ACCEPTED

03-14-00503-CV

3641199

THIRD COURT OF APPEALS

AUSTIN, TEXAS

1/2/2015 10:27:53 PM

JEFFREY D. KYLE

CLERK

Cause No. 03-14-00503-CV 

IN THE 

THIRD COURT OF APPEALS 

AT AUSTIN 

Kohler v. Chiquillo 

Original Proceeding From the Hays County Court at Law No. 1 

Appellant's Brief on the Merits 

Kent Kohler 

7500 Shadowridge Run, #64 

Austin, Texas 78749 

(512) 663-5458 

Kent kohler@praxair.com 

Pro Se Appellant 

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/2/2015 10:27:53 PM JEFFREY D. KYLE Clerk
IDENTITY OF PARTIES AND COUNSEL 

Appellant. 

Party, Kent Kohler. 

Prose Appellant. 7500 Shadowridge Run #64, Austin, Texas 78749, 

Telephone: (512) 663-5458, Email: kent kohler@praxair.com. 

Appellee. 

Party, Claudia Chiquillo. 

Appellee. 120 Victoria Court, Austin, Texas 78747. Telephone: (512) 497-

9098. Email: cayachilO@gmail.com 
TABLE OF CONTENTS 

IDENTITY OF PAR TIES AND COUNSEL ............................................... .i 

TABLE OF 

CONTENTS ........... .. ............... .................. ............. ...... ............... .. .ii 

TABLE OF 

AUTHORITIES ...................................... .. ......... ... ..... ...................... .iv 

STATEMENT OF THE CASE .............................................. ............... l 

ISSUES PRESEN1'ED .......... .. ..... ...................... ... .. ...... ..................... 2 

STATEMENT OF FACTS ... ................ ... .... ............. ......... ............. ...... 3 

SlJMMARY OF THE ARGUMENT ....................................................... 6 

ARGUMENT 

STANDARD OF REVIEW .......................................................... 7 

I. THE TRIAL COURT ERRED IN GRANTING SUMMARY 

JUDGMENT AGAINST MR. KENT KOHLER ................................. ? 

A. The trial court erred in granting summary judgment because it refused to 

hear Appellant's arguments against summary judgment.. ....................... ? 

B. The trial court erred in granting summary judgment because Appellee's 

own evidence provides a presumption of bad faith, thereby raising a fact 

issue as to whether Appellee was entitled to recover any damages 

whatsoever .......................................................................... 9 

C. The trial court erred in granting summary judgment because the 

pleadings and proof provided by Appellee did not determine as a matter 

of law that Mr. Kohler was not due a partial or full refund of his security 

deposit. ........... .... ........... ....... .... .. ... ..... ............................. 12 

D. The trial court erred in granting summary judgment because it 

determined as a matter of law that Appellee was entitled to summary 

judgment based on the affirmative defense of Contributory Negligence in 

a breach of contract action ... .... .. ........ ........ .. .......................... .12 

E. The trial court erred in granting summary judgment because it 

determined as a matter of law that Appellee was entitled to summary 

ii 
judgment based on the affirmative defense of Estoppel when the 

pleadings and evidence do not support such a claim ............................... 13 

CONCLUSION .......... .............. .................................... .. ................ 14 

CERTIFICATE OF SERVIC£ ............................................................ 16 

CERTIFICATE OF COMPLIANCE ............... ................... ... ............... .17 

PRAYER ................... .. ........ ... ... .. ..... .............. .................. .......... . l8 

APPENDIX .................................................................... .............. 19 

Order Granting Defendant's Motion for Summary Judgment ................. 20 

iii 
TABLE OF AUTHORITIES 

CASES PAGE(S) 

Coleman v. Woolf, 129 S.W.3d 744 (2004) .. .............................................. 9 

Goforth v. Bradshaw, 296 S.W.3d 849 (2009) ... .. ........ ....... .... .. .. ...... ........... 8 

Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985) .. ............. 7 

STATUTES 

Texas Civil Practices and Remedies Code Chapter 33 ....... ....... ............ ... 12, 13 

Texas Property Code Section 92 ................................................... 3, 10, 11 

