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 Briefon the Merits



### Kent Kohler 7500 Shadowridge Run, #64 Austin, Texas 78749 (512) 663

-5458 Kent kohler@praxair
.com Pro Se AppellantIDENTITY 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.comTABLE 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 summaryjudgment because itrefused to hear Appellant's arguments against summaryjudgment..
.............. ...... ...

### ? B. The trial court erred in granting summaryjudgment because Appellee's own evidence provides a presumption ofbad 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 summaryjudgment because the pleadings and proofprovided by Appellee did not determine as a matter oflaw that Mr. Kohler was not due a partial or full refund ofhis security deposit.
........... .... ........ ... ....... .... .. ... . .... . ............................12 D. The trial court erred in granting summaryjudgmentbecause it determined as a matter oflaw that Appellee was entitled to summary judgment based onthe affirmative defense ofContributoryNegligence 

### in a breach ofcontract action
... . ... .. . .... ... ........ .. ...........................12 E. Thetrial court erred 

### in granting summaryjudgment because it determined as a matter oflaw that Appellee was entitled to summary
iijudgment based onthe affirmative defense ofEstoppel 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 SummaryJudgment
................. 20

iiiTABLE 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 ofCivil Procedure Section 21a
.. ..... . ... ... . . .. ......... . ...... . .......8, 15 Texas Rules ofCivil Procedure Section 166a
... .. ..... .... .. .. ....... . .... . ....... . ......9

ivSTATEMENT OF THE CASE This case arose from a dispute over the security deposit Appellant, tenant, paid upon moving into the property ofAppellee, landlord. Appellant initiated a claim against Appellee for return ofthe 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 defaultjudgment for the full amount ofhis deposit, $1,950. Appellee appealed the defaultjudgment, thereby invoking the appellate jurisdiction ofCounty Court at LawNumber 1 in Hays County, Texas, wherein the presidingjudge granted a traditional summaryjudgment in favor ofAppellee. Appellant has appealed to the 3rd Court ofAppeals 

### in Austin, Texas.

1ISSUES PRESENTED Whether the court erred when it refused to hear Appellant's arguments against summaryjudgment in his response to Appellee's motion for summaryjudgment, because Appellant failed to include a Certificate ofService inthe response, even though Appellee acknowledged actual service ofthe response eight days before the hearing. Whetherthe court erred in granting Appellee's motion for summaryjudgment on Appellee's counterclaim for breach ofcontract 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 whenthere was a presumption ofbad faith onthe part ofAppellee, per Texas Property Code, for not providing either an itemized list ofdeductions, or a refund ofthe deposit, within 30 days of receiving Appellant's written notice and change ofaddress. Whetherthe court erred in granting Appellee's motion for summaryjudgment since Appellee failed to disprove an element ofAppellant's claim for breach of contract by failing to prove, as a matter oflaw, that Appellant was not entitled to a return ofhis security deposit. Whether the court erred in granting Appellee's motion for sunnaryjudgment on Appellee's affirmative defense ofContributory Negligence against an action for breach ofcontract. Whetherthe court erred in granting Appellee's motion for summaryjudgment on Appellee's affirmative defense ofEstoppel

2STATEMENT OF FACTS In August 2010, Appellant entered into a lease agreement with Appellee, for herproperty 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 ofsome damage to the wood floors
. Inthis text message, dated May 11, 2013 , Appellant provided Appellee with his new address and requested the remainder ofhis security deposit. (C
.R. 180). Pursuant to TEXAS PROPERTY CODE 92.109, a landlord is required to refund a security deposit on orbefore 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 orto provide an itemization ofdeductions 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 ofthe security deposit orbring 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 ofthe deposit wrongfully withheld (here, the entire deposit since the landlord forfeited the right to withhold any amount for damages 3to 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 ofMr. Kohler's security deposit,
nor did she provide an itemized list ofdeductions until June 11, 2013. (C.R. 237). This itemized list was in response to numerous attempts by

### Mr. Kohler to discuss the return ofthe 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 inthe 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 orbefore 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 bythe amount of the claim, $1,950.00, which was the amount ofhis security deposit. 

