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Cause No.: o 1-14-00864-CV 

COURT OF APPEALS 

FIRST DISTRICT OF TEXAS 

HOUSTON, TEXAS 

Llyasab Dupree d/b/a 360 Degree Beauty Academy, 

Appellant 

Vs 

Boniuk Interest, Ltd, 

Appellee 

BRIEF OF THE APPELLANT 

Timothy L. Williams, MBA, JD 

TBN: 00791938 

TL Williams & Associates 

11811 North Freeway, Suite 212 

Houston, Texas 77060 

713.504.1882 - Office 

twilliams.nhcs@yahoo.com - email 

Attorney for Appellant, Llyasah Dupree 

d/b/a 360 Degree Beauty Academy 

ORAL ARGUMENT NOT REQUESTED 

ACCEPTED

01-14-00864-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

2/20/2015 4:30:02 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 2/20/2015 4:30:02 PM CHRISTOPHER A. PRINE Clerk
IDENTITY OF THE PARTIES 

Appellant/Plaintiff 

Llyasah Dupree d/b/a 360 Degree Beauty Academy 

Attorney for Appellant 

Timothy L. Williams, MBA, JD 

TL Williams & Associates 

11811 North Freeway, Suite 212 

Houston, Texas 77060 

Appellee/Respondent 

Boniuk Interest, Ltd 

Attorney for Appellant 

Debra Boniuk 

Boniuk Interest, Ltd 

3720 San Jacinto 

Houston, Texas 77004 

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TABLE OF CONTENTS 

IDENTITY OF PARTIES AND COUNSEL 2 

INDEX OF AUTHORITIES .............................................. 5 

STATEMENT OF CASE 7 

ISSUES PRESENTED ................................ ............................ 7 

Point of Error 1: Use of parol evidence to ascertain to intent 

of the parties in the construction of the promissory note 

between the Defendant landlord and Llyasah Dupree, Plaintiff 

Point of Error 2: Evidence does not support the decision, 

Plaintiffs tendering of payments for lease payments not 

deposited by Defendant Landlord 

Point of Error 3: No consideration for the amendment to the 

lease agreement. The Plaintiff had a duty to pay rent under the 

lease agreement and there was no additional consideration. 

Point of Error 4: The court erred in not ruling that the 

Appellee had committed fraud by presented business records to 

the court that the Appellee testified were inaccurate and were 

used to commit fraud on the Appellant 

STATEMENT REGARDING ORAL ARGUMENT 

STATEMENT OF FACTS 

SUMMARY OF THE ARGUMENT 

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

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8 

8 

9 

9 
ARGUMENT .............................................................. 

CONCLUSION AND PRAYER 

CERTIFICATE OF SERVICE ...................................................... 

CERTIFICATE OF COMPLIANCE 

APPENDIX ............................................................... 

Exhibit 1: Finding of Facts and Conclusions of Law 

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10 

21 

21 

22 

23 
INDEX OF AUTHORITIES 

CASES 

L Harrison v. Texas Employers Ins. Ass'n, 747 S.W.2d 494, 

498 (Tex. App.--Beaumont 1988, writ denied); 

2. Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 837 (Tex. 

App.--Houston [1st Dist.] 1987, writ refd n.r.e.), cert. 

denied, 485 U.S. 994 (1988). 

3. Texas Export Dev. Corp. v. Schleder, 519 S.W.2d 134, 137 

(Tex. Civ. App.--Dallas 1975, no writ). 

4. Town North Nat. Bank v. Broaddus, 569 S.W.2d 489, 491 

(Tex. 1978). 

5. Baker v. Baker, 143 Tex. 191, 183 S.W.2d 724,728 (Tex. 

1944); 

6. Trinity Univ. Ins. Co. v. Ponsford Bros., 423 S.W.2d 571, 

574-75 (Tex. 1968). 

7. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). 

8. City of Pinehurst v. Spooner Addition Water Co., 432 

S.W.2d 515, 518 (Tex. 1968) 

9. Community Dev._ [**5] Serv., Inc. v. Replacement Parts 

lvffg., 679 S.W.2d 721, 724 (Tex. App.--Houston [1st Dist.] 

1984, no writ). 

51Page 
10. Albritton Dev. v. Glendon, 700 S.W.2d 244, 246 (Tex. 

App.--Houston [1st Dist.] 1985, writ refd n.r.e.). 

11. Rincones v. Windberg, 705 S.W.2d 846,847 (Tex. App.--

Austin 1986, no writ). 

