Laurel Miller and Eliana Miller v. Debo Homes, LLC

Opinion

ACCEPTED 14-15-00004-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 7/28/2015 8:27:19 AM CHRISTOPHER PRINE CLERK

CAUSE NO. 14-15-00004-CV

FILED IN 14th COURT OF APPEALS IN THE FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS HOUSTON, TEXAS 7/28/2015 8:27:19 AM CHRISTOPHER A. PRINE Clerk LAUREL MILLER AND ELIANA MILLER Appellants and Cross-Appellees

vs.

DEBO HOMES, LLC Appellee and Cross-Appellant

From Cause No. 13-DCV-209822 In the 400th Judicial District Court Fort Bend County, Texas

APPELLEE AND CROSS-APPELLANT DEBO HOMES, LLC’S BRIEF

Craig Welscher State Bar No. 21167200 Nicholas Martinez State Bar No. 24087986 The Welscher Law Firm, P.C. 1111 North Loop West, Suite 702 Houston, Texas 77008 (713) 862-0800 – Telephone (713) 862-4003 – Facsimile Email: nmartinez@welscherlaw.com Attorneys for Appellee & Cross-Appellant

ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL

Appellants and Cross-Appellees

Laurel Miller and Eliana Miller

Appellants’ Counsel

Timothy A. Hootman- Appellate Counsel SBN: 09965450 2402 Pease St. Houston, Texas 77003 Telephone: (713) 247-9548 Facsimile: (713) 583-9523 Email: thootman2000@yahoo.com

Brian H. Crockett- Trial Counsel SBN: 24074094 10565 Katy Freeway, Ste. 400 Houston, Texas 77024 Telephone: (713) 779-3476 Email: brian@crockettlaw.com

Appellee and Cross-Appellant

Debo Homes, LLC

Appellee’s Trial & Appellate Counsel

Craig Welscher SBN: 21167200 Nicholas Martinez SBN: 24089786 The Welscher Law Firm, P.C. 1111 N. Loop West, Suite 702 Houston, Texas 77008 Telephone: (713) 862-0800 Facsimile: (713) 862-4003 Email: nmartinez@welscherlaw.com ii REQUEST FOR ORAL ARGUMENT

Appellee moves to place this case to the argument calendar. This case meets

the standards in Rule 39.1 for oral argument, in that (a) this appeal is not frivolous,

(b) the dispositive issues raised in this appeal have not been recently and

authoritatively decided, (c) the facts and legal arguments are not adequately

presented in the briefs and record, and (d) as described in the accompanying

memorandum, the decisional process would be significantly aided by oral

argument.

Specifically, this brief presents extensive arguments regarding what is

factually sufficient to support a Deceptive Trade Practices Act finding. Appellee

believes that oral argument would allow this Court to question counsel regarding

specific pieces of evidence from trial and how those relate to the DTPA issues.

iii TABLE OF CONTENTS

PAGE Identity of Counsel and Parties.................................................................................ii

Request for Oral Argument......................................................................................iii

Table of Contents.....................................................................................................iv

Index of Authorities……………...........................................................................viii

Statement of the Case................................................................................................1

Issues Presented……….............................................................................................2

Statement of Facts….................................................................................................3

Summary of the Argument........................................................................................8

Argument...................................................................................................................9

A. THE DTPA REQUIRES THE MILLERS TO PROVIDE EVIDENCE FOR A REPRESENTATION IN § 17.46(B) ........................................................................9

1. The No Evidence Standard.........................................................................9

2. The DTPA Elements and Standard............................................................9

B. THERE IS NO EVIDENCE THE ALLEGED REPRESENTATIONS WERE BREACHED BY DEBO..............................................................................................................10

1. Representation No. 1: That Debo Hires the Highest Quality Subcontractors..........................................................................................10

2. Representation No. 2: Onsite Supervision and Inspections.....................14

3. Representation No. 3: That Debo Obtains Third-Party Inspections........16

iv 4. Representation No. 4: The AC Unit in the Model Home Would be in the Home in Question....................................................................................16

5. Representation No. 5: That All Problems Would be Fixed.....................17

C. THE ALLEGED REPRESENTATIONS IN SUPPORT OF THE JURY’S FINDING TO QUESTION NO. 1 ARE NONACTIONABLE PUFFERY UNDER THE DTPA................19

1. The Puffery Standard...............................................................................19

2. The Millers’ Representations at Trial are Puffery and Opinion...............21

a. Representation No. 1: That Debo Hires the Highest Quality Subcontractors.....................................................................................21

b. Representation No. 2: Onsite Supervision and Inspections................23

c. Representation No. 5: That All Problems Would be Fixed................25

3. Debo’s Alleged Representations Are Nonactionable Opinions Under Ghosh.......................................................................................................27

a. (1) Intertwined with direct representations of present facts and (3) based on past or present facts..............................................................27

b. (2) The speaker has knowledge of its falsity.......................................28

c. (4) The speaker has special knowledge of facts that will occur or exist in the future.........................................................................................30

D. THE MILLERS SHOULD NOT BE AWARDED PREJUDGMENT INTEREST..................31

1. Debo’s Tender Into the Court Registry Precludes Prejudgment Interest......................................................................................................31

E. THE MILLERS SHOULD NOT BE AWARDED POSTJUDGMENT INTEREST.................32

1. Debo’s Deposit Into the Court Registry Halts Postjudgment Interest......................................................................................................32 v Conclusion...............................................................................................................32

Prayer.......................................................................................................................33

Certificate of Compliance........................................................................................34

Certificate of Support..............................................................................................34

Certificate of Service...............................................................................................34

Appendix....................................................................................................................a

1. Clerk’s Record

a. Volume 1

i. Plaintiff’s Original Petition, Requests for Disclosure and Demand for Jury Trial

b. Volume 2

i. Plaintiffs Trial Witness List

ii. Jury Charge

c. Volume 3

i. Defendant Debo Homes, LLC’s Motion to Disregard the Jury’s Answer to Question Number One

ii. Order Denying Defendant’s Motion to Disregard the Jury’s Answer to Question Number of the Jury’s Charge

iii. Defendant Debo Homes, LLC’s Response to the Plaintiffs’ Motion for Judgment on the Jury Verdict

iv. Final Judgment

vi 2. Reporter’s Record

a. Volume 2

i. Examination of Laurel Miller

b. Volume 3

ii. Examination of Harold Knueppel

iii. Examination of Kris Dominguez

iv. Examination of Juan Carlos Hernandez

c. Volume 4

i. Examination of Eduardo Michael Cisneros

d. Volume 6

i. Plaintiffs’ Exhibit 1

ii. Plaintiffs’ Exhibit 10

iii. Plaintiffs’ Exhibit 12

iv. Defendant’s Exhibit 2

v. Defendant’s Exhibit 10

vi. Defendant’s Exhibit 11

vii. Defendant’s Exhibit 14

viii. Defendant’s Exhibit 20

vii INDEX OF AUTHORITIES

TEXAS CASE LAW:

Allen v. Devon Energy Holdings, L.L.C., 367 S.W.3d 355, 370 (Tex. App.- Houston [1st Dist.] 2012, pet. granted)....................................................................24

Anglo-Dutch Petroleum Int’l, Inc. v. Shore Harbour Capital Management Corp., No. 01-09-00417-CV, 2011 WL 862117, *4-5 (Tex. App.- Houston [1st Dist.] Mar. 10, 2011, no pet.) (mem. op.)..................................................................................30

Autohaus, Inc. v. Aguilar, 794 S.W.2d 459, 463-64 (Tex. App.- Dallas 1990, writ denied)..........................................................................................................20-21, 24

Breault v. Psarovarkas, No. 01-01-00122-CV, 2003 WL 876651, *7 (Tex. App.- Houston [1st Dist.] Feb. 28, 2003, pet. denied) (mem. op.).....................................32

Browning Oil Co. v. Luecke, 38 S.W.3d 625, 648 (Tex. App.- Austin 2000, pet. denied)................................................................................................................31-32

GJP, Inc. v. Ghosh, 251 S.W.3d 854, 889 (Tex. App.- Austin 2008, no pet.)........................................................................................................20, 24, 27, 28

Hedley Feedlot v. Weatherly Trust, 855 S.W.2d 826, 838-39 (Tex. App.- Amarillo 1993, writ denied)........................................................................................19-20, 24

Helm v. Kingston, No. 13-10-00224-CV, 2011 WL 6746064, *5-7 (Tex. App.- Corpus Christi Dec. 21, 2011, pet. denied) (mem. op.).....................................22-23

Kramer v. Hollmann, No. 02-11-00136-CV, 2012 WL 5869423, *1, 4-5 (Tex. App.- Fort Worth Nov. 21, 2012, pet. denied) (mem. op.)................................13, 14

Lozano v. Lozano, 52 S.W.3d 141, 166 (Tex. 2001)...............................................17

Matis v. Golden, 228 S.W.3d 301, 307-09 (Tex. App.- Waco 2007, no pet.)....29-30

McCrea v. Cubilla Condominium Corp. N.V., 685 S.W.2d 755, 759-60 (Tex. App.- Houston [1st Dist.] 1985, writ ref’d n.r.e.)...................................................15, 16, 19

viii Miga v. Jensen, 96 S.W.3d 207, 212 (Tex. 2002)...................................................32

Paull v. Capital Res. Mgmt., Inc., 987 S.W.2d 214, 218-19 (Tex. App.- Austin 1999, pet. denied)....................................................................................................25

Pegasus Energy Group, Inc. v. Cheyenne Petroleum Co., 3 S.W.3d 112, 125 (Tex. App.- Corpus Christi 1999, pet. denied)..................................................................31

Pennington v. Singleton, 606 S.W.2d 682, 685-89 (Tex. 1980)..............................20

Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 163 (Tex. 1995)........................................................................................................................21

Reynolds v. Murphy, 188 S.W.3d 252, 268 (Tex. App.- Fort Worth 2006, pet. denied).....................................................................................................................25

Rocor Int’l v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002)........9, 15

Roubein v. Marino Home Builders, No. 13-01-711-CV, 2002 WL 1765579, *4 (Tex. App.- Corpus Christi Aug. 1, 2002, pet. denied, not designated for publication).........................................................................................................26-27

Rush v. Barrios, 56 S.W.3d 88, 94-95 (Tex. App.- Houston [14th Dist.] 2001, pet. denied).......................................................................................................................9

Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 621 (Tex. 2004)............9, 13

St. Paul Mercury Ins. Co. v. Billiot, 342 S.W.2d 161, 164 (Tex. App.- Beaumont 1960, writ ref’d).......................................................................................................32

Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003).................................................9

Trenholm v. Ratcliff, 646 S.W.2d 927, 930-31 (Tex. 1983)........................20, 24, 30

Werth v. Johnson, 294 S.W.3d 908, 910-11 (Tex. App.- Beaumont 2009, no pet.).....................................................................................................................30-31

ix TEXAS STATUTES:

TEX. BUS. & COMM. CODE §§ 17.41-17.63..............................................................10

x STATEMENT OF THE CASE

Appellants and Cross-Appellees Laurel Miller (“L. Miller”) and Eliana

Miller (“E. Miller”) (collectively, the “Millers”) filed suit against Appellee and

Cross-Appellant Debo Homes, LLC (“Debo”) alleging violations of the Texas

Deceptive Trade Practices Act (“DTPA”) among other causes for Debo’s

construction of the Millers’ home (C.R. Vol. 1, at p. 9-19).

Before trial commenced, Debo deposited $60,300.00 into the trial court’s

registry (R.R. Vol. 6, at Dft. Ex. 20). The case then proceeded to trial and the jury

found Debo violated the DTPA and awarded the Millers $60,650.00 in actual

damages (C.R. Vol. 2, at p. 560-82). Debo subsequently challenged the jury’s

DTPA finding in a motion to disregard (C.R. Vol. 3, at p. 755-954), which the trial

court denied (C.R. Vol. 3, at p. 971-72). Debo then deposited an additional

$350.00 into the trial court’s registry (C.R. Vol. 3, at p. 1122).

Upon the Millers’ motion to enter judgment based on the jury’s findings,

Debo challenged the Millers’ request for prejudgment and postjudgment interest

due to Debo’s tender of money into the registry of the court (C.R. Vol. 3, at p.

1115-47). The trial court denied Debo’s challenge, awarding Millers prejudgment

and postjudgment interest on $60,650.00 (C.R. Vol. 3, at p. 1148-51).

1 ISSUES PRESENTED

1. The Jury’s DTPA finding in Question No. 1 must be disregarded because a)

there is no evidence to support a breach of the DTPA and 2) the Millers’

purported representations in support of a DTPA finding are mere puffery.

2. The Millers must not be granted any prejudgment or postjudgment interest

on their damages award because Debo made a complete tender of the actual

damages amount into the trial court’s registry.

2 STATEMENT OF FACTS

In April 2013, the homebuyers Millers and general contractor Debo agreed

to a new home construction contract (the “Agreement”) (R.R. Vol. 6, at Pltf. Ex.

1). The Agreement indicated that the Millers would pay the total amount of

$178,000.00, which the parties ultimately agreed would be paid solely in cash

installments (R.R. Vol. 2, at p. 32:3-16). The Millers made total cash payments to

Debo in the amount of $60,300.00 (R.R. Vol. 6, at Dft. Ex. 2).

Since the Millers agreed to make cash installments, Debo had to fund the

majority of the construction project out of their own pocket, which included

purchasing the lot for $18,500.00 and paying $86,359.79 for the subcontractors

(R.R. Vol. 6, at Pltf. Ex. 10; R.R. Vol. 3, at p. 239:22-25 & 240:1-6). In total, Debo

paid $151,100.78 out of its own pocket to build the home at issue (R.R. Vol. 6, at

Pltf. Ex. 10).

The Millers claimed in their pleadings that Debo made “numerous

representations to induce the Millers to purchase the home” (C.R. Vol. 1, at p. 10).1

Believing those representations were unfulfilled during the first phase of

construction, the Millers hired a lawyer to send a letter to Debo, threatening

litigation, ordering Debo to cease all communications with the Millers, and

ordering Debo to halt construction (R.R. Vol. 6, at Dft. Ex. 10). Debo responded

1 These amorphous “representations” are summarized in a chart on pages 5-6, infra. 3 soon thereafter, reiterating their commitment to customer satisfaction and

fulfillment (R.R. Vol. 6, at Dft. Ex. 11). Debo also acknowledged that if the

Millers were still unsatisfied, that they were “free to terminate the contract with

Debo Homes and we will refund you 100% of the money you have given us after

we sell the house” (R.R. Vol. 6, at Dft. Ex. 11). The Millers’ response to Debo’s

olive branch would be this lawsuit (C.R. Vol. 1, at p. 9-19). The parties never

closed on the home purchase and the Millers never inspected the finished house.

To mitigate their damages, Debo sold the home to a third party for $10,000.00 less

than what the Millers agreed to pay (R.R. Vol. 6, at Dft. Ex. 14).

Still unhappy with Debo’s attempt to resolve the dispute, the Millers filed

suit against Debo, asking for $100,000 to $500,000 in damages plus exemplary

damages and attorney’s fees (C.R. Vol. 1, at p. 9-19). The Millers claimed that

Debo’s representations amounted to a violation of the DTPA, specifically pled by

the Millers as Texas Business and Commerce Code, Chapter 17.41, et seq., Section

17.45(5), and Section 17.46(b) (C.R. Vol. 1, at p. 14). Before trial commenced,

Debo deposited $60,300.00 into the court’s registry on August 14, 2014 (R.R. Vol.

6, at Dft. Ex. 20).

At trial, the Millers failed to designate any expert who could opine as to the

construction of a residential home, what a high quality subcontractor was, and

what is to be expected during the normal course of construction (C.R. Vol. 2, at p. 4 484-85). Instead, L. Miller attempted to provide expert testimony but was

continually sustained throughout her testimony (R.R. Vol. 2, at p. 40:4-7 & 14-17,

41:1-4, 44:20-22, & 45:10-12). The Millers also presented their home inspector

Harold Knueppel (“Knueppel”), who was limited to only describing what he saw

(R.R. Vol. 3, at p. 140-44).2

Since the Millers presented no facts regarding construction defects or that

the home was indeed defective, the Millers instead presented evidence about what

representations were made to them by Debo salesman Kris Dominguez

(“Dominguez”) before construction began. The following chart summarizes these

representations and the Millers’ proffered evidence to support the falsity of those

representations:

CHART OF THE MILLERS’ ALLEGED REPRESENTATIONS

Representation No. Representation Alleged Breach Cite

No. 13 That Debo hires a) L. Miller R.R. Vol. 2, at p. the highest quality testifies to seeing 33:11-15, 36:16- subcontractors split boards, 25, & 37:1-4 bowed boards, R.R. Vol. 3, at p. “cracked things” 25:13-25 & 26:1-4, b) framers 28:14-22, & 32:19- correctly cut a 25 & 33:1 2 Before Knueppel testified, the Judge warned that if Knueppel provided any expert testimony regarding construction, he would be removed from the courtroom (R.R. Vol. 3, at p. 139:23-25 & 140:1-4). 3 For the remainder of this brief, Debo will refer to each representation in this chart as “Representation No. 1,” etc. 5 piece of wood c) speculation that fence diggers cut a power line d) “holes” did not line up No. 2 Onsite supervision a) only saw R.R. Vol. 2, at p. would oversee the workers and 33:25 & 34:1-3; p. project at all times subcontractors 37:15-18 b) saw two Debo R.R. Vol. 3, at p. people or two men 24:20-25 & 25:1-4 No. 3 Debo obtains third- None4 R.R. Vol. 2, at p. party inspections 34:4-8 No. 4 AC unit in the None5 R.R. Vol. 2, at p. model home would 34:21-25 & 35:1- be the same 10 No. 5 That all problems None6 R.R. Vol. 2, at p. would be fixed 35:11-18

The Jury found in favor of the Millers’ DTPA claim against Debo in

response to Question No. 1 (C.R. Vol. 2, at p. 563). Based on that finding, the Jury

awarded the Millers a combined $60,650.00 in actual damages (C.R. Vol. 2, p.

566). The Jury unanimously rejected the Millers’ additional DTPA questions that

Debo acted unconscionably and knowingly (C.R. Vol. 2, at p. 564-65). Based on

4 The only evidence in the record establishes that Debo did indeed perform these inspections (R.R. Vol. 6, at Pltf. Ex. 12). 5 At one point, L. Miller is asked if “that is the A/C unit you saw in the model home” and she answers “[n]o, not at all” (R.R. Vol. 2, at p. 45:18-20). L. Miller never says this is referring to the home in question. This will be addressed in more detail in Section (B)(4), infra. 6 L. Miller clarified that Debo had until closing to make any and all necessary repairs (R.R. Vol. 3, at p. 68:2-4 & 106:21-24). The parties never closed. 6 those findings, the Jury unanimously awarded the Millers $0 for attorney’s fees at

all stages of litigation (C.R. Vol. 2, at p. 577). The Jury did not leave the attorney’s

fees question blank, but rather wrote in “$0” (C.R. Vol. 2, at p. 577). Debo

subsequently deposited an additional $350.00 into the court’s registry on

December 12, 2014, totaling $60,650.00 (C.R. Vol. 3, at p. 1122).

After trial, the trial court awarded the Millers full prejudgment interest from

the date the Millers filed their lawsuit on October 7, 2013 until the court entered

judgment and full postjudgment interest from the date of judgment (C.R. Vol. 3, at

p. 1148-49). The trial court entered its judgment on December 22, 2014 (C.R. Vol.

3, at p. 1150).

7 SUMMARY OF THE ARGUMENT

Issue One: Whether Debo’s motion to disregard the jury’s finding that Debo violated the DTPA should be granted

The Millers’ only successful claim at trial was their DTPA claim against

Debo. To support a DTPA finding, the Millers were first required to show that

Debo made some kind of actionable representation recognized by the DTPA. The

Millers’ evidence presented at trial failed to show 1) that Debo’s alleged

representations were false and 2) even if there was evidence of false

representations, those representations merely amount to puffery.

Issue Two: Whether the Millers should be granted any prejudgment interest

It is uncontroverted that Debo deposited $60,650.00 into the court registry

prior to the entry of judgment. Since a prejudgment tender of the entire sum of

Millers’ damages was made by Debo, Debo is excused from having to pay

prejudgment interest.

Issue Three: Whether the Millers should be granted any postjudgment interest

Debo’s $60,650.00 pre-judgment deposit also halts the accumulation of

postjudgment interest. Debo must be excused from the trial court’s ruling requiring

Debo to pay postjudgment interest.

8 ARGUMENTS AND AUTHORITIES

A. THE DTPA REQUIRES THE MILLERS TO PROVIDE EVIDENCE FOR A REPRESENTATION IN § 17.46(B)

1. The No Evidence Standard

If there is no evidence to support the Jury’s answer to Question No. 1, then

Debo’s Motion to Disregard the Jury’s answer to that question should have been

granted. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003). If the Plaintiffs’

evidence to support the Jury’s answer to Question No. 1 is no more than a scintilla,

it is no evidence. Rush v. Barrios, 56 S.W.3d 88, 94-95 (Tex. App.- Houston [14th

Dist.] 2001, pet. denied). A scintilla is “when the evidence offered to prove a vital

fact is so weak as to do no more than create a mere surmise or suspicion of its

existence,” which has the legal effect of no evidence. Southwestern Bell Tel. Co. v.

Garza, 164 S.W.3d 607, 621 (Tex. 2004) (quoting Robert W. Calvert, “No

Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 363

(1960)). “More than a scintilla of evidence exists if the evidence furnishes some

reasonable basis for differing conclusions by reasonable minds about a vital fact’s

existence.” Rocor Int’l v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.

2002).

2. The DTPA Elements and Standard

The Millers’ pleadings claimed that Debo committed a violation of the

9 DTPA “laundry list” found in Business & Commerce Code § 17.46(b) and

committed an unconscionable act as that term is defined in § 17.45(5) (C.R. Vol. 1,

at p. 14). The Jury unanimously rejected the Millers’ claim that Debo committed

an unconscionable action but found in a 10-2 decision that Debo committed a

violation of § 17.46(b) (C.R. Vol. 2, at p. 563-65).

To sustain a Jury finding under § 17.46(b), the Millers must show that 1)

they are a consumer, 2) Debo can be sued under the DTPA, 3) Debo committed a

false, misleading, or deceptive act or practice that is specifically enumerated in the

“laundry list” found in § 17.46(b) and that was relied on by the Millers to their

detriment, and 4) Debo’s action was a producing cause of the Millers’ damages.

TEX. BUS. & COMM. CODE §§ 17.41-17.63. Elements 3 and 4 are at issue.

B. THERE IS NO EVIDENCE THE ALLEGED REPRESENTATIONS WERE BREACHED BY DEBO

1. Representation No. 1: That Debo Hires the Highest Quality Subcontractors

Even if the representation that Debo utilizes only the highest quality

subcontractors is actionable under the DTPA, the Millers offered no evidence to

show that there was a breach of that undefined standard.

L. Miller repeatedly told the Jury that she was not a construction expert and

had idea what actually constituted a construction defect:

Q: Have you had any formal training in construction? 10 A: No. Q: Have you ever been taught how to identify construction defects? A: No (R.R. Vol. 3, at p. 88:24-25 & 89:1-4). ... Q: But you weren’t sure whether or not this was supposed to have insulation? A: That’s right. I’m not a construction expert (R.R. Vol. 3, at p. 137:14-16). In support of her non-expert testimony, L. Miller provided the following

regarding her idea of a high quality subcontractor:

Q: Once you paid Debo Homes the $60,300, did you go back out and look at the highest quality subcontractors work on the framing? A: Yeah. Well, we – we went out to the site, and we looked around. They were – a couple of weeks later, they were doing the framing, and I just – I just started looking around, you know, looking – okay, here’s the – trying to identify which room’s which. And I looked up, and I saw split boards, like broke in half, and other boards bowedbowed [sic] out and other boards that just didn’t look right, and cracked things here and there (R.R. Vol. 2, at p. 36:16-25 & 37:1-2). ... A: He called down to the man on the ground. Then the man on ground cut – cut a board, handed it up to the man on the roof. The man on the roof set it on the roof. It was like a – like a piece of the solid base of the roof board, not like a shingle, just like a main board for the roof – and then kind of moved it back and forth, shook his head, threw it off the roof. Then called down to the man on the ground a second time. The man on the ground cut a second

11 board, handed it up to the man on the roof. The man on the roof tried to place it again. The man on the roof threw it down, called down to the man on the ground a third time. A third board was cut, handed up, the man on the roof tried to place it again. Still didn’t work, threw it down. A fourth time the man on the roof called down, a fourth board was cut, handed it up, wiggled it this way and that way, got it to fit and then moved on (R.R. Vol. 3, at p. 25:13-25 & 26:1-4). ... Q: Tell us what you saw about your fence being built. A: Okay. They were digging the holes, and while they were digging the holes, all of a sudden a bunch of neighbors decided to come from around, from behind the house and next door. And all of a sudden – excuse me – we wondered what was going on, why all of a sudden we’re meeting the neighbors. Well evidently, they had cut the power, cut the lines upon digging the holes. Q: Did that sound like the highest quality subcontractors that Kris promised? A: No. I would think they’d know where the lines were (R.R. Vol. 3, at p. 28:14-25 & 29:1). ... Q: Talk to me about the windows where the brick façade was at compared to the window holes that they made of the house. A: Yes. They didn’t line up. The holes that were cut into the frame were not the same holes for the brick. So, they were – they were off. And when I brought that to their attention, they said, oh, that would work out, that just works itself out (R.R. Vol. 3, at p. 32:19-25 & 33:1). L. Miller’s supposition regarding when repairs are made during construction,

12 where the electric lines should be, how “holes” are supposed to line up, and what

she thinks happened fails to raise above the scintilla of evidence standard. This

testimony creates a mere surmise or suspicion that the subcontractor was not of the

highest quality. See Southwestern Bell, 164 S.W.3d at 621. L. Miller admitted that

her testimony was not based on any expertise and that she no way of knowing

whether the construction was defective (R.R. Vol. 3, at p. 88:24-25 & 89:1-4).

The Millers’ claims resemble those discussed by a recent Fort Worth

opinion. In the Kramer case, the homebuyer plaintiffs sued the defendant

homebuilders for the homebuilders’ faulty construction and corresponding

representations about the house’s construction. Kramer v. Hollmann, No. 02-11-

00136-CV, 2012 WL 5869423, *1 (Tex. App.- Fort Worth Nov. 21, 2012, pet.

denied) (mem. op.) The builder represented that they would build a “kick butt

house,” the homebuyers would be “pleased as punch,” and that the house would be

“magnificent” and one of the “finest.” Id. at *4. Those statements were subjective

impressions, lacking specific representations. Id. at *4-5. The builder’s

representations also pertained to the future, which allowed the homebuyers an

opportunity to check into their accuracy with their own diligence. Id.

Likewise, the Millers had an opportunity before construction commenced to

determine if Debo’s subcontractors were the “highest quality subcontractors” under

the Millers’ standards. The Millers failed to investigate. Dominguez’ statements 13 are akin to those in Kramer as well because the representation that a subcontractor

is of the “highest quality” mirrors the Kramer representation the home would be

“one of the finest homes in the city.” Kramer, 2012 WL 5869423, at *4-5. As such,

this alleged representation is not sufficient evidence and fails to provide a legal

basis for the Jury’s answer to Question No. 1.

2. Representation No. 2: Onsite Supervision and Inspections

In Representation No. 2, L. Miller never states that Debo represented to her

that Debo would be onsite at all times. Rather, L. Miller claims the following as an

actionable representation: “there would be onsite supervision at all times

overseeing the project” (R.R. Vol. 2, at p. 34:2-3).

L. Miller admitted that she was not at the construction site all of the time and

instead was there once or twice a week (R.R. Vol. 3, at p. 109:10-15). Despite her

absence from the site, the Millers claim the following supports this representation:

Q: Did you ever see anyone from Debo Homes out there? A: I never saw anyone from Debo Homes. I only saw the actual workers, the subcontractors out there (R.R. Vol. 2, at p. 37:15-18). ... Q: How many people from Debo Homes were out there? A: I saw two people. Q: Did you see any superintendents or anyone from Debo Homes? A: I did not. There were just two, two men (R.R. Vol. 3, at p. 24:25 & 25:1-

14 4).

These representations fail to establish that there was absolutely no onsite

supervision. L. Miller may have complained to the Jury that no one from Debo was

there, but L. Miller never said Debo had to be the ones supervising the work.

Instead, L. Miller clarified that she expected third parties, not Debo, to be

supervising (R.R. Vol. 2, at p. 34:4-8). By L. Miller’s own admission, whether

Debo was the party actually providing the supervision is irrelevant. This testimony

fails to provide a reasonable basis for a vital fact regarding this representation.

Rocor Int’l, 77 S.W.3d at 262.

Of additional importance, a representation is only actionable under the

DTPA if that representation is material to the transaction. McCrea v. Cubilla

Condominium Corp. N.V., 685 S.W.2d 755, 759 (Tex. App.- Houston [1st Dist.]

1985, writ ref’d n.r.e.). In McCrea, the Houston court analyzed the materiality of

the defendant’s representation that a roof was only two years old when in fact

evidence presented demonstrated the roof was three years old. Id. at 760. Despite

the apparent falsity of that representation, the court noted “the evidence also shows

that the characteristics of the roof would have been the same whether it was two or

three years old.” Id. The court ruled that no damages resulted because of the

immaterial representation regarding the age of the roof. Id.

The Millers presented no lay or expert testimony or evidence to demonstrate 15 that not having Debo’s constant and uninterrupted supervision was material and

necessary to the construction of a house. Instead, Debo presented evidence that its

superintendent Eduardo “Michael” Cisneros (“Cisneros”) supervised the home at

issue and another home a street over during the same timeframe (R.R. Vol. 4, at p.

80:1-25 & 81:1-11). The Millers did not question this evidence or provide rebuttal

evidence showing Debo’s supervision routine to be damaging to the Millers. Just

like it does not matter whether a roof is two or three years old, it does not matter

whether a supervisor is actually at a construction site constantly or a street away.

See McCrea, 685 S.W.2d at 759-60.

3. Representation No. 3: That Debo Obtains Third-Party Inspections

It is without question that Debo hired Mortgage Property Services, Inc.

(“MPS”) to inspect the home at issue (R.R. Vol. 6, at Pltf. Ex. 12). In fact, the

Millers themselves entered this exhibit into the record (R.R. Vol. 4, at p. 6:16-25,

7:1-25, & 8:1-4). That Exhibit 12 establishes that MPS inspected the home on

April 25, 2013, May 10, 2013, and August 7, 2013 (R.R. Vol. 6, at Pltf. Ex. 12).

The Millers only provided evidence that this representation was fulfilled.

4. Representation No. 4: The AC Unit in the Model Home Would be in the Home in Question

L. Miller vaguely testified that she went up into some attic where

Dominguez told her she was going to get that same AC unit (R.R. Vol. 2, at p.

16 34:23-25). During direct examination, the following exchange occurred to support

the claim that Debo breached that representation:

Q: Let me talk to you about the A/C unit. A: Yes. Q: Is that the A/C unit that you saw in the model home? A: No, not at all (R.R. Vol. 2, at p. 45:16-20). There is no context to determine what the Millers’ attorney was referring to

when he said “[i]s that.” Neither L. Miller nor her attorney noted what AC unit

they were referring to. L. Miller did not say she was referring to the AC unit in the

home in question. Finally, neither L. Miller nor her attorney referred to any exhibit

number. As such, the record is devoid of any evidence that the AC unit in the home

in question was different from the model home. This representation provides no

evidence for the Jury to find a DTPA violation under Question No. 1. Lozano v.

Lozano, 52 S.W.3d 141, 166 (Tex. 2001).

5. Representation No. 5: That All Problems Would be Fixed

Since the Millers’ attorney ordered Debo to stop construction before the

closing date, L. Miller admitted that Debo still had a chance to perform any

repairs:

Q: Now, you agree that after you told Debo about the issues they needed to repair in the home, that they could have repaired them? A: Yes, they could have.

17 Q: And you told Kris about these concerns and problems? A: Yes. Yes, we did. Q: And Debo did, indeed, repair them, didn’t they? A: They repaired some. I don’t believe they repaired all of them. Q: You don’t believe they repaired all of them, or do you know they didn’t repair all of them? A: Well, I can’t know, because they drywalled it. Q: So, you’re saying that there are hidden things behind that drywall? A: There may be. I don’t know. They drywalled it. Q: Ms. Miller, you understood that when you brought these concerns to Debo, the home was still under construction? A: Yes. Q: And you understood that Debo still had work to do? A: Yes (R.R. Vol. 3, at p. 106:21-25 & 107:1-22). The Millers’ claim that all repairs were not made is based on mere

conjecture that there may be things behind the walls. There is absolutely no

evidence of any repairs not being made or any expert testimony discussing fatal

flaws with the construction.

The aforementioned McCrea case’s discussion of materiality also applies to

this representation. Debo superintendent Cisneros provided insight as to what a

punch out is: “The punch out is when you repair the 2 by 4s that are either cracked

or damaged. You remove the temporary wood” (R.R. Vol. 4, at p. 83:16-18).

Explaining why there were issues that needed to be fixed with the home, Cisneros

18 explained as follows:

Q: Why was there an issue in the first place? A: Because these are things that are normally that – these are normal things that are left to be dealt with until the end when there’s a punch out (R.R. Vol. 4, at p. 90:15-18). ... Q: And normally when do those get repaired? When do you fix those? A: Minimum, maximum three days, or one day after finishing. Q: Let me ask a better question. During the construction process, as you call it, when do you make all the repairs to the frame? A: It’s at the end after the man or the plumbing company is finished, the AC people are finished, and the electricians are finished (R.R. Vol. 4, at p.105:15-24). The testimony presented at trial demonstrated that repairs are to be made at

the punch out stage, not at random stages throughout the construction process. It is

immaterial if a repair is not immediately made after it is discovered. See McCrea,

685 S.W.2d at 759-60. The evidence demonstrates that Debo maintained a system

for when to make repairs, not that repairs were not made.

C. THE ALLEGED REPRESENTATIONS IN SUPPORT OF THE JURY’S FINDING TO QUESTION NO. 1 ARE NONACTIONABLE PUFFERY UNDER THE DTPA

1. The Puffery Standard

A DTPA claim cannot be upheld if it is based on puffery, which is an

expression of opinion by a seller not made as a representation of fact. Hedley

19 Feedlot v. Weatherly Trust, 855 S.W.2d 826, 838-39 (Tex. App.- Amarillo 1993,

writ denied) (discussing Pennington v. Singleton, 606 S.W.2d 682, 685-89 (Tex.

1980)). “An imprecise or vague representation constitutes a mere opinion.” Id. at

839 (citation omitted). “General statements are generally regarded as expressions

of the seller’s opinion or ‘the puffing of his wares’ and do not create an express

warranty.” Autohaus, Inc. v. Aguilar, 794 S.W.2d 459, 463 (Tex. App.- Dallas

1990, writ denied) (quotations and citation omitted).

“Pure expressions of opinion are not actionable.” Trenholm v. Ratcliff, 646

S.W.2d 927, 930 (Tex. 1983). But “[e]ven an opinion may be actionable if: (1) it is

‘intertwined’ with ‘direct representations of present facts;’ (2) ‘the speaker has

knowledge of its falsity;’ (3) it is ‘based on past or present facts;’ or (4) the speaker

has ‘special knowledge of facts that will occur or exist in the future.’” GJP, Inc. v.

Ghosh, 251 S.W.3d 854, 889 (Tex. App.- Austin 2008, no pet.) (citing Trenholm,

646 S.W.2d at 930-31).

This Section C argues that Representations Nos. 1, 2, & 5 are nonactionable

puffery. Representations Nos. 3 & 4 are not addressed. Section (C)(2) addresses

why Representations Nos. 1, 2, & 5 are nonactionable puffery and Section (C)(3)

briefly argues why the four Ghosh scenarios do not apply.

20 2. The Millers’ Representations at Trial are Puffery and Opinion

a. Representation No. 1: That Debo Hires the Highest Quality Subcontractors

L. Miller testified that Debo told her “they hired the highest quality

subcontractors that there are, just the highest quality” (R.R. Vol. 2, at p. 33:14-15).

The Millers did not provide any additional details as to what “highest quality”

meant or provide any additional evidence regarding that claim. There is no

evidence whereby the Millers provided examples of what actually constitutes the

“highest quality” subcontractor.

In the Supreme Court’s Prudential case, the highest court ruled that the

representations that a property is “superb,” “super fine,” and “one of the finest little

properties in the City of Austin” were nonactionable puffery. Prudential Ins. Co. of

Am. v. Jefferson Assocs., 896 S.W.2d 156, 163 (Tex. 1995). Here, the

representation that subcontractors are of the “highest quality” is just as

nonactionable because it does not involve facts. Id. Rather, it is Debo’s salesman’s

opinion about the subcontractors and their work. Debo salesman Dominguez was

merely puffing his wares, trying to make a sale to the Millers by using broad,

unspecific boasts about Debo’s work. See Autohaus, 794 S.W.2d at 463 (“[g]eneral

statements are generally regarded as expressions of the seller’s opinion or ‘the

puffing of his wares’ and do not create an express warranty”) (citation omitted).

21 An unreported Corpus Christi case discussed the situation where a

homebuilder represented to its client that the condominium unit was of “good

quality” and an “extremely well-built . . . two-bedroom townhouse with a rebar

foundation.” Helm v. Kingston, No. 13-10-00224-CV, 2011 WL 6746064, *5-6

(Tex. App.- Corpus Christi Dec. 21, 2011, pet. denied) (mem. op.). The court

agreed that “the representation that the unit was ‘extremely well built’ is general

and vague . . . ” Id. at *6. However, when grouped together, the builder’s

statements were actionable because of the specific statement about the rebar and

since the individual who made the representation was the president of the

construction company. Id. Of additional importance, the builder’s statements

related to a past or present condition, not a future occurrence. Id. Relying upon a

Fifth Circuit ruling, the court noted that “the quality of workmanship in such units

may be objectively judged by reference to precise specifications and well-defined

terms” in holding the statements actionable. Id. at *7.

In the case before this Court, Debo’s salesman Dominguez did not make

specific representations regarding past or present conditions of the property. The

Millers do not allege that Dominguez made a false representation regarding the

specific construction materials used on the home. Rather, Dominguez’ imprecise

statements were made regarding the future construction of the home for the Millers

(R.R. Vol. 2, at p. 33:14-15). The Millers provided no objective way in which to 22 gauge the subcontractors’ performance, leaving the Jury with no standard to judge

whether Debo’s representation was true. As discussed in the following sections,

Dominguez’ additional representations are just as “general and vague” as the

representation regarding the highest quality subcontractors. Debo’s representation

about the future performance of its subcontractors is unlike the specific

representations made by the builder in Helm and therefore do not support the

Jury’s finding in Question No. 1. See Helm, 2011 WL 6746064, at *5-7.

b. Representation No. 2: Onsite Supervision and Inspections

L. Miller explained at trial that Debo salesman Dominguez represented

“there would be onsite supervision at all times overseeing the project” and “there

would be third-party, independent inspections of the homesite at – building

inspections at various stages of the building while it was going up” (R.R. Vol. 2, at

p. 34:2-3 & 6-8). These alleged representations were made regarding the future

performance, not present facts, as L. Miller noted there “would be” certain

supervision.

L. Miller clarified that even though she was told there would be onsite

supervision at all times, she was incapable of verifying that:

Q: Now, you weren’t at the home site, or were you at the home site every day after you signed the contract? A: Not every day, no. It was impossible to be there every day. I was

23 definitely there once or twice a week (R.R. Vol. 3, at p. 109:10-15). “Statements regarding future events generally fall into two categories:

predictions and promises to perform. Because the future is generally

unascertainable, these statements are typically non-actionable in fraud.” Allen v.

Devon Energy Holdings, L.L.C., 367 S.W.3d 355, 370 (Tex. App.- Houston [1st

Dist.] 2012, pet. granted) (citing Trenholm, 646 S.W.2d at 930). “While

misrepresentations concerning future performance are actionable under the DTPA,

a general statement concerning a future [event] should be looked at differently.”

Autohaus, 794 S.W.2d at 464.

Representation No. 2 regards the future, which makes it impossible to verify

at the time it was made. See Autohaus, 794 S.W.2d at 464. Both Debo and the

Millers were unable to verify the veracity of that statement, indicating that Debo

was just making expressions of opinion and not fact. See, e.g., id.; GJP, Inc., 251

S.W.3d at 889. The Millers even admitted it was impossible to verify there was

someone there every day at the construction site (R.R. Vol. 3, at p. 109:10-15). An

actionable representation for DTPA must not be based on such opinion or puffing.

Hedley Feedlot, 855 S.W.2d at 839. What constitutes “supervision” was undefined

by the Milers at trial and they never explained what that term meant to them. As

such, it is inherently vague and open to interpretation, making it nonactionable.

Hedley Feedlot, 855 S.W.2d at 839.

24 In the Reynolds case, the court ruled that the representations “[a]nd for the

past years, I’ve made money for other people – people like you. . . .,” that their

method is “the safest possible way to invest in the future,” and that it “can help you

invest in the future so that you multiply your wealth up to five times over the next

10 years” were nonactionable. Reynolds v. Murphy, 188 S.W.3d 252, 268 (Tex.

App.- Fort Worth 2006, pet. denied). Similarly, the statement that an investment

will “produce large revenues for a long time” is a representation about the future

that as a matter of law is nonactionable under the DTPA. Paull v. Capital Res.

Mgmt., Inc., 987 S.W.2d 214, 218-19 (Tex. App.- Austin 1999, pet. denied). Not

only is the representation that there will be onsite “supervision” vague and

ambiguous, that statement concerns actions that will happen in the future. As such,

the statement was merely Debo’s opinion. Since Debo was incapable of

guaranteeing what happens in the future and the Millers were absent from the

construction site, the Jury was without an actionable representation to support

Question No. 1. See, e.g., Reynolds, 188 S.W.3d at 268; Paull, 987 S.W.2d at 218-

19.

c. Representation No. 5: That All Problems Would be Fixed

The Millers complained that Debo promised to make all of the repairs on the

home:

Q: Did Kris ever tell you all problems that Debo Homes decides to fix is 25 what they’d fix? A: He did not tell us that, no. He said all problems would be fixed (R.R. Vol. 2, at p. 35:19-22). Like the representation regarding future supervision, this representation also

pertains to the future, opening it up to scrutiny. Autohaus, 794 S.W.2d at 464.

L. Miller clarified that Debo was allowed to make any repairs before

closing:

Q: So, then Debo was allowed to repair any problems before closing? A: Yes. It says they shall complete the problems (R.R. Vol. 3, at p. 68:2-4). ... Q: Now, you agree that after you told Debo about the issues they needed to repair in the home, that they could have repaired them. A: Yes, they could have (R.R. Vol. 3, at p. 106:21-24). Again, Debo’s representations involved future actions that were incapable of

being verified until the time of closing. In an unreported but factually similar case

out of Corpus Christi, the court ruled that “mere recitals by [the homebuilder

defendant] that he would send someone (in futuro) to fix the garage or that he

believed the garage was fixed, do not add up to guarantee.” Roubein v. Marino

Home Builders, No. 13-01-711-CV, 2002 WL 1765579, *4 (Tex. App.- Corpus

Christi Aug. 1, 2002, pet. denied, not designated for publication). The court there

found the statement to be puffery, a mere statement of opinion. Id.

Here, L. Miller claims that Dominguez told her that any problems would be

26 fixed in the future and that Debo would have until closing to fix those problems.

(R.R. Vol. 2, at p. 35:19-22; R.R. Vol. 3, at p. 68:2-4 & 106:21-24). Dominguez’

statements were his opinion about a future occurrence, failing to add up to an

actionable statement. See Roubein, 2002 WL 1765579, at *4.