### Mr. Kohler
was nowrequesting 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
4Property Code. Since Ms. Chiquillo failed to appear at the original hearing, a defaultjudgmentwas granted and signed on August 19,2013
. (C.R
. 4). On August 27, 2013, thejustice court rescinded the defaultjudgment and set a court date for October 1, 2013. On October 16, 2013, thejustice court found for Mr. Kohler in the amount of$1,300.00. (C.R. 15). On October 23, 2013, Appellee filed a Notice ofAppeal with the Hays County Court at Law. (C.R
. 8). Appellee filed a motion for summaryjudgment on a counterclaim for breach ofcontract, as well as two affirmative defenses: Contributory Negligence and Estoppel, onMarch 11,2014. (C.R. 123). The hearing was set in the County Court ofLaw 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 ofagreed setting changes, the matter was finally heard onApril30, 2014." (C.R. 262). There
was no series ofagreed 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 summaryjudgment. Appellant included a cross motion for summaryjudgment. The court did not accept Appellant's cross motion for summaryjudgment 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 summaryjudgment because it did not contain a Certificate ofService, 5even though it was timely sent and Appellee acknowledged receipt ofthe response eight days prior to the hearing. (C.R. 262). The county court granted Appellee's motion for summaryjudgment 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 ofappeal inthis Court. (C.R. 267). SUMMARY OF THE ARGUMENT The trial court erred in granting summaryjudgment against Mr. Kohler when (1) it refused to hear Appellant's arguments against summaryjudgment; (2) a fact issue exists as to Appellee's bad faith and whether she was entitled to damages at all; (3) the pleadings and proofprovided byAppellee did not determine as a matter oflaw that Mr. Kohler was not due a partial or full refund ofhis security deposit; (4) it determined as a matter oflaw that Appellee was entitled to summary judgment based onthe affirmative defense ofContributory Negligence in a breach ofcontract action; (5) it determined as a matter oflaw that Appellee was entitled to summaryjudgment based on the affirmative defense ofEstoppel when the pleadings and evidence do not support such a claim.

6ARGUMENTS
STANDARD OF REVIEW An appellate court applies the following inreviewing a summaryjudgment: 1. The movant has the burden ofshowing that no genuine issue ofmaterial fact exists and that he is entitled tojudgment as a matter oflaw; 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 ofthe 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 summaryjudgmentbecause it refused to hear Appellant's arguments against summaryjudgment. Appellant submitted a response to Appellee's motion for summary judgment on April22, 2014, eight days prior to the hearing ofApri130, 2014. Included 

### in the response was a cross-motion for summary judgment. Appellee argued in a motion presented the day ofthe hearing, April 30, 2014, that Appellant's arguments against summaryjudgment 7should not be heard because they were not timely. Appellant concedes that his cross-motion for summaryjudgment was not timely; however, his response to Appellee's motion for summaryjudgment was timely. The trial court refused to hear the arguments included in the response because the response lacked a Certificate ofService, and because the response was considered defective due to lack ofan affidavit attesting to the veracity ofthe evidence. Appellee acknowledged through her motion ofApril30, 2014 that she did indeed receive Appellant's response eight days prior to the hearing. According to Goforth v. Bradshaw, "[t]hough a certificate ofservice is required byRule 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 21a topresumptively establish service, through Appellee's ownmotion 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.

