llPage Cause No.: 

## o 1-14-00864-CV



### COURT OFAPPEALS FIRSTDISTRICT OF TEXAS HOUSTON, TEXAS 

### Llyasab Dupree d/b/a 360 Degree BeautyAcademy, Appellant Vs 

### BoniukInterest, Ltd, Appellee

BRIEF OF THEAPPELLANT
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


### ORALARGUMENTNOTREQUESTED ACCEPTED 01-14-00864-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 2/20/2015 4:30:02 PM CHRISTOPHER PRINE

CLERKIDENTITY 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 NorthFreeway, Suite 212 Houston, Texas 77060 Appellee/Respondent Boniuk Interest, Ltd Attorney for Appellant DebraBoniuk BoniukInterest, Ltd 3720 San Jacinto Houston, Texas 77004

21PageTABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL 2 INDEX OF AUTHORITIES 

### .............................................. 5 STATEMENT OF CASE 7 ISSUES PRESENTED ............................................................ 7 Point ofError 1: Use ofparol evidence to ascertain to intent of the parties in the construction of the promissory note betweenthe 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 DefendantLandlord Point ofError 3: No consideration for the amendment to the lease agreement. The Plaintiffhad 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 onthe Appellant STATEMENTREGARDING ORALARGUMENT STATEMENT OFFACTS SUMMARY OF THE ARGUMENT STANDARD OF REVIEW 

### ............................................... 31Page 8 8 9 9

### ARGUMENT 

### .............................................................. CONCLUSIONAND PRAYER CERTIFICATE OF SERVICE 

## ...................................................... CERTIFICATE OF COMPLIANCE APPENDIX 

### ............................................................... Exhibit 1: Finding ofFacts and Conclusions ofLaw

41Page 

### 10 

### 21 21 22 23INDEX OFAUTHORITIES 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).

51Page10. Albritton Dev. v. Glendon, 700 S.W.2d 244, 246 (Tex. App.--Houston [1st Dist.] 1985, writrefdn.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'nApp. 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 refdn.r.e.).

6iPage I ITO THE HONORABLE FIRST COURT OF APPEALS: STATEMENT OFTHE CASE Nature ofCase

The Trial Court Trial Court's Disposition The court abused its discretion by admitting parol evidence to establish the intent ofthe 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 11th Judicial District, Harris County, Texas Dismissed Plaintiffs cause ofaction and granted reliefto the Defendant on its counterclaim for breach ofcontract
ISSUES PRESENTED Point ofError 1: Use ofparol evidence to ascertain to intent ofthe parties in the construction ofthepromissory note between the Appellee and the Appellant.
Point ofError 2: Evidence does not support the decision, Appellant tendering of payments for lease payments not deposited byAppellee.

71PagePoint 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 ofError 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 usedto commit fraud onthe Appellant STATEMENTREGARDING 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 bythe Appellant. STATEMENT OFFACTS Court ruling On July 25,2014, the 11th Judicial District Court enteredjudgment in open court denying the Appellant petition for relief and granting the Appellee reliefon its counterclaim and for attorney fees. The Appellant filed a request for Findings ofFacts and Conclusions ofLaw
on August 2014. The Court filed its Findings ofFacts and Conclusions ofLaw on
81PageAugust 15, 2014. The Appellant filed its Notice of Appeal on November 2014. The court repOlier filed the record on January 21, 2015. The briefofthe Appellant
was due onFebruary 20, 2015. 

### SUMMARY OF THE 

### ARGUMENT The Appellant argues that (1) the court erred inthe use ofparol evidence to ascertain to intent ofthe parties in the construction ofthe 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 oflease 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 Plaintiffhad 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 usedto commit fraud on the Appellant. 

### STANDARD OF REVIEW The standard ofreview is a preponderance ofthe evidence in a civil, nonfamily cause ofaction. 91PageARGUMENT Point ofError 1: Use ofparol evidence to ascertain to intent ofthe parties in the construction ofthe promissory note between the Appellee and Appellant.

1. On December 18,2009, Appellant and Appellee entered into an agreement whereby pursuantto the plain language ofthe 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" ofthe agreement.
2. In return for the loan, the Appellant was obligated to pay the Appellee installmentpayments inthe amount of$440 per month for 60 months.

