Civil
Procedure.
323
CK:·.TU'ICLTE OF SERVICE
The undersigned certifies that a true rnd correct copy of the foregoing has been served
electronically on counsel of record 'S listed aelow on this the 17th day of June, 2016:
Ke;~1pGorthey
The Gorthey Law Firm
604 W. 12th St.
Austin TX 78701
kem.n(G{gorthey law .com
324
INSTRUCTIONS
, 3. Pursuant to Rule 196.4, Tr:-xas Rules of Civil Procedure, this request for
production also specifically requests production of electronic or magnetic data. Such data should
be produced as it is maintained in the ordinary course of business, in native format, and in the
form of a computer readable CD or DVD. If production in this format is not reasonably
available, the undersigned is available to discuss alternative formats that would also be
compatible and reasonably available so as to allow the production to proceed.
325
The following definitions apply to the requests for production below and are deemed to
be incorporated therein.
C. "You," and "Your" tneans the individual Defendant (Pejman Dargahi, Kamran
Dargahi, or Yekk Construction Services, LLC, d/b/a Lakeway Custom Homes and Renovation)
responding to this Request and any person or entity acting as an agent, representative, consultant,
attorney, o~· employe~ of the individu:1l Defendant responding to this Request.
DOCUMENTS TO BE PRODUCED
1. Y ur file on the constructior, of the b:mse located at 228 Sanostee Cove, Travis County,
Texas (the ''House").
2. Do::uments regarding the h 1Juse or the construction of the House, including but not
limited to communications and correspo:1dence exchanged between You and any other
Defendant, You and Plaintiffs, or 7 ou and any subcontractors or other individuals or entities
involved in the construction of the Eouse.
4. Dc.cuments, including bank ::tatements, invoices, and receipts, reflecting the expenditure,
transfer, or disposition of any funds paid by Plaintiffs or PlaintitTs' construction lender, Regions
Bank, to You. This request includes, but is not limited to documents reflecting the expenditure
of suc:1 fu~1ds for purposes other tt.an constructing the House, including (i) other construction
projects; (:i) advertising; (iii) web C:esign; (iv) work done on Pejman Dargahi's personal house;
(v) car pur.;)hases; (vi) real estate pu·~::hases; (vii) attorney's fees or other court costs; (viii) travel
expenses; or (ix) any other personali'!xpenses.
326
6. Documents reflecting or describing any work You, your subcontractors, or any other
individual ~or entity performed in connection with the Contract or in connection with the
constructio·1 ofthe House.
7. Documents reflecting any amounts invoiced or charged to You by (or owed by You to)
any subco:1tractors or other indivic!ual or entity for work performed in connection with the
Contract or in connection with the constructinn of the House.
8. Doc"!.lments reflecting any arr,ounts pc::d by You to any subcontractors or other individual
or entity iar work performed in ::onnection with the Contract or in connection with the
constructbn of the House.
12. All quotes, estimates, and pa/ applications or billing records for your wm·k on the House.
13. All videos and images You rave ofthe House or any parts ofthe House.
16. Cb.nge orders, or other documents showing a change in the scope or nature of Your work
on the House.
17. D~cuments reflecting credit::; owed ~Q Plaintiff<> in connection with Your work on the
House.
327
19. Do~uments reflecting the scope of work of any subcontractor or other individual or entity
who performed work on the House.
20. Agreements of any kind, including any warranties, between You and any subcontractor or
other individual or entity who performed work on the House.
21. Insurance policies or proof of insurance You received from any subcontractor or other
individual or entity who performed work on the House.
23. Do<::uments relating to Your diagnoses and/or repairs of any moisture-related problems in
the House.
25. Documents relating to Your diagnoses and/or repairs of any defects, problems, or damage
described c: alleged in the inspection report Pttached as Exhibit B to Plaintiffs' Petition.
26. A ~opy of any insurance policy for which coverage may be available to satisfy any award
against Y o·J in this matter.
27. All petitions and complaints (original and amended) filed in any lawsuits in the past five
years to which You are, or have been, a party in any capacity.
28. All judgments that have been rendered in the past five years in any lawsuit in which You
are, or have been, a party in any capacity.
29. Documents concerning any of the matters which are the subject of Plaintiffs' Petition.
30. No.1-privileged documents a:·d communications relating to the formation and governance
of Y ekk Construction Services, LLC, d/b/a Lakeway Custom Homes and Renovation ("Y ekk").
This request includes, but is not limited to, organizational documents, operating agreements and
company agreements.
31. Do-.;uments reflectitig loans, capitalization, or any other funding for Y ekk.
328
33. M:r.utes, certificates of formation, certificates of operation and regulations for Yekk.
35. All income and expense statements, profit and loss statements, balance sheets, net worth
statements, and other financial staten:ents reflecting or related to Yekk's current net worth.
36. Yeklc's federal income tax returns and any other tax returns, with all attachments, Yekk
has prepared during the last three yeas.
37. Documents which reflect Yekk's ownership in any business since January 1, 2014.
38. Bank statements and records for Yekk from January 1, 2014 through the pre~ent,
including all documents which reflect checking accounts, savings accounts, and other monies or
cash on deposit Yekk has had with any financial institution, bank, or credit union, since January
1, 2014.
39. Documents reflecting monien debited/credited to and from Yekk since January 1, 2014.
40. D'J-:uments which reflect s:ocks, bonds, mutual funds, and/or exchange-traded funds
Yekk hs.s ::wned since January 1, 2C:4.
41. D'J~uments which reflect cedficates 'Jf deposit Yekk has owned since January 1, 2014.
42. Do.::uments which reflect annuities and annuity contracts Yekk has owned since January
1, 2014.
43. Docamcnts which reflect au~omobiles, trucks, recreational vehicles, motorcycles, boats,
watercraft, aircraft, and other vehicles Yekk owns or which Yekk has owned since January 1,
2014.
44. Documents which reflect an~' Hen or other encumbrance on any property Yekk owns that
is responsive to the foregoing request.
45. Documents which reflect real property Yekk owns or in which Yekk has an ownership or
leasehold interest.
46. Dccuments which reflect an:; mortgr,ge, lien or other encumbrance on any rea! property
Yekk owns or in wh!ch Yekk has an ownership or leasehold interest.
47. Do~uments which reflect an:' interest Yekk has in any oil and gas lease.
48. Ds ;uments which reflect an/ Hen o;_· other encumbrance on any interest Yekk has in any
oil and gas !ease.
329
50. Documents which reflect any lien cr other encumbrance on any patent, copyright, or
other intell(;ctual property asset Yekk owns or in which Y ekk has an ownership interest.
51. Do0uments which reflect money owed to Y ekk by any person or entity.
52. Documents which reflect any other asset Y ekk owns which have not been produced in
response to one of the foregoing paragraphs i:1 this request.
53. Documents which reflect the transfe:;- or conveyance by Yekk to any person or entity of
any asset (whether real property or personal property) valued at more than $1,000.00 during the
last three years. This includes, but is not limited to, the transfer or conveyance of any business
interest, stock, bond, certificate of deposit, annuity, automobile, boat, real property, lease, patent
and copyright.
54. Documents which reflect any claim, cause of action or lawsuit against Yekk.
55. Documents which reflect any debt owed by Yekk to any person or entity.
56. Documents which reflect any unpaid :ax owed by Yekk to any taxing authority.
57. Do~uments which reflect any other 'iability Yekk has which have not been 1xoduced in
response~~ one ofthe foregoing paragraphs:] this request.
60. Do~uments which reflect all ;Jersons or entities with an ownership interest in Yekk since
January l, 2014.
61. D::>.:-uments reflecting the identities of Yekk's officers and employees who are
knowledgeable regarding Yekk's assets and liabilities .
63. Documents which reflect th~ identit; of persons who have audited Yekk or who have
performed book keeping or other financial services for Yekk.
64. Documents filed by Y ekk wi':h the Internal Revenue Service or any other taxing authority
during the last five years concerning earning.: and withholdings.
65. Do:;uments that refer in any way, ditectly or indirectly, to any and all persons or entities
who have c:Jpraised any real or personal pro;_ erty for Y ekk since January 1, 2014.
330
67. Documents that refer in any way, directly or indirectly, to any filing in bankruptcy by
Yekk or any assignment by Yekk for the benefit of creditors.
68. Documents that refer in any way, directly or indirectly, to any and all business in which
Yekk is a partner or principal owner.
69. D:Jcuments reflecting any transactions Yekk has had with any corporate affiliate or
related part:; since January I, 2014.
70. All income and expense statements, I"rofit and loss statements, balance sheets, net worth
statements, and other financial statements reflecting or related to Pejman or Kamran Dargahi's
cun·ent net worth.
71. Pejman and Kamran Dargahi's federal income tax returns and any other tax returns, with
all attachments, Pejman and Kamran Dargahi have prepared during the last three years.
72. Documents which reflect Pejman or Kmnran Dargahi's ownership in any business since
January 1, 2014.
73. Documents which reflect checking accounts, savings accounts, and other monies or cash
on deposit Pejman or Kamran Dargahi has had with any financial institution, bank, or credit
union, since January 1, 2014.
74. Do:::uments which reflect stocks, bonds, mutual funds, and/or exchange~traded funds
Pejman or Xamran Dargahi has owned since January 1, 2014.
75. Dor;uments which reflect ce~tificates of deposit Pejman or Kamran Dargahi has owned
since Januay 1, 2014.
76. Documents which reflect annuities aild annuity contracts Pejman or Kamran Dargahi has
ovmed since January 1, 2014.
77. A copy of any insurance pollcy for which coverage may be available to satisfy any award
against Pejman or Kamran Dargahi ~n this mr.tter.
78. All Documents referring to any assets held in a trust for which Pejman or Kamran
Dargahi is or was a custodian, trustee, grantor, or beneficiary.
79. All Documents referring to any assets held in trust in which Pejman or Kamran Dargahi
has claimed or has had an interest.
80. Documents which reflect automobiles, trucks, recreational vehicles, motorcycles, l::oats,
watercraft and other vehicles Pejman or K?.mran Dargahi owns or which Pejman or Kmnran
Dargahi has owned since January 1, 2014.
I LAINTIFFS' FIRST REQUEST :<OR PRODUCTION OF DOCUMENTS TO ALL DEFENDANTS
PAGE90F 11
331
82. Documents which reflect airplanes or other aircraft Pejman or Kamran Dargahi owns or
in which Pejman or Kamran Dargahi has an ownership interest.
83. Documents which reflect any lien or other encumbrance on any property Pejman or
Kamran Dargahi owns that is responsive to the foregoing request.
84. Documents which reflect real property Pejman or Kamran Dargahi owns or in which
Pejman or Kamran Dargahi has an ownership or leasehold interest.
85. Documents which reflect any mortgage, lien or other encumbrance on any real property
Pejman or Kamran Dargahi owns o1· in which Pejman or Kamran Dargahi has an ownership or
leasehold interest.
86. Documents which reflect any interest Pejman or Kamran Dargahi has in any oil and gas
lease.
87. Documents v.rhich reflect any lien Jr other encumbrance on any interest :>cjman or
Kamran Dargahi has in any oil and gas lease.
88. Do-;uments which reflect any pate:1t~ copyright, or other intellectual property asset
Pejma~1 or Kmnran L'argahi owns :r in w:.~ch Pejman or Kamran Dargahi has an ownershi!J
interest.
89. Do:uments which reflect any lien c· other encumbrance on any patent, copyright, or
other inte[ ~ctual property asset Pejman or Kamran Dargahi owns or in which Pejman or Kamran
Dargahi has an ownership interest.
90. Dor::uments which reflect m:mey ow~d to Pejman or Kamran Dargahi by any person or
entity.
9 J • Documents which reflect any other asset Pejman or Kamran Dargahi owns which have
not been produced in response to on.e of the foregoing paragraphs in this request.
92. Do :uments which reflect th<; transfer or conveyance by Pejman or Ka:nran Dargahi to
any person or entity of any asset (whether real property or personal property) valued at more than
$1,000.00 during the last three years. This includes, but is not limited to, the ~ransfer or
conveyance of any business interm:t, stock, bond, certificate of deposit, annuity, automobile,
boat, real property, h::ase, patent and copyrig~1t.
93. I?osuments which reflect any claim, (:ause of action or lawsuit against Pejman or Karman
Dargahi.
94. Documents which reflect any debt owed by Pejman or Kamran Dargahi to any person or
entity.
332
96. Doeuments which reflect any other Eability Pejman or Kamran Dargahi has vrhich have
not been pr?duced in response to one of the foregoing paragraphs in this request. -
97. Documents which reflect th~ identit'; of persons who have performed book keeping or
other finandal services for Pejman or Kamran Dargahi.
98. Dosuments that refer in any way, directly or indirectly, to any and all persons or entities
who have r.ppraised any real or personal pro:,Jerty for Pejman or Kamran Dargahi since January
1,2014.
99. Documents that constitute or refer in any way, directly or indirectly, to any appraisal of
any real or personal property prepared for Pejman or Kamran Dargahi since January 1, 2014 or
that otherwise reflect the value of any real or personal property in which Pejman or Kamran
Dargahi has an interest.
100. Documents that refer in any way, directly or indirectly, to any filing in bankruptcy
by Pejman or Kamra11 Dargahi or any assignment by Pejman or Kamran Dargahi for the benefit
of creditors.
iOl. Docu~nents that refer in any way, directly or indirectly, to any and all business in
which Pejman or Kamran Dargahi is a partner or principal owner.
333
COME NOW Plaintiffs Dhlraj Handa and Ritu Handa ("Plaintiffs") and file this their
Motion to Compel Discovery Responses and Production of Documents from Defendants Pejman
Dargahi, Kamran Dargahi, and Yekk Construction Services, LLC, d/b/a Lakeway Custom
Homes and Renovation ("Defendants") and would respectfully show the Court as follows:
(included in Plaintiffs' Original Petition), and on June 17, 2016, Plaintiffs served on Defendants
their First Request for Production of Documents (attached hereto as Exhibit A) (collectively, the
"Discovery Requests").
Defendants' responses to the Dh;overy Requests were due under the Texas Rules of
Civil Procedure on June 17,2016 and July 17, 2016. Defendants have failed to respond to the
2016, email (attached hereto as Exhibit B), Plaintiffs advised Defendants that if responses and
documents were not produced on or before August 5, 2016, Plaintiffs would have to file a motion
334
respectfully request that the Court compel Defendants to respond to Plaintiffs' Discovery
Requests and produce all documents responsive to Plaintiffs' First Request for Production.
Because Plaintiffs should not have to file and have a hearing on a motion to compel
Defendants to comply with basic discovery obligations under the Texas Rules, Plaintiffs ask this
Court to award Plaintiffs their reasonable expenses, including attorneys' fees, incurred in
obtaining 6e order to compel pursuant to Rule 215.1(d) ofthe Texas Rules of Civil Procedure.
In the ever:.~ that, after the filing of this motion but prior to hearing, Defendants elect to respond
in accorda~ce with Plaintiffs' reque~ts, Plaintiffs nonetheless ask this Court, in its discretion, to
(i) issue an order compelling Defen~iints, wit3in seven days of the order, to produce responses to
the Discovery Requests and produr:') all documents responsive to Plaintiffs' First Request for
Production; (ii) award Plaintiffs the:r reasonable expenses, including fees, incurred in obtaining
the order; and (iii) grant Plaintiffs ~::.uch other and further relief, at law or in equity, to which it
Respectfully submitted,
335
CERTIFICATE OF CONFERENCE
Pursuant to Rule 191.2 of the Texas Rules of Civil Procedure, Plaintiffs hereby certify
that they have made a reasonable effort to resolve the discovery dispute with Defendants without
the neces3i~y of court intervention, bt such efforts have been unsuccessful. Plaintiffs' counsel
conferred via email with Defendants' counsel on August 1, 2016.
CETITIFICATE OF SERVICE
The undersigned certifies thP': a true end correct copy of the foregoing has been- served by
electronically via the e-filing system on cov~1sel of record as listed below on this the 8th day of
Augu:.;t, 2C16:
Kemp Gorthey
The Gorthey Law Firm
604 W. 12th St.
Austin TX 78701
!<emp@gortheylaw.com
336
On this day carne to be her_::d Plaintiffs' Motion to Compel Discovery Responses and
Productior: of Documents (the "Motion") in the above styled and numbered cause. After
considering the Motion, the evidenc":, the pleadings, and the arguments of counsel, the court is of
Construction Services, LLC, d/b/a Lakeway Custom Homes and Renovation, within no more
than 7 dayr. from the date of this o~·der, (i) f.erve responses to Plaintiffs' Request for Disclosure
and Plainti;:Ts' First Request for Production of Documents and (ii) produce all documents in their
possession, custody, or control that are responsive to Plaintiffs' First Request for Production of
Documents.
It is further ORDERED tl:at Plahtiffs have and recover their reasonable expenses
PRESIDING JUDGE
337
TO: Plaintiffs by and through their counsel of record, David A. King, Graves Dougherty Hearon
& Moody, 401 Congress Avenue, Suite 2200, Austin, Texas 78701-3790
Defendants, Pejman Dargahi, Kamran Dargahi, and Yekk Construction Services, LLC d/b/a
Lakeway Custom Homes and Renovation, respond to Plaintiffs' First Request for Production of
Documents as follows:
1. Defendants object to the Instructions and Definitions to the extent they purport to
impose any obligation not required under, or to require Defendants to provide discovery of matters
beyond the scope of discovery under, Rules 192, 193, 195, 196 and 197, Tex. R. Civ. P., or which
are subject to the attorney-client privilege, the work product privilege, or any other privilege,
3. Whenever Defendants indicate they will produce documents, such response means
that they will produce for inspection and copying at their counsel's offices responsive documents to
the extent in the possession, custody or control of Defendants, subject to all objections, and to the
extent not privileged or exempt from discovery. To the extent not produced with this response,
documents will be made available for inspection at a mutually agreeable time at the offices of
338
Defendants will make the documents available to the third party copy service for copying and
Respectfully submitted,
CERTIFICATE OF SERVICE
By my signature above 1 hereby certify that a true and correct copy of the foregoing
Defendants' Response to Plaintiffs' First Request for Production of Documents was forwarded on
this 11th day of August, 2016, to Plaintiffs' counsel as follows:
DARGAHJ and YEKK RESPONSE TO 1ST REQUEST FOR PRODUCTION OF DOCVMENTS/ch Page2
339
Defendants respond to Plaintiffs' Request for Production with the following paragraphs
being numbered to correspond to the numbered paragraphs ofthe Requests:
Request for Production No. 1: Your file on the construction of the house located at 228 Sanostee
Cove, Travis County, Texas (the "House").
Request for Production No.2: Documents regarding the House or the construction of the House,
including but not limited to communications and correspondence exchanged between You and any
other Defendant, You and Plaintiff.<>, or You and any subcontractors or other individuals or entities
involved in the construction ofthe House.
Request for Production No. 3: Documents regarding the Residential Construction Contract (the
"Contract") entered on or around April4, 2014, including but not limited to the Contract, any drafts
of the Contract, any amendments to the Contract, and any documents or communications relating to
the negotiation, execution, or perfom1ance of any of the terms of the Contract.
Request for Production No. 4: Documents, including bank statements, invoices, and receipts,
reflecting the expenditure, transfer, or disposition of any funds paid by Plaintiffs or Plaintiffs'
construction lender, Regions Bank, to You. This request includes, but is not limited to documents
reflecting the expenditure of such funds for purposes other than constructing the House, including
(i) other construction projects; (ii) advertising; (iii) web design; (iv) work done on Pejman Dargahi's
personal house; (v) car purchases; (vi) real estate purchases; (vii) attorney's fees or other court costs;
(viii) travel expenses; or (ix) any other personal expenses.
Request for Production No. 5: Documents regarding the funding for the construction of the House,
including but not limited to communications and correspondence exchanged between You and any
other Defendant, You and Plaintiffs, You and Regions Bank, or You and any subcontractors or
other individuals or entities involved in the construction of the House.
Request for Production No. 6: Documents reflecting or describing any work You, your
subcontractors, or any other individual or entity performed in connection with the Contract or in
connection with the constmction of the House.
DARGAHI and YEKK RESPONSE TO 1ST REQUEST FOR PRODUCTION OF DOCUMENTSfch Page3
340
Reguest for Production No.8: Documents reflecting any amounts paid by You to any
subcontractors or other individual or entity for work perfonned in connection with the Contract or
in connection with the construction of the House.
Reguest for Production No. 9: Documents reflecting or relating to any demands, lawsuits, or
settlements between You and any subcontractors or other individual or entity for work performed in
connection with the Contract or in connection with the construction of the House.
Reguest for Production No. 10: Documents reflecting Your estimates or projections of the
cost of completing construction of the House on or after November 13, 2015.
Request for Production No. 11: Records of materials used in Your work on the House.
Reguest for Production No. 12: All quotes, estimates, and pay applications or billing records
for your work on the Bouse.
.Request for Production No. 13: All videos and images You have of the House or any parts of
the House.
Reguest for Production No. 14: All plans, sketches or drawings of the House.
Reguest for Production No. 15: Documents reflecting Your scope of work on the House.
Reguest for Production No. 16: Change orders, or other documents showing a change in the
scope or nature of Your work on the House.
DARGAH! and YEKK RESPONSE TO 1ST REQUEST FOR PRODUCTION OF DOCUMENTS/ch Page4
341
Request for Production No. 17: Documents reflecting credits owed to Plaintiffs in connection
with Your work on the House.
Request for Production No. 18: Contracts between You and any subcontractor or other
individual or entity who perfmmed work on the House.
Request for Production No. 19: Documents reflecting the scope of work of any subcontractor
or other individual or entity who performed work on the House.
Request for Production No. 20: Agreements of any kind, including any warranties, between
You and any subcontractor or other individual or entity who perfonned work on the House.
Request for Production No. 21: Insurance policies or proof of insurance You received from
any subcontractor or other individual or entity who performed work on the House.
Request for Production No. 22: Documents relating to any leaking or leak points in the
House.
Request for Production No. 23: Documents relating to Your diagnoses and/or repairs of any
moisture-related problems in the House.
Request for Production No. 24: Documents relating to any construction defects, problems, or
damage described or alleged in the inspection report attached as Exhibit B to Plaintiffs' Petition.
Request for Production No. 25: Documents relating to Your diagnoses and/or repairs of any
defects, problems, or damage described or alleged in the inspection report attached as Exhibit B to
Plaintiffs' Petition.
DARGAHl and YEKK RESPONSE TO JST REQUEST FOR PRODUCTJON OF DOCUMENTS/ch PageS
342
Request for Production No. 2<5: A copy of any insurance policy for which coverage may be
available to satisfy any award against You in this matter.
Reguest for Production No. 27: All petitions and complaints (original and amended) filed in
any lawsuits in the past five years to which You are, or have been, a pmiy in any capacity.
Reguest for Production No. 28: All judgments that have been rendered in the past five years
in any lawsuit in which You are, or have been, a party in any capacity.
Reguest for Production No. 29: Documents concerning any of the matters which are the
subject of Plaintiffs' Petition.
Request for Production No. 30: Non-privileged documents and communications relating to
the formation and governance of Yekk Construction Services, LLC, d/b/a Lakeway Custom Homes
and Renovation ("Yekk"). This request includes, but is not limited to, organizational documents,
operating agreements and company agreements.
Reguest for Production No. 31: Documents reflecting loans, capitalization, or any other
funding for Yekk.
Reguest for Production No. 32: Yekk's general ledger(s) from January 1, 2014 through the
present.