12. Hathaway v. General Mills, Inc., 711 S.W.2d 227, 228, 29 

Tex. Sup. Ct. J. 333 (Tex. 1986) 

13. American Nat. Ins. Co. v. Teague, 237 S.W. 248, 250 (Tex. 

Comm'n App. 1922, holding approved) 

14. Hill v. Heritage Res., Inc., 964 S.W.2d 89, 113 (Tex. App.n 

El Paso 1997, pet. denied) 

15. Havas v. O'Brien, 654 S.W.2d 801, 803 (Tex. App.--

Houston [14th Dist.] 1983, writ refd n.r.e.). 

6iPage 

I 

I 
TO THE HONORABLE FIRST COURT OF APPEALS: 

STATEMENT OF THE CASE 

Nature of Case 

The Trial Court 

Trial Court's Disposition 

The court abused its discretion by admitting parol 

evidence to establish the intent of the parties when 

the language of the contract was unambiguous, 

found a contract where no new consideration was 

given for the amendment and failed to find fraud 

for the submission of misleading exhibits by the 

Appellee 

The 11 th Judicial District, Harris County, Texas 

Dismissed Plaintiffs cause of action and granted 

relief to the Defendant on its counterclaim for 

breach of contract 

ISSUES PRESENTED 

Point of Error 1: Use of parol evidence to ascertain to intent of the parties in the 

construction ofthe promissory note between the Appellee and the Appellant. 

Point of Error 2: Evidence does not support the decision, Appellant tendering of 

payments for lease payments not deposited by Appellee. 

71Page 
Point of Error 3: No consideration for the amendment to the lease agreement. 

The Appellant had a duty to pay rent under the lease agreement and there was no 

additional consideration. 

Point of Error 4: The court erred in not ruling that the Appellee had committed 

fraud by presented business records to the court that the Appellee testified were 

inaccurate and were used to commit fraud on the Appellant 

STATEMENT REGARDING ORAL ARGUMENT 

The issues regarding contract law are well cited in Texas case law and the 

Appellant Plaintiff does not believe that oral arguments before the court are 

necessary and are not requested by the Appellant. 

STATEMENT OF FACTS 

Court ruling 

On July 25,2014, the 11th Judicial District Court entered judgment in open 

court denying the Appellant petition for relief and granting the Appellee relief on 

its counterclaim and for attorney fees. 

The Appellant filed a request for Findings of Facts and Conclusions of Law 

on August 2014. The Court filed its Findings of Facts and Conclusions of Law on 

81Page 
August 15, 2014. The Appellant filed its Notice of Appeal on November 2014. 

The court repOlier filed the record on January 21, 2015. The brief of the Appellant 

was due on February 20, 2015. 

SUMMARY OF THE ARGUMENT 

The Appellant argues that (1) the court erred in the use of parol evidence to 

ascertain to intent of the parties in the construction of the promissory note between 

the Appellee and the Appellant because the terms of the agreement were not 

ambiguous; (2) that the court erred in ruling that the evidence does supports the 

decision, by determining that the Appellant's tendering of lease payments which 

were not deposited by the Appellee as not being tendered; (3) the court erred in 

determining that there was consideration for the amendment to the lease 

agreement. The Plaintiff had a duty to pay rent under the lease agreement and 

there was no additional consideration for the amendment; and (4) by failing to rule 

that the Appellee had engaged in fraud and misrepresentation to the court by 

presented business records to the court that the Appellee subsequently testified 

were inaccurate and were used to commit fraud on the Appellant. 

STANDARD OF REVIEW 

The standard of review is a preponderance of the evidence in a civil, nonfamily cause of action. 

91Page 
ARGUMENT 

Point of Error 1: Use of parol evidence to ascertain to intent of the parties in 

the construction of the promissory note between the Appellee and Appellant. 

1. On December 18,2009, Appellant and Appellee entered into an agreement 

whereby pursuant to the plain language of the contract, the Appellant would 

give the Appellant a loan in the amount of $21,499. The terms of the 

agreement are plain and clear and no other consideration is mentioned in the 

language within the "four comers" of the agreement. 

2. In return for the loan, the Appellant was obligated to pay the Appellee 

installment payments in the amount of $440 per month for 60 months. 

3. The Appellant made payments on the loan for the first three months, but did 

not receive the funds from the Appellee. The failure of the Appellee to 

provide the funds [See Transcript page 46, lines 8-25 and page 47, lines 1-

12] to the Appellant was a material breach of the promissory note and, 

therefore, the Appellant was released from performance under the 

promissory note. 

10 I P age 
4. The court relied on exhibits provided by the Appellee to ascertain the nature 

of the consideration, even though the language of the promissory note was 

plain and uncontroverted. The language in the promissory note stated that 

the principal amount to be paid to the Appellant is $21,499.00. 

5. The court relied on exhibits to speculate that the consideration could have 

been the credit for past due lease payments, although no evidence was 

entered crediting the Appellant account for such action and despite the 

testimony of the Appellee that the business records provided supporting such 

argument were" ... inaccurate." 