8Appellant received Appellee's objection to Appellant's summary judgment evidencejust minutes before the hearing onApril30, 2014. In order to correct the defect, Appellant requested a continuance ontwo separate occasions and was denied. According to Coleman v. Woolf, "when a summaryjudgment movant objects to summaryjudgment evidence proffered by the non-movant, the burden lies upon the nonmovant to request reliefunder rule 166a(f), including a continuance or the opportunity to cure any formal defects 

### inthe non-movant's summary judgment evidence
." Coleman v. Woolf, 129 S.W.3d 744,750 (2004). Per Rule 166a(f) ofthe Texas Rules ofCivil Procedure, defects in form of affidavits are not grounds for reversal unless they are pointed out bythe opposing party and given an opportunity to amend, but refusing to do so. Tex. R. Civ. P. 166a(f). Appellant was handed Appellee's objectionsjust 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 summaryjudgment because Appellee's own evidence provides a presumption ofbad 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 summaryjudgment, Appellee states that Appellant provided his forwarding address to Ms. Chiquillo onMay 11, 2013. (C.R.Supp., 8). 9Ms. Chiquillo did not provide an itemized list ofdeductions until June 11, 2013
. (C.R., 27). 

### Inthis itemized list, the amount to repair the flooring was listed as $1,534
. 17. Id. However, inher 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 summaryjudgment, 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 ofa "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 ofsecurity deposits. Specifically, a landlord ''who fails to return a security deposit orto provide a written description and itemization ofdeductions on orbefore the 30th day after the date the tenant surrenders possession is presumed to have acted in bad faith." Tex. Prop. Code section 92.109(d). When a landlord acts inbad faith, and 10wrongfully retains a security deposit, the landlord is liable for "an amount equal to the sum of$100, three times the portion ofthe 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 ofthe 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 ownevidence shows a text from Appellant with his forwarding address on May 11, 2013. She also provided as evidence an email from herselfto Appellant giving an itemized description of damages on June 11, 2013. Since the written description and itemized list ofdamages was not provided on orbefore the 30th day after Appellant surrendered possession and provided a forwarding address, Ms. Chiquillo forfeited herright to withhold any portion ofthe deposit for damages. She is also presumed to have acted in bad faith, and as such owes Appellant $100 plus three times the amount ofhis security deposit of $1,950.
11C. The trial court erred in granting summaryjudgment because the pleadings and proofprovided by Appellee did not determine as a matter oflaw that Mr. Kohler was not due a partial orfull refund ofhis security deposit. As stated in section B, there are questions ofbad 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 ownproposed amounts to ftx the damage are enough to show that there is a question offact regarding whether she had any lawful right to retain any ofAppellant'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). IfAppellee's
own discrepancies aren't enough to show a question offact, surely the difference between her proposals and the amount awarded bythe Justice Court should. D. The trial court erred in granting summaryjudgment because it determined as a matter oflaw that Appellee was entitled to summary judgment based on the affirmative defense ofContributory Negligence in a breach ofcontract action. Appellee's motion for summaryjudgment included an affirmative defense ofcontributory negligence. Appellee's motion stated that the defense ofcontributory negligence was codifed in Chapter 33 ofthe Texas Civil Practices and Remedies Code. Chapter 33 ofthe Texas Civil 12Practices and Remedies Code refers to Proportionate Responsibility, not Contributory Negligence. The applicability ofProportionate Responsibility is codified in section 33.002 ofthe Texas Civil Practices and Remedies Code. The provision states that "[t]his chapter applies to: (1) any cause ofaction based ontort in which a defendant, settling person, orresponsible third party is found responsible for a percentage of the harm for which reliefis sought; or (2) any action brought under the Deceptive Trade Practices-ConsumerProtection Act.
..in which a defendant, settling person, or responsible third party is found responsible for a percentage ofthe harm for which reliefis sought." IfAppellee meant to plead the affirmative defense ofProportionate Responsibility, it should not have been accepted as a matter oflaw since the case is a breach ofcontract action, not a tort action or DTP A action. E. The trial court erred in granting summaryjudgment because it determined as a matter oflaw that Appellee was entitledto summary judgment based on the affirmative defense ofEstoppel 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 ofthe 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 ofhis deposit. Bad faith on the part ofAppellee began on June 11, 2013; Appellant sued for refund ofsecurity deposit in July, 2013. This fully negates Appellee's estoppel defense. CONCLUSION 