Texas Rules of Civil Procedure Section 21a .. ......... ... .... ......... ....... ........ 8, 15 

Texas Rules of Civil Procedure Section 166a .......... ...... ......... ..... ........ ....... 9 

iv 
STATEMENT OF THE CASE 

This case arose from a dispute over the security deposit Appellant, tenant, 

paid upon moving into the property of Appellee, landlord. Appellant initiated a 

claim against Appellee for return of the deposit in the Justice Court, Precinct 1, 

Place 1, in Hays County, Texas. Appellee did not appear for the hearing, so 

Appellant was granted a default judgment for the full amount of his deposit, 

$1,950. Appellee appealed the default judgment, thereby invoking the appellate 

jurisdiction of County Court at Law Number 1 in Hays County, Texas, wherein the 

presiding judge granted a traditional summary judgment in favor of Appellee. 

Appellant has appealed to the 3rd Court of Appeals in Austin, Texas. 

1 
ISSUES PRESENTED 

Whether the court erred when it refused to hear Appellant's arguments against 

summary judgment in his response to Appellee's motion for summary judgment, 

because Appellant failed to include a Certificate of Service in the response, even 

though Appellee acknowledged actual service of the response eight days before the 

hearing. 

Whether the court erred in granting Appellee's motion for summary judgment on 

Appellee's counterclaim for breach of contract when there was a genuine issue of 

material fact as to whether Appellee was entitled to deduct any amount, let alone 

the entire amount, from Appellant's security deposit when there was a presumption 

of bad faith on the part of Appellee, per Texas Property Code, for not providing 

either an itemized list of deductions, or a refund of the deposit, within 30 days of 

receiving Appellant's written notice and change of address. 

Whether the court erred in granting Appellee's motion for summary judgment 

since Appellee failed to disprove an element of Appellant's claim for breach of 

contract by failing to prove, as a matter of law, that Appellant was not entitled to a 

return of his security deposit. 

Whether the court erred in granting Appellee's motion for sunnary judgment on 

Appellee's affirmative defense of Contributory Negligence against an action for 

breach of contract. 

Whether the court erred in granting Appellee's motion for summary judgment on 

Appellee's affirmative defense ofEstoppel 

2 
STATEMENT OF FACTS 

In August 2010, Appellant entered into a lease agreement with Appellee, for 

her property at 120 Victoria Court, Austin, Texas 78737. (C.R. 123). Appellant 

paid a security deposit in the amount of$1,950.00. (C.R. 133). Appellant moved 

out on May 5, 2013, leaving the home in excellent condition. In a text message 

from Appellant to Appellee, Mr. Kohler offered to have several neighbors verify to 

Ms. Chiquillo that the home was in excellent shape when he moved out, with the 

exception of some damage to the wood floors. In this text message, dated May 11, 

2013, Appellant provided Appellee with his new address and requested the 

remainder of his security deposit. (C.R. 180). 

Pursuant to TEXAS PROPERTY CODE 92.109, a landlord is required to 

refund a security deposit on or before the 30th day after the tenant surrenders the 

premises, provided the tenant gives a written forwarding address. A landlord who 

fails to return the deposit or to provide an itemization of deductions on or before 

the 30th day after tenant has surrendered possession is presumed to have acted in 

bad faith. A landlord who retains a tenant's security deposit in bad faith may not 

withhold any portion of the security deposit or bring suit against tenant for 

damages to the premises, and is liable to the tenant in an amount equal to the sum 

of $100, three times the portion of the deposit wrongfully withheld (here, the entire 

deposit since the landlord forfeited the right to withhold any amount for damages 

3 
to the premises), as well as the tenant's reasonable attorney's fees in a suit to 

recover the deposit. 

Ms. Chiquillo did not refund any portion of Mr. Kohler's security deposit, 

nor did she provide an itemized list of deductions until June 11, 2013. (C.R. 237). 

This itemized list was in response to numerous attempts by Mr. Kohler to discuss 

the return of the security deposit. Ms. Chiquillo's email providing the itemized list 

was in response to an email from Mr. Kohler, also dated June 11, 2013, alerting 

Ms. Chiquillo to the fact that he received a quote to fix the floors in the amount of 

$650, and requested a refund in the amount of$1,300. (C.R. 108). Since Ms. 