6. To obtain reversal of a judgment based on error in the admission or 

exclusion of evidence, an appellant must show that the trial court's ruling 

was in error and that the error was calculated to cause and probably did 

cause rendition of an improper judgment. Harrison v. Texas Employers Ins. 

Ass'n, 747 S.W.2d 494, 498 (Tex. App.--Beaumont 1988, writ denied); 

Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 837 (Tex. App.--Houston 

[1st Dist.11987, writ refd n.r.e.), cert. denied, 485 U.S. 994 (1988). 

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7. Reversible error does not usually occur in connection with rulings on 

questions of evidence unless the appellant can demonstrate that the whole 

case turns on the particular evidence that was admitted or excluded. Texaco, 

Inc., 729 S.W.2d at 837. The Appellant's cause of actions on the promissory 

note for breach turns on whether the consideration is as stated in the note 

and that the Appellant is to receive the amount listed therein. If the 

consideration in the promissory note is for the amount stated therein, then 

the Appellee breached the agreement by note tendering the amount to the 

Appellant, even though the Appellant had performed under the promissory 

note by making the requisite payments. 

8. It is well settled that a written instrument may not be varied by evidence of 

an oral agreement that contravenes its terms. Texas Export Dev. Corp. v. 

Schleder, 519 S.W.2d 134, 137 (Tex. Civ. App.--Dallas 1975, no writ). 

However, parol evidence is admissible to show (1) that the execution of a 

written agreement was procured by fraud, Town North Nat. Bank v. 

Broaddus, 569 S.W.2d 489, 491 (Tex. 1978); (2) that an agreement was not 

to become effective except upon certain conditions or contingencies, Baker 

v. Baker, 143 Tex. 191, 183 S.W.2d 724,728 (Tex. 1944); or (3) to ascertain 

12 I P age 
the parties' true intentions, where the writing is ambiguous. Trinity Univ. Ins. 

Co. v. Ponsford Bros., 423 S.W.2d 571, 574-75 (Tex. 1968). 

9. If the written instrument is worded so that it can be given a certain definite 

meaning or interpretation, then it is not ambiguous, and the court will 

construe the contract as a matter of law. Coker v. Coker, 650 S.W.2d 391, 

393 (Tex. 1983); City of Pinehurst v. Spooner Addition Water Co., 432 

S.W.2d 515, 518 (Tex. 1968); Community Dev' n [**5] Serv., Inc. v. 

Replacement Parts Mfg., 679 S.W.2d 721, 724 (Tex. App.--Houston [1st 

Dist.] 1984, no writ). 

10. To permit parol evidence under the first of these exceptions, there must be a 

showing that the payee employed some type of trickery, artifice, or device 

and that the payee induced the maker to execute the note by a promise that 

he would not be liable for its payment. Town North Nat'l Bank, 569 S.W.2d 

at 491; Albritton Dev. v. Glendon, 700 S.W.2d 244, 246 (Tex. App.-

Houston [1st Dist.] 1985, writ refd n.r.e.). Here, there was no such trickery 

or fraud, thus the requisite showing of fraud in the inducement that would be 

necessary to allow introduction of parol evidence is not present. 

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11. The second exception to the parol evidence rule requires that a condition 

precedent was contemplated by the parties. A condition precedent is one 

that postpones the effective date of the instrument until the happening of a 

contingency. Baker, 183 S.W.2d at 728. In contrast, a condition subsequent 

is one that excuses an already binding agreement. Rincones v. Windberg, 

705 S.W.2d 846, 847 (Tex. App.--Austin 1986, no writ). While parol 

evidence is admissible to prove the existence of a condition precedent to a 

contract, extrinsic evidence of a condition subsequent is not admissible to 

vary the terms of a valid and binding written agreement. 

12. There were no conditions precedent to the execution of the promissory note 

and, therefore, the introduction of parol evidence is in error. 

13. The third exception to the parol evidence rule allows testimony about the 

intent of the parties when the writing contained in the document is 

ambiguous. Community Dev. Serv., 679 S.W.2d at 724. The language in the 

promissory note is plain and unambiguous, it states that the Appellant is to 

receive the amount stated in the agreement in money, not a credit, and the 

Appellant is to make monthly payments to payoff the loan. 

14 I P age 
Point of Error 2: Evidence does not support the decision, Plaintiff's tendering 

of payments for lease payments not deposited by Defendant Landlord 

14. The court based its decision for the counterclaim for the Appellee and 

denied relief for the Appellant on its case in chief on the fact that the 

Appellant had not made payments to the Appellee. 