3. Debo’s Alleged Representations Are Nonactionable Opinions Under Ghosh

Even if Debo’s alleged representations are all nonactionable opinions, the

Ghosh case, supra, identified four ways in which Dominguez’ salesman opinions

to the Millers may be actionable: (1) it is ‘intertwined’ with ‘direct representations

of present facts;’ (2) ‘the speaker has knowledge of its falsity;’ (3) it is ‘based on

past or present facts;’ or (4) the speaker has ‘special knowledge of facts that will

occur or exist in the future. GJP, Inc., 251 S.W.3d at 889. Each of those four

scenarios will be addressed in the following subparagraphs.

a. (1) Intertwined with direct representations of present facts and (3) based on past or present facts

Scenarios (1) and (3) both require Dominguez’ statements to be about

present facts, not future promises. Id. Here, Dominguez’ representations were all

regarding the future.

For Representation No. 1, L. Miller testified that was made by Dominguez

during contract negotiations (R.R. Vol. 2, at p. 32:3-25 & 33:1-15). There is no

evidence that construction had already commenced and that Dominguez’ 27 representations were about the present performance of those subcontractors.

For Representation No. 2, L. Miller specifically testified that Dominguez

represented “that there would be onsite supervision” and “there would be third-

party, independent inspections” (R.R. Vol. 2, at p. 33:25 & 34:1-8) (emphasis

added). This testimony establishes that Dominguez made promises about future

performance, not past or present facts.

Finally, for Representation No. 5, L. Miller similarly testified that

Dominguez “said all problems would be fixed” (R.R. Vol. 2, at 35:19-22)

(emphasis added). Likewise, this is a statement regarding future performance with

no relation to present or past facts.

b. (2) The speaker has knowledge of its falsity

For the second scenario identified by Ghosh- that Dominguez has

knowledge of the falsity of his statements- the record is devoid of any such

evidence. See GJP, Inc., 251 S.W.3d at 889.

During Dominguez’ testimony, the Millers’ attorney confirmed with

Dominguez that he has nothing to do with the construction phase:

Q: Now, Kris, what’s your position at Debo Homes? A: Sales (R.R. Vol. 3, at p. 146:20-21). ... Q: Well, let me ask you an easier way. After you get the contract signed, what more do you have involved with the actual construction? 28 A: Nothing. Q: So, you do still talk to the customers, but you don’t have any involvement or knowledge about construction, right? A: Yes (R.R. Vol. 3, at p. 154:19-25 & 155:1). ... Q: Well, you don’t have any involvement in the construction, right? That’s what you said. A: I don’t have any involvement in the construction, no (R.R. Vol. 3, at p. 159:6-9). Kris succinctly summed up his role with Debo: “Because I don’t do construction. I

sell homes” (R.R. Vol. 3, at p. 188:16).

In the Matis case, the defendants sold investments to the plaintiffs. Matis v.

Golden, 228 S.W.3d 301, 307 (Tex. App.- Waco 2007, no pet.). In selling the

investments to the plaintiffs, the defendants represented that “(1) invested funds

were refundable; and (2) returns would be paid monthly, beginning shortly after

the initial investment, and amount to one hundred percent for ten months.” Id.

There, the defendants had special knowledge and access to unique investment

information. Id. The Waco court found those representations to be actionable and

non-puffery. Id. at 308-09. However, for the purposes of Matis’ application to the

second scenario identified by Ghosh, the Waco court found the defendants’

statements “were not necessarily made with knowledge of their falsity.” Id. at 309.

If the Matis representations fail to rise to the level of “knowledge of falsity,”

29 then there is no evidence that Dominguez had knowledge of the falsity of the

alleged representations. See Matis, 228 S.W.3d at 308-09. Salesman Dominguez’

representations all involved the construction phase, something of which he had no

knowledge of. The Millers offered no counter evidence, whether direct or

circumstantial, to show that Dominguez knew what he was saying was false. See

Anglo-Dutch Petroleum Int’l, Inc. v. Shore Harbour Capital Management Corp.,

No. 01-09-00417-CV, 2011 WL 862117, *4-5 (Tex. App.- Houston [1st Dist.] Mar.

10, 2011, no pet.) (mem. op.) (finding no “knowledge of falsity” because of no

evidence showing the speaker knew the statement was false).

c. (4) The speaker has special knowledge of facts that will occur or exist in the future

As discussed above, Dominguez’ knowledge of the construction phase is

nonexistent. Dominguez’ expressions to the Millers were nonactionable

expressions of opinion- Dominguez’ opinions about the future construction phase.

See Trenholm, 646 S.W.2d at 930. In a recent Beaumont case, the defendant/future

executrix made an alleged actionable representation regarding a probate issue to

the plaintiff/testator. Werth v. Johnson, 294 S.W.3d 908, 910-11 (Tex. App.-

Beaumont 2009, no pet.). In discussing the Supreme Court’s Trenholm case and

whether the speaker had special knowledge of the facts, the Beaumont court ruled

the speaker’s statements were not actionable. Id. There, the speaker represented to

30 the plaintiff that the plaintiff would receive a house to live in once a certain

individual passed away. Id. The speaker made the representation at a time when the

speaker was not yet the executrix; instead, the plaintiff was still in complete

control of his own estate. Id. The plaintiff attempted to argue that the speaker had

special knowledge as the future executrix, but that argument was rejected. Id.

Here, Dominguez made representations about future construction, something

of which he had no special knowledge of. Different individuals at Debo managed

the construction phase, not Dominguez. The trial record reflects that one

individual- Debo superintendent Cisneros- managed the daily construction (R.R.

Vol. 4, at p. 79:13-14 & 80:1-21). Dominguez only possessed a salesman’s

knowledge about selling a home and not specialized knowledge of the construction

process.

D. THE MILLERS SHOULD NOT BE AWARDED PREJUDGMENT INTEREST

1. Debo’s Tender Into the Court Registry Precludes Prejudgment Interest

“[P]rejudgment interest should not be assessed on funds that were deposited

into the registry of the court.” Browning Oil Co. v. Luecke, 38 S.W.3d 625, 648

(Tex. App.- Austin 2000, pet. denied); see, Pegasus Energy Group, Inc. v.

Cheyenne Petroleum Co., 3 S.W.3d 112, 125 (Tex. App.- Corpus Christi 1999, pet.

denied) (damaged party should not be entitled to prejudgment interest on money

that defendant had already paid into the registry of the court). 31 The Jury awarded total damages to the Millers in the amount of $60,650.00

(C.R. Vol. 2, at p. 566). It is uncontroverted that Debo deposited the entire amount

of the jury’s $60,650.00 verdict into the registry of the court (R.R. Vol. 6, at Dft.

Ex. 20; C.R. Vol. 3, at p. 1122). As such, prejudgment interest should not be

assessed on those funds. Browning Oil Co., 38 S.W.3d at 648. The trial court’s

award of prejudgment interest commencing on October 7, 2013 and totaling the

amount of $3,663.92 must be reversed in its entirety. Id.

E. THE MILLERS SHOULD NOT BE AWARDED POSTJUDGMENT INTEREST

1. Debo’s Deposit Into the Court Registry Halts Postjudgment Interest

An unconditional tender of the amount owed under a judgment terminates

the accrual of postjudgment interest. Miga v. Jensen, 96 S.W.3d 207, 212 (Tex.

2002). “[A] tender into the registry of the trial court of all sums due under the

judgment is a means of halting post-judgment interest.” Breault v. Psarovarkas,

No. 01-01-00122-CV, 2003 WL 876651, *7 (Tex. App.- Houston [1st Dist.] Feb.

28, 2003, pet. denied) (mem. op.) (citing St. Paul Mercury Ins. Co. v. Billiot, 342

S.W.2d 161, 164 (Tex. App.- Beaumont 1960, writ ref’d)).

Debo deposited all $60,650.00 of the judgment into the trial court registry

before the trial court rendered judgment (R.R. Vol. 6, at Dft. Ex. 20; C.R. Vol. 3, at

p. 1122). As such, the trial court’s award of postjudgment interest must be reversed

and the Millers may not collect postjudgment interest. Miga, 96 S.W.3d at 212. 32 CONCLUSION

The Jury’s finding that Debo violated the Texas Deceptive Trade Practices

Act is without evidentiary support. The alleged representations in support of a

DTPA finding are not actionable under the puffery defense. Finally, the Millers are

not entitled to any prejudgment and postjudgment interest because of Debo’s full

and unconditional tender of all sums owing into the trial court’s registry.

PRAYER

Appellee and Cross-Appellant, Debo Homes, LLC, prays that this Court

grant their Appeal and disregard the Jury’s affirmative finding to Question No. 1.

Furthermore, Debo Homes, LLC prays that this Court reverse the trial court’s

award of prejudgment and postjudgment interest to Laurel and Eliana Miller.

Respectfully submitted,

THE WELSCHER LAW FIRM

/s/ Nicholas Martinez Craig Welscher State Bar No. 21167200 Nicholas Martinez State Bar No. 24087986 The Welscher Law Firm, P.C. 1111 North Loop West, Suite 702 Houston, Texas 77008 (713) 862-0800 – Telephone (713) 862-4003 – Facsimile Email: nmartinez@welscherlaw.com Attorneys for Appellee & Cross-Appellant 33 CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing instrument is in compliance with the word

count limit of TRAP 9.4(i)(2)(B) of 15,000 words as it contains 7,135 words.

/s/ Nicholas Martinez Nicholas Martinez

CERTIFICATE OF SUPPORT

I certify that I have reviewed the record and brief and have concluded that

every factual statement made in the brief is supported by competent evidence

included in the appendix or record.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing

instrument was forwarded to all known counsel of record in the manner required

by Texas Rule of Appellate Procedure 9.5, on this the 27th day of July, 2015.

Via Electronic Service Timothy A. Hootman 2402 Pease St. Houston, Texas 77003 /s/ Nicholas Martinez Nicholas Martinez

34 APPENDIX

i. Plaintiff’s Original Petition, Requests for Disclosure and Demand for Jury Trial

i. Defendant Debo Homes, LLC’s Motion to Disregard the Jury’s Answer to Question Number One

ii. Order Denying Defendant’s Motion to Disregard the Jury’s Answer to Question Number One of the Jury’s Charge

iii. Defendant Debo Homes, LLC’s Response to the Plaintiffs’ Motion for Judgment on the Jury Verdict

2. Reporter’s Record

ii. Examination of Harold Knueppel a iii. Examination of Kris Dominguez

b 14-15-00004-CV

CLERK’S RECORD

Volume 1 of 3 FILED IN 14th COURT OF APPEALS Trial Court Cause No: 13-DCV-209822 HOUSTON, TEXAS in the 400th Judicial District Court 4/14/2015 8:55:52 AM of Fort Bend County, Texas, CHRISTOPHER A. PRINE Honorable Maggie Perez-jaramillo, Judge Presiding Clerk

Style: Laurel and Eliana Miller Plaintiffs, vs Debo Homes, LLC. Defendant.

Appealed to the Court of Appeals for the Fourteenth Court Of Appeals District of Texas, at Houston, Texas Court Of Appeals No: 14-15-00004-CV

Attorney for Appellant(s): Attorney for Appellee(s): Brian H Crockett Nicholas Martinez SBN: 24074094 SBN: 24087986 Crockett Law PC The Welscher Law Firm 10565 Katy Fwy Ste 400 1111 North Loop West Suite 702 Houston TX 77024 Houston Tx 77008 Telephone: 713-779-3476 Telephone: 713-862-0800 Facsimile: 888-779-3237 Facsimile: :713-862-4003 E-Mail Address: E-Mail Address: : Appellant(s): Appellee(s): Laurel Miller and Eliana Miller Debo Homes, LLC

Electronically submitted to the Court of Appeals for the Fourteenth Court Of Appeals District of Texas, at Houston, Texas on March 23, 2015.

DISTRICT CLERK ANNIE REBECCA ELLIOTT Fort Bend County, Texas

By: /s/ Lisa Tucker Deputy District Clerk Lisa Tucker Telephone: (281) 341-4516

1 9 10 11 12 13 14 15 16 17 18 19

Volume 2 of 3 FILED IN 14th COURT OF APPEALS Trial Court Cause No: 13-DCV-209822 HOUSTON, TEXAS in the 400th Judicial District Court 4/14/2015 8:55:52 AM of Fort Bend County, Texas, CHRISTOPHER A. PRINE Honorable Maggie Perez-jaramillo, Judge Presiding Clerk

Style: Laurel and Eliana Miller Plaintiffs, vs Debo Homes, LLC. Defendant.

Appealed to the Court of Appeals for the Fourteenth Court Of Appeals District of Texas, at Houston, Texas Court Of Appeals No: 14-15-00004-CV

Attorney for Appellant(s): Attorney for Appellee(s): Brian H Crockett Nicholas Martinez SBN: 24074094 SBN: 24087986 Crockett Law PC The Welscher Law Firm 10565 Katy Fwy Ste 400 1111 North Loop West Suite 702 Houston TX 77024 Houston Tx 77008 Telephone: 713-779-3476 Telephone: 713-862-0800 Facsimile: 888-779-3237 Facsimile: :713-862-4003 E-Mail Address: E-Mail Address: : Appellant(s): Appellee(s): Laurel Miller and Eliana Miller Debo Homes, LLC

Electronically submitted to the Court of Appeals for the Fourteenth Court Of Appeals District of Texas, at Houston, Texas on March 23, 2015.

By: /s/ Lisa Tucker Deputy District Clerk Lisa Tucker Telephone: (281) 341-4516

394 484 485 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582

Volume 3 of 3 FILED IN 14th COURT OF APPEALS Trial Court Cause No: 13-DCV-209822 HOUSTON, TEXAS in the 400th Judicial District Court 4/14/2015 8:55:52 AM of Fort Bend County, Texas, CHRISTOPHER A. PRINE Honorable Maggie Perez-jaramillo, Judge Presiding Clerk

Style: Laurel and Eliana Miller Plaintiffs, vs Debo Homes, LLC. Defendant.

Appealed to the Court of Appeals for the Fourteenth Court Of Appeals District of Texas, at Houston, Texas Court Of Appeals No: 14-15-00004-CV

Attorney for Appellant(s): Attorney for Appellee(s): Brian H Crockett Nicholas Martinez SBN: 24074094 SBN: 24087986 Crockett Law PC The Welscher Law Firm 10565 Katy Fwy Ste 400 1111 North Loop West Suite 702 Houston TX 77024 Houston Tx 77008 Telephone: 713-779-3476 Telephone: 713-862-0800 Facsimile: 888-779-3237 Facsimile: :713-862-4003 E-Mail Address: E-Mail Address: : Appellant(s): Appellee(s): Laurel Miller and Eliana Miller Debo Homes, LLC

Electronically submitted to the Court of Appeals for the Fourteenth Court Of Appeals District of Texas, at Houston, Texas on March 23, 2015.

By: /s/ Lisa Tucker Deputy District Clerk Lisa Tucker Telephone: (281) 341-4516

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12 _____________________________________________

13 JURY TRIAL _____________________________________________ 14

19 On the 19th day of August, 2014, the following

20 proceedings came on to be held in the above-titled and

21 numbered cause before the Honorable Clifford J. Vacek,

22 Judge Presiding, held in Richmond, Fort Bend County,

23 Texas.

24 Proceedings reported by computerized stenotype

25 machine. 2 1

2 APPEARANCES

3 Mr. Brian H. Crockett Texas Bar No. 24074094 4 Mr. William G. Kanyha Texas Bar No. 24087827 5 Crockett Law, PC 10565 Katy Freeway, Suite 400 6 Houston, TX 77024 Telephone: 713.779.3476 7 Counsel for Plaintiffs

9 Mr. Nicholas T. Martinez Texas Bar No. 24087986 10 Mr. Craig Welscher Texas Bar No. 21167200 11 The Welscher Law Firm 1111 North Loop West, Suite 702 12 Houston, TX 77008 Telephone: 713.862.0800 13 Counsel for Defendants

25 3 1 VOLUME 2

2 JURY TRIAL

3 August 19, 2014 PAGE VOL. 4 Opening Statement by Mr. Crockett ................. 4 2 5 Opening Statement by Mr. Martinez ................ 14 2 6 PLAINTIFFS' WITNESS: 7 Laurel Miller Direct Cross V.Dire 8 By Mr. Crockett 27 v2

9 Reporter's Certificate ........................... 49 2

11 ALPHABETICAL INDEX OF WITNESSES

12 Direct Cross V.Dire

13 Miller, Laurel 27 v2

15 EXHIBITS OFFERED BY PLAINTIFF

16 EXHIBIT DESCRIPTION OFFERED ADMITTED

17 1 Contract 30 v2 31 v2

18 2 Photographs 39 v2 39 v2

25 27 1 MR. CROCKETT: Your Honor, Plaintiffs call

2 Laurie Miller.

3 LAUREL MILLER,

4 having been first duly sworn, testified as follows:

5 DIRECT EXAMINATION

6 Q. (BY MR. CROCKETT) Laurie, can you go ahead and

7 introduce yourself to the jury?

8 A. Yes. My name is Laurel Miller.

9 Q. And Laurie, who's the other Plaintiff in this

10 case?

11 A. That's my daughter. Her full name is Eliana,

12 but we all call her Ellie.

13 Q. Now, this home that you were going to buy from

14 Debo Homes, who was it for?

15 A. It was for my daughter and myself.

16 Q. Was there a reason you wanted to be in that

17 area?

18 A. Yes. We really -- we really liked being out in

19 the country, like the Needville area, and we wanted to

20 be out there. And that neighborhood afforded us a lot

21 more land for the price and a little out of the city

22 area a little bit.

23 Q. I know that you have a bunch of dogs.

24 A. Yes, we do. We love our dogs.

25 Q. What was it about being in this area that was 28 1 also important to you?

2 A. We weren't tied down to an HOA. Right now,

3 we're kind of in a subdivision where there's an HOA, and

4 we have a small back yard. And my daughter's a dog

5 groomer, and we were trying to get a house where she

6 could do grooming in the garage and really made a nice

7 custom house so she could have -- do her dog grooming in

8 the garage and have a nice back yard where the dogs

9 could -- and not a business, per se, just for our

10 personal dogs -- and have the dogs run around in the

11 back yard and have a nice -- this was going to be like a

12 half acre, a little more than a half acre, just a nice

13 size for the two of us and our few dogs, and run around

14 with them. And we also -- we played fly ball with them

15 and dock dogs, a couple of dog sports that's like a

16 hobby for us with the dogs. We just enjoy them a whole

17 lot, and it's just -- this would have afforded a whole

18 lot of extra fun. And it was a little smaller home with

19 a bigger -- with a bigger yard for us. And being a

20 newer home, we were pretty excited about getting into

21 it.

22 Q. Now, was there a reason you were looking for a

23 new home versus a used home or an older home?

24 A. Yes. Neither myself nor my daughter know how

25 to make any repairs. We're in an older home now, and 29 1 it's just repair after repair. And we know that's just

2 a matter of what it is. We've been in the home ten

3 years now, and it's just when it rains, the back yard

4 floods. It's typical. When it needs paint, it needs --

5 it just needs this and that, normal upkeep for a

6 35-year-old home, and we just thought a new home would

7 just give us peace of mind that we wouldn't have to do

8 these things. And once we -- plus, being on a fixed

9 income, I couldn't afford, once we paid out, to keep

10 paying on these repairs and pay on a mortgage and pay on

11 taxes, et cetera. So, it just -- it gets very

12 expensive, all these extra payments, and I just can't do

13 these things myself, you know, always having to hire

14 out.

15 MR. CROCKETT: Your Honor, permission to

16 approach the witness?

17 THE COURT: Yes, sir.

18 Q. (BY MR. CROCKETT) Ms. Miller, I'm showing you

19 what's been marked as Plaintiff's Exhibit No. 1.

20 A. Yes.

21 Q. Do you recognize this?

22 A. Yes. That's the sales contract that Debo

23 Homes, Kris Dominguez and Ellie and I got into back in

24 April of '13.

25 Q. Now, in this contract, were y'all purchasing 30 1 the house with the cash payment plan, or was this the

2 finance plan?

3 A. No, sir. That was -- that was financing. We

4 wanted to get financing with just a small -- like $1,000

5 down or something they said we could get, and we could

6 go to the bank and get financing, because the interest

7 rates were so darn low. So, we wanted to get in on

8 that.

9 Q. If you can look through Exhibit No. 1 --

10 A. Yes.

11 Q. -- can you confirm that this contract is the

12 initial contract that y'all signed?

13 A. (Referring to document.)

14 Q. And the signatures at the end, is that yours

15 and your daughter's?

16 A. Yeah.

17 Q. Go back to it.

18 A. Yes.

19 Q. Okay.

20 MR. CROCKETT: Your Honor, the Plaintiffs

21 would ask that we can admit Exhibit No. 1.

22 MR. MARTINEZ: Judge, we believe it's been

23 pre-admitted already, so no objections.

24 THE COURT: There have been no exhibits

25 that have been pre-admitted. Do you have any objection 31 1 to Plaintiff's Exhibit 1?

2 MR. MARTINEZ: No, Judge.

3 THE COURT: Plaintiff's Exhibit 1 is

4 admitted.

5 Q. (BY MR. CROCKETT) Now, Ms. Miller, on Exhibit

6 No. 1, who was this contract between?

7 A. It was between me and my daughter and Debo

8 Homes.

9 Q. And what was the purchase price for this home?

10 A. The full purchase price is $178,000.

11 Q. And on Part B, it talks about the financing of

12 that home. How much were you trying to finance?

13 A. (No response.)

14 Q. I'm sorry, it's actually on your screen, might

15 be easier to see there.

16 A. No, it's not.

17 Q. No?

18 THE COURT: Your screen is not on?

19 THE WITNESS: No.

20 THE COURT: Sheriff, can you turn that

21 screen on?

22 THE WITNESS: That's why I'm trying to

23 see.

24 Q. (BY MR. CROCKETT) I'm sorry.

25 A. No, I apologize. 32 1 (Bailiff turned on screen)

2 THE WITNESS: Thank you.

3 Q. (BY MR. CROCKETT) What was the amount that

4 y'all were going to try to finance?

5 A. Yes, $118,700.

6 Q. Did y'all qualify for financing?

7 A. No, sir, we didn't qualify.

8 Q. When Kris Dominguez learned that y'all didn't

9 qualify for financing, what did he tell you about their

10 cash installment plan?

11 A. Yes. He told us that they have cash clients

12 that just pay cash. They come in -- he said they have

13 lots of people that do that, and they do it in three

14 phases. Phase 1 starts the process. Phase 2 is

15 where -- is right at the drywall, and Phase 3 is at the

16 closing.

17 Q. Tell us, what was your hesitation about

18 entering into a cash installment plan?

19 A. Well, I had -- I'm a very frugal person, so I

20 saved and saved for -- really forever. And so here was

21 just pretty much everything just being emptied out into

22 this home. Just it really scared me. And just to make

23 three lump sum payments like this, whereas, had it been

24 financed, it would be a slow trickle out, an easy way to

25 pay over the course of very many years. And just having 33 1 a fixed income, disability income, it was very scary to

2 me not to have that reserve money in the bank should

3 something catastrophic happen.

4 Q. Had you already been down the road with a bunch

5 of repairs in a home?

6 A. Yes, in my current home, only because it's an

7 older home. That's what we could afford now, and --

8 well, back ten-plus years ago. So -- and I didn't want

9 to buy into another home that needed continual repairs.

10 That's why we were looking at a new home.

11 Q. So, when Kris Dominguez learned about your

12 retirement money, what did he tell you about Debo Homes'

13 subcontractors?

14 A. Well, he told us they hired the highest quality

15 subcontractors that there are, just the highest quality.

16 Q. Are you aware of the other types of homes that

17 Debo Homes builds? Do they only build small

18 single-family homes?

19 A. No, they -- they build single-family homes like

20 we were looking at, and homes smaller than we were

21 looking at, all the way up to million-dollar homes. And

22 we drove by them, and we saw them.

23 Q. And they looked nice?

24 A. They did. I couldn't afford them.

25 Q. What did Kris Dominguez tell you about who 34 1 would be supervising those subcontractors?

2 A. He told us that there would be onsite

3 supervision at all times overseeing the project.

4 Q. What did Kris Dominguez tell you about who

5 would also be checking Debo Homes' work?

6 A. He said there would be third-party, independent

7 inspections of the homesite at -- building inspections

8 at various stages of the building while it was going up.

9 Q. Now, when you were having these conversations

10 with Kris, I think the defense lawyer alluded earlier

11 that this was a very long process of saying we had a lot

12 of questions, didn't we?

13 A. We -- we actually met with Kris twice, but on

14 the second occasion, we signed the contract. The first

15 time, we were there a good couple of hours asking a lot

16 of questions. Then we came back a second time and

17 signed the contract because we asked so many questions.

18 I wanted to know exactly what we were getting into, what

19 appliances, what A/C unit, what -- just what exactly was

20 going to be in our house versus the model house.

21 Q. Did Kris tell you every single thing you wanted

22 to hear?

23 A. He did. He said -- when I asked if I'm going

24 to get -- we actually went up in the attic, and I said,

25 "Am I going to get this A/C unit?" And he said yes. 35 1 Because that one looked efficient, because the house

2 we're in, being older, it's not efficient. My A/C bill

3 is crazy for the home we're in. It's just -- you know,

4 I was comparing now to then. And I asked about the

5 stove, and I asked about the hot water heater because I

6 didn't want an attic hot water heater. I asked about

7 fixtures and just various things that just popped in my

8 head at those times. And he said -- every answer was

9 what's in this model home, and really, he had exactly

10 what I wanted to hear at every step of that moment.

11 Q. And even after that, what did -- what did Kris

12 tell you about, if there were any problems after the

13 first payment, what safeguard did you have?

14 A. Well, the next payment wouldn't be needed until

15 the drywall is going in. So, there would be -- if there

16 were any problems, we wouldn't have to give him the next

17 payment until then. And he said any problems, all

18 problems would be fixed along the way.

19 Q. Did Kris ever tell you all problems that Debo

20 Homes decides to fix is what they'd fix?

21 A. He did not tell us that, no. He said all

22 problems would be fixed.

23 Q. These promises or these representations that

24 Kris Dominguez told y'all, did you rely on them?

25 A. Absolutely. He was the person that -- he was 36 1 the go-to person. In fact, he told us, Kris told us

2 that we were not allowed to speak to anyone else onsite,

3 that we were not to disturb the workers, we were not to

4 disturb anyone else, and we held up to that. We did not

5 want to disturb them. We did not want to stop their

6 work. We left everyone else alone, and if we saw

7 anything unusual, then we contacted Kris personally.

8 Q. Based on what Mr. Dominguez told you, did you

9 pay Debo Homes $60,300?

10 A. Yes, we did. We were excited to get that house

11 going.

12 Q. Did you start packing up your house?

13 A. We did. Not only did we start packing up the

14 house, we still have things in boxes we haven't

15 unpacked.

16 Q. Once you paid Debo Homes the $60,300, did you

17 go back out and look at the highest quality

18 subcontractors work on the framing?

19 A. Yeah. Well, we -- we went out to the site, and

20 we looked around. They were -- a couple of weeks later,

21 they were doing the framing, and I just -- I just

22 started looking around, you know, looking -- okay,

23 here's the -- trying to identify which room's which.

24 And I looked up, and I saw split boards, like broke in

25 half, and other boards bowedbowed out and other boards 37 1 that just didn't look right, and cracked things here and

2 there. And I contacted Kris to tell him that it looked

3 like these were issues, what I had seen. I told him

4 what I had seen.

5 Q. How long did you stay out there and watch the

6 framers work?

7 A. Oh, I can't say for sure, but maybe -- maybe an

8 hour or so, maybe a couple of hours.

9 Q. In that time period, did you look across the

10 street and see Debo Homes' superintendent apparently

11 working on another house next-door?

12 A. No. Actually, there were no other houses being

13 constructed around that whole block. Ours was the only

14 house on the whole block being constructed.

15 Q. Did you ever see anyone from Debo Homes out

16 there?

17 A. I never saw anyone from Debo Homes. I only saw

18 the actual workers, the subcontractors out there.

19 Q. So, you contacted Kris Dominguez, told him that

20 -- you told him what, exactly?

21 A. I told him I saw some problems out there that I

22 need to address with him. I saw some broken boards. I

23 saw a pipe that didn't look attached. I saw -- I just

24 saw some things that didn't look right. I'm just -- I'm

25 not a construction expert or anything. I just saw 38 1 things that didn't look right. So, he told me he would

2 meet me out there, I don't recall whether it was the

3 next day or the following. So, we met, and he looked at

4 it all with me, and he handed me a can of red spray

5 paint and asked me to spray the areas that looked

6 unusual.

7 Q. Did that seem odd to you, that the salesman's

8 telling you to find the defects in the house?

9 A. I don't know if it felt unusual. I just felt

10 like, oh, I guess we're working together at this point.

11 I just was happy that we were working together right

12 then and there.

13 MR. CROCKETT: Your Honor, you want me to

14 keep asking to approach?

15 THE COURT: Just go ahead.

16 MR. CROCKETT: Thank you, Your Honor.

17 Q. (BY MR. CROCKETT) Ms. Miller, I'm showing you

18 what's been marked as Plaintiff's Exhibit No. 2.

19 A. Uh-huh.

20 Q. It is a bunch of photographs. Have you seen

21 these photographs before?

22 A. Yes.

23 Q. Are these photographs photographs that were

24 taken of different problems at the home throughout

25 construction? 39 1 A. (Referring to documents.) Yes.

2 Q. Do these photographs fairly and accurately

3 represent the things that you saw during the

4 construction?

5 A. A lot of the problems, I'm not going to say all

6 of the problems. Yeah.

7 Q. Thank you.

8 MR. CROCKETT: Your Honor, we'd ask that

9 Plaintiff's Exhibit No. 2 be admitted.

10 THE COURT: For the record, how many

11 photos are there?

12 MR. CROCKETT: Your Honor, it is 33.

13 THE COURT: Any objection?

14 MR. MARTINEZ: Yes, Judge. Hearsay,

15 expert report, improper predicate, all three.

16 THE COURT: Overruled. Plaintiff's

17 Exhibit 2, consisting of 33 photos, is admitted.

18 Q. (BY MR. CROCKETT) Ms. Miller, you talked about

19 some of the problems you were seeing in the house. I

20 will eventually learn how to use this thing. Now, what

21 was the issue that you saw with this?

22 A. Well, that was at the top of the garage, and

23 that just -- when I walked into the garage, and I just

24 went straight in the garage and looked up, I said, oh,

25 my goodness, that board is just split square in half, 40 1 and that's going to hold up the whole roof, the garage

2 area to the roof. And I just thought that's not

3 supposed to be split like that.

4 MR. MARTINEZ: Objection, Judge. This is

5 expert testimony about what beam is going to hold up

6 what part of the roof.

7 THE COURT: Sustained.

8 Q. (BY MR. CROCKETT) Now, here we've got a picture

9 of a beam, Ms. Miller. What was the problem that you

10 saw here?

11 A. Well, it looked there that there were no ties.

12 There's supposed to be metal ties on the bottom of

13 that --

14 MR. MARTINEZ: Objection, Judge. How

15 would she know whether or not a tie is supposed to be

16 there? She's not a construction expert.

17 THE COURT: Sustained.

18 Q. (BY MR. CROCKETT) Actually, Ms. Miller, I'm

19 talking about as far as the beams here -- it doesn't

20 show very well -- do you see any issues with the cracks

21 against the beams?

23 Q. Were you concerned about that?

24 A. Yes. They should not be cracked. They should

25 be flush. They should be cut flush. 41 1 MR. MARTINEZ: Objection, this is all

2 expert testimony about what should be what in the

3 construction.

4 THE COURT: Sustained.

5 Q. (BY MR. CROCKETT) Did you see broken beams and

6 boards throughout the framing?

7 A. Yes, I did.

8 MR. MARTINEZ: Objection, leading.

9 THE COURT: Overruled.

10 Q. (BY MR. CROCKETT) Did you see broken beams and

11 boards?

12 A. Yes, I did.

13 Q. Throughout the home?

14 A. Yes, I did.

15 Q. Did you tell Kris Dominguez about these broken

16 beams and boards?

17 A. Immediately.

18 Q. And this red spray paint, this is the spray

19 paint you put on there?

20 A. Yes, it is.

21 Q. Ms. Miller, do you know what this is?

22 (Indicating.)

23 A. Yes, that's a pipe. That's like a vent pipe.

24 It's a vent pipe.

25 Q. When you looked at the home and the framing, 42 1 did you wonder why some of the vents and the pipes

2 weren't connected to anything?

3 A. Yes. I just had an awful lot of questions, so

4 when Kris asked me to spray paint things that didn't

5 look right that I had questions about, that's exactly

6 what I did.

7 Q. Do you know who wrote on the beams when they

8 weren't even?

9 A. Yes.

10 Q. Who did that?

11 A. Mr. Kneuppel.

12 Q. Okay. Did you notice -- well, what was the

13 issue with the beams being uneven?

14 MR. MARTINEZ: Judge --

15 MR. CROCKETT: Judge, I'm not asking for

16 an expert opinion. I'm just saying did she see beams

17 that were uneven.

18 MR. MARTINEZ: That question's okay.

19 MR. CROCKETT: Okay. I'm sorry.

20 Q. (BY MR. CROCKETT) Did you see uneven beams

21 throughout the home?

22 A. Yes, I did.

23 Q. When you mean uneven, were there beams that

24 were actually shorter than the other beams that were

25 doing the same job? 43 1 MR. MARTINEZ: Objection, leading.

2 THE COURT: Overruled.

3 A. There were beams shorter and unattached at the

4 base.

5 Q. (BY MR. CROCKETT) Let me show you -- do you

6 know what this picture is of, Ms. Miller?

7 A. Yes.

8 Q. Where is this at in your house -- or what was

9 your house -- what part of the house?

10 A. In the attic, I believe.

11 Q. Is this piece of wood in the attic connected to

12 the support beam?

13 A. No, sir.

14 Q. When you were out there, did you see wood that

15 was just floating, not connected to anything?

16 A. Yes, sir.

17 Q. Did you have some concerns about that?

18 A. Absolutely.

19 Q. We talked about short boards. Did you see

20 things like that throughout the house?

21 A. Yes.

22 Q. Now, is this board right here nailed into this

23 board that's too short?

24 A. I believe so. I believe so.

25 Q. This board, when you were looking at it, was it 44 1 actually sitting on a beam just part of the wood? Did

2 you have concerns about that?

3 A. I had a lot of concerns. It just -- like I

4 said, it just didn't look right, and I know I can't fix

5 these things myself.

6 Q. How would you describe the wood that you saw as

7 the frame? What did it look like to you?

8 A. It just --

9 MR. MARTINEZ: Objection, opinion.

10 THE COURT: Overruled.

11 Q. (BY MR. CROCKETT) What did the wood that was

12 framing your house look like?

13 A. Looked like scrap lumber, like -- it just

14 looked like it was picked off the scrap pile.

15 Q. Do you know what's in this picture, Ms. Miller?

16 A. Yes.

17 Q. What is it?

18 A. It's two boards that don't meet that's supposed

19 to meet.

20 MR. MARTINEZ: Objection. "Supposed to

21 meet," how does she know that?

22 THE COURT: Sustained.

23 Q. (BY MR. CROCKETT) When we talked before about

24 boards that were shorter --

25 A. Yes. 45 1 Q. -- and had other boards attached to them.

2 A. Yes.

3 Q. Is that the kind of thing you were talking

4 about right here?

5 A. Yes. It's just -- yes.

6 Q. What about this vent?

7 A. Yes. That's the vent for the dryer, the dryer

8 vent. That's the utility room like right below that,

9 and it's crushed, and it would have been a fire hazard.

10 MR. MARTINEZ: Objection as to being a

11 fire hazard.

12 THE COURT: Sustained.

13 Q. (BY MR. CROCKETT) Did you have concerns about

14 the vent being crushed?

15 A. Absolutely.

16 Q. Let me talk to you about the A/C unit.

17 A. Yes.

18 Q. Is that the A/C unit that you saw in the model

19 home?

20 A. No, not at all.

21 Q. Did it look anything like that?

22 A. No, sir.

23 Q. Did the A/C unit have a drip pan that was about

24 half the size of the actual A/C unit?

25 A. No. No, sir. 46 1 Q. Did you tell Kris Dominguez about your concerns

2 that the A/C unit wasn't the same?

3 A. Yes.

4 Q. What did Kris tell you?

5 A. He said -- he really didn't say anything. He

6 just said, "We'll get to it, we'll see."

7 Q. Did Kris ever get to any of these things?

8 A. He got to some, but not all.

9 Q. Do you know what this picture is? It's kind of

10 hard to make it out. Did you have expectation that

11 you'd have insulated pipes in your home?

12 A. Yes, yes.

13 Q. Does the pipe here look like it's actually

14 insulated?

15 A. No. That -- that brought -- I looked up, and

16 there were a lot of uninsulated pipes here and there, so

17 I took pictures.

18 Q. Kris told you they were going to get to it?

19 A. He did. He said maybe. He said -- he did tell

20 me they're not going to get to everything, they wouldn't

21 do everything.

22 Q. When you saw these photographs, did you end up

23 hiring somebody to come and look at the house?

24 A. I did. I hired -- I hired a home inspector,

25 because I was very concerned, because I knew I was 47 1 uncomfortable with what I saw, and I didn't really know

2 exactly what I was looking at. So, I hired a home

3 inspector to come and take a look at the house.

4 THE COURT: Counsel, let's go ahead and

5 break for the day.

6 Ladies and gentlemen, I'm going to ask

7 that you be back at 8:45 in the morning. We cannot get

8 started until all 12 of you here, so please leave your

9 home in plenty of time to get here, get parked, get in

10 the jury room at 8:45. We will start promptly at 9:00

11 o'clock in the morning.

12 Remember the instructions that I've given

13 you: That is, do not discuss this case with anyone,

14 even amongst yourselves, until after you've heard all of

15 the evidence and received the Court's charge and heard

16 the attorneys' arguments.

17 You may bring bottled water into the

18 courtroom. However, keep the cap on it when you're not

19 drinking. We will normally take a 15-minute break in

20 the morning at about 10:30. We'll go until noon. We'll

21 normally take an hour and a half for lunch we'll resume

22 at 1:30 we'll take a 15 minute break somewhere around

23 3:00, 3:15, and we'll generally go until 5:00 o'clock

24 every day.

25 So, with that, have a good evening. And 48 1 we'll see y'all back at 8:45 in the morning.

2 (Jury out)

3 THE COURT: Counsel, see y'all at 8:45 in

4 the morning.

6 * * * * * * * * * * *

25 1 REPORTER'S RECORD VOLUME 3 OF 6 VOLUMES 2 TRIAL COURT CAUSE NO. 13-DCV-209822 FILED IN 14th COURT OF APPEALS APPELLATE COURT CAUSE NO. 14-15-00004-CV HOUSTON, TEXAS 3 2/20/2015 3:47:35 PM 4 LAUREL MILLER AND ) IN THE CHRISTOPHER DISTRICT COURT A. OFPRINE ELIANA MILLER ) Clerk 5 ) VS. ) FORT BEND COUNTY, TEXAS 6 ) DEBO HOMES, LLC ) 400TH JUDICIAL DISTRICT 7

13 JURY TRIAL _____________________________________________ 14

19 On the 20th day of August, 2014, the following

3 Mr. Brian H. Crockett Texas Bar No. 24074094 4 Mr. William G. Kanyha Texas Bar No. 24087827 5 Crockett Law, PC 10565 Katy Freeway, Suite 400 6 Houston, TX 77024 Telephone: 713.779.3476 7 Counsel for Plaintiffs

9 Mr. Nicholas T. Martinez Texas Bar No. 24087986 10 Mr. Craig Welscher Texas Bar No. 21167200 11 The Welscher Law Firm 1111 North Loop West, Suite 702 12 Houston, TX 77008 Telephone: 713.862.0800 13 Counsel for Defendants

25 3 1

2 VOLUME 3

3 JURY TRIAL

4 August 20, 2014 PAGE VOL. 5 PLAINTIFF'S WITNESSES:

6 Laurel Miller Direct Cross V.Dire By Mr. Crockett 13 v3 7 By Mr. Martinez 53 v3 By Mr. Crockett 127 v3 8 By Mr. Martinez 132 v3

9 Harold Knueppel Direct Cross V.Dire By Mr. Crockett 140 v3 10 By Mr. Martinez 143 v3 By Mr. Crockett 145 v3 11 By Mr. Martinez 145 v3

12 Kris Dominguez Direct Cross V.Dire By Mr. Crockett 146 v3 13 By Mr. Martinez 181 v3 By Mr. Crockett 195 v3 14 By Mr. Martinez 196 v3

15 Brian Crockett Direct Cross V.Dire By Mr. Kanyha 197 v3 16 By Mr. Martinez 210 v3 By Mr. Kanyha 221 v3 17 By Mr. Martinez 222 v3

18 Juan Carlos Hernandez Direct Cross V.Dire By Mr. Crockett 223 v3 19 Reporter's Certificate .......................... 248 3 20

25 13 1 THE COURT: Mr. Crockett, you may continue

2 your examination of the witness.

3 MR. CROCKETT: Thank you, Judge.

4 DIRECT EXAMINATION (CONTINUED)

5 Q. (BY MR. CROCKETT) Now, Ms. Miller, yesterday we

6 talked about the contract that y'all had entered into,

7 the initial contract. Then we had the other agreement

8 as far as the cash installment plan. You saw

9 construction happen. We went through the photographs.

10 What we're going to talk about now is basically after

11 you saw these photographs, what happened, what did you

12 see, what did you do. Okay?

13 A. (Nodding.) Yes.

14 Q. When we were looking at the photographs in

15 Exhibit No. 2, the broken boards, broken beams, the

16 areas that you had concerns, you brought that to the

17 attention of Kris Dominguez?

18 A. Immediately, yes. Yes.

19 Q. I'm going to show you Exhibit No. 3, which is

20 the text messages between yourself and Kris Dominguez.

21 Did you tell Kris that you wanted him to see what you

22 had saw out at the construction?

23 A. Yes, because I saw things I wasn't comfortable

24 with, and I wanted him to see exactly what I was looking

25 at. 14 1 Q. Did Kris agree to meet you?

2 A. He did.

3 Q. When Kris got there, you told Kris an inspector

4 was coming? You told Kris that there was the inspector

5 coming on May 9th?

6 A. Yes.

7 Q. And Kris was there with the inspector?

8 A. Yes.

9 Q. Okay. Who was the inspector you hired?

10 A. I hired a man named Harold Knueppel.

11 Q. Why did you hire Mr. Knueppel?

12 A. I looked up on the Internet and -- under home

13 inspectors, and I -- he had credentials. He had -- he

14 had done home inspections all over the United States and

15 outside the United States. He was an older gentleman.

16 He also lived in Fort Bend County for, my gosh, a very

17 long time, and I just thought here's a man who --

18 MR. MARTINEZ: Objection, Judge, a lot of

19 this is hearsay about his credentials, posings on the

20 web site.

21 THE COURT: Sustained.

22 Q. (BY MR. CROCKETT) Ms. Miller, my question with

23 you is --

24 A. Yes.

25 Q. -- why did you feel like you had to hire Mr. 15 1 Kneuppel? Why couldn't you just tell Kris Dominguez and

2 Kris Dominguez would have it fixed?

3 A. Because Kris was telling me that they were

4 going to fix some things, but they weren't going to fix

5 everything.

6 Q. When you went to -- when you had this meeting

7 with Kris -- and Kris was present the entire time and he

8 saw everything that you saw, right?

10 Q. What response did he have as far as all of the

11 issues you saw?

12 A. He kind of looked up and went, looked around

13 and -- (looking different directions) -- he -- he did

14 hand me a can of red spray paint and asked me to spray

15 things that I thought was unusual.