Chiquillo failed to provide a refund or itemized list on or before the 30th day after 

Mr. Kohler surrendered the premises and provided a written forwarding address, 

she is presumed to have acted in bad faith. 

On July 12, 2013, Appellant filed a claim for "rent deposit in the amt of 

$1,950" in the Justice Court, Precinct 1, Place 1, Hays County, Texas. (C.R. 

22,23). Appellee has misstated that Appellant was attempting to sue for "rent and 

security deposit." (C.R. 126). Mr. Kohler used the phrase "rent deposit" 

colloquially as a synonym for "security deposit", as evidenced by the amount of 

the claim, $1,950.00, which was the amount of his security deposit. Mr. Kohler 

was now requesting the entire security deposit, and not the reduced amount of 

$1,300, since Ms. Chiquillo did not act within the 30 days required by the Texas 

4 
Property Code. Since Ms. Chiquillo failed to appear at the original hearing, a 

default judgment was granted and signed on August 19,2013. (C.R. 4). On August 

27, 2013, the justice court rescinded the default judgment and set a court date for 

October 1, 2013. On October 16, 2013, the justice court found for Mr. Kohler in 

the amount of$1,300.00. (C.R. 15). On October 23, 2013, Appellee filed a Notice 

of Appeal with the Hays County Court at Law. (C.R. 8). Appellee filed a motion 

for summary judgment on a counterclaim for breach of contract, as well as two 

affirmative defenses: Contributory Negligence and Estoppel, on March 11,2014. 

(C.R. 123). The hearing was set in the County Court of Law in Hays County, 

Texas for April2, 2014. Mr. Kohler and Ms. Chiquillo were present. Ms. 

Chiquillo's attorney, Mr. Avera, did not appear. Mr. Avera contends in Appellee's 

response to Appellant's motion for new trial that "(t]hrough a series of agreed 

setting changes, the matter was finally heard on April30, 2014." (C.R. 262). There 

was no series of agreed setting changes; the parties were forced to reschedule due 

to Mr. Avera's failure to appear. On April22, 2014, Appellant filed a response to 

Appellee's motion for summary judgment. Appellant included a cross motion for 

summary judgment. The court did not accept Appellant's cross motion for 

summary judgment because it was not filed 21 days prior to the hearing date of 

Apri130, 2014. The court also did not accept Appellant's response to Appellee's 

motion for summary judgment because it did not contain a Certificate of Service, 

5 
even though it was timely sent and Appellee acknowledged receipt of the response 

eight days prior to the hearing. (C.R. 262). 

The county court granted Appellee's motion for summary judgment on April 

30, 2014. (C.R. 241). On May 30, 2014, Appellant filed a motion for new trial with 

the county court. (C.R. 242). The motion for new trial was denied on July 16, 

2014. (C.R. 265). On August 13,2014, Appellant filed notice of appeal in this 

Court. (C.R. 267). 

SUMMARY OF THE ARGUMENT 

The trial court erred in granting summary judgment against Mr. Kohler 

when (1) it refused to hear Appellant's arguments against summary judgment; (2) a 

fact issue exists as to Appellee's bad faith and whether she was entitled to damages 

at all; (3) the pleadings and proof provided by Appellee did not determine as a 

matter of law that Mr. Kohler was not due a partial or full refund of his security 

deposit; ( 4) it determined as a matter of law that Appellee was entitled to summary 

judgment based on the affirmative defense of Contributory Negligence in a breach 

of contract action; (5) it determined as a matter of law that Appellee was entitled to 

summary judgment based on the affirmative defense ofEstoppel when the 

pleadings and evidence do not support such a claim. 

6 
ARGUMENTS 

STANDARD OF REVIEW 

An appellate court applies the following in reviewing a summary judgment: 

1. The movant has the burden of showing that no genuine issue of material 

fact exists and that he is entitled to judgment as a matter of law; 

2. In deciding whether a disputed material fact issue precludes summary 

judgment, the court must take evidence favorable to the non-movant as 

true; 

3. The court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in its favor. 

See Nixon v. Mr. Property Management Co., 690 S.W.2d 546,548-49 (Tex. 1985). 