15. The Appellee testified that the Appellant had tendered to Appellee payments 

for the months of August 2010, September 201, October 2010, November 

2010 and December 2010 and that Appellee had received such payments for 

the above referenced months that it claimed that the Appellant had not paid 

and for which it made the basis for the eviction of the Appellant from the 

premises. [Transcript page 125, lines 1-22] 

16. The Appellee testified that it had received checks for the full payment of the 

lease agreement from the Appellant for the months of August 2010, 

September 2010, October 2010, November 2010 and December 2010. 

17. The Appellee testified that under the lease agreement, the Appellee had the 

authority to deposit any and all of the checks tendered to it by the Appellant, 

including partial payments, without waiving its rights under the lease. 

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18. If the Appellee had deposited the checks and the checks had been returned 

for insufficient funds, then the Appellee could argue that the appellant had 

not tendered the lease payments. 

19. The Appellee did not deposit the tendered funds and proceeded strainght to 

eviction, without any evidence that the Appellant tendered payments were 

not adequately funded. 

20. Accordingly, the court erred by ruling that the appellant had not tendered the 

funds for payment of lease payments for the period from August 2010 to 

December 2010. The Appellant testified that she had authorized the 

Appellee to cash the checks tendered for August, September, October, 

November and December 2010. 

Point of Error 3: No consideration for the amendment to the lease agreement. 

The Plaintiff had a duty to pay rent under the lease agreement and there was 

no additional consideration. 

16 I P age 
21. The court erred by ruling that the amendment to the lease agreement was 

valid and legally enforceable. An amendment to a contract has to be 

supported by separate and independent consideration to be enforceable. 

22. Texas courts have consistently adhered to the rule that a modification to a 

contract must itself be supported by consideration to be valid. See Hathaway 

v. General Mills. Inc., 711 S.W.2d 227,228,29 Tex. Sup. Ct. J. 333 (Tex. 

1986); [** 14] American Nat. Ins. Co. v. Teague, 237 S.W. 248, 250 (Tex. 

Comm'n App. 1922, holding approved); Hill v. Heritage Res., Inc., 964 

S.W.2d 89, 113 (Tex. App.--El Paso 1997, pet. denied); Hovas v. O'Brien, 

654 S.W.2d 801, 803 (Tex. App.--Houston [14th Dist.] 1983, writ refd 

n.r.e.). 

23. The Appellant had a pre-existing duty to pay the amounts provided for in the 

alleged amendment to the lease agreement. Therefore, the Appellant did not 

provide any new consideration and the amendment fails as a legally 

enforceable contract due to the absence of new consideration. 

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24. Without the enforceability ofthe amendment, it is impossible to determine if 

the Appellee or the Appellant breached the lease agreement, or which party 

breached first. 

25. In addition, if the amendment to the lease agreement is deemed to fail due to 

the lack of consideration, then the court's ruling that the amendment 

language stating that are prior disputes between the parties are settled is in 

error. 

Point of Error 4: The court erred in not ruling that the Appellee had 

committed fraud by presented business records to the court that the Appellee 

testified were inaccurate and were used to commit fraud on the Appellant 

26. The Appellee testified that the business records it offered to the court as 

exhibits were authentic when in fact the Appellee knew the exhibits were in 

fact inaccurate. Appellee attorney stated that Appellee Exhibit D3, when the 

court raised a question concerning the exhibit, was "... a mistake in our 

accounting and I will say that up front." [Transcript page 69, lines 14-16] 

181Page 
27. Appellee then moves to admit Appellee Exhibit D3 knowing that this 

document was not accurate. [Transcript page 80, lines 7-9] 

28. Appellee then states that the admitted "Defendant Exhibit No.3 is a tenant 

payment list showing your [Appellant] payment history for 2010 and 2011. 

29. Appellee also testifies that the document entered as Appellee Exhibit D3 was 

the Tenant Payment List for 2008-2009 and 2010-2011 [Transcript page 

120, lines 10-19] 

30. The court then clarifies the nature of the exhibit as the Tenant Payment List 

for 2008,2009,2010 and 2011 [Transcript page 121, lines 4-7] 

31. Appellee then testifies that "There are some inaccuracies in this piece of 

paper right here (Appellee Exhibit D3)." 

32. In addition, the Appellee states that "I don't lmow the answer to that" when 

asked if he knew whether these documents were given to Ms. Dupree to 

support the fact that she had not paid rent. [Transcript page 122, lines 18-20] 

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33. The Appellee also testifies that the Tenant Payment List admitted as Exhibit 

D3 does not show a credit to Ms. Dupree's account in the amount of the 

promissory note. [Transcript page 124, lines 6-10] 

34. Accordingly, Appellee has provided no evidence that it provided the 

Appellant with any notice of the breach for failure to make payments, while 

holding checks tendered to the Appellee by the Appellant; or the Appellee 

provided the Appellant with notice of the breach for failure to make 

payments with a notice, by the Appellee own admission that state that 

"There are some inaccuracies in this piece of paper right here (Appellee 

Exhibit D3)." 