16 Q. Did Mr. Knueppel issue a report about all of

17 his findings?

18 A. He did.

19 MR. MARTINEZ: Judge, objection, expert

20 report and hearsay.

21 THE COURT: Overruled.

22 Q. (BY MR. CROCKETT) Did Mr. Kneupple issue a

23 report with all of the things that he found?

24 A. Yes, he did.

25 Q. Did you give that report to Kris Dominguez? 16 1 A. Yes, I did.

2 Q. Did you have a meeting with Kris Dominguez at

3 your house about that report?

4 A. Yes, we did.

5 Q. Who was -- who else was at that meeting?

6 A. My daughter, Ellie, and myself, Kris, and I

7 believe a friend of mine, Stan.

8 Q. Okay. Did you see anybody who was a

9 superintendent from Debo Homes during that meeting?

10 A. Yes, yes. The superintendent -- yes, and that

11 was the first time I had -- I had met him, the

12 superintendent.

13 Q. You didn't see him all those days that he was

14 there every day across the street?

15 A. No. Across the street, no, because this was

16 the only house being built in that whole block.

17 Q. Did the inspector -- let me say it this way:

18 Did Debo Homes' superintendent come and talk to you

19 about the problems that you saw?

20 A. No, he did not talk with me at all. He and

21 Kris went to another part of the house and talked

22 privately.

23 Q. At any time did anyone from Debo Homes, other

24 than Kris, come and talk to you about the problems in

25 the house? 17 1 A. No. And we were specifically instructed by

2 Kris not to talk with anyone else. We were only to talk

3 with Kris about the house.

4 Q. Did you want to talk to the superintendent

5 about all the problems that you saw?

6 A. I would have liked to know what the

7 superintendent was saying about what the fixes were

8 going to be and what the remedies were, yes.

9 Q. After Kris went in the other room and came

10 back, what did Kris tell you the superintendent had

11 agreed to?

12 A. Nothing specific. He just said -- he said,

13 "We're going to fix some things. We're not going to fix

14 everything."

15 Q. Was that the first time that there was a change

16 in how Kris was talking to y'all?

17 A. Yes. Prior to that, he was, "Oh, we've got

18 this covered, we're going to make you happy, we're going

19 to do whatever you want." And at that point, his

20 demeanor changed, and he said, "We're just not going to

21 fix everything." He was very curt.

22 Q. After that meeting, did Debo Homes tell you

23 that they wanted to start putting the drywall in?

24 A. It was very soon, very soon after that meeting.

25 Q. Debo Homes start asking you for anything else? 18 1 A. Right after that, they started asking for the

2 next payment.

3 Q. How much was the next payment?

4 A. $59,300.

5 Q. Now, did Kris just ask once or twice?

6 A. No. He asked multiple times through texts,

7 through phone calls, just to the point where I -- I

8 wasn't -- couldn't even take his calls anymore.

9 Q. Did you tell Kris that you weren't going to

10 make another payment until you knew that the repairs

11 were complete?

12 A. Yes, yes. I told him that the next payment

13 wasn't due until the next phase, that was the drywall,

14 when the drywall was actually going in, and that all the

15 problems -- the problems were supposed to be fixed prior

16 to the drywall, and another inspection was supposed to

17 be done prior to the drywall. Everything prior to the

18 drywall. But he just kept going on about, "You owe the

19 next payment, you owe the next payment."

20 Q. Did you have Mr. Knueppel come back and do

21 another inspection?

22 A. I did. He came back for a second -- it was

23 after the insulation went in and prior to the drywall.

24 Q. In between the time that the first inspection

25 happened and the second inspection, did Debo Homes keep 19 1 constructing the house?

2 A. Yes, they never stopped. It was -- it was like

3 just being in a whirlwind.

4 Q. When you went out to the second time, did you

5 ask Kris Dominguez to be there?

6 A. Yes, he was invited at every step. I wanted

7 them part of it. This was going to be our home. I

8 wanted them -- they were our builder. I wanted them

9 part of the process. This was -- this was not something

10 that I felt that they should be left out of.

11 Q. Did Kris Dominguez show up at the second

12 inspection?

13 A. He did not.

14 Q. In the second inspection, were there problems

15 with the new work that Debo Homes had been doing over

16 the last four days?

17 A. Yes, there were additional problems on top of

18 the original problems that hadn't been fixed.

19 Q. Did Kris tell you he wanted money again?

20 A. Yes. That -- that did not stop. The continual

21 asking for the $59,300 just did not stop.

22 Q. So, we had the May 9th inspection. On May

23 11th, did you tell Debo Homes that you wanted to have

24 another inspection to confirm that all of the problems

25 had been fixed? 20 1 A. Yes, I did.

2 Q. Did you actually text Kris on May 11th that you

3 wanted to have Mr. Knueppel come back again -- this

4 thing will eventually catch. Did you tell him you

5 wanted him to come back again and confirm that the

6 repairs were done?

8 Q. You told Kris, and he knew that you wanted him

9 to come back again?

10 A. Yes, yes.

11 Q. And that inspection was going to happen before

12 or after the drywall went in?

13 A. Before the drywall. Mr. Knueppel specifically

14 said after the insulation --

15 MR. MARTINEZ: Objection, hearsay as to

16 what Mr. Knueppel said.

17 THE WITNESS: He said it to me.

18 THE COURT: Sustained.

19 Q. (BY MR. CROCKETT) Did you tell Debo Homes that

20 you wanted Mr. Knueppel to come back out before the

21 drywall got installed?

23 Q. Did Debo Homes understand from the message you

24 sent -- did Kris ever say, "I don't understand why you

25 want to come back out again before it gets installed"? 21 1 A. Kris understood from my texts.

2 Q. Later that day, what did Kris tell you about

3 the drywall?

4 A. He said they were supposed to be -- he said he

5 has until Monday to complete his part, because we're

6 sheetrocking on Tuesday. That's what Kris wrote.

7 Q. 5-13, this was after the second inspection, and

8 Kris texted y'all that all that he was told was that

9 they started at 2:00 to 3:00, and that's it, and that

10 they're going to finish today?

11 A. (Nodding.) Yes.

12 Q. Were you ever aware that -- other than that

13 day, that they were just going to start drywalling?

14 A. No.

15 Q. Did you make the $59,300 payment?

16 A. No, I never made the second payment.

17 Q. But they started drywalling anyway?

18 A. They did.

19 Q. Here's the text message here about them

20 starting on 5-14, May 14th.

21 MR. MARTINEZ: Can we get a date from the

22 previous one?

23 MR. CROCKETT: May 13.

24 Q. (BY MR. CROCKETT) The previous one is May 13th.

25 May 14th, at 10:51 a.m., Kris told y'all for the very 22 1 first time that they were going to drywall at 2:00 to

2 3:00?

3 A. (Nodding.)

4 Q. Or tomorrow, right?

5 A. Yes.

6 Q. So, did you think that they were going to

7 drywall May 15th, if he wrote you that on May 14th?

9 Q. Had you been able to get Mr. Knueppel back out

10 to do the inspection?

11 A. If we had a whole day? I don't know. It's

12 possible, if we had --

13 MR. MARTINEZ: Object to speculation.

14 THE COURT: Sustained.

15 Q. (BY MR. CROCKETT) And then actually an hour

16 later, about an hour and a half later, Kris texts you

17 "Can you please call me, because they're showing up

18 today and not tomorrow to sheetrock the house. My boss

19 will knock a hundred dollars off."

20 MR. MARTINEZ: That assumes facts not in

21 evidence and misconstrues the evidence there. That's

22 talking about insulation, not sheetrock.

23 THE COURT: Overrule the objection.

24 Q. (BY MR. CROCKETT) Did they install the drywall

25 on May 14th? 23 1 A. They did.

2 Q. When you went out to the house on May 15th, did

3 you see that they had already drywalled over a bunch of

4 things?

5 A. Yes, yes, the drywall was in.

6 Q. Why did you take these pictures?

7 A. To show that the drywall was in. I was

8 shocked. I couldn't believe -- we were supposed to

9 still be in frame and insulation.

10 THE COURT: Counsel, I see some people

11 coming in the courtroom. Are these witnesses?

12 MR. CROCKETT: No, they're not.

13 THE COURT: Okay. I'm going to depend on

14 you to let me know if any come in, so that I can

15 instruct them.

16 Q. (BY MR. CROCKETT) We've got drywall up here.

17 Were you surprised to see the drywall up throughout the

18 house?

19 A. Yes, yes.

20 Q. Were these areas that you were planning to

21 inspect?

22 A. Oh, yes.

23 Q. When Debo Homes put the drywall in, before they

24 put it in, is there anything that you ever said to tell

25 Debo Homes, "You can't make the repairs"? Did they ever 24 1 tell you, "Why won't you let us make the repairs?"

2 A. I'm sorry?

3 Q. Bad question. Before the drywall got put in,

4 did anyone from Debo Homes come to you and say, "Why

5 aren't you letting us repair the problems with the

6 house?"

7 A. No.

8 Q. Would you have given Debo Homes as much time as

9 they needed to make the repairs before the drywall went

10 in?

11 A. Absolutely. We -- we wanted -- wanted a great

12 house. We wanted a solid house without problems. We

13 wanted a house that we didn't have to worry about fixing

14 up, and we would give them as much time as they needed

15 prior to even thinking about moving in. We were in no

16 rush to move in.

17 Q. After this happened, did you walk away from the

18 contract like Debo Homes' lawyer said?

19 A. No.

20 Q. Let me talk to you about the continued

21 construction that you saw afterwards. After the drywall

22 went in, did you have a chance to see Debo Homes working

23 on your roof?

24 A. Yes, absolutely.

25 Q. How many people from Debo Homes were out there? 25 1 A. I saw two people.

2 Q. Did you see any superintendents or anyone from

3 Debo Homes?

4 A. I did not. There were just two, two men.

5 Q. And what were they doing?

6 A. One man was on the roof, and another worker was

7 on the ground. The man on the roof called down to the

8 man on the ground --

9 MR. MARTINEZ: Objection, hearsay.

10 MR. CROCKETT: Judge --

11 THE COURT: I haven't heard any statements

12 yet. Overruled.

13 A. He called down to the man on the ground. Then

14 the man on ground cut -- cut a board, handed it up to

15 the man on the roof. The man on the roof set it on the

16 roof. It was like a -- like a piece of the solid base

17 of the roof board, not like a shingle, just like a main

18 board for the roof -- and then kind of moved it back and

19 forth, shook his head, threw it off the roof. Then

20 called down to the man on the ground a second time. The

21 man on the ground cut a second board, handed it up to

22 the man on the roof. The man on the roof tried to place

23 it again. The man on the roof threw it down, called

24 down to the man on the ground a third time. A third

25 board was cut, handed up, the man on the roof tried to 26 1 place it again. Still didn't work, threw it down. A

2 fourth time the man on the roof called down, a fourth

3 board was cut, handed it up, wiggled it this way and

4 that way, got it to fit and then moved on.

5 Q. (BY MR. CROCKETT) Does that sound like the

6 highest quality subcontractors that Kris promised you?

7 A. I was -- I just went -- I was just shocked. I

8 was (indicating). I just couldn't believe it.

9 Q. Did that give you some concern about all the

10 uneven boards you saw before on the frame?

11 A. It just kind of brought everything home.

12 Q. Right then and there, did you walk away from

13 the contract, like Debo Homes' lawyer said?

14 A. No, I didn't. We still stuck with it. I don't

15 run away from things.

16 Q. Let me talk to you about the driveway. Did you

17 see Debo Homes pour your driveway?

18 A. Yes, I did.

19 Q. Did you see that the driveway was framed with

20 wood around it?

21 A. Yes. Yes, it was.

22 Q. Was there anything -- in the actual forms where

23 they were pouring the concrete, was there any mesh, was

24 there any rebar, was there anything?

25 A. No, just the dirt, just the base dirt that they 27 1 flattened out.

2 Q. Have you ever seen drywall -- not drywall -- a

3 driveway after this or a sidewalk be poured?

4 MR. MARTINEZ: Objection, relevance, other

5 sidewalks not near this house.

6 THE COURT: Sustained.

7 Q. (BY MR. CROCKETT) After you saw your driveway

8 poured, did you ask Kris Dominguez why there was no

9 rebar or mesh inside the driveway?

10 A. I did.

11 Q. What did Kris tell you about the mesh?

12 A. He told me -- I asked him why there was no

13 rebar in the driveway, and he told me that, had we

14 wanted rebar, we would have had to specify that at the

15 time of the signing of the contract.

16 Q. Did Kris tell you that they put mesh in the

17 driveway?

18 A. He did tell us that they automatically put mesh

19 in the driveway.

20 Q. What did you tell Kris about what you had saw?

21 A. I told him I saw that there was no -- neither

22 mesh nor rebar, there was just plain cement, and he

23 insisted that it had to have mesh, after I told him it

24 didn't because I saw it being poured.

25 Q. What explanation did Kris give you? 28 1 A. He gave me no explanation. He just

2 (indicating) was quiet.

3 Q. Let me ask you, when you saw the driveway being

4 poured, how many people from Debo Homes were there?

5 A. There were no people from Debo Homes. It was

6 just the contractors.

7 Q. After you saw the driveway being poured and the

8 responses back from Kris, did you run away from the

9 contract, like Debo Homes' lawyers told us?

10 A. I did not.

11 Q. Did you have a chance to see your fence being

12 installed?

13 A. Yes. Yes, we did.

14 Q. Tell us what you saw about your fence being

15 installed.

16 A. Okay. They were digging the holes, and while

17 they were digging the holes, all of a sudden a bunch of

18 neighbors decided to come from around, from behind the

19 house and next door. And all of a sudden -- excuse

20 me -- we wondered what was going on, why all of a sudden

21 we're meeting the neighbors. Well evidently, they had

22 cut the power, cut the lines upon digging the holes.

23 Q. Did that sound like the highest quality

24 subcontractors that Kris promised you?

25 A. No. I would think they'd know where the lines 29 1 were.

2 Q. Did you run away from the contract after you

3 saw that, like Debo Homes' lawyer said you did?

4 A. No, we didn't. We still stuck with it.

5 Q. This was that driveway you were talking about,

6 right?

7 A. Yes, that's it.

8 Q. Why did you take a picture of that driveway

9 again?

10 A. Because I watched it being poured, and there

11 was no rebar, no mesh. There was nothing other than

12 concrete to hold it together, and --

13 MR. MARTINEZ: Objection, getting into

14 expert testimony about holding driveways together. She

15 doesn't know what rebar is for.

16 THE COURT: Overruled.

17 Q. (BY MR. CROCKETT) You can answer the question.

18 A. Okay. There was nothing but plain cement to

19 hold it together.

20 Q. Your next-door neighbors, do they have a

21 driveway?

22 A. Yes, they do.

23 MR. MARTINEZ: Objection, same objection

24 as earlier, relevance about other driveways, other

25 sidewalks. 30 1 THE COURT: Overruled.

2 Q. (BY MR. CROCKETT) Your neighbors next-door, did

3 they have a driveway?

4 A. Yes, the neighbors next-door had a driveway.

5 Q. Did Debo Homes build that house?

6 A. Yes, they did.

7 Q. How did that driveway look?

8 A. It was very broken up.

9 Q. How old was that house?

10 A. About five years old, at the most.

11 Q. Did you have some concerns after seeing your

12 driveway get poured and then seeing the neighbor's

13 driveway?

14 A. Yes, yes. We looked over at the neighbor's

15 driveway, and we said that's what ours is going to look

16 like in a couple of years. That's --

17 MR. MARTINEZ: Objection, speculation.

18 THE COURT: Overruled.

19 Q. (BY MR. CROCKETT) Let me talk to you about some

20 of the other things about the repairs Debo Homes said

21 you didn't let them do.

22 MR. CROCKETT: I'm sorry, can I --

23 bailiff, how do I get rid of this green thing that I've

24 accidentally written on there?

25 BAILIFF: Touch the bottom right on the 31 1 screen.

2 MR. CROCKETT: Thank you.

3 Q. (BY MR. CROCKETT) Now, on here, Debo Homes said

4 that they were going to put the waterproofing on this

5 foundation, right?

7 Q. When Debo Homes said they were going to make

8 some repairs, is that the repair that they made?

9 A. That is exactly it.

10 Q. Did you have some concerns about the

11 waterproofing that was the repair job?

13 Q. Did you run away from the contract, like Debo

14 Homes' lawyer said you did?

15 A. No. We still -- we still kept going.

16 Q. Had Debo Homes started doing the brick facade

17 of your house?

19 Q. What happened to the waterproofing?

20 A. I really don't know. it's gone.

21 Q. How did that make you feel about how good the

22 repairs were being done?

23 A. Well, pretty upset. It was there, and now it's

24 gone. So, what else was there and then it's gone?

25 Q. Now, talk to me about this brick wall. 32 1 A. Yes. It was free-standing. I could put my

2 fist inside between the framing and the brick wall.

3 Q. You're talking about right here? (Indicating.)

4 A. Yes, sir. And we actually looked in there with

5 a flashlight, and there was no -- there was nothing

6 holding that wall to the frame. It was just

7 free-standing. And I leaned on it, and it started to

8 move. And it was very disturbing. Plus, it shrunk in

9 the rest of the house. The house was not all the way to

10 the edge.

11 Q. What do you mean by that?

12 A. Well, if the house was in a good three inches

13 or so, that means the room sizes were smaller.

14 Q. Did you tell Kris Dominguez about the brick

15 facade?

16 A. Yes, immediately.

17 Q. Did Kris tell you, "We're going to repair it"?

18 A. He said, "We'll take care of it."

19 Q. Talk to me about the windows where the brick

20 facade was at compared to the window holes that they

21 made of the house.

22 A. Yes. They didn't line up. The holes that were

23 cut into the frame were not the same holes for the

24 brick. So, they were -- they were off. And when I

25 brought that to their attention, they said, oh, that 33 1 would work out, that just works itself out.

2 Q. Did you tell them that they had to repair it

3 right now, or that you were going to run away from the

4 contract?

5 A. I never said that. We just wanted the house

6 fixed so we could enjoy living there.

7 Q. Now, the window here, what was going on with

8 this window?

9 A. I don't know how it got broken, but it's --

10 it's -- inside, it's a broken master bedroom window.

11 Q. Did Kris tell you, "We're going to get it

12 replaced right away"?

13 A. He never said -- he said, "We'll fix it."

14 Q. Did you get that a lot?

15 A. Yes.

16 Q. When you add up all of the things that you saw

17 and you look at all of the responses that Debo Homes

18 gave you, did you ultimately say, "I want to confirm all

19 the repairs are actually going to be done before I pay

20 you any more money"?

21 A. That's exactly what was said.

22 Q. Did you ever see those repairs happening?

23 A. We saw some repairs happening. We didn't see

24 enough repairs happening.

25 Q. Did you see the construction of the house keep 34 1 going, though?

2 A. The construction never stopped.

3 Q. On May 21st, did you write an e-mail to Kris

4 Dominguez telling him that you wanted them to stop

5 construction?

6 A. I did.

7 Q. Did you outline all of the things that you saw

8 or had an issue with with Debo Homes?

9 A. I did.

10 Q. Did construction stop?

11 A. It did not.

12 Q. You told Debo Homes, "We expect Debo Homes to

13 complete all of these repairs prior to us submitting any

14 more funds"?

16 Q. So, you didn't pay them anything more, and the

17 construction kept going?

18 A. That's correct.

19 Q. Ultimately, did you have to ask us to tell them

20 to stop?

21 A. Ultimately, yes. It was not something we

22 wanted to do. It was something we had to do.

23 Q. Now, this letter was made on May 22nd. Did

24 Debo Homes stop after we sent our letter?

25 A. They did not. 35 1 Q. You know that Debo Homes told us that they were

2 going to let us inspect the house, right?

3 A. Yes, they did.

4 Q. Did we have an inspection scheduled for July?

5 A. We did.

6 Q. Let me ask you this: After Debo Homes knew

7 that you had hired lawyers, did they keep calling you

8 directly?

9 A. They did.

10 Q. Now, were they calling you to say, "Ms. Miller,

11 let's try to work this out, let's do the repairs"?

12 A. No. No.

13 Q. What did Kris Dominguez keep calling you about?

14 A. $59,300.

15 Q. At that point, when he kept calling and

16 calling, did you say, "Talk to my lawyers"?

17 A. That's exactly -- prior to that, I wouldn't

18 have had to. I didn't have lawyers.

19 Q. Wasn't how the defense lawyer had said earlier,

20 which was right from the start, you said, "Talk to my

21 lawyers." Did Debo Homes send you this letter directly?

22 MR. MARTINEZ: I object to what counsel

23 said. There's no question. He was making a statement.

24 THE COURT: Sustained.

25 Q. (BY MR. CROCKETT) Did Debo Homes write you a 36 1 letter, directly to you, May 29th, 2013?

3 Q. And it's supposed to be from Juan Carlos

4 Hernandez, the President of Debo Homes?

6 Q. On May 29th, Mr. Hernandez said, "It's come to

7 my attention that you have some concerns about the

8 quality of the construction and the materials that go

9 into your home." Did you have some concerns?

10 A. (Nodding.) Yes, we had a lot of concerns.

11 Q. Now, when you first met with Kris Dominguez, he

12 told y'all that they had a third-party independent

13 inspector inspect the entire work from Debo Homes,

14 almost a check the checker?

15 A. Yes. They had -- that's exactly what he told

16 us -- third-party independent inspectors throughout the

17 building process.

18 Q. Mr. Hernandez's letter was the first time that

19 you knew that there was only three inspections?

21 Q. Did you learn for the first time that they also

22 have onsite supervising all of the subcontractors' work?

23 A. Yes.

24 Q. Did you actually ever see that?

25 A. No, we did not see that. 37 1 Q. You couldn't even talk to the guy, if you

2 wanted to?

3 A. No, we were -- we were specifically told not to

4 talk with the workers.

5 Q. Now, this part is really interesting. At the

6 end of it, Juan Carlos Hernandez told y'all, "If you are

7 not happy with our service, you are free to terminate

8 the contract with Debo Homes, and we'll refund you a

9 hundred percent of the money you gave us after we sell

10 the house." Are you surprised now that they're actually

11 suing you, saying you breached the contract?

12 A. Yes.

13 Q. Did they say a lot of things to you and then

14 say something different later?

15 A. Unfortunately, that's exactly what happened.

16 Q. Now, Debo Homes' lawyer said that they offered

17 you a hundred percent of the money whenever they sold

18 the house. Did you ask him for a specific date?

19 A. Well, we tried to work it out that it would

20 happen within 90 days.

21 Q. Did you ever hear a single thing from Debo

22 Homes or its lawyers?

23 A. We never heard anything. It just -- everything

24 got silent at that point.

25 Q. A week before the inspection that was 38 1 scheduled, did you go out to the house to see whether or

2 not anything had been changed or altered?

3 A. Yes. We wanted to make sure everything was --

4 was okay for the building inspector to get out there and

5 keep going. We still hadn't pulled out.

6 Q. Is this what you saw when you got there?

7 (Indicating.)

8 A. That's exactly what we saw.

9 Q. Were you shocked that your home was available

10 for sale?

11 A. We were dumbstruck.

12 Q. Now, you bought some fans, some fixtures for

13 your new house, right?

14 A. Yes, we did.

15 Q. Did you see Debo Homes installed them?

16 A. Yes. We -- we specifically wanted extra

17 ceiling fans for the rooms because it keeps energy costs

18 down. You know, this way we could keep the AC a little

19 higher and put the fans on, a little nicer. And Kris

20 told us just drop them off at his office, he'll make

21 sure they get in the house.

22 Q. They got in there, didn't they?

23 A. They did.

24 Q. Were you surprised to see the sales table out

25 there? 39 1 A. Yes. Evidently, looks like they're -- they've

2 got a nice little office going on in there.

3 Q. Let me ask you this: Your home, what was the

4 floor supposed to be?

5 A. It's supposed to be all tile, a hundred

6 percent. We didn't want carpet because of the dogs. We

7 have carpet now, and it just gets eaten up.

8 Q. This back corner here and in the other parts in

9 the house, what did they install?

10 A. They put carpet throughout the bedrooms.

11 Q. They built the house cheaper?

12 A. Yes, they did.

13 Q. They're not asking for a reduction off of their

14 lost profits, even though they saved money making it

15 cheaper, are they?

16 MR. MARTINEZ: Objection, it assumes facts

17 not in evidence about the cost of tile and carpet.

19 Q. (BY MR. CROCKETT) Did Debo Homes tell you that

20 they would give you your money back for the money that

21 they saved building a cheaper home?

22 MR. MARTINEZ: Objection, same objection.

23 THE COURT: Sustained.

24 Q. (BY MR. CROCKETT) When we asked Debo Homes what

25 was going on, and we went to the house and saw that it 40 1 was completed, what did they tell you?

2 A. They told us we were trespassing. We didn't go

3 in the house, we went around the outside of the house.

4 They told us it's not our house, and that we were

5 trespassing, and that we don't have any right to be on

6 -- on the property at all.

7 Q. Did you feel like they were intimidating you?

8 A. Intimidating, and just we couldn't understand

9 how a house we owned a third of already --

10 MR. MARTINEZ: Objection, it's a legal

11 conclusion about --

13 Q. (BY MR. CROCKETT) What did Debo Homes' lawyers

14 tell you about that $60,300, how much of that were they

15 going to give you back?

16 A. They were going to -- they were going to give

17 it minus the attorney's fees, broker's fees, interest,

18 any and all costs.

19 Q. Is that what Juan Carlos Hernandez said in

20 Exhibit No. 6?

21 A. No.

22 Q. That he was going to seek all lost profits, pay

23 for all my attorney's fees, my interest? Did he ever

24 tell you that?

25 A. No, not at all. 41 1 Q. Now, you know that -- Exhibit No. 8 -- Debo

2 Homes ultimately sold your house to someone else?

4 Q. Sold it for $168,000?

6 Q. They signed that contract on October 19, 2013.

7 See that?

9 MR. MARTINEZ: Objection, leading.

11 Q. (BY MR. CROCKETT) Did you hear Debo Homes'

12 lawyer said that they actually didn't close on the house

13 until December?

14 A. Yes, and we didn't find out about it until May

15 in the deposition.

16 Q. So, you waited two months for them. How long

17 did they wait for you?

18 A. A couple of days.

19 Q. After Debo Homes sold your house, did Debo

20 Homes pay you back the money that Juan Carlos

21 Hernandez --

22 A. They paid us nothing.

23 Q. -- promised he would do?

25 Q. You heard Debo Homes' lawyer tell you they put 42 1 $60,300 in the Court's registry?

2 A. Yes, I heard that.

3 Q. Do you know when they did that?

4 A. Yes. We found out that they put it in just

5 last week, but we found out on Monday, this past Monday.

6 Q. Over the last year and a half, what changed,

7 other than 12 jurors?

8 A. Nothing.

9 Q. How long have we been in this lawsuit?

10 A. Since the end of May, 2013. 2013.

11 MR. MARTINEZ: Objection, that assumes

12 facts not in evidence. This was filed in October.

13 THE COURT: Overruled. You can

14 cross-examine her.

15 Q. (BY MR. CROCKETT) How long have you had to deal

16 with Debo Homes and their lawyers?

17 A. Since the end of May, 2013.

18 Q. During that entire time, have they ever said

19 anything to you other than you're going to pay our lost

20 profits, or attorneys fees, our lost interest, and

21 anything else that we come up with?

22 A. No.

23 Q. That's all you've ever heard?

25 Q. If Kris Dominguez would have told you this is 43 1 the way that Debo Homes was going to do business with

2 y'all, would you have handed over $60,300?

3 A. Never.

4 Q. Did Debo Homes make promises, representations

5 to y'all that as of today you know weren't true?

7 Q. What did Debo Homes tell y'all, what did they

8 promise y'all about their subcontractors?

9 MR. MARTINEZ: Objection, asked and

10 answered many times.

11 THE COURT: Overruled.

12 A. They promised that they would be the highest

13 quality subcontractors.

14 Q. (BY MR. CROCKETT) What did Debo Homes tell you

15 about their supervision of those highest quality

16 subcontractors?

17 MR. MARTINEZ: Same objection.

19 A. That there would be continual onsite

20 supervision at the jobsite, at the home.

21 Q. (BY MR. CROCKETT) What did Debo Homes tell you

22 about the third-party inspectors?

23 A. That there would be multiple building

24 inspections of the structure and at various phases --

25 Q. What did Debo Homes tell you -- 44 1 A. -- by a third-party inspector.

2 Q. What did Debo Homes tell you about the next

3 time you'd have to pay $59,300?

4 A. That that would not have to happen until we go

5 into sheetrock, and that all problems would be fixed

6 before we paid the next phase.

7 Q. What did Kris Dominguez tell you about the AC

8 unit and the appliances that were going to be installed

9 in your house?

10 A. That they would be the same ones that we saw in

11 the model house.

12 Q. Were any of those a hundred percent true?

13 A. No, not at all.

14 Q. Now, Debo Homes' lawyers talked earlier about

15 saying that this was the contract; regardless of

16 whatever we told you, the contract says that we don't

17 have to follow that.

18 MR. MARTINEZ: Objection, counsel is

19 making a statement?

20 THE COURT: Sustained.

21 Q. (BY MR. CROCKETT) In this contract, when was

22 this contract signed, Exhibit No. 1? Was this signed --

23 let me ask a better question. Exhibit No. 1, when this

24 was signed, were you doing the cash installment plan or

25 were you doing the financing? 45 1 A. This was the financing. This was when we tried

2 to get financing. We went in with that -- with that

3 mind-set.

4 Q. And y'all signed this April 13th?

6 Q. Is that what you remember?

8 Q. And when you came back to meet with Kristopher

9 Dominguez, when you didn't qualify for financing -- I

10 think I need a better one. How many days later from the

11 original contract did y'all write a check to Debo Homes

12 for $59,300 and a thousand dollars in earnest money?

13 A. I believe it was three days later.

14 Q. April 16th, 2013. And you paid them that

15 money, correct?

17 Q. And the agreement was the cash installment

18 plan?

19 A. Yes.

20 Q. After you made that agreement, did Kris

21 Dominguez tell you, "Well, we're still going to hold you

22 to this other agreement that says whatever we just told

23 you right now, we're going to ignore that, and we're

24 going to say that that doesn't apply"?

25 A. No, he never said that. 46 1 Q. Other than after this lawsuit was filed, did

2 you ever hear from anyone at Debo Homes, other than

3 their lawyers, that they weren't going to honor any

4 agreement that wasn't in writing?

5 A. Can you rephrase the question?

6 Q. Before this lawsuit was filed --

8 Q. -- did anyone from Debo Homes ever tell you,

9 "Well, we're going to hold you to the old contract and

10 all these representations we just made, we're not going

11 to honor"?

12 A. No.

13 Q. Once this lawsuit happened, did you find out

14 that was the defense?

16 Q. During your deposition, is that when you found

17 out Debo Homes was saying, "Well, No. 19 says we don't

18 have to honor anything that's not in writing, no

19 warranties, no promises"?

20 A. That's exactly when I found out.

21 Q. In your agreement with Debo Homes, is anywhere

22 in this contract that talks about the cash installment

23 plan?

24 A. No, because that contract is all about the

25 financing. 47 1 Q. Is anywhere in this contract that Debo Homes

2 put in writing that you didn't have to make a payment

3 until before the problems had been fixed?

4 A. That contract -- no, because, again, that's

5 about the financing.

6 Q. Did Kris Dominguez tell you a different story?

7 A. He did.

8 Q. Debo Homes lawyer said that y'all were here

9 asking for treble damages and all this excess damages

10 because you just wouldn't take your money back when they

11 offered it to you. Did they ever offer your money back?

12 A. Not really. They offered it minus this, minus

13 attorney fees, minus the costs and other fees, and so it

14 never came down to just our money back.

15 Q. Are you suing Debo Homes just about this

16 incident? Is this all about just you?

17 A. No. It's not about me. Because if they can

18 build me a home like this, they can build anybody a home

19 like this. If they can take my money, they can take

20 anybody's money. They can -- it's very upsetting that I

21 and my daughter have had to go through this, but they

22 can do this to anyone.

23 Q. Ms. Miller, if you wouldn't have been out on

24 that jobsite, if you wouldn't have been there and saw

25 the work that was done, you think that any of the 48 1 repairs would have been done?

2 MR. MARTINEZ: Objection, speculation.

3 THE COURT: Sustained.

4 Q. (BY MR. CROCKETT) If you wouldn't have been

5 there to see the crushed vent pan, you think it would

6 have been fixed?

7 MR. MARTINEZ: Same objection.

8 THE COURT: Sustained.

9 Q. (BY MR. CROCKETT) Based on the work that Debo

10 Homes did or what you witnessed, you think that you

11 would be doing a bunch of repairs after you paid off

12 this house?

13 MR. MARTINEZ: Objection, speculation.

14 THE COURT: Overruled.

15 A. Yes, I think we would. And I think we'd be

16 paying very high AC bills based on the air conditioning

17 unit they put in versus the one they promised us. I

18 think we'd have a wet ceiling based on the pan being too

19 small for the AC unit.

20 MR. MARTINEZ: Objection. This is getting

21 into the cost of electricity, the ceiling pan from the

22 AC unit.

23 THE COURT: What's your legal objection,

24 counsel?

25 MR. MARTINEZ: Speculation and expert 49 1 testimony.

2 THE COURT: Sustained.

3 Q. (BY MR. CROCKETT) Ms. Miller, I want to talk to

4 you about the construction timeline.

5 MR. CROCKETT: Judge, I have a

6 demonstrative that I've talked to defense counsel about.

7 I think they're looking for your ruling on my timeline.

8 MR. MARTINEZ: We object to the -- he's

9 making statements in that demonstrative there, expert

10 opinion, hearsay.

11 MR. CROCKETT: Judge, it's all things that

12 she's already testified about.

13 MR. MARTINEZ: Some of which was expert

14 testimony, which I've objected to.

15 MR. CROCKETT: I can show Your Honor.

16 THE COURT: Bring it up.

17 (Bench conference)

18 MR. MARTINEZ: The portion that we're

19 objecting to, all the words in writing and that sort of

20 stuff.

21 THE COURT: This is it?

22 MR. CROCKETT: That's it, Judge.

23 MR. MARTINEZ: If I may, Judge, they

24 changed a little bit --

25 MR. CROCKETT: It says stop construction. 50 1 MR. MARTINEZ: This is repetitive, and

2 it's confusing.

3 MR. CROCKETT: You can delete it. I'm

4 just trying to get the timeline in here.

5 MR. MARTINEZ: Yeah. We're fine with

6 that.

7 THE COURT: Okay.

8 (End of bench conference)

9 Q. (BY MR. CROCKETT) Ms. Miller, I want to talk to

10 you about this timeline, because it's a big deal in this

11 construction timeline. At the very left side, April

12 16th, 2013, is that when you entered into your cash

13 installment agreement?

14 A. Yes.

15 Q. And what were the representations, the promises

16 that Kris Dominguez told y'all?

17 A. That we would get the same things that were in

18 the model home; that we would have quality superior

19 quality workers; that they would be supervised at all

20 times; that they --

21 Q. Let me ask you this.

23 Q. On May 9th and 13th --

25 Q. -- when Mr. Knueppel did the report -- 51 1 A. Yes.

2 Q. -- are those pictures of what you saw?

4 Q. Does that sound like, what you saw, anything

5 like Mr. Knueppel gave y'all, or what Debo Homes

6 promised y'all?

7 A. It's nothing what they promised.

8 Q. May 14th, we talked about those text messages,

9 is Kris Dominguez demanding more money from y'all?

10 A. Absolutely.

11 Q. In fact, on the inspection from May 13th, in

12 these photographs you already saw that they had all the

13 drywall waiting to be thrown up?

15 Q. When you did the inspection on May 13th, how

16 late at night was it?

17 A. Oh, it was -- it was after hours. There were

18 no more workers there.

19 Q. And May 14th, all the drywall went up?

21 Q. May 21st and the 22nd, was Debo told to stop

22 construction?

24 Q. Did you ever pay them the money for the

25 drywall? 52 1 A. I did not.

2 Q. In fact, did construction ever really stop?

3 A. It did not. It just kept going and going like

4 a snowball going downhill.

5 Q. May 29th, is it accurate that Debo Homes, the

6 president of the company, told you that you're free to

7 terminate the contract, have no liability to us, and

8 we'll give you your money back when we sell the house?

9 A. Yes, he did.

10 Q. Was any of that true?

11 A. It turned out not to be true.

12 Q. June 3rd was the closing date. Did you ever

13 tell Debo that if they're not done with the home and the

14 repairs by June 3rd, that you were walking from the

15 contract?

16 A. Never.

17 Q. July 24th, your home was complete?

18 A. (Nodding.) Yes.

19 Q. Is there anywhere in this entire timeline that

20 you told Debo Homes, "We're not going to let you make

21 the repairs"?

22 A. Never. We wanted them to make the repairs.

23 Q. Do you have any idea how Debo Homes was going

24 to make the repairs like their lawyer said, when the

25 home was complete? 53 1 A. We couldn't have -- no. Not once the drywall

2 went up, we didn't know how it was possible.

3 MR. CROCKETT: Thank you, Ms. Miller.

4 THE WITNESS: Thank you.

5 MR. CROCKETT: Your Honor, I pass the

6 witness.

7 MR. MARTINEZ: Judge, may I proceed?

8 THE COURT: You may.

9 MR. MARTINEZ: I apologize, one moment to

10 get my computer back up.

11 THE WITNESS: Sir, may I have water?

12 THE COURT: I'm sorry?

13 THE WITNESS: May I have water? I have

14 water there.

15 THE COURT: Yes, ma'am.

16 THE WITNESS: Thank you.

17 MR. CROCKETT: (Handing.)

18 THE WITNESS: Thank you.

19 CROSS-EXAMINATION

20 Q. (BY MR. MARTINEZ) Good morning, Ms. Miller.

21 A. Good morning.

22 Q. I'm a little confused. Now, I thought

23 throughout this whole transaction you were relying upon

24 that contract we've seen here in Exhibit 1 signed April

25 13th. Is that not correct? 54 1 A. That's the contract for financing.

2 Q. So, you're not suing Debo for breach of

3 contract based upon that contract?

4 A. Correct.

5 Q. So, you're saying that contract has nothing to

6 do with this case?

7 A. Correct. That's not the contract -- that's not

8 the contract that we're -- that's in question.

9 Q. Where is the other contract that's in question?

10 A. We don't have a copy of it.

11 Q. So, why did we just go through a bunch of

12 questions about this contract, if this is irrelevant to

13 you?

14 A. I don't know.

15 Q. Then why are you suing my client for breach of

16 contract when there's no contract?

17 A. I don't know. They asked us -- they had a

18 three-tier payment program that Kris came up with, and

19 he had it written down, he had it in writing.

20 Q. Where is that three-tier payment program in

21 writing?

22 A. I don't know.

23 Q. You just said it was in writing.

24 A. It was.

25 Q. Where is it? 55 1 A. I don't know.

2 Q. So, are you telling the ladies and gentlemen of

3 the jury that they should disregard that contract

4 entirely?

5 A. I suppose so.

6 Q. So, you're suing Debo based upon an oral

7 contract, then, if there's no contract in writing?

8 A. I'm not sure.

9 Q. Well, Ms. Miller, I'm sorry, but I do need you

10 to be sure.

11 A. I'm not a lawyer.

12 Q. Well, if you're not relying on that contract,

13 then what are you relying on? Because you're suing Debo

14 Homes for breach of contract. Where is the contract?

15 A. Kris had it.

16 Q. That's the first time I've heard that, Ms.

17 Miller.

18 A. Kris wrote down the three-tier program. He

19 came up with three payments, and he had written them

20 down on a contract.

21 Q. Like that? (Indicating.)

22 A. It was similar, yes, like that.

23 Q. And you signed it?

24 A. We did.

25 Q. You realize that in Texas, you have to have a 56 1 written contract to sue for issues involving property?

2 A. No, I'm not aware --

3 MR. CROCKETT: I'm going to object to a

4 lot of the legalese that Debo Homes' lawyer is trying to

5 ask about.

6 THE COURT: Overruled.

7 Q. (BY MR. MARTINEZ) Ms. Miller, if I started

8 asking you questions about this contract, you're telling

9 the ladies and gentlemen of the jury that I really

10 shouldn't be doing that?

11 A. (No response.)

12 Q. You understand the question?

13 A. Not really. Can you rephrase it?

14 Q. I know your lawyer went through the contract at

15 length, so is it unfair for me to go through the

16 contract and ask you questions as well?

17 A. I'm not sure.

18 Q. Ms. Miller, I'm not sure either. I'm just

19 confused, because I don't understand why we went through

20 that whole direct examination --

22 Q. -- talking about the contract, when you are

23 telling me right now that that is not the contract.

24 A. It's not. It's -- that one is in reference to

25 the financing. 57 1 Q. When was this other contract signed?

2 A. Three days later, on the 16th.

3 Q. Ms. Miller, I asked you in your deposition

4 before, did you read this contract fully, this one,

5 Exhibit 1.

7 Q. And you fully understood its terms?

9 Q. Since I don't have a copy of this other

10 contract, what terms are different between that and this

11 other contract?

12 A. The way the money is proportioned.

13 Q. Is that the only difference?

14 A. From what I -- from what I can recall,

15 possibly.

16 Q. So, is it fair for me to talk about this

17 contract and say it's the same as this other contract,

18 as long as I don't talk about that part, the sales price

19 portion? Is that the only difference, that circled

20 part?

21 A. That's one difference. I'm not sure if it's

22 the only difference.

23 Q. Well, Ms. Miller, I need to know, because this

24 is the first time I've heard this. I'm a little bit

25 surprised, and I'd like to be able to tell the ladies 58 1 and gentlemen of the jury what you signed and what

2 you're suing Debo for. Is that fair?

3 A. Yes, it's fair.

4 Q. Ms. Miller, would you care to look at Exhibit 1

5 in full and please tell us what's different between this

6 contract and this other contract signed three days

7 later?

8 A. Like I said, I believe it's primarily the

9 money.

10 Q. Okay. But I'm offering you the contract, if

11 you'd like to look it over and perhaps tell us what's

12 different, because this is the first time I've heard

13 this. I didn't get to discuss it in deposition, so this

14 is my only shot.

15 A. I can't -- after a year and a half, I can't --

16 I can't tell you each and every aspect that might be

17 different, but I believe it's primarily just the money

18 aspect.

19 Q. Okay. Well, let's go ahead and break it down

20 then and see if we can figure out what's different and

21 what's new right here, today in this courtroom for the

22 very first time.

23 Now, Ms. Miller, your attorney went over

24 this section with you a while ago, isn't that correct,

25 No. 19? 59 1 A. Yes.

2 Q. Is this the same in both contracts?

3 A. I believe so.

4 Q. Now, is it true that says that all

5 representations and warranties must be in writing?

6 A. It does say that.

7 Q. So, you've been talking a lot today about how

8 Kris and Debo made a lot of oral representations to you

9 during the negotiation phase, correct?

11 Q. Well, then why did you sign a contract with

12 that clause in there, if you were relying upon oral

13 representations?

14 A. Because when you choose your items for a home,

15 they're not in that contract. You go through and you

16 choose a stove. That's not in there. And that's why

17 they have a model, so you can choose a stove, and

18 efficient HVAC, high-energy AC unit, and so they can

19 show you what they offer. So, you know what you're

20 going to get in your home, or they wouldn't show you a

21 model home. And when they tell you this is this and

22 this is that. And then they show you tile samples and

23 they show you other samples, and when you ask, "Am I

24 going to get that," and they say yes, you expect to get

25 exactly that. 60 1 Q. I think my question is a little bit different.