I. THE TRIAL COURT ERRED IN GRANTING SUMMARY 

JUDGMENT AGAINST MR. KENT KOHLER 

A. The trial court erred in granting summary judgment because it refused to 

hear Appellant's arguments against summary judgment. 

Appellant submitted a response to Appellee's motion for summary 

judgment on April22, 2014, eight days prior to the hearing of Apri130, 

2014. Included in the response was a cross-motion for summary 

judgment. Appellee argued in a motion presented the day of the hearing, 

April 30, 2014, that Appellant's arguments against summary judgment 

7 
should not be heard because they were not timely. Appellant concedes 

that his cross-motion for summary judgment was not timely; however, 

his response to Appellee's motion for summary judgment was timely. 

The trial court refused to hear the arguments included in the response 

because the response lacked a Certificate of Service, and because the 

response was considered defective due to lack of an affidavit attesting to 

the veracity of the evidence. 

Appellee acknowledged through her motion of April30, 2014 that she 

did indeed receive Appellant's response eight days prior to the hearing. 

According to Goforth v. Bradshaw, "[t]hough a certificate of service is 

required by Rule 21 a and is recognized as presumptively establishing 

service, here we have acknowledged, actual delivery. We believe that is 

the key ... " Goforth v. Bradshaw, 296 S.W.3d 849,854 (2009). Although 

Appellant did not strictly comply with Rule 21 a to presumptively 

establish service, through Appellee's own motion we have actual, 

acknowledged service. It is Appellant's beliefthat actual, acknowledged 

service should be considered superior to presumptive service, and his 

arguments should have been considered since timely service was proven 

beyond doubt. 

8 
Appellant received Appellee's objection to Appellant's summary 

judgment evidence just minutes before the hearing on April30, 2014. In 

order to correct the defect, Appellant requested a continuance on two 

separate occasions and was denied. According to Coleman v. Woolf, 

"when a summary judgment movant objects to summary judgment 

evidence proffered by the non-movant, the burden lies upon the nonmovant to request relief under rule 166a(f), including a continuance or 

the opportunity to cure any formal defects in the non-movant's summary 

judgment evidence." Coleman v. Woolf, 129 S.W.3d 744,750 (2004). Per 

Rule 166a(f) of the Texas Rules of Civil Procedure, defects in form of 

affidavits are not grounds for reversal unless they are pointed out by the 

opposing party and given an opportunity to amend, but refusing to do so. 

Tex. R. Civ. P. 166a(f). Appellant was handed Appellee's objections just 

moments before the hearing, twice requested a continuance and was 

twice denied, and was not afforded an opportunity to amend. 

B. The trial court erred in granting summary judgment because Appellee's 

own evidence provides a presumption of bad faith, thereby raising a fact 

issue as to whether Appellee was entitled to recover any damages 

whatsoever. 

In Appellee's reply to Appellant's response to Appellee's motion for 

summary judgment, Appellee states that Appellant provided his 

forwarding address to Ms. Chiquillo on May 11, 2013. (C.R.Supp., 8). 

9 
Ms. Chiquillo did not provide an itemized list of deductions until June 

11, 2013. (C.R., 27). In this itemized list, the amount to repair the 

flooring was listed as $1,534.17. Id. However, in her motion for summary 

judgment, she requested over four times that amount for flooring, 

$6,231.57. (C.R., 132). According to the proposal, attached as Exhibit F 

to the motion for summary judgment, she received two quotes from the 

flooring company. One for $1,534.17 to replace the wood in the damaged 

areas. The proposal states that replacing the damaged planks would "fit 

almost perfectly," with a possibility of a "fme height difference." (C.R., 

158). The second quote, $6,231.57, was to sand and refmish the entire 

house to "make all look like it is new." Id. Appellant was not under any 

obligation to make Appellee's home look like it was new upon moving 

out. His obligation was to repair any damaged areas, which he had agreed 

to do, excepting normal wear and tear. 