3. The Appellant made payments onthe 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 age4. The courtrelied on exhibits provided by the Appellee to ascertain the nature ofthe consideration, even though the language ofthe promissory note was plain and uncontroverted. The language in the promissory note stated that the principal amountto 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 ofthe 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 ofan improperjudgment. 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, writrefdn.r.e.), cert. denied, 485 U.S. 994 (1988).

lllPage7. Reversible error does not usually occur in connection with rulings on questions of evidence unless the appellant can demonstrate that the whole
case turns onthe particular evidence thatwas admitted or excluded. Texaco, Inc., 729 S.W.2d at 837. The Appellant's cause ofactions onthe 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 bymaking 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 agethe parties' true intentions, where the writing is ambiguous. Trinity Univ. Ins. Co. v. PonsfordBros., 423 S.W.2d 571, 574-75 (Tex. 1968).

9. Ifthe 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 ofPinehurst 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 ofthese exceptions, there must be a showing that the payee employed some type oftrickery, 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 offraud inthe inducement thatwould be necessary to allow introduction ofparol evidence is notpresent.

13IPage11. 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 ofthe 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 ofa valid andbinding written agreement.
12. There were no conditions precedent to the execution ofthe promissory note and, therefore, the introduction ofparol evidence is inerror.
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 monthlypayments to payoffthe loan.

14 I P agePoint ofError 2: Evidence does not support the decision, Plaintiff's tendering ofpayments for lease payments not deposited byDefendantLandlord

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 Appellanthadnot 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 ofthe Appellant from the premises. [Transcript page 125, lines 1-22]

16. The Appellee testified that it had received checks for the full payment ofthe 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 ofthe checks tendered to it bythe Appellant, includingpartial payments, without waiving its rights underthe lease. 15 I P age18. Ifthe Appellee had deposited the checks and the checks had been returned for insufficient funds, then the Appellee could argue that the appellant had nottendered 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 byruling thatthe appellant had nottenderedthe 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 ofError3: No consideration for the amendment to the lease agreement. The Plaintiffhad a duty to pay rent under the lease agreement and there was no additional consideration.

16 I P age21. 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 itselfbe 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 paythe 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 ofnew consideration.

17 I P age24. Withoutthe 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, ifthe 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 andwere used to commitfraud 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 ExhibitD3, when the court raised a question concerning the exhibit, was "... a mistake in our accounting and I will saythatup front." [Transcript page 69, lines 14-16]

181Page27. Appellee then moves to admit Appellee Exhibit D3 knowing that this document was not accurate. [Transcriptpage 80, lines 7-9]

28. Appellee then states that the admitted "Defendant Exhibit No.3 is a tenant payment list showing your [Appellant] paymenthistory for 2010 and 2011.
29. Appellee also testifies that the document entered as Appellee ExhibitD3 was the Tenant Payment List for 2008-2009 and 2010-2011 [Transcript page 120, lines 10-19]

30. The court then clarifies the nature ofthe exhibit as the Tenant Payment List for 2008,2009,2010 and 2011 [Transcriptpage 121, lines 4-7]

31. Appellee then testifies that "There are some inaccuracies in this piece of paperrighthere (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 supportthe fact that she hadnotpaidrent. [Transcriptpage 122, lines 18-20]

19 I P age33. 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 ofthe promissory note. [Transcriptpage 124, lines 6-10]

34. Accordingly, Appellee has provided no evidence that it provided the Appellant with any notice ofthe 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 whenthey were offered for admission andwere offeredto 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 ofthe fraud and should be sanctioned by having the exhibits stricken from the trial court record and
20 I P agethe Appellee and the Appellee attorney should be held in contempt ofcourt for participating inthe fraud.

CONCLUSIONAND 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 awardthe Appellant
- Plaintiffattorney fees and court costs.
Timothy L. Wi . ms, MBA,JD TBN: 00791938 TL Williams & Associates 11811 NorthFreeway, Suite 212 Houston, Texas 77060 713.504.1882
- Office**i!yill~a.ms.nhcs-®yahoo.com** - email Attorney for Appellant, LlyasahDupree d/b/a 360 Degree BeautyAcademy

CERTIFICATE OF SERVICE I certifY that a true and complete copy ofthe 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 ageTexas 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 oftheTexas Rules ofAppellate 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 ageEXHIBIT 1 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

23 I P ageLLYASAHDUPREE d/b/a 360 Degree BeautyAcademy, PlamtIff/Counter-defendant vs BONIUKINTERESTS, 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 THEDISTRICT COURT OF HAJUUSCOUNTY,TEXAS 