2 I agree that, you know, if you choose a stove or a color

3 of roof, that's a separate, you know, detailed home

4 selection chart. I'm asking you about those

5 representations that Kris made to you, like you'll love

6 the home; we'll have a superintendent there at all

7 times; you know, we'll fix everything immediately.

8 Where is that written down?

9 A. (Reading.) It's not in there.

10 Q. Well, is it true?

11 A. I do know Debo advertises that they use the

12 highest quality workers.

13 MR. MARTINEZ: I'll object as

14 nonresponsive.

15 THE COURT: Sustained.

16 Q. (BY MR. MARTINEZ) Well, Ms. Miller, you said

17 you read this contract from A to Z, or you read through

18 the entire thing, correct?

20 Q. And you understood it?

22 Q. And you accepted all of its terms?

24 Q. And you had a realtor there to look it over for

25 you? 61 1 A. Yes, who is a friend, yes, a friend.

2 Q. But you did have a realtor read over the

3 contract and explain some things to you?

4 A. Yes.

5 Q. That leads me to my question, Ms. Miller: Why

6 are you relying upon oral statements, oral statements?

7 If you had a realtor read it over to you, you read the

8 whole thing, you understood it and you're relying upon

9 those representations, then why did you agree to that

10 clause, No. 19?

11 A. (Reading.) Because it says -- we never

12 expected --

13 Q. I'm sorry?

14 A. We trusted Kris. At that point, he still had

15 our trust. We trusted everything he was telling us. We

16 asked questions, he said everything right. We asked --

17 we had -- I had a long page of questions. He gave us

18 all the right answers. Our friend, Stan, the realtor,

19 asked questions. He gave him all the right answers.

20 Q. Ms. Miller, also there's another thing in

21 paragraph 19 I'd like to point out. I didn't mean to

22 write over that. Would you mind reading the underlined

23 portion?

24 A. It says, "Seller may continue to show the

25 property and receive, negotiate and accept backup 62 1 offers."

2 Q. And you agreed to that condition?

4 Q. Twice, actually?

6 Q. And you fully understood what that meant?

8 Q. So, why are we now in this court having you

9 complain about Debo selling the home to someone else, if

10 you agreed to that?

11 A. We're here because we weren't offered our money

12 back at the point --

13 MR. MARTINEZ: I'll object to

14 nonresponsive, Judge.

15 Q. (BY MR. MARTINEZ) My question is: Why are you

16 complaining about the home being sold to someone else

17 when it's in the contract that they're allowed to do

18 that?

19 A. (No response.)

20 THE COURT: Can you answer the question?

21 A. I'm sorry, can you rephrase?

22 Q. (BY MR. MARTINEZ) Sure. The question is: Why

23 are you complaining that Debo Homes sold the house to

24 the Benges and not you when this contract explicitly

25 says Debo may do that? 63 1 A. We're here because we were never given an

2 opportunity to fix the problems, to get to that point,

3 to even negotiate to that point. As I see, this says

4 negotiate and accept backup offers. We were never given

5 that opportunity to negotiate. We were never given

6 opportunity whether that was a backup or a go-ahead. We

7 were never given opportunities.

8 Q. Ms. Miller, my question is: Why wasn't Debo

9 allowed to talk to the Benges or anyone else in the

10 community about selling this home?

11 A. They were allowed.

12 Q. Then what's the problem with Debo selling the

13 home to the Benges?

14 A. We just didn't know about it until this past

15 May, and then they still kept our money.

16 MR. MARTINEZ: I'll object as

17 nonresponsive to the "kept our money."

19 Q. (BY MR. MARTINEZ) Ms. Miller, you're

20 complaining that -- now, you're complaining that you

21 didn't know that the home was sold to someone else until

22 May?

24 Q. And who did you expect to tell you that

25 information? 64 1 A. Well, we would have liked for Debo to tell us.

2 Q. I agree, but as of the time the contract was

3 agreed to with the Benges, which is October, and the

4 time that the home was finally sold to the Benges, which

5 was New Year's Eve, 2013, at that point, isn't it true

6 that you had already filed this lawsuit?

8 Q. Well, isn't it also true that you told Debo,

9 "Don't contact me"?

11 Q. Well, then how do you expect them to tell you

12 what happened to the home?

13 A. I would expect them to tell our attorney.

14 Q. To tell your attorney, not you?

16 Q. I want to make that clear.

17 A. Thank you.

18 Q. So, Ms. Miller, you had no problem with Debo

19 selling the home to the Benges, a third party, right?

20 A. Not after all the -- not after all that time

21 had gone by.

22 Q. So, it's perfectly fine that they sold it to

23 someone else for a lower price?

24 A. Not after they didn't make the house the way we

25 wanted it, put carpet in it. 65 1 Q. Ms. Miller, I just wanted to know whether or

2 not you're going -- if you're telling the jury is it

3 okay for Debo to sell the home to someone else. Is it

4 okay or not, according to you?

5 A. Because it wasn't the house we wanted anymore,

6 yes, it's okay, later on.

7 Q. Ms. Miller, I'd like to talk about the default

8 provision in this contract. Well, first of all, take

9 your time reading it. Is it different from this

10 contract and from this other contract you just told us

11 about?

12 A. I don't know for sure. I'd have to -- I can

13 guess it might be the same.

14 Q. Well, would you mind reading it to the jury?

15 A. No, I don't mind. "If buyer fails to comply

16 with this contract, buyer will be in default, and seller

17 may: A, enforce specific performance, seek other relief

18 as may be provided by law, or both; or B, terminate this

19 contract and receive the earnest money as liquidated

20 damages, thereby releasing both parties from the

21 contract. If seller fails to comply with this contract,

22 seller will be in default, and buyer may: A, enforce

23 specific performance, seek such other relief as may be

24 provided by law, or both; or B, terminate this contract

25 and receive the earnest money, thereby releasing both 66 1 parties from this contract."

2 Q. Now, having read that, do you have a better

3 recollection of whether that's the same in this contract

4 as well as in the other one?

5 A. I'll say it's the same.

6 Q. Okay. You understand that if Debo's found to

7 be in breach or you're found to be in breach, the

8 breaching party has to forfeit the earnest money,

9 correct?

11 Q. And how much was the earnest money?

12 A. $1,000.

13 Q. We touched upon this topic a little bit, but I

14 think it would be helpful if you wouldn't mind reading

15 Section F to the jury.

16 A. "Completion of repairs, treatments and

17 improvements. Unless otherwise agreed in writing,

18 seller shall complete all agreed repairs, treatments and

19 improvements," parentheses work, "prior to the closing

20 date. All required permits must be obtained and work

21 must be performed by persons who are licensed or

22 otherwise authorized by law to provide such work. At

23 buyer's election, any transferable warranties received

24 by seller with respect to the work will be transferred

25 to buyer at buyer's expense. If seller fails to 67 1 complete any agreed work prior to the closing date,

2 buyer may exercise remedies under Paragraph 15 or extend

3 the closing date up to 15 days, if necessary, for seller

4 to complete work."

5 Q. Do you recall if this section is the same in

6 this contract as well as this other contract?

7 A. I don't recall exactly, but it may be.

8 THE COURT: Ladies and gentlemen of the

9 jury, let's go ahead and take our morning break at this

10 time. If you would please be back in the jury room at

11 10:45.

12 (Jury out)

13 THE COURT: Counsel, see y'all back at

14 10:45.

15 (Short break)

16 (Jury in)

17 THE COURT: Be seated. You may continue.

18 MR. MARTINEZ: Thank you, Judge.

19 Q. (BY MR. MARTINEZ) Ms. Miller, before we took a

20 break, I believe we were talking about Section F, about

21 completion of repairs, treatments and improvements. I

22 believe you just read that section to the jury, then we

23 took a break. And do you recall whether or not that

24 section is the same in this contract as well as the

25 other contract? 68 1 A. I believe it's probably the same.

2 Q. So, then Debo was allowed to repair any

3 problems before closing?

4 A. Yes. It says they shall complete the problems.

6 Q. Correct. Now, Ms. Miller, earlier today you

7 testified that there's a three-tiered payment structure?

8 A. Yes, it was three phases, three phases,

9 three-tier payments, that was written down in -- that

10 Kris wrote up for us in the contract, yes.

11 Q. Ms. Miller, do you ever remember testifying

12 differently about that?

13 A. About the three different --

14 Q. About how the payment structure works?

15 A. No. We first went for financing. We didn't

16 get it. And when we couldn't get the financing, we went

17 back and --

18 MR. MARTINEZ: I object as nonresponsive.

19 Q. (BY MR. MARTINEZ) My question was just whether

20 you remember testifying differently, yes or no.

21 A. Can you rephrase the question then?

22 Q. Sure. My question was: First, you testified

23 earlier today that -- and yesterday that there was a

24 three-tier payment structure.

25 A. Yes, I did. 69 1 Q. Now, do you ever remember testifying

2 differently about how that structure was set up?

3 A. I don't recall.

4 Q. Do you recall that on May 8th, 2014, we took

5 your deposition in your lawyer's former office?

7 Q. Do you remember me asking you how the second

8 payment was going to be?

9 A. Yes, I remember that.

10 Q. And what was your response?

11 A. I believe I said we were set to pay at the time

12 of drywall.

13 MR. MARTINEZ: Judge, at this point, I'd

14 like to show her deposition excerpt, and it does

15 contradict that testimony.

16 THE COURT: You may.

17 Q. (BY MR. MARTINEZ) Ms. Miller, the question was:

18 "So, when was the second payment supposed to be?"

19 Your answer: "I'm not sure."

20 So, why did you just tell the ladies and

21 gentlemen of the jury that you told me in your

22 deposition about the payment structure?

23 A. Well, I knew we had an agreement about payment

24 structure. We had talked about how much to pay and how

25 much I was going to pay in which phases. 70 1 Q. Ms. Miller, did you not understand the question

2 when I asked it on May 8th?

3 A. I did.

4 Q. Then why did you not tell me about how the

5 payment structure was supposed to work?

6 A. I'm not sure.

7 Q. You're not sure?

8 A. No.

9 MR. CROCKETT: Judge, we would just object

10 as far as mischaracterizing. If we can get some time

11 context about the question, was he asking when during

12 the exact time period was the second payment supposed to

13 be made, or this is when the contract says? I can clear

14 it up on the other side, but here he's actually saying

15 when during the construction.

16 MR. MARTINEZ: That's not what it says. I

17 asked her if she understood the question. She said yes.

18 MR. CROCKETT: All right. We'll clear it

19 up.

20 THE COURT: Overrule the objection.

21 Q. (BY MR. MARTINEZ) So, Ms. Miller, why are you

22 giving the jury different testimony?

23 A. I don't believe I am.

24 Q. Well, you testified back then that you didn't

25 know the payment structure. You testified yesterday and 71 1 today that you knew the payment structure. Then you

2 just told the jury that that's really not what you said

3 in your deposition. So, are you not being truthful?

4 A. I am being truthful.

5 Q. Well, maybe it's just the fact that your

6 lawyer's been telling you what to say at trial?

7 A. That's not true. I'm not sure if on that --

8 during the deposition, they were asking me for a

9 specific date, and I might have thought you were asking

10 me for a specific date, because there was no specific

11 date set up.

12 Q. So, now you're telling me that you were

13 confused about that question, based on what your lawyer

14 just objected to?

15 A. You were asking an awful lot of questions.

16 MR. CROCKETT: We object to the --

17 MR. MARTINEZ: She's changing her

18 testimony based upon what he just said to the Court.

19 THE COURT: Overruled.

20 Q. (BY MR. MARTINEZ) You just heard your lawyer

21 say that you may have been confused and you may not have

22 understood that question. You heard him say that?

24 Q. And you heard me ask you whether or not you

25 understood that question, and you said yes, right? 72 1 A. Yes.

2 Q. Now, you're telling me that, well, maybe that

3 question meant something else. Didn't you just say

4 that?

5 A. It depends what it was -- what the prior

6 questions were in reference to.

7 Q. Isn't that what your lawyer just said? Is it?

8 A. It is.

9 MR. MARTINEZ: I object to side-bar,

10 Judge.

12 Q. (BY MR. MARTINEZ) Now, Ms. Miller, on May 21st,

13 2013, you told them in an e-mail what repairs they

14 needed to make?

16 Q. Let's go ahead and get that e-mail. Ms. Miller

17 is that indeed the e-mail you sent Debo on May 21st, or

18 a portion of it?

19 A. That's part of it, yes.

20 Q. And that's the rest of it, correct?

21 A. Yes, yes.

22 Q. Now, in that e-mail, you specifically pointed

23 out what repairs you wanted Debo to make?

25 Q. And you told Debo that you wouldn't give them 73 1 anymore money before they made those repairs?

2 A. Those, and then I wrote, "The above are a quick

3 list and may not include all of the problems.

4 Therefore, we will not be limited to these lists." And

5 it's right there in that paragraph below, right in

6 the --

7 MR. MARTINEZ: I'll object as

8 nonresponsive.

9 Q. (BY MR. MARTINEZ) My question was, yes, whether

10 or not you said once you make these repairs, you'll

11 submit more funds?

12 A. No, that's not.

13 Q. That's not what it says?

14 A. No, there's more.

15 Q. Okay. I agree, but I'm just asking you whether

16 or not you told Debo that once they make the repairs in

17 those lists, along with other repairs, then you would

18 submit more funds?

19 A. On this note, there's more.

20 Q. More repairs?

21 A. Well, it depends -- we have to check to make

22 sure everything -- that it's done.

23 Q. Because it says here you will not be limited to

24 those lists, right?

25 A. Yes. 74 1 Q. That's what you mean?

3 Q. Okay. I'm just getting at, once those repairs

4 are made, whatever repairs are made, you agreed to give

5 Debo the second payment?

6 A. Not those repairs. It has to be -- the house

7 has to be done and checked, and then we would agree.

8 Q. So, now the house has to be completely done

9 before you give another payment?

10 A. I didn't say completely done.

11 Q. Ms. Miller, I just want to know when would you

12 be submitting the second payment?

13 A. Just prior to drywall, just as the drywall was

14 ready to go in.

15 Q. And once repairs were made?

17 Q. Okay. But the very next day, May 22nd --

19 Q. -- your lawyer told Debo to cease construction

20 completely.

22 Q. How can they make repairs if they're not

23 working?

24 A. They weren't working -- they weren't making

25 repairs all along. 75 1 Q. No, my question is: If you tell them to stop

2 working completely, how are they supposed to go in the

3 house and make the repairs?

4 A. We needed to get an inspection.

5 MR. MARTINEZ: Objection, nonresponsive.

7 Q. (BY MR. MARTINEZ) Ms. Miller, your attorney

8 told Debo to stop working on May 22nd.

10 Q. The day after you told Debo to make repairs.

11 A. Yes.

12 Q. When was Debo supposed to make those repairs,

13 then, if you told them to not do any more construction?

14 A. I don't know. The drywall had already gone in.

15 Q. Well, isn't that a little contrasting? On one

16 hand, you're asking Debo to make repairs immediately,

17 and you'll pay them. Now, on the other hand, your

18 lawyer's telling them to stop, don't do anything.

19 A. I agree it is contrasting, because they weren't

20 supposed to get put the drywall in until they got paid

21 to put the drywall in.

22 Q. I'm still getting mixed signals. Which is it,

23 repair and go on, or stop?

24 A. They were already past the point that they were

25 supposed to be -- 76 1 Q. I'm sorry.

2 A. -- so we had to tell them to stop.

3 Q. So, you're saying that one day difference is

4 what matters? That on May 21st, you're saying repair

5 it, but on May 22nd, they were past the deadline to make

6 repairs?

7 A. They wouldn't listen to me, so I had to involve

8 an attorney.

9 Q. Over the span of -- so, you sent your e-mail,

10 let's see, 5:38 p.m., May 22nd, correct?

12 Q. And your lawyer sent his e-mail the very next

13 day, May 22nd, 1:38 p.m.?

15 Q. So, you went out and found a lawyer within less

16 than 24 hours; yes or no?

18 Q. Ms. Miller, I still am confused, because at

19 5:00 p.m. on May 21st, you told Debo, "Y'all make these

20 repairs, then we'll continue on our relationship,"

21 correct?

23 Q. Well, what happened between 5:00 p.m., may 21st

24 and 1:38 p.m., May 22nd?

25 A. Kris pressed us for $59,300. 77 1 Q. How did he do that?

2 A. By contacting us directly and that -- there was

3 no indication he was going to make the repairs. He told

4 us, "We'll make some of the repairs, but we won't make

5 all of them."

6 Q. This all happened between 5:00 p.m., May 21st

7 and 1:38 p.m., May 22nd? That's all I'm asking about.

8 A. Well, I don't know if it all happened that

9 evening, but we were contacted that evening, asked for

10 the money.

11 Q. So, one thing that happened to shatter your

12 confidence between 5:00 p.m., May 21st and 1:38 p.m.,

13 may 22nd, was one phone call from Kris?

14 A. I don't know if it was just one phone call.

15 Q. What else was it?

16 A. Our confidence -- I don't know, but he

17 continued to ask for the money, when we asked for them

18 to stop continuation and start making repairs, and they

19 continued with the process -- with the building, they

20 continued moving on with the building instead of going

21 -- fixing problems that had already occurred.

22 Q. Ms. Miller, I'm just asking about between 5:00

23 p.m., May 21st and 1:38 p.m., May 22nd. So, you're

24 saying all that happened between that span of time?

25 Because a lot happened. You went and got an attorney 78 1 and told Debo to stop working. I just want to figure

2 out what made that switch. What changed? That one

3 phone call from Kris?

4 A. I don't know if it was just one phone call. I

5 just know, rather than take our continued problems and

6 continue asking for them to fix the problems seriously,

7 they just wanted us to pay.

8 Q. Ms. Miller, you testified earlier today that

9 Kris texted you a demand for payment.

11 Q. Well, let's look at those text messages. Now,

12 I would like to go through all these, because I think it

13 establishes what relationship you had with Kris. Would

14 you agree?

15 A. Sure.

16 Q. Would you mind reading the first one from April

17 17th, 3:37 p.m.?

18 A. Sure. "Kris, was thinking about cabinets. We

19 didn't choose them, prefer cherry versus maple or

20 walnut, et cetera. I know you said they would be the

21 same as the home we were in, but what about the

22 bathrooms, laundry room, et cetera? We prefer natural

23 wood, same as kitchen, not painted wood. Thanks, Lori &

24 Ellie."

25 Q. How about that response from Kris? What did it 79 1 say?

2 A. He says, "I have to put some type of finish on

3 them."

4 Q. And y'all's response?

5 A. And I wrote, "Yes, was referencing the cherry

6 cabinets in the kitchen we saw versus paint."

7 Q. And you clarified?

8 A. And "My misuse of the word 'natural,' my

9 meaning is didn't want painted. We like cherry wood.

10 Sorry if it was confusing to you, Lori."

11 Q. Then Kris responded?

12 A. "Okay. Light or dark?" And "I think dark

13 prettier. Your thoughts?" "Walnut Creek home has dark,

14 doesn't it?" And he wrote, "Medium. Dark is real

15 nice." "Dark would be good then, nice contrast for the

16 light granite, too. Thank you so much."

17 Q. So, it seems at this point y'all talked about

18 some specific things you wanted in the home right?

20 Q. And Kris said, you know, we'll stain it however

21 you want it, right?

23 Q. Okay. Let's move on to the next one there at

24 the top of the page.

25 A. I wrote, "Good morning, Kris. Wanted to make 80 1 sure my mom got things right with you yesterday. The

2 bathrooms are going to have to cherry cabinets with

3 granite tops too, right?" From Ellie.

4 He wrote, "No. Just the kitchen will have

5 cherry but it will have granite."

6 So, then we wrote, "What color in the

7 bathrooms? Can you please call me because I'm driving?"

8 Q. And what did y'all discuss, or was there a

9 phone call after that?

10 A. I have to suppose so, because the next text

11 isn't for a few days.

12 Q. Do you recall what y'all talked about on the

13 18th?

14 A. I'm going to just figure we talked about colors

15 and stuff.

16 Q. Okay. How about that one?

17 A. "Thanks for lunch. Have you found out the

18 dimensions for the fridge space? Was wondering what

19 kind of height there was for washer and dryer."

20 He says, "Just go buy it and send me

21 dimensions, and we will build around it."

22 "Very cool, thanks."

23 Q. So, y'all went to lunch?

25 Q. So, Kris took y'all to lunch, and y'all had a 81 1 pleasant afternoon, I guess?

2 A. It was.

3 Q. How does it -- go on right here. What's that

4 read?

5 A. "Washer and dryer, stacking washer is 27 width

6 by."

7 Then he wrote, "They won't fit." So,

8 okay, then we rewrote it.

9 Q. You just clarified the dimensions?

11 Q. Is it fair to say that these text messages were

12 either from you or your daughter?

13 A. Yes. Depending on who was driving at the time,

14 the opposite person was texting. We don't text and

15 drive.

16 Q. Well, very good, but these are both your

17 representations, correct?

19 Q. Okay. How about that text message?

20 A. The one at the top?

21 Q. Yes, ma'am.

22 A. He says, "Just buy them and bring them to me or

23 have them delivered to my main office" on F.M. 2977.

24 Q. And y'all are talking about the washer and

25 dryers? 82 1 A. I believe it was just all the appliances,

2 actually. It was just going to be all the appliances

3 delivered to the house.

4 Q. Okay. How about the next one?

5 A. Okay. "Don't want them delivered" -- and he

6 says, "Free delivery included."

7 And he wrote, "What?"

8 "We are on our way."

9 "Okay, I'm not there. Open the gate and

10 get them."

11 "Okay. Are you at the office? We have

12 the ceiling fans."

13 "Just leave them at my main office."

14 "Okay."

15 "Thanks for the boxes, left fans at your

16 office."

17 "Okay."

18 "Did you remember to mark them

19 accordingly?"

20 "Yes, with the name, address and room."

21 "Okay."

22 Q. Okay. So, you bought some fans, and you took

23 them to Debo's office?

25 Q. And you paid for those out of your own pocket? 83 1 A. We did.

2 Q. And Debo installed them in the house?

3 A. Evidently, they did, from what we could see.

4 Q. Those are those specific fans you wanted,

5 right? You chose the model, the style?

6 A. We bought them. Well, we bought two of the

7 three. One was a gift from my dad.

8 Q. But those are fans you wanted in the house?

10 Q. Okay. Let's start back up here.

11 A. "Good morning, sorry we missed your call

12 earlier."

13 "Kris, didn't get pic."

14 "What's your e-mail?"

15 "Got it this time."

16 "Oh, got the one we picked?"

17 "Well, they were sent at the same time, so

18 it will show up."

19 "Got it. Looks nice, tricolor."

20 "Okay. I'll order it then."

21 "Thanks."

22 "Do you have an e-mail I can send pics to?

23 Too much for my phone to send. Thanks."

24 "Will you meet me at the house this

25 morning?" 84 1 Q. Real quick, before we move on, what were y'all

2 talking about? Pictures there, that you mentioned

3 sending the picture and tricolor, what were y'all

4 talking about?

5 A. Roof colors.

6 Q. And y'all chose a gray roof, I believe?

8 Q. What color was it?

9 A. The original roof color that we chose was like

10 kind of a medium to dark brown. It was like a tricolor.

11 Q. So, you're saying that that's the color you

12 wanted on the home, was sort of a brown color?

13 A. Yeah, it was sort of a brown, a medium to dark

14 brown, the original roof color that we chose.

15 Q. Okay. Then we get in some texts about the

16 inspection. Mind reading this?

17 A. Sure. "Good morning. Please let us know when

18 they man to put in the sheetrock and insulation. Our

19 inspector, Mr. Knueppel, needs to go through the house

20 again before it is installed. Thanks."

21 Kris wrote, "Okay. Tell him to be there

22 Monday."

23 "Okay. Thanks, I will."

24 "Mr. Knueppel would like to see the house

25 after insulation and before the sheetrock. When do you 85 1 think that will be? Still Monday? Appreciate you

2 working with us on this."

3 "He has until Monday to complete his part

4 because we're sheetrocking Tuesday."

5 "Okay. Thanks so much."

6 Q. Would you mind going on?

7 A. "No worries." "Happy Mother's Day."

8 "Thanks, appreciate the wishes."

9 "Do you know if they got the insulation

10 completed yet? Thanks."

11 "All I was told that they started between

12 2:00 and 3:00, and that's it. I know they will finish

13 today, but not a time of completion."

14 "Okay. Thanks for info. Have a good

15 evening."

16 Q. Okay. Here's another set of text messages.

17 So, there's one from your daughter's phone and one from

18 your phone?

19 A. Um--

20 Q. Because these start --

21 A. I suppose so.

22 Q. Okay. So, let's go ahead and go down each of

23 them.

24 A. Okay. "The back door with the window will not

25 fit our dog door. The space is only three feet. We 86 1 need three feet, eight inches. We would like a door

2 without a window."

3 "Noticed the hot water heater was

4 installed. I never got a price for a tankless hot water

5 heater" -- "tankless water heater. Please let me know

6 why."

7 "Good morning. Did you get my message

8 about the water heater? The difference is $900."

9 "Thanks for the quote. I'm thinking it

10 through. I've decided against the tankless water

11 heater. Since the hot water heater is already

12 installed, we will need floored access to the water

13 heater. Thanks again."

14 "Don't worry about the other water heater.

15 That was my bosses fault. We can put in the tankless

16 water heater. He apologized for the mistake."

17 "It's okay to leave the hot water heater.

18 Because of this heater's location, I would prefer to

19 have the attic floored for easier access. Thanks."

20 "Okay."

21 Q. Okay. Let's go on.

22 A. "Please let me know when the insulation is

23 completed. I would like to come out to the house

24 tonight."

25 "They will start at 2:00 and will be 87 1 finished today," 5/13.

2 "Thanks."

3 "No worries."

4 "Talked about the garage being climate

5 controlled. Noticed there wasn't insulation in the

6 garage. What can we do to fix it?"

7 "Garage has to be insulated. How much

8 would it cost?"

9 "I'll ask and tell you tomorrow."

10 "Thanks."

11 "Have you found out how much it will cost

12 to install insulation?"

13 "Waiting on a call back from the owner."

14 "$400."

15 "Okay. And this price includes attic over

16 garage, too?"

17 "I'm sorry, I thought you just wanted

18 ceiling done, but you want all the walls, it will be

19 $800."

20 "That seems high. Going to check some

21 prices. We'll get back with you."

22 "Well, they're going to sheetrock the

23 house tomorrow. The reason it's a little high because

24 they have to go back to the house. It would have been

25 cheaper were if it" -- something. 88 1 Q. I think it continues on.

2 A. Oh, sorry. "If it had been scheduled a week

3 prior." He says, "Can you please call me because they

4 are showing up today and not tomorrow to sheetrock the

5 house. My boss said he'll knock off a hundred dollars

6 if you want to do it."

7 Q. And that's all the text messages, correct?

9 Q. Well, where in that does it say Kris is

10 demanding payment from you?

11 A. He called us.

12 Q. No, you just said to this jury that he texted

13 you.

14 A. I said he contacted us.

15 Q. Your testimony on that record says that he

16 texted you a demand for payment. Is that not true?

17 A. He did contact us. He contacted us. I know he

18 called us with demand for payment. He contacted us.

19 Q. But he didn't text you; yes or no?

20 A. I don't see it there.

21 Q. Now, Ms. Miller, before you retired, you were

22 an accountant?

23 A. Not a CPA.

24 Q. Have you had any formal training in

25 construction? 89 1 A. No.

2 Q. Have you ever been taught how to identify

3 construction defects?

4 A. No.

5 Q. So, you admitted that a lot of these

6 construction issues are simply beyond your expertise?

7 A. I just know things didn't look right. That's

8 why I hired an inspector.

9 Q. And reviewing the construction of a new home,

10 that's something new to you, right?

11 A. Not brand new.

12 Q. I think you said you had a home built for you

13 up in Ohio a few years ago?

14 A. Yeah. Back in the Eighties, yes.

15 Q. But it's not an everyday or common occurrence

16 for you to participate in the home building process?

17 A. That's true.

18 Q. Now, during the contract negotiations, whether

19 we're talking about the first contract or the second

20 contract, you only spoke to Kris?

22 Q. And yesterday and today, I believe you said

23 that you only met with Kris twice?

24 A. That's not -- no. What I said was we met twice

25 to sign the original contract. 90 1 Q. What's the rest of that story?

2 A. Well, we met with him many more times, whether

3 it was to pick colors or to pick granite tops or look at

4 problems, or even just for lunch. We met many, many

5 times. I can't count how many.

6 Q. So, probably more than a dozen?

7 A. That's possible.

8 Q. And it took, you know, about a dozen times or

9 more or less to finally decide on a contract that you

10 were happy with, right?

11 A. No, not to decide on a contract, to make all

12 those choices. There's many choices to make in a home,

13 whether you want this color of paint on the walls or

14 that -- that kind of facade, whether you want the hip to

15 go this way or that way. There's just so many choices.

16 So, you meet with your builder or your representative of

17 the builder to make those choices, and he invites you to

18 do that as many times as you need.

19 Q. That's fair. You had a lot of questions, you

20 asked questions from A to Z?

22 Q. Because you wanted to be personally comfortable

23 with what you were signing?

24 A. And he did that at the first -- those two

25 meetings, those first two meetings. 91 1 Q. So, the first two meetings were different from

2 the other meetings that happened after?

3 A. Well, those first two meetings had to do with

4 just the initial contract.

5 Q. Now, you weren't rushed into signing either the

6 contract we've seen in Exhibit 1 or this other contract

7 that we learned about today?

8 A. I -- I felt a little bit almost -- because, I,

9 mean, he wanted to get go. He just kept saying, "We can

10 get you a great house." I wanted to get the financing.

11 We couldn't get the financing because I'm on a fixed

12 income, and my daughter is commission only. So, with

13 the new financing laws, they wouldn't approve us. They

14 knocked us out from the get-go. And we've got a great

15 credit score, but that doesn't matter anymore. So, at

16 that point, we sat down and talked about it, and he knew

17 that I had this money put away for all these years, and

18 he said, "Oh, no, we can work out -- we can work this

19 out. We sell all these homes." And I did feel

20 pressured into buying right away with this three-tiered,

21 three-phase program.

22 Q. Do you ever remember testifying differently?

23 A. I may have. I might not have remembered then.

24 Q. As I mentioned before, the deposition, May 8th,

25 correct? 92 1 A. Yes.

2 Q. Do you remember I asked you, "Were you rushed

3 into signing it at all, you know, coerced into signing

4 this at all?" Your answer was no. You disagree with

5 that?

6 A. I was not rushed into signing the financing

7 contract.

8 Q. So, it was different from the other contract?

9 A. Well, that one moved quite quicker. That one

10 seemed to -- in my recollection, it moved a little

11 quicker.

12 Q. And you also said that you signed the finance

13 contract?

15 Q. Freely and openly?

17 Q. Different for the cash one?

18 A. Well, I signed that freely, but he answered --

19 he had all the right answers. We were getting exactly

20 what was in the model, we were getting the exact AC

21 unit, exact cabinets. Everything was exact.

22 Q. Well, you testified before that you had Stan,

23 your friend, who was also a realtor?

25 Q. He read over the financing contract, we'll call 93 1 it, completely, right?

3 Q. Did he do the same with the other contract?

4 A. No, he wasn't there with us.

5 Q. Now, you've alleged that Kris made numerous

6 representations to you during the contract negotiations

7 and after the contract was signed?

9 Q. Whether it be the financing contract or the

10 cash one?

12 Q. And Kris promised you, you said, that he'd give

13 you a house you'd be comfortable with?

15 Q. He said Debo would fix what needed to be fixed?

16 A. He said we'd fix everything.

17 Q. Kris promised that the home was 100 percent

18 guaranteed; that's according to your testimony?

20 Q. And you've previously testified that that was

21 it, that's all he said to you as far as representations

22 and warranties, correct?

23 A. I may have. I'm not sure.

24 Q. Those, I think, four things I just said?

25 A. Okay. 94 1 Q. That's all you told me before. But now you're

2 telling us about a lot more representations here in this

3 courtroom today, correct?

4 A. You're asking more questions, different

5 questions.

6 Q. No. The question is what representations and

7 warranties did Debo make to you? Now, I asked you that

8 question in your deposition. Do you remember?

10 Q. And you responded he said -- you said that Kris

11 said he represented that you'd get a home that you'd be

12 100 percent guaranteed, personally satisfied,

13 comfortable with, that he'd fix what needed to be fixed,

14 and that's it. those are the only representations you

15 identified, right?

16 A. Okay.

17 Q. Well, then why are we having these new

18 representations brought up in court today? Why didn't

19 you tell me back then?

20 A. You didn't ask to identify what -- what 100

21 percent completely satisfied means.

22 Q. Well, that's not what I'm getting at. I want

23 to know what Kris said to you. However you interpret

24 it, that's not what I'm asking. That's up to you. I

25 just want to know what Kris said. 95 1 A. He said they would have high quality. He said

2 that they would have high-quality work. He told us that

3 they would have supervised -- that there would be

4 supervised -- they would be supervised while they're

5 there, and he explained that there would be inspections,

6 building inspections along the way, and he told us if

7 there was any problems, they'd be fixed before the next

8 phase. That's what he told us.

9 Q. And those are warranties?

11 Q. Well, do you ever remember testifying

12 differently?

13 A. I may have.

14 Q. And why is that?

15 A. Because I couldn't recall at that time. I was

16 asked a lot of questions.

17 Q. Well, it's a little inconvenient that I took

18 your deposition for almost six hours, and I expected to

19 get the full truth about all the facts in this case. I

20 come here today, it's August 20th, and I get a different

21 answer. Is that fair?

22 A. I don't think it's a different answer. It's

23 what I recall.

24 Q. So, your memory's gotten better in May to

25 August, even though all the events happened spring of 96 1 '13?

2 A. Actually, yes, because I was going through

3 menopause, and I'm taking black cohosh. It helps.

4 Q. Ms. Miller, how can you expect Debo to prepare

5 a defense if they really don't know what's coming?

6 A. I don't know. I'm not a lawyer.

7 Q. I'm trying my best.

8 THE COURT: Counsel, we don't need any

9 side-bar remarks.

10 MR. MARTINEZ: Yes, Judge.

11 Q. (BY MR. MARTINEZ) Now, did Debo fix all things

12 that you wanted them to fix before June 3rd?

13 A. All things?

14 Q. Correct.

15 A. No.

16 Q. How do you know that?

17 A. Because when we walked around the property, we

18 could see there were still things that weren't right.

19 We walked around the property prior to inspection, and

20 there was still a couple of things that were still --

21 that didn't look exactly right from -- we didn't go

22 inside, because the building was -- you know, the house

23 was closed. And this was in July. But there were still

24 a couple of things that didn't look right to us.

25 Q. Okay. So, you walked around the house in July? 97 1 A. Yes.

2 Q. Do you recall a better date?

3 A. No. It was just prior to when would he thought

4 our building inspector or building expert was going to

5 be getting out there.

6 Q. Well, you were there in July. When was the

7 time that you were there previously to that? When was

8 the last time?

9 A. End of May, after the 22nd.

10 Q. Because that's when your lawyer sent the e-mail

11 telling Debo to stop?

12 A. Possibly. No -- I don't -- I don't believe so.

13 I'm not sure.

14 Q. So, you don't know when the last time you were

15 at the home before the time you were there in July?

16 A. Not really, no.

17 Q. Well, if your lawyer told them to stop, told

18 Debo to stop working on May 22nd, how do you know they

19 didn't stop working?

20 A. I had been out there in the beginning of June.

21 We -- and they continued. I apologize.

22 Q. So, you were there in June?

24 Q. Can you give me a better date?

25 A. No. I really can't give you an exact date. 98 1 Q. Well, what did you see when you went there in

2 June?

3 A. They were continuing construction.

4 Q. Well, that date is sort of important, Ms.

5 Miller, because there will be testimony in this case

6 about when construction restarted.

7 A. It was -- I believe they -- they may have

8 stopped for a couple of weeks, maybe two weeks, and then

9 they continued again.

10 Q. Do you remember testifying differently?

11 A. I don't recall.

12 Q. Well, earlier today you said that Debo did not

13 stop construction.

14 A. Okay.

15 Q. Now, you're saying they did stop construction.

16 Isn't that what was said?

18 Q. So, you hired this Mr. Harold Knueppel,

19 correct?

21 Q. Because you wanted a different point of view

22 about how things were going?

24 Q. If you wouldn't mind just letting me finish the

25 whole question, then answer. 99 1 A. (Nodding.)

2 Q. So, you just wanted an additional point of view

3 on how construction was going?

5 Q. In fact, you wanted another point of view

6 outside of Mr. Knueppel, didn't you?

7 A. Well, I wanted Mr. Knueppel, because I saw

8 things that weren't right, and I'm not an expert. And I

9 thought, well, if it doesn't look right to me, I need

10 somebody who may be not an expert but an inspector to

11 say -- to verify what I'm seeing and tell me that what

12 I'm seeing is actually right or wrong.

13 Q. Ms. Miller, my question is a little different.

15 Q. I was asking whether or not you wanted another

16 point of view besides Mr. Knueppel's?

18 Q. Another inspector?

19 A. Yes. We -- after Mr. Knueppel's inspections

20 were done, we wanted a building expert to come in and

21 take a look, who actually is -- knows all about

22 construction and soundness and all that.

23 Q. Well, isn't it true that you wanted another

24 point of view because you didn't agree with Mr. Knueppel

25 about everything? 100 1 A. No. I don't think you can -- I liked what Mr.

2 Knueppel said about everything. He brought things to my

3 attention that I would have never seen, because he -- he

4 saw -- he saw things that were a revelation to me. And

5 I liked what he said. I don't -- I just know he -- even

6 what he even told me, what he can do is limited. He has

7 limitations on his expertise, and then we just felt we

8 needed somebody else to go a step further.

9 Q. Well, Ms. Miller, isn't it just true that you

10 wanted someone to agree with all your opinions about the

11 construction?

12 A. No. I like diverse opinions. I like to hear

13 from different people to know what's going on. That's

14 why I brought in Mr. Knueppel in the first place,

15 because I sure didn't know what was going on and whether

16 -- whether it was right or wrong. That's why I invited

17 Kris to come to the inspections, so Kris could see and

18 know what we were get -- looking at and whether it could

19 be fixed, whether -- what needed to be fixed. And Kris

20 got the reports from Mr. Knueppel, and I wanted

21 everybody involved. I wanted everybody's input, not --

22 not just mine. I knew mine was the lowest lay person

23 that there was.

24 Q. Debo never restricted your access to the

25 property, did they? 101 1 A. They did not. They restricted our

2 conversations with workers. We didn't --

3 MR. MARTINEZ: I'll object as

4 nonresponsive.

5 THE COURT: Sustained.

6 Q. (BY MR. MARTINEZ) Did Debo ever prevent you

7 from taking pictures of the home?

8 A. They did not.

9 Q. Did Debo ever tell you that you're not allowed

10 to have an inspector go in the home?

11 A. They did not.

12 Q. So, you were free to send an inspector to go

13 look at the home?

14 A. I didn't understand your question.

15 Q. You were free to send an inspector to go look

16 at the home, correct?

17 A. Yes, we could.

18 Q. Was Mr. Knueppel ever restricted during his

19 inspection of the home?

20 A. No, he wasn't. He wasn't restricted.

21 Q. Did Debo ever protest or try and prevent Mr.

22 Knueppel from coming in and looking at the home?

23 A. I don't believe they did, no.

24 Q. Let's talk a little about your home choice,

25 about the specifics of your home. Now, you were free to 102 1 choose whatever type of home you wanted?

2 A. Well, within -- it had to be one of their

3 floorplans. It could be modified, not whatever -- I

4 mean, build a round home or something.

5 Q. It wasn't an A frame or something like that?

7 Q. But you were free to pick and choose what type

8 of lights you wanted, what type of roof, all that?

9 A. Yes, as long as it fell within their -- with

10 their choices.

11 Q. Let's look at those choices, so we can get a

12 better idea of what you chose here. Is that the home

13 you chose?

15 MR. MARTINEZ: That's Exhibit 33, for the

16 record.

17 Q. (BY MR. MARTINEZ) Why did you choose that home?

18 A. Because it looked low maintenance, and it just

19 -- just I didn't want to have a lot of maintenance with

20 painting or a lot of debris like in gutters or -- just

21 something simple that we could maintain ourselves.

22 Q. And we're talking about this one, right?

23 A. The top one, yes. The one that's circled.

24 Q. The one on top. Did Debo pressure you into

25 choosing that home? 103 1 A. No, no, we chose that. We liked the style.

2 Q. All right. What do we have here in this

3 picture?

4 A. The floorplan that we -- with a couple of

5 modifications.

6 Q. Some of those modifications, like you chose to

7 put a dome light in the breakfast room?

9 Q. And you chose to increase the square footage?

10 That may not be in there, but --

11 A. No, I don't see that at all.

12 Q. But you did choose to increase the square

13 footage at one point?

14 A. It is -- it's out the back a little bit, and we

15 made the back porch a lot bigger.

16 Q. That area? (Indicating.)

18 Q. You also chose to put a sink in the garage,

19 right?

21 Q. That was so y'all could, I think, bathe your

22 dogs in the garage?

23 A. That would be a dog washing area.

24 Q. So, you wouldn't have to do them in your home?

25 A. Right, so I wouldn't have to drag them through 104 1 the house when they run around.

2 Q. Also, you wanted a window put there in the

3 garage?

5 Q. Why was that?

6 A. Oh, so that we could put an AC unit in, so we

7 could climate control the garage for the dogs. We were

8 going to put individual kennels. In fact, we already

9 bought them. Put individual, like eight-by-eight

10 kennels. We were going to turn the garage into like

11 just a little dog run for them, so that -- so the dogs

12 could kind of stay out there. So, they were just going

13 to enjoy a lot of running room out there. I mean,

14 they're performance dogs. They've got a lot of energy.

15 Q. What type of dogs are they specifically?

16 A. We've got a couple of Schnauzers, a standard

17 poodle and a Welsh terrier.

18 Q. So, that would be their home, the garage?

19 A. Well, no. The land would be their home. The

20 whole home would be their home, but that's their

21 sleeping area, and their -- I guess their siesta area.

22 But it would be a lot nicer than just a little small box

23 that we have now in our current home.

24 Q. And that's why you went to Debo, because they

25 could do something like that for you? 105 1 A. Well, that's what they promised.

2 Q. You also wanted tile throughout the entire

3 home, correct?

5 Q. And you were again allowed to choose these

6 things on your own free will?

8 Q. You also made a complaint that the square

9 footage of the home was actually short?

11 Q. Well, what happened there?

12 A. Nothing.

13 Q. Are you alleging that Debo gave you a home or

14 was constructing a home with less square footage than

15 you agreed to?

16 A. We questioned it. We never heard whether it

17 was or wasn't. We just asked a question, but we thought

18 it was.

19 Q. Well, do we know if it's correct or not?

20 A. I don't know. We weren't allowed back in the

21 house. We had a no-trespassing order against us.

22 Q. I'm talking about up until May 22nd. When did

23 you believe that the square footage was incorrect?

24 A. When we saw that brick wall that was at the

25 edge of the foundation and then the actual frame of the 106 1 house was inches in.

2 Q. So, that's the only part that was cut off?

3 A. Around the whole house.

4 Q. You mean the brick wall around the entire

5 house?

6 A. The frame is inches in. The frame is inches in

7 from the foundation, then they made the wall to the edge

8 of the foundation. So, we just questioned whether --

9 why there's this big gap between the wall, the brick

10 wall and the frame. And so if you're three-plus inches

11 in, that means you must be losing square footage inside

12 the home. We just questioned it. We just wanted these

13 questions answered.

14 Q. Well, isn't it true that that's common in

15 construction, where you put the brick on the edge of the

16 foundation?