The Texas Property Code imposes strict requirements on landlords 

regarding the return of security deposits. Specifically, a landlord ''who 

fails to return a security deposit or to provide a written description and 

itemization of deductions on or before the 30th day after the date the 

tenant surrenders possession is presumed to have acted in bad faith." Tex. 

Prop. Code section 92.1 09( d). When a landlord acts in bad faith, and 

10 
wrongfully retains a security deposit, the landlord is liable for "an 

amount equal to the sum of$100, three times the portion of the deposit 

wrongfully withheld, and the tenant's reasonable attorney's fees in a suit 

to recover the deposit." Tex. Prop. Code section 92.109(a). Further, when 

the landlord does not provide a written description and itemized list of 

damages and charges, the landlord: 

( 1) Forfeits the right to withhold any portion of the security deposit or 

to bring suit against the tenant for damages to the premises; and 

(2)Is liable for the tenant's reasonable attorney's fees in a suit to 

recover the deposit. Tex. Prop. Code section 92.1 09(b ). 

Ms. Chiquillo's own evidence shows a text from Appellant with his 

forwarding address on May 11, 2013. She also provided as evidence an 

email from herself to Appellant giving an itemized description of 

damages on June 11, 2013. Since the written description and itemized list 

of damages was not provided on or before the 30th day after Appellant 

surrendered possession and provided a forwarding address, Ms. Chiquillo 

forfeited her right to withhold any portion of the deposit for damages. 

She is also presumed to have acted in bad faith, and as such owes 

Appellant $100 plus three times the amount of his security deposit of 

$1,950. 

11 
C. The trial court erred in granting summary judgment because the 

pleadings and proof provided by Appellee did not determine as a matter 

of law that Mr. Kohler was not due a partial or full refund of his security 

deposit. 

As stated in section B, there are questions of bad faith on the part of 

Appellee, as well as a large discrepancy in the amounts that Appellee 

provided as necessary to repair the damaged floors. The discrepancy 

between the Appellee's own proposed amounts to ftx the damage are 

enough to show that there is a question of fact regarding whether she had 

any lawful right to retain any of Appellant's security deposit. The Justice 

Court awarded Appellant $1,300, which was equal to the security 

deposit, minus $650 for the repairs to the floors. (C.R., 10). If Appellee's 

own discrepancies aren't enough to show a question of fact, surely the 

difference between her proposals and the amount awarded by the Justice 

Court should. 

D. The trial court erred in granting summary judgment because it 

determined as a matter of law that Appellee was entitled to summary 

judgment based on the affirmative defense of Contributory Negligence in 

a breach of contract action. 

Appellee's motion for summary judgment included an affirmative 

defense of contributory negligence. Appellee's motion stated that the 

defense of contributory negligence was codifed in Chapter 33 of the 

Texas Civil Practices and Remedies Code. Chapter 33 of the Texas Civil 

12 
Practices and Remedies Code refers to Proportionate Responsibility, not 

Contributory Negligence. The applicability of Proportionate 

Responsibility is codified in section 33.002 of the Texas Civil Practices 

and Remedies Code. The provision states that "[t]his chapter applies to: 

(1) any cause of action based on tort in which a defendant, settling 

person, or responsible third party is found responsible for a percentage of 

the harm for which relief is sought; or (2) any action brought under the 

Deceptive Trade Practices-Consumer Protection Act. .. in which a 

defendant, settling person, or responsible third party is found responsible 

for a percentage of the harm for which relief is sought." 

If Appellee meant to plead the affirmative defense of Proportionate 

Responsibility, it should not have been accepted as a matter of law since 

the case is a breach of contract action, not a tort action or DTP A action. 

E. The trial court erred in granting summary judgment because it 

determined as a matter of law that Appellee was entitled to summary 

judgment based on the affirmative defense of Estoppel when the 

pleadings and evidence do not support such a claim. 