### The trial court erred in granting summaryjudgment 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 ofservice and because there was a defect in the response; 2) ignored discrepancies inAppellee's own summary judgment evidence, as well as the disparity between Appellee's summaryjudgment evidence and the amount awarded bythe Justice Court; 3) because ofsuch 14discrepancies, it was not proven as a matter oflaw 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 ofcontract cause ofaction; 5) accepted the affirmative defense ofestoppels even though the pleadings and evidence provided byAppellee alone do not support such a defense. Appellee acknowledged actual service eight days priorto the hearing; therefore, a presumption ofservice provided byRule 21 a was not necessary inthis 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 ofthe wood floors, a matter offact is shown that should have been decided once the case was heard on its merits. Also, since there were differences inthe proposals gathered to repair the damaged flooring, a matter offact 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 offact in whether Appellee should have been permitted to make any deductions whatsoever from Appellant's security deposit. Lastly, neither affirmative defense ofAppellee 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 briefwas 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 ofAppellate 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 AppellantPRAYER Appellant, Kent Kohler, respectfully, for the reasons stated above, asks the Court to reverse thejudgment ofthe 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• T GXAS OFHAYSCOUNTY,TEXAS

On the Court considered Defendant's Motion for Suffi!llary Judgment and requests that the Court enter Summary Judgment in favor ofMovant on the counterclaim and affirmative defenses set forth therein and against PlaintiffKent Kohler. After due consideration of the summary judgment evidence, including affidavits and documentary evidence, and the argument ofcounsel, 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 ofmaterial fact as to Defendant's counterclaim for Breach ofContract and Defendant is entitled to summaryjudgment thereon
. The Court finds there is no genuine issue of material fact as to Defendant's affirmative defense ofContributory Negligence and Defendant is entitled to summaryjudgment thereon. The Court finds there is no genuine issue of material fact as to Defendant's affirmative defense ofEstoppel and Defendant is entitled to summaryjudgment thereon
. The Court finds that Defendant has proven the counterclaim and disproved at least one element ofPlaintiffs claim for Plaintiffs claims. The Court finds that Plaintiff has not pled any affirmative defense that would preclude summaryjudgment in this cause.

# 0 0
IT IS THEREFORE ORDERED that judgment is entered in favor of Defendant and against Plaintiffon the counterclaim ofBreach ofContract, in the amount of $6501.73 , (One and No/100 Dollars). IT IS FURTHER ORDERED that Defendant recoversjudgment against Plaintiffin 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 of5% per annum, compounded annually from the date ofthisjudgment, until paid. IT IS FURTHER ORDERED that Defendant recoversjudgment against Plaintiffin 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 ofthisjudgment, until paid. This judgment of attorney fees is conditioned on the pursuit by Defendant of Post-Judgment Discovery. IT IS FURTHER ORDERED that Defendant recoversjudgment against Plaintiffin the
sum of $10,000.00, (Ten Thousand and No/100 Dollars), as attorney fees for the benefit of Robert Avera on intermediate appeal, with costs and expenses. Such Judgment, for which execution shall issue, shall bear interest at the rate of5% per annum, compounded annually from the date ofthis judgment, until paid. Thisjudgment ofattorney fees on appeal is conditioned on the pursuit by Plaintiffofan ultimately unsuccessful appeal. IT IS FURTHER ORDERED that Defendant recoversjudgment against Plaintiffin 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 ofthisjudgment, until paid. This judgment ofattorney fees on appeal is conditioned on the pursuit by Plaintiffofan ultimately unsuccessful appeal. IT IS FURTHER ORDERED that Defendant recovers costs of court incurred in the
course ofthis cause in the sum of$257
. Suchjudgment, for which let execution issue, shall bear interest at the rate of5%, compounded annually from the date ofthisjudgment, until paid
. IT IS FURTHER ORDERED that Defendant is entitled to enforce this judgment through abstract, execution, and any other process. Thisjudgment finally disposes ofall parties and all claims and is appealable. Signed on

# fho/1

# d
. I I

Robert Avera 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