17 A. I don't know. I'm not -- yes, but it usually

18 is attached to the frame. There's not a gap of a fist

19 or so -- (indicating) -- from what I've noticed. I'm

20 not a construction expert.

21 Q. Now, you agree that after you told Debo about

22 the issues they needed to repair in the home, that they

23 could have repaired them?

24 A. Yes, they could have.

25 Q. And you told Kris about these concerns and 107 1 problems?

2 A. Yes. Yes, we did.

3 Q. And Debo did, indeed, repair them, didn't they?

4 A. They repaired some. I don't believe they

5 repaired all of them.

6 Q. You don't believe they repaired all of them, or

7 do you know they didn't repair all of them?

8 A. Well, I can't know, because they drywalled it.

9 Q. So, you're saying that there are hidden things

10 behind that drywall?

11 A. There may be. I don't know. They drywalled

12 it.

13 Q. Ms. Miller, you understood that when you

14 brought these concerns to Debo, the home was still under

15 construction?

17 Q. And you understood that Debo still had work to

18 do?

20 Q. You understand that they're not saying that the

21 home was done and not capable of being fixed?

22 A. I do.

23 Q. And according to the contract, I believe either

24 one, Debo is allowed to take until June 3rd to make

25 those repairs? 108 1 A. Yes.

2 Q. And you have no evidence or opinion on whether

3 or not there is any defect in that home today?

4 A. Today, like right today?

5 Q. Right, today, any day after.

6 A. Well, we weren't allowed to bring our home

7 inspector in. It was drywalled over, so I can't know.

8 Q. So, you can't know. You're not telling the

9 jury that you know there's a defect in the home?

10 A. No. We weren't -- we weren't allowed to -- I

11 can only tell you what we saw.

12 Q. Let's talk about that other inspector real

13 quick. Now, you said that you agreed with Debo to go

14 out there on a certain date?

16 Q. And when was this supposed to be?

17 A. It was at the end of July.

18 Q. Okay. There's no e-mail showing that, is

19 there?

20 A. I had told Kris.

21 Q. There's no text message showing that you'd be

22 there on that date, is there?

23 A. I don't believe so.

24 Q. There's no letter showing that you would be

25 there on that date? 109 1 A. (Nodding.)

2 Q. Is that correct?

3 A. I didn't -- I don't believe so.

4 Q. Now, you wanted to stop all communications with

5 Debo around May 22nd because you felt harassed for

6 payment?

8 Q. And how many times was that?

9 A. I don't know the exact number.

10 Q. Now, you weren't at the home site, or were you

11 at the home site every day after you signed the

12 contract?

13 A. Not every day, no. It was impossible to be

14 there every day. I was definitely there once or twice a

15 week.

16 Q. Do you know the superintendent's name?

17 A. No. It's -- no, but I know what he looks like.

18 Q. Do you know if he speaks English?

19 A. I don't believe he does. He may speak a little

20 English, but I know he speaks Spanish.

21 Q. Because earlier you testified that --

23 Q. -- you couldn't talk to the superintendent and

24 the other workers on the home?

25 A. We weren't -- we were asked specifically not to 110 1 speak -- Kris asked us not to speak with them. It had

2 nothing to do with language barrier.

3 Q. Well, perhaps it was.

4 A. It wasn't.

5 Q. Now, you contend that Debo's not entitled to

6 take of $10,000 from your damages because they had to

7 sell the home to someone else. You're saying Debo

8 doesn't get those damages?

9 A. Well, they had an opportunity to pay us back

10 long before.

11 Q. I just want to know whether you think Debo is

12 entitled to receive $10,000 because they had to sell the

13 home at a smaller price to someone else?

14 A. But it wasn't the same house anymore. They

15 changed things. It wasn't all tile. They put carpet

16 in.

17 MR. MARTINEZ: Objection, nonresponsive.

19 Q. (BY MR. MARTINEZ) Ms. Miller, I'm just asking

20 you whether or not it's your opinion that Debo should be

21 refunded $10,000?

23 Q. Even though, as we can see in the exhibit on

24 the screen, this was a custom home, correct?

25 A. Yeah. Yeah, it was -- it was customized for 111 1 us.

2 Q. There's also another page showing the other

3 features in the home, correct?

5 Q. And it shows there you wanted a ceiling fan on

6 the patio?

7 A. Yes, we talked about putting a ceiling fan, an

8 outside ceiling fan out on that back patio to keep the

9 air moving, which we planned on using that a lot, and at

10 least having it -- and I believe we even bought the

11 outdoor ceiling fan. We bought the ceiling fan for it.

12 That was one of the three.

13 Q. What do we have here on this page?

14 A. That was the choices we made.

15 Q. What were some of those choices on that, on

16 this list?

17 A. Okay. For example, no carpet, black

18 appliances, bronze fixtures, patio lights, two doors for

19 the fence, an oval -- a half-oval front door, tile in

20 the bedrooms, and the choice of which tile and which

21 grout, the tankless water heater, that we wanted to get

22 the price for a tankless water heater, the Painted

23 Desert shingles and to get the self-cleaning oven price.

24 Q. When it says shingles and Painted Desert, are

25 we talking the roof? 112 1 A. Yes.

2 Q. That would have been what color?

3 A. That was like a medium to dark brown. We found

4 out later it was unavailable, that it had been

5 discontinued or something. So, we didn't get our

6 original choice.

7 Q. What did you end up choosing?

8 A. Something that Kris had sent us a picture of on

9 the computer.

10 Q. Can you tell us what color that was?

11 A. It was like a medium -- it was like a light

12 brown. It was nice. It would reflect the sun real

13 well, wouldn't make it too hot to run up your AC bill.

14 Q. You understand that Debo purchased the lot on

15 which this home sits?

16 A. I'm sorry?

17 Q. You understand that Debo purchased the lot on

18 which this home sits?

19 A. Yes, yes. They purchased it?

20 Q. Yes. You agree with that?

21 A. They purchased it from us?

22 Q. No, the lot, the vacant land for them to

23 develop.

24 A. Oh, yes.

25 Q. And you only paid them one payment of $60,300? 113 1 A. Correct, yes.

2 Q. And that payment essentially gets Debo through

3 the foundation work and the framing work, correct?

4 A. No. It gets the foundation, framing,

5 electrical, plumbing, all the way through the

6 insulation.

7 Q. But before drywall?

8 A. Before -- yeah, it stops at the drywall.

9 Q. So, if anything continues past that, Debo would

10 have to finance it out of their own pocket if you didn't

11 make another payment, correct?

12 A. I don't know. I thought it stops at drywall,

13 and then I pay them, and then they continue. I don't

14 really know. I don't know the construction business.

15 It's not my business. It wasn't --

16 Q. Did Debo --

17 A. I'm sorry.

18 Q. Were you finished? I'm sorry.

19 A. No, I'm done.

20 Q. And Debo themselves, they paid all the trades,

21 the framers, the foundation people, correct?

23 Q. So, even though Debo made this home for you

24 with these custom choices, they had to finance the

25 project out of their own pocket, you still think that 114 1 entitles them to receive $10,000 in damages?

2 A. No, because they -- they wouldn't work with us.

3 They ignored all the pleadings and all the times we

4 wanted them to help us. They just kept snowballing

5 through, and they were not going to stop until it was

6 done. They were not -- they wouldn't listen to us.

7 They wouldn't look and see the broken beams. They

8 wouldn't -- they just wouldn't listen until we had to

9 get attorneys involved, and that was not something we

10 wanted to do.

11 THE COURT: Counsel, let's go ahead and

12 take our lunch break at this time.

13 Ladies and gentlemen of the jury, I'm

14 going to ask you to be back in the jury room at 1:30.

15 Remember the instructions I've given you: That is, do

16 not talk about this case with anyone, even amongst

17 yourselves while you're out at lunch. Have a good

18 lunch, and we'll see you back at 1:30.

19 (Jury out)

20 THE COURT: Counsel, see y'all back at

21 1:30.

22 (Lunch break)

23 (Jury in)

24 THE COURT: Be seated. You may continue.

25 MR. MARTINEZ: Thank you, Judge. 115 1 Q. (BY MR. MARTINEZ) Ms. Miller, earlier today,

2 you said that Debo made representations to you about

3 rebar insulation or wire mesh insulation in the

4 driveway?

6 Q. Do you ever remember testifying differently?

7 A. I do remember.

8 Q. And you recall when that was?

9 A. When my testimony was, or when they made the

10 representations?

11 Q. When you had the different testimony.

12 A. Different than what? I'm sorry, can you

13 rephrase the question?

14 Q. Sure. Earlier today, you said that Debo

15 represented that they installed either wire mesh or

16 rebar in your driveway?

18 Q. I asked you, do you remember testifying

19 differently about that?

20 A. No.

21 Q. You remember your deposition May 8th at your

22 lawyer's office?

23 A. Yes, it was six hours long. I remember it.

24 Q. And you remember me asking you a question about

25 rebar installation? 116 1 A. Yes.

2 Q. You remember me asking you -- the question was:

3 "Did they make any representations about the rebar in

4 the driveway, whether it would be there or not be

5 there?" Your answer was no. Why is it different today?

6 A. Because when I asked Kris -- later on, when I

7 asked Kris about it, he told us there's mesh in the

8 driveway.

9 MR. MARTINEZ: Judge, may I display the

10 excerpt?

11 THE COURT: Yes, sir.

12 MR. MARTINEZ: Thank you.

13 Q. (BY MR. MARTINEZ) Ms. Miller, you see the

14 highlighted portion?

16 Q. My question is why you told me no, Debo made

17 absolutely no representations about the rebar in the

18 driveway, but today you're telling us they did?

19 A. That was within the six-hour context of a

20 deposition. Kris told us later on, when I questioned

21 why there wasn't any rebar, that you had to pay extra

22 for rebar, that was something we had to bring out up

23 front. He told us that it would be mesh, like a wire

24 mesh in the driveway.

25 Q. So, you admit that your answer in the 117 1 deposition was incorrect?

2 A. No. The question talks about rebar.

3 Q. So, you're saying the representation was wire

4 mesh?

5 A. He told us there would be wire mesh.

6 Q. Then why did you talk about rebar this morning

7 during your direct examination?

8 A. Because I asked him about both. I had asked

9 him about rebar, because I had observed rebar being put

10 up on my street when I came home that day. So, that was

11 an awakening for me. So, I called him, I said when I

12 saw the driveway being put in, I saw nothing but

13 concrete, no rebar. And he said, "We don't put up

14 rebar, we put wire mesh down." And I didn't understand

15 him.

16 I said, "What's the difference?" He said,

17 "Well, wire mesh isn't quite as good as rebar, but you

18 get wire mesh."

19 I said nothing was put in, and he said

20 nothing.

21 Q. Because when you were negotiating the contract

22 with Debo, you never asked them about wire mesh or

23 rebar, correct?

24 A. I never -- no.

25 Q. Earlier, we talked about how -- or you 118 1 mentioned that there were, indeed, two different

2 contracts?

4 Q. Well, this is the contract that's been produced

5 in this case, that's Exhibit 1. And right here, you'll

6 see there's a whole section called "Financing."

7 Correct?

9 Q. Well, you're telling the jury that this is a

10 financing contract, so why isn't that section filled out

11 then?

12 A. I don't know, but B, says "Sum of all

13 financing, 118,700.

14 MR. MARTINEZ: Objection, nonresponsive.

15 THE COURT: Overruled.

16 Q. (BY MR. MARTINEZ) Ms. Miller, if this is a

17 financing contract, why are there no checks about

18 third-party financing, you know, or promissory notes?

19 A. Because we hadn't gone to a mortgage company

20 yet. We hadn't chosen a mortgage company yet. We were

21 seeking approval from -- whether it was Chase or

22 whomever to approve us.

23 Q. Why isn't there an addenda or addendum to this

24 contract saying this is what the financing's going to

25 be? 119 1 A. I don't know. This is what we were given.

2 Q. And this is the only contract in this case,

3 correct?

5 Q. Ms. Miller, you also said that you have a

6 friend, Stan, the realtor?

8 Q. And that he reviewed this contract for you,

9 only this one?

10 A. Yeah, he came with us that day.

11 Q. Which day would that be?

12 A. The day we signed this, April 13th.

13 Q. So, he came with you and met with Kris and

14 reviewed this contract the day you signed it?

16 Q. I'm looking at this page here. It talks about

17 broker information. Is Jan -- I can't read that name.

18 A. Pascovsky.

19 Q. Pascovsky?

20 A. Right.

21 Q. Is that the broker for Stan, the realtor?

22 A. Yeah. Stan and Jan, they're the spouses who

23 sell houses. And so Stan's Jan's husband, and Stan --

24 we're just more -- we're just better friends with Stan,

25 so he came with us. But that's their -- they're in 120 1 business together.

2 Q. So, he signed this April 13th?

4 Q. And you're alleging that Debo never let you

5 take this contract home?

6 A. This particular one?

7 Q. Uh-huh, yes.

8 A. No, we have that one.

9 Q. I mean before you signed it on April 13th, did

10 Debo allow you to take it home and review it?

12 Q. Earlier, you mentioned that your May 21st

13 e-mail told Debo to stop construction.

15 Q. Well, I'm just curious where in there it says

16 that. Is it on the first page?

17 A. (Reading.) No.

18 Q. Can you point out to us where it says that on

19 the second page? Take your time.

20 A. (Reading.) Well, in the final line, "We expect

21 Debo Homes to have completed all of these repairs prior

22 to us submitting any more funds to you."

23 Q. Does that say stop construction?

24 A. Yes, because the next -- the next payment was

25 due prior, at the time of sheetrock. 121 1 Q. Would you mind just reading those two lines

2 real quick?

3 A. "We expect Debo Homes to have completed all of

4 these repairs prior to us submitting any more funds to

5 you."

6 Q. Thank you. Now, earlier you said that you were

7 dumbstruck that when you showed up at the homesite, you

8 saw a "For Sale" sign?

10 Q. Could you describe that feeling a little bit

11 more for us?

12 A. Yes. We were just very surprised to see that

13 the house was for sale, and it had been completed, and

14 not to our specifications. We just -- we just were very

15 surprised, because we weren't informed. We weren't

16 aware that it had been put up. We thought we were still

17 onboard for the next inspection.

18 Q. But you've testified also that that was fine,

19 Debo was free to sell to someone else?

20 A. It was in the contract under negotiations. It

21 could be negotiated.

22 Q. But Ms. Miller, you've testified before in your

23 deposition that it did not bother you that they sold to

24 someone else. Is that true?

25 A. That was part of the negotiation process. 122 1 Q. Well, Ms. Miller, I was asking whether or not

2 you agree that you previously testified that you did not

3 have a problem with Debo selling the home to someone

4 else?

5 A. That's true.

6 Q. Ms. Miller, your attorney showed you some

7 pictures of the home. I think one of those pictures had

8 a table -- this one right here. (Indicating.)

10 Q. Well, you testified that, I think it was June,

11 you said you went by the house and looked at the

12 outside?

13 A. Yes.

14 Q. Well, how did you get this picture of the

15 inside?

16 A. Through the window.

17 Q. This is through the window?

18 A. Yes, sir, with my phone camera, through the

19 back window.

20 Q. Was there a grate there or anything?

21 A. No, there was no screens. All the pictures we

22 took of the interior of the house was through the

23 windows. We never stepped inside of the house.

24 Q. So, I'm looking at, you know, this window

25 across the way. It's hard to see, but there are -- you 123 1 know, there's grate around it. Did the window that you

2 took the picture through have those grates, you know,

3 crossbars, what have you?

4 A. I don't know. We might have took it through

5 the back door. I'm not sure. I know we took them

6 through the windows. I put the camera right up on the

7 window.

8 Q. Ms. Miller, you understand that by the time

9 your attorney sent that e-mail on May 22nd telling Debo

10 to stop construction, and between the time we, as

11 lawyers for Debo, sent a response in late August, that

12 had been a couple of months, right?

14 Q. Is it fair to say that there are some costs

15 incurred by Debo during those few months?

16 A. There might be. I don't think so, though.

17 Q. Well, if Debo had to finance the rest of the

18 construction, wouldn't they have had to pay that out of

19 their own pocket?

20 A. They should have stopped construction.

21 Q. Ms. Miller, that's not my question. My

22 question is: If they had to finance it out of their own

23 pocket, wouldn't they have had to pay incurred costs?

24 A. They were asked to stop construction.

25 MR. MARTINEZ: Objection, nonresponsive. 124 1 THE COURT: Sustained. Answer the

2 question.

3 Q. (BY MR. MARTINEZ) Ms. Miller, I'm just asking

4 you whether it's reasonable that if Debo had to pay to

5 finish construction on the home, that they would incur

6 some costs?

7 A. If they continued, yes.

8 Q. Well, if they had to take out, you know, a loan

9 to finance the rest of the construction so they could

10 sell it to someone else, isn't it true that there's

11 interest on that loan?

12 A. There might be.

13 Q. Well, isn't it true that if they had to put the

14 home back on the market, they'd have to pay for various

15 marketing costs?

16 A. I don't know what their marketing costs would

17 be.

18 Q. But it's fair that they would incur some?

19 A. I don't know. They -- they have signs

20 everywhere anyway.

21 Q. What I'm getting at, Ms. Miller, is Debo sent

22 you a letter on May 29th, this letter that we've seen

23 before, and towards the bottom it says that Debo will

24 refund you a hundred percent of the money, correct?

25 A. Yes. 125 1 Q. Well, this is May 29th.

3 Q. Before the home was finished, correct?

5 Q. Before Debo had to pay the rest of the trades

6 to finish the home?

8 Q. Before Debo had to put the home back on the

9 market and pay for marketing?

10 A. Yes, except it was already just about done at

11 that point. We gave them 90 days at that point to sell

12 the house, and we never heard back.

13 Q. I'm going to go to the top real quick, so we

14 can see what we're talking about. This is a letter from

15 our firm on August 30th, correct?

17 Q. And at the bottom, it says that you will

18 receive your money back, but minus the costs that Debo

19 incurred. Is that fair?

21 Q. Well, I'm just asking if that's what the letter

22 says.

23 A. That is what the letter says. That's not fair.

24 Q. Well, that's not my question. My question is

25 that we just talked about how Debo, if they had to pay 126 1 for the rest of the trades, you know, pay to hire us,

2 and pay to finance the rest of the construction, it's

3 different from May 29th to August 30th. There's a

4 difference, isn't there?

5 A. They didn't have to pay to hire you. They

6 could have given us the money. We gave them an

7 opportunity to sell the house.

8 MR. MARTINEZ: Objection, nonresponsive.

9 THE COURT: Sustained.

10 Q. (BY MR. MARTINEZ) Ms. Miller, I just want to

11 know whether or not it's fair to say that at the time

12 Debo sent you that letter on May 29th that we just

13 looked at where they offered you 100 percent back, in

14 between that time on May 29th to August 30th, Debo

15 incurred costs, and, therefore, they had to reduce the

16 payment they could give you back. Is that fair?

17 A. No.

18 Q. Ms. Miller, also you said something earlier.

19 You said that you had to deal with Debo's lawyers in

20 May?

21 A. This past.

22 Q. Oh, 2014, not '13?

23 A. Yes, sir.

24 Q. Okay. I just wanted to clear that up.

25 Earlier, you said that Debo never actually offered you 127 1 the money back, isn't that right? Earlier today --

3 Q. -- you said that Debo did not offer you your

4 money back. Do you recall saying that?

5 A. They offered it in the letter. Then we gave

6 them 90 days to sell the house. We never heard anything

7 back from them until we got the letter from their

8 attorney.

9 MR. MARTINEZ: Judge, I'll pass the

10 witness.

11 MR. CROCKETT: Short redirect, Judge.

12 THE COURT: Yes, sir.

13 REDIRECT EXAMINATION

14 Q. (BY MR. CROCKETT) Ms. Miller, in that letter

15 that Debo Homes sent, did you see the rest of the part

16 that Debo Homes' lawyer didn't highlight, which was to

17 pay you back "whenever we sell the home"?

18 A. No, not right now. I mean, I did, at first

19 when I read it, yes.

20 Q. When you first were buying the house, did you

21 agree to give Debo Homes a loan of $60,300 for as long

22 as they want?

23 A. No, not -- there was -- can you rephrase that

24 the question?

25 Q. Yeah. Did you just hear Debo Homes' lawyer 128 1 say, "Well, isn't it fair that we offered to give back

2 your money whenever we sold the home"?

3 A. No, there has to be a time limit. I mean, they

4 can't keep my -- our money forever and never give it

5 back.

6 Q. How long have they kept $60,300?

7 A. A year and a few months.

8 Q. Until really just Monday?

10 Q. Before they were talking to you about the

11 deposition and Debo Homes' lawyer showed you just one

12 segment of it. They didn't show you the entire six

13 hours, did they?

14 A. No, not at all.

15 Q. During that six hours, did you get asked the

16 same question again and again and again?

18 MR. MARTINEZ: I'll object to

19 misconstruing the evidence.

20 THE COURT: Overruled.

21 Q. (BY MR. CROCKETT) Did you get asked the same

22 questions again and again and again?

23 A. Yes. They continually asked identical or near

24 identical questions.

25 Q. Did you testify during your deposition that the 129 1 payment was due before the drywall went in?

3 Q. When you were asked when the specific date you

4 were supposed to pay was, did you know?

5 A. No. There was not a date. I said I don't

6 know. They said, "When is the next payment due?" I

7 said I don't know, because there was never a specific

8 date.

9 Q. When Debo Homes' lawyer asked you about the

10 representations, did he ever add context to it, like

11 representations during the first contract, or

12 representations during construction, or did he basically

13 just say, "Tell me every single representation that Kris

14 told you whenever"?

15 A. It was -- it was open-ended. It was -- it was

16 whenever. It was -- there was no Phase 1, Phase 2. It

17 was just, "We want to know it all, and if it's not all,

18 then it doesn't count."

19 Q. One of the things I was going to ask you about

20 is the text messages. When the text messages were sent

21 in Exhibit No. 3, do you know what date the texts ended,

22 at least in the exhibit?

23 A. Looked like around maybe -- was it the 12th,

24 13th or something like that? I don't know the exact

25 date, no, if I'm not looking at it. 130 1 Q. The last date of any of the text messages, May

2 14th.

3 A. Okay.

4 Q. Did Kris keep contacting you after that?

5 A. Yes, he did.

6 Q. Is it kind of hard to say, "Well, show me where

7 it's at," when you know it's not even all of them?

9 Q. And one of the things, Debo Homes' lawyer asked

10 you about if you had any evidence that there were any

11 defects in the home. On May 9th, did you see problems

12 during the inspection with Mr. Knueppel?

13 A. Yes, yes. We saw many problems.

14 Q. In May 13th, on the second inspection, did you

15 see problems at the home?

16 A. Yes, we saw even additional problems.

17 Q. When was that second inspection at? Was it in

18 the afternoon or the evening-time?

19 A. It was in the afternoon, late afternoon, after

20 the workers were all done.

21 Q. By May 14th, the next day when they drywalled

22 everything up, based on what you had seen from their

23 work, was there any way that they actually fixed

24 everything?

25 MR. MARTINEZ: Objection, speculation and 131 1 expert testimony.

3 Q. (BY MR. CROCKETT) Do you believe that all of

4 the things that you saw on May 9th and May 13th were

5 done before May 14th?

6 A. I don't believe it could have been, because we

7 were there after hours, and they started drywalling the

8 next morning. I don't know how they could have possibly

9 fixed all of it in time.

10 Q. Is there any way to show the evidence of the

11 house when you drywall over the evidence?

12 A. No one has showed me how.

13 Q. Is it hard to go back and inspect a home after

14 you sell it to somebody else?

15 MR. MARTINEZ: Objection, this is

16 speculation.

17 THE COURT: Overruled.

18 A. We haven't been able to. That's why we peeked

19 through the window and took pictures, just -- and we

20 were unable -- you can't see. It's covered up.

21 Q. (BY MR. CROCKETT) Thank you, Ms. Miller.

22 MR. CROCKETT: Pass the witness, Judge.

23 MR. MARTINEZ: Judge, short recross.

24 THE COURT: Yes, sir.

25 132 1 RECROSS-EXAMINATION

2 Q. (BY MR. MARTINEZ) Well, Ms. Miller, if those

3 aren't all the text messages, where are the rest?

4 A. I don't know. The phone I used to have got

5 stolen.

6 Q. How did you get some of them, not the others?

7 A. I didn't -- I don't know. Those --

8 Q. So, you said that it was inappropriate for Debo

9 to wait until December to sell the home; that it was too

10 long?

11 A. Well, what I -- can you rephrase that, please,

12 ask it again?

13 Q. Yeah. You sort of were getting at that, you

14 know, Debo didn't really tell you when they would

15 ultimately sell the home?

17 Q. That's just an open window, that could be

18 whenever. Is it your testimony that it's inappropriate

19 for them to not get to that until December, 2013?

20 A. Well, it would have been nice for us to know.

21 Q. Are you saying that was too long, it took them

22 too long to resell it?

23 A. I don't know if that's too long. We didn't

24 know. We weren't given opportunity to know about it.

25 Q. Ms. Miller, I think you'd agree that $60,300 is 133 1 a lot of money?

2 A. It's a whole lot of money when I get very

3 little per month.

4 Q. And wouldn't you agree that if Debo used that

5 60 grand to buy the lot, do the foundation, framing,

6 electric, that uses -- that can use the 60 grand?

7 A. Well, it can. (Nodding.)

8 Q. So, then how is Debo supposed to get all that

9 money back and give it to you if they already put it

10 into the house?

11 A. Well, they offered it back once they sold it,

12 so we needed a timetable. They offered it back.

13 Q. Are you complaining that it took Debo too long

14 to actually put that money in the registry of the court?

15 A. Yes. They -- they had -- they sold the house

16 in October, closed in December. They never gave us

17 anything back.

18 Q. Isn't it true since October there's been an

19 ongoing lawsuit?

21 Q. Ms. Miller, you said that during your

22 deposition I asked you the same question again and again

23 and again. Which question was that?

24 A. Many, many questions. It was six hours long.

25 Q. Well, Ms. Miller, your attorney went over that 134 1 I asked you about what representations were made, and

2 you acknowledged that you did not disclose all the

3 representations in your deposition, correct?

4 A. I probably -- I'm sure I didn't.

5 Q. Well, Ms. Miller, do you remember me asking you

6 did Debo make any other express warranties besides the

7 ones in the contract that we've seen? You remember that

8 question?

10 Q. And then you responded, you said, "Kris

11 promised us we'd get a house we would be happy with,

12 comfortable with and love, even after I brought an array

13 of concerns and questions, and he answered every one

14 exactly within my comfort zone." Does that sound

15 familiar?

17 Q. And then I asked, "Were there any other

18 warranties that Kris or anyone else at Debo ever made to

19 you before you signed this contract?"

20 Your answer was: "I don't recall."

21 Is it fair to say that I gave you an

22 opportunity to give me more representations and more

23 facts?

24 A. At that time, yes, maybe. Yes.

25 Q. Also, in your deposition, I went over your 135 1 pleadings because the question I asked was, "Well, what

2 numerous representations did Debo make to induce you to

3 purchase the home specifically?" And you gave me a long

4 list, and I think we've gone over those, like, you know,

5 he had the right answers, he said we'd have a home we'd

6 love, and if we're not happy, it's a hundred percent

7 guaranteed. And you gave me your full answer, correct?

8 A. It may not have been the full answer.

9 Q. Well, where else in this deposition did I ask

10 you that question again?

11 A. I don't know, but within the deposition, you

12 asked a lot of questions over and over. It was six

13 hours long.

14 Q. Can you give me another example?

15 A. Not right now.

16 Q. Ms. Miller, earlier you said that the drywall

17 covers up, you know, any defects, right?

18 A. I didn't say any. I said it covers up a lot of

19 defects, covers up a lot of the defects we were looking

20 at.

21 Q. Okay. And this is a picture that y'all took of

22 the house, right?

24 Q. And there's some drywall put up, right?

25 A. Yes. 136 1 Q. Can't you still see the studs?

2 A. Not -- not really. Only partial, only the

3 bottom part, some of them.

4 Q. Well, is there anything blocking you from going

5 into the wall and checking things out?

6 A. That's not the complete drywall. That's only

7 part of the drywall.

8 Q. I'm asking you if it's possible for you to go

9 into this wall and look at things?

10 A. Some things.

11 Q. Ms. Miller, also you said that -- one last

12 question. You said that Debo represented to you that

13 they'd insulate the pipes in the home?

15 Q. So, you thought that Debo would install

16 insulation on the pipes?

17 A. That they would wrap the pipes, yes.

18 Q. You remember testifying differently?

19 A. They would wrap the pipes that needed to be

20 wrapped.

21 Q. I'm asking whether or not you remember

22 testifying differently about what Debo represented about

23 the pipe insulation.

24 A. I don't recall.

25 Q. And in that deposition, I asked you, "Is that 137 1 why you took the picture?" And I'm talking about the

2 picture we saw earlier with the pipe. Let me see if I

3 can get it. No. -- there we go. I think this was the

4 picture, right? This is the pipe without insulation?

6 Q. So, I asked, "Is that why you took the picture,

7 that picture, because there was no insulation?"

8 And your response was, "I was -- yes. I

9 was -- I didn't know if it was supposed to or not. I

10 took pictures of things I had questions about"?

11 A. Yes, that's exactly true. I took pictures of

12 things I had questions about, so our inspector could

13 verify them.

14 Q. But you weren't sure whether or not this was

15 supposed to have insulation?

16 A. That's right. I'm not a construction expert.

17 Q. Well, you told me that Debo represented to you

18 that it would be covered.

19 A. That the ones that needed to be wrapped. The

20 hot pipes, from what I learned, needed to be wrapped,

21 but the cold ones don't. But that's their job to know

22 which ones need to be wrapped and which ones don't. So,

23 I took pictures of ones, does it or doesn't it. I'm not

24 an expert. I took pictures of everything that looked

25 unusual. 138 1 Q. Ms. Miller, was it fair for me today to rely

2 upon your deposition in asking you questions?

4 MR. MARTINEZ: Nothing further. Thank

5 you.

6 MR. CROCKETT: No further questions,

7 Judge.

8 THE COURT: You may step down.

9 You may call your next witness.

10 MR. CROCKETT: Your Honor, the Plaintiffs

11 call Harold Knueppel.

12 MR. MARTINEZ: And, Judge, before he even

13 gets to the stand, we have an objection to him

14 testifying at all. First, if I may --

15 THE COURT: Ladies and gentlemen, I ask

16 that you step back in the jury room for just a few

17 minutes.

18 (Jury out)

19 THE COURT: Be seated.

20 MR. MARTINEZ: Judge, my objection was

21 that -- and we talked about this before -- Mr. Knueppel

22 is a home inspector, and they have not designated him as

23 an expert. He's not qualified to testify about

24 construction issues. All he can do is say, you know,

25 that's a picture of a broken stud, but Ms. Miller 139 1 already did that. The photos are already in evidence.

2 Under Rule of Evidence 403, that is redundant, that is

3 cumulative, that is confusing. It's already been

4 presented. He is just a duplicate witness for what we

5 already just saw.

6 MR. CROCKETT: Judge, you specifically

7 said that he can testify to what he saw, and our plan is

8 to just ask him what he saw. He's also a witness as far

9 as the time lines of what happened. It's not

10 duplicative of anything. In fact, oftentimes you'll

11 have five to eight witnesses all testify about the same

12 thing. He's talking about duplicative, meaning we're

13 putting on expert after expert after expert who are

14 doing the exact same thing, and we're not. We're

15 allowed to put as many fact witnesses as we want, as

16 long as it's not something where one witness gets up and

17 says the exact same thing and another one gets up and

18 says the exact same thing and another one gets up. I'm

19 talking about two people, Your Honor. That's it. It's

20 not duplicative. The reason they want him off is they

21 don't want the jury to ever see him and argue anything

22 that someone else can match the time line.

23 THE COURT: Well, I'm going to allow him

24 to testify, but carefully phrase your questions, and

25 you'd better caution him that he should not be giving 140 1 opinions, particularly expert opinions.

2 MR. CROCKETT: Yes, sir.

3 THE COURT: If he does, I'm going to stop

4 the testimony and escort him out of the courtroom.

5 MR. CROCKETT: Yes, Judge.

6 THE COURT: Okay?

7 MR. MARTINEZ: Thank you.

8 THE COURT: If you'll give me a moment,

9 I'll tell him that.

10 THE COURT: Okay. Tell him to just answer

11 the question.

12 (Discussion off the record)

13 MR. CROCKETT: I think we're good, Judge.

14 THE COURT: Bring them in.

15 (Jury in)

16 THE COURT: Be seated.

17 BAILIFF: Sir, please stand before the

18 clerk to be sworn.

19 (Witness sworn)

20 HAROLD KNUEPPEL,

21 having been first duly sworn, testified as follows:

22 DIRECT EXAMINATION

23 Q. (BY MR. CROCKETT) Mr. Knueppel, could you

24 please state your name for the record?

25 A. Harold Knueppel. 141 1 Q. Okay. Mr. Knueppel, did you get called out to

2 look at a house that Ms. Miller had purchased?

3 A. Yes, sir.

4 Q. All right. I'm going to show you some of the

5 photographs, and I just want to confirm that you saw the

6 things that are in here. Okay?

8 Q. All right. Now, when you went out there -- you

9 went out there May 9th?

10 A. Yes, sir, uh-huh.

11 Q. When you went out there May 9th, did you see

12 broken boards?

13 A. Pardon?

14 Q. When you went out there on May 9th, did you see

15 broken boards?

16 A. I'm not sure who you're talking about there. I

17 misunderstood you there.

18 Q. Okay. When you went out there to see Laurie's

19 home on May 9th, 2013, did you see broken boards?

20 A. Yes, uh-huh, absolutely.

21 Q. Did you see broken boards, just one or two, or

22 throughout the entire house?

23 A. Several.

24 Q. Did you see boards that weren't cut even?

25 A. Yes. 142 1 Q. Did you see boards that weren't connected to

2 anything?

4 Q. See boards nailed into other boards?

5 A. Yes, uh-huh.

6 Q. See a crushed vent?

8 Q. When you came back out a second time -- I

9 believe it was May 13th?

11 Q. Did you see that there was new work done on the

12 house?

13 A. There was some work done, yes.

14 Q. Did you see issues and take pictures of the new

15 work that was done?

16 A. I did not take pictures of new work. I took

17 pictures of what other things I saw there, yeah.

18 Q. Okay. When you went out on May 13th, did you

19 plan on coming out again and looking at whether any

20 progress had been made?

21 A. No, not unless I was asked to, uh-huh.

22 Q. Normally, whenever you look at something, take

23 pictures of it, are you ever asked to look at those

24 things later?

25 A. Yes. 143 1 MR. MARTINEZ: Objection as to what he

2 normally does during his job, expert.

3 THE COURT: Overruled.

4 Q. (BY MR. CROCKETT) Mr. Knueppel, did you see

5 this AC unit installed at the Millers' house?

7 Q. Have you ever seen an AC unit like that in your

8 life?

9 MR. MARTINEZ: Objection, Judge. It's

10 getting into what he does as an inspector

11 professionally.

12 THE COURT: Overruled.

13 Q. (BY MR. CROCKETT) Mr. Knueppel, have you ever

14 seen an AC unit in the attic that looked like that?

16 MR. CROCKETT: No further questions. Pass

17 the witness, Judge.

18 (Off the record discussion between Messrs.

19 Martinez and Welscher.)

20 MR. MARTINEZ: Judge, just a few.

21 CROSS-EXAMINATION.

22 Q. (BY MR. MARTINEZ) You just saw a bunch of

23 pictures of some broken studs, correct?

24 A. That's some of the pictures, yes.

25 Q. Did Debo ever deny that there was a broken 144 1 stud?

2 A. Not that I'm aware of.

3 Q. Did they ever try to hide it when you were

4 there?

5 A. Did they ever try to what?

6 Q. To hide any of these pictures we just saw when

7 you were there.

8 A. Not that I'm aware of, no.

9 Q. Did they ever prevent you from inspecting the

10 home?

11 A. No.

12 Q. Now, after you walked through the house, isn't

13 it true you had a discussion with Ms. Miller?

14 A. Sure.

15 Q. In fact, she was arguing with you?

16 A. No, no arguing.

17 Q. Well, she raised her voice to you; she was

18 upset?

19 A. She was upset, yes, but not at me.

20 Q. And you were out there May 13th, right?

22 Q. And the sheetrock was installed the very day

23 after, the 14th?

24 A. I don't know when it was installed.

25 MR. MARTINEZ: Nothing further, Judge. 145 1 MR. CROCKETT: One last question, Judge.

2 REDIRECT EXAMINATION

3 Q. (BY MR. CROCKETT) Mr. Knueppel, whenever you

4 look at a house -- let me say it this way: Are you able

5 to look at the studs and the beams or anything behind

6 that drywall?

8 MR. MARTINEZ: Objection as to what he

9 looks to normally.

11 Q. (BY MR. CROCKETT) Are you able to see the studs

12 or the beams or the broken boards or anything once we

13 have this drywall and everything's walled in?

15 Q. Thank you, sir.

16 MR. MARTINEZ: I have one question about

17 that, Judge.

18 RECROSS-EXAMINATION

19 Q. (BY MR. MARTINEZ) Mr. Knueppel, would you mind

20 taking a look at that picture?

21 A. Okay.

22 Q. Isn't it true that you can still see studs?

23 A. Some studs, yeah.

24 Q. Isn't it true that if you went into the wall,

25 you could see the rest of the studs? 146 1 A. I don't remember seeing this picture here.

2 MR. MARTINEZ: Nothing further, Judge.

3 MR. CROCKETT: That's it, Your Honor.

4 THE COURT: May this witness be excused

5 and released?

6 MR. CROCKETT: Yes, Judge.

7 MR. MARTINEZ: Yes, Judge.

8 THE COURT: Thank you, sir. You may step

9 down. You're excused and released.

10 (Witness out)

11 MR. CROCKETT: Your Honor, Plaintiffs call

12 Kris Dominguez.

13 (Witness sworn)

14 KRIS DOMINGUEZ,

15 having been first duly sworn, testified as follows:

16 CROSS-EXAMINATION

17 Q. (BY MR. CROCKETT) Good morning, Mr. Dominguez.

18 Can you please state your name for the record?

19 A. Kris Dominguez.

20 Q. Now, Kris, what's your position at Debo Homes?

21 A. Sales.

22 Q. How many other salesmen are there other than

23 you?

24 A. Just me.

25 Q. Okay. And you have the ability to bind Debo 147 1 Homes to any agreements, correct?

3 Q. You're the only one that talks to the

4 customers?

5 A. No.

6 Q. As far as the sales?

8 Q. Okay. Now, obviously, you were involved in the

9 sale of the home to the Millers?

10 A. Yes, sir.

11 Q. Okay. Now, you remember that in Exhibit No. 1,

12 the Millers initially came, signed an agreement with

13 you, in behalf of Debo Homes, to purchase the house? Do

14 you remember that they originally tried to finance the

15 home?

17 Q. Originally, did they try to finance the home?

18 A. No.

19 Q. They never tried to finance the home?

21 Q. There was always a cash installment plan?

23 Q. Okay. Now, before you testified here today, I

24 notice that you had a chance to talk to Juan Carlos

25 Hernandez and his son. Did they tell you to say 148 1 anything today?

2 A. No.

3 Q. What did you talk about?

4 A. Today at lunch?

5 Q. Well, the 15 minutes when we were on break that

6 you were talking to them and then over lunch.

7 A. We were just talking about business.

8 Q. Never mentioned anything about the case or the

9 testimony here today?

10 A. No.

11 Q. All right. They never asked you about a second

12 contract? Did anyone ever ask you about --

13 MR. WELSCHER: Object. This is getting

14 into attorney-client privilege. I was with Kris at

15 lunch in meetings.

16 THE COURT: Can you rephrase your

17 question?

18 MR. CROCKETT: Yes.

19 Q. (BY MR. CROCKETT) Outside of being present with

20 the Debo Homes lawyer, did anybody tell you or ask you

21 about a second contract?

22 A. Can you repeat that again? I'm sorry.

23 Q. Did anyone, outside of when you were talking

24 with your lawyers, mention a second contract?

25 A. Yes. 149 1 Q. Okay. Who?

2 A. Mr. Hernandez.

3 Q. All right. So, you talked about a second

4 contract, right?

6 Q. And you said what?

7 A. There isn't one.

8 Q. Okay. So, you did talk about the testimony

9 that was at the trial, right?

10 A. Just that specific question.

11 Q. Nothing else over the 15-minute break where you

12 were talking out in the hallway after Ms. Miller's

13 testimony or at lunch, right?

14 MR. WELSCHER: Judge, he needs to be more

15 specific about who was there, because I was there at

16 lunch the whole time.

17 Q. (BY MR. CROCKETT) Did you ever talk with him

18 outside of the lawyer being there? I can't talk to you

19 about that. Did they ever come in and ask you questions

20 out in the hallway for that 15 minutes or during lunch

21 about the testimony here today?

23 Q. Did you know before you got on the stand I'd be

24 asking you about a second contract?

25 A. I'm sorry, what? 150 1 Q. Before you got on the stand, did you know that

2 I was going to ask you about a second contract?

3 A. I wouldn't know what you would ask, sir.

4 Q. Okay. Let me ask you this: Whenever you do a

5 cash installment plan, tell the jury how that plan is

6 divided up. How does that work?

7 A. It's talked about, so it's different, depending

8 on the customer, how they want to pay. It's either half

9 and half or thirds.

10 Q. So, you do do it by a third, right?

12 Q. Is there three phases to that?

14 Q. Tell me about those phases.

15 A. I don't set up the phases. Mr. Hernandez tells

16 me when to initially collect the first phase, and then

17 he'll call and tell me when the next part of the money

18 is due.

19 Q. With the Millers, when was the second payment

20 due?

21 A. Date-wise or construction-wise?

22 Q. Well, that's a good point. If you don't ask,

23 then it makes it kind of confusing. Let me ask you

24 this: Construction-wise, when was the second payment

25 due? 151 1 A. Near or close to sheetrocking.

2 Q. Right. The drywall is kind of a universal

3 thing about that system, right?

4 A. I'm sorry, I don't understand the question.

5 Q. Yeah. The cash installment plan, when you do

6 50-50 --

7 A. Uh-huh.

8 Q. -- first 50, start. Second 50 is when?

9 A. That's based upon when I'm told to ask for it.

10 I don't determine that.

11 Q. You don't know?

13 Q. All right. But you do know specifically that

14 with the Millers' cash plan, the first third was due,

15 and the second payment was due before drywall or after

16 drywall, sometime with drywall, right?

17 A. I can't say specifically. I was just -- that's

18 when I can remember when it was due, when the owner

19 asked me to ask for it.

20 Q. Okay. So, normally whenever Mr. Hernandez says

21 go collect the money, you go collect the money?

23 Q. All right. Do you have any idea why the

24 Millers met with you and gave you another check, or

25 actually two checks for $59,300, and another one for a 152 1 thousand dollars on April 16th, 2013?

2 A. That's to initially begin construction. One is

3 a down payment, and one is earnest money.

4 Q. Right. Well, why did they come back after

5 apparently there was only this contract? Why did they

6 have to come back and then write you a check?

7 A. I can't remember.

8 Q. You sell a lot of homes, right?

9 A. I try to, sir.

10 Q. Do you remember everything you tell people?

11 A. I'm sorry?

12 Q. Do you remember every promise or representation

13 you tell your customers?

14 A. I mean, we take notes, so I don't just make

15 promises. We make notes and write stuff down.

16 Q. Do you remember the promises you made to the

17 Millers?

18 A. They're written down. I didn't make any

19 promises other than what was written down as far as the

20 construction of the house.

21 Q. Okay. During construction, how early on in

22 construction did the Millers tell you that they had

23 concerns about the construction of their house?