35. The Appellee testified that it knew that the business records were inaccurate 

when they were offered for admission and were offered to deceive the court. 

36. The exhibits should not have been admitted because they were offered based 

on fraud. 

37. The Appellee and the Appellee attorney were aware of the fraud and should 

be sanctioned by having the exhibits stricken from the trial court record and 

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the Appellee and the Appellee attorney should be held in contempt of court 

for participating in the fraud. 

CONCLUSION AND PRAYER 

For these reasons, Appellant asks the Court to remand the case back to the 

trial court and order the trial court to reverse its ruling on the issues presented 

herein, to award the Appellant - Plaintiff attorney fees and court costs. 

Timothy L. Wi . ms, MBA, JD 

TBN: 00791938 

TL Williams & Associates 

11811 North Freeway, Suite 212 

Houston, Texas 77060 

713.504.1882 - Office 

i!yill~a.ms.nhcs-®yahoo.com - email 

Attorney for Appellant, Llyasah Dupree 

d/b/a 360 Degree Beauty Academy 

CERTIFICATE OF SERVICE 

I certifY that a true and complete copy of the Appellant's Appellant's Brief 

was sent to the Appellee, Boniuk Interest, Ltd, by and through its attorney of 

record, Debra Boniuk, Boniuk Interest, Ltd, 3720 San Jacinto Street, Houston, 

21 I P age 
Texas 77004 via United States Certified Mail, Return Receipt Requested on the 

d-b~'aay of l£L~~{lJOj\~ ,2015. 

Timothy L. Wil i ms, MBA, JD 

CERTIFICATE OF COMPLIANCE 

Pursuant to Rule 9 ofthe Texas Rules of Appellate Procedure, this document 

is formatted in typeface of 14 ~ point and the computer generated word count for 

the document is 3,300. 

Timothy L. Wi lr ms, MBA, JD 

22 I P age 
EXHIBIT 1 - FINDINGS OF FACT AND CONCLUSIONS OF LAW 

23 I P age 
LLYASAH DUPREE d/b/a 

360 Degree Beauty Academy, 

PlamtIff/Counter-defendant 

vs 

BONIUK INTERESTS, LTD, 

Defendant/Counter-plamtIff 

7/14/201441141 PM 

Chns Darnel - Dlstnct Clerk 

Harris County 

Envelope No 1818431 

By System user. TexFlle 

CAUSE NO 2013-40231 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

HAJUUSCOUNTY,TEXAS 

FILED 

ChrIs DanIel 

11TH JUDICIAL COURT DistrIct Clerk 

TI AUG 1 5 2014 

me <./ 

~lfE"?t±&NfiGoml'fERof'LAIN1'lFF'S ~ FINDINGS Qii:ACT ',rI. Counly. 

AND CONCLUSIONS OF LAW Dapu , 

TO, THE HONORABL~ JUD~ OF SAID COt 

COMES NOW. Plamtl~ BONISK IN RESTS, LTD ,y.. uests the Court to enter Le 

followmg Fm~lof Fact and ~1'lons of e above referenced d moered cause 0 

~ctIon 

l~Fmdmgs of Fact 

1 Bomuk Interests, Ltd (Landlord) and Llyasah M Dupree (Tenant) entered mto a wntten lease 

agreement on September 30, 2007, whereby counter-plamuff; Landlord, leased real property 

(approxImately 10,000 square feet) located m a commercIal shoppmg center (4815 HIghway 6 North, 

Houston, HarriS County, Texas - the Premises) to counter-defendant, Tenant, for use as a beauty 

cosmetology school and related actlVllies 

2 The lease was for an eIghty-four (84) month mllial tenn commencmg on January 28, 2008 

3 Tenant promIsed to pay the mmlmum rent under the Lease, whICh was $70000 per month 

(months 1 - 3), $1,400 per month (months 4 - 7), $5,000 per month (months 8 - 24), and $6,00000 per 

month (months 25 - 84) In addItIOn, the Tenant agreed to pay the addItIOnal charges for Common Area 

Mamtenance, taxes and msurance, and water/sewer addmg an additIOnal $1,323 00 per month begmmng 

RECORDER S MEMORANDUM 

ThiS lnstrument IS of poor quality 

at the lime of Imagmg 
m month 8, resultmg m a total gross rent oblIgatIon of $6,323 per month (months 8 - 24), and $7,323 00 

per month (months 25 - 84) 

4 The Lease was amended on September 26, 2008 

5 Tenant entered mto possessIOn of the premises, and, despite landlord's fuJI perfonnance of all 

oblIgatIOns and conditIOns of the lease, tenant faIled to pay the rent pursuant to the tenns of the lease 