# FILED ChrIs DanIel 11TH JUDICIAL COURT DistrIct Clerk TI 

### AUG 1 52014

me <./**~lfE"?t±&NfiGoml'fERof'LAIN1'lFF'S ~**  FINDINGS

### Qii:ACT 

## ',rI. Counly. AND CONCLUSIONS OFLAW 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 

## eabove referenced d moered cause 0**~ctIon l~Fmdmgs**  ofFact 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 SMEMORANDUM ThiS lnstrument IS ofpoor quality at the lime of Imagmgm 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 September26, 2008 5 Tenant entered mto possessIOn ofthe premises, and, despite landlord's fuJI perfonnance ofall oblIgatIOns and conditIOns ofthe lease, tenant faIled topay the rent pursuant to the tenns ofthe lease 6 Dupree struggled to pay the rental payments at various tImes durmgthe 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 ofdefault 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 payrent due Llyasah M Dupree did notpay her rental arrears to re-enterthe preIlllses 10 On March 22, 2011, LJyasab Dupree filed a WrIt ofRe-entry With a Tenant's Sworn Complalllt
m the JustIce ofthe Peace Court, Precmct 5, Place 2, case number EV52C0309272 AhearIng was held on March 24, 2011 @ 4 00 pm atwhich timeJudgment was entered III favor ofthe landlord confinnmg that the lockout was lawful11

# ~DN\ ge the 100 on th lease space and

ad eXisted funllture a d Ixtur s

# ~
, Ille which avalId 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 ofthis new lease was November 4, 2011 13 Plamtlff/oounter-defendantdefaulted In faIling to payherrental payments when due 14 TheLeasehas beenbreachedthe lease by filliure to pay rent due underthetenos ofthe lease 15 Counter-plaintiff bas requested counter-defendant to pay counter-plamtlff those sums due and owmgto 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 Viacertifiedmall,RRR (7011 0110 0000 4181 9822), demandmg paymentofpast due rent 17 Agam on July 19, 2013, counter-plamtlffpresented a claim on the Lease to counter-defendant through her attorney ofrecord 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 ofpast duerent IIIthe aIUount of91, 168 00 18 Counter-defendantbas faIled to pay SaId account to counter-plallltiff 19 Thatthecorrectbalancedueto counter-plalOtlffforrental payments IIIthiS 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 ofBomuk Interests, Ltd the sum of $21,499 00, due andpayable 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 ofeight percent (8%) per annum until matunty and from maturity unnl paJd at the rate offifteen percent (15%) per annum Bomuk Interests, Ltd, as the legal owner and holder ofsuch note, ISthe 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 mfRllmg to pay hernote payments when due 24 TheNotehas beenbreached by faIlure to pay payment obhgatlOns due underthe terms ofthe note 25 Counter-plamlIff has requested counter-defendant to pay counter-plamtlff those sums due and owmgto counter-plamtlff 26 On or about January 11, 2011, Lender sent notice ofdefault and mtent to accelerate to Llyasah Dupree On or about March 28, 2011, Lender accelerated the matunty of the note and demanded payment ofthe 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-defendanthas faIled to pay said accountto counter-plamtlff 28 Thatthe correctbalance dueto counter-plamtIfffor note payments mthiS laWSUIt IS $28,497 4529 In January, 2008, durmgthe bUIld-out but pnorto tenant occupymgthe premIses, the premIses were damaged durmg a storm from a rooffaIlure that allowed ramwaterto flood the premIses ThIS delayed tenant's occupancy ofthe premIses and damaged some oftenant's personalproperty 30 The September 26, 2008 lease amendment abated the rent for the months of September, October and November, 2008 Italso deferred $3000 per month of rent for the months ofDecember, 2008 through March, 2009, WIth the agreement that tenant wouldpay these deferred amounts m mcrements of $500 permonth for 24 months begmnmg October, 2009 ThIS amendment also mcluded a mutual release ofall claIms betweenthe partIes eXlstmg at the tIme ofthe amendment-.