24 A. Again, is that date-wise or like process?

25 Q. We'll keep it with construction. 153 1 A. Okay. I mean, they had a couple of questions,

2 but nothing that couldn't be fixed.

3 Q. How early on?

4 A. I think after the frame and the roof was put

5 in.

6 Q. Remember giving Ms. Miller a red spray can and

7 telling her to spray whatever they had problems with?

9 Q. Okay. Do you normally do that?

10 A. Never.

11 Q. What was different about this time?

12 A. She called me at 8:00 in the morning concerned

13 about the wood framing, but I reiterated to her that the

14 superintendent hadn't punched the house yet. So, he

15 hadn't -- the superintendent hadn't had a chance to walk

16 the house and mark it hisself (sic), which he does with

17 spray paint. But since she insisted on it, I told her I

18 would go buy the paint and meet her at the house, and

19 she could paint or mark what she thought needed to be

20 fixed.

21 Q. Did you ultimately get to meet with the

22 superintendent?

23 A. Sir?

24 Q. Did you meet with the superintendent and talk

25 about Ms. Miller's or the Millers' complaints? 154 1 A. Yes.

2 Q. Tell me about that conversation.

3 A. About the wood?

4 Q. Well, you said you met with the superintendent

5 to talk about the Millers' complaints.

6 A. Well, that was the first complaint, that was

7 the wood. I talked to him about -- specifically about

8 the red paint. He was at the house, and I told him that

9 what she had marked. And he said to me again, "Kris, I

10 haven't walked the house, but have her mark it. I'll

11 come back, mark it, and we'll replace what we have to

12 get fixed."

13 Q. Okay. Did y'all fix everything that the

14 Millers spray painted or had an issue with?

15 A. I don't fix it, so I don't know if it was

16 fixed, everything. That's not part of my job.

17 Q. Okay.

18 A. So, I couldn't say yes or no to that question.

19 Q. Well, let me ask you an easier way. After you

20 get the contract signed, what more do you have involved

21 with the actual construction?

22 A. Nothing.

23 Q. So, you do still talk to the customers, but you

24 don't have any involvement or knowledge about

25 construction, right? 155 1 A. Yes.

2 Q. So, when the Millers told you those complaints,

3 it goes from you right to the superintendent, correct?

5 Q. Who does it go to?

6 A. Goes to my boss, Mr. Hernandez, and then he or

7 whoever else directs it to Michael. And sometimes I do

8 talk to Michael, but not all the time.

9 Q. So, it goes at least to either Mr. Hernandez or

10 it goes up to Michael, and is there any follow-up by you

11 to discuss with the Millers what decisions were made,

12 what would be done?

13 A. Well, what I do is I take it to the proper

14 channel. Then they come back and let me know if it had

15 been fixed, but they don't go into detail with me.

16 Q. Is it fair to say that you don't really know

17 whether or not there were repairs made?

18 A. I know there were repairs made, because I went

19 back, and the red paint was gone.

20 Q. Okay. You know every repair that was made?

21 A. No, I said on the red paint. We're talking

22 about the red paint, what I'm talking about.

23 Q. I'm just talking about all the complaints.

24 A. That was the one complaint that I got from

25 them, was the red paint issue with the split 156 1 two-by-fours.

2 Q. All right. Now, you mentioned something about

3 promises or representations. You would agree with me

4 that any promises that you made during the sales

5 process, that Debo Homes has to honor those, correct?

6 A. Again, sir, if I make -- if I make a note to

7 give them something, I write it down. When you say

8 promises, I don't understand what you're saying. Can

9 you give me one example of what you say I said?

10 Q. Yeah. Well, let me ask it even easier. If you

11 make a representation, a promise during sales, do you

12 believe that you have to honor that as Debo Homes?

13 A. I'm conflicted with the word promise, because I

14 write it down, I make a note. If they said they want

15 brick, stone, accent, granite color, this, I write it

16 down. So, I don't understand promise. Like if they ask

17 for something specifically, like a door or a French

18 door, I make notes of it. So, I don't understand, other

19 than, you know, closing the contract and making a date

20 to close.

21 Q. Let me ask you if you agree with me. In

22 exchange for $178,000, Debo Homes was going to build the

23 Millers a home in accordance with the plans and

24 specifications. You agree with that?

25 A. Yes. 157 1 Q. Do you agree with me that Debo Homes was going

2 to build a home in accordance with anything that's in

3 the contract or any representations made to the Millers?

4 A. Can you repeat that again?

5 Q. Yeah. Would you agree with me that Debo Homes

6 was going to build the home in accordance with anything

7 that's in the contract or any representations made to

8 them?

9 A. Not 100 percent of what you said. What's in

10 the contract, yes.

11 Q. Okay. Now, you remember we did your

12 deposition, right?

14 Q. You didn't say that before.

15 A. Uh-huh.

16 Q. Before, you just said yes. You remember saying

17 yes, that the representations you made to them --

18 MR. WELSCHER: Objection, improper

19 impeachment. He never gave him the opportunity to even

20 identify what we're talking about.

22 Q. (BY MR. CROCKETT) Do you remember in your

23 deposition, you said that, yes, the representations and

24 the words in the contract were binding on Debo Homes?

25 A. I don't understand when you say 158 1 representations. Represent -- what did I represent?

2 Q. Let me read it to you.

4 MR. MARTINEZ: Line and page, Brian?

5 MR. CROCKETT: It is page eight.

6 MR. MARTINEZ: Line what?

7 MR. CROCKETT: Line 14.

8 Q. (BY MR. CROCKETT) Here, I asked you: "You guys

9 were all going to build the home in accordance with

10 anything that's in the contract or any representations

11 made to them, correct?"

13 Q. And you said, "Yes"?

15 Q. Okay. You understood that question?

17 Q. Okay. The representations that you made during

18 the sales then, you would agree -- or at least you used

19 to agree that Debo Homes had to honor that, correct?

21 Q. Okay. Do you remember attending an inspection

22 with a Mr. Knueppel?

23 A. I know I was there with an inspector. I can't

24 remember his name.

25 Q. Why were you there? 159 1 A. I just happened to be there when he was there.

2 Q. So, it was just by luck?

3 A. I was -- I was at my job, walking the house,

4 and he just -- he was there. I don't know if it was by

5 luck, or coincidence, I guess.

6 Q. Well, you don't have any involvement in the

7 construction, right? That's what you said.

8 A. I don't have any involvement in the

9 construction, no.

10 Q. So, you were walking out there. What were you

11 doing, just looking around?

12 A. Sir?

13 Q. You were just looking around?

14 A. Just working.

15 Q. Helping with construction?

16 A. No.

17 Q. Just walking the grounds?

18 A. I have to give my customers updates if someone

19 calls and asks me what stage the house is, because I

20 write on the contract a closing date. So, I just go by

21 when I'm working, walk by. I don't involve myself with

22 telling someone how to work. I just walk the house. I

23 don't stop or intrude on them.

24 Q. Is it pretty common that your customers have to

25 hire home inspectors? 160 1 A. Fifty percent of our customers hire their own

2 inspectors.

3 Q. Okay. And you don't meet with those inspectors

4 or find out any of their thoughts or conclusions or

5 anything?

6 A. I've met with some in the past.

7 Q. Did the Millers give you a report from Mr.

8 Knueppel?

9 A. I think he sent it to me.

10 Q. Okay. Then what did you do with it?

11 A. Forwarded it to the proper people.

12 Q. Did you have any other involvement, other than

13 forwarding it to someone else?

15 Q. Did you get another inspection -- you're aware

16 there was another inspection May 13th, right, four days

17 later?

19 Q. You weren't aware of that?

20 A. Huh-uh.

21 Q. Is that a no?

22 A. By the same Mr. Knueppel, or another company?

23 Q. No, same guy.

24 A. Yeah, he came back and did something else.

25 Q. Did the Millers invite you to that? Did the 161 1 Millers invite you to come out?

3 Q. Would you have wanted to be there?

4 A. Sir?

5 Q. Would you have wanted to be there?

6 A. No.

7 Q. It doesn't really concern you, right?

8 A. I wouldn't say it doesn't concern me, but I was

9 there the first time by coincidence. By chance, I was

10 there again, but I don't intrude on his work. I don't

11 know what he does. I'm not fluent in that part of the

12 construction, so I wouldn't interfere. I wouldn't know

13 what to say.

14 Q. So, that was May 13th, though, right?

15 A. I know it was in May, but I don't know the

16 exact date.

17 Q. Let me ask you, as far as that inspection, the

18 second one, you got a report forwarded to you again,

21 Q. And then what did you do?

22 A. Just forwarded it to the proper people.

23 Q. And you had no further involvement after that?

24 A. No.

25 Q. Who made the decision to start drywalling the 162 1 day after Mr. Knueppel's inspection?

2 A. I don't know who made that call. I'm not

3 involved in that.

4 Q. I show you Exhibit No. 3. These are the text

5 messages back and forth between you and the Millers.

6 This one is May 14th at 10:51 a.m. Do you remember this

7 text message?

9 Q. When did y'all say you were going to do the

10 drywall?

11 A. I think it was on the weekend -- or, no, it was

12 Tuesday.

13 Q. Then it looks like about an hour or so after

14 you told them, the Millers, that you were going to

15 sheetrock tomorrow, you said, "No, actually, we're going

16 to sheetrock today." Right?

18 Q. Who told you to tell the Millers, "No, we're

19 going to sheetrock today," plans changed?

20 A. My boss.

21 Q. Who?

22 A. Mr. Hernandez.

23 Q. Okay. Mr. Hernandez told you that, "We're

24 going to sheetrock on May 14th, 2013"?

25 A. Yes. 163 1 Q. And you had already sent Mr. Hernandez two

2 reports?

4 Q. Did you ask Mr. Hernandez, "Well, are we going

5 to fix the issues with the home?"

6 A. I didn't have that -- I didn't know that

7 information, so I wouldn't have asked him that.

8 Q. That's not your lane?

9 A. No, sir.

10 Q. I'm showing you Exhibit No. 4, and we've seen

11 this e-mail before, Mr. Dominguez. Do you remember

12 getting a letter from the Millers on May 21st, 2013 with

13 a list of concerns that they had?

15 Q. What did you do with this e-mail?

16 A. I forwarded it to the proper people.

17 Q. What did you do after that? What more did you

18 have involved with this?

19 A. Just waiting to see if they were going to

20 correct the issues, or if there were issues even to be

21 corrected.

22 Q. Okay. But you, yourself, didn't have any

23 further involvement?

24 A. With correcting the issues?

25 Q. Well, just this. Once you forwarded it on, 164 1 that's the extent of your involvement?

2 A. Yes, sir.

3 Q. All right. When you got this e-mail from the

4 Millers, did you talk to Mr. Hernandez?

6 Q. Did you tell him -- even when they said, "We're

7 not going to make another payment until we've confirmed

8 these repairs have been made," did you talk to Mr.

9 Hernandez about that?

10 A. I don't remember having a conversation with him

11 about this list after I forwarded it to him, because I

12 knew he would fix them.

13 Q. Did Mr. Hernandez tell you to call the Millers

14 because it was time to pay $59,300?

16 Q. Did you call them once?

18 Q. That was the only time you called them?

19 A. I called her once.

20 Q. Okay. When?

21 A. When he asked me to call them. I don't know

22 exact date.

23 Q. Was it before or after the drywall had gone in?

24 A. I can't recall.

25 Q. Did you call and ask for the money after the 165 1 drywall went in?

2 A. I can't recall when -- when -- what phase the

3 house was in when he called me and asked me to ask for

4 the money.

5 Q. So, you asked them one time, and what was the

6 Millers' response?

7 A. They asked me to call you.

8 Q. When was that?

9 A. They retained you, I guess, after that, they

10 had issues with the house.

11 Q. So, they told you to call me?

12 A. Through e-mail or text message, I believe.

13 Q. Did you call me?

14 A. Yes, I called you.

15 Q. When did you call me?

16 A. I don't know the exact date, but I called you,

17 and then you said you were having your inspector come

18 from Corpus to inspect the house, for us to cease on the

19 house and not do any more work.

20 Q. Did you have an issue with us telling you we

21 wanted to have an inspector from Corpus Christi?

22 A. No issue at all. Just wanted to know what day

23 and time you were going to bring him.

24 Q. And did we tell you it was going to be July?

25 A. You told me July, but you never gave me a date. 166 1 Q. Did you ever ask for a follow-up?

2 A. Yes, I asked several times.

3 Q. How many times did you call me?

4 A. I think once or twice. But I asked more than

5 once as to when you were going to send your inspector,

6 and I also asked you why he had to come from Corpus.

7 Q. Have you had inspectors come from different

8 parts of Texas?

9 A. No.

10 Q. First time?

11 A. Yeah. Houston's a big city, they got a lot of

12 inspectors. You wanted that one from Corpus.

13 Q. Right. You had a problem with that?

14 A. No, just wanted to know the date when he was

15 coming.

16 Q. Have you ever been involved with construction

17 defect litigation?

19 Q. You don't know anything about it?

21 Q. In May, you got a letter from me. What did you

22 do with this letter that said stop construction?

23 A. I didn't do anything with the letter but

24 forward it to Mr. Hernandez.

25 Q. That was the extent of your involvement? 167 1 A. (Nodding.)

2 Q. Yes?

4 Q. All right. Now, you knew that we had told you

5 that we were going to do a July inspection and that an

6 expert was going to come from Corpus, right?

8 Q. When did Mr. Hernandez tell you to start

9 construction again or start selling the home?

10 A. Those are two -- that's a two-part question.

11 Q. All right.

12 A. I don't start construction.

13 Q. Let me ask you this: When did you find out

14 that Debo Homes was going to start construction again

15 after we asked them to stop?

16 A. I didn't know.

17 Q. You never knew?

18 A. I wouldn't say I never knew. I just didn't

19 know when he decided to do that. You'd have to ask him

20 that.

21 Q. You have no idea what date that would be from

22 when you learned?

23 A. No, sir.

24 Q. When did Mr. Hernandez tell you to start

25 marketing the house to sell to someone else? 168 1 A. August? I think August.

2 Q. Now, talk to me about that time period between

3 when the Millers said to stop and August. Did you ever

4 ask Mr. Hernandez what happened to the Miller agreement?

6 Q. That's not your lane, right?

8 Q. Mr. Hernandez says sell the house to someone

9 else, you sell the house to someone else, right?

10 A. It's not that simple.

11 Q. Well, walk me through it.

12 A. Well, I mean, you guys told us to stop. Your

13 inspector never came. We asked. July came, no one ever

14 came.

15 Q. Well, did you see the photographs from July?

16 A. I never seen anyone come, so I'm selling other

17 houses.

18 Q. Well, let me ask you this: You've never been

19 involved in construction defect litigation, right?

20 A. Huh-uh, no, sir.

21 Q. How hard is it to inspect for construction

22 defects when the house is done?

23 MR. MARTINEZ: Objection. He wouldn't

24 know, he's not an inspector.

25 THE COURT: Overruled. 169 1 Q. (BY MR. CROCKETT) Mr. Dominguez, how hard is it

2 to inspect for construction defects when the house is

3 completely done?

4 A. I wouldn't know, sir. I'm not an inspector.

5 Q. Would you be surprised that you'd actually have

6 to take down all the drywall, pretty much deconstruct

7 the entire house? Would that surprise you?

8 MR. MARTINEZ: Objection. He's saying

9 what an inspector would do to inspect the house.

11 Q. (BY MR. CROCKETT) Does it surprise you that

12 you'd have to deconstruct a finished house to find a

13 construction defect?

15 Q. Would it make any sense to deconstruct a house

16 when just that alone would cost more than the house?

17 A. I wouldn't know the cost, sir.

18 Q. Did you ever see this letter of May 29th by Mr.

19 Hernandez?

21 Q. Did he tell you to send this to the Millers?

22 A. I didn't send it, no.

23 Q. Did Mr. Hernandez ever tell you that Debo Homes

24 had agreed to give all their money back and just sell

25 the house to someone else? 170 1 A. Yes.

2 Q. He did, right?

4 Q. Do you know if they've ever given any of the

5 money back, ever?

6 A. I don't write the checks, sir. I wouldn't even

7 know.

8 Q. After the Millers told y'all to stop

9 construction, they didn't make a payment, you didn't

10 have any further contact with them, is that right?

11 A. With the Millers?

12 Q. Right.

13 A. No.

14 Q. That was done?

15 A. Sir?

16 Q. That was done, right?

17 A. You told me in your e-mail not to contact them.

18 You told me to contact you.

19 Q. Did you ever see the letter that the Millers

20 received from Debo Homes' lawyers?

22 Q. Did Mr. Hernandez ever tell you that, "Mr.

23 Dominguez, if you're ever out there on the property

24 again and you see the Millers, let us know, because we

25 want to vigorously prosecute them" -- 171 1 A. No.

2 Q. -- "for trespass"?

3 A. No.

4 Q. Have you ever prosecuted or threatened to

5 prosecute anyone for trespass that's bought a home from

6 y'all?

8 Q. First time?

10 Q. Were you surprised that that's what Mr.

11 Hernandez told the Millers?

12 A. Am I surprised that that's what he told them?

13 Q. Yeah.

14 A. I mean, I don't know. I don't know how to

15 answer that question. That's him personally. You know,

16 I work with him. I don't know personally what he would

17 do, so I don't know how to answer that question.

18 Q. Okay. Did Mr. Hernandez ever tell you that

19 Debo Homes was not going to pay the Millers back the

20 full amount of their money after you, yourself, said

21 that he told you he would?

22 A. No, he never told me he wouldn't pay them back.

23 Q. Okay. So, this is the first time, in Exhibit

24 No. 7, or when this lawsuit got filed, that anyone from

25 Debo Homes, to your knowledge, has ever said anything 172 1 about not paying them back a hundred percent of their

2 money?

4 Q. And you weren't aware that Debo Homes was suing

5 the Millers now for any lost profits or their attorney's

6 fees or interest or mortgage rates?

7 A. That's not part of my business, so no.

8 Q. How many potential buyers came to buy the

9 Millers' house?

10 A. I can't recall.

11 Q. Ten, 20, one?

12 A. Two, maybe three.

13 Q. And the Benges offered $168,000, and you sold

14 them the house, right?

16 Q. Now, you know that the house that the Millers

17 were buying was different than the house you sold the

18 Benges, right?

19 A. It was different?

20 Q. Yes.

21 A. How so?

22 Q. Well, do you remember that the Millers' house

23 was supposed to have tile throughout?

25 Q. Did the Benges' house have tile throughout? 173 1 A. Sir, I've sold about 30 houses from that time.

2 I can't recall what they had in that house.

3 Q. You just make the sales, right?

4 A. (No response.)

5 Q. You just make the sales, right?

6 A. I sell homes, yes, sir.

7 Q. Okay. And you've seen all the photographs that

8 we sent over to your lawyers?

9 A. I don't know if I've seen all of them.

10 Q. Are these the types of homes that you sell?

11 Whenever you've gone to look at them, do they always

12 look like this: Broken boards, crushed vents, boards

13 nailed together, hanging on the edge, boards that are

14 uneven?

15 A. Do you see the orange paint?

16 Q. Yeah. What's that?

17 A. Those are marks. Like I gave the can of red

18 paint to Mrs. Miller, because the framers are human and

19 make mistakes. So, the superintendent walks behind them

20 and marks everything that needs to be corrected. So,

21 those red paints and the orange are defects. So, the

22 superintendent walked the house, so the framer comes

23 back and corrects it.

24 Q. In all those houses that you've looked at and

25 sold, do they always look like these pictures? 174 1 A. You'd have to ask the superintendent. I don't

2 walk every house.

3 Q. Well, the ones that you have walked, tell me

4 that, did they all look like that?

5 A. I don't look at all the houses' frames, sir.

6 If it's brought to my attention, then I'll take a look

7 at it.

8 Q. And if it's not brought to your attention, what

9 happens?

10 A. Then the superintendent does his job and marks

11 them.

12 Q. But you don't know that, right?

13 A. Sir?

14 Q. You don't know that; you're not involved with

15 it, right?

17 Q. Did you ever promise the Millers that Debo

18 Homes would use the highest quality subcontractors?

20 Q. You would never say that, right?

21 A. I wouldn't ever say never.

22 Q. Well, do you know if you told that to the

23 Millers or not?

24 A. That I said the highest quality contractors?

25 Q. Yeah. 175 1 A. I never said that.

2 Q. Okay. You would never tell the Millers that

3 y'all partner with only the highest quality vendors

4 subcontractors and artisans in the industry, right?

5 A. That's not my part -- that's not part of my

6 job, to hire vendors and contractors. So, I would never

7 say that, because I don't know if they are or not.

8 Q. Well, let me ask you this: Did you ever

9 promise the Millers that they could be assured that, not

10 only will you have a quality, well-built custom home,

11 but that the buyers would be engaged in a process that

12 is truly customer first; building a home is indeed

13 process and one that is best meticulously managed?

14 A. I never use those words.

15 Q. Do you ever tell your customers to go to your

16 web site?

18 Q. But what you say on your web site, that doesn't

19 matter?

20 A. Sir?

21 Q. What you say on your web site --

22 A. You asked me if I said that.

23 Q. Let me ask you this: What's on your web site

24 doesn't matter. Is that true?

25 A. I have to get back to that. You asked me if I 176 1 had said that. What did you say, meticulously this?

2 You were directing that to me. I thought you said if I

3 said that. I never said that. Now, if it's on my web

4 site, then it's on my web site. Those are two different

5 things.

6 Q. Well, do you tell customers that the project

7 needs to be managed, supervised, and that Debo Homes is

8 going to do that?

9 A. I don't tell my customers that it's going to be

10 managed.

11 Q. Do you tell your customers that the vendors and

12 the subcontractors are going to be good, great, average,

13 whoever is there that day?

14 A. I don't discuss that process with my customers,

15 unless they ask me specifically about the framing or the

16 roofing or this -- or the windows. And if I don't have

17 the answer, then I talk to the professional, which is my

18 boss, and he'll tell me what they asked. It's depending

19 on customer to customer, what specifically they ask me

20 about. I mean, I'll build a quality home. If they ask

21 if they should get an inspector, I gladly tell them,

22 "Yes, get one, so you can have peace of mind because

23 you're spending a lot of money, so I want you to be

24 happy with it."

25 Q. Well, I mean, you tell your customers that Debo 177 1 Homes' process of home buying from start to finish must

2 meet every one of our customers' expectations, right?

3 A. That's impossible.

4 Q. So, you tell people to go to your web site, but

5 you're not going to follow through with that?

6 A. If you look at my contract -- and you can put

7 up the contract -- it says -- when there's a part on

8 possession, it says the customer will take possession of

9 home upon funding and closing of the loan and with

10 everyday wear and tear.

11 Q. Right.

12 A. So, there are some issues with the home that

13 will be corrected, but that's what's on the contract. I

14 wouldn't say anything other than what would be on the

15 contract. That's why I go over the contract with the

16 customer. I don't over-promise and under-deliver.

17 Q. So, promises or representations that you make

18 to your customers that aren't in writing, you agree with

19 me that you have no intent, no -- I guess you can say

20 you're never going to honor those, right?

21 A. No. No, I wouldn't say that.

22 Q. Well, are you going to honor them, the

23 representations, the promises that you make?

24 A. We promise to build a good house, quality.

25 We're human beings, we make mistakes. That's why we ask 178 1 if they want to get it inspected, they can hire an

2 inspector to come check our work.

3 Q. I just want to ask you three things, though:

4 You know that you -- if you ever represent or promise

5 something, and it's not in the contract, you know that

6 you're not going to honor that, right?

8 Q. You don't know that?

9 A. No. It's -- it just depends on the customer.

10 If they specifically ask me for something, then I'll

11 talk to the owner, then he'll do it. Sometimes those

12 are above and beyond what customers ask.

13 Q. You remember the Millers asked a whole lot of

14 questions, didn't they?

15 A. We made a lot of notes, yes. We changed walls

16 and stuff for them.

17 Q. The Millers asked you about the subcontractors,

18 people who were going to be building their house?

19 A. Did they ask me about them?

20 Q. Yeah.

21 A. Like what? Like what did they ask? What did

22 they ask me?

23 Q. What did they ask you?

24 A. I don't know.

25 Q. You don't remember what you told them either, 179 1 right?

2 A. If they used -- if we used professional

3 contractors? If they asked if they're people who were

4 licensed for their field, yeah, they are, but we have

5 our house inspected along the way as well.

6 Q. And talk to me about that. Who inspects the

7 home during that process?

8 A. An inspection company.

9 Q. And you tell your potential buyers about that

10 third-party inspection, don't you?

11 A. They ask if the house will be inspected, yes.

12 Q. And what do you tell them?

13 A. It will be inspected.

14 Q. Do you tell them how many times?

16 Q. Do you tell them your relationship with that

17 inspection company?

18 A. I don't have a relationship with them.

19 Q. Well, who inspects all of Debo Homes' houses?

20 A. You'd have to ask Mr. Hernandez what the name

21 of that company is.

22 Q. You don't know?

23 A. No.

24 Q. You just know that a third-party, independent

25 inspector inspects it during the construction process, 180 1 right?

3 Q. And that's what you tell your customers?

5 Q. Do you ever remember telling the Millers that,

6 before they ever had to pay another payment, that any

7 problems in the home would be fixed?

9 Q. And you believe here today that you have done

10 that, right?

12 Q. And you would have never done anything

13 differently than what you did, right?

14 A. As far as the selling process or the

15 construction process?

16 Q. Either. Would you do --

17 A. I don't do the construction process. I do the

18 sales. I did a great job selling, selling them a home.

19 MR. CROCKETT: Pass the witness. Thank

20 you, sir.

21 THE COURT: Ladies and gentlemen, let's go

22 ahead and take our afternoon break at this time. If you

23 would please be back in the jury room at 3:30.

24 (Jury out)

25 THE COURT: See y'all back at 3:30. 181 1 (Short break)

2 (Jury in)

3 THE COURT: Be seated.

4 Mr. Martinez, you may continue.

5 MR. MARTINEZ: Thank you, Judge.

6 DIRECT EXAMINATION

7 Q. (BY MR. MARTINEZ) Good afternoon, Kris.

8 A. Good afternoon.

9 Q. What do we have here in Exhibit 1?

10 A. A new home contract.

11 Q. Well, where is the other contract?

12 A. There is no other contract.

13 Q. Isn't this a financing contract?

14 A. No, it's cash.

15 Q. Kris, how long have you been with Debo?

16 A. This November will be ten years.

17 Q. And how many homes have you sold over that

18 time?

19 A. Several hundred, I believe, maybe.

20 Q. So, how do you approach the sale of a home with

21 a customer?

22 A. Just greet them, talk to them, find out what

23 they're looking for and see if I can accommodate what

24 they -- what they describe to me.

25 Q. Has it ever been the case where a customer came 182 1 to you, and they didn't end up wanting to buy a home

2 from Debo?

4 Q. Now, when did you first meet the Millers?

5 A. I can't remember. Last year sometime.

6 Q. And how was it working with them? How would

7 you describe that?

8 A. It was good. I had a great experience working

9 with them.

10 Q. How many times did you meet with them?

11 A. More than ten.

12 Q. How about before y'all signed Exhibit 1 here?

13 A. More than ten times.

14 Q. Not just two?

16 Q. How many times did you meet after you signed

17 Exhibit 1 here?

18 A. A lot more times.

19 Q. More than ten?

21 Q. What did they ask about before they signed

22 Exhibit 1 here?

23 A. They had a lot of changes they wanted to make

24 to a current plan I had. So, we changed walls, added a

25 sink, did a lot of different things to accommodate what 183 1 they wanted in a house that would fit their needs.

2 Q. Did you give them a chance to look over this

3 contract here in Exhibit 1?

4 A. Yes. They took it home.

5 Q. Well, that's not what Ms. Miller said. She

6 said you wouldn't let her take it home.

7 A. I don't see why I wouldn't let her take it

8 home.

9 Q. She also said that Stan -- I believe you met

10 Stan?

12 Q. Who is he?

13 A. Their Realtor.

14 Q. Was he there with you April 13th when y'all

15 signed Exhibit 1?

17 Q. When did you meet him?

18 A. After, I believe.

19 Q. So, if his signature is on the end of Exhibit

20 1, when did it get signed by him?

21 A. When they took it home.

22 Q. Did the Millers ever tell you that they were

23 using all of their retirement money to purchase this

24 home?

25 A. No. 184 1 Q. Where did they tell you they got the money

2 from?

3 A. I believe it was an inheritance.

4 Q. Did the Millers ever tell you that they simply

5 wouldn't have any money to make repairs of the home?

7 Q. Did you --

8 A. But I told them they wouldn't need any, because

9 it's a brand new house, and it has a warranty on it.

10 So, whatever the amount of house that was sold for, for

11 the time after, it would be warranted (sic), so they

12 wouldn't need any extra money.

13 Q. That was my next question: Does Debo send its

14 customers who buy a new home a bill for repairs?

16 Q. I know we've seen a lot of pictures. I think

17 you saw a few of them.

18 A. Uh-huh.

19 Q. Did Debo send a bill to the Millers for a split

20 two-by-four?

22 Q. Does Debo ever?

24 Q. Did the Millers ever describe you what their

25 personal level of satisfaction was? 185 1 A. No.

2 Q. What were the Millers actually responsible for

3 paying for during construction?

4 A. Nothing.

5 Q. What about upgrades?

6 A. If they wanted to get upgrades and add

7 additional stuff opposed to the contract, we could make

8 an amendment, and then they would be charged accordingly

9 to whatever the fee was.

10 Q. And that was the only thing that they'd be

11 charged for out of pocket?

13 Q. Let's look at that home selection sheet that

14 you mentioned. You recognize Exhibit 3 here?

16 Q. And what is this?

17 A. That's the elevations for the home.

18 Q. And which one did the Millers pick?

19 A. The first one.

20 Q. And when did they decide on this?

21 A. In the office, while we were talking at one of

22 our meetings.

23 Q. This is before or after they signed Exhibit 1?

24 A. It was before.

25 Q. How about the second page there? 186 1 A. Are the changes of the wall and the back patio

2 and the window in the garage, so forth.

3 Q. How did that happen? What was happening at

4 this meeting when you sat down with them and went

5 through this?

6 A. They were telling me how they wanted the home

7 changed and configured to fit their needs, and we made

8 the notes and did so.

9 Q. How about that page, the third page of Exhibit

10 3?

11 A. Yeah, she had wrote those notes with her

12 concerns about the square footage and size of her rooms.

13 Q. And what about this, this note up here, if you

14 can read that?

15 A. She wrote that.

16 Q. What's that about?

17 A. I think she was -- the approximate square

18 footage of the house on the changes.

19 Q. Did she want to increase it?

20 A. Yeah, she increased it from 1,614 by pushing

21 out the back wall, changing some other things in the

22 house.

23 Q. Was that a problem with Debo?

25 Q. Is that normal in your home-selling experience? 187 1 A. Yeah, sometimes.

2 Q. Did they come to you with any features that you

3 said, no, we won't do that?

5 Q. Now, we've also seen some text messages here

6 today. Why did you text with the Millers?

7 A. They were texting me back and forth. Sometimes

8 customers will call me, text me or e-mail me.

9 Q. Well, why did you have lunch with them?

10 A. Like I say, when you asked how the experience

11 was, it was a great experience. We went out and had

12 lunch and talked about their house and other topics.

13 Q. What else did you do to make this experience,

14 you know, memorable in a good way for the Millers?

15 A. Accommodated all their questions on their house

16 and the notes they picked for the changes they wanted

17 for the dogs and the door, back door. They wanted a

18 back door where they can accommodate a big electric

19 doggy door. They wanted to add a sink in the garage.

20 They wanted to put a wall -- open a wall up and put a

21 window, so they could put a window unit, so when she was

22 cleaning her dogs or grooming her dogs, they'd be

23 comfortable in there.

24 Q. Did you tell the Millers when the sheetrock was

25 going to be installed on this house? 188 1 A. Yes.

2 Q. Did you give them a chance to inspect --

4 Q. -- before it was put in?

5 A. Oh, yes.

6 Q. Now, what problems did the Millers express to

7 you about the construction?

8 A. Split boards, I guess the square footage of the

9 house they felt was incorrect. Just some smaller --

10 small issues, really.

11 Q. And what did you do to address those concerns?

12 A. I passed the information down to the correct

13 people to get it fixed.

14 Q. Well, why did you just pass it down, instead of

15 taking care of it yourself?

16 A. Because I don't do construction. I sell homes.

17 Q. About how many times did you actually visit the

18 home in question with the Millers?

19 A. A couple of times.

20 Q. And when was the last conversation you had with

21 the Millers before anything that was said today?

22 A. Around that last year, that time when they told

23 me to call their attorney.

24 Q. And when was that?

25 A. I can't remember the month. 189 1 Q. You can't remember?

2 A. Yeah, I can't remember.

3 Q. So, when you called them, what was said?

4 A. For me not to contact them anymore; that if I

5 had any other questions, to call their attorney.

6 Q. But you called them multiple times demanding

7 payment.

9 Q. You were aggressive, Kris.

11 Q. So, when were the Millers supposed to make

12 their second payment?

13 A. When my boss asked, so I guess it was prior to

14 sheetrocking.

15 Q. And how did you contact them for that second

16 payment?

17 A. I believe I called her and asked for the money.

18 Q. Is there a text message for that?

19 A. I don't remember.

20 Q. How was your demeanor when you asked for the

21 payment?

22 A. Extremely nice. I'm asking for almost $60,000.

23 Q. Is that a big decision?

24 A. It's a lot of money, yes. I respect that.

25 Q. I believe you said earlier you started 190 1 marketing the home in August?

3 Q. Was it an easy resale on this home?

4 A. I mean, a couple of issues, I mean, with the

5 house, but -- it was a little rough, what the customer

6 had, because it had a brown roof and a couple of changes

7 that they had made.

8 Q. What do you mean by that, little issues, brown

9 roof? Why did you mention that?

10 A. Well, because they specifically asked -- we

11 mostly sell most of the houses with a black shingle

12 roof, but since they customized the house, we went and

13 did what they wanted, expecting they were going to buy

14 the house from me. So, we put a brown shingle roof on

15 it, changed out the back, put a bigger patio, which

16 normally we don't do because it's an upgrade. So, I

17 couldn't sell the house the way it was for what I wanted

18 to sell it for.

19 Q. How did you market this house after the Millers

20 walked away or didn't want to buy it?

21 A. We put it on -- a sign in the front, made

22 fliers and passed out fliers, maintained the grass and

23 the landscaping, and we had to put a desk and Internet.

24 I mean, I had to sit there and market the house for

25 resale. 191 1 Q. So, ultimately, who did you sell the house to?

2 A. To Benge, a family named Benge.

3 Q. And why would they only pay ten grand less than

4 what the Millers originally agreed to?

5 A. Because they didn't want to pay for the

6 upgrades as far as the size of the house and the extra

7 patio. I normally don't put sinks in the garage. So,

8 things like that.

9 Q. Is that house still standing today?

10 A. Yeah. They're very happy with it.

11 Q. Any complaints from them?

13 Q. Have you ever had a situation like what we've

14 gone through with the Millers in this case?

16 Q. Well, did you try and resolve the situation

17 with the Millers?

18 A. Oh, yes.

19 Q. How so?

20 A. By trying to figure out how we could fix it or

21 make them happy, because they did sit down with me at

22 length and had a lot of meetings and spoke about what

23 they wanted to do and make the house how they wanted it.

24 They were happy with the lot size and the yard and their

25 animals would be happy there. I wanted them to be happy 192 1 with the house.

2 Q. Kris, this is the contract again.

4 Q. Here, there's a portion that says -- we'll

5 start with three. It says sales price?

7 Q. What's it say in letter A?

8 A. Cash portion of sales price payable by buyer at

9 closing.

10 Q. And how much?

11 A. 59,300.

12 Q. How about the line below that?

13 A. The sum of all financing described below,

14 excluding any loan funding fee or mortgage insurance

15 premium, which is 118,700.

16 Q. How much is the total price?

17 A. Sales price is the sum of A and B, is 178.

18 Q. Well, if this is a cash deal, why does it say

19 financing on Line B?

20 A. Oh, because if it's going to be financing, then

21 you would mark one of the boxes that were going to be

22 financed.

23 Q. Are you referring to Section 4?

25 Q. So, why is there no box marked here in Section 193 1 4?

2 A. Because it's not financing. It's a cash house.

3 Q. Where is the addenda to this financing

5 A. There isn't any.

6 Q. Why not?

7 A. There's no box marked.

8 Q. Kris, you recognize this contract?

10 Q. What's this here in Exhibit 14?

11 A. This is the Benges' contract.

12 Q. All right. Let's go over the same sections.

13 What do we have there in Section 3, sales price?

14 A. Same thing, cash portion of sale payable by

15 buyer at closing is zero.

16 Q. What about B?

17 A. Sales price of sum of all financing described

18 below, excluding any loan funding fee or mortgage

19 insurance premium, which is $168,000. Total for C is A

20 and B combined, which is 168.

21 Q. Is this the financed home purchase?

22 A. Yeah, this is the boxes, finance.

23 Q. Are you referring to these boxes?

24 A. Yeah, paragraph four.

25 Q. Kris, whenever the home buyer signs a contract, 194 1 do they always deliver you a check on the same day?

2 A. No. Sometimes it will be the next day or a

3 week later a couple of days later. Depending on how the

4 meeting goes, they'll decide, you know, "Okay, well,

5 we'll sign the contract today. Oh, but I wasn't ready,

6 I don't have a check today." I'm like, that's fine, you

7 can bring a check the next day or a couple days later.

8 Q. Why did you call Mr. Crockett multiple times?

9 A. Oh, because I was told not to contact the

10 Millers anymore.

11 Q. What did you ask him about when you called him?

12 A. Oh, he had said that they were going to have an

13 inspector come out, and I called him and asked him when

14 he was coming.

15 Q. Did you ever get a firm answer?

16 A. No. I got a broad one, July, but never a date.

17 Q. When did you put those -- you mentioned earlier

18 that you put like fliers and a sign up on the house,

20 A. Yeah. A sign, yes.

21 Q. When did you put those up?

22 A. In August.

23 Q. Is this Plaintiff's Exhibit 2 what you're

24 talking about?

25 A. Yes. 195 1 Q. How about that one?

3 Q. When was that put up?

4 A. The same time.

5 Q. And that little sign right there?

6 A. Yes, same time, August.

7 Q. Real quick, since you mentioned this earlier,

8 is this the -- are these the other homes in the

9 neighborhood?

11 Q. What color are those roofs?

12 A. Black.

13 Q. Is that the Millers' home right there?

15 Q. And what color is the roof there?

16 A. Brown.

17 MR. MARTINEZ: Nothing further. I pass.

18 MR. CROCKETT: Short redirect, Your Honor,

19 or recross.

20 RECROSS-EXAMINATION

21 Q. (BY MR. CROCKETT) Mr. Dominguez, when you were

22 selling the home to the Benges, did you tell them about

23 the Millers' construction defect claim?

25 Q. Think that would have stalled the sale? 196 1 A. No.

2 Q. You just did a good job selling to them, right?

4 Q. You didn't sell good to the Benges?

5 A. They could have hired an inspector.

8 MR. MARTINEZ: One quick question.

9 REDIRECT EXAMINATION

10 Q. (BY MR. MARTINEZ) Kris, is this the -- in

11 Exhibit 8, is this the home that you sold to the Benges?

12 A. Yes, sir.

13 Q. What do we see there?

14 A. The back of the home.

15 Q. How about that?

16 A. Yeah, that's the house.

17 Q. What's that?

18 A. Ants.

19 Q. How about this?

20 A. That's the inside.

21 Q. How about these pictures?

22 A. Yes, sir, that's it.

23 Q. Is that carpet in the bedroom?

25 Q. How about these? 197 1 A. It's the bathroom, bedroom, carpet on the

2 floor.

3 Q. How about that one?

4 A. That's the attic.

5 MR. MARTINEZ: Nothing further, Judge.

6 MR. CROCKETT: No questions, Your Honor.

7 THE COURT: May this witness be excused

8 and released?

9 MR. MARTINEZ: Yes, Judge.

10 MR. CROCKETT: Yes, Judge.

11 THE COURT: Thank you, sir. You may step

12 down. You're excused and released.

13 THE WITNESS: Thank you.

14 (Witness out)

15 MR. KANYHA: Your Honor, the Plaintiffs

16 would like to call Brian Crockett.

17 BRIAN CROCKETT,

18 having been first duly sworn, testified as follows:

19 DIRECT EXAMINATION

20 Q. (BY MR. KANYHA) Mr. Crockett, I'm going to ask

21 you a few questions about the work that you and I have

22 put in this case, but before I begin to ask you these

23 questions, could you introduce yourself to the jury?

24 A. My name is Brian S. Crockett. Obviously,

25 before I was a lawyer, I spent a long time in the 223 1 were just getting the bottled water filled up so he

2 could have it on the stand.

3 MR. CROCKETT: May we begin, Your Honor?

4 THE COURT: Yes, sir.

5 JUAN CARLOS HERNANDEZ,

6 having been first duly sworn, testified as follows:

7 CROSS-EXAMINATION

8 Q. (BY MR. CROCKETT) Mr. Hernandez, can you please

9 state your name for the jury?

10 A. Yeah, Juan Carlos Hernandez.

11 Q. Mr. Hernandez, you are the president, the owner

12 of Debo Homes?

13 A. Yes, sir.

14 Q. Okay. Now, are you aware of all of the

15 promises or representations that Kris Dominguez makes to

16 its potential buyers?

17 A. Yes, sir.

18 Q. Okay. What do you tell him to say?

19 A. Excuse me?

20 Q. What do you tell him to say?

21 A. Well, when he come to me, it's me and my son,

22 and we going to make decisions. And I always trying to

23 get together and fix them up, you know. But it's no

24 way -- it's nothing to fix over here, because she don't

25 want to deal with us. The first time I asked her is 224 1 when I seen you sent us a letter, and she said

2 construction. I said what does that mean, you know?

3 I'm just trying to work it out nice with this lady, make

4 a house. And, you know, we make a house, and I see

5 people cry in the closing and everybody happy, you know.

6 And that's why I want to talk to them, but she -- after

7 you sent the letter, that's it.

8 Q. After you received our letter, you found out

9 about the -- at least the concerns that Ms. Miller had,

10 correct?

11 A. Yes, sir.

12 Q. All right. And you saw the photographs that

13 Ms. Miller had provided to y'all, right?

14 MR. WELSCHER: Excuse me, Your Honor. May

15 I approach the witness with the bottled water?

16 THE COURT: Yes, sir.

17 MR. WELSCHER: Thank you. (Handing.)

18 Q. (BY MR. CROCKETT) Exhibit No. 2, do you

19 remember seeing this photograph, sir?

20 A. Yeah, I seen that picture.

21 Q. And you would agree with me that that's not a

22 big deal, right?

23 A. That's correct. You know, it's -- those things

24 can be fixed easy. You know, you put another stud

25 together, and it's done. 225 1 Q. How do you fix it again?

2 A. You just put another stud together and you --

3 not take out that one, you just put a strong, good one,

4 and you're done with it, very easy.

5 Q. So, you nail another piece of wood into that

6 one?

7 A. No, another straight two-by-four, replace that

8 for a new one. That's it, that's easy.

9 Q. Tell me about this here. What was the issue

10 here, Mr. Hernandez?

11 A. Well, that house is not finished, you know.

12 That's why when I listen, you know, these things, the

13 house is not even finished. It's not even working by

14 the superintendent. At the last minute, we got an

15 inspector coming, we got procedures in the construction,

16 you know. This right there, they got the new stud and

17 the glue in and everything. They don't even know what's

18 going on there, you know. After you can turn, you can

19 see the stud right there. You got to put joists, and

20 every joist is right there, you know. But we're still

21 not in the procedure. That house, it's not finished

22 framing. It's a procession that you got to finish step

23 by step.