6 Dupree struggled to pay the rental payments at various tImes durmg the time penod she occupied 

the premises 

7 During December 2009, Dupree requested that she start the new year (2010) With a zero ($0) 

balance so that the busmess debt-to-mcome ratIO would look better for the government auditors Thus, 

on or about December 18, 2009, Llyasah M Dupree executed and delIvered to BOnIuk Interests, Ltd a 

promissory note dated December 18, 2009, whereby Llyasab Dupree promised to pay to the order of 

BonmkInterests, Ltd the sum of$21,499 00 

8 Tenant breached the lease by faIlmg to pay rent due and contmued m default despite Landlord 

glVlng Llyasab Dupree notice of default 

9 On or about March 10, 201 I, Landlord exercised It nghts pursuant to the Lease Agreement 

(SectIOn 19) and the Texas Property Code (sectIOn 93002) to change the locks on the Premises for 

f",lure to pay rent due Llyasah M Dupree did not pay her rental arrears to re-enter the preIlllses 

10 On March 22, 2011, LJyasab Dupree filed a WrIt of Re-entry With a Tenant's Sworn Complalllt 

m the JustIce of the Peace Court, Precmct 5, Place 2, case number EV52C0309272 A hearIng was held 

on March 24, 2011 @ 4 00 pm at which time Judgment was entered III favor of the landlord confinnmg 

that the lockout was lawful 
11 ge the 100 on th lease space ~DN\ and 

ad eXisted 

funllture a d Ixtur s ~ , 

Ille 

which a valId h 

12 Landlord conunenced efforts to re-Iet the premises Immediately On July I, 20ll, Bomuk 

Interests, Ltd contraoted with a third party to lease the premises at 4815 Highway 6 North, Houston, 

Hams County, Texas The rent conunencement date under the terms of this new lease was November 4, 

2011 

13 Plamtlff/oounter-defendant defaulted In faIling to pay her rental payments when due 

14 The Lease has been breached the lease by filliure to pay rent due under the tenos of the lease 

15 Counter-plaintiff bas requested counter-defendant to pay counter-plamtlff those sums due and 

owmg to counter-plamtlff 

16 On or about March 28, 2011, counter-plamtlff presented a olalm on the Lease to oounterdefendant for payment The claIm was Inade by letter received by oounter-defendant on March 30, 2011 

Via certified mall, RRR (7011 0110 0000 4181 9822), demandmg payment of past due rent 

17 Agam on July 19, 2013, counter-plamtlff presented a claim on the Lease to counter-defendant 

through her attorney of record for payment The claim was made by letter reCeIved by counter-defendant 

on July 19, 2013 via faCSimile transmission and on July 24, 2013 Via certified mail, RRR (7011 0110 

0000 4181 8665), demandlOg payment of past due rent III the aIUount of 91, 168 00 

18 Counter-defendant bas faIled to pay SaId account to counter-plallltiff 

19 That the correct balance due to counter-plalOtlfffor rental payments III thiS laWSUit IS $91,168 00 

20 On or about December 18, 2009, at Houston, Texas, Llyasah M Dupree (Borrower) executed 

and delivered to Bomuk Interests, Ltd (Lender) a promissory note dated December 18,2009, whereby 

Llyasah Dupree promised to pay to the order of Bomuk Interests, Ltd the sum of $21,499 00, due and 
payable In equal monthly Installments of $440 00 from February I, 2010 through February 1, 2015 at 

Houston, Texas 

21 Said note bears mterest from February 1, 2010 at the rate of eight percent (8%) per annum until 

matunty and from maturity unnl paJd at the rate of fifteen percent (15%) per annum Bomuk Interests, 

Ltd, as the legal owner and holder of such note, IS the entIty enlltied to enforce It 

22 LIyasah Dupree made only one payment towards the note, $1,452 00 on June 10,2010 DespIte 

Lender's demand for payment from LIyasah Dupree after the note became due and payable, Llyasah 

Dupree made only one payment towards the note, $1,452 00 on June 10, 2010 

23 Plamllff/counter-defendant defaulted m fRllmg to pay her note payments when due 

24 The Note has been breached by faIlure to pay payment obhgatlOns due under the terms of the note 

25 Counter-plamlIff has requested counter-defendant to pay counter-plamtlff those sums due and 

owmg to counter-plamtlff 

26 On or about January 11, 2011, Lender sent notice of default and mtent to accelerate to Llyasah 

Dupree On or about March 28, 2011, Lender accelerated the matunty of the note and demanded 

payment of the note In full by LIyasah Dupree, but no addIlIonal payments have been made Fmally, on 

or about July 19, 2013, Bomuk lnterests, Ltd sent demand for payment of the note In the amount 