ConclusIOns ofLaw The Leasehasbeen breached for failure to pay rents due to Landlord pursuantto the terms oftheLease Agreement Counter·defendantdefaulted under theLeaseby fadmgto paythe rentdue 2 Theunpaid balance due from counter-defendantto counter-plamhffIS $91,168 00 3 Counter· plamtdfhas satIsfied all conditIOns precedent to complete performance ofthe Lease and has fully performed ItS oblIgatIOns under the lease Counter-plamtlffIS entitled to recover aU damages owed underthe Lease and/or permitted by law Counter-plamtlffIS also enhtledto recover prejudgment and post-Judgment mterest as prOVided m the Lease andlor permitted by law, attorney's fees and court costs 4 TheNote has been breached for fOllure to pay pnnclpal and mterest due to Lenderpursuant to the terms ofthe PromissoryNote Counter-defendantdefaulted under the Note by falhng to paythe mstaUments due 5 The unpaid balance due from counter-defendant to counter-plOlntlffunderthe terms ofthe Note IS $28,497 45 6 Counter- plamtlff has sahsfied aU conditIOns precedent to complete performance of the PromissoryNote and has fully performed ItS oblIgatIOns under the note Counter-plalllhffIS enhtled to recover all dOlDages owed under the Note andlor penmtted by law CounterplamllffIS also entitledto recover prejudgment and post-Judgment mterest as prOVided IIIthe Note andlorpermitted by law, attorney's fees and court costs 7 As a result ofcounter-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-plamtlffIS, therefore, entitledto recover the additIOnalsum of$15,000 as compensatlOn for Its attorney's fees, whIch sum IS areasonable fee for the servIces rendered m mstltutmg and prosecutmgthIs actlOn 8 The September 26, 2008 lease amendmentreleasedtenant's claIms agamst landlord stemmmg from the water mtruSlOn event m January, 2008 9 The statute ofhmltatlOns barredtenant's claIms stemmmg from the January, 2008 water mtruslOn event 10 PlamtIffLlyashDupree failed to prove the followmg causes ofactIon alleged mPlamtIffs OngmalPetItlOn breachoflease, wrongful eVictIon, retalIatory eVictIOn, unjust ennchment ["Reimbursement"], fraud and vlOlatlOn oftheTexas DeceptIve Trade PractIces Act 11 PlamtlffLlyashDupree dba 360 Degree Beauty Academy IS entitled to no recovery agamst Defendant on any ofher claims

, SIgnedthiS 

## IS day ofAugust, 2014

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

24 I P ageLLYASAH DUPREE d/b/a 360 DegreeBeautyAcademy, Plaintiff/Counter-defendant vs. BONIUKINTERESTS,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~**  nTHJUDICIAL

## 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 ofrecord and**~)** aonounced ready for trial. All matters in**contr,;w~.**' factual and legal, were heard bythe court. 

### Qr' The court heard the evidence presented by

### ~ parties. The Court, after hearing the evidence and argument ofcounsel, 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 thatjudgment 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 onthe sum of$119,664.45 atthe annualrate**of.pe~('Io)** per annum

### ~S-**~** beginning July 19, 2013 through July it, 2014

### ~sfjudg:n;mt)**~~** _6_t sf SEVEN

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

### ~ teta:! of ONE HUNDltED I WENfY·SIX TIlOUS1\}ID

### ~ HlINDRlID FORTY FIVE**~** At-ID 33flQQ

### ~**($L~6,845** 38) as sf.ffily 22, 2

## 9 Fdpost-judgment interest on the;;>

### ~;ve 

# > 45flOO DOLLARS ($119,665.4ii) atthe annual ra**~** percent (e%) per annum from the date**0~?}** ofsigning as set forth belowuntil this

## jUdgme~beenpaidinfull. 

# 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

# ,,=~ FIFTEENTHOUSfiitr"U 001100 DOLLARS ($15,000.00) as attorneys' fees. 3) The Court**further~ders** that Boniuk Interests, Ltd., defendant/counter-plaintiff,**~~** recoverfrom

### ~:iliDupree, plaintifllcounter-defendant, all taxable courtcosts. 4) The

## court~rs execution to issue for thisjudgment. (r"i" 5) The

## ~enies alI reliefnot granted in thisjudgment. 

### JUL 

### 25 2014 Signedthis$· day of 

# a 25201. ,2014.

JUDGEPRESIDINGAPPROVED AS TO FORMAND SUBSTANCE: DebraBoniuk Attorney at Law 3720SanJacinto Houston, Texas 77004 (713) 984-8300 (713) 984-9399 Facsimile 

# ***!(5~** 

# U**~** 0'0'

# ~

# Q~G-b~**Q~)** DebraBoniuk

## ~ TBN 17500280 

# /fft' iff ATTORNEY FOR

### DEFENDANT/COUNTER-PL~F

# ~**CERTIFIC~~F** SERVICE

### ~~' I hereby certifY that on this

## ~ day ofJuly 2014, a true and correct copy ofthe**r?~** foregoing Final Judgment was

### se~Certified Mail, Return Receipt Requested or facsimile transaction orregularmail or

# h~Q~liVery, to the following party andlor counsel ofrecord: Timothy L. Williams

### Q~ TL Williams & Associate(jl 11811 NorthFreeway, SlI@212 Houston, Texas 7706fjjjpY

## "~~**'~Dfu ViaFACSIM:I:l£~SMISSIONat(281)417180l** **~** O-'-D And via**certifi~'ail,** RRR 7010 18700001 83397014

### ~ 

## . 

# , ();wrahifrJ DebraBoniuk