24 Q. Talk to me about what you're pointing at over

25 here. What is that? Is that the beam that supports the 226 1 house?

2 A. No. The beam is on the bottom, and this is the

3 joist. That beam support the joists, and you got to put

4 the joist hanger right there, tie the joist into the

5 beam.

6 Q. What's this one called?

7 A. This is a joist. It's not a beam.

8 Q. Okay. What's this one called?

9 A. A beam, yes.

10 Q. All right. I think we're getting there. So,

11 you're saying that each one of these joists --

13 Q. -- should have basically a hanger that ties

14 into the beam?

15 A. Yes, it's a joist hanger, that's correct.

16 Q. Now, why isn't there joist hangers?

17 A. Because the framing haven't finished.

18 Q. How do the joys hangers get put in?

19 A. Do you know what is a joist hanger?

20 Q. I do.

21 A. What is it?

22 Q. The issue is your joist hangers, is if you

23 already don't have them in, don't you connect them back

24 into the beams?

25 A. Yes, sir. We do the -- we fix all the stuff. 227 1 Even my superintendent, he mark it and paint it and

2 everything. And when the framer coming, he punching out

3 the whole house.

4 Q. So, you put your hangers, your joist hangers

5 over the top of the nails?

6 A. That's the way it's supposed to be.

7 Q. Okay. So, you nail it in first, then you put

8 your joist hangers over the top?

9 A. You put the joist hangers on it, and they got

10 like five holes in every one, nail it together even in

11 the joist hanger.

12 Q. Got you. Now, you know these pictures were

13 taken May 9th, 2013, right?

14 A. That's correct. I don't know when they took it

15 out, you know. I see the pictures later on, you know,

16 when they coming to me, you know.

17 Q. Now, you mentioned an inspection. When does

18 that inspection happen, Mr. Hernandez? This company,

19 tell us about it.

20 A. I don't remember when the superintendent called

21 for the inspection. You know, they call for an

22 inspection, and, you know, I'm in -- I'm the person in

23 the construction and my superintendent got to call when

24 it's ready. When he feels it ready, he call for

25 inspection. 228 1 Q. Tell us about that company that comes out and

2 inspects it.

3 A. It's Mortgage Property Service. It's an

4 inspector company, inspect houses, different builders,

5 you know, and they do three inspections. They do the

6 foundation inspection, they do the framing inspection,

7 and they do the final inspection.

8 Q. Do you know when MPS did this inspection for

9 the framing?

10 A. It's not yet. The framing is not even

11 finished. How he going to inspect it? When Michael

12 call him, he show up the next day. You call over there,

13 and they say, "What time do you want the inspection, in

14 the morning or the afternoon?" And that's when he's

15 ready.

16 Q. And every time that the inspection place comes

17 out, you get a bill for $103.72, right?

18 A. I don't pay the bills. We just -- whatever

19 bill they send to us, that's what we pay for.

20 Q. All right. So, I'm going to show you

21 Plaintiff's Exhibit No. 10. This is the actual cost

22 list, and that's how you keep track of your actual

23 costs, right?

24 A. That's correct.

25 Q. Now, you see right there where it says MORTGAGE 229 1 Property Services, Inc.?

3 Q. And it says $103.72?

4 A. That's correct.

5 Q. So, after each inspection that he does, he

6 charged you $103.72?

7 A. That's correct.

8 Q. Okay. Does he ever come back for free?

9 A. Excuse me. Does he work for free?

10 Q. Yeah.

11 A. You work for free?

12 Q. No. My question is: Does he work for free?

13 A. No. No one --

14 Q. That's right. No one will work for free,

15 right?

16 A. You confuse the question.

17 Q. Now, after the Mortgage -- or MPS comes out and

18 inspects it --

20 Q. -- then he writes a report, and he makes

21 recommendations, correct?

22 A. That's correct.

23 Q. All right. Showing you what's been marked as

24 Defendant's Exhibit No. 6. This is one of Mr.

25 Sullivan's reports. 230 1 MR. MARTINEZ: Well, Judge -- never mind.

2 Sorry.

3 MR. CROCKETT: It's your exhibit.

4 A. Yes, it is.

5 Q. (BY MR. CROCKETT) The foundation is the first

6 inspection, right?

8 Q. At this stage, Mr. Sullivan identified these

9 issues to be taken care of, and that when they were,

10 work is to proceed, right?

11 A. That's correct.

12 Q. All right. How long have y'all been using MPS?

13 A. Since we started building houses.

14 Q. And do they inspect all your houses?

15 A. Yes, sir.

16 Q. Okay. Do you know Mr. Sullivan pretty well?

17 A. No. I know the company.

18 Q. You know the company well?

19 A. I mean, sometimes, when it's in the field, and

20 I shake hands, and that's it.

21 Q. After he does an inspection, if it is a minor

22 issue, he'll say correct and proceed, right?

23 A. That's correct.

24 Q. Okay. The date of this inspection -- I don't

25 know. Can you see that? It says -- 231 1 A. 4-25-13.

2 Q. 4-25-13?

3 A. Yes, correct.

4 Q. April 25th. So, at that point in time, the

5 foundation is completely done?

6 A. The makeup done. The foundation got a

7 different process, okay? It's not for pouring the

8 concrete.

9 Q. I follow you.

10 A. Okay.

11 Q. After the second inspection gets over with --

12 A. Uh-huh.

13 Q. -- the drywall goes in, right?

14 A. That's correct.

15 Q. If there's any problems with the home, it needs

16 to be fixed before the drywall goes in, right?

17 A. That's correct.

18 Q. Why is that?

19 A. They always fix it. When the inspector say

20 something wrong, they fix it and they're ready for

21 drywall. After they finish the framing, the insulation

22 came.

23 Q. Right.

24 A. When the insulation is done, we make sure all

25 the plumbing, electrical, alarm and everything is 232 1 complete. Even we do -- we put termite inspection on

2 the house system and everything is done. And we proceed

3 on that. Superintendent proceed in the system. We got

4 a system that everybody follow. Michael follow the

5 system, and we use it for almost 15 years.

6 Q. In that system, all the problems need to be

7 fixed before drywall comes on because of what?

8 A. Because if the inspector say -- the inspector

9 give us the okay, go ahead, it's ready. When he come

10 inspect it, we fix it. We sheetrock, we put drywall.

11 If we don't fix any things that the inspector say, we

12 cannot put the drywall.

13 Q. Right. If the inspector says it's not fixed,

14 you can't do anything as far as putting the drywall,

16 A. The inspector, yes.

17 Q. Now, you've seen these photographs. Is that

18 how y'all build your AC units, like this?

19 A. Well, all the AC units is different. It's a

20 brand new unit. You know, what is it, the bar around

21 here? This is the base of the boards, and this is the

22 dampers going into the system to the houses, and it's

23 all filled in with special things that they do. And

24 they're professional, you know. It's the way they do

25 the system. I know this company. They do the AC unit, 233 1 you know.

2 Q. Let me ask you this: You see this drip pan

3 that's supposed to catch the water?

5 Q. What's catching the water that comes out this

6 way?

7 A. It's another drain that they got in case

8 something -- problems with the house, it's another drain

9 they got that go to the water. It's a drain for -- if

10 something happen, it's a secondary drain.

11 Q. What if the water drips off of here, though, it

12 goes --

13 A. No, they got a drain. There's a pipe going to

14 the outside, to the side.

15 Q. Show me where that drain's at on here.

16 A. It's on the other side. The inspector check it

17 out. The drain is on the other side. If you want to

18 see the house, you can take a look at it. They don't

19 pass if you don't got the secondary drain, you know.

20 It's normally for everybody. The inspector can take

21 good pictures.

22 Q. Let me ask hyou this: This foundation here,

23 why do you put Tyvek on the outside of a home? What is

24 Tyvek?

25 A. What does it mean, Tyvek? 234 1 Q. Tyvek, Tyvek.

2 A. Oh, it's Tyvek, it's protection for the

3 plywood. We do all the plywood houses, and we put a

4 protection for the plywood.

5 Q. Right. What happens if water gets on the

6 actual frame or the plywood?

7 A. That water seeping, they get to the weep holes

8 of the brick. The weep holes, what she saying

9 infestation over there, it's the weep holes. It's where

10 the houses got two inches between the wall and the

11 brick. That way, you get a drain over there. When the

12 brick is sweating, that water is coming to the weep

13 holes. But a lot of people, they don't know

14 construction. But that's what it is. All the houses in

15 Houston, the brick is five and a half inches.

16 Q. Right.

17 A. You got to go between the brick and the wall.

18 You don't want to put the brick up against the wall.

19 Q. Well, you agree with me that the actual

20 exterior of the wall, if you're in construction, you

21 know that water is always going to get through that

22 Hardiplank, that brick, whatever. It's going to get

23 behind that wall.

24 A. But you got the water, it coming in the drain.

25 Q. That's why you've got this Tyvek, right? 235 1 A. No. That is to protect the plywood. You see

2 this black ply? Going 18 inches -- 16-inch poly, they

3 wrap it -- before they put the Tyvek, they go 16 inches

4 under the Tyvek and wrap it up to the edge of the

5 foundation. That way, if you got a leak, they drip onto

6 the poly, this black poly right here.

7 Q. What happens if this --

8 A. Fix it. The brick guys coming, they wrap up

9 the poly, take another one and fix them up. And always

10 my superintendent is there to watch it, you know.

11 Q. Well, that's a good question.

12 A. But this foundation is not even -- this house

13 is not even finished. That's why these people, you

14 know, I never understand. When they take pictures, she

15 want to take pictures, and the house is not even

16 finished.

17 Q. Let me show you some of the repairs here. Is

18 that how you do the repairs, is that -- where you hang

19 the other piece off of it?

20 A. This is not a repair. I think somebody

21 coming -- they got a lot of those in the subdivision.

22 Maybe they come in and drag the poly, because when the

23 brick is going to be done, it's going to fix it, you

24 know.

25 Q. Okay. Well, let's look at when the brick goes 236 1 on. Is that the picture we're talking about right here?

2 A. Yeah. You see the brick and the poly is

3 already wrapping to the other side, and this shrink over

4 there, this shrinking is not on. When they go in this

5 section, they put another piece of poly and drop it

6 down, and later on, they got the poly to the edge of the

7 foundation.

8 Q. That's a good-looking job right there, right?

9 A. No, it's not. It's not finished. You see,

10 when that brick is done is when you got the house

11 finished. That's why they work on the house until the

12 end, you know.

13 Q. How do you get back there and add the

14 waterproofing behind the brick?

15 A. You tear down this Tyvek, pull it out and put

16 another poly underneath and drop it down. It's very

17 easy and simple.

18 Q. Mr. Hernandez, when did y'all make the decision

19 that you were not going to sell the home to the Millers

20 anymore? When did you say, "Hey, you know what, they

21 don't own it"?

22 A. Well, you sent us a letter on the 22nd, right,

23 cease work, and the contract expire on June 3rd. And

24 after June 3rd, they don't have no more contract with

25 us. I asked lawyer -- I told my son to call the lawyer 237 1 and see if we can continue to the house, because we

2 spent a lot of money already in the house, and we need

3 to continue and get our money back. That's when they

4 call us, you know, when we can do it. And after the

5 contract expiring June 3rd is when we stopped it for

6 almost two weeks and a half, and we continued to work

7 after the contract terminated.

8 Q. So, June 3rd, you said that that's a done deal,

9 they don't own it?

10 A. Monday? I never say that.

11 Q. Well, June 3rd, you said was the closing.

12 A. June 3rd. Yes, June 3rd.

13 Q. Yes.

15 Q. Okay.

16 A. I talked to my lawyers. I ask my lawyers when

17 we can continue house, to keep on going, and that's what

18 we do.

19 Q. All right. Why didn't you ever tell us that

20 you were just going to finish the house?

21 A. What did you tell us in your letter? Don't

22 talk to anybody until you, you know.

23 Q. Well, you knew about the July inspection,

24 right?

25 A. No. 238 1 Q. Kris never told you that?

2 A. No. How did you know we continue, because you

3 leave the house on the 22nd, don't -- you know, don't do

4 any construction. So, that mean I think you terminate

5 the contract or something. Then we just -- I wait until

6 you let us know, you know.

7 Q. Well, you got -- you got my letter, and you

8 said that that was it, done deal. But then you wrote

9 the Millers a letter May 29th. You remember -- you

10 remember this letter?

11 A. I'm trying what I do in my good faith. I'm a

12 very professional and honest people in my life. I got

13 35 years in construction. I always trying to negotiate

14 with them and see if they want to work with me. I never

15 even ever meet her. I never seen them. So, maybe she

16 come in to me and see if we can deal together and keep

17 on going, because I know she want the house, and I was

18 trying to be fair. If she want to continue the house,

19 let's go fix the problems and we can go for it. But she

20 never saw the house. After that, they say, you know

21 what, on the 22nd, "Don't talk to us." I tell my son,

22 send a letter on the 29th, if she want to work out

23 something to remedy the problem. I think it's very easy

24 to fix.

25 Q. In order to fix this problem, did they need to 239 1 pay you $59,300?

2 A. Excuse me?

3 Q. In order to fix this problem, did they have to

4 pay you $59,300?

5 A. What do you mean pay me?

6 Q. Wasn't that the next payment?

7 A. Yeah, that's correct. That's correct.

8 Q. Right. When you do cash installments, it's

9 before the drywall, right?

10 A. Yes. Do you know how much money you spend from

11 the buy the lot and do the foundation, the framing and

12 everything? You know how much money is in it? I don't

13 think you have no idea.

14 Q. Well, by looking at your cost sheet here --

16 Q. -- to build the entire Miller home, just the

17 actual cost -- this is just your hard costs, right?

18 A. Yeah. Yes.

19 Q. So, this sheet here that says -- vendor

20 summary, it says $44,140.99, right?

22 Q. And then you hired the trades, and the trades

23 come in, and they do work, the trades, subcontractors?

25 Q. Right? 240 1 A. Yes.

2 Q. And each one of these subcontractors is listed

3 here?

5 Q. And you paid those trades, it says, $86,359.79?

6 A. That's correct.

7 Q. Who is the trade that you paid the most money?

8 A. It's the -- it's the frame material, the

9 foundation and the -- it's the frame material,

10 foundation and framing cost.

11 Q. Let me ask a you a little bit different

12 question. What subcontractor do you pay the most amount

13 of money on this contract?

14 A. I think it's the foundation.

15 Q. The foundation?

16 A. Because it's a turnkey.

17 Q. Because what I counted up the most is J. C.

18 Hernandez Construction.

19 A. It's the foundation.

20 Q. Is that your company?

21 A. Yes. It's another company. We got the

22 construction company on the house.

23 Q. So, the most expensive subcontractor is your

24 other company?

25 A. Excuse me? 241 1 Q. The most expensive subcontractor --

2 A. It's the cost of the foundation. The most

3 important is the foundation.

4 Q. It's your other company, though, right?

5 A. We run another company. I do foundations all

6 my life. 35 years, I do foundation. So, I used to do a

7 lot of foundations.

8 Q. And in this cost sheet, Kris Dominguez got two

9 commissions here, commissions here, and this breakdown

10 says there was three other commissions.

11 A. Excuse me?

12 Q. Did Kris get multiple commissions for each sale

13 of this home?

14 A. Sir, Kris Dominguez got an advance check every

15 Friday, advance. At the end, when we are done, we

16 calculate the commissions. He made 2 percent -- 2.5

17 percent commission, and we only paid four weeks in

18 advance, which is $2,100. We just counted, paid the

19 rest of the money. But sometimes he want to keep and

20 save the money and pay when we do us another house.

21 That's the way he work. At the end of the year, we

22 total the amount. If we owe him some money, we give him

23 a check for the total.

24 Q. You've already sold this home to the Benges,

25 right? 242 1 A. That's correct.

2 Q. And you've already got the money from that

3 sale, right?

5 Q. And in your letter of May 29th --

7 Q. -- you told the Millers that, as soon as that

8 house was sold, you'd pay them a hundred percent of

9 their money back?

10 A. Yeah, that's correct. I don't want to keep

11 money that's not mine, you know.

12 Q. You would agree with me that the $60,300 is not

13 yours?

14 A. That's correct, it's not. It's their money.

15 It's their money. I never say I'm going to keep her

16 money, you know. I know she need the money, and we need

17 the money. So, I never -- right here I think is

18 something that really I never -- I never keep somebody's

19 money that's not mine, you know. I'm very honest people

20 than to keep somebody else money.

21 Q. And you'd agree as you sit here now, you're not

22 suing the Millers for $10,000 or your attorney's fees or

23 anything, correct?

24 A. Well, it's what we put right there. She won't

25 agree when we selling the house, we giving the money 243 1 back. She don't lose -- I lose money, because I need to

2 have my lawyer, and she lose money because she had to

3 hire a lawyer, I think it's a fair deal then we can

4 working together. She never respond. "Talk to my

5 lawyer." She always say, "Talk to my lawyer," which is

6 you.

7 Q. My question, though, was: You're not here

8 today asking this jury for $10,000, are you?

9 A. Well, if we working together, to me, I prefer

10 to give them the $60,300, and that's fine to me. At

11 this moment, even my attorney right now, he's here, you

12 know. Yes, correct.

13 Q. Right. You're not seeking your attorney's fees

14 or your $10,000, right?

16 Q. Mr. Hernandez, earlier you told me that if your

17 inspector came back and told you that the framing was

18 not done, you should never and would never continue with

19 construction by putting the drywall and covering up

20 those defects, correct?

21 A. That's correct.

22 Q. Have you seen the May 10th inspection report

23 from your inspector?

24 A. No. My superintendent seen it. I don't see

25 the inspection report. 244 1 Q. Well, this was done the day after those photos

2 where you were talking about those joist hangers.

3 Remember that? You said it's not done yet, it's not

4 done at all.

5 A. You know about the frame?

6 Q. Yeah.

7 A. The frame, the frame punch-out takes about four

8 or five hours to do it.

9 Q. This one right here, remember, we talked about

10 this?

11 A. Yes, that's correct.

12 Q. This is May 9th.

14 Q. Talked all about the joist hangers and all

15 that, right?

16 A. Uh-huh, yes, sir.

17 Q. If you don't install joist hangers, what

18 happens?

19 A. In the future, probably the joist hanger --

20 maybe 10, 15 years, the joist hangers fall down, because

21 the nails -- depends how many nails the framer putting

22 in. That's why the safety, the joist hangers, that's

23 why they put them in, you know.

24 Q. You see here on May 10th --

25 A. Uh-huh. 245 1 Q. -- your inspector said, "Add the joist hangers

2 at the family room."

3 A. Uh-huh.

4 Q. See that?

6 Q. You know what he told you after that, or your

7 superintendent?

8 A. I don't know.

9 Q. Says right there, says --

10 A. Correct. And proceed, that's correct.

11 Q. No, no. It says, "Correct items noted above,

12 call for reinspection." He was saying it didn't pass

13 go. He said it needed to be reinspected.

14 A. I don't know. I don't see that one. I don't

15 see that one. But I think Michael did call him again,

16 and he come back and check it out.

17 Q. Well, I wanted to make sure. That's why I

18 asked you earlier.

19 A. Well, I don't know. I don't see that one, you

20 know.

21 Q. Nobody works for free, right?

23 Q. Let's work this one out together. You got May

24 10th. You see that one?

25 A. Uh-huh. 246 1 Q. That's when he didn't work for free?

2 A. Uh-huh.

3 Q. And then what have we got next? Looks like

4 August 7th, 2013?

5 A. That's correct. That's the final.

6 Q. Let me show you -- on August 7th, 2013, show me

7 the joist hangers, Mr. Hernandez.

8 A. How you going to show it when it's already

9 sheetrock over, please? When I turn around the

10 sheetrock, I bet you it's there. You can do it, you

11 know.

12 Q. Let me ask you this, though --

13 A. The joist hangers takes only about one hour,

14 two hours to put it in before we sheetrock.

15 Q. By August 7, when he came back out again, the

16 house was done?

18 Q. There is no inspection that took place before

19 y'all drywalled?

20 A. I don't remember if Michael call again to the

21 inspector, so I can't answer that question.

22 Q. Maybe he did, maybe he didn't, right?

23 A. I don't know.

24 THE COURT: Counsel, let's go ahead and

25 break for the day. Ladies and gentlemen, please 247 1 remember the instructions I've given you: That is, do

2 not talk about the case. Do not do any research on your

3 own. Do not -- sir, sit down. Sit down.

4 THE WITNESS: Okay.

5 THE COURT: Do not do any type of research

6 on the Internet. Don't talk to anybody about the case,

7 even amongst yourselves. Don't do any posting of this

8 case on the Internet or any of the social web sites.

9 With that, have a good evening. We'll see

10 y'all back 8:45 in the morning.

11 (Jury out)

12 THE COURT: Counsel, see y'all in the

13 morning.

15 * * * * * * * * * * * *

25 1 R E P O R T E R'S R E C O R D

2 VOLUME 4 of 6

3 Trial Court Cause No. 13-DCV-209822 FILED IN 14th COURT OF APPEALS 4 Appellate Cause No. 14-15-00004-CV HOUSTON, TEXAS 5/12/2015 1:48:51 PM 5 LAUREL MILLER AND )IN THE DISTRICT COURT CHRISTOPHER A. PRINE ELIANA MILLER ) Clerk 6 ) vs. )FORT BEND COUNTY, TEXAS 7 ) ) 8 DEBO HOMES, LLC )400TH JUDICIAL DISTRICT

10 _________________________________________________

11 TRIAL

12 _________________________________________________

13 On the 21st day of August, 2014, the

14 following proceedings came on to be heard in the

15 above-entitled and numbered causes before the

16 Honorable Clifford Vacek, Judge Presiding, held in

17 Richmond, Fort Bend County, Texas:

18 Proceedings reported by Computerized

19 Stenographic Method.

21 VANESSA C. OWENS, CSR DEPUTY COURT REPORTER 22 FORT BEND COUNTY COURTHOUSE RICHMOND, TEXAS 77469 23

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 2

1 A-P-P-E-A-R-A-N-C-E-S

3 MR. BRIAN H. CROCKETT 4 SBOT NO. 24074094 10565 Katy Freeway, Suite 400 5 Houston, Texas 77024 Telephone: 713-779-3467. 6 Fax: 888-779-3237 E-mail: Brian@crockettlawtx.com 7 ATTORNEY FOR PLAINTIFFS

10 MR. NICHOLAS MARTINEZ 11 SBOT NO. 24087986 MR. CRAIG WELSCHER 12 SBOT NO. 21167200 THE WELSCHER LAW FIRM 13 1111 North Loop West, Ste., 702 Houston, Texas 77008 14 Telephone: 713-862-0800 Fax: 713-862-4003 15 ATTORNEY FOR DEFENDANT

17 ALSO PRESENT:

18 INTERPRETER - DIANE E. TEICHMAN 19 713-263-9237

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 3

1 CHRONOLOGICAL INDEX OF EXAMINATIONS

3 TRIAL

4 AUGUST 21, 2014 Page Vol.

5 PLAINTIFF'S WITNESSES DIRECT CROSS VOL.

6 JUAN HERNANDEZ 8 9 4

7 Plaintiffs Rests.......................... 74 4

8 Defendant's Motion for Instructed Verdict.. 74 4

9 Court's Ruling............................ 77 4

10 DEFENDANT'S WITNESSES DIRECT CROSS VOL.

11 EDUARDO CISNEROS 79 96 4

12 JUAN HERNANDEZ, JR. 112,139 129 4

13 CRAIG WELSCHER 140 4

14 Defendants Rests........................... 148 4

15 Adjournment................................ 149 4

16 Court Reporter's Certificate............... 150 4

20 ALPHABETICAL INDEX

21 EDUARDO CISNEROS 79 96 4

22 JUAN HERNANDEZ 8 9 4

23 JUAN HERNANDEZ, JR. 112,139 129 4

24 CRAIG WELSCHER 140 4

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 6

1 that that was the contract. So your request is

2 denied.

3 MR. MARTINEZ: Well, you find that that

4 was the only contract, I believe.

5 THE COURT: Right.

6 MR. MARTINEZ: So there is no other

7 contract, and they are suing under the contract, we

8 haven't seen in the case, yet. So if it's not in

9 writing, which we haven't seen, then it's barred.

10 THE COURT: Your request is denied.

11 Bring them in.

12 THE BAILIFF: All rise.

13 (Jury in.)

14 THE COURT: Be seated.

15 Mr. Crocket, you may continue.

16 MR. CROCKETT: Your Honor, before we

17 begin, I wanted to be able to admit Exhibit No. 6

18 into the record.

19 (Plaintiff's Exhibit 12 was offered.)

20 MR. MARTINEZ: Judge, I believe counsel

21 already showed it to the jury and showed it to

22 everyone else. So he waived it.

23 THE COURT: What is Exhibit 6?

24 MR. CROCKETT: It's the three inspection

25 reports. It's Defendant's Exhibit 6, Your Honor.

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 7

1 It's the MPS the foundation inspection, the framing,

2 and we're not sure what that is, but it says it was

3 the inspection.

4 THE COURT: I show Defendant's Exhibit 6

5 is a letter from the defendants to the Millers.

6 MR. CROCKETT: Then I might be out of the

7 numbers. This is the original.

8 MR. MARTINEZ: Judge, this is our amended

9 exhibit list. That's correct. It's Exhibit 6.

10 Because originally when we admitted our exhibits we

11 said we'll admit 1 through 5, and we skipped 6. I

12 guess we didn't admit it. So we went after that to

13 7. So that's why there's a gap.

14 THE COURT: So you're offering Defendant's

15 Exhibit 6?

16 MR. CROCKETT: Yes, Your Honor.

17 THE COURT: Then it's going to be

18 Plaintiff's 12, I guess.

19 MR. CROCKETT: That will work for me.

20 THE COURT: And those are -- let me see

21 what it is you're offering?

22 MR. CROCKETT: I can put a new sticker on

23 that.

24 THE COURT: Any objection to Plaintiff's

25 Exhibit 12?

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 8

1 MR. MARTINEZ: No, Judge.

2 THE COURT: Plaintiff Exhibit 12, which

3 consist of three inspection reports, is hereby

5 (Plaintiff's Exhibit 12 was admitted.)

6 CROSS-EXAMINATION

7 BY MR. CROCKETT:

8 Q Mr. Hernandez, this missing joist hangers,

9 what were they over?

10 A Excuse me?

11 Q What was above -- what was below the joist

12 hangers, the beams and the joist that were --

13 A The joist, the joist hanger support the

14 joists and they attached to the beam.

15 Q What were they above? Were they above the

16 family room?

17 A Excuse me?

18 Q Is that what it says, they were above the

19 family room?

20 A Yes.

21 Q And if those were installed, over time

22 they are going to fall, aren't they?

23 A Yes, they installed.

24 MR. CROCKETT: No further questions, Your

25 Honor. Pass the witness.

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 79

1 here.

2 THE COURT: You may proceed.

3 EDUARDO MICHAEL CISNEROS,

4 having been first duly sworn, testified as follows by

5 and through the interpreter:

7 BY MR. MARTINEZ:

8 Q Mr. Cisneros, would you please state your

9 full name for the record?

10 A Eduardo Cisneros Michael.

11 Q So people usually call you Michael?

12 A Yes.

13 Q What is your job title with Debo Homes?

14 A Superintendent.

15 Q How long have you been working for Debo?

16 A Ten years.

17 Q How many homes have you worked on during

18 your career?

19 A An average of 60 or 70.

20 Q If there is a problem during construction

21 with the home, how do you address that problem?

22 A I fix the problem.

23 Q Now, are you familiar with the home at

24 11115 Leah Elizabeth in Needville, Texas?

25 A Yes.

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 80

1 Q Do you understand that to be the home in

2 this lawsuit?

3 A Yes.

4 Q Now, how much were you there at this home

5 during construction?

6 A Everyday, and all day long.

7 Q What time did you start in the morning?

8 A At 7:00.

9 Q What time did you finish in the afternoon

10 or evening?

11 A It depends, 8:00, 9:00.

12 Q Were you working on another home in the

13 same subdivision during this time?

14 A Yes.

15 Q Now while you're at the home in question,

16 what did you supervise?

17 A The entire process.

18 Q Did you oversee the framers?

19 A Yes.

20 Q How about the foundation?

21 A Also.

22 Q Now, when you were supervising, about how

23 many people were you supervising at one time?

24 A It depends on the work group that came

25 that day.

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 81

1 Q What's the smallest number of people that

2 you had to supervise and what's the largest?

3 A Five to six.

4 THE INTERPRETER: English.

5 A Ten.

6 Q (By Mr. Martinez) How were the trades or

7 subcontractors scheduled?

8 A It depended on their shift.

9 Q Did you always have someone working on the

10 home -- was there a day off or anything?

11 A There's always people there.

12 Q Now as of mid-May, 2013, how was

13 construction going on the home?

14 A It was stopped at the point of the

15 plumbing.

16 Q Could you explain that a little bit more?

17 A After the first person comes in doing

18 their shift work, after the framing is done. Yes.

19 Q Do you know who Laurel Miller is?

20 A I don't know her because I've never spoken

21 to her.

22 Q Do you recognize who the plaintiff is in

23 this lawsuit?

24 A Yes.

25 Q Would you mind pointing her out for us?

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 82

1 A The woman who is to your right.

2 MR. MARTINEZ: Ms. Miller, would you mind

3 standing?

4 Q (By Mr. Martinez) Is this who you

5 identified?

6 A That's she.

7 MR. MARTINEZ: Please let the record

8 reflect that Mr. Cisneros identified the plaintiff,

9 Laurel Miller.

10 Thank you, Ms. Miller.

11 Q (By Mr. Martinez) Now how often was she

12 there?

13 A During construction, on occasion I'd see

14 her two to three times a day.

15 Q Did you ever speak with her when she was

17 A Never.

18 Q Why is that?

19 A Well, she never had questions for me.

20 Q What did Ms. Miller do when she was at the

21 construction site?

22 A She looked at the construction and she

23 would make marks with orange colored spray paint.

24 Q When were you first told of repairs that

25 needed to be made in the home?

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 83

1 A The first time was the first few weeks of

2 May.

3 Q Did you walk -- excuse that. While the

4 framers were there, did you notice them making

5 mistakes?

6 A No.

7 Q Isn't it true that there were split 2 by

8 4s?

9 A Yes, but that's normal.

10 Q How often do you see a split 2 by 4 during

11 framing of a house?

12 A With the frequency it's as common as you

13 go all the way up to the point of a punch out.

14 Q Would you mine explaining the punch for

15 us?

16 A The punch out is when you repair the 2 by

17 4s that are either cracked or damaged. You remove

18 the temporary wood.

19 Q Mr. Cisneros, what do we have here in this

20 picture, in Exhibit 2?

21 A What you see here is when a nail was put

22 in very much to the edge of the plywood.

23 Q Why did it split?

24 A Either it went in crooked or it was put in

25 too far to the edge.

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 84

1 Q Was this split repaired?

2 A Yes.

3 Q How was it repaired?

4 A We have two options. You can either

5 remove the damaged part or put another one next to

6 it. So that there's two of them.

7 Q Mr. Cisneros, what do we see here in this

8 picture?

9 A What you see here is that there's no joist

10 hangers inserted or installed, and they do that --

11 they wait to do that until the framer comes to do

12 the punch out.

13 Q Were those joist hangers actually put

14 there?

15 A Yes, that's right.

16 Q Did you see those joist hangers actually

17 put there?

18 A Yes.

19 Q Mr. Cisneros, what do we see here in this

20 picture?

21 A That's the pipe to the dryer. And it's

22 pushing up against the plate that protects it from a

23 nail or any nail.

24 Q Is there anything wrong with it?

25 A No.

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 85

1 Q What do we see here in this picture?

2 A That's a piece of wood that's there

3 temporarily that the framers put up so that they

4 could put up their scaffold.

5 Q Why is it just temporary?

6 A Because they only use it for when they are

7 on the scaffolding or when they're putting up the

8 joist in the ceilings.

9 Q So was this eventually removed from the

10 house?

11 A Yes. Correct.

12 Q What do we see here in this picture?

13 A It's a mark that's at the division of the

14 two pieces of wood, and when the framers come to the

15 point of the punch out, they install or put in a 2

16 by 4 right there in the middle.

17 Q So this picture was taken before the punch

18 out then?

19 A That's right.

20 Q Was the 2 by 4 you mentioned actually put

21 in?

22 A Yes, it's there now.

23 Q What do we see here in this picture?

24 A It's the 2 by 4 on the top there that's

25 cracked or split.

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 86

1 Q Why did that happen?

2 A It's either because there is a whole bunch

3 of people working there at the time or it arrives at

4 the work site cracked or split. It has to be

5 replaced.

6 Q Was it replaced?

7 A It was replaced.

8 Q Did you witness it being replaced?

9 A Yes.

10 Q What do we see here in this picture?

11 A The same thing, 2 by 4s that are split.

12 Q Were those fixed?

13 A That's right.

14 Q How were they fixed?

15 A We removed the damaged wood.

16 Q What do we see here in this picture?

17 A It's a block that didn't reach the beams.

18 Q And why did that happen?

19 A The person -- because the person who

20 installs the plywood adapted it like that to give

21 more support.

22 Q So does this need to be fixed?

23 A Yes. It was repaired.

24 Q How were those repairs made?

25 A Removing the support wood that didn't

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 87

1 quite reach the beam and replacing it with one that

2 did reach the beam.

3 Q What do we see here in this picture?

4 A The drip pan did not -- was not positioned

5 under the wooden box.

6 Q What did you do to make sure that was

7 positioned correctly?

8 A The people who did the air work were

9 brought back to do the job correctly.

10 Q Did they do the job correctly?

11 A That's right.

13 A That is the honey comb, which is produced

14 by air.

15 Q Was that fixed?

16 A Yes.

17 Q How?

18 A Putting more concrete on it.

19 Q What about the black plastic, is there

20 anything wrong with that?

21 A No.

22 Q Does it need to be pulled down eventually?

23 A Yes, when the people who are putting in

24 the brick work are there, they take care of the

25 black plastic.

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 88

1 Q Were you there when the brick people came?

2 A That's right.

3 Q Did you witness them correctly install the

4 plastic?

5 A Yes.

6 Q What do we see here in this picture? And

7 let me make it more specific. What about there?

8 A Okay. That's where the cable comes out,

9 and the company that does the work is the one that

10 puts the tension on it. Those are the same people

11 that cover or fill up the hole that's left.

12 Q What do we see back there?

13 A That's honey comb.

14 Q Was that fixed?

15 A It was fixed. Yes.

16 Q How do you know that?

17 A Because at the time that the brick is

18 installed it's repaired.

19 Q So this was before the brick was

20 installed?

21 A Yes.

22 Q What do we see here in this picture?

23 A This is the counter, and the 2 by 4 that's

24 covering it is cracked.

25 Q Why was it cracked?

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 89

1 A Probably the workers banged into it.

2 Q How often does that happen with the 2 by

3 4?

4 A It's very rare that it happens.

5 Q How do you fix this issue?

6 A You remove the 2 by 4 that's on top there.

7 Q How long does it take to make that repair?

8 A A day.

9 Q Whose's blue paint is that there?

10 A Those are the marks that I make for the

11 punch out.

12 Q Was this fixed?

14 Q Are you able to recognize anything in this

15 picture?

16 A I can't really see it very well.

17 Q How about this one?

18 A That's the window frame. And it was

19 bumped by accident.

20 That was repaired when the window

21 company came to make adjustments.

22 Q About when did that happen?

23 A That's at the end.

24 Q Why?

25 A Because the company that makes the window

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 90

1 adjustments or adjustments to the windows comes

2 normally around at the point of the construction

3 being at 70 to 75 percent completed.

4 Q What do we see here in this picture?

5 A It's a pipe.

6 Q Why is there no insulation on that pipe?

7 A It depends. If the pipe is in between the

8 walls that are inside the house it doesn't need

9 insulation, including the walls that are on the

10 edge. Those are the ones that have to have it.

11 Q What do we see here in this photo?

12 A These pictures you have to replace the 2

13 by 4s and the ones that you see that are double you

14 have to replace them, the doubles, for more support.

15 Q Why was there an issue in the first place?

16 A Because these are things that are normally

17 that -- these are normal things that are left to be

18 dealt with until the end when there's a punch out.

19 Q Where these issues here actually repaired?

20 A That's right.

21 Q Did you witness that?

22 A Yes.

23 Q Do you know what we're looking at here?

24 A Yes. I think that's wetness, moisture.

25 Q What does that do to affect that board?

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 91

1 A Normally it doesn't affect it.

2 Q What do we see here in this picture,

3 Michael?

4 A That's concrete.

5 Q What about the plastic?

6 A That's the plastic that you put where

7 you're going to have brick work.

8 Q What do we see here?

9 A You see a 2 by 4 here, and that's used by

10 the people who are going to do the brick work. And

11 they use that for the lines and so that the wall is

12 installed straight. They use it like a level.

13 Q Is it a temporary 2 by 4?

14 A Oh, yes.

15 Q Is there anything wrong with this here?

16 A Nothing.

17 Q This more -- how many, tell me, different

18 angles?

20 Q Was that fixed?

22 Q Did you witness that?

23 A That's right.

24 Q Are you capable of seeing any issues in

25 this picture?

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 92

1 A No.

2 Q I don't know if that helps at all?

3 A Okay. Right now you see the PVC pipes.

4 And it's -- you have to put the cap or hot cap on

5 it. You can see a piece of wood there at the

6 aluminum cap which was cut to be able to put the

7 pipe in.

8 Q Is there anything wrong here?

9 A No. Normal.

10 Q Are you really capable of telling us what

11 that is?

12 A That looks like Sheetrock.

13 Q Can you see if there's any issues here?

14 A No, there's no problem, because the

15 Sheetrock was just installed. And the next thing

16 that happens is the people come to tape and float

17 it.

18 Q Could you explain tape and float a little

19 bit more for us?

20 A Yes. Since it's a process, the first

21 thing you do is install the Sheetrock. That's done

22 by different people, and then you got the people who

23 come and do the tape and float.

24 The tape is done where you cover the

25 joints of the Sheetrock, and they also cover all the

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 93

1 nails.

2 Q Did you witness all that being done in

3 this house?

4 A Yes, that's right.

5 Q What are we looking at here?

6 A A lot of things.

7 Q Well, if -- are you capable of seeing any

8 issues right now?

9 A No, none.

10 Q What about this picture?

11 A The same. That's the day the people

12 are -- the people are there to install the

13 Sheetrock.

14 Q Wasn't there a gap in the Sheetrock there?

15 A Yes, but that's normal.

16 Q Is it a finished home have that gap?

17 A No. Never.

18 Q When was the gap eventually filled?

19 A The next day.

20 Q Did you witness that?

22 Q Is this the same thing here?

23 A Yes.

24 Q What about here?

25 A There you have the Sheetrock installed

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 94

1 only 80 percent.

2 Q Anything wrong with it there?

3 A No.

4 Q What about this picture of the roof?

5 A That's the man who puts up the shingles.

6 He wasn't finished yet. He still needed to nail

7 that in.

8 Q Did he eventually nail it in?

9 A That's right.

10 Q Is this the finished home?

11 A Yes, that's right.

12 Q How about that one?

13 A The same.

14 Q Do you remember a Mr. Knueppel, the

15 inspector for Ms. Miller?

16 A I saw him, yes, but I didn't know his

17 name.

18 Q Were you there when he was there?

20 Q Now isn't it true that he identified some

21 things to be repaired in the home?

23 Q Were those fixed?

24 A They were repaired.

25 Q Do you remember stopping construction on

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 95

1 the home?

3 Q And when did y'all restart construction?

4 A Like it was stopped and then it was

5 started again like the first or second week of June.

6 Q Now when construction was stopped, that

7 interfered with the scheduling of the trades or

8 subcontractors?

9 A Of course.

10 Q Well, did stopping put y'all behind

11 schedule?

13 Q Do you remember when construction finally

14 finished on the home?

15 A Yes.

16 Q You have a date?

17 A Not exactly.

18 Q Did you witness Ms. Miller talking to

19 Mr. Knueppel, the inspector?

21 Q You don't really speak English that well,

22 correct?

23 THE INTERPRETER: English.

24 A A little bit.

25 Q (By Mr. Martinez) And what happened during

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 96

1 that conversation between Ms. Miller and

2 Mr. Knueppel?

3 A Before the inspector arrived the house was

4 already marked with the color orange. And the

5 inspector made marks that were red, and mine were

6 blue.

7 Q And what did -- what happened between

8 Ms. Miller and the inspector?

9 A When the inspector started looking at the

10 construction, he went along marking what he thought

11 that needed repairs, and the lady would want him to

12 mark something and the inspector would tell her it

13 was normal.

14 Q Was there any type of altercation between

15 them?

16 A Not exactly. But you could tell by

17 looking at the face of the inspector that he did not

18 feel free to do his job.

19 MR. MARTINEZ: Nothing further. Thank

20 you.

21 CROSS-EXAMINATION

22 BY MR. CROCKETT:

23 Q Sir, how are you doing today?

24 THE INTERPRETER: English.

25 A I'm fine.

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 97

1 Q (By Mr. Crockett) How many superintendents

2 are there at Debo Homes?

3 A One.

4 Q Who is that?

5 A Me, personally.

6 Q Okay. That's what I thought.

7 What's your job at Debo Homes as the

8 superintendent?

9 A It's the process of finishing the house.

10 Q Is it your job to inspect or supervise all

11 of the subcontractors?

13 Q And that's why you're there -- when do you

14 start, again?

15 THE INTERPRETER: English.

16 A 7:00.

17 Q (By Mr. Crockett) So 7:00 in the morning

18 you start?

20 Q And then you finish, I think you said, at

21 7:00 or 8:00 at night?

22 A It depends.

23 Q You work a lot of hours for Debo Homes,

25 A If it's necessary.

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 98

1 Q How many houses were you supervising with

2 the Millers' home?

3 A Two.

4 Q And during that time period, where did you

5 spend most of your time?

6 A In the same neighborhood.

7 Q Same one?

8 A That's right.

9 Q Walk me through, how did you go back and

10 forth between the one house and the other house?

11 A Because the house that was under

12 construction was one street over.

13 Q I mean, did you walk across the street,

14 then?

15 A No.

16 Q How did you go back and forth between one

17 house and the other?

18 A In my car, the truck.

19 Q Now whenever you're supervising it, who's

20 bringing the actual supplies, the actual

21 construction supplies to the job site? Who

22 coordinates that?

23 A The companies.

24 Q And who makes sure that the companies are

25 coordinated at the right time for construction?

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 99

1 A Because I'm the one that has the

2 construction schedule, and I call the office when I

3 need the next material.

4 Q So the schedule you were talking about --

5 normally what is the standard for Debo Homes to

6 complete a house, how many weeks?

7 A It depends on the weather. If you got bad

8 weather or if it's raining, six, eight weeks.

9 Q What's the fastest you ever constructed a

10 Debo Home?

11 A It could be six weeks.

12 Q Now before you didn't have the pleasure of

13 being here, during the time that the Millers' home

14 had this stop, this break in construction, we're

15 talking about June to August, y'all completed three

16 other houses?

17 A I don't remember.

18 Q Sir, one of my questions would be, if

19 you're there every single day, do you maintain any

20 logs, anything whatsoever to show that you're

21 actually there?

22 A That's right.

23 Q You have logs?

24 A Not with me here.

25 Q What do the logs say on them?

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 100

1 A Who's the person doing their work.

2 Q Do you ever include on those logs what

3 you've inspected and what's been repaired?

4 A Yes.

5 Q Tell me, for the Millers' house, why

6 weren't there any logs, at all, zero?

7 A I don't understand the question exactly.

8 Q Why was there any logs for the Millers'

9 house? Why didn't you do them for the Millers'

11 A Once again, I don't understand the

12 question exactly.