$28,49745 

27 Counter-defendant has faIled to pay said account to counter-plamtlff 

28 That the correct balance due to counter-plamtIfffor note payments m thiS laWSUIt IS $28,497 45 
29 In January, 2008, durmg the bUIld-out but pnor to tenant occupymg the 

premIses, the premIses were damaged durmg a storm from a roof faIlure that 

allowed ramwater to flood the premIses ThIS delayed tenant's occupancy of the 

premIses and damaged some of tenant's personal property 

30 The September 26, 2008 lease amendment abated the rent for the months of 

September, October and November, 2008 It also deferred $3000 per month of 

rent for the months of December, 2008 through March, 2009, WIth the agreement 

that tenant would pay these deferred amounts m mcrements of $500 per month for 

24 months begmnmg October, 2009 ThIS amendment also mcluded a mutual 

release of all claIms between the partIes eXlstmg at the tIme of the amendment 
-. 

ConclusIOns of Law 

The Lease has been breached for failure to pay rents due to Landlord pursuant to the terms 

ofthe Lease Agreement Counter·defendant defaulted under the Lease by fadmg to pay the 

rent due 

2 The unpaid balance due from counter-defendant to counter-plamhff IS $91,168 00 

3 Counter· plamtdfhas satIsfied all conditIOns precedent to complete performance of the 

Lease and has fully performed ItS oblIgatIOns under the lease Counter-plamtlff IS entitled to 

recover aU damages owed under the Lease and/or permitted by law Counter-plamtlff IS also 

enhtled to recover prejudgment and post-Judgment mterest as prOVided m the Lease andlor 

permitted by law, attorney's fees and court costs 

4 The Note has been breached for fOllure to pay pnnclpal and mterest due to Lender pursuant 

to the terms of the Promissory Note Counter-defendant defaulted under the Note by falhng 

to pay the mstaUments due 

5 The unpaid balance due from counter-defendant to counter-plOlntlffunder the terms ofthe 

Note IS $28,497 45 

6 Counter- plamtlff has sahsfied aU conditIOns precedent to complete performance of the 

Promissory Note and has fully performed ItS oblIgatIOns under the note Counter-plalllhff IS 

enhtled to recover all dOlDages owed under the Note andlor penmtted by law Counterplamllff IS also entitled to recover prejudgment and post-Judgment mterest as prOVided III the 

Note andlor permitted by law, attorney's fees and court costs 

7 As a result of counter-defendant's fOllure and refusal to pay the clOlms, counter-plamlIffhas 

been reqUired to retam the underSigned legal counsel to defend thIS cause of actIOn and 

prosecute thiS counterclaim Counter-plamtlff IS, therefore, entitled to recover the additIOnal 
sum of$15,000 as compensatlOn for Its attorney's fees, whIch sum IS a reasonable 

fee for the servIces rendered m mstltutmg and prosecutmg thIs actlOn 

8 The September 26, 2008 lease amendment released tenant's claIms agamst 

landlord stemmmg from the water mtruSlOn event m January, 2008 

9 The statute ofhmltatlOns barred tenant's claIms stemmmg from the January, 

2008 water mtruslOn event 

10 PlamtIffLlyash Dupree failed to prove the followmg causes of actIon alleged 

m PlamtIffs Ongmal PetItlOn breach oflease, wrongful eVictIon, retalIatory 

eVictIOn, unjust ennchment ["Reimbursement"], fraud and vlOlatlOn of the Texas 

DeceptIve Trade PractIces Act 

11 Plamtlff Llyash Dupree dba 360 Degree Beauty Academy IS entitled to no 

recovery agamst Defendant on any of her claims 

, SIgned thiS IS day of August, 2014 

Mike MIller Judge Presldmg 
\\\\\\\\\\ II) IIIIII/. 

\'" . ~ HARb 1/,;;. 

?ol 

fi*~C% \.~~ 

~~f 1~~' 

."~~\ -'l ",_n. ". .-/~~~J ..J.,,~ " STATE OF TEXAS .~ "IO· .. ·~······~.,. ,.:::> 

COUNTY OF HARRIS ~~'l//It/Jtll'~-<\'~~ I .. Chris Danl.l, DI.lrlct CI'.'" 01 Harri. Coun~, TOIla\; oOiIIly thlt 

tnl, I. a \rue .n<! comet copy 01 tli. onglnel rBCOrd ,ted and or NIOr@<! 

In my ofIIce, .I.cironlcally or h.rd copy, " It.ppears on thle data, 

W1tn ... mr ~~ .~<II f C<l thl. 
EXHIBIT 2 - FINAL JUDGMENT 

24 I P age 
LL YASAH DUPREE d/b/a 

360 Degree Beauty Academy, 

Plaintiff/Counter-defendant 

vs. 