The court erred by granting the motion for summary judgment 

because Appellant raised a fact issue regarding Appellee's affrrmative 

defense of Estoppel. In Appellee's motion for summary judgment, she 

raised the affirmative defense of estoppel, and listed the elements of 

estoppel, but failed to explain how the elements applied to the specific 

13 
facts of this case. In Appellee's motion of April 30, 2014, she did 

describe how she applied the elements of Estoppel to the facts of the 

case; however, the application was improper. Appellee's argument was 

that Appellant agreed to pay $600 for the floors on May 11, 2013, and 

then sued for the full amount of the security deposit. (C.R.Supp., 18-19). 

What Appellee failed to take into consideration was the fact that 

Appellant agreed to pay $650 for the floor repairs, until Appellee began 

acting in bad faith by not refunding his deposit or sending him an 

itemized list of deductions. It was after this display of bad faith on the 

part of Appellee that Appellant sued for the full amount of his deposit. 

Bad faith on the part of Appellee began on June 11, 2013; Appellant sued 

for refund of security deposit in July, 2013. This fully negates Appellee's 

estoppel defense. 

CONCLUSION 

The trial court erred in granting summary judgment for Appellee because it 

1) refused to hear Appellant's response to Appellee's motion for summary 

judgment because it did not include a certificate of service and because there was a 

defect in the response; 2) ignored discrepancies in Appellee's own summary 

judgment evidence, as well as the disparity between Appellee's summary judgment 

evidence and the amount awarded by the Justice Court; 3) because of such 

14 
discrepancies, it was not proven as a matter of law that Mr. Kohler was not due at 

least a partial refund; 4) ignored the fact that the affirmative defense of 

contributory negligence does not apply in a breach of contract cause of action; 5) 

accepted the affirmative defense of estoppels even though the pleadings and 

evidence provided by Appellee alone do not support such a defense. Appellee 

acknowledged actual service eight days prior to the hearing; therefore, a 

presumption of service provided by Rule 21 a was not necessary in this instance. 

Appellant requested time to correct the defect in his response and was not granted 

the time to do so. With three different amounts provided as estimates for the repair 

of the wood floors, a matter of fact is shown that should have been decided once 

the case was heard on its merits. Also, since there were differences in the proposals 

gathered to repair the damaged flooring, a matter of fact remains as to whether 

Appellant was due a full refund, partial refund or no refund. Appellee's noncompliance with the Texas Property Code also provided a matter of fact in whether 

Appellee should have been permitted to make any deductions whatsoever from 

Appellant's security deposit. Lastly, neither affirmative defense of Appellee 

applies to this case and these facts. 

15 
CERTIFICATE OF SERVICE 

I certify that on December 29, 2014, a true and correct copy of 

Appellant's brief was served by email on Claudia Chiquillo of 120 Victoria Court, 

Austin, Texas 78737, at cayachi10@gmail.com. 

16 

!L--

Kent Kohler 

7500 Shadowridge Run, #64 

Austin, Texas 78749 

(512) 663-5458 

kent kohler@praxair.com 

ProSe Appellant 
CERTIFICATE OF COMPLIANCE 

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby 

certify that this brief contains 3,313 words, excluding the cover sheet, identity of 

parties, table of contents, table of authorities, certificate of service, certificate 

of compliance, prayer and appendix. 

17 

~(_--

Kent Kohler 

7500 Shadowridge Run, #64 

Austin, Texas 78749 

{512) 663-5458 

kent kohler@praxair.com 

Pro Se Appellant 
PRAYER 

Appellant, Kent Kohler, respectfully, for the reasons stated above, asks the 

Court to reverse the judgment of the trial court and remand the case for a new trial. 

18 

Respectfully submitted, 

\ 

Kent Kohler 

7500 Shadowridge Run #64 

Austin, Texas 78749 

(512) 663-5458 

kent kohler@praxair .com 

Pro Se Appellant 
APPENDIX 

19 
0 

NO. 13-0839-C FILED 

KENT KOHLER 

Plaintiff, 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE COUNTY C~R JO A !1 1/: 5. 

v. Number 

~.n. tl'/ 

I ) : 1 \ , 

\ . 1 i'l ;; c~ &.f~~t,;-.!-<V H UNl r' CLf:?RiJ' 

CLAUDIA CHIQUILLO 

Defendant. 