13 Q Let me ask a different one: Do you

14 document the defects in the house and turn those

15 over to anyone at Debo Homes?

17 Q Who?

18 A At the headquarters.

19 Q Where is that?

20 A 2977 F.M 1180 -- 18.

21 Q Let me ask you this: Do you remember the

22 timeline when Mr. Knueppel started coming out to the

23 house?

25 Q When was the first time you saw him?

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 101

1 A When the concrete slab was put down.

2 Q Did you get a report from Mr. Knueppel

3 that you looked over?

5 Q And who read it to you?

6 A At the office.

7 Q Who?

8 A The vice-President and the salesman.

9 Q Who is the subman?

10 A Kris Dominguez.

11 Q The salesman?

13 Q You call him the subman. What is that?

14 A Sale man.

15 Q Got you. What did Debo Homes tell you to

16 do with Knueppel's report?

17 A To repair the damages.

18 Q Okay. And you're not sitting here today

19 saying that that house didn't have problems in that

20 report, you agree with that?

21 THE INTERPRETER: The interpreter would

22 like to request to have the question repeated.

23 THE COURT: Repeat the question.

24 MR. CROCKETT: Yes, sir.

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 102

1 Q (By Mr. Crockett) Sir, as you sit here

2 today, you agree that in the report you read there

3 were defects in the home that needed to be repaired?

5 Q How long did it take you to do those

7 A One day.

8 Q One day. If Mr. Knueppel came out

9 May 9th, 2013, you were complete with all repairs by

10 May 10th, 2013, correct?

11 A Correct.

12 Q Do you know that you actually repaired all

13 of the items on May 10th, 2013?

15 Q There's no doubt in your mind that every

16 repair in that house was completed on May 10th,

17 2013, right?

18 A That's right.

19 Q The hangers were hung on May 10th, 2013?

21 Q And you know that 100 percent right now?

23 Q It was not repaired on May 11th or 12th or

24 13th. It was May 10th, 2013?

25 A I don't remember.

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 103

1 Q The reality is you don't know when the

2 repairs were made, right?

3 A Not exactly.

4 Q You been with Mr. Hernandez for a very

5 long time, haven't you?

6 A That's right.

7 Q How long have you been working for

8 Mr. Hernandez or with his other construction

9 companies?

10 A When I started I was working with

11 Mr. Hernandez on foundation for ten years. Then he

12 formed the company Debo Homes in the subdivision Los

13 Pinos. And he offered me the opportunity to hire me

14 as a superintendent, with some other builders that

15 worked for Newmark. So I've worked for the company

16 Debo Homes for ten years.

17 Q You owe Mr. Hernandez a lot, don't you?

18 A Partly.

19 Q He's been good to you and your family, has

20 he not?

21 A Of course. If not I wouldn't still be

22 with him here.

23 Q You're hoping to stay with Mr. Hernandez's

24 company for a very long time, aren't you?

25 A As long as he doesn't fire me I'll still

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 104

1 be there.

2 Q That's often how it works.

3 When did Mr. Hernandez tell you that

4 guys were no longer stopping work and that you were

5 to start again?

6 A At the end of May.

7 Q So in May you already knew that you were

8 moving forward with construction again?

10 Q Did you ever ask if the issues with the

11 Millers had been resolved?

12 A No.

13 Q That's not your lane, right?

14 A That's right.

15 Q When Mr. Hernandez tells you to start

16 working you start working?

17 A Yes.

18 Q Now when you're working, are you also

19 swinging hammers, doing the manual labor yourself?

20 A If it's a matter of doing that, yes, but

21 it's very rare.

22 Q Let me ask you this: You said you were

23 there everyday for the construction of the Millers'

24 house, right?

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 105

1 Q How many times was Mr. Hernandez there

2 during the construction of the house?

3 A Regularly, the man is there at the house

4 two times a day, at a minimum.

5 Q Mr. Hernandez was there for the

6 construction twice a day, right?

7 A That's right.

8 Q And you were there everyday, all day?

10 Q Now, all the photographs that Debo Homes

11 lawyer had showed you, while all y'all were present,

12 how did all of these problems happen?

13 A Those are normal things that have to

14 happen.

15 Q And normally when do those get repaired?

16 When do you fix those?

17 A Minimum, maximum three days, or one day

18 after finishing.

19 Q Let me ask a better question. During the

20 construction process, as you call it, when do you

21 make all the repairs to the frame?

22 A It's at the end after the man or the

23 plumbing company is finished, the AC people are

24 finished, and the electricians are finished.

25 Q Are you able to do any repairs to the

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 106

1 framing after the drywall is put in?

2 A It depends.

3 Q Well tell me how?

4 A If it's a matter of a plate that wasn't

5 nailed in right, something simple.

6 Q Let me ask you a better question. If the

7 frame behind this drywall is bent, broken, bowed,

8 damaged, how do you repair it?

9 A You have to do that before you install the

10 Sheetrock.

11 Q Tell me why?

12 A Why. Because if the 2 by 4 is either

13 curved or crooked, the wall, once you Sheetrock it,

14 is going to show that curve, and that doesn't look

15 right.

16 Q Now if you were to make repairs after the

17 drywall had already been put in, to the frame, do

18 you have to take the drywall back off?

19 A I don't see why you would have to do

20 repairs or make repairs if everything had already

21 been corrected.

22 Q I agree. You wouldn't have to, right?

24 Q If the repairs weren't done before the

25 drywall went in, you'd agree with me that that would

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 107

1 be absolutely wrong?

3 Q Now earlier you had told Debo Homes lawyer

4 that you saw every repair made, correct?

5 A That's right.

6 Q Did you photograph it?

7 A No.

8 Q Did you document it?

10 Q How did you do that?

11 A Because I have an inspector that comes

12 from the company to check.

13 Q Is that inspector from MPS?

14 A I don't know, maybe.

15 Q Do you rely on that inspector to clear the

16 construction for drywall?

18 Q Before your deposition -- well, not before

19 your deposition, before your testimony here today I

20 noticed you had all these photographs you were

21 carrying them around.

23 Q Did you talk to Mr. Hernandez and his son

24 about --

25 MR. MARTINEZ: This is getting into

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 108

1 attorney/client privilege again. We were with him

2 with the photos.

4 Q (By Mr. Crockett) Did you talk to

5 Mr. Hernandez and his son before your testimony

6 today about the problems in the house and what your

7 answers would be?

8 A No.

9 Q Why were you carrying around the

10 photographs?

11 A Because those are the same pictures that I

12 received to be able -- in order to make the repairs.

13 Q You had these photographs?

14 A I have them in the office.

15 Q The ones I made last week?

16 A No.

17 THE INTERPRETER: English.

18 A Of course not.

19 Q (By Mr. Crockett) Why were you carrying

20 around the note pad right here on the lawyers' desk,

21 while you were at lunch before you testified today?

22 A To ask me if I had received those

23 photographs.

24 Q You did talk about these photographs,

25 right?

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 109

2 Q So if I get this straight, you had

3 photographs that you were carrying that you didn't

4 talk about?

6 Q All right. Just wanted to make sure I got

7 that right.

8 Have you ever had it happen that a

9 Debo Homes house did not sell to the customer and

10 Mr. Hernandez told you to sell it to somebody else,

11 keep building?

12 A No, never.

13 Q This is the first time, right?

15 Q That surprise you?

17 Q Did you ask Mr. Hernandez what happened?

18 A No.

19 Q Now make sure I'm clear. You witnessed

20 every repair made but you can't tell us what dates

21 they were repaired?

23 Q Were there other repairs outside of these

24 photographs that you had at lunch that you looked

25 at, made sure that those were repaired?

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 110

1 A Yes.

2 Q And you fixed all of those?

4 Q Why do you use spray paint to mark the

5 areas in the house?

6 A To identify the damage.

7 Q And what if it doesn't get spray painted?

8 A We wouldn't know what needed to be

9 repaired.

10 Q And who tells y'all what needs to be

11 repaired?

12 A Nobody.

13 Q When MPS came out and did the framing

14 inspection, did you see MPS ever again until August

15 when the house went through the final inspection?

17 Q When?

18 A I don't remember exactly.

19 Q You know the month?

20 A Could be July.

21 Q After the drywall had already been put in?

22 A Would you please repeat the question?

23 Q You saw MPS come out for the foundation?

25 Q You saw MPS come out for the framing?

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 111

1 A That's right.

2 Q You saw MPS come out after the drywall was

3 put in?

4 A Yes, at the end.

5 Q And that's the only time that you saw MPS

6 come out?

7 A I saw them one more time.

8 Q And when was that?

9 A When he came to inspect the frame and he

10 noticed or pointed out the repairs that needed to be

11 made and he came back to check to make sure they had

12 been made.

13 Q And did he give you any documents to show

14 that he had done another inspection?

16 Q He never gives you documents to show or

17 confirm that inspections or repairs had been made,

18 correct?

19 A If they're basic things, no, because he

20 comes back.

21 Q And if they are big things, does he write

22 a report and tell you to go ahead?

23 A If they are basic things, no.

24 Q And during your lunch break Mr. Hernandez

25 didn't tell you to say that?

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 112

2 MR. CROCKETT: No further questions.

3 Thank you, sir.

4 MR. MARTINEZ: We'll pass the witness, and

5 we're done with the interpreter. You may excuse the

6 interpreter and Mr. Cisneros.

9 MR. CROCKETT: Yes, Your Honor.

10 THE COURT: Thank you, sir. You may step

11 down. You're excused and released.

12 Defense, you may call your next witness.

13 MR. MARTINEZ: Judge, we'll call Mr. Juan

14 Carlos Hernandez, Jr.

15 THE BAILIFF: Please stand before the

16 clerk.

17 (Witness sworn by the clerk of the court.)

18 THE BAILIFF: You may take the stand.

19 JUAN CARLOS HERNANDEZ, JR.

20 having been first duly sworn, testified as follows:

21 DIRECT EXAMINATION

22 BY MR. MARTINEZ:

23 Q Mr. Hernandez, would you please state your

24 full name for the record?

25 A Yes. It's Juan Carlos Hernandez, Jr.

Vanessa C. Owens, CSR P.O. Box 236, Alvin, Texas 77512 281-331-2843 02/20/2015

REPORTER'S RECORD 2 VOLUME 6 OF 6 VOLUMES TRIAL COURT CAUSE NO. 13-DCV-209822 3 APPELLATE COURT CAUSE NO. 14-15-00004-CV 4 LAUREL MILLER AND ) IN THE DISTRICT COURT OF 5 ELIANA MILLER ) ) 6 vs. ) FORT BEND COUNTY, TEXAS ) 7 DEBO HOMES, LLC ) 400TH JUDICIAL DISTRICT 8

14 EXHIBITS 15

25 INDEX OF EXHIBITS

2 EXHIBITS OFFERED BY PLAINTIFF

3 EXHIBIT DESCRIPTION OFFERED ADMITTED

4 1 Contract 31 v2 31 v2

5 2 Photographs 39 v2 40 v2

6 3 Printout of text 7 v3 10 v3 messages 7 4 E-mail to Debo Homes 8 v3 11 v3 from Millers 8 5 E-mail from Crockett 8 v3 11 v3 9 to Debo Homes

10 6 Letter from Debo 8 v3 11 v3 Homes to the Millers 11 7 Letter from Welscher 8 v3 11 v3 12 to Millers

13 8 Documents from sale 8 v3 11 v3 of home to the 14 Benges

15 9 Settlement Agreement 7 v3 10 v3 from Benge sale 16 10 Debo Homes costs of 7 v3 10 v3 17 construction

18 11 Welscher Law Firm 7 v3 10 v3 partial billing 19 12 Sullivan Inspection v4 20 Report

25 EXHIBITS OFFERED BY DEFENDANT

2 EXHIBIT DESCRIPTION OFFERED ADMITTED

3 1 Contract between 10 v3 12 v3 Debo Homes and the 4 Millers

5 2 Checks paid to Debo 10 v3 12 v3 Homes by the Millers 6 3 Home selection 10 v3 12 v3 7 documents

8 4 Blueprints for house 10 v3 12 v3

9 5 Construction permits 10 v3 12 v3 for house 10 7 Printout of text 10 v3 12 v3 11 messages

12 8 Photographs of house 10 v3 12 v3

13 9 E-mail regarding 11 v3 12 v3 home construction 14 10 Crockett 11 v3 12 v3 15 cease-and-desist letter 16 11 Letter from Debo 11 v3 12 v3 17 Homes to Millers

18 12 Letter from Welscher 11 v3 12 v3 Law Firm to Millers 19 13 Cost list, trades 11 v3 12 v3 20 and list of contractors 21 14 New Home Contract - 11 v3 12 v3 22 Benges 23 19 Fees - Welscher Law 11 v3 12 v3 Firm 24 20 Receipt for deposit 11 v3 25 into court registry Ma~ 14 13 10:4?a L. Miller (2811 494-5850 p.2

PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION {TREC) 12-05-2011 NEW HOME CONTRACT (COmpleted Construction) NOllCE: Net For Use For Condominium Tran ons or Closfn Prier to Completion of Ccnstructfcn

1. PARTIES: Th~rH ntt:a_st are ~ · L · C.. {Seller} and e:L, 'lafc (Buyer). Seller agrees to sell and convey to Buyer and Buyer agrees to buy from Seller the Property defined below. 2. PROPBR .: lot · .__&.______________., Block... Addition, Oty

of~s,i~~~~1Jl~~~!i'l:Z~~:li~~tf:...~£1)~~~~2:::;2~~te2~== Texas, known as L- (address/zip code), or as described on attached eXhibit, together with: {i) improvements, fixtures and au other property located thereon; and (ii) all rights, privileges and appurtenances thereto, fncludlng but not limited to: pennits, easements, and CX>Operatlve and association memberships. All property so.Id by this contract is called the "Property". 3. SALES PRECE: t:tJ, A. cash portion of sates Price payable by Buyer at closing ................... $_v~7...,.J-:3.....0~0=---- B. sum of all financfng described below (excluding any loan funding ~ fee or mortgage insurance premium) ............................................ $ 'ft 7()0 c. Sales Price {Sum of A and B) ........................................................ $__:z.--~.,,./LXfl5---=---- 4. FINANCING: The portion of Sales Price not payable In cash will be pard as follows: (Check applicable boxes below) U A. THIRD PARTY FIN'ANCING: One or more third party mortgage loans in the total amount of $ (exdudtng any loan funding fee or mortgage insurance premium}. .. (1) Property Approval: . If the Property does not satisfy the lenders• underwriting requirements for the loan(s), (indudlng,, but not llm1ted to appmlsal, lnsurabllity and lender required repairs), Buyer may tenninate this contract by giving notice to Seller prior to dosing and the eamest money wm be refunded to Buyer. (2) C[edlt Approval: (Check one box only) U (a) This contract ls subject to Buyer- being approved for the financing described in the attached Thlr~ Party Financing Addendum for Credit Approval. c:J(b) This contract is nof subject ti:> Buyer being approved for financing and does not Involve FHA or VA financing. II (J B. ASSUMPTION: The assumption of the unpaid prtnclpal balance of orie or more promrssory notes described Jn the attached TREC Loan Assumption Addendum. Cl c. SELLER FINANCING: A promissory note from Buyer to Seller of $ · , I I I. s. ~EST Jl..ONEY: $_/..Jl o O as escrow agent, at Upon execution ~bis -ct secured by vendor's and deed of trust liens, and containing the terms and conditions descrrbed fn the attached TREC Seller Financing Addendum. If an owner policy of title insurance is furnished, Buyer shall fumlsn Seller with a mortgagee policy of title ·insurance.

as earnest money with De.l!!J. ~.( ~· [.,..,_c:., (address). Buyer shall deposit additional eamest money of$ · by aJI A'arties,

· Buyer shall deposit

wrth escrow ,

agent within days after the effective date of tljis contract. If Buyer falls to depostt the earnest money as required by this contract, Buyer will be in default. 6. TITLE POUCY AND SURVEY: A.TITLE POLICY: Seller shall furnish to Bu rat D~ller's aB er's titJe lnsurance (Title Polley} issued by . . (Title Company) In the amount of tile Sa es Prtce, ated at or a clost g, lnsurfng Buyer against loss under the provisions of the Title Polley, subject to the pro ulgated exclusions including existing building and zoning ordinances) and the following exceptions:

!1~ Restrictive covenants common to the platted subdivision in which the Property is located. 2 The standard printed exception for standby fees, taxes and assessments. 3 Lt ens created as part of the financing described 1n Paragraph 4. 4 Utffity easements created by the dedication deed or Plat of the subdlvision in which the Property is located. (5) Reservations or exceptions otherwise permitted by this contract or as may be al)groved by Buyer In writing. {6) The standard printed exception as to marital rights. (7) The standard printed exception as to waters, tldelands1 beaches, streams, and related matters. (8) The standard ~rlnted exception as to discrepandes, contrfcts, shortages in area or boundary fines, enaoadiments or ~sions, or overlapping improvements. Buyer, at Buyer'"s I· expense, may have the exception amended to read, "snort.ages Jn area". i! i TREC NO. 24-12 I

I Plaintiffs' Ex. Number:· MILLER0002 1; \ Ma~ 14 13 10:4?a L. Mi 11 er (2811 494-5850 p.3 l

I I B. COMMITMENT: Within 20 days after the Title Company receives a copy of thfs contract Seller shall furnish to Buyer a commitment for tltle Insurance (Commitment} and, at Buyer•s expense, legible copies of restrictive covenants and documents evidencing exceptions in the commitment· (Exception Documents) other than the standard prJnted exceptions. Seller authorizes the Title Company to deliver the Commitment and Exception Documents to Buyer at Buyer's address shown In Paragraph 21. If the Commitment and Exception Documents are not delivered to B~er within the specified time, the time for denvery wm be automatically extended up to 15 Clays or the Closing Date, whichever is earlier. If, due to factors beyond Seller's control, the Commitment and Exception Documents are not delivered within the time required, Buyer may terminate this contract and the earnest money will be refunded to Buyer. c. SURVEY: The survey must be made by a registered professional land surveyor acceptable to the 11tle Company and Buyer's lender(s). (Check one box only) Q (1) Within days after the effective date of this contract, Seller shaU fumlSh to Buyer and lltJe Company Seller s existing survey of the Property and a Residential Real 1

Property Affidavrt promulgated by the Texas Department of Insurance (T-47 Affidavit). If Seller fails to fumlsh the existing survey or affidavit within the time prescribed, Buyer shall obtain a new susvey at Seller•s expense no ·later than 3 days prior to Closing Date. If the existing survey or affidavit ls not acc_§ltable to Title Company or Buyer's lender(s), Buyer shall obtain a new survey at U Seller's Cl Buyer's expense no 1ater than 3 days prior to Closing Date. ~ (2) Within 10 days after the effective date of this contrac~ Buyer shall obtain a new survey at Buyer's expense. Buyer is deemed to receive cne survey on the date of actua receipt or the date specified in this paragraph, wh1chever is ear1ier. [J (3) Within days after the effective date of'thls contract, Seller, at Seller's expense shall furnish a new survey to Buyer. o. OBJECTIONS: Buyer may object in writing to defects, exceptions, or encumbrances to title: ·disclosed on the survey ofher than items 6Al1) through (7) above· disclosed in the Commitment other than ftems 6A(1) through (8) abOve; or whlch prohibit the followlng use or actlvitY:~~~~~~~~~------------~~~~~~~~~~--~--------~ Buyer must object the earlier of (I) the Closing Date or (Il) _ _ days after Buyer receives the Commitment, Exception Documents, and the survey. Buyer's failure to object within the time allowed will constitute a waiver of Buyer's right to object; except that the requirements rn Schedule C of the Commitment are not waived by Buyer. Provided Seller is not obllgated to Incur any expense, Seller shall cure the timely objections of Buyer or any thlrd party tender within 15 days after Seller receives the objections and the Closing Date will be extended as necessary. If objections are not cured within such 15 day period, this contract will terminate. and the earnest money will be refunded to Buyer unless Buyer waives the objections. E. TITLE NOTICES: . (1) ABSTRACT OR llTLE POUCY: Broker advises Buyer to have an abstract of title covering the PropertY examined by an attorney of Buyer's selection, or Buyer should be fumlshed 1Mth or obtain a Tltre Polic.y. If a 11tle Policy is furnished. the Commitment should be 1>romptly reviewed by an attorney of Buyer's choice due to the time !imitations on Buyer's i1g_ht to object. (2) MEMBERSAIP IN PROPERTY OWNERS ASSOCIATION(S): The Property CJis Ois not sub~ect to mandatory membership In a property owners assoclatlon(s). If the Property Is subJect to mandatory -membership in a property owners association(s), Seiter notifies Buyer under §S.012, Texas Property Code, that, as a purchaser of propercy In the residential community identified in Paragraph 2A In which the Property is located, you are obllgated to be a member of the property owners associatfon(s). Restrlc:ttve covenants governing the use and occupancy of the Property .and all dedicatory Instruments governing the establishment< maintenance, and operation of this residential communitV have been or will be recorded m the Real PropertV Records of the county In which the Pro~rty Is located. Coples of the restrictive covenants and dedicatory instruments ma be obtained from the county c:lerk. Vi u a Ii owners a a n sure Pro Section 2 7. 03, rQPerty Code, entitles an owner to receive copies of any document that governs the establlshment, maintenance, or operation of a subdivision, includ1ng, but not limlted to, restrictions, bylaws, rules and regulations, and a resale certificate from a proper:t)I owners' association. A resale certificate contains rnformation includlng, but not Hmlted to, statements specifying the amount and fr~uency of regular assessments and the style and cause number of lawsuits to which the property owners• association is a party, other than lawsuits relating to unpaid ad valorem taxes of an Individual member of the association. These documents must be made avallable to you by the property owners' association or the associ on•s agent on y uest.

MILLER 000~ Ma~ 14 13 10:4Ba L. Mi 11 er C2Bll 494-5850 p.4

3 of 9 12-05-2011 (Address of Property)

If Buyer is concerned about these matters, the TREC promulgated Addendum for PropertJ Subject to Mandatory Membership in a Property Owners Association should &e used. {1) STATUTORY TAX DISTRICTS: If the Property is situated in a utility or other statutorily created district providing water, sewer, drainage, or flood control fadlitles and services, Chapter·491 Texas Water Code, requires Seller to deliver and Buyer to sign the statutory notice relating to the tax rate,. bonded Indebtedness, or standby fee of the district prlor to final execution of this contract. · (4) TIDE WATERS: If the Property abuts the tidally Influenced waters of the state, §33.135, Texas Natural Resources Code, requires a notice regarding coastal .area property to be Included In the contract. An addendum contarnlng the notfce promulgated by TREC or required b\! the parties must be used. . (5) ANNEXATION: If the Property Is located outside the limits of a municipality, Setler notifies Buyer under §5.011, Texas Prope~ Code, that the Property may now or later be included in the extraterritorial jurisdiction of a municipality and may now or later be subject to annexation by the munfcfpality. Each municTpatity maintains a map that depicts its boundaries and extraterritorial jurisdiction. To detennlne If the Prope~ Js located within a municipality's extraterritorial jurisdiction or is likely to be located withrn a municlpalf~'s extraterritorial jurisdiction, contact all municipalities located in the general proximity Of the Property for further infonnation. (6) PROPERlY LOCATED IN A CERTIFICATED SERVICE AREA OF A UTILilY SERVICE PROVIDER: Notlce required by §13.257, Water Code: The real propeffi', described in Paragraph 2, that you are about to purchase may be located in a certificated water or sewer service area, which is authorized by law to provide water or sewer service to the pro~rties in the certificated area. If your pro~rty is located in a certificated area there may be special costs or cha'.1"9es that you will be required to pay before you can receive water or sewer serv1ce. There may be a perlod required to construct llnes or other facilities necessary to provide water or sewer servrce to your property. You are advised to determine if the property is ln a certificated area and contact the utility service provider to determine the cc>st that you will be required to pay aod the period~ If any, that is required to provide water or sewer service to your propertv. The unaers1gned Buyer hereby acknowledges receipt of the foregoing notice at or before the execution of a binding contract for the purchase of the real property described In Paragraph 2 or at closing of purchase of the real _property. (7) PUBUC: IMPROVEMENT DISTRICTS: If the Property is in a public improvement district, §5.014, Pro~rtv Code, requires Seller to notify Buyer as follows: As a purchaser of thrs parcel of real property you are obligated to pay an assessment to a municipality or county for an improvement project undertaken by a public improvement district under Chapter 372, Local Government Code. The assessment may be due annually or In P.eriodic installments. More Information concerning the amount of the assessment and the t:fue dates of that assessment may be obtained from the municipality or county levytng the assessment. The amount of the assessments is subject to change. Your failure to pay the assessments could result in a lien on and the foreClosure of your property. {8) TRANSFER FEES: If the Property is sub~·ect to a private transfer fee obligation, §S.205, Property Code, requires Seller to noti Buyer as follows: The private tranSfer fee oblfgatlon may be govemed by Chapter , Suochapter G of the Texas Property Code. 7. PROPERTY CONDITION: A. ACCESS, INSPEtTIONS AND UTILITIES: Seller shall permit Buyer and Buyer's agents access to the Property at reasonable times. Buyer may have the Properw fnspected ~ inspectors selected by Buyer and licensed by TREC or otherwise pennttted by law to make in~ns. Seller at Seller's ex~se shall immedfately cause exlstfJ'tg utilities to be turned on and shall keep the utilities on dUrif!g the time this contract is in effect. B. ACCEPTANCE OF PROPERTY CONDITTON: {Check one box only) a (1) Buyer accepts the Property in its present condit1on. Q (2) Buyer accepts the Properly in its present condition provided Seller, at Seller's expense, shall complete the following specific repairs and treatments: _ _ _ _ _ __ ___________________________(Do not insert general p_hrases, such as "subject to inspections," that do not identify specific repairs.) . NOTICE TO BUYER AND SELLER: Buyer's agreement to aa:ept the Property in its present condition under Paragraph 76(1) or (2) does not preclude Buyer from inspecting the Proper:tY under Paragntptl ?A, from negotiating re~lrs: or treatments In a subsaquQnt amendment, or from terminating this contract during the Option Period, if any. C. WARRANTIES: Except as expressly set forth ;n this contra~ a separate writlng, or provrded by law, Seller makes no other express warranties. Seller shall assign to Buyer at dosing all assignable manufacturer warranties. o. INSULATION: As required by Federal Trade cammiss1on Regulations, the information relating to the tnsulatfon lnstalJed or to be Installed in the Improvements at the Property is:

TREC NO. 24-12

MILLER0004 .contract cortcemtng

(dieck only one box below} t;:J (1) as shown in the attached specifications. CJ (2) as follows: a) Exterior walls of improved livtng areas: insulated with insulation to a thickness of ....n--=R:-:-v.~a"":'lu-e-of-=-------.- inches which yie:;-Id::;-s:-a b) Walls In other areas of the home: insulated with_____________ insulation to a thickness af rnches which yields an R-Value of _ _ __ c) Celllngs In Improved Jiving areas: Insulated With Insulation to a thickness of inches wh:-ic~h-y""!"ie-:ld-:-s-a-n~R~-v~a~l-ue-o~f------ d) Floors of Improved living areas not applled to a slab foundation: Insulated with - - - - - - - - - insulation to a thickness of inches which yle-ld-s_a_n_R-- Value of • e) Other insulated areas2 insulated with 1nsulation to a thickness of Inches which yields an R-Value af • · All stated R-Values are based on Information provided by the manufacturer of the insulation. E- LENDER ReQUIREP REPAIRS AND TREATMENTS: Unless otherwise agreed In writing_, neither ~arty ls obj~ to p_ay for lender required repairs, which Includes treatment ror wood destroying lnSects. If the ~rtles do not agree to pay for the tender tequlred repairs or treatments, this contract will terminate and the earnest monev will be refunded to Buyer. If the cost of lender required repairs and treatments exceeds 5% ·of the Sales Price, Buyer may terminate this contract and the earnest money will be refunded to Buyer. F. COMPLETION OF REPAIRS, TREAlMENTS, AND IMPROVEMENTS: Unless otherwise agreed tn writing, ~eller shall complete all agreed repairs1 treatments, and improvements (Work) prior to the Closing Date. All required ~ts must oe obtained, and Work must be perfOrmed by · ~rsons who are licensed or otherwise authorized by law to provide such Work. At Buyer's election, any transferable warranties received by Seller wltti respect to the ·Work wHI be tnmsferfed to Buyer at Buyer's expense. If Seller rans to complete any agreed Work prior to the Oostng Date, ~er may exercise remedies under Paragraph 15 or extend the Closing Date up to 15 daY$ If necessarv for Seller to complete Work. G. ENVIRONMENTA[ MATTERS: Buyer Is advised that the presence of wetlands, toxic substances, lncludlng asbestos and wastes ·or other environmental hazards or the presence of a threatened or endangered s~es or its habitat may affect Buyer's intended use of the Property. If Buyer rs concerned about these matters, an addendum promulgated by TREC or required by the P'trtles should be used. H. SELLER'S DISCLOSURE~ Except as otherwise disdosed in this contractr Seller has no knowledge of the fotlowlng: (1) any flooding of the Property which has had a materlal adverse effect on the use of the (2) :~/=bing or threatened litlgatlon, condemJJatiOn, or special assessment affecting the · Property; . (3) any environmentat hazards or conditions materially affecting the Property; ( 4) any dumpslte, landflll, or underground tanks or containers now or previously located en the PrOperty; any wetlands, as defined by federal or st.ate 1aw or regulation, affecting the Propeify; or I. W any threatened or endangered spedes or their habitat affecting the Property. SIDENTIAL SERVICE CONTRACTS: Buyer may purchase a residential service contract from a residential service com~ny licensed by TREC. If Buyer purchases a residentlal service ·

·contract, Seller shalt reimburse Buyer at closing for the cost of the residential service contract In an amount not exceeding $ • Buyer should review any residential service contract for the scope of coverage, exdusions and llmftatlons. . The purchase of a residential service contract Is oftional. Similar coverage may be purchased from various companies authorized to ilo business In Texas. 8. BROICERS9 FEES: AR obligations of the parties for payment of brokers' fees are contained in separate written agreements. 9. CLOSING; A. The dosing of the sate will be on or before ~ 3 , 20 I ~ , or within 7 days after objections made under Paragraph 60 filifeeen cured or waived, w ic ever date Is later (Closing Date). If either party falls to close the sate by the Cosing Date, the non-defaulting partv may exerd$e the remedfes contained in Paragraph 15. · B. At cfoslng: (l)Seller shall execute and deliver a general warranty deed conveying title to the Pro_P4!rty to Buyer and showing no additional exceptions to those permitted In Paragraph 6 and furnish tax statements or certificates showing no delinquent taxes on the Property.. , (2)Buver shall pay the Sales Price In goOd funds acceptable to the escrow agent. (3)Sefler and Buyer shall execute ani:I deliver any notices, statements,. certificates, affidavits, releases, loan documents and other documents reasonably required for the closing of the

lREC NO. 24-12

MILLER 0005 Ma~ 14 13 10:51a L. Mi 11 er C281J 494-5850 p.6

contract Ccncemlng ~ ge s of 9 u-os-2011 {Address of Property)

sale and the issuance of the Titte Polley. · (4)There wHI be no Hens, assessmen!s_r or security interests against the Pro~rty whlch wtll not be satisfied out of the sales ~rcceeas unless securing the payment of any loans assumed by Buyer and assumed loans will not be in default. 10. POSSESSION; Seller shall deliver to Buyr:ossesslon of the Propertv.Jn Its present or requii-ed condition, ordinary wear and tear excepted:. upon dosing and funding -~ according to a temporary residential lease form promulgat.ed by TR or other written lease required by the parties. Any possession bY ~er prior to dosing or by seller after dosing which is not authorized by. a wrttten lease wlH establlSh a tenancy at sufferance relatlonshlp between the parties. COnSult your lnsuran~ a~ priar to cha~ of ownership an~ ~session because insurance coverage may be limited or terminated. The absence of a written lease or appropriate insurance caveraga may expose the partJaa to economic loss. 11. SPECIAL PROVISIONS: (Insert only factual statements and business details applicable to the sale. TREC rules prohibit licensees from addi~ factual statements or business details for which a contract addendum, lease or other form has been promulgated by TREC for mandatory use.)

12. SEn'LEMENT AND OTHl!R EXPENSES: A.. The folfowlng expenses must be paid at or prior to closing: . (1) expenses pa~ble by Seller (Seller's Expenses): (a)Releases of exlstirig liens, including prepayment penalties and recording fees; release of Seller's loan liabillfy; tax statements or certificates~· preparation of aeed~ one-half of escrow fee· and other expenses payable by Seller u this contract. (b)SeUer shall also ~y an amount not to exceed$ to be applied in the following order: Buyer's Expenses which Buyer Is frohtbited trOm paying by FHA, VA, Texas Veterans Land Board or other govemmenta loan programs, and then to other Buyer's Expenses as allowed by the lenaer. (2) E~enses payable bY. Buyer (BUyer's Expenses): Appraisal fees; loan application fees: ad3usted origmatlon charges; credit reportS; preparation of loan documents; Interest on the notes from date of disbursement to one month prior to dates of flrst monthly payments; recording fees; copies of easements and restrictions; loan title policy with endorsements ~urred by lender; loan-related Inspection fees; photos; amortiZation schedules; one-half of escrow fee; all prepaid items, induding required premiums for flood and hazard Insurance, reserve deposits for insurance, ad valorem taxes and . special govemmental assessments~ final compHance ln~ectlon; courier fee; repair Inspection; underwriting fee; wire transfer fee; ~enses incident to any loan; Private Mortgage Insurance Premium (PMI), VA Loan Funding Fee, or FHA Mortgage Insurance Premium (MIP) as required by the fender; and other expenses payable by BUyer under this contract. B. If any expense exceeds an amount expressly stated in this contract for such expense to be paid by a party, that party may tenninate this contract unless the other ~rtv agrees to pay such ex~ Buyer may not pay charges and fees expressty prohibited by FHA, VA, Texas Veterans Land Board or other governmental loan program regulations. 13. PRORATIONS AND ROLLBACK TAXES: A. PRORAnONS: Taxes for the current year, maintenance fees, assessments dCJes and rents wlll be prorated through the CJosln_g Dat:e. The tax proration may be calcufated taking Into conslderatlon any change In exemptions that will affect the current year's taxes. If tmces for the current year vary from the amount prorated at dosing the parties shall adjust the proratlons wtien tax statements for the current year are available. If taxes are not paid at or ~rior to dosil'.'l_g,__!3_µyer wlll be obligated to pay taxes for the current year. a. ROLLBACK TAXES: If Seller's change in use of the Property prior to closing or denial of a !!Pedal use valuation on the Prooertv results in additional taxes, penalties or Interest (Assessments) for geriods prior to dosing, the Assessments will be the obligation of Seller. Obligations Imposed by this paragraph wllfsurvive dosing. ·

MIUER0006 L. • 11 .& .&. .& IC'I \ ~u .&. J "T..,"T - "u"u t". ,

(Address of Property) 14. CASUALTY LOSS: If any part of the Property ls damaged or destroyed by fire or other casualW after the effective date of thls contract, Seller shall restore the Property to Its previous condition as soon as reasonably P.9SS1ble, but in any event by the Closlng Date. If Seller falls to do so due to factors beyond seller's control, Buyer may (a) terminate this contract and the earnest money Wiii be refUnded to Buyer (b) extend the time for performance up to 15 days and the Cosfng Date wfll be extended · as necessary or ( c) accept the Property in "its damaged condition with an assignment of Insurance proceeds and receive credit from Seller at dosing In the amount of the deductible under the Insurance Jl!)licy. Seller's obligations under this paragraph are Independent of any other obligations of Seller under this contract. 15. DEFAULT: If Buyer fails to compiy wtth this contrag, Buyer wlll be in defau1t and Seller may (a) enforce specific perfonnance, seet< such other relief as may be provided by 1aw or both, or {b) terminate this contract and receive the earnest money as ll~idated damages, thereby releasing both parties from this contract. If Seller falls to comply with this contract Seller will be Jn default and Bu~ may (a) enforce spedftc performance, seek suc:h other relief as may be provided by taytl or both~-~~- (o) tenninate this contract and receive the earnest money,. thereby releasing bom parties TTOm tfifs contract. 16. MEDIATION: It Js the policy of the State of Texas to encourage resolution of disputes through alternative dispute resolution procedures such as mediatlon. Subject to applicable law, any dlsPute be~n seller and Buyer related to this contract which is not resolvea through Informal dJsCussion~wlll Uwtll not be submitted to a mutually acceptable mediation service or P-rovlder. 'The parties to the mediation shall bear the mediation costs equally. This pa~raph i.ioes not preclude a party from seeking equitable relief from a court of competent jurtSdlctlon. 17"ATrORNEY'S FEES: A Buyer, Seller, Ustfng Broker, Other Broker, or escrow agent who prevails In any legal proceeding related to this contract is entitled to recover reasonable attorneys fees and all cOsts of such proceeding. 18. ESCROW: A. ESCROW: The escrow agent is not (l) a party to thfs contract and does not have llabUlty for the .performance or nonP.!rformance of any pam:tv to this contract, (II) Hable for Interest on the earnest money and ~m) liable for the loss of any earnest money caused by the failure of any_ financial fnstftution 1n which the earnest money has been deposited unless the flnanclal Institution ts acting as escrow agent. B. EXPENSES: At dosing, the earnest money must be applied first to any cash down payment, then to Buye~s Expenses and any excess refunded to Buyer.. If no Closing occurs, escrow agent may: (I) require a written release of llablllcy of the escrow agent from all parties" (ii) require payment of unpaid expenses Incurred on behalf of a party, and (iii) only deduct rrom the earnest money the amount of unpald expenses Incurred on oehalf of fhe party receiving the earnest money. . C. DEMAND: Upon termination of this contra~ either ~rtv or the escrow agent may send a release of earnest money to each party ana the ~rties shall execute counterparts of the release and deliver same to the escrow agent. If either palt'l falls to execUte the release, either party may make a written demand to the escrow agent for the earnest money. If onJY one P.artv makes written demand for the earnest money, escrow agent shall promptly PrQVitle a COP-Y of the demand to the other party. If escrow agent does not receive written abjection to tne demand from the other party within 15 days, escrow agent may disburse the earnest money to the party making demand reduced by the amount of unpaid expenses Incurred on behalf of the party receiving the earnest money and escrow agent may pay the same to the creditors. If escrow agent oom~lles with the provisions of this ~ragraph, each party hereby releases escrow agent from all adverse claims related to the disbursal of the earnest money. D. DAMAGES: Any .pa~ who wrongfully fails or refuses to sign a release acceptable to the escrow agent Within 7 days of receipt of the request will ce Hable to the other party for riqufdated dama~ In an amount equal to the sum of: (i) three times the amount of the earnest money; (ii) the earnest money; (iii) reasonable attomey's fees; and (iv) aD costs of suit. E. NOTICES: Escrow agent's notices will be effective when sent in compliance with Paragraph 21. Notice of objection to the demand will be deemed effective upon receipt by escrow agent. 19. REPRESENTATIONS: All covenants, representations and warranties in this contract survive dosing. If any representation of Seirer Jn this contract is untrue on the Closing Date, Seifer will be In Cfefault. Unless expressly prohibited by written agreement, Seller may continue to show the Property and receive, negotiate and accept back up offers. . 20. FEDERAL TAX R~UIREMENTS: If seller Is a 11fore1gn person " as defined by applicable law or if Setler fails to dellVer an afffdavft to Buyer that Seller Is not a ~reign person,~ ttien Buyer shall withhold from the sales _proceeds an amount sufficient to comply with applicable tax law and dellver the same to the Internal Revenue Service together with appropriate tax forms. Internal Revenue Service regulations require flllng written reports if amency In excess of specJfled amounts rs receJved fn the transaction.

MILLER0007 Ma~ 14 13 10:53a L. M1 l l er l281J 4S4-5850 p.8

Address of Property) 21. NOTICES: All notices from one party to the other must be in writing and are effective when malled to, hand·deUvered at, or transmitted by facsimile or electronic transmission as follows:

Facsimile: Facsimile: E-mall: E-mail: - - - - - - - - - - - - - 22. AGREEMENT OF PARnES: This contract contains the entire agreement of the parties and cannot be changed except by their written agreement. Addenda which are a part of this contract are (check all applicable boxes}: CJ Third PalW Finandng Addendum for Credit Q Addendum for "Back-Up" Contract Approval (J Seller Ftnanclng Addendum Q Addendum for Coastal Area Property

Cl Addendum for PropertY Subject to Mandatory Membership in a Property a Envlronmentar Assessment, Threatened or Endangered Species and Wetlands Owners Assoclation Addendum CJ Buye~s Temporary Residential Lease Cl SeJler's Temporary Residential Lease

Cl L.oan Assumption Addendum l:J Short Sale Addendum

tJ Addendum for Sale of Other Property 0 Addendum for Prope~ Located Seaward by Buyer of the Gulf Intramasta Waterway Addendum for Reservation of on, Gas CJ and (J Other (11st): Other Mfnerals

23.TERMINAUON OPTION: For nominal conslderatron, the receipt of which Is hereby acknowledged b_y Seller, and Buyer's agreement to pay Seller$ (Option Fee) within 2 days after the effective date of this contract, Seller grants Buyer the unrestricted right to terminate this contract by giving notice of termination to seller within days after the effective date of this contract {Option Period). If no dollar amount ls stated as the Option Fee or It Buyer falls to pay the Option Fee to Seller within the time prescribed, this para~raph wlll not be a part of this contract and Buyer shall not have the unrestricted right to terminate this contract. If Buyer gtves notice of termination within the time prescribed, the Option Fee wULnot bi! refunded; tioWever, any earnest money wlll. be refunded to Buyer. The Option Fee ~wilt ~wm not be credited to the Sales Prrce at dosing. Time is of the essence for this paragraph and strict compliance with the time for perfonnance is required. 24.CONSULT AN ATrORNEY: TREC rules prohibit real estate licensees from giving legal advice. READ ntIS CON-mA.cr CAREFULLY. If you do not understand the effect of thiS contract, consult an attomey BEFORE signing.

Buyer's Seller's Attomeyls: ~------------ Attomey is:

Telephone: .........__....___ _ _ _ _ _ __ Telephone:

Facsimile: _.(__)......__ _ _ _ _ _ __ Facsimile:

E-mail: E-mail:-------------

Inltlaled tor Identification by euyer'r;i!\ /1no and SeJler _ _ _ _ _ _ TREC NO. 24-12

MILLER0008 Ma~ 14 13 10:55a L. Mi 11 er (2811 494-5850 p.9

This cantract ls subject to Chapter 27 of the ~ Texas Property Code. The provisions of that chapter may affect your rfgh.t to recover damages arising from a construction defect. If Buyer you have a complaint concerning a construction defect and that defect has not ~- been corrected as may be required by law or . by contract, you must provide the notice required by Chapter 27 of the Texas Property I i ...45----- Code to the contractor by certified mall, return receipt requested, not later than the 60th day before the date you ftle sult to recover. damages in a court of law or Initiate arbitration. The notice must refer to Chapter Seller 27 of the Texas Property Code and must describe the construction defect. If requested by the contractor, you must provide the conb'actor an opportunity to tnspect and cure the defect as provided by Section 27.004 of Seller the Texas Property Code. ·

The fOrm of this atntnlct has been approved by the Texas Reel Estate Commission. TREC forms are intended for use only by trained real estate llcensees. No representation Is made as ta the legal validity or adequacy of any provision In any spedftc transactlOns. It ls not intended for complex transactions. Texas Real Estate ccm- mlSSlon, P.O. Box 12188, Austin, 1'X 78711-2188, (512) 936-3000 (http~//WWW.trec.texas.gov) TREC NO. 24- 12. This form replaces TR.EC NO. 