BONIUK INTERESTS, LTD, 

Defendant/Counter-plaintiff 

7/24/201421636 PM 

Chns Oamel- DIstrict Clerk Hams County 

Envelope No 1935004 

By JONATHAN PATTON 

CAUSE NO. 2013-40231 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

HARRIS COUNTY, TE~ 

"'-~. ",~ fF~ 

nTH JUDICIAL coim?i 

~ 

FINAL JUDGMENT 

00 ~ On July 22, 2014, the Court called this case for trial. ~ Interests, Ltd. (Taxpayer 

LD. #76-0457058), hereinafter referred to as defendanti~ter-Plaintiff, appeared by and 

through its attorney of record and aonounced ready ~~al. Llyasah Dupree, hereinafter «;::jt 

referred to as plaintiff/counter-defendant, appeareq ~ and through her attorney of record and ~) 

aonounced ready for trial. All matters in contr,;w~. ' factual and legal, were heard by the court. Qr' 

The court heard the evidence presented by ~ parties. The Court, after hearing the evidence 

and argument of counsel, rendered ~~~t for Boniuk Interests, Ltd., the defendant/counterplaintiff, and against Llyasah Dupr~ plaintifflcounter-defendant, in all respects. 

Accordingly, IT IS ~FORE ORDERED, ADJUDGED AND DECREED that 

Llyasah Dupree, Plaint~~ter-defendant, take nothing from Boniuk Interests, Ltd, 

~ defendant/counter-pl~ 

f

" r.sdl 

IT IS FUR . tIfu: ORDERED, ADJUDGED AND DECREED that judgment be entered 

D 

in favor of ~~. Interests, Ltd., defendant/counter-plaintiff, based on its counter-claim, as 

follows: 
1) The Court orders that Boniuk Interests, Ltd., defendant/counter-plaintiff, recover from 

L1yasah Dupree, plaintifllcounter-defendant, the sum of ONE HUNDRED NINETEEN 

THOUSAND SIX HUNDRED SIXTY-FIVE AND 45/100 DOLLARS ($119,665.45), plus 

fiv'l. ~>- prejudgment interest on the sum of $119,664.45 at the annual rate of.pe~('Io) per annum 

~S- ~ beginning July 19, 2013 through July it, 2014 ~sfjudg:n;mt) ~~ _6_t sf SEVEN 

~ Tl:1el:fSANf)'eNE HUNDREIrSBVEN'f'l-NINE MID 93/1e6 ~LAAS ($},Ii9.'B) fm a 

~ teta:! of ONE HUNDltED I WENfY·SIX TIlOUS1\}ID ~ HlINDRlID FORTY FIVE ~ 

At-ID 33flQQ ~ ($L~6,845 38) as sf.ffily 22, 29Fd post-judgment interest on the;;> 

~;ve > 

45flOO DOLLARS ($119,665.4ii) at the annual ra ~ percent (e%) per annum from the date 0~?} 

of signing as set forth below until this jUdgme~ been paid in full. 

U 

2) The Court further orders tha~oniuk Interests, Ltd., defendant/counter-plaintiff, 

10' 

recover from L1yasah Thj~, plaintif!lcounter-defendant, an additional sum of 

FIFTEEN THOUSfiitr"U ,,=~ 001100 DOLLARS ($15,000.00) as attorneys' fees. 

3) The Court further~ders that Boniuk Interests, Ltd., defendant/counter-plaintiff, 

~~ 

recover from ~:ili Dupree, plaintifllcounter-defendant, all taxable court costs. 

4) The court~rs execution to issue for this judgment. 

(r"i" 

5) The ~enies alI relief not granted in this judgment. JUL 25 2014 

Signedthis$· day of a 25201. ,2014. 

JUDGE PRESIDING 
APPROVED AS TO FORM AND SUBSTANCE: 

Debra Boniuk 

Attorney at Law 

3720 San Jacinto 

Houston, Texas 77004 

(713) 984-8300 

(713) 984-9399 Facsimile * !(5~ U 

0'0' ~ 

~ 

Q~G-b~ Q~) Debra Boniuk ~ TBN 17500280 /fft ' 

iff 

ATTORNEY FOR DEFENDANT/COUNTER-PL~F 

CERTIFIC~~F ~ SERVICE 

~~' 

I hereby certifY that on this ~ day of July 2014, a true and correct copy of the 

r?~ 

foregoing Final Judgment was se~Certified Mail, Return Receipt Requested or facsimile 

transaction or regular mail or h~Q~liVery, to the following party andlor counsel of record: 

Timothy L. Williams Q~ TL Williams & Associate(jl 

11811 North Freeway, SlI@ 212 

Houston, Texas 7706fjjjpY 

ViaFACSIM:I:l£~SMISSIONat(281)417180l "~~ ~ O-'-D '~Dfu 

And via certifi~'ail, RRR 7010 18700001 83397014 

~ . , ();wrahifrJ 

Debra Boniuk