Reguest for Production No. 33: Minutes, certificates of formation, certificates of operation
and regulations for Yekk.
Request for Production No. 34: Documents reflecting members, owners, partners, managers,
officers, directors, or employees ofYekk.
DARGAHI and YEKK RESPONSE TO 1ST REQUEST FOR PRODUCTION OF DOCUMENTS/ch Page6
343
Request for Production No. 35: All income and expense statements, profit and loss
statements, balance sheets, net worth statements, and other financial statements reflecting or related
to Yekk's current net worth.
Request for Production No. 36: Yekk1s federal income tax returns and any other tax returns,
with all attachments, Yekk has prepared during the last three years.
Request for Production No. 3(: Documents which reflect Yekk's ownership in any business
since January 1, 2014.
Request for Production No. 38: Bank statements and records for Yekk from January 1, 2014
through the present, including all documents which reflect checking accounts, savings accounts,
and other monies or cash on deposit Yekk has had with any financial institution, bank, or credit
union, since January 1, 2014.
Request for Production No. 39: Documents reflecting monies debited/credited to and from
Yekk since January 1, 2014.
Request for Production No. 40: Documents which reflect stocks, bonds, mutual funds, and/or
exchange-traded funds Yekk has owned since January 1, 2014.
Request for Production No. 41: Documents which reflect certificates of deposit Yekk has
owned since January 1, 2014.
Request for Production No. 42: Documents which reflect annuities and annuity contracts
Yekk has owned since January 1, 2014.
Request for Production No. 43: Documents which reflect automobiles, trucks, recreational
vehicles, motorcycles, boats, watercraft, aircraft, and other vehicles Yekk owns or which Yekk has
DARGAHI and YEKK RESPONSE TO lST REQUEST FOR PRODUCTION OF DOCUMENTS/ch Page7
344
Request for Production No. 44: Documents which reflect any lien or other encumbrance on
any property Yekk owns that is responsive to the foregoing request.
Request for Production No. 45: Documents which reflect real property Yekk owns or in
which Yekk has an ownership or leasehold interest.
Request for Production No. 46: Documents which reflect any mortgage, lien or other
encumbrance on any real property Yekk owns or in which Yekk has an ownership or leasehold
interest.
Request for Production No. 47: Documents which ret1ect any interest Yekk has in any oil and
gas lease.
Request for Production No. 48: Documents which reflect any lien or other encumbrance on
any interest Yekk has in any oil and gas lease.
Request for Production No. 49: Documents which reflect any patent, copyright, or other
intellectual property asset Yekk owns or in which Yekk has an ownership interest.
Request for Production No. 50: Documents which reflect any lien or other encumbrance on
any patent, copyright, or other intellectual property asset Yekk owns or in which Yekk has an
ownership interest.
Request for Production No. 51: Documents which reflect money owed to Yekk by any
person or entity.
Request for Production No. 52: Documents which reflect any other asset Yekk owns which
DARGAHI and YEKK RESPONSE TO 1ST REQUEST FOR PRODUCTION OF DOCUMENTS!ch PageS
345
Request for Production No. 53: Documents which reflect the transfer or conveyance by Yekk
to any person or entity of any asset (whether real property or personal property) valued at more than
$1,000.00 during the last three years. This includes, but is not limited to, the transfer or conveyance
of any business interest, stock, bond, certificate of deposit, annuity, automobile, boat, real property,
lease, patent and copyright.
Request for Production No. 54: Documents which reflect any claim, cause of action or
lawsuit against Yekk.
Request for Production No. 55: Documents which ref1ect any debt owed by Yekk to any
person or entity.
Request for Production No. 56: Documents which ref1ect any unpaid tax owed by Yekk to
any taxing authority.
Request for Production No. 57: Documents which reflect any other liability Yekk has which
have not been produced in response to one of the foregoing paragraphs in this request.
Request for Production No. 58: Documents which reflect Yekk's value, profitability or
expected revenues.
Request for Production No. 59: Documents which ref1ect assets in Yekk's name.
Re_quest for Production No. 60: Documents which reflect all persons or entities with an
ownership interest in Yekk since January 1, 2014.
Request for Production No. 61: Documents reflecting the identities of Yekk's officers and
DARGAHI and YEKK RESPONSE TO 1ST REQUEST FOR PRODUCTION OF DOCUMENTS/ch Page9
346
Request for Production No. 62: Documents which reflect salaries, distributions, bonuses,
commissions, payment of dividends or transfers of any kind by Yekk: to any person or entity since
January 1, 2014.
Request for Production No. 63: Documents which reflect the identity of persons who have
audited Yekk or who have performed book keeping or other financial services for Yekk.
Request for Production No. 64: Documents filed by Yekk with the Internal Revenue Service
or any other taxing authority during the last five years concerning earnings and withholdings.
Request for Production No. 65: Documents that refer in any way, directly or indirectly, to any
and all persons or entities who have appraised any real or personal property for Yekk since January
1, 2014.
Request for Production No. 66: Documents that constitute or refer in any way, directly or
indirectly, to any appraisal of any real or personal property prepared for Yekk since January 1, 2014
or that otherwise reflect the value of any real or personal property in which Yekk has an interest.
Request for Production No. 67: Documents that refer in any way, directly or indirectly, to any
filing in bankruptcy by Yekk: or any assignment by Yekk: for the benefit of creditors.
Reguest for Production No. 68: Documents that refer in any way, directly or indirectly, to any
and all business in which Yekk is a partner or principal owner.
Request tor Production No. 69: Documents reflecting any transactions Yekk: has had with
any corporate affiliate or related party since January 1, 2014.
DARGAHI and YEKK RESPONSE TO !ST REQUEST FOR PRODUCTION OF DOCUMENTS/ch PagelO
347
RI<:SPONSE: Objection: Pejman and Kamran Dargahi will produce a financial statement showing
net worth to the extent required under law as a result of Plaintiffs' claims for
punitive damages. Otherwise, these matters are confidential, irrelevant, and
constitute impermissive post-judgment discovery.
Request for Production No. 71: Pejman and Kamran Dargahi's federal income tax returns and
any other tax returns, with all attachments, Pejman and Kamran Dargahi have prepared during the
last three years.
Request for Production No. 72: Documents which reflect Pejman or Kamran Dargahi's
ownership in any business since January 1, 2014.
Request for Production No. 73: Documents which reflect checking accounts, savings
accounts, and other monies or cash on deposit Pejman or Katnran Dargahi has had with any
financial institution, bank, or credit union, since January 1, 2014.
Request for Production No. 74: Documents which reflect stocks, bonds, mutual funds, and/or
exchange-traded funds Pejman or Kamran Dargahi has owned since January 1, 2014.
Reguest for Production No. 75: Documents which reflect certificates of deposit Pejman or
Kamran Dargahi has owned since January 1, 2014.
Request for Production No. 76: Documents which reflect annuities and annuity contracts
Pejman or Kamran Dargahi has owned since January 1, 2014.
Request for Production No. 77: A copy of any insurance policy for which coverage may be
available to satisfy any award against Pejman or Kamran Dargahi in this matter.
DARGAHI and YEKK RESPONSE TO lST REQUEST FOR PRODUCTION OF DOCUMENTS/ell Page 11
348
Request for Production No. 79: All Documents referring to any assets held in trust in which
Pejman or Kamran Dargahi has claimed or has had an interest
Request for Production No. 80: Documents which reflect automobiles, trucks, recreational
vehicles, motorcycles, boats, watercraft and other vehicles Pejman or Kamran Dargahi owns or
which Pejman or Kamran Dargahi has owned since January 1, 2014.
Request for Production No. 81: Documents which reflect any lien or other encumbrance on
any property Pejman or Kamran Dargahi owns that is responsive to the foregoing request.
Request for Productiqn No. 82: Documents which reflect airplanes or other aircraft Pejman
or Kamran Dargahi owns or in which Pejman or Kamran Dargahi has an ownership interest.
Request for Production No. 83: Documents which reflect any lien or other encumbrance on
any property Pejman or Kamn~n Dargahi owns that is responsive to the foregoing request.
Request for Production No. 84: Documents which reflect real property Pejman or Kamran
Dargahi owns or in which Pejman or Kamran Dargahi has an ownership or leasehold interest.
Request for Production No. 85: Documents which reflect any mortgage, lien or other
encumbrance on any real property Pejman or Kamran Dargahi owns or in which Pejman or Kamran
Dargahi has an ownership or leasehold interest.
Request for Production No. 86: Documents which reflect any interest Pejman or Kamran
Dargahi has in any oil and gas lease.
DARGAHl and YEKK RESPONSE TO 1ST REQUEST FOR PRODUCTION OF DOCUMENTS/ch Page 12
349
Reguest for Production No. 88: Documents which reflect any patent, copyright, or other
intellectual propetiy asset Pejman or Kamran Dargahi owns or in which Pejman or Kamran Dargahi
has an ownership interest.
Reguest for Production No. 89: Documents which reflect any lien or other encumbrance on
any patent, copyright, or other intellectual property asset Pejman or Kamran Dargahi owns or in
which Pejman or Kamran Dargahi has an ownership interest.
Request for Production No. 90: Documents which reflect money owed to Pejman or Kamran
Dargahi by any person or entity.
Reguest for Production No. 91: Documents which reflect any other asset Pejman or Kamran
Dargahi owns which have not been produced in response to one of the foregoing paragraphs in this
request.
Reguest for Production No. 92: Documents which reflect the transfer or conveyance by
Pejman or Kamran Dargahi to any person or entity of any asset (whether real property or personal
property) valued at more than $1,000.00 during the last three years. This includes, but is not limited
to, the transfer or conveyance of any business interest, stock, bond, certificate of deposit, annuity,
automobile, boat, real property, lease, patent and copyright.
Reguest for Production No. 93: Documents which reflect any claim, cause of action or
lawsuit against Pejman or Kamran Dargahi.
Request for Production No. 94: Documents which reflect any debt owed by Pejman or
Kamran Dargahi to any person or entity.
Reguest for Production No. 95: Documents which ref1ect any unpaid tax owed by Pejman or
DARGA!-!! and YEKK RESPONSE TO 1ST REQUEST FOR PRODUCTION OF DOCUMENTS/ch Page 13
350
Request for Production No. 96: Documents which reflect any other liability Pejmm1 or
Kamran Dargahi has which have not been produced in response to one of the foregoing paragraphs
in this request.
Request for Production No. 97: Documents which reflect the identity of persons who have
performed book keeping or other financial services for Pejman or Kamran Dargahi.
Request for Production No. 98: Documents that refer in any way, directly or indirectly, to any
and all persons or entities who have appraised any real or personal property for Pejman or Kamran
Dargahi since January 1, 2014.
.Request for Production No. 99: Documents that constitute or refer in any way, directly or
indirectly, to any appraisal of any real or personal property prepared for Pejman or Kamran Dargahi
since January 1, 2014 or that otherwise reflect the value of any real or personal property in which
Pejman or Kamran Dargahi has an interest.
Request for Production No. 100: Documents that refer in any way, directly or indirectly, to any
filing in bankruptcy by Pejman or Kamran Dargahi or any assignment by Pejman or Kmman
Dargahi for the benefit of creditors.
Request for Production No. 101: Documents that refer in any way, directly or indirectly, to any
and aU business in which Pejman or Kamran Dargahi is a partner or principal owner.
DARGA!-!! and YEKK RESPONSE TO 1ST REQUEST FOR PRODUCTION OF DOCUMENTS/ch Page 14
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Via Email
Mr. Kemp W. Gorthey
The Gorthey Law Firm
604 West lih Street
Austin, Texas 78701
kemp@gortheylaw.com
Dear Kemp:
I write to confirm our agreement regarding Plaintiffs' Motion to Compel against Defendants.
Without waiving any of their requests for production and without withdrawing their Motion to
Compel, Plaintiffs agree that they will pull down the August 15, 2016 hearing on their Motion to
Compel based on Defendants' agreement to produce on or before August 24, 2016 (i) all
documents responsive to Request Nos. 1 through 69 of Plaintiffs' First Request for Production
and (ii) documents sufficiently showing each ofPejman Dargahi's and Kamran Dargahi's current
net worth.
Please confirm by countersignature below that you agree to the terms specified above.
Kind Regards,
David A. King
AGREED:
' /'1 ..
IUz./i11 D GLwl~wA/}
Kemp W~hey --rl
Counsel for Defendants
352
COME NOW Plaintiffs Dhiraj Handa and Ritu Handa, and file this First Amended
Petition complaining ofDefendants Pejman Dargahi, Kamran Dargahi, and Yekk Construction
Services, LLC, d/b/a Lakeway Custom Homes and Renovation, and for cause of action would
show as follows:
I.
BACKGROUND AND OVERVIEW
I. This lawsuit seeks money damages based on the Defendants' wrongful and
Plaintiffs have paid 95% of the Contract Price, the Defendants have improperly refused to move
forward with the work. Instead, the Defendants are holding the project hostage by insisting upon
payment of additional amounts that are not owed and that exceed the total Contract Price.
Further, Defendants have failed to pay subcontractors, despite falsely representing to Plaintiffs
that all subcontractors had been paid. Defendants have fraudulently diverted trust fund payments
made by Plaintiffs to themselves and to other purposes, leaving Plaintiffs exposed to the risk of
353
work that the Defendants are refusing to perform. As for the work Defendants completed before
abandoning the project, Defendants did not perform such work in a good and workmanlike
manner. The resulting construction defects caused physical property damage in the form of
n.
DISCOVERY PLAN
2. Discovery in this action should proceed under Level 3 pursuant to Rule 190.4 of
III.
PARTIES
3. Plaintiffs Dhiraj Handa and Ritu Handa are residents of Travis County, Texas.
4. Defendant Pejman Dargahi, a resident of Travis County, Texas, has appeared and
answered herein.
6. Defendant Yekk Construction Services, LLC, d/b/a Lakeway Custom Homes and
Renovation, a Texas limited liability company, has appeared and answered herein.
IV.
JURISDICTION AND VENUE
7. This Court has subject rnatter jurisdiction over Plaintiffs' claims, and Plaintiffs'
claims are within the jurisdictional limits of this Court. Pursuant to Tex. R. Civ. P. 47(c)(4),
Plaintiffs seek monetary relief over $200,000 but not more than $1,000,000.
354
& Rem. Code. Each Defendant's residence or principal office is in Travis County and all or a
substantial part of the events giving rise to Plaintiffs' claims occurred in Travis County.
v.
FACTS
Contract (the "Contract," attached hereto as Exhibit A) under which "Lakeway Custom Homes
and Renovation" agreed to build a house on a piece of unimproved land located at 228 Sanostee
Cove, Travis County, Texas, for a fixed contract price of$1 ,460,000.00 (the "Project"). The
Contract was executed on or around April 4, 2014, by Defendant Pejman Dargahi ("Dargahi").
10. The Contract did not disclose that Lakeway Custom Homes and Renovation was a
d/b/a for Defendant Yekk Construction Services, LLC ("Yekk"), nor did the Contract disclose
that Dargahi was executing the Contract as the agent ofYekk or any other entity. In a November
19,2015 email, Dargahi misrepresented to Plaintiffs that the Contract was with "Lakeway
Custom Homes LLC" (a non-existent entity), and Dargahi did not indicate that he signed the
Contract on behalf of Yekk. Dargahi has also indicated that he and his brother, Kamran Dargahi,
are "partners" in the non-existent Lakeway Custom 11omes LLC. Although not disclosed in the
Contract, upon information and belief, Dargahi is the sole member and director of Yekk.
355
12. In accordance with Article V, and as reflected in the Draw Schedule prepared by
the construction lender (Regions Bank), Plaintiffs have made progress payments totaling
$1,387,750 ($660,000 ofwhich was paid directly by Plaintiffs and $727,750 ofwhich was paid
by the construction lender). This is 95% of the Contract price. However, Dargahi has completed
less than 90% of the scheduled work at a value of $1,314,000. In other words, Dargahi has been
paid for more than he has completed, and has been overfunded by at least $73,750.
13. Dargahi's last request tor a payment, in the amount of $90,520, was made in
November 2015. At that time, Dargahi was already overfunded by $29,950. Regions Bank
approved a progress payment of $43,800 on Friday, November 13, 2015, noting that this funding
was an "exception to policy" and was "the maximum amount we could get approval to fund per
management." Regions Bank stressed that "there will be no further draws from the loan until the
project is completed."
14. However, the following Monday, November 16, Dargahi disclosed to Plaintiffs
that he was still "$150,000 +/- short to finish our contract." This despite the fact that, with the
$43,800 payment made the previous Friday, Dargahi was already overfunded by $73,750.
Dargahi also declared that "no more [constmction] activities could be performed unless we are
financially comfortable." At or around this same time, Dargahi abandoned the Project, leaving it
exposed to the elements, vandalism, and theft. Since that time, Dargahi has ceased all
construction work on the Project despite repeated requests from Plaintiffs to resume work.
15. In the weeks following Dargahi's refusal to complete his work on the Project in
accordance with the Contract, Plaintiffs learned that according to Dargahi's own estimate, it
356
repeated demands, Dargahi has refused to complete the outstanding work on the Project in
16. Plaintiffs also discovered that Dargahi owed more than $120,000 to at least
seventeen subcontractors hired by Dargahi to work on the Project, notwithstanding the fact that
Dargahi repeatedly represented to Plaintiffs prior to obtaining the last draw on November 13,
2015 that all subcontractors had been paid. With respect to a subcontractor responsible for
constructing a well for the Project, Dargahi had also obtained Plaintiffs' approval of a $20,000
change order after Dargahi falsely represented that the subcontractor had already been paid for
such work. Numerous subcontractors have filed liens on the Project or provided notice of intent
to tile liens. Despite Plaintiffs' repeated demands, Dargahi has refused to pay the outstanding
debts owed to the subcontractors, and Dargahi has not discharged any subcontractors' liens.
17. Further, after Dargahi's cessation of work, Plaintiffs discovered that, all along,
Dargahi and his brother, Kamran, had been systematically diverting substantial sums of money
from Plaintiffs' progress payments to other expenses unrelated to the Project. Specifically,
according to Defendants' own bank statements and upon information and belief, the Dargahis
used Plaintiffs' money to pay for the following: (i) other construction projects (as confirmed by
affidavits obtained from Defendants' subcontractors, who worked on multiple projects for
Defendants, but who were paid only out of Plaintiff<;' funds); (ii) advertising; (iii) web design;
(iv) plumbing work done on Pajeman Dargahi's personal house; (v) purchasing a car; (vi)
purchasing real estate; (vii) attorney's fees in connection with multiple disputes; and (viii)
personal expenses, including out-of-state trips, charged to an American Express credit card. As
Defendants' bank statements indicate, such payments were made directly from the bank account
357
18. Remarkably, the Dargahis do not dispute that they systematically diverted and
spent such funds as if they had been deposited in the Dargahis' own personal bank account.
Instead, now that their misappropriation of funds has been uncovered, the Dargahis appear to
claim that they were entitled to divert Plaintiffs' payments based on the contention that they
expected to make a profit on the Project, and they therefore should have been able to deduct their
"expected" profits from Plaintiffs' progress payments before the Project was actually completed.
Of course, this baffling contention, which was only revealed after Plaintiffs' uncovered the
diversions, is contrary to Chapter 162 of the Texas Property Code and ignores the plain language
of the Contract. Rather than promising Dargahi any type of profit, the Contract expressly
extracted from Plaintiffs before the Dargahis announced in November 2015 that they were
halting all work on the Project unless and until Plaintiffs personally paid them well in excess of
what the construction lender could release and well in excess of what Mr. and Mrs. Handa were
19. Further, Defendants did not perform the construction work they actually
completed (before abandoning the project) in a good and workmanlike manner. The resulting
construction defects caused physical property damage to the Handas' house in the fonn of,
among other things, cracking and other deterioration caused by moisture penetration. This
moisture damage resulted from Defendants' failure to perfom1 work in conformity with
applicable industry standards and applicable standards of care. Specifically, in addition to other
defects and physical property damage described in the inspection report attached hereto as
358
Defendants' failures:
a. Foundation waterproofing and basement leaks: Multiple water leaks are present
and upon information and belief, damage has been done to the concrete
foundation of the house, including but not limited to rusting and/or corrosion of
b. Flat roofs: The flat roofs were built incorrectly, exposing the exterior of the
termination, the courtyard waterfall, fire sprinklers, drywall, attic access, safety
glass, countertops, exterior balconies, the kitchen range and downdraft system,
toilets, interior staircases, and foundation finish are detailed in the Inspection
Report.
20. The Handas gave notice to Defendants on or around February 10, 2016, and
February 12, 2016, specifying in reasonable detail the construction deficiencies. Defendants did
not request to inspect the property, nor did they take any action to correct the non-conforming
VI.
CAUSES OF ACTION
359
contract for the improvement of specific real property in Texas, and are therefore "trust funds"
pursuant to Section 162.001, Tex. Prop. Code. Defendants Pajeman and Kamran Dargahi had
control and direction over Plaintiffs' progress payments for the Project. Plaintiffs are
beneficiaries of such funds pursuant to Section 162.003, and Defendants are trustees of such
progress payments without first fully paying all current or past due obligations Defendants
incurred. Defendants did so intentionally, knowingly, and with intent to defraud. Defendants'
24. Defendants' breaches of fiduciary duties owed to Plaintiffs under Chapter 162
26. Defendants Pajeman and Kamran Dargahi represented to Plaintiffs that their
progress payments and change order payments would be used to pay for the construction of the
Project. However, Defendants never intended to use Plaintifl's' payments solely for the Project,
use. Defendants' false representations induced Plaintiffs to enter the Contract and to make
progress payments and change order payments to Defendants under the Contract.
27. Defendants Pajeman and Kmnran Dargahi also represented to Plaintifl's that they
had fully paid the subcontractors hired to work on the Project knowing that seventeen
360
representations induced Plaintiffs to make progress payments and change order payments to
30. Defendants have wrongfully profited from their breaches offiduciary duty
described above. Plaintiffs seek the imposition of a constructive trust upon all assets, revenues,
and profits that Defendants have received and continue to receive as a result of their wrongful
32. Defendants unjustly received (by taking for themselves) the portion of Plaintiffs'
those benefits by taking undue advantage of Plaintiffs. Defendants are required to make
that belongs to Plaintiffs in equity and good conscience. Plaintiffs are entitled to recover such
money.
361
36. Defendants, as the ones responsible for the construction work, negligently
performed the work and services. Defendants were under a duty to perform at a level of
professional skill and care consistent with industry practice. Defendants failed to do so.
Defendants' negligent conduct includes, without limitation, failing to perform the construction
services in a good and workmanlike manner, failing to supervise and/or direct work using that
skill and attention used by contractors exercising ordinary care, failing to properly inspect work
before covering with subsequent work, and failing to construct the project in accordance with
AI! such negligence, and the resulting construction defects, have caused damage to Plaintiffs and
have caused physical property damage in and to Plaintiffs' house in the form of, among other
things, cracking and other deterioration caused by moisture penetration. Damages include but
are not limited to repair costs, investigative costs and expenses, and damage to the house.
38. Yekk and Plaintiffs are parties to the Contract, and Pejman Dargahi is
individually liable for any breaches ofYekk's obligations under the Contract, as described above
39. Under the Contract, Yekk and Pejman Dargahi are obligated to "provide all labor
and materials for construction" of the Project "according to [the] Contract and the Plans," and
"pay all costs related to the Work." Exhibit A, Sections HI, XIV. Yekk and Pejman Dargahi
have breached these contractual obligations, or to the extent such breaches have not yet occurred,
362
40. Yekk and Pejman Dargahi are further obligated under the Contract to "make
payments to subcontractors or vendors supplying material for" the Project. Exhibit A, Section
XV. Yekk and Pejman Dargahi have breached their contractual obligation by failing to pay at
41. Y ekk and Pejman Dargahi are further obligated to "deliver title to all the
materials, appliances and equipment used in the Work free of all liens, claims, security interests
or encumbrances." Exhibit A, Section XV. Yekk and Pejman Dargahi have breached their
42. Yekk and Pejman Dargahi have also breached their contracts and warranties, and
have not performed to the representations made. This includes, without limitation, failing to
perform the work in a good workmanlike manner as represented and agreed, failing to perform
work and services pursuant to the plans and contract documents, breaching the agreement that all
work, materials, and equipment would comply with applicable warranties, and failing to correct
43. Because ofYekk and Pejman Dargahi's breaches ofthe Contract, Plaintiffs have
vn.
EXEMPLARY DAMAGES
wrongful conduct pursuant to Chapter 41, Tex. Civ. Prac. & Rem. Code, or as otherwise allowed
by law.
363
47. Pursuant to Tex. Civ. Prac. & Rem. Code§ 38.001, or as otherwise allowed by
law, Plaintiffs are entitled to recover reasonable and necessary attorney's fees and costs of court
IX.
CONDITIONS PRECEDENT
48. All conditions precedent have been performed or have occurred, including all
X.
REQUEST FOR DISCLOSURE
49. Plaintiffs' Request for Disclosure was set out in Plaintiffs' Original Petition and
Request for Disclosure, and that Request for Disclosure is not waived and is carried forward
herein.
PRAYER
WHEREFORE, premises considered, Plaintiffs respectfully request that the Court enter
pursuant to Tex. Civ. Prac. & Rem. Code§ 38.00!, or as otherwise allowed by law; and
4. Such other and further relief, at law or in equity, to which Plaintiffs may
364
By: -~~/;.ing _ _ _ _ _ _ _ _ __
G. Douglas Kilday
State Bar No. 00787834
dkilday@gdhm.com
David A. King
State Bar lD No. 24083310
dking@gdhm.com
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing has been served by
electronically via thee-tiling system on counsel of record as listed below on this the 2ih day of
May, 2016:
Kemp Gorthey
The Gorthey Law Firm
604 W. 12th St.
Austin TX 78701
kemp@gortheylaw .com
365
Feb 10,2016
Inspection Report
Please Note: While I carefully inspected the property over the course of several days and
discussed the project with multiple subcontractors involved, my findings cannot be
considered a comprehensive list of all defects or issues. I am merely providing all of the
information that I was able to discover with limited time, at a point in the project where
defects can be hard to easily detect and identifY I am foc:using here on deficiencies and
problems that I see as significant based on my over 20 years in Residential construction
working with several builders, in several cities with multiple home inspectors.
Foundation Waterproofing:
It is quite clear that several areas of the foundation, basement and retaining walls have
failed several times, and continue to leak. I have applied a water test to the inside corner
of intersection of the foundation wall and wood framed wall adjacent to the fountain
twice and it has failed far below the porch pan and waterproofing installed by Precision
roofing. (See Image 1,2,3 below). It is leaking in several spots starting 12" below the
finished tile and stucco and at points further down the wall. There are numerous holes in
the product that was installed, and it was not installed correctly per manufactures
recommendation(in my opinion) or to industry standard in a shingled manner where the
!EXHIBIT 8 I
366
The same material was used on the front of the house on the foundation from north east
of the front entry to retaining waH for the lower basement. This material is not rated for
this application. It is not meant for indefinite exposure to UV light. It is not acceptable
as a finished product, and it was not installed correctly. See Image 4,5 and 6. In image 7
it is clear that material is not integrated into the rest of the waterproofing system on the
house behind the stucco, and also blocks the weep holes integrated in the stucco design to
let water drain away from the structure, as prescribed by code.
This material was also used to water proof the courtyard door landing areas, and the
courtyard drainage area. The material was not integrated with stucco or roof flashings,
door pans, or door flashing, and cannot be finished in an appealing and secure manner,
and is already failing to bond to the substrate. See Image 8
367
368
369
370
371
372
Image 6
373
Image 8:
Bond failure. Also Not applied behindstucco water~proofing system ..
374
375
I sheathing paper
protects wall from
moisture and
extends down to
overlap bottom
flashing
wail
framing~
air gap~
sheathing
fi<:H>hing or moist.
slightly beyond IOtJfHHH!Orl
376
As this is also a finish dependant detail, finished flooring grades should be coordinated
with the stucco crew so the exact location of the weep screed can established so that
clearances are consistent and professional to industry standards. See Images 11 and 12.
377
378
379
The flat roof areas were built incorrectly leaving exposed Radiant Barrier OSB between
the metal roof edge and stucco. OSB is not rated for this application. The material is
already delaminating as it absorbs ambient moisture. This will likely cause the stucco to
crack, and one crack, the only stucco crack I observed on the entire project, has formed.
These areas currently do not meet industry standards and are also aesthetically
unacceptable.
The metal roofing needs to be removed, the roof framing and plywood cut back to the
correct size, and the metal roofs and flashing reinstalled in a manner that is integrated
with stucco and to industry standards . See Images 13 and 14
Image 13
380
This area is not per the plans and appears to have been modified and installed during
construction and is not properly integrated into the overall building design for water~
proofing. There is no flashing where the stucco meets the landings.( Image 15.) There is
no clear path for water to drain below the landings, and it appears to drain into the rock
work, and under the stairs. Additionally the entire under-stairs area has no drainage, and
has created a moisture and rain trap with no planned water egress. I have concerns that
water will back up in the stucco system as the weep holes that are buried in the stone-see
Drawings l -3. l also have concerns that area below the stairs will partially fill with
rainwater creating an unsafe health environment
Code Issues:
Open Risers May not allow a 4" sphere to pass. IRC R311. 7.5 .1
Headroom: Minimum of6'8". IRC R311.7.2
Image 20 is the stonework cladding the staircase. There is no visible footing. Stonework
integrated into the building should have a brick ledge a minimum of 4" above grade to
allow drainage through weep holes and prevent termite intrusion.
Image 21 is another example of stone cladding that is integrated into the building
envelope that extends below finished grade.
381
382
383
Image20
384
385
Image 21
Plumbing:
Plumbing is incomplete currently. House was designed and "roughed in" for
recirculating water heaters. Current units do not have recirculating pumps and with the
long distances from the fixtures to the installed location of the heaters, long lag times for
hot water can be expected. This is unacceptable on this level of home. These heaters
should have recirculation pumps.
Multiple fixtures are not installed.
Hose bibs are not secured to framing, and very susceptible failing and necessitating a
costly repair. The supply pipe is designed to support the hose bib. Hose bibs should
always be properly secured.( Image 22 and 23)
'Floor Drains were set above finished floor height and are not functional. The foundation
needs to be jack hammered and the drains set to the correct height (Image 24 and 25)
Propane Tankless Water Heater installed with inadequate clearance to AC Condensor.
Image 26
Improper drain connection at dishwasher®dishwasher will not slide into finished location.
Concerning use of flexible unions. See Image 26 B
386
Image23
Image 24
387
389
Courtyard drainage pipes may be undersized for the square footage of exposure they are
relied upon to drain. Drains are not terminated properly in the courtyard and incomplete.
Drains are incorrectly terminated on the exterior wall and may allow water to get behind
the stucco and cause significant water damage. Drains are also severely clogged with
construction debris and not designed or rated to used as drains. (Image 27)
Several drain pipes are incompleted, damaged, or incorrectly located. (Image 28)
See comments on Image 29 and 30.
Image 27
image 28
390
391
Several patches need to be complete after waterproofing and repairs are made.
Overall stucco job is exceUents except where it appears site conditions caused issues with
weep screed height. Expansion joint placement is to code, finish looks consistent, no
cracks, properly caulked no additional defects.
All flat stucco surfaces should be capped with a proper metal cap to prevent water
damage and subsequent stucco failure Should be installed by the roofer. See Image 31.
Image 31
392
This is an unacceptable situation. The stucco is not designed as a substrate for a water
feature. Proper water proofing, isolating the stucco system and allowing it to drain would
be needed. Electrical GFCI plug cannot be located here. Water supply is improperly
located. Light location conflicts
See Image 32
Image32
393
Incomplete. Need to be completed by a licensed installer. See image 33. However there
are multiple areas incomplete
394
Drywall texture was not adequately sanded, "punched" and corrected prior to paint
Texture is inconsistent, and unprofessional looking in many areas. The overaH texture is
a hand-troweled look, and as such there should not be large areas of spray texture and
inconsistencies in finish from one surface to the next. Not up to industry standards or the
quality level of this home. See Image 34 and 35
All shower ceilings incomplete. Steam showers and saunas should have a Hardi-backer
substrate, Not drywall. See Image 36
395
Image35
396
All attic access doors must have an insulated and weatherstripped access door that can be
secured. None are in place. Additionally many home inspectors require attic stairs for
access doors greater than 10' from finished floor. The ceilings here are 12'. See image
37 and 38
lmage37
397
Code requires safety glass in bathroom, stair chambers, walkways and near egress doors.
Multiple locations did not have safety glass stamps. These units will need to be replaced
if they are not safety glass.
398
IRC does not allow any electrical outlets including switches near baths and showers. We
have several clear violations of this code. Image 40 as an example
399
The granite countertops were not properly set. They needed to be furred up to standard
height to allow for the install of various appliances. The dishwasher and several fridges
cannot be installed as the countertops were set too low. See Image 41- the dishwasher,
with the legs fully retracted, will not slide into proper position.
Image~!
The elevated balconies are not complete, and were not installed correctly. Proper
flashing should have been installed to receive tile strip to cover the float and tile
substrate. The flashing was not coordinated with the stucco so that the tranisition is
correct. The flashing should also shed water away from the stucco. Porches should be
properly sealed so that leached cement does not stain the stucco and lower porches. See
Images 42 and 43A and B
400
401
402
The kitchen range and downdraft system purchased by the owner were not adequately
planned for. The system expressly requires a 10" pipe to be correctly located to service
the downdraft. The roughed in pipes are only 6" and in the wrong location. Electrical
and gas pipe are in the wrong location and prevent the install of the downdraft unit. The
granite counter top was cut incorrectly to accommodate this system- the rough opening is
too large. The countertop will need to be replaced, the gas and electrical re-routed, and
the cabinets modified. The cabinet next to the stove will need to be modified and
replaced and the stucco wiU have to be repaired after a new, correctly located 10" exhaust
pipe and supply wire are re-routed.
403
404
Interior Staircases
lRC and local code enforcement agencies strictly enforce code on stairways. Risers may
not exceed 7 %". Maximum variance on riser height is 3/8" to prevent tripping hazards.
On this project they vary over %" creating a safety hazard. See image 4 7 and 48
Also stairs are incomplete and not properly finished. See image 49
\
405
406
407
408
Foundation should be underpinned or "mortar washed" with cement for a smooth finish
per plans, and per code. All voids and "honeycombs" should he filled. Exposed
foundation should he uniform, finished, and attractive. See images 50 51 and previous
images
Image 50
409
Exterior Doors:
The vast majority of the exterior doors were set too low, or with the incorrect thresholds.
Thresholds are below finished tile by varying dimensions and are not consistent,
aesthetically appealing, or correctly serving their function. See Images 52, 53 and 54.
Stucco and stone clad houses should be largely maintenance free. J do not agree with
installing wood trim around doors in vulnerable locations as it will quickly rot. See
Image 55.
410
Image 53
411
Image 55
412
It appears that adequate steps to protect the bathtubs was not taken. Tubs are dirty,
scratched and full of debris from several trades. See Image 56. Tub and motor not
adequately supported from below. Ground wires not attached to motor pump.
Image 56
Outdoor Kitchens
Framing was not installed correctly to allow for adequate clearance around combustible
and was incorrectly sized on both kitchen. Frame and rock veneer at lower kitchen was
installed%'' (See image 57) out oflevel front to back and 1 3/8" out oflevel over 10' .
Trash can installed below finished tile grade.
Outdoor kitchens, rough-framed only and incomplete.
413
Granite Countertops
Countertops are not complete throughout the house. Many tops are missing and were
never installed, (images 58-60) approximately 90% of the tops were never set and glued
in place (Images 61-62). Tops were also not cut square to create a straight line across the
length of the countertop and need to be re-worked (Image 62) Sinks are not sealed with
silicone, splashes are not set or sealed. Multiple chips, cracks and damaged areas.
Fabricator attempted, poorly, to mask defects with black epoxy in an unacceptable
manner-( Images 63-65)
Outdoor Kitchens Incomplete (Image 66)
414
Image 60
Image 61 Image 62
415
Image 64
416
417
418
419
Stairwells over 4 risers are to have a continuous grab bar per IRC code 311.7. 71-3
See Image 67 and 68
Image 67
420
421
Per the plans, there is to be a gate installed at the breezeway between the lower garage
and the pool bath area. This also a code requirement to isolate the pool area from public
access if car gates are left open for entertaining. See Image 69
Image 69
422
The three flat roofs on the front elevation are clearly visible from the upstairs windows.
Roofs should be clean and clear of debris, stucco and paint, and installed in a clean
professional manner. One of the roofs also has multiple exposed nail penetrations.
See 70
Image 70
423
As discussed above in Image 23, the motor courtyard has improper drainage and
the design is causing excessive standing water. Without a path for drainage the
water is backing up across the courtyard area and is in danger of backing up into
the garage. It is also dangerously dose to electrical fixtures. With improper
drainage, the landscaping cannot be completed in a satisfactory way. Notice the high
water mark near the stone. This rain event produced about 2 inches on dry soil
conditions. More significant rain events would raise serious concerns.
424
The basement area of the bouse had a very high humidity level and a noticeable
musty odor, particularly underneath the stairs, and in the future kitchen area,
which was not evident prior to min. Drywall felt damp. Additional investigation is
needed to test and monitor the ambient humidity level and to check for the
possibility of mold growth or additional moisture intrusion.
426
David,
I spoke with our clients yesterday. Unfortunately, Pejman will not be available for depositions in December, however,
Kamaran will. Additionally, Stephanie, a lawyer with our firm and copied on this email, is meeting with them today and is
working on getting all the documents you request, more specifically, RFP's 30-69. I will stay in touch regarding the
production of documents and in the meantime if there is anything I can do for you please let me know.
Sincerely,
Tyler Hood
Bush Rudnicki Shelton, P.C.
Main: 817.274.59921 Direct: 817-635-7412 I Fax: 817.261.1671
DFW I 200 N. Mesquite, Ste. 200 I Arlington 76011
Austin I 2508 Ashley Worth Blvd., Suite 200 178738
www.BRSTexas.com
BUSH:
Tyler: As discussed, please see attached. I look forward to receiving the outstanding documents and deposition dates
this week.
Best,
David
David A. King
Attorney
427
Counsel:
I presume that you have now had an opportunity to familiarize yourself with this case. We would like to move forward
where we left off with the defendants' former counsel. Here are the two items that need immediate attention:
• Written discovery: The defendants' document production is incomplete, as we notified former counsel on
September 14, 2016. Please provide the requested documents (described in the attached email) no later than
Monday, Oct. 31 so we can avoid court intervention.
• Depositions: We have been asking for deposition dates for the two individual defendants for over a
month. Please provide their dates of availability in the first two weeks of December. Please provide dates this
week if you would like to set the depositions by agreement.
Thanks,
David A. King
Attorney
This electronic communication (including any attached document) may contain privileged and/or confidential information. If you are not an
intended recipient of this communication, please be advised that any disclosure, dissemination, distribution, copying, or other use of this
communication or any attached document is strictly prohibited. If you have received this communication in error, please notify the sender
immediately by reply e-mail and promptly destroy all electronic and printed copies of this communication and any attached document.
2
428
WAIVER OF NOTICE
Our client, Stephanie Lugo, has commissioned Written Deposition Service, LLC to obtain records as named in the attached
questions and/or exhibit As authorized under Rule 59.006, Texas Finance Code and Rule 200, Texas Rules of Civil Procedure, a
Subpoena wm be issued forthwith to direct the below named custodian of records to make an records as named in the attached
questions and/or exhibit available for photographic reproduction, and to answer the Direct and Cross Written Questions, if any.
Said deposition when so taken, may be used as evidence upon trial of the above numbered cause.
CROSS-QUESTIONS/OBJECTIONS/MOTIONS
Yes, we wm be issuing Cross Questions, Filing Objections and/or a Motion. (FYI: They must be in our
office in accordance witb the ten day rule as recorded in TRCP, Rule 200.3(b).)
No, we will not be issuing Cross-Questions and/or a Motion or Objections.
PURCHASE OF COPIES
Yes, I would like to purchase copies. We will require preparment, unless we have an established relationship
with your fir:m. We win advise of cost on the Officer's Certification Cover Letter.
Direct om my Carrier. Claim # Insurance Co.:
Adjuster: Address: '
No, I do not desire copies of these records
Please send information :re~ardin~ your service.
429
Cause No.
DHIRAJ HANDA AND ruTU HANDA IN THE DISTRICf COURT OF
vs.
TRAVIS COUNTY, TEXAS
PEJMAN DARGAIU, KAMRAN DARGAHI,
AND YEK.K CONSTRUCTION SERVICES, LLC d/b/a
LAKEWAY CUSTOM HOMES AND RENOVATION 261ST JUDICIAL DISTRICT
NOTICE OF INTENTION
TO TAKE DEPOSITION BY WRITTEN QUESTIONS
TO: ALL PARTIES BY AND THROUGH THEIR ATTORNEY(S) OF RECORD AS PROVIDED JN THE ATTACHED
SERVICE LlST.
You wm take notice that twenty-four (24) days after the service hereof, with attached questions, a deposition by written
questions will be asked of the custodian of records for:
REGIONS BANK-(Ciient Record Scope)
C/0 CORPORATION SERVICE COMPANY (CSC)
:ZH E. 7TH STREET, STE 620, AUSTIN, TX 78701
Such questions to be answered on or before 01/0612017, before a Notary Public at the instance of:
Written Deposition Service, LLC
1750 Yaney View Lane Suite 210
Dallas, Texas 75234
The deposition with attached questions may be used in evidence upon the trial of the above-styled and numbered cause
pending in the above named court. Notice is further given that request is hereby made as authorized under Rule 59.006,
Texas Finance Code, and Rules 200 & 201(b), Texas Rules of Civil Procedure, to the officer taking this deposition to issue a
Subpoena Duces Tecum and cause it to be served on the witness to produce any and aU records as described on the attached
questions and/or Exhibit(s) and any other such record in the possession, custody or control of the said witness, and every such
record to which the witness may have access, and to turn all such records over to the officer authorized to take this deposition
so that photographic reproductions of the same may be made and attached to said deposition.
In compliance with §59.006(b)(2), Texas Finance Code, the financial institution is requested to contact the WJdersigned
counsel of record and provide notice of the reasonable costs of copying the financial records as described in the attached
questions and/or Exhibit(s) in advance of the deposition to ensure that the reasonable costs have been paid and the records
produced in the time, place and manner requested herein.
430
Respectfully Submitted,
s~ph~~~~-------------
ssA #: 00793927 U
Builih Rudnicki Shelton
2508 Ashley Worth Blvd., Ste. 200
Austin, TX 78738
512-263-9688; Fu 512-263-2562
slugo@brstexas.com
Attorney for: Defendant
431
CERTIFICATE OF SERVICE
I certifY, as authorized agent for the attorney of record, Stephanie Lugo, that a true and exact copy of
foregoing Notice of Intention to Take Deposition upon Written Questions was served to all attorneys of
record in the above-styled and numbered matter, said service being effected in the following manner:
HAND DELIVERY
TELECOPY
E-MAIL L'
DATED:~
L
BY: --+-41
432
1. State your fuU name and occupation, address and telephone number.
2. Have you received a Subpoena Duces Tecum for the production of RECORDS AS NAMED IN
THE A'ITACHED EXBmiT A?
ANSWER=----------------------------------------------
3. Are you able to identify these records as the originals or true and correct copies of the originals?
ANSWER: _____________________________________________
Order#: 59163.001
433
4. Were these records made and kept in the regular course of your business?
ANSWER: ________________________________________________
5. In the regular course of business of your practice, business, or institution, did the person who signed
the records and/or reports· either have personal knowledge of the entries shown on the records and/or
reports, or obtain the information to make the entries from the sources who have such personal
knowledge?
ANSWER: ______________________________________________
6. Were such memoranda or documents then transmitted to your files and thereafter maintained under
your care, supervision, direction, custody, control or access as custodian of this facility?
ANSWER: ______________________________________________
7. Were the memoranda or documents that were transmitted to your files original entries on the part of
the Custodian or other employee or member of the staff of this facility?
ANSWER: _______________
8. Were the records or documents prepared at or about the time of the events and conditions they record?
ANSWER: ___________
10. Please examine copies of the original requested records. Have you produced records for attachment to
this Deposition?
ANSWER: ________________________________________________
11. Has anything been removed from or altered in the original records before making these copies?
ANSWE~----------------------------------------------
12. If you have answered the previous question yes, please state fully and precisely what alteration was
made in the original records and attach copies of every document removed from the original records.
ANSWER: _____________________________________________
Order#: 59163.001
434
13. In the event that no records can be found, are there document archives (i.e. microfiche) or document
retention policies which explain their absence? If so, please identify who has knowledge of those
archives or policies of the above named facility.
ANSWER: ______________________________________________
14. Are you aware that it may be necessary to subpoena you or your employer to court at the time oftrial
if you have not provided all of the papers, notes, documents, records, genera1 correspondence, or oilier
tangible items of any kind pertaining to the above named individual to the Notary Public taking your
deposition?
Custodian of Record
Order#: 59163.001
435
EXHIBIT A
Definitions
1.) "You" or ''your" refers to you, your attorneys, accountants, bookkeepers, agents, employees, and/or
representatives.
2.) ''Defendant" means Pejman Dargahi, Kamaran Dargahi, and Yekk Construction Services, LLC d/b/a
Lakeway Custom Homes and Renovation and aH agents, employees, and other persons acting on their
behalf.
3.) "Plaintiff' means Dhiraj Handa and Ritu Handa and all agents, employees, and other persons acting
on their behalf.
4.) "Lender" means Regions Bank d/b/a Regions Mortgage One-Time-Close Construction/Permanent Loan
Program and aH agents, employees, and other persons acting on their behalf.
5.) "Property" means 228 Sanostee Cove, Travis County, Texas, 78733
6.) "Documents and tangible things" means the existence, description, nature, custody, condition,
location, and contents of papers, books, accounts. drawings, graphs, charts, photo- graphs, electronic or
videotape recordings, data, and data compilations in your possession, custody, or control or known to you
or your counsel, whether printed, computerized, micro- filmed, reproduced by any other mechanical process
or medium of expression, o1· written or produced by hand and whether or not claimed to be privileged,
confidential, or personal, including but not limited to the final versions and aH prior drafts of contracts;
agreements; notes (including secretarial notes); business records; notebooks; work notes; work papers;
forms; memoranda; bulletins; appointment books; logs; messages; diaries; texts; manuals; reference works
and materials; samples of materials; depositions; analyses; projections; damage projections; forecasts;
statistical statements; financial records; rep'orts; charts; brochures; purchase orders; estimates; computer
inputs and outputs; calculations; compilations of data; demonstrative evidence (including physical models,
sketches, charts, graphs. plans, drawings, etc.);joumals; billings; billing statements and records; 1·eceipts;
invoices; data compilations; slides; sketches; graphics; charts; movies; videotapes; photographs and the
negatives thereof; summaries, records> or minutes of meeting or conferences; expressions of statements of
policy; lists of people attending meetings or conferences; summaries, records, or reports of personal
436
EXHIBIT A
conversations or investigations; summaries, records, or reports of interviews; and all other writings, and any
other similar matter, now or formerly in your possession, custody, or control or that of your counsel, or of
any other agent, representative, employee, bookkeeper, accountant, expert, or anyone else acting on your
behalf, and includes documents used to support any conclusions or opinions reached. Any marginal
comments appearing on any documents and any handwritten or other notations on any copy of a document
7.) "Relate to" means to name, refer to either directly or indirectly, comment on, analyze, review, report
on, form the basis of, be considered in the preparation of, result from, or have any logical relation or
relevance to the entity, person, document, event, or action pertaining to the subject matter on which inquiry
is made.
8.) "Knowledge" means not only the personal and present knowledge of the person inquired of, but also
the present knowledge of any officers, directors, agents, servants, employees, attorneys, and representatives
of the person inquired of and information available to them.
9.) "The Claims" means the claims that are the subject of this lawsuit, as aUeged in Plaintiffs' original
437
EXHIBIT A
REQUEST FOR PRODUCTION NO. 1: Please identifY and produce aB documents and tangible
things, including, but not limited to, loan applications, loan statements, loan summaries, loan
enrollment form, loan initiation forms, loan reports, all bills paid affidavits, draw requests,
disbursement forms and requests and any other like documents that relate to the Property for the
benefit of Plaintiffs for improvements made to the Property by Defendants including, but not limited
to, loan number 0899144669, or any other loan that is related to the Property and/or the Defendants
and/or Plaintiffs.
PLEASE NOTE: We have attached, for reference, documents already in our possession that relate
to the loan in question.
59163.001
438
EXHIBIT A
~ ~::.. rc .l oN·s-·"
1!."'\ -' t '·
,.Ji
11
3$
37
0,0%
1).0%
$0.00
$(l00
0.0%
0.0%
$0.1
$()00
Furnls Available!
(Work Comp!eled Less Craws)
38 0.0% so.oo 0.0% $0.00 t.<>an S?lance: :sm.zso.QQ
3$ 0.0% $0.00 0.0% $0.00
40 I 0.0% $0.00 0.0% $0.00 Funds Remaining: ~
41 O.O'k $0.00 0,0% $0.00
ToM 100% $1,400,000.00 90.0% 1,314.000.00
439
OFFICER'S RETURN
Came to hand this _ _ _ _ day of_~-----' 20_ _, and executed this the _ _ day of _ _ _ _ _, 20_ _,
PROCESS SERVER
440
EXHffiiTA
Definitions
1.) "You" or "your" refers to you, your attorneys, accountants, bookkeepers, agents, employees, and/or
representatives.
2.) "Defendant" means Pejman Dargahi, Kamaran Dargahi, and Yekk Construction Services, LLC d/b/a
Lakeway Custom Homes and Renovation and ail agents, employees, and other persons acting on their
behalf.
3.) ''Plaintiff' means Dhiraj Handa and Ritu Handa and all agents, employees, and other persons acting
on their behalf.
4.) "Lender" means Regions Bank d/b/a Regions Mortgage One-Time~Ciose Construction/Permanent Loan
Program and aU agents, employees, and other persons acting on their behalf.
5.) "Property" means 228 Sanostee Cove, Travis County, Texas, 78733
6.) ''Documents and tangible things" means the existence, description, nature, custody, condition,
location. and contents of papers, books, accounts, drawings, graphs, charts, photo· graphs, electronic or
videotape recordings, data, and data compilations in your possession, custody, or control or known to you
or your counsel, whether printed, computerized, micro- filmed, reproduced by any other mechanical process
or medium of expression, or written or produced by hand and whether or not claimed to be privileged,
confidential, or personal, including but not limited to the final versions and all prior drafts of contracts;
agreements; notes (including secretarial notes); business records; notebooks; work notes; work papers;
facsimiles; telecopies; teiefaxes; electronic mail; correspondence; statements; reports; telegrams; agendas;
forms; memoranda; bulletins; appointment books; logs; messages; diaries; texts; manuals; reference works
and materials; samples of materials; depositions; analyses; projections; damage projections; forecasts;
statistical statements; financial records; reports; charts; brochures; purchase orders; estimates; computer
inputs and outputs; calculations; compilations of data; demonstrative evidence (including physical models,
sketches, charts, graphs, plans, drawings, etc.);journals; billings; billing statements and records; receipts;
invoices; data compilations; sUdes; sketches; graphics; charts; movies; videotapes; photographs and the
policy; Hsts of people attending meetings or conferences; summaries, records, or reports of personal
441
EXIDBITA
conversations or investigations; summaries, records, or reports of interviews; and aU other writings, and any
other similar matter, now or formerly in your possession, custody, or control or that of your counsel, or of
any other agent, representative, employee, bookkeeper, accountant, expert, or anyone else acting on your
behalf, and includes documents used to support any conclusions or opinions reached. Any marginal
comments appearing on any documents and any handwritten or other notations on any copy of a document
render it original, requiring production of it ·or a true copy of it with such notations.
7.) "Relate to" means to name, refer to either directly or indirectly, comment on, analyze, review, report
on, form the basis of, be considered in the preparation of, result from, or have any logical relation or
relevance to the entity, person, document, event, or action pertaining to the subject matter on which inquiry
is made.
8.) 'Knowledge" means not only the personal and present knowledge ofthe person inquired of, but also
the present knowledge of any officers, directors, agents, servants, employees, attorneys, and representatives
9.) 'The Claims" means the claims that are the subject of this lawsuit, as alleged in Plaintiffs' original
442
EXHIBIT A
REQUEST FOR PRODUCT.ION NO, li Please identify and produce ail documents and tangible
things, including, but not limited to, loan applications, loan statements, loan summaries, loan
enroHment form, loan initiation forms, loan reports, aH biHs paid affidavits, draw requests,
disbursement forms and requests and any other like documents that relate to the Property for the
benefit of Plaintiffs for improvements made to the Property by Defendants including, but not limited
to, loan number 0899144669, or any other loan that is related to the Property and/or the Defendants
and/or Plaintiffs.
PLEASE NOTE: We have attached, for reference. documents already in our possession that relate
to the loan in question.
59163.001
443
EXHIBIT A
2
1
~$ 3.0%
4.0%
S43,eoo.oo
$56,400.00
3.0%
4.0"1.
$4$,800.00
SS8,400.00
1
2
2/1912015
31201':<015
Sf\5,400,00
$118,990.00
3 Site EJ<cava!lolliFIII 4.0% $58:,400.00 4.0"/o $58,400.00 3 5122/2015 $131,400.00
4 Foondatioo Pilli 1 8.0% $116.$00.00 S.O'l'o $116800.00 4 7/1012015 SW,52000
5 Foundattcn Pert 2 7.0% $~02:200.00 7.0% 5 ll/10/2!!15 S15.1l20.00
6
7
s
9
Framil1!l
MIE/PROU!:!h
Rnolin!i
E>:lerlor Skin Neneer
iiHl%
5.0%
1!.0%
10.0%
s:2s2.eoo.oo
$73000.00
$116$00.00
$146.000.00
18.0%
5.0%
a.o%
10.0%
Dl
$116,800.00
$146000.00
5
7
II
9
91112015
9/2112015
91231'2015
10/1S/20'15
soz.aoo.oo
S43,800. 00
S43,000.00
Sll1.320.00
10 InsulatiOn & Sheetrock 5.0% $73000.00 :>.0".\, $73,000.00 10 11/1312015 S43.800.00
11 Trim & Cabin"ls 5.0% $73,000.00 4.8".!, $70080.00 11 $0.00
12 PainlfM 3.0% $43,000,00 Z.ll% $40800.00 12 $0.00
13 Aoorlna 4.0% $00 400.00 4.0",(, $5<1400,00 13 $0.00
14 MIEIPFIMI 4.0% $00 400.00 3.8% $554$0.00 14 $0.00
•
15 S<;mtic System :to% $29200.00 2.Q% $29,200.00 15 so.oo
15 landscaoloo/lr(m!lon 30% O.O"A. $0.00 16 $000
17 OriWIW3V$ ~.0% s 00 0.6% $8,700.00 17 $0.00
18 !"Ina! 3.0% $43 00 0.0% $0.00 16 $0,00
19 0.0% $(l.00 00% so.oo 19 $000
20 0.0% $0.00 0.0% $0.00 20 so.oo
21 0.0% so.oc OJl% soon 21 $0.00
22 0.0% $0.00 0.0% so.oo 22 so.oo
23 0.0% sc.oo 0.0% :ro.C<() 23 $0.00
2<1 O.Oo/. $0.00 ().0% 1£0.00 24 so.oo
25 0.0% $0.00 0,0% $0.00 25 $0.00
26 ()% -so.oo 0'1. $0.00 25 so.oo
27 0.0% $0.00 0.0% $0.00 27 $0.00
I
28 .0% S'C.OO Q.()% 28 $0.00
Z9 0.0% $0.00 0.0% 29 $0.00
30 0.0% $0.00 0.0% 30 $0,00
31 0.0% so.oo 0.0% 31 $0.00
32 0.0% $0.00 0.0% 32 so.oo
33 0.0% $0.00 0.0% SQ.OO 33 $0.00
34 0.0% so.oo 0.0% $().00 To!a!Dmws $727'750.00
35 0.0% ro.oo 0.0% $0.00
36 o.o•J. $0.00 0.0% $0.00 Funds Available: ,§13.759.00 Ctlffltrllly '
31 O,Q% $0.00 0.0% so.oo (Work Completed L<>ss Ora""")
38 0.0% $0.00 0.0% $(l.00 Loan Balance: mz.m.oo
39 0.0'1. so.oo 0,0% so.oo
40 0.0% $0.00 0.0% $0.00 Funds ~ema!ning: ~
41 0,0% !to.oo 0.6% :OO.ro
Total 100% $1,460,000.00 90.0% 1,314,000.00
444
Date: ---'-'Y~~~~·\\\ p _
Total Pages: ':J (lNCLUD.IJ.'IG COVER PAGE)
CONFll)ENTJ:ALJTY NOTICE
The documents accompanying this teleropy transmission may contain confidential inroo:nation which is legally privileged. The infonnation is intended
only for the use of the recipient named above. If you have rooeived this telecopy in error, please immediately notifY us by telephone to arrange for return
of the original documents to us, and you are hereby notified that any disclosure, copying, distribution, or taking of any action in reliance on the contents
ofthis telecopy information is strictly prohibited.
445
STATE OF TEXAS §
§
COUNTY OF TRAVIS §
Before me, the undersigned authority, on this day personally appeared the
undersigned Affiant who is personally known to me and who, being by me sworn, stated
1. "My name is David A. King. I am over 21 years of age, of sound mind, and fully
competent to testify to the matters stated herein. The facts stated herein are within my personal
knowledge, and are true and correct. I am an associate in the law firm of Graves, Dougherty,
Hearon & Moody, P.C. ("Graves Dougherty"), and a resume of my education, experience, and
2. "I had day-to-day responsibility for all of Graves Dougherty's work on behalf of
Plaintiffs in the subject lawsuit. I am familiar with the documents exchanged by the parties in
this litigation.
to Compel Arbitration as Exhibit 1 is a true and correct copy of the 2014 Residential
446
to Compel Arbitration as Exhibit 2 is a true and correct copy of a December 9, 2015 letter
to Compel Arbitration as Exhibit 3 is a true and correct copy of Plaintiffs' Original Petition and
to Compel Arbitration as Exhibit 4 is a tme and correct copy of Defendants' Original Answer.
to Compel Arbitration as Exhibit 5 is a tme and correct copy of Plaintiffs' First Request for
Production.
to Compel Arbitration as Exhibit 6 is a tme and correct copy of Plaintiffs' Motion to Compel
to Compel Arbitration as Exhibit 8 is a true and correct copy of a Rule 11 Agreement between
myself and Plaintiffs' counsel Kemp Gorthey regarding Plaintiffs' Motion to Compel.
2
447
to Compel Arbitration as Exhibit 9 is a true and correct copy of Plaintiffs' First Amended
Petition and Exhibit B of that Petition, which is the inspection report ofNathan Clawson.
to Compel Arbitration as Exhibit 10 is a true and correct copy of a November 1, 2016 email
to Compel Arbitration as Exhibit 11 is a true and correct copy of Defendants' Notice of Intent to
to Compel Arbitration as Exhibit 13 is a true and correct copy of Plaintiffs' Motion for Summary
Judgment.
15. "Through December 8, 2016, when Defendants moved to compel arbitration, the
claims totaled over 150 hours for attorneys (at a rate from $200.00/hr to $445.00/hr). Based on
the time worked and the timekeepers' rates, Plaintiffs have incurred over $35,000 in attorneys'
fees in connection with the above-described legal services through December 8, 2017. These
legal services include time spent pleading the case in this Court, participating in written
discovery, working with Plaintiffs' expert, and preparing Plaintiffs' Motion for Summary
Judgment.
16. "In 2016, while Defendants' counsel was represented by Kemp Gorthey, Mr.
Gorthey agreed orally to set this case for a jury trial in this court and provided dates of
availability.
3
448
Defendants retained new counsel in October 2016. The arbitration clause was not mentioned or
invoked to resist any of the pre-trial activities Defendants engaged in until Plaintiffs' filed their
David A. )ting
JOY MORENO
My Notary!D # 124900401 Public-State of Texas
Expires June 4, 2020
4
449
COME NOW Plaintiffs Dhiraj Handa and Ritu Handa ('"Plaintiffs") and file this their
Traditional Motion for Partial Summary Judgment against Defendants Pejman Dargahi, Kamran
Dargahi, and Yekk Construction Services, LLC, d/b/a Lakeway Custom Homes and Renovation
Defendants are general contractors hired to build Plaintiffs' home under a fixed-price
contract. Since construction began in 2014, Plaintiffs have paid Defendants 95% of the contract
price. However, in November 2015, Defendants halted all work on the project, insisting that
Plaintiffs pay much more than the contract price. Unbeknownst to Plaintiffs until Defendants
ceased their work, Defendants had been using Plaintiffs' money for tens of thousands of dollars'
worth of expenses that have nothing to do with the construction of Plaintiffs' home, including
not only different construction projects, but also personal expenses such as plumbing work on
s
Defendant Pejman Dargahi' personal home, purchasing real estate, and attorneys' fees. While
Defendants were using Plaintiffs' construction funds as their own personal bank account, the
subcontractors hired by Defendants to build Plaintiffs' home have gone unpaid~--to the tune of
450
only a blatant violation of the Texas Construction Trust Fund Act, but it also constitutes fraud
For months, Defendant Pejman Dargahi has refused to make himself available for
deposition. This strategy appears to be aimed at delaying the progression of this case while Mr.
Dargahi takes steps to make himself judgment-proof. 1 However, Mr. Dargahi's efforts to evade
deposition and delay judgment against him are unavailing because, even without deposition
testimony, the material facts concerning Defendants' misconduct are undisputed, and partial
summary judgment is properly entered in favor of Plaintiffs and against Defendants on Plaintiffs'
claims for violation of the Trust Fund Act, common law fraud, statutory fraud, and breach of
contract.
(the "Contract") for the construction of a house on a piece of unimproved land located at 228
Sanostee Cove, Travis County, Texas, for a fixed contract price of $1,460,000.00 (the
"Project"). 2 The Contract was executed on or around April 4, 2014, by Defendant Pejman
Dargahi ("Pejman"). 3 Although he did not sign the Contract, Defendant Kamran Dargahi
("Kamran") is Pejman's business partner on the Project, and they are also brothers.
1
Mr. Dargahi's net worth in February 2014 was $1,590,800. See Exhibit A (2014 Net Worth Statement). By
August 2016, his net worth had allegedly been reduced to $149,000. See Exhibit B (2016 Net Worth Statement).
2
See Exhibit C (20 14 Contract).
3
Although not disclosed in the Contract, Pejman is the sole officer and member of Yekk Construction Services,
LLC. See Exhibit D (Articles of Organization); Exhibit E (Franchise Tax Report). While "Lakeway Custom Homes
and Renovation" is identified as a party to the Contract, the Contract did not disclose that Lakeway Custom Homes
and Renovation was a d/b/a for Yekk Construction Services, LLC, nor did the Contract disclose that Pejman was
executing the Contract as the agent ofYekk or any other entity. See Exhibit C, at 1, 8 (Contract).
451
In accordance with Article V, and as reflected in the Draw Schedule prepared by the
construction lender (Regions Bank), 5 Plaintiffs have made progress payments totaling
$1,387,750 ($660,000 of which was paid directly by Plaintiffs and $727,750 of which was paid
by the construction lender). This is 95% of the Contract price. However, Pejman has completed
no more than 90% of the scheduled work at a value of$1,314,000. 6 In other words, Pejman has
been paid for more than he has completed; he has been overfunded by at least $73,750. In
addition, Plaintiffs paid Pejman an additional $114,892.00 for all agreed Change Orders for
which payment was requested in accordance with Article XII of the Contract. 7
Pejman's last request for a payment, in the amount of $90,520, was made in November
2015. At that time, Pejman was already overfunded by $29,950. 8 Regions Bank approved a
progress payment of $43,800 on Friday, November 13, 2015, noting that this funding was an
"exception to policy" and was "the maximum amount we could get approval to fund per
9
management." Regions Bank stressed that "there will be no further draws from the loan until
4
Exhibit C, at Art. V (2014 Contract) (emphasis added).
5
Exhibit F, (Draw Schedule).
6
Id.
7
Exhibit T, at, 5 (Affidavit ofDhiraj Handa).
8
Exhibit F, (Draw Schedule).
9
Exhibit G (First Regions Email).
452
he would receive an additional $146,000 11 upon completion of the Project, but the bank correctly
informed Pejman that "only $72,250 remains because we have already funded over the point of
However, the following Monday, November 16, Kamran and Pejman represented to
Plaintiffs that they were still "$150,000 +/- short to finish our contract" 13 --this despite the fact
that, with the $43,800 payment made the previo.us Friday, Pejman was already overfunded by
$73,750. Kamran and Pejman also declared that "no more [construction) activities could. be
performed. unless we are :financially comfortab!e." 14 At or around this same time, Pejman
abandoned the Project. Since that time, Pejman has ceased all construction work on the Project.
In the weeks following Pejman's refusal to complete work on the Project, Plaintiffs
learned that according to Pejman's own estimate, it would cost over $130,000 to complete the
remaining work on the Project. 15 Despite Plaintiffs' demands, 16 Pejman has refused to complete
After the Project was abandoned, Plaintiffs also discovered that Pejman owed more than
representations to Plaintiffs prior to obtaining the last draw on November 13, 2015 that all
subcontractors had been paid. 18 Plaintiffs also learned that, with respect to a subcontractor
responsible for constructing a water well for the Project, Pejman had obtained Plaintiffs'
10 !d.
11
$146,000, which is 10% ofthe Contract price, was held by Regions as retainage. See Section 53.101, Tex. Prop.
Code.
12
Exhibit H (Second Regions Email).
13
Exhibit I (Nov. 16 Kamran Email).
14
!d. (emphasis added).
15
Exhibit J (Estimated Cost to Complete).
16
See Exhibit L (Nov. 18 Demand Letter).
17
Exhibit K (Outstanding Invoices).
18
Exhibit T, at~ 3 (Affidavit ofDhiraj Handa).
453
the subcontractor had already been paid for such work. 19 In reality, the subcontractor had only
been paid partially for partial work. 20 Since Pejman abandoned the Project, numerous
subcontractors have filed liens on the Project or provided notice of intent to file liens. 21 Despite
Plaintiffs' demands, Pejman has refused to pay the outstanding debts owed to the subcontractors,
Further, after Pejman's cessation of work, Plaintiffs discovered that, all along, Pejman
and Kamran, had been systematically diverting substantial sums of money from Plaintiffs'
progress payments to other expenses unrelated to the Project. Specifically, according to their
own bank statements, the Dargahis used Plaintiffs' money to pay for the following: (i) thousands
of dollars in direct payments to themselves; 22 (ii) plumbing work done on Pejman's personal
house; 23 (iii) web design; 24 (iv) advertising; 25 (v) purchasing a car; 26 (vi) purchasing real estate;27
(vii) attorney's fees in connection with multiple disputes---including this dispute with the
l!andas; 28 (ix) property taxes on personal property; 29 and (viii) different construction projects. 30
Plaintiffs have also uncovered at least one instance in which a subcontractor's invoice for
31
services was far less than the amount ultimately paid for the services from Plaintiffs' funds.
l9Jd.
20
Exhibit J (Estimated Cost to Complete) (showing $4,000 estimate for completion of well).
21
ExhibitS (Lien Affidavits); Exhibit T, at, 6 (Affidavit ofDhiraj Handa}.
22
Exhibit N, at 2 (Check No. 304 7; $2,500 to Pajeman) (Check No. 3046; $2,500 to Kamran).
23
!d. at 3 (Check No. 3125; $504.00 to Webster Plumbing).
24
ld. at 5 (Check No. 3148; $1,000 to A. Rahmani).
15
!d. at 5 (Check No. 3147; $550.00 to Va!Pak).
26
!d. at l {Check No. 3017; $5,000 to Fiat of Austin).
27
ld. at 6 (Wire transfer for $26,883.72).
28
!d. at 4 (Check No. 3144; $1,200 to Siavesh Vaseghi); id. at 9 (Check No. 3370; $250.00 to Todd Knop).
29
!d. at lO (Check Nos. 3388 and 3389; $8,444.03 in property taxes).
30
!d. at 8 (Check No. 3335; $220.00 to flooring company for different property); id at 7 (Check No. 3196; $4,672 to
gutter company for other properties); see also Exhibit M (Affidavit of Ted Gutierrez) (confirmation that gutter
subcontractor who worked on multiple projects for Defendants was paid only out of Plaintiffs' funds).
31
Compare Exhibit P2 ($70 invoice for cleaning services) with Exhibit N, at 5 (Check No. 3162; $470 payment to
cleaning service).
454
directly from the bank account created for the Project, which contained no funds other than those
paid by Plaintiffs and Plaintiffs' construction lender for completion of the Project 32
The Dargahis do not deny that they systematically diverted Plaintiffs' funds since the
inception of the Project, nor do they deny that they continued to divert Plaintiffs' funds even
afler this lawsuit was filed. In fact, by their own calculation, between July 2014 and April2016,
the Dargahis diverted over $68,000. 33 Instead, now that their systematic misappropriation has
been discovered, the Dargahis take the baffling position that they were entitled to misappropriate
Plaintiffs' payments, arguing that because they envisioned making a profit on the Project, they
should have had the right to take their hypothetical profits out of Plaintiffs' construction account
long before the Project was actually completed. Of course, this nonsensical attempt to
rationalize their wrongdoing afler it was uncovered by Plaintiffs is not a legal defense to their
obvious violations of Texas law and statute. Indeed, it merely provides further proof that the
Dargahis' violations were intentional. It also ignores the plain language of the Contract, which,
rather than promising a fixed profit, expressly provides for a fixed pa}'ment of $1 ,460,00034 n-
95% of which ($1,387,750) the Dargahis fraudulently extracted from Plaintiffs before the
Dargahis announced in November 2015 that they were halting all work on the Project unless and
until Plaintiffs personally paid them well in excess of what the construction lender was able to
release and well in excess of what was agreed under the Contract.
32
Exhibit T, at~ 2 (Affidavit ofDhiraj Handa)
33
Exhibit 0 {Defendants' Spreadsheet of Withdrawals) (describing diversion of funds as "Profit Withdrawals").
34
Exhibit C, at 1 (2014 Contract).
455
A. Defendants Have Breached Their Fiduciary Duties Under the Trust Fund Act.
Under Section 162.001(a), Tex. Prop. Code, construction payments made to a contractor
under a construction contract for the improvement of real property are "trust funds." The
contractor is the "trustee" of the trust funds,§ 162.002, and the property owner is a "beneficiary"
of the trust funds, § 162.003(b). A subcontractor who "furnishes labor or materials" for the
construction project is also a "beneficiary." § 162.003(a). Further, "any officer or director who
has control or direction over the funds is also a trustee of the funds, and is therefore personally
liable." Lively v. Carpet Services, Inc., 904 S.W.2d 868, 873 (Tex. App.-----Houston [1st Dist]
1995, writ denied); see also Sanchez v. Mulvaney, 274 S.W.3d 708, 712 (Tex. App.----San
Antonio 2008, no pet.) (holding that plaintiffs had valid individual claims against members of
Under Section 162.031(a), Tex. Prop. Code, a trustee who "intentionally or knowingly or
with intent to defraud, directly or indirectly retains, uses, disburses, or otherwise diverts trust
funds without first fully paying all current or past due obligations incurred by the trustee to the
The material facts concerning Defendants' misapplication of Plaintiffs' trust funds are
contract for the improvement of specific real property in Texas, and are therefore "trust funds"
pursuant to Section 162.001. Defendants Pejman and Kamran Dargahi had control and direction
over Plaintiffs' progress payments for the Project, 35 and they are therefore personally liable for
35
Exhibit Q (Reflecting Pejman's establishment of bank account); Exhibit R (Pejman's initial request for funds,
copying Kamran).
456
Section 162.003, and Defendants are trustees of such funds pursuant to Section 162.002.
used Plaintiffs' progress payments without first paying all current or past due obligations.
Defendants' bank statements speak for themselves: Defendants used Plaintiffs' trust funds as
their own personal bank account, using such funds for dozens of their own expenses having
after Plaintiffs filed this lawsuit-Defendants continued to intentionally divert Plaintiffs' funds
for their own personal use. 37 Further, it is undisputed that Defendants used Plaintiffs' trust funds
despite the fact that subcontractors were going unpaid for their work on the Project. 38
Partial summary judgment should be entered in favor of Plaintiffs and against all
Defendants on Plaintiffs' claims for breach of the Texas Construction Trust Fund Act.
"A fraud cause of action requires a material misrepresentation, which was false, and
which was either known to be false when made or was asserted without knowledge of its truth,
which was intended to be acted upon, which was relied upon, and which caused injury."
Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 47
"The elements of fraud by nondisclosure are: ( 1) the defendant concealed from or failed
to disclose certain facts to the plaintiff; (2) the defendant had a duty to disclose the facts to the
plaintiff; (3) the facts were material; (4) the defendant knew the plaintiff was ignorant of the
36
See Exhibits N and 0.
37
Exhibit N, at 10 (Check Nos. 3388 and 3389; $8,444.03 in property taxes).
38
Exhibit K (Outstanding Invoices).
457
was deliberately silent when he had a duty to speak; (6) by failing to disclose the facts the
defendant induced the plaintiff to take some action or refrain from acting; (7) the plaintiff relied
on the defendant's nondisclosure; and (8) the plaintiff was injured as a result of acting without
the undisclosed facts." Bazan v. Munoz, 444 S.W.3d 110, 119 (Tex. App.----San Antonio 2014,
no pet.)
All ofthe above elements of fraud and fraud by non-disclosure are readily satisfied under
the undisputed facts of this case, described above. To induce Plaintiffs to enter the Contract and
make payments, Defendants Pejman and Kamran Dargahi represented to Plaintiffs that their
progress payments would be used to pay for the construction of the Project. 39 However,
Defendants never intended to use Plaintiffs' payments solely for the Project, as demonstrated by
Equally, the Dargahis' failed to disclose to Plaintiffs until after Defendants had been paid 95% of
the Contract price that, all along, they had been diverting Plaintiffs' payments for their personal
use. 41 As trustees of Plaintiffs' funds under the Trust Fund Act, Defendants had a duty to
disclose their illegal diversions, and Plaintiffs did not have an equal opportunity to discover these
illegal diversions since Plaintiffs' construction account was controlled by the Dargahis. 42 Since
the Dargahis had sole control over Plaintiffs' construction account, but never revealed their
diversions, the Dargahis also knew that Plaintiffs were ignorant of the diversions. In reliance on
39
Exhibit T, at "V 2 (Affidavit of Dhiraj Handa); see also Exhibit I ("All the funds that we have received from your
bank has been spent on your house ...");
40
As noted above, in a bizarre effort to rationalize their wrongdoing, Defendants claim that they were entitled to
misappropriate Plaintiffs' payments because they envisioned making a profit on the Project. ·Of course, the Contract
does not entitle Defendants to a profit. Thus, far from providing them a defense, Defendants' claim that they were
entitled to divert Plaintiffs' payments-even after Plaintiffs filed this lawsuit-merely proves that their \\<Tongdoing
was intentionaL
41
Exhibit T, at~ 4 (Affidavit ofDhiraj Handa)
42
ld. at, 4.
458
made progress payments and change order payments to Defendants under the Contract. 43
Defendants Pejman and Kamran Dargahi also represented to Plaintiffs that they had fully
paid subcontractors hired to work on the Project knowing that subcontractors had not, in fact,
payments induced Plaintiffs to make progress payments and change order payments to
Defendants Pejman and Kamran Dargahi are personally liable for the misrepresentations
and nondisclosures they themselves made to Plaintiffs. See Sanchez v. Mulvaney, 274 S.W.3d
708, 712 (Tex. App.-San Antonio 2008, no pet.) (holding that plaintiffs had valid individual
claims against members of general contractor LLC for fraud). Plaintiffs injuries resulting from
the Dargahis' fraud include the amount of funds that were misappropriated by the Dargahis,
which exceeds $68,000, 46 and the additional costs above the Contract price that Plaintiffs have
incurred and will have to incur in order to complete Defendants' unfinished work. 47 Partial
summary judgment should be entered in favor of Plaintiffs and against all Defendants on
Transactions involving real estate are subject to Section 27.01, Tex. Bus. & Comm.
Code. "The elements of statutory fraud under section 27.01 of the Texas Business and
Commerce Code are essentially identical to the elements of common law fraud except that
43
!d. at, 2.
44
!d. at,[ 3.
45 !d.
46
See Exhibits N and 0.
47
See Exhibit K (Outstanding Invoices); Exhibit J (Estimated Cost to Complete); see also Exhibit T, at ttl 7
(Affidavit ofDhiraj Handa).
10
459
recovery of actual damages." Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 867 (Tex.
App.-Austin 2001, pet. denied); see also Tex. Bus. & Comm. Code§ 27.01(a)(l) ("(a) Fraud
in a transaction involving real estate or stock in a corporation or joint stock company consists of
a (1) false representation of a past or existing material fact, when the false representation is (A)
made to a person for the purpose of inducing that person to enter into a contract; and (B) relied
As described above, all of the elements of common law fraud are met in this case. The
Dargahis induced Plaintiffs into entering into the Contract based on the misrepresentation that aU
of Plaintiffs' payments would be used to fund the Project. Accordingly, because Defendants'
fraud is in connection with "a transaction involving real estate," Defendants are liable for
statutory fraud just as they are liable for common law fraud.
"The essential elements of a suit for breach of contract are that a valid contract existed,
that the plaintiff performed, that the defendant breached, and that the plaintiff has suffered
resulting damages." Scott v. Sebree, 986 S.W.2d 364, 372 (Tex. App.-Austin 1999, pet.
denied).
Defendant Yekk Construction Services, LLC, d/b/a Lakeway Custom Homes and
Renovation ("Yekk") and Plaintiffs are parties to the Contract. Defendant Pejman Dargahi is
individually liable for any breaches ofYekk's obligations since he is a signatory of the Contract,
and the Contract does not "show[ ] unambiguously that the signature was made on behalf' of
Yekk. See Tex. Bus. & Com. Code Ann. § 3.402. Not only does the Contract fail to disclose
that "Lakeway Custom Homes and Renovation" was a d/b/a for Yekk, but Pejman's signature
l1
460
even indicate Pejman's corporate title. Pejman's signature is a textbook example of when an
individual, even intending to act as an agent, may be held personally liable on the contract. See
Comment 2 to § 3.402 (stating that the following may result in personal liability: "The name
"Richard Roe" [principal] is written on the note and immediately below that name Doe [intended
agent] signs "John Doe" without indicating that Doe signed as agent"). 49
Under the Contract, Y ekk and Pejman "accept[ ] responsibility for performance of all
duties reasonabl[y] necessary to complete the Work," and they are obligated to "provide all labor
and materials for construction" of the Project "according to [the] Contract and the Plans" and
"pay aU costs related to the Work." 50 Yekk and Pejman have breached these contractual
Yekk and Pejman Dargahi are further obligated under the Contract to "make payments to
subcontractors or vendors supplying material for" the Project. 52 Yekk and Pejman Dargahi have
Yekk and Pejman Dargahi are further obligated to "deliver title to all the materials,
appliances and equipment used in the Work free of all liens, claims, security interests or
48
Exhibit C, Contract at 8.
49
Section 3.402 of the Texas Business & Commerce Code is an application of well-established agent/principal
liability rules----rules which are applicable to all instruments and contracts, and not merely negotiable instruments.
Comment 2 to Section 3.402 provides a pertinent illustration of why Pejman Dargahi is personally liable on the
Contract, but it is worth highlighting that there are numerous authorities outside of Section 3.402 that stand for the
same proposition that an agent is individually liable on a contract if the principal is not disclosed in the contract. See,
e.g., A to Z Rental Ctr. v. Burris, 714 S.W.2d 433, 435 (Tex. App.----Austin 1986, writ ref'd n.r.e.) ("If an agent
would avoid personal liability, he has the duty to disclose not only that he is acting in a representative capacity but
also the identity of his principal; the party with whom the agent deals has no duty to discover the principal.");
Lachmann v. Houston Chronicle Pub. Co., 375 S.W.2d 783, 785 (Tex. Civ. App.-Austin 1964, writ ref'd n.r.e.)
("The contract, as signed did not disclose to appellee that the contract was signed in a representative capacity....
the majority of cases hold that the use of a trade name is not a sufficient disclosure of the identity of the principal
and of the fact of agency.").
50
Exhibit Contract at Sections III, XIV.
51
Exhibit I (Nov. 16 Kamran Email).
52
Exhibit C, Contract at Section XV.
53
Exhibit K (Outstanding Invoices).
12
461
Prior to Defendants' breaches, Plaintiffs performed all of their obligations under the
Contract, including by making progress payments in accordance with Article V of the Contract. 56
Plaintiffs' damages resulting from Defendants' breaches include the additional costs above the
Contract price that Plaintiffs have incurred and will have to incur in order to complete
Partial summary judgment should be entered in favor of Plaintiffs and against Defendants
material fact and the moving parties are entitled to judgment as a matter of law. Nixon v. Mr.
Prop. Mgm.t. Co., 690 S.W.2d 546, 548 (Tex. 1985). A partial summary judgment is properly
entered in favor of Plaintiffs here. Defendants' own undisputed bank statements show that, since
the inception of the Project, they have violated the Texas Construction Trust Fund Act by
diverting Plaintiffs' construction funds for use on a multitude of expenses unrelated to the
Project. Defendants also committed fraud by inducing Plaintiffs into entering the Contract and
making progress payments, knowing that they did not intend to use those payments solely for the
Project. Finally, it is undisputed that Defendants breached the Contract by failing to complete
54
Exhibit C, Contract at Section XV.
55
ExhibitS (Lien Affidavits). Exhibit T, at~ 6 (Affidavit ofDhiraj Handa).
56
See Exhibit F (Draw Schedule).
51
See Exhibit K. (Outstanding Invoices); Exhibit J (Estimated Cost to Complete); see also Exhibit T, at "j[ 7
(Affidavit ofDhiraj Handa).
13
462
Exhibit G First Nov. 12, 2015 Email from Regions Bank to Pejman Dargahi
Exhibit H Second November 12,2015 Email from Regions Bank to Pejman Dargahi
58
Exhibits A-C, F-K, and N-S are documents which were produced by Defendants in this lawsuit. See Tex. R. Civ.
P. 193.7.
14
463
In light of the foregoing undisputed material facts and authorities, Plaintiffs respectfully
pray that the Court enter a partial summary judgment in Plaintiffs' favor and against Defendants
as follows:
(i) all Defendants violated the Texas Construction Trust Fund Act, Section 162.031 (a),
Tex. Prop. Code, and violated their fiduciary duties to Plaintiffs thereunder, as described above;
(ii) all Defendants are liable for common law fraud and statutory fraud for their
(iii) Defendants Pejman Dargahi and Yekk Construction Services, LLC, d/b/a Lakeway
(iv) Plaintiffs shall recover their reasonable and necessary attorney's fees, expert witness
fees, and costs of court incurred in bringing this action as provided under Tex. Civ. Prac. & Rem.
(v) Plaintiffs shall recover prejudgment interest on the judgment at the highest rate
(vi) such other and further relief, at law or in equity, to which Plaintiffs may show
themselves to be entitled.
59
Plaintiffs first presented their breach of contract claim on or around November 18, 2015. See Exhibit L (Demand
Letter).
15
464
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing has been served by
electronically via the e-filing system on counsel of record as listed below on this the 2nd day of
December, 2016:
James Rudnicki
JRudnicki@BRSTexas.com
Russell Clinage
RClinage@BRSTexas.com
Tyler Hood
THood@BRSTexas.com
Bush Rudnicki Shelton, P.C.
200 N. Mesquite St., Suite 200
Arlington, Texas 76011
Telephone: (817) 274-5992
Facsimile: (817) 261-1671
16
465
PROSPERITY BANK
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0
0
Persona! Property 0 OTHER UABIUT!ES ~
0
Automobiles 0 Misc. 0
Notes Receivable 0
Interests in Trusts 0
Misc. 0 TOTAI.. UABILITIES
TOTAL ASSETS
"Income from alimony, cllild support, or separate maintenance income need not be revealed Wyou do not wish !o have it considered as a besis for repaying this obligalicP.
-ust all assumptions on page 4 under Additonal comments and describe any significant expscted Cl\anges in your cash income or your cash expanse.
In !he lollw'ing stalement, the words "1", "me", and "my" mean anyone signing below. "You" and "yow" refar to Sank.
I nave given you this financial statement. ana attacllmants, if any, in order to obtain credit or services from you. I understand thet you wili rely on !his lnfo!fllallon in connection with any decision you
make in providing credit or services to me. I warrant and represent to you that this financial slatement and any other information 1may supply to you Is correct and tully and accurately discloses all
of my assets and liabilities including. but not fimi!ed to, my contingent liabilities. cash income. and cash expenses as of the dale I provide !his information to you. All appraisals and similar indications
of valua relating to my assets which are ava~ab!e to me as of this data are attaclled for your review. You may assume that my financial condition is at least as good as shown on this statement until
1provide you another updated financial statement You may request credit information about me from others including an investigative con$Umer report and you may request a consumer credit
report about me in connection with this statement for credit or services. If I ask you, you wm tell ma whether or not a consumer credft report was requesled and will also !ell me the name and
address of the reporting agency. I give you my permission to obtain additional consumer credit reports and investigative consumer reports withOut teHing me should you update, renew, extend, or
review my credit or other service arrangements with you. You may also share credit infonnatlon about me with your affiliates, subsidiaries, parent company, other credttors, and all others pannltted
or required by law. I understand that, in the event any information contained in the statement is incorrect, false, or misleading and you incur a loss, you may file a Criminal Referral Fonn as may be
requested or required by your suparvisory agency. I also understand that knoWingly providing false or miSleading infonnation in the finanr•al statement is a federnl offense that may subject me to
fine. imprisonment or both {18 USC Section 1014).
EXHIBIT B
467
U: PROPERTY
Lot 1, Block A, Seven Oaks Section 4. also known as 2:28 Sanostee Cove, Travis
County, TX. 787.33 or otherwise described on attached exhibit, together with all
Improvements to be constructed on the Property.
HI: I~IPROVE.\IIENTS
L\KEVVA 'r Cl STOM HO'\U;S A'iD R.E'iOVA TION shall provide all labor and materials for
construction of [X] a single family residence according to this Contract and the Plans,
prepared by Dominic Couturier of Italia Fine Homes, Inc., and specifications as,
prepared by L\KEWA v Ct:ST0:\1 Ho'\n:s A."m RE:"iOV -\noN and initiated by both parties
(collectively called the "'Plans"). The labor and materials required to construct the
rmprovements may be referred to as the "'\Vork". To be clear, Plans include all interior,
exterior and landscape drawings as si~p1ed off between Owner & Builder.
468
EXHIBIT C - Pag_e----y·
2
469
XJ: ,\LL0\\1'.-\~CES
Owner shall be entitled to allowances as speci tied in [] the Plans [X] the Allowance
Schedule attached to this contract as an exhibit. All savings attributable to allowances.
which are not spent. will be credited to 0\vner. and 0\vner v>ill be responsible for
costs exceeding the ,\l!owances. ff Owner selects allowance items in excess of sped tied
a!lo'vvances, L\KE\tv \ Y Cl STOM Ho:viES '-"'D RE\0\ -HiO" may submit an ""Allowance
Overage" to Owner in the form of a Change Order. Cpon approval by Ov.ner. the
Allowance Overage be payable with the next Progress Payments.
XH: I~SCR-\:"'CE
Before beginning the \Vork, LAKE\\ A\' 0. STOM HO\IES AND RDOV\TIO'i shaU obtain:
(a} Builders dsk insurance covering all insurable risks in an amount equal to or greater
than the Contract Price: (b) Comprehensive public and automobile liability insurance.
The cost for aH required insurance is included in the Contract Price. Proof of insurance
\MOuld be submitted to Owner prior to start of construction. Builder will also furnish the
Owner \vith a financial statement of LAKE\\ A\ CtSTOM Ho:m:s A:-lD RE:"lOV \TIO'i
prior to signing this contract.
EXHIBIT C- Pag~a 3
470
XVHI:O\V~ER'S AGREE,\;IE:'\'TS
0\vner agrees to: (a) \Iake all payments to L-\KE\\A Y CrsTO\l HO:\IES X'W
RE:"iO\ATIO'i required by this agreement (b) Perfom1 all other obligations of 0\vner
required by this agreement: and (c) Protect the title and possession of the Property and
pay all taxes and assessments prior to delinquency.
472
X..XHI:MECHA;\IIC'S UE~
Owner grants to L\KEWA v CtST0\1 HO\lES A'iD RE'iO\.A TIO'i a rnechanic 's lien to
secure performance of the obligations of Owner, and agrees. prior to beginning
construction, to execute a separate mechanic's lien contract acceptable to LAKE\\-\\'
CtST0\1 Ho\!ES A'iD RE'iOVA TION and the Interim Lender. if any. If Ovvner is obtaining
an interim construction loan. LAKE\"AY Ct STOM HO:\>IES A~D RE'iOVAT!O'Ii shall assi~rn
to the [ntc:rim Construction Lender a portion of Contractor's mechani~'s lien equal to the
amount of the interim construction toan obtained by Owner and to subordinate any
remaining amount of LAKE\\- A Y Cl STO\f HO\IES \~D RE.'iOVATiO:o>.i 's lien to the intcrhn
construction loan.
XXVI: ~0 ASSlG;"i:\!ENT
Neither party has the right to this agreement >vithout the vvritten consent of the
other unless this agreement is transferred per section XV.
EXHIBIT C- Pager&'
473
Special Provision: builder agrees that the square fOotage called on dra.,.vings are
approximate and the builder has his own calculation and is not relying on the square
footage table.
XX.X: CA~CELLATIO:"i
After I ;1 payment ofS43.800 is made, if there is any issue with the pennitting process
that pre\.ents the builder from obtaining the permit provided all the necessary septic,
foundation, framing design is completed by Builder ( & receipts shown to Owner) and all
fees (water meter and tab, electricaL HOA permit, and HOA deposit are paid by the
Builder), then Owner and Builder can mutually decide to cancel the contract with no
additional obligation to each other, except a 53500 HOA deposit payment is re!l.mded to
Owner by the Builder or the HOA, whoever is holding the S3500 deposit.
XXXI:ATTOR:\fEY FEES
If LAKE\\ A\: CUiT0\1 HO\IES A:'liD RE:'IiO\ .\TIO:'Ii or Ov,.·ner initiates any ,arbitration or
legal pwceeding in accordance vvith the Residential Construction Liability Act, brought
under or ~tvith relation to this contract each party will be responsible for their O'>vn
attorney's fees.
EXHIBIT C- Page7-:7
474
in the event any con f!ict or inconsistency between the provisions of Section ! through
xxxrv of this contract and the provisions of any ofthe attached exhibits and addenda.
the provisions of the attached exhibits and addenda shall govern and controL
475
K'iOvV YOLR RIGHTS AND RESPO:'iSIBiUTIES LNDER THE LAvV. You are
about to enter into a transaction to build a ne\v home or remodel e'\isting residential
property. Texas law requires your contractor to provide you vvith this brief overvievv of
some of your rights, responsibilities, and risks in this transaction.
KNO'vV YOL R CO\iTRACTOR. Before you enter into your agreement for the
construction of improvements to your real property, make sure that you have investigated
your contractor. Obtain and verify references from other people who have used the
contractor for the type and size of construction project on your property,
GET tT I'-1 WR!TI'iG. Make sure that you have a \.vritten agreement with your contractor
that includes: ( l) a description of the work the contractor is to perform: (2) the required
or estimated time for completion of the work: ( 3l the cost of the work or how the cost
will be determined: and (4) the procedure and method of payment, including provisions
for statutory Retainage and conditions for final payment. Take your time in reviewing
documents. lfyou bon-ow money from a lender to pay for the improvements. you are
entitled to have loan closing documents furnished to you for revievv at least one business
day before the closing. Do not waive this requirement unless a bonafide emergency or
another good cause exists, and make sure you understand the documents before you sign
them. If you fail to comply with the terms of the documents. you could lose your
property. You are entitl.ed to have your own attorney review any documents. lfyou have
any question about the meaning of a document consult an attorney.
GET A LIST OF SLBCONTRACTORS A'-iD SCPPUERS. Before constrnction
commences, your contractor is required to provide you with a list of the subcontractors
and suppliers the contractor intends to use on your project. Your contractor is required to
supply updated infom1ation on any subcontractors and suppliers added after the list
provided.
\[0'\.iiTOR THE vVORK. Lenders and go\·emmental authorities may inspect the •vork in
progress from time to time for their mvn purposes. These inspections are not intended as
£,« '1
EXHIBIT', C- f?llQE!!~. c.
476
).;10'\ilTOR PA YME~T. if you use a lender, your lender is required to provide you with
a periodic statement showing the money disbursed by the knder from the proceeds of
your loan. Your contractor is also required to furnish you with a statement at kast once
each month of money disbursed to subcontractors and suppliers for this project. Review
these statements and make sure that the money is being properly disbursed.
During construction and for 30 days after final comph~tion. termination. or abandonment
of the contract by the contractor, you should withhold or cause your lender to withhold l 0
percent of the amount of payments made tbr the work performed by your contractor. This
is sometimes referred to as ·statutory Retainage.' If you fail to withhold the l 0 percent
for at least 30 days after tinal completion, termination, or abandonment of the contract by
the contractor and if a valid claim is timely made by a claimant. you may be personally
liable and your property may be subject to a tien up to the amount that you failed to
withhold. If a claim is not paid within a certain time period. the claimant is required to
file a mechanic's lien affidavit in the real property records in the county where the
property is located. A mechanic's affidavit is not a lien on your property, but the filing of
the affidavit could result in a court imposing a lien on your property if the claimant is
successful in litigation to enforce the lien claim.
477
OWNERS:
I--·----·-- ---~-----
----""--·- _ _
Client: Dhiraj Handa
\\'ITNESS: _ _ _ _ _ _ __
f \
EXHIBIT C- Page 11
478
St:BCONTRACTORS
PHONE TR:\DE
SLPPLIERS
.f-).
.. . . (Month), 2.G+3
EXHrBIT C- Page 12
'ff
479
REFEREV ES
c5l2 HJ 1-82.2 7
r'
'-.........." .
EXHIBIT C - Page 13
480
A Sum of $100.00 per day would be the amount of penalty if the substantial
completion (including fun landscaping) is not achieved within 460 days of start of
construction payable to the Owners by Lakeway Custom Homes.
A sum of $100.00 per day would be the amount of bonus if the substantial
completion (including full landscaping) is achieved before the 460 days of start of
construction payable by the Owner to Lakeway Custom Homes.
,__,.
T~ -
Executed on 4 h A'/ kl ~-·· cl(' .21~ 10 J4(Effective Date).
l
/
Client: DhiraJ Handa
Ritu Handa
nan Dargahi
·"~."~ .. ~,·/
EXHIBIT C- Page 14
481
2. Vapor barrier: provide 6 mil polyethylene vapor barrier below entire slab
area.
Framing
The structural framing will be designed by a licensed professional engineer,
and it will include the following minimums to meet Lakeway Custom Homes &
Renovation standards:
EXHIBIT G- Page 15
482
Roofing
3. Concrete tile roof, Hanson large barrel, or approved equaL Roof would have
hand blended with 3 different cotors from manufacturer standard color
selection.
6. Valley flashing shall extend minimum 11" from center and have splash
diverter rib 1" high.
8. Concrete Tile roof to be selected from the standard manufacturer colors only.
9. Metal roof: 24 gauge standard color Kynar with 1" standing seam.
10. Metal covered gutters are included all around the house
Insulation
483
6. Sound reduction insulation will be installed on Bee Cave Street Side. Double
sheetrock will be installed in the bedroom, family room, prep kitchen on Bee
Cave side.
Drywall
L 5/8" Fire restraint drywall to all ceilings and garage/building common walls.
5. Tape, float and texture with heavy trowel on all walls at upper t1oor, main
t1oor and garage annex only, except the closets and the garages. All other area
to receive standard medium orange peel texture.
Finishes
Exterior:
• All wood to receive oil based primer and two coats of latex.
Interior:
c. Owner to select maximum of 2 colors per room on walls and one color
on ceiling per room.
1. Interior doors shc1!l be 1-3/4" fir 6 panel recessed paint grade solid core
doors.
\1\lindows
l. All windows shall be Pella double pane with low E glass, brown color
Vinyl windows.
3. All windows on Bee Caves side of the road, prep & main Kitchen Windows
to be special "Sound reduction" windows
Exterior Door
485
1. Al! cabinets shall be custom made with wood material using knotty alder in
the living areas and paint grade material in all closets.
2. All upper cabinets shall be 42"
3. All doors to have concealed European hinges
4. Allow for pull-out trash cabinet in kitchens (near sink) and pull-out
warmer drawer [near island).
Mirrors
1. All Framed Mirrors to be selected by the 0\lvner with budget not to exceed $1800.
Non-Framed mirrors are included outside of this $1800 budget
Granite
1. All Granite to be 3cm in all kitchen areas, bathroom areas and all niches with
3cm, teve! 2, glued strip/laminate edge and 2cm in other areas with 3cm glued
strip/laminate edge
Plumbing
4. Plumbing is included in all unfinished area and its limited to rough plumbing
and capped.
5. Re-circulating pump
/.
EXHIBIT c·-·Pag~ 19
I'
486
Note: 4 systems are included (2 for Main floor, 1 for upper f1oor, 1 forGE). AU
provisions for additional 1 system for basement will be made including compressor
pad.
Performance:
Electrical
r 1
EXHIBIT C- ~Ql
487
Exterior Concrete
Fireplaces:
L All Fireplaces to be 42" metal fireplaces.
Allowances
'vVe have provided the following allowances within our proposal; sales
taxes and delivery to jobsite are included vvithin allowances. However,
Builder coordinate the delivery schedule on behalf of Owner.
SO for the following items at owner discretions: Note: The Owner has elected to
exclude Allowances from this contract, but would deliver all to the builder at his
cost. The builder is only responsible for installation of the allowance !terns
excluding all the low voltage wiring and equipment.
a. Electrical Fix:ture
b. Plumbing fixtures
c. Appliances
d. Front Door
e. BathTubs
. (
EXHIBIT C- Pa~~2Y
488
Please Note:
Change the pool deck and upper courtyard to stamped concrete in lieu
of pavers for the sum of$0 (Zero Dollars) to be added to the contract
sum.
An 18" berm will be built along Bee Caves Road until the end of the
driveway.
EXHIBIT C - Page-.22
489
EXHIBIT cJ Page'2Y
490
i!
EXHIBIT C- Pa~'e~M."" ·
491
EXHIBIT C - Page~-~-..r
493
ARTICLE ONE
The name of the hmited hab!l!ty company is YEKK CONSTRUCTlON
SERVICES, lLC (the "Company").
ARTIClE TWO
The period of the Company's duration !S perpetual, unless the Company
I
1
ARTICLE THREE
The purpose for which the Company 1s organized is to transact any or all
lawful busmess for which limited !lability companies may be organized under the
Texas Limited Liability Company Act
ARTICLE fOUR
The address of the pnnc1pa! place of buslness of the Company in the State
of Texas, and the address of the rnltial registered oft1ce of the Company in the
· State of Texas, is 401 Lakeway Dr., Austin, Texas 78734, and the name of its initial
reg;stered agent at such address is Pejman Dargaht
EXHIBIT D- Page 1
494
Nome Address
ARTIClE SIX
The name of the orgamzer of the Company is Pe1man Dargahi, and h1s
address Is 401 Lakeway Dr., Austin, Texas 78734.
l
2
1
~2-
EXHIBIT D - Page 2
495
TX2015
ver~ s.c
OS-102
(Rev.9-13132)
micode 13196
Texas Franchise Tax Public Information Report
To be filed by Corporations. Um«ed liabiUty Companies {LLC} and Financial Institutions
This report MUST be $1gned am! flied to satl11fy fnm<:hlse tax requirements
•
11!1 Taxpayer number '( ou have ce n sunder ChaperI 552 and 559
!
17430094841 l I 2015 I
Governm1mt Code, to rl!vlew, request and correct information
we have on fila about you. Contact us at 1-800·252·1381.
J}~~~amCONSTRUCTION SERVICES LLC !1111 __Q Check box if the mailing addr~s nas changed.
_j Socr&t•ry ol State (SOS) foe nvmbar or
~a~"Sao~HOONER DR _____, Comptroller fila rtuml>or
j ZiP Code -
£1KEWAY
lSI!Jle
TX 78738 )Piv$l002 ~ 07093179:22
0 Check box if !here are currently no changes trom previous year; If no information is displayed, complete the applicable information in Sections A. B and C.
I
'J?E:JMAN DARGAHI MEMBER
i~ec~:s II Tll1111
ll<plrS!Ion
t
m m
2 3 1 1 5
:
d a y 'f
I
Maiitng e(ldress
125 SCHOONER DRIVE flKEWAY I TX
, St"'e
!z~8°73a
Name Ti!io Dir&e!Or
YES
l
!
Ttrm
exp;flf~on I
m m d d y y
;,
j
Mail.ng ad<lr&ss Ci!y ! State ~ ZII"Code
SECTION B Enter the tn!ormation required for each ccrporntlon or LLC.lf any, in which this entily owns an ill!erest of 10 percent or more.
' Nam& Qf owned ($ubsidiary) co,p001!ion or limited li&biiily company $lata ol fc>rmatiOil Texat> SOS file number, if any Percentage of owtll!t>hip
1
~----------------------------------------~~ --------------~---
SECTION C Enter the information required for each corporation or tlC. !I any, lhl!t owns anlllterest of 10 percent or mC>re in this entity or limited
liability company.
[ Nome ol owned {param) corporation or limited liability compeny i T$x&; SOS file number. il any Pell':ent&g~ o! owno~hip
I
Regos!<~rod eg&nt and regowor"d offu:e currently on file {see lnS!NCli<!n$ if you need to make changes)
Aget~t: PEJMAN DARGAHI 0
IOlfko: 125 SCHOONER DRIVE
IIIII llllllllllllllllllllllllllllllllllllllllllll
1024
EXHIBIT E
496
~---
Roofing 1-,s.o~,... •"
$116,800"00 8.0% $116,800"01) 8 9123/2015 843,800.00
9 Exterior Skin (Veneer) 1iJ:(i¢A, $146,000.00 10.0% $146,000.00 9 10116/2015 $6i 320.00
10 !Insulation & Sheetrock 5.0% $73,000.00 5.!)% "$73_,~ 10 1111312015 S43,BOO.OO
11 Trim & cabinets 5.0% $73,000.00 4.9% $70,080.00 11 $0.00
12 I Painting 3.0% $43,800.00 2.!l% $40,880.00 12 $0.00
---- $000
13 Flooring 4.0% $~~ 4.0% $58,400.00 13
14 M/EJP Final 4.0% S68 400 00 ·:_~~- __ _!~~ 14 sooo
' -::.:.::-::
15 Septlc System 2.0% $29,200.00 2.0% $29,200.00 15 $0.00
18 Landscaoino!lrrioation 3.0% $43 800.00 iJ.O% $0"00 16 $0.00
17 Driveways 4"0% $58,400"00 0.6% $8,760.00 17 $0.00
1--
18 Final 3.0% $43 800.00. 0.0% $0.00 16 $0.00
19 0.0% $0"00! 00% ____,.E&Q 19 so.oo
so.oa-t···r;a%-
20
21
--- -----r 0.0%
0.0% $0.00 0.0%
$0,00
$0.00
20
21
$C.OO
so.oo
22 0.0% $0.00 0.0% $0.00 22 so.oo
23 .._+0.0"1- ~------ $0.00 0.0% $0.00 23 $000
24 0.0% $0.00 0.0% $~~ 24 $0.00
25 0.0% $0.00 0.0% ______$~~ 25 SO.OO
26 0.0% $0.00 0.0% $0~-!!@ 26 so.oo
1--·
27
28
~----~--~--·-
I 0.0%
0.0% - $0.00
$0.00
0.0%
0.0%
$0.00
$0.00
27
28
$000
$0.00
29 0.0% $0.00 0.0% $0.00 29 sooo
30
31
O.O"k
0.0%
$0.00
$0.00
0.0%
0.0%
-~
$0.00
30
31
$0.00
SO.OO
32 0.0% $0.00 0.0% $0.00 32 $0.00
33 0.0% $0.00 0.0% $0.00 33 SO.OO
34 0.0% ·---~
$0.00 00% ---~-~ Total Draws $727,750"00
35 -j-
l 0.0% $0"00 ().0'1<>
$0.00
36 0.0% I so.oo 0.0% ~~ Funds Available: -$73,750.00 currently c
37 -·--------------j-9 or,.'!_
~--_________§QJ)_Q ___ .2Q!~-- --~--~2:-!1@ (Work Completad Less Drews)
38 ' 0.0% $0.00
'!.:.~~------~ Loan Balance: $727.750.00
39 0.0"/o $0.00 oo;:t..---+- -~
40 '
0.0% $0.00 OJ!% 1 $0.00 Funds Remaining;
·--so:oo
$72.250.00
41 I 0.0"/o $0.00 l'i.O% I
Total 100% $1,480,000.00 00.0% 1,314,~
-
Funds Remaining 572,250.00
Less 10% Retainage $146, DOO" 00
Available Net of Retainage __(S73, 750.00)_ Funded lh
Rev. 9/2412009
C:IUsorS\PajeiAppData\Locai\Micrcsol!IWindowsiiNetCacheiContentOutiook\1T2SPK!R\Haooa Inspect. Draw Schedule 1 i 12 15
EXHIBIT F
497
Hello Paje.
Funds have been wire to your account in the amount of $43,800. This is the maximum amount we could get approval to
fund per management. Funding this draw was an exception to policy, and required management approval.
Per the Risk Manager, there will be no further draws from the loan until the project is completed, and required
documentation provided (CO, Final survey, termite soil treatment record/borate materials documentation, and health
department approval for use of new septic system).
Please notify me when the project is 100% complete, so the final inspection can be ordered. Please forward above listed
documents as they become available.
Kathy
Kathy Neeley
. ~ s
Regions Bank dba Regions Mortgage
Construction/Permanent Lending
2050 Parkway Office Circle RCN-1
Birmingham, AL 35244
Phone: (205) 560-7157
Toll Free: (877) 215-3011
Fax: (877) 215-3023
Email: kathy.neeley@reg!ons.com
This message is for the named individuals' use only. It may contain confidential, proprietary or legally privileged
information. No confidentiality or privilege is waived or lost by any accidental transmission. if you receive this message
in error, please immediately destroy it and notify the sender. You must not directly or indirectly, use, disclose, distribute,
print, or copy any part of this message if you are not the intended recipient.
1
EXHIBlTG
498
No sir. Only $72,250 remains because we have already funded over the point of completion and the final10%. By policy
we should have only funded down to the $146,000 but you needed more funding to keep going. So an exception was
made, and you have now been funded down to the last $72,250.
Kathy
Kathy Neeley
This message is for the named individuals' use only. It may contain confidential, proprietary or legally privileged
information. No confidentiality or privilege is waived or lost by any accidental transmission. If you receive this message
in error, please immediately destroy it and notify the sender. You must not directly or indirectly, use, disclose,
distribute, print, or copy any part of this message if you are not the intended recipient.
>On Nov 13, 2015, at 3:23 PM, Kathy Neeley <Kathy.Neeley@Regions.com> wrote:
>
> Copy attached
>
>Kathy
> _______________________
> Kathy Neeley
>
>
1
EXHIBIT H- Page 1
499
2
EXHIBIT H - Page 2
500
Hi Raj,
I am writing this letter to confirm our earlier phone conversation. As I have said repeated times this
Project has been costing us a lot more than what you and I have anticipated.
All the funds that we have received from your bank has been spent on your house with an exception
of some token funds that we received.
The house is 95% completed, and we are ready and willing to bring your house to a successful 100%
completion, so you and your family could move in and enjoy this marvelous home.
I do need your assistant in financial form to achieve this. Currently we are about $150,000 +/-short
to finish our contract. Of course we do want to do the right thing and fulfill our contractual obligation,
but I don't see how we could move forward without your financial help.
We are willing to work with you on this deficit to bring this project to a successful completion
At this time your house is secured and no more activities could be performed unless we are
financially comfortable that we are able to continue paying for work performed by our subcontractors
and suppliers, that is the reason I requested to meet you in person to formulize an agreed plan.
Please advise.
Best
Kamran
1
EXHIBIT I
501
502
Outstanding Invokes:
Contact
m ratai
><
I
ttl
-l
503
November 18,2015
We represent Dhiraj and Rltu Handa in connection with the Contract You
executed the Contract, individually, effective as of April 4, 2014 and have partially
performed your obligations thereunder. However, we are sending this letter to you
pursuant to Articles XV, XVI and XXVII of the Contract to advise you that you are in
default under the Contract for the following reasons, although there may be other
defaults which we may subsequently advise you of:
1. You have stopped work under the Contract because, according to our
clients, you have no access to funds to complete both the remaining work under the
Contract or to correct defective work on the house which has resulted in leaks. You
made a draw request on November 13, 2015 and failed to advise our clients that you
could do no further work (until November 14, 2015 when you so advised our client,
which was after our clients paying the draw request from the prior day). In stopping
work, you are in default of Article XIV of the Contract.
2. You are in default of Article XII of the Contract in failing to provide to our
clients proof of currently required insurance and a financial statement for Lakeway
Custom Homes and Renovation (which is not a !ega! entity and not registered under
your name as an assumed name).
If you fall to remedy the defaults listed above by Noon, Monday, November 30,
2015, our clients will pursue all available remedies as set forth in Article XVII of the
Contract. If you cure these defaults by such time, our clients agree to refrain from
pursuing remedies for these particular defaults and will comply with their obligations
under the Contract.
2402986.1
401 Congress Avenue Suite 2200 Austin, Texas 78701 512.480.5600 www.gdhm.com
EXHIBIT L- Page 1
504
We also point out that the project covered by the Contract was to have been
substantially completed in August of 2015. In addition to all other remedies available to
our clients, you are liable for the late fee penalty of One Hundred and No/1 00 Dollars
($1 00. 00) per day for each day after the four hundred sixty (460) day deadline the
project remains substantially uncompleted. No valid extension of this deadline has
occurred according to our clients. You have not been deducting these amounts for your
draw requests. Furthermore, our clients have been overcharged, and have paid you,
Seven-three Thousand Seven Hundred Fifty and No/100 Dollars ($73,750.00) in excess
of what you should have invoiced our clients for. Finally, we urge you to keep the
premises secure from vandalism and theft.
If you have any questions or information regarding curing your defaults under the
Contract, please have your attorney call me. Thank you for your attention to these
matters.
Sincerely,
Rick Triplett
RT:kmh
24029861
EXHIBIT L- Page 2
505
BEFORE ME, the undersigned authority, em this day personally appeared Ted Guttirez,
knm.vn to me to be the person who signed this Affidavit, who being by me duly sworn, on oath
deposed and stated the foHowing:
1. "My name is Ted Gutierrez. I am over the age of eighteen, I have never been
convicted of a felony or any crime involving moral turpitude, and I am fully qualified to make
this affidavit.
2. "I was hired by Pejman Dargahi as the subcontractor (AT Gutters) to install rain
gutters at 228 Sanostee Cove, Austin, Texas 78733 (the "Project"). J: performed work on the
Project in or around November 2015.
3. have not been paid by Mr. Dargahi for completing the work on the Project,
although 1 have requested payment from him on several occasions. I was paid $4,672 by Mr.
Dargahi for work I performed on a different project on Indigo Lane Georgetown, Texas in
Ju!y2015.
DEREK~
MyNatmyiD#13!1421~
~~23.2019
EXHIBIT M
506
3014
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7/22/2014 3014 $7,000.00 7/23/2014 3015 $6,000.00
3018
7h..1J./ti M -MMJT.Jt
""""f-1·+------'! $ ~·a)
7/29/2014
~
3016 $5,000.00
EXHIBIT N - Page 1
507
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$ to?... '2J)oA)
EXHIBIT N - Page 2
508
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4/10/2015 3140 $300.00 4/22/2015 3141 $15,000.00
N-
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510
3G:.I98
-~.,LZ-9_//~ - ~
511
PERI
Visit us online at ProsperityBankUSA.com Statement Date 4/30/2015
29725 1 AT 0.406 Account No 215049255
YEKK CONSTRUCTION SERVICES LLC Page 1 of 6
DBA, LAKEWAY CUSTOM HOMES & RENOVATION
125 SCHOONER DR
LAKEWAY TX 78738-1001
1 11 111 1 •h lllll!llj 1111 1fh II• III 111 111111!. I! lflu!IJ 111 1111 11h
Check Number Date Amount Check Number Date Amount Check Number Date Amount
..0
8..... 3135 04-07 $332.38 3140 04-10 $300.00 3145 04-21 $24,585.00
3136 04-06 $341.41 3141 04-22 $15,000.00 3149* 04-23 $66.64
3137 04-07 $16,200.00 3142 04·14 $3,424.00 3158* 04·30 $1,500.00
3138 04-06 $2,450.01 3143 04·15 $1,510.00
3139 04-27 $105.00 3144 04-10 $1,200.00
513
3334
~--
~4"~~:~.rr~t:U:f1-:-;==:::;;"J s.4W·a?
514
EXHIBIT N - Page 9
515
-
-
EXHIBIT N- Page 10
516
YEKK000011
517
YEKK000012
518
YEKK000013
519
YEKK000014
520
YEKK000015
521
YEKK000016
522
YEKK000017
523
YEKK000018
524
YEKK000019
525
YEKK000020
526
f\.1r. Dargahi,
Please contact her for any questions you may have or any other business inquiries al (512) 690- !093.
Thank you,
EXHIBIT P1
527
0
l DATE OPENED --..>!..:l"-"-'..!.1':-"-ii.....,:tr:lr>'!f-"'
$-±fr~~~~=t.J~
-·----·-··SINGLE-PARTY ACCOUNT \AHI·IOUT "P.O. D." (Payable on l
Death) DESIGNA T!ON i INITIAL DEPOSIT
0 CASH ~
0 SINGLE--PARTY ACCOUNT
Death) DESIGNATION
1MTH "P.O.O.'' (Payable on II HOME TaEPHONE # ..,(5'-'1.:2.._)~4-'-'i5,_-.z.3.::.64""0"-------·---
DRIVffi'S LICENSE# - - - - - - - - - - - - - - - - - -
0 - - - - MULTIPLE-PARTY ACCOUNT WITHOUT RIGHT OF 6-MA!L paie1 @sbcglobal. net
SURVIVORSHIP
EMPLOYER _ _ _ _ _ - - - - - - - - - - - - - - - - · - - 1
fJ -----MULTIPLE-PARTY
SURVIVORSHIP
1MTH
(Payable
RJGHT
RJGHT
on
OF
OF
Death)
l BUSINESS PHONE# @..1.?.)415-3640 ------ ----~--~- !i
Name and address of someone who will al~-=-~::~o_::::n-== I
DESIGNATION
0 . CONVENIENCE ACCOUNT Number of signatures required for withdrawal
0 ____ TRUST ACCOUNT (name beneficiaries below) t:IMILESGNAT-5) ALLQWID? 0 YES ~ NO
0 -----TRUST ACCOUNT SUBJECT TO SEPARATE AGREEMENT
0 - - - OTHffi
DATED: - - - - - - - - - - - - - - - - - - - · - - - - - · - - - i
j
I
1
and agree to the terms of the fo!!owing agreement(s) and/or disciosure(s):
R9 Terms & Conditions ~ Truth in Savings ~ Funds Availability
0
0
OWNERSHIP OF.ACCOIJNT- BUSINESS PURPOSE
SOLE PROPRIETORSHIP
CORPORATION: 0 FOR PROFIT
~ LIMITED LIABILITY COMPANY
0 I (1)' [X
NOT FOR PROFIT
l
0 Common Features 0
--·--------l-
0 PARTNERSHIP
1I BUSINESS:
0
CONSTR_U_C_T_fO_N_ _. --·----==I I.D. #
PE.JMAN DARGAHI
17507099 Other 06/02/1957
TYPE OF
ACCOUNT
CHECKING
MONEY MARKET
0
0
0 NOW
0
0
SAVINGS
CERTIFICATE OF DEPOSIT
Qg Checking with lnte~est
1
I (3):
[, ]
-----·-··..·-·~---------- Other - - · - - - - - · - -
ACCOUNT NAME:TX Small Business Checkingwlnterest 1.0. #
because I have not be€11 notified that I am s\lbjecl !o backup withholding as a result of a failure
I
to report all interest or divide!Kls, or I he lntwnal Revenue Service has notified me that I am no .:
longer suhje<:! to backup withllolding.
1
0 EXEMPT RECIPIENTS - ! am an exempt recipient under the Internal Revenue Other _ _ _
Service Regulations,
SIGNATURE: I certify under penalties of perjury the statements checked In this
section and that I am aU.S, citizen or other U.S. person las delined In the lnstructioos~
X
[x' 1
"yEK=K'C""O"'N"'S""T"'R' U""C""T""IO'"N,...,S"'ERV""",.,IC""'E"""S_...,.L.-LC...- (Date) -------------- 1.0. # Other
Mr. Handa,
Prosperity Bank
Lakeway Branch
1415RR62oS
Lakeway TX 78734
512-261-U22
Acct# 21504925,5
Thank you
Paje Dargahi
Lakeway Custom Homes & Renovation, LLC.
(512)415-3640
EXHIBIT R
530
STATE OF TEXAS
COUNTY OF TRAVIS
CLAIMANT: Cobra Stone Inc., P. 0. Box 705, Jarrell, TX 76537 claims a mechanics or
materialman's lien on the reai property and improvements in the County of Travis, TX, described:
Property !D: 495230, consisting of 1.5330 acres, lot 1 Blk A Seven Oaks Sec 4 as fully
described in a deed recorded at 2011169746 TR in the City of Austin, County of Travis,
State of Texas
The owner or reputed owner is: Dhiraj & Ritu Handa, 228 Sanostee Cove, Austin, TX 78733
Said claim is for the sum of $9,562.55 plus interest at the legal rate from November 13, 2015, which is
due and unpaid to claimant (after deducting any just credit and offsets) for Iaber services, equipment
and/or materials furnished by claimant consisting of Autumn Blend Sandstone Flagstone.
The work or materials were furnished during the month of November, 2015.
Claimant furnished materials or labor pursuant to a contract with lakeway Custom Homes llC, 125
Schooner Drive, lakeway, TX 78738, Contractor.
The amount of $9,562.55 remains unpaid and is due and owing under said contract and claimant asserts
a lien on said improvements and premises to secure the payment of the amount claimed. The Claimant
provided the required Notice to the Owner on December 31, 2015 and Contractor on December 31,
2015.
I am duly authorized to make and do make this affidavit on behalf of said claimant.
Olivia Lara
Cobra Stone Inc.
P. 0. Box 705
Jarrell, TX 76537
EXHIBIT S - Page 1
531
BY:
_kRXtl-) --------
STATE OF:
5 appeared
PEiRA HERRERA
MY COMMISSION EXPIRES
May28,2011J
File No:
EXHIBIT S - Page 2
532
071500777793
1111
94071102 0088 2866 909910
Lakewav Custom Homes LLC
125 Schooner Drive
LAKEWAYTX 78738-1002
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
NO. 7013 3020 0000 9781 6308
1. Pursuant to Texas Property Code Section 53.056, you are hereby notified that the
invoices, statements, or billings attached to this notice is/are a true and accurate
account of labor and materials furnished to YEKK Construction, LLC, the original
contractor, during the month ofNovember of2015 in com1ection with improvements
on the above referenced job site.
3. You are further notified that if this account remains unpaid, you may be personally
liable and your property subjected to a lien unless you withhold payments from
YEKK Construction, LLC, your original contractor, in an amount necessary to pay
this claim or unless this claim is otherwise settled.
4. Richard Danek, the undersigned, hereby makes demand upon you for the payment of
$4,070.00, the amount due on the attached invoice, statement or billing.
~0~
Richard Danek
Vice-President
Anchor Ventana Glass
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
NO. 7013 3020 0000 9781 6315
EXHIBIT S - Page 4
534
(1) After receiving notice of the unpaid claim from the claimant, you fail to
withhold payment to your contractor that is sufficient to cover the unpaid
claim until the dispute is resolved.
(2) During construction and for 30 days after completion of construction, you fail
to retain 10 percent of the contract price or 10 percent of the value of the
work performed by your contractor.
If you have complied with the law regarding the 10 percent retainage and you have
withheld payment to the contractor sufficient to cover any written notice of claim and
have paid that amount, if any, to the claimant, any lien claim filed on your property by a
subcontractor or supplier, other than a person who contracted directly with you, will not
be a valid lien on your property. In addition, except for the required 10 percent retainage,
you are not liable to subcontractor or supplier for any amount paid to your contractor
before you received written notice of the claim.
EXHIBITS- Page 5
535
ANCIHOR ;{fi;!
ANCHOR-VENT ANA GLASS "VENTP·J'-lA
1609 CBJSHOLM TRAIL ROAD
ROlJND ROCK, TX 78681
Phon~(512)388-9400 INVOICE NO
Fax: (512) 388-5311 2342
Karen Johnston
Sales
Rep (512) 238-5116
KJOHNSTON@VENTANAMA
SOLD
YEKK CONSTRUCTION, LLC SHIP
TO DBA: LAKEWAY CUSTOM HOMES TO
I I
MSTR & BATH 4 HINGED ON LEFT. I
BATH 3 HINGED ON RIGHT.**NOTE/
I' t MSTR BATH MAY NOT PASS 1 1
I CODE, OPENING IS ONLY 23 1/8. I i i
--t-----1~ · 28" ·FRAMELESS SHOWER DOOR 1 990.oo-t- 99o.oo l
I IN GUEST BATH, HINGED ON l I !
------------f-------:-+--------.,..,--=-c-:c-
o.oo!-o.oo
L I I ~~~~~~ :~~§~RDE~~-T~LE _L_ _ _L___ j
EXHIBIT S - Page 6
536
BEFORE ME, the undersigned authority, on this day personally appeared Dhiraj Handa,
known to me to be the person who signed this Mfidavit, who being by me duly sworn, on oath
deposed and stated the following:
1. "My name is Dhiraj Handa. I am over the age of eighteen, I have never been
convicted of a felony or any crime involving moral turpitude, and I am fully qualified to make
this affidavit.
2. "I hired Pejman Dargahi and Kamran Dargahi (the "Builders") for construction of
a single family residence at 228 Sanostee Cove, Austin, Texas 78733 (the "Project") on April 4,
2014. Before entering into the contract for the Project, Pejman Dargahi and Kamran Dargahi
represented to me that they would open an account at Prosperity Bank (Account# 215049255)
for the purpose of using funds deposited by me or my bank lender for the Project. Pejman
Dargahi and Kamran Dargahi represented to me that the funds deposited into Account #
215049255 would only be used for the Project. Pejman Dargahi and Kamran Dargahi continued
to represent to me after work had commenced on the Project that the funds deposited into
Account # 215049255 were only being used for the Project. There were no deposits made into
this account except by me or my bank lender. Based on Pejman Dargahi's and Kamran
Dargahi's representations that my payments would be used solely for the Project, I agreed to
enter into the contract for the Project. Had I known that that they were not going to use aH of my
payments solely for the Project, I would not have entered into the contract. Had Pejman Dargahi
or Kamran Dargahi disclosed to me during the course of the Project that they were not using all
of my payments for the Project, I would have ceased making progress payments upon learning
this information.
537
4. "In November 2015, the Builders asked for a tenth construction draw, allegedly to
continue making progress on the Project. Once the $43,800 payment was approved and paid on
November 13, 2015, the Builders almost immediately stopped work on the Project and
abandoned the building site. Prior to halting work on the Project, the Builders had never
disclosed to me that they had been using any of my payments for any purpose other than
completion of the Project, nor did they ever disclose to me that they believed they were entitled
to divert payments from my construction account at Prosperity Bank. During the course of their
work on the Project, the Builders did not provide me access to the bank statements for the
Project's construction account, which was controlled by the Builders.
5. "Since the inception of the Project, I have paid $114,892.00 to the Builders for
agreed Change Orders and in addition, have paid, directly or through my construction lender
(Regions Bank), $1,387,750 towards progress payments per the contract for the Project
6. "Since the Builders abandoned the Project in November 2015, I have received
multiple notices from subcontractors of liens on the subject property due to the Builders' failure
to pay the subcontractors for their services, including, but not limited to, Anchor Mirror and
Glass (for $4,070), Arnold Serdan Granite (for $7,637.50), and Cobra Stone (for $9,562.55).
7. "Since the Builders abandoned the Project in November 2015, I have had to spend
over $130,000 above the contract price and excluding agreed change orders in order to partially
complete the Builders' unfinished work."
,, -, ~~<:i~" ~ etA...~
VANESSA AlVMADO Notary Public in and for The State of Texas
Notary 10 II 130796682
My Commission Expires
August 25. 2020
538
On this day, the Court considered Plaintiffs' Traditional Motion for Partial Summary
Judgment The Court having considered the submissions of the parties, and having heard
argument of counsel, FINDS that Plaintiffs' Motion is well taken and should be granted.
Judgment be, and hereby is, GRANTED as to the following: (i) all Defendants' liability for
violation of the Texas Construction Trust Fund Act, Section 162.03l(a), Tex. Prop. Code, and
violation of Defendants' fiduciary duties to Plaintiffs thereunder; (ii) all Defendants' liability for
common law fraud; (iii) all Defendants' liability for statutory fraud under Section 27.01, Tex.
Bus. & Comm. Code; and (iv) Defendants Pejman Dargahi's and Yekk: Construction Services,
LLC, d/b/a Lakeway Custom Homes and Renovation's liability for breach of contract.
interest, attorneys' fees, and costs from Defendants in an amount to be determined at a future
hearing or trial. Whether Plaintiffs are entitled to exemplary damages and in what amount shaH
Dated: ~~~·-··---
JUDGE PRESIDING
539
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME
2 TRIAL COURT CAUSE NO. D-1-GN-16-001279
COURT OF APPEALS NO. 03-17-00386-CV
FILED IN
3 3rd COURT OF APPEALS
AUSTIN, TEXAS
4 DHIRAJ HANDA AND RITU ) IN THE DISTRICT
6/19/2017 COURT
2:46:47 PM
HANDA, ) JEFFREY D. KYLE
5 Plaintiffs, ) Clerk
)
6 VS. )
) TRAVIS COUNTY, TEXAS
7 PEJMAN DARGAHI, KAMRAN )
DARGAHI, AND YEKK )
8 CONSTRUCTION SERVICES, )
LLC, D/B/A LAKEWAY CUSTOM )
9 HOMES AND RENOVATION, )
Defendants. ) 261ST JUDICIAL DISTRICT
10
11
12 _______________________________________________________
13
14 HEARING ON MOTION FOR PLEA IN ABATEMENT
15 AND MOTION TO COMPEL ARBITRATION
16
17 _______________________________________________________
18
19
20 On the 24th day of May, 2017, the following
21 proceedings came on to be heard in the above-entitled
22 and numbered cause before the Honorable Amy Clark
23 Meachum, Judge Presiding, held in Austin, Travis
24 County, Texas:
25 Proceedings reported by machine shorthand.
1 APPEARANCES
2
3 FOR THE PLAINTIFFS:
4 DAVID A. KING
SBOT NO. 24083310
5 GRAVES, DOUGHTERTY, HEARON & MOODY
401 Congress Avenue, Suite 2200
6 Austin, Texas 78701
Phone: (512) 480-5722
7
8
FOR THE DEFENDANTS:
9
RUSSELL CLINAGE
10 SBOT NO. 24006148
STEPHANIE H. LUGO
11 SBOT NO. 00793927
BUSH, RUDNICKI, BUSH, SHELTON, P.C.
12 2508 Ashley Worth Boulevard, Suite 200
Austin, Texas 78738
13 Phone: (512) 263-8408
14
15
16
17
18
19
20
21
22
23
24
25
1 INDEX
2 VOLUME 1
3 HEARING ON MOTION FOR PLEA IN ABATEMENT
4 AND MOTION TO COMPEL ARBITRATION
5
6 MAY 24, 2017
7 Page Vol.
8 Announcements............................ 4 1
9 Argument by Mr. Clinage.................. 4 1
10 Argument by Mr. King..................... 10 1
11 Argument by Mr. Clinage.................. 21 1
12 Argument by Mr. King..................... 25 1
13 Argument by Mr. Clinage.................. 27 1
14 Argument by Mr. King..................... 28 1
15 Argument by Mr. Clinage.................. 29 1
16 TAKEN UNDER ADVISEMENT................... 29 1
17 Adjournment.............................. 32 1
18 Court Reporter's Certificate............. 33 1
19
20
21
22
23
24
25
1 STATE OF TEXAS )
)
2 COUNTY OF TRAVIS )
3 I, Alicia Racanelli, Official Court Reporter in and
4 for the 201st District Court of Travis County, State of
5 Texas, do hereby certify that the above and foregoing
6 contains a true and correct transcription of all
7 portions of evidence and other proceedings requested in
8 writing by counsel for the parties to be included in
9 this volume of the Reporter's Record, in the
10 above-styled and numbered cause, all of which occurred
11 in open court or in chambers and were reported by me.
12 I further certify that this Reporter's Record of
13 the proceedings truly and correctly reflects the
14 exhibits, if any, offered in evidence by the respective
15 parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $ 184.00 and
18 was paid by Defendants.
19 WITNESS MY OFFICIAL HAND on this the 19th day of
20 June, 2017.
21
22 /s/ Alicia Racanelli
Alicia Racanelli, Texas CSR No. 3591
23 Expiration Date: 12/31/2018
Official Court Reporter, 201st District Court
24 Travis County, Texas
P.O. Box 1748, Austin, Texas 78767
25 Telephone (512) 854-4028
Reporter
2011 Tex. App. LEXIS 1588 *; 2011 WL 749292
conspiracy.
SEB, Inc. d/b/a Circle B Mobile Homes; Sam P.
Bath, Jr.; and Larry Cousins, Appellants v. Alvie Overview
Campbell and Julia Campbell, Appellees
The customers purchased a manufactured home
Prior History: [*1] FROM THE DISTRICT from appellants in 2004. In 2006, the customers
COURT OF TRAVIS COUNTY, 353RD sued appellants and others, and discovery ensued.
JUDICIAL DISTRICT. NO. D-1-GN-07-00756, In 2010, appellants filed a motion to compel
HONORABLE PAUL R. DAVIS, JR., JUDGE arbitration. The trial court denied the motion, but
PRESIDING. the court reversed and remanded with instructions.
Tex. Civ. Prac. & Rem. Code Ann. § 51.016 applied
Disposition: Reversed and Remanded.
to this appeal because it was initiated after the
Core Terms effective date of the statute. The claims asserted
against appellants arose out of or related to the
arbitration, arbitration agreement, discovery, home purchase, and therefore were covered by the
parties, mobile home, motion to compel arbitration, arbitration agreement. Appellants did not seek a
compel arbitration, waived, trial court, asserted judicial resolution of the dispute with the customers
claim, invoked, right to arbitration, judicial process, or filed affirmative claims. While appellants did not
enforceability, pet, co-defendant, depositions, file the motion to compel arbitration until 45
requests, manufactured home, determinations, months after the suit was filed, delay alone was
disputes, noticed, cause of action, opposing party, generally insufficient to establish waiver.
activities, responding, purchaser, applies, entity, Appellants' predominantly defensive measures
novo responding to the customers' actions did not
substantially invoke the litigation process, for
Case Summary waiver purposes, to the customers' detriment. The
customers, by deciding to initiate the lawsuit,
Procedural Posture voluntarily incurred expenses and assumed liability
Appellants, a company, its president, and its for such. Appellants did not waive the right to
salesman, challenged a decision of the District arbitration.
Court of Travis County, 353rd Judicial District
(Texas), which denied their motion to compel Outcome
arbitration against appellee customers. The The court reversed the order denying the motion to
customers had sued alleging deceptive trade compel arbitration. The court remanded with
practices, breach of contract, promissory estoppel, instructions that the trial court compel arbitration of
trespass to chattel, negligence, fraud, and the claims.
Civil Procedure > Appeals > Appellate HN4[ ] Alternative Dispute Resolution,
Jurisdiction > Interlocutory Orders Judicial Review
The appellate court applies the same standard when
Page 2 of 12
APPENDIX TO APPELLANTS' AMENDED BRIEF 451
SEB, Inc. v. Campbell, 2011 Tex. App. LEXIS 1588 (Tex. App. – Austin 2011, no pet.) (mem. op.)
reviewing an interlocutory order denying a motion Civil Procedure > Appeals > Standards of
to compel arbitration regardless of whether the Review > Questions of Fact & Law
appeal is brought pursuant to the Texas Arbitration
Act or is authorized by Tex. Civ. Prac. & Rem. HN6[ ] Federal Arbitration Act, Arbitration
Code Ann. § 51.016. The appellate court will defer Agreements
to the trial court's factual determinations if Whether an enforceable agreement to arbitrate
supported by the evidence, review its legal exists is a legal question that the appellate court
determinations de novo, and reverse the trial court's reviews de novo.
order only if the appellate court concludes that the
trial court abused its discretion by denying the Contracts Law > Defenses > Fraud &
motion to compel arbitration. Misrepresentation > General Overview
Page 3 of 12
APPENDIX TO APPELLANTS' AMENDED BRIEF 452
SEB, Inc. v. Campbell, 2011 Tex. App. LEXIS 1588 (Tex. App. – Austin 2011, no pet.) (mem. op.)
When the principal is bound by the terms of a valid detriment. Whether a party has waived arbitration
arbitration agreement, its agents, employees, and by litigation conduct is a question of law, which the
representatives are also covered by the agreement. appellate court reviews de novo. A strong
The scope of an arbitration agreement may be presumption against waiver exists, and any doubts
extended to claims against agents of the principal are resolved in favor of arbitration. Implying
bound by the agreement when all the agents' waiver from a party's actions is appropriate only if
allegedly wrongful acts relate to their behavior as the facts demonstrate that the party seeking to
agents of the principal, and those acts were within enforce arbitration intended to waive its arbitration
the scope of the claims covered by the arbitration right.
provisions for which the principal would be liable.
Parties to contract containing arbitration provision Business & Corporate
generally intend to include disputes about agent's Compliance > ... > Alternative Dispute
actions because actions of corporate agent on Resolution > Arbitration > Waiver
behalf of corporation are deemed corporation's acts.
Extending the scope of an arbitration provision to HN11[ ] Arbitration, Waiver
an agent of the party who agreed to arbitration Waiver must be decided on a case-by-case basis
furthers the policy favoring arbitration and the looking at the totality of the circumstances. Factors
parties' intent to provide a single forum for considered in determining whether a party has
resolving disputes arising under an agreement. substantially invoked the judicial process include
how much discovery has been conducted and who
Business & Corporate initiated it, whether the discovery related to the
Compliance > ... > Pretrial merits rather than arbitrability or standing, how
Matters > Alternative Dispute much of the discovery would be useful in
Resolution > Judicial Review arbitration, and whether the movant sought
judgment on the merits. Whether the movant is a
Civil Procedure > Appeals > Standards of plaintiff or defendant is also relevant to the
Review > De Novo Review consideration, but does not alone justify a finding
of waiver or change the totality of the
Evidence > Inferences & circumstances test.
Presumptions > Presumptions
Business & Corporate
Business & Corporate Compliance > ... > Alternative Dispute
Compliance > ... > Alternative Dispute Resolution > Arbitration > Waiver
Resolution > Arbitration > Waiver
HN12[ ] Arbitration, Waiver
Civil Procedure > Appeals > Standards of Delay alone is generally not sufficient to establish
Review > Questions of Fact & Law waiver.
Business & Corporate
HN10[ ] Alternative Dispute Resolution,
Compliance > ... > Alternative Dispute
Judicial Review
Resolution > Arbitration > Waiver
The standard for determining waiver of the right to
Evidence > Relevance > Relevant Evidence
arbitration, however, is the same under both the
Texas Arbitration Act and the Federal Arbitration
Act. Courts will not find that a party has waived a
right to enforce an arbitration agreement by taking HN13[ ] Arbitration, Waiver
part in litigation unless the party has substantially The court does agree that in certain circumstances
invoked the judicial process to the opposing party's the litigation activities of a co-defendant may be
Page 4 of 12
APPENDIX TO APPELLANTS' AMENDED BRIEF 453
SEB, Inc. v. Campbell, 2011 Tex. App. LEXIS 1588 (Tex. App. – Austin 2011, no pet.) (mem. op.)
relevant to the question of whether a party seeking absent explanations and evidentiary support, will
arbitration invoked the judicial process, as, for not establish prejudice for waiver of arbitration
example, when a co-defendant moves for summary purposes.
judgment on an issue common to all defendants.
Civil Procedure > Appeals > Standards of
Business & Corporate Review > Abuse of Discretion
Compliance > ... > Alternative Dispute
Resolution > Arbitration > Waiver HN16[ ] Standards of Review, Abuse of
Discretion
Civil Procedure > Discovery & A trial court exceeds its discretion if it acts in
Disclosure > General Overview arbitrary or unreasonable manner or without
reference to guiding rules or principles.
Evidence > Inferences &
Presumptions > Inferences Counsel: For Appellant: Mr. Jeffrey C. Tasker,
Tasker & Peterson, PLLC, Flower Mound, TX.
HN14[ ] Arbitration, Waiver
Waiver of arbitration requires a showing of For Appellee: Mr. James C. Mosser, Mosser Law
prejudice. Even substantially invoking the judicial PLLC, Dallas, TX.
process does not waive a party's arbitration rights
Judges: Before Chief Justice Jones, Justices
unless the opposing party proves that it suffered
Puryear and Pemberton.
prejudice as a result. A court should not ordinarily
infer waiver based on prejudice if a party seeking Opinion by: J. Woodfin Jones
arbitration has conducted only a minimal amount of
discovery, and the party opposing arbitration has Opinion
not met its burden of showing sufficient prejudice.
Taking unfair advantage of discovery proceedings
MEMORANDUM OPINION
that would not have been available in arbitration
might constitute sufficient prejudice to infer This is an interlocutory appeal from a trial court's
waiver. However, when only a minimal amount of order denying a motion to compel arbitration. In a
discovery has been conducted, and such discovery single issue, appellants SEB, Inc. d/b/a Circle B
may also be useful for the purpose of arbitration, Mobile Homes ("SEB"), Sam P. Bath, Jr., and
courts do not ordinarily infer waiver based on Larry Cousins (collectively, "Circle B") contend
prejudice to the party opposing arbitration. A party the trial court erred because the claims asserted
who requests a significant amount of discovery is against them by appellees Alvie Campbell and Julia
not prejudiced by getting it and taking it to Campbell are subject to a valid arbitration
arbitration to the same degree as a party who agreement and Circle B did not waive the right to
produces significant discovery outside the stricter arbitration. We reverse the trial court's order and
discovery limits of arbitration. The rules and remand the cause with instructions that the trial
procedures of the American Arbitration Association court compel arbitration of the Campbells' claims
permit the arbitrator to allow discovery. against Circle B.
Page 5 of 12
APPENDIX TO APPELLANTS' AMENDED BRIEF 454
SEB, Inc. v. Campbell, 2011 Tex. App. LEXIS 1588 (Tex. App. – Austin 2011, no pet.) (mem. op.)
Industries, [*2] Inc. ("Cavco"). The Campbells also argued that SEB was not a signatory to the
purchased the land on which the manufactured Arbitration Agreement and therefore could not
home was located from 967, Ltd. ("967"). enforce it. The Campbells contend that the only
Cottonwood Enterprise, Inc. ("Cottonwood") was parties to the Arbitration Agreement are the
967's general partner, and Doug Lewis was Campbells and "Circle B Homes," an entity they
Cottonwood's vice president. In August 2006, the claim did not exist at the time the Arbitration
Campbells filed suit against SEB, Bath, Cousins, Agreement was signed, is not presently a party to
Cavco, 967, and Cottonwood asserting causes of the litigation, and is not the entity from whom the
action arising out of the negotiation and sale of the Campbells purchased [*4] their manufactured
home and land. Specifically, the Campbells alleged home.2
causes of action for violations of the Texas
Deceptive Trade Practices Act, breach of contract, After a hearing, the trial court denied Circle B's
promissory estoppel, trespass to chattel, negligence, motion to compel arbitration without specifying the
negligence per se, common law fraud, fraud in a grounds for its ruling. This appeal followed.
real estate transaction, and civil conspiracy.1
STANDARD OF REVIEW
Over the next 45 months, the Campbells pursued
their claims against these defendants by serving In its motion to compel arbitration, Circle B sought
discovery, responding to discovery requests, and to compel arbitration under the Federal Arbitration
responding to dispositive motions filed by Cavco, Act ("FAA"), 9 U.S.C. §§ 1-16 (2006) and/or the
Texas Arbitration Act ("TAA"), Tex. Civ. Prac. &
967, Cottonwood, and Lewis. Circle B's litigation
Rem. Code Ann. §§ 171.001-.098 (West 2005). The
activities during that time included responding to
Arbitration Agreement does not specify which law
the Campbells' discovery requests, responding to
applies, and neither the parties nor the trial court
limited discovery from co-defendant Cavco,
has taken a position on the governing law.3
serving the Campbells with requests for disclosure,
noticing two depositions that ultimately were not In the end, however, there is no material difference
taken, [*3] and participating in depositions of Alviebetween the two standards. HN1[ ] Until recently,
Campbell and Julia Campbell that were noticed by orders denying motions to compel arbitration
a co-defendant. subject to the FAA were not subject to interlocutory
In June 2010, Circle B filed a motion to compel appeal; instead, they were reviewed in mandamus
arbitration of the claims asserted against it by the proceedings using an abuse-of-discretion standard.
Campbells, relying on a document titled See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266,
"Arbitration Agreement" that the Campbells signed 272-73 (Tex. 1992). Under that standard we defer to
on the day they closed on the home and land the trial court's factual determinations if they are
purchase. The Arbitration Agreement was signed
by Bath under the company name "Circle B 2 There is no dispute that the Campbells purchased the home from
Homes." In their response and objection to the SEB, Inc. d/b/a Circle B Mobile Homes.
motion to compel arbitration, the Campbells 3
Although the Arbitration Agreement recites that its "validity and
asserted that Circle B had waived the right to enforceability" [*6] are governed by the FAA, it does not indicate
arbitration by substantially invoking the judicial whether that statute or the TAA governs other aspects of an
process to their prejudice. At the hearing on the arbitration proceeding pursuant to the agreement. Furthermore, the
motion to compel arbitration, the Campbells also record does not include a copy of the sales contract for the mobile
home purchase. See In re L&L Kempwood Assocs., L.P., 9 S.W.3d
125, 127 (Tex. 1999) HN3[ ] ("[I]f the parties do not explicitly
state which statute applies, the courts must look to the contract
1
The Campbells later amended their petition to assert causes of between the parties, applying the FAA if the contract involves
action against Lewis. interstate commerce.").
Page 6 of 12
APPENDIX TO APPELLANTS' AMENDED BRIEF 455
SEB, Inc. v. Campbell, 2011 Tex. App. LEXIS 1588 (Tex. App. – Austin 2011, no pet.) (mem. op.)
supported by evidence, but we review the trial [*7] agreement and they did not waive their right to
court's legal determinations [*5] de novo. In re arbitrate. HN5[ ] A party seeking to compel
Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. arbitration must establish the existence of a valid,
2009). As amended in 2009, section 51.016 of the enforceable arbitration agreement and that the
civil practice and remedies code now permits asserted claims fall within the agreement's scope. In
courts to review such orders by appeal: re Oakwood Mobile Homes, Inc., 987 S.W.2d 571,
573 (Tex. 1999). The party seeking arbitration has
HN2[ ] In a matter subject to the [FAA], a the initial burden to present evidence of an
person may take an appeal or writ of error to arbitration agreement. Id. Once the existence of an
the court of appeals from the judgment or arbitration agreement has been established, a
interlocutory order of a district court, county presumption attaches favoring arbitration. Henry v.
court at law, or county court under the same Gonzalez, 18 S.W.3d 684, 689 (Tex. App.—San
circumstances that an appeal from a federal Antonio 2000, pet. dism'd by agr.). The burden then
district court's order or decision would be shifts to the opposing party to present evidence that
permitted by 9 U.S.C. Section 16. the agreement was procured in an unconsionable
manner or induced or procured by fraud or duress;
Tex. Civ. Prac. & Rem. Code Ann. § 51.016 (West that the other party has waived its right to compel
Supp. 2010). Section 51.016 applies to this appeal arbitration under the agreement; or that the dispute
because it was initiated after September 1, 2009, falls outside the scope of the agreement. In re
the effective date of the statute. This Court has not Oakwood Mobile Homes, Inc., 987 S.W.2d at 573.
addressed the standard of review applicable to
appeals brought pursuant to section 51.016. Is There a Valid Arbitration Agreement
However, in appeals of orders denying arbitration
under the TAA, we also apply a no-evidence HN6[ ] Whether an enforceable agreement to
standard to the trial court's factual determinations arbitrate exists is a legal question that we review de
and a de novo review to its legal determinations. novo. J. M. Davidson, Inc. v. Webster, 128 S.W.3d
See Trammell v. Galaxy Ranch Sch., L.P., 246 223, 227 (Tex. 2003). At the hearing on the
S.W.3d 815, 820 (Tex. App.—Dallas 2008, no pet.). [*8] motion to compel arbitration, SEB introduced
into evidence a document titled "Arbitration
Therefore, HN4[ ] we apply the same standard Agreement" dated October 29, 2004 (the
when reviewing an interlocutory order denying a "Arbitration Agreement"). This agreement
motion to compel arbitration regardless of whether provides:
the appeal is brought pursuant to the TAA or is This Arbitration Agreement ("Agreement") is
authorized by civil practice and remedies code executed contemporaneously with an
section 51.016. We will defer to the trial court's installment or sales contract ("Contract") for
factual determinations if supported by the evidence, the purchase of a manufactured home
review its legal determinations de novo, and reverse ("Home") as described in the Contract by the
the trial court's order only if we conclude that the purchaser ("Purchaser") from the selling
trial court abused its discretion by denying the retailer ("Retailer").
motion to compel arbitration. See id. ...
Page 7 of 12
APPENDIX TO APPELLANTS' AMENDED BRIEF 456
SEB, Inc. v. Campbell, 2011 Tex. App. LEXIS 1588 (Tex. App. – Austin 2011, no pet.) (mem. op.)
delivery, condition, installation, financing, The Campbells maintain that the Arbitration
repair or servicing of the Home and any Agreement is "not valid or enforceable" by SEB
warranties, either express or implied, pertaining because it was not signed by SEB. In this regard,
to the Home, and including claims for equitable the Campbells assert that Sam P. Bath's signature
relief or claims based on contract, tort, statute, on behalf of "Circle B Homes" is insufficient to
or any alleged breach, default, or constitute execution of the Arbitration Agreement
misrepresentation, will be resolved by binding by SEB. But the Arbitration Agreement expressly
arbitration administered by the American provides that any contests to its validity or
Arbitration Association ("AAA") under its enforceability shall be determined by the provisions
Commercial Arbitration Rules. Any contests to of HN8[ ] the Federal Arbitration Act, which does
the validity or enforceability of this Agreement not require an arbitration agreement to be signed,
shall be determined [*9] by the provisions of so long as it is in writing and agreed to by the
the Federal Arbitration Act and the rules of the parties. See In re AdvancePCS Health L.P., 172
AAA. S.W.3d 603, 606 (Tex. 2005); Security Serv. Fed.
... Credit Union v. Sanders, 264 S.W.3d 292, 301 (Tex.
CIRCLE B HOMES App.—San Antonio 2008, no pet.); In re
6610 E Ben White Autotainment Partners Ltd. P'ship, 183 S.W.3d 532,
Austin, Texas 78741 535 (Tex. App.—Houston [14th Dist.] 2006, orig.
By: /s/ Sam P. Bath proceeding); see also Valero Ref., Inc. v. M/T
X /s/ Alvie Campbell Lauberhorn, 813 F.2d 60, 63-64 (5th Cir. 1987)
X /s/ JCampbell (although FAA requires arbitration agreement to be
written, it does not expressly require agreement to
The Campbells acknowledge that (i) they signed be signed by parties). Moreover, a contract can still
the Arbitration Agreement as part of the process by be effective if signed by [*11] only one party. See
which they acquired the mobile home; (ii) they DeClaire v. G & B McIntosh Family Ltd. P'ship.,
were the purchaser of the mobile home, and 260 S.W.3d 34, 44 (Tex. App.—Houston [1st Dist.]
therefore they are the "Purchaser" referred to in the 2008, no pet.). The Arbitration Agreement includes
Arbitration Agreement; and (iii) they purchased the nothing to indicate that it was not effective unless
mobile home from SEB. The Campbells do not signed by all parties. Consequently, even if we
assert that there was fraud, deceit, or agreed with the Campbells' assertion that SEB did
misrepresentation involved in their signing the not actually sign the Arbitration Agreement, such
Arbitration Agreement. Accordingly, the alleged failure would not, in this case, constitute a
Campbells are bound by the agreement. See In re bar to the agreement's validity or enforceability.
McKinney, 167 S.W.3d 833, 835 (Tex. 2005)
HN7[ ] (absent fraud, misrepresentation, or The Campbells next contend that SEB is not a party
deceit, parties are bound by terms of contract to the Arbitration Agreement because (1) the name
signed). In its verified motion to compel arbitration, SEB, Inc. d/b/a Circle B Mobile Homes does not
SEB stated that it entered into the Arbitration appear in the text of the agreement, and (2) the
Agreement with the Campbells. Bath, SEB's party that signed the agreement was "Circle B
president, signed the Arbitration Agreement on Homes," not "Circle B Mobile Homes." Although
behalf of "Circle B Homes." SEB moved to compel the Arbitration Agreement does not refer to SEB by
arbitration on the ground that SEB and the name, it does refer to the "selling retailer" of the
Campbells agreed at closing that all disputes arising mobile home, which all parties agree was SEB.
out of or relating to the Campbells' purchase Moreover, the fact that the agreement was signed
[*10] of the mobile home would be resolved by by Sam P. Bath under the company name "Circle B
binding arbitration. Homes" supports, rather than undermines, the
Page 8 of 12
APPENDIX TO APPELLANTS' AMENDED BRIEF 457
SEB, Inc. v. Campbell, 2011 Tex. App. LEXIS 1588 (Tex. App. – Austin 2011, no pet.) (mem. op.)
conclusion that SEB is a party to the Arbitration Ins. Group, Inc., 192 S.W.3d 759, 762 (Tex. 2006)
Agreement. Circle B Mobile Homes is a d/b/a of (parties to contract containing arbitration provision
SEB, the company from which the Campbells generally intend to include disputes about agent's
bought [*12] their mobile home. Sam P. Bath is its actions because actions of corporate agent on
president. Bath's signature on the Arbitration behalf of corporation are deemed corporation's
Agreement is consistent with, and is further acts). Extending the scope of an arbitration
evidence supporting, SEB's contention that the provision to an agent of the party who agreed to
purchaser and the seller of the mobile home in arbitration furthers the policy favoring arbitration
question agreed to arbitrate any disputes arising and the parties' [*14] intent to provide a single
from that transaction. We reject the Campbells' forum for resolving disputes arising under an
suggestion that the omission of the word "Mobile" agreement. See McMillan, 66 S.W.3d at 481 (citing
from the signature block proves that the agreement Pritzker v. Merrill Lynch, Pierce, Fenner, & Smith,
is between them and an entity wholly unrelated to Inc., 7 F.3d 1110, 1121 (3rd Cir. 1993)).
SEB called "Circle B Homes"—an entity the
Campbells acknowledge does not exist. The only In the present case, the Campbells specifically
reasonable conclusion is that the omission of the alleged that their claims against Bath and Cousins
word "Mobile" was an oversight, and that Bath's arose out of actions taken within the course and
signature evidences that the retailer (SEB) agreed scope of their employment with SEB. The causes of
to the arbitration provision. We hold that the action alleged against Bath and Cousins all arose
evidence conclusively shows that the Campbells out of or are related to the Campbells' home
and SEB agreed to arbitrate any disputes arising out purchase. On appeal, the Campbells do not dispute
of or related to the Campbells' purchase of the that they have asserted claims against Bath and
manufactured home. We further conclude, and the Cousins, as agents of SEB, that relate to the
Campbells do not contend otherwise, that the manufactured home purchase. Rather, they contend
claims asserted against SEB in this lawsuit all arise that "no entity to which [] Bath and Cousins were
out of or relate to the home purchase and are agents is a party to the alleged Arbitration
therefore covered by the Arbitration Agreement. Agreement." Because we have concluded that SEB
is a party to the Arbitration Agreement, the
The Arbitration Agreement also applies to the Campbells' only stated objection to Bath's and
claims asserted [*13] against Bath and Cousins. Cousins's motion to compel arbitration fails. We
HN9[ ] When the principal is bound by the terms hold that the claims asserted by the Campbells
of a valid arbitration agreement, its agents, against both Bath and Cousins are covered by the
employees, and representatives are also covered by Arbitration Agreement.
the agreement. See In re Merrill Lynch Trust Co.,
123 S.W.3d 549, 555 (Tex. App.—San Antonio Did Circle B Waive the Right to Arbitration
2003, orig. proceeding); McMillan v. Computer
The Campbells assert that Circle B waived the right
Translation Sys. & Support, Inc., 66 S.W.3d 477,
to [*15] arbitration by participating in the
481 (Tex. App.—Dallas 2001, orig. proceeding).
underlying litigation for 45 months before moving
The scope of an arbitration agreement may be
to compel arbitration. As previously noted, neither
extended to claims against agents of the principal
the trial court nor the parties indicate whether this
bound by the agreement when all the agents'
action is governed by the TAA, the FAA, or both,
allegedly wrongful acts relate to their behavior as
and the agreement fails to specify which law
agents of the principal, and those acts were within
applies. HN10[ ] The standard for determining
the scope of the claims covered by the arbitration
waiver of the right to arbitration, however, is the
provisions for which the principal would be liable.
same under both the TAA and the FAA. See Sedillo
McMillan, 66 S.W.3d at 481; see also In re Vesta
Page 9 of 12
APPENDIX TO APPELLANTS' AMENDED BRIEF 458
SEB, Inc. v. Campbell, 2011 Tex. App. LEXIS 1588 (Tex. App. – Austin 2011, no pet.) (mem. op.)
v. Campbell, 5 S.W.3d 824, 825 (Tex. App.— either by the Campbells or by other parties to the
Houston [14th Dist.] 1999, no pet.). Courts will not litigation. Circle B did not seek a judicial resolution
find that a party has waived a right to enforce an of the dispute with the Campbells, nor has it filed
arbitration agreement by taking part in litigation affirmative claims or dispositive motions. This is
unless the party has substantially invoked the not a case in which the party seeking arbitration
judicial process to the opposing party's detriment. turns to arbitration only after failing to obtain a
See In re Bank One, N.A., 216 S.W.3d 825, 827 satisfactory result in court. See In re Bruce
(Tex. 2007); In re Serv. Corp. Int'l, 85 S.W.3d 171, Terminix Co., 988 S.W.2d at 704. While Circle B
174 (Tex. 2002). Whether a party has waived did not file the motion to compel arbitration until
arbitration by litigation conduct is a question of 45 months after the suit was originally filed,
law, which we review de novo. See Perry Homes v. HN12[ ] delay alone is generally not sufficient to
Cull, 258 S.W.3d 580, 587 (Tex. 2008). A strong establish waiver. See In re Vesta Ins. Group, Inc.,
presumption against waiver exists, and any doubts 192 S.W.3d at 763.
are resolved in favor of arbitration. See In re D.
Wilson Constr. Co., 196 S.W.3d 774, 783 (Tex. The Campbells argue that this Court should also
2006); In re Bruce Terminix Co., 988 S.W.2d 702, consider the activities of co-defendant Cavco
705 (Tex. 1998). [*16] Implying waiver from a because of "Cavco's consent to arbitration, its status
party's actions is appropriate only if the facts as a beneficiary [of the Arbitration Agreement], and
demonstrate that the party seeking to enforce considering that the Campbells will be forced to
arbitration intended to waive its arbitration right. arbitrate their claims against Cavco." As an initial
See EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 89 matter, we note that Cavco did not file a motion to
(Tex. 1996). compel arbitration and, because the issue is not
before us, we express no opinion as to whether
HN11[ ] Waiver must be decided on a case-by- Cavco has waived any right to arbitration it may
case basis looking at the totality of the have [*18] under the Arbitration Agreement.
circumstances. See Perry Homes, 258 S.W.3d at HN13[ ] We do agree, though, that in certain
591. Factors considered in determining whether a circumstances the litigation activities of a co-
party has substantially invoked the judicial process defendant may be relevant to the question of
include how much discovery has been conducted whether a party seeking arbitration invoked the
and who initiated it, whether the discovery related judicial process, as, for example, when a co-
to the merits rather than arbitrability or standing, defendant moves for summary judgment on an
how much of the discovery would be useful in issue common to all defendants. In this case,
arbitration, and whether the movant sought however, Cavco moved for summary judgment on
judgment on the merits. Id. at 591-92. Whether the causes of action asserted against it based on
movant is a plaintiff or defendant is also relevant to particular facts not generally applicable to other co-
the consideration, but does not alone justify a defendants. Disposition of Cavco's motion for
finding of waiver or change the "totality of the summary judgment thus had no effect on the claims
circumstances test." Id. at 592. asserted against SEB, Bath, or Cousins. We
decline, therefore, to attribute Cavco's litigation
Circle B's use of the judicial process was limited to activities to Circle B.
filing answers, serving a first and later an amended
request for disclosure, noticing two depositions that Not only did the Campbells fail to show that Circle
ultimately were not taken, and participating in the B substantially invoked the judicial process, they
depositions of Alvie Campbell and Julia Campbell also failed to establish that they suffered resulting
that were [*17] noticed by co-defendant Cavco. prejudice. See Perry Homes, 258 S.W.3d at 595
The remainder of the discovery was propounded HN14[ ] (waiver of arbitration requires showing
Page 10 of 12
APPENDIX TO APPELLANTS' AMENDED BRIEF 459
SEB, Inc. v. Campbell, 2011 Tex. App. LEXIS 1588 (Tex. App. – Austin 2011, no pet.) (mem. op.)
of prejudice); In re Bruce Terminix Co., 988 S.W.2d useful in an arbitration proceeding. There is no
at 704 ("Even substantially invoking the judicial indication that Circle B obtained sensitive
process does not waive a party's arbitration rights documents or information through the discovery
unless the opposing party proves that it suffered process that they would not have been able to
prejudice as a result."). A court should not obtain in the arbitration proceeding. See Williams
ordinarily [*19] infer waiver based on prejudice if a Indus., Inc. v. Earth Dev. Sys. Corp., 110 S.W.3d
party seeking arbitration has conducted only a 131, 135 (Tex. App.—Houston [1st Dist.] 2003, no
minimal amount of discovery, and the party pet.).
opposing arbitration has not met its burden of
showing sufficient prejudice. See In re D. Wilson At the hearing on the motion to compel arbitration,
Constr. Co., 196 S.W.3d at 783. Taking unfair the Campbells' attorney attempted to establish
advantage of discovery proceedings that would not prejudice by stating that he had "well over a
have been available in arbitration might constitute hundred thousand dollars [*21] in just hard
sufficient prejudice to infer waiver. See Structured attorney's fees working on motions, depositions,
Capital Res. Corp. v. Arctic Cold Storage, LLC, and preparation to try this case." The supreme court
237 S.W.3d 890, 895 (Tex. App.—Tyler 2007, no has rejected a similar argument when, as here, the
pet.). However, when only a minimal amount of pre-trial costs were "largely self-inflicted" because
discovery has been conducted, and such discovery the plaintiff sent "far more discovery requests than
may also be useful for the purpose of arbitration, he received" and the party seeking arbitration did
courts do not ordinarily infer waiver based on not engage in extensive discovery. See In re Vesta
prejudice to the party opposing arbitration. See In Ins. Group, Inc., 192 S.W.3d at 763 (no waiver
re D. Wilson Constr. Co., 196 S.W.3d at 783; In re when discovery activities of party seeking to
Vesta Ins. Group, Inc., 192 S.W.3d at 763; In re compel arbitration were limited to serving standard
Bruce Terminix Co., 988 S.W.2d at 703. Counsel request for disclosure, noticing four depositions,
for Circle B questioned two witnesses during and sending request for production). Counsel for
depositions noticed by Cavco. Circle B also the Campbells further testified that his clients
responded to discovery propounded by the would be prejudiced because "his fee agreement
Campbells. While the Campbells conducted a addresses acting as trial counsel in this matter, and
significant amount of discovery, Circle B did not does not address the issues of acting as arbitration
serve the Campbells with any discovery beyond counsel." He stated that the Campbells would be
routine requests for [*20] disclosure. In Perry "forced to obtain new counsel" for an arbitration.
Homes, the supreme court observed that a party Assuming the truth of this assertion, the Campbells
who requests a significant amount of discovery is created this problem themselves by choosing to
not prejudiced by getting it and taking it to enter into such an agreement despite knowing that
arbitration to the same degree as a party who they had agreed to arbitrate these claims. Any
produces significant discovery outside the stricter prejudice they may suffer as a result of their
discovery limits of arbitration. 258 S.W.3d at 600. decision to retain an attorney who [*22] was unable
Moreover, the Arbitration Agreement states that or unwilling to represent them in an arbitration
arbitration is to be conducted in accordance with proceeding is, like the expense of discovery they
the rules and procedures of the American conducted, "self-inflicted." The Campbells' attorney
Arbitration Association. Those rules permit the also stated at the hearing that the added delay and
arbitrator to allow discovery. See In re Bruce expense of arbitration would prejudice the
Terminix, 988 S.W.2d at 704-05. It is not clear Campbells, but HN15[ ] "generalized complaints
what, if any, information Circle B or the Campbells about delay and expense, absent explanations and
obtained through discovery that would not be evidentiary support, will not establish prejudice."
Structured Capital Res. Corp., 237 S.W.3d at 896;
Page 11 of 12
APPENDIX TO APPELLANTS' AMENDED BRIEF 460
SEB, Inc. v. Campbell, 2011 Tex. App. LEXIS 1588 (Tex. App. – Austin 2011, no pet.) (mem. op.)
Page 12 of 12
APPENDIX TO APPELLANTS' AMENDED BRIEF 461