AYS cou•.o-. •v 

'"' 1

• TGXAS 

OFHAYSCOUNTY,TEXAS 

On the Court considered Defendant's Motion for 

Suffi!llary Judgment and requests that the Court enter Summary Judgment in favor of Movant on 

the counterclaim and affirmative defenses set forth therein and against Plaintiff Kent Kohler. 

After due consideration of the summary judgment evidence, including affidavits and 

documentary evidence, and the argument of counsel, this Court finds that Defendant's Motion is 

due to be GRANTED and makes the following findings: 

The Court finds there is no genuine issue of material fact as to Defendant's counterclaim 

for Breach of Contract and Defendant is entitled to summary judgment thereon. 

The Court finds there is no genuine issue of material fact as to Defendant's affirmative 

defense of Contributory Negligence and Defendant is entitled to summary judgment thereon. 

The Court finds there is no genuine issue of material fact as to Defendant's affirmative 

defense of Estoppel and Defendant is entitled to summary judgment thereon. 

The Court finds that Defendant has proven the counterclaim and disproved at least one 

element of Plaintiffs claim for Plaintiffs claims. 

The Court finds that Plaintiff has not pled any affirmative defense that would preclude 

summary judgment in this cause. 
0 0 

IT IS THEREFORE ORDERED that judgment is entered in favor of Defendant and 

against Plaintiff on the counterclaim of Breach of Contract, in the amount of $6501.73, (One and 

No/100 Dollars). 

IT IS FURTHER ORDERED that Defendant recovers judgment against Plaintiff in the 

sum of $1500, as attorney fees for the benefit of Robert Avera. Such Judgment, for which 

execution shall issue, shall bear interest at the rate of 5% per annum, compounded annually from 

the date of this judgment, until paid. 

IT IS FURTHER ORDERED that Defendant recovers judgment against Plaintiff in the 

sum of $1,500.00 (One Thousand Five Hundred and No/1 00 Dollars, as attorney fees for the 

benefit of Robert A vera. Such Judgment, for which execution shall issue, shall bear interest at 

the rate of 5% per annum, compounded annually from the date of this judgment, until paid. This 

judgment of attorney fees is conditioned on the pursuit by Defendant of Post-Judgment 

Discovery. 

IT IS FURTHER ORDERED that Defendant recovers judgment against Plaintiff in the 

sum of $10,000.00, (Ten Thousand and No/100 Dollars), as attorney fees for the benefit of 

Robert A vera on intermediate appeal, with costs and expenses. Such Judgment, for which 

execution shall issue, shall bear interest at the rate of 5% per annum, compounded annually from 

the date of this judgment, until paid. This judgment of attorney fees on appeal is conditioned on 

the pursuit by Plaintiff of an ultimately unsuccessful appeal. 

IT IS FURTHER ORDERED that Defendant recovers judgment against Plaintiff in the 

sum of $10,000.00, (Ten Thousand and No/100 Dollars), as attorney fees for the benefit of 

Robert Avera on appeal to the Texas Supreme Court, with costs and expenses. Such Judgment, 

for which execution shall issue, shall bear interest at the rate of 5% per annum, compounded 
0 0 

annually from the date of this judgment, until paid. This judgment of attorney fees on appeal is 

conditioned on the pursuit by Plaintiff of an ultimately unsuccessful appeal. 

IT IS FURTHER ORDERED that Defendant recovers costs of court incurred in the 

course of this cause in the sum of $257. Such judgment, for which let execution issue, shall bear 

interest at the rate of 5%, compounded annually from the date of this judgment, until paid. 

IT IS FURTHER ORDERED that Defendant is entitled to enforce this judgment 

through abstract, execution, and any other process. 

This judgment finally disposes of all parties and all claims and is appealable. 

Signed on f ho /1 d . I I 

Robert A vera 

Attorney for Defendant Claudia Chiquillo 

13062 Hwy 290 W 

Austin, TX 78737 

Tel. (512) 615-3578 

Fax. (512) 615-3583 

Kent Kohler, ProSe Plaintiff -- 7500 Shadowridge Run #64 

Austin, Texas 78749 

Tel. Unknown 

Fax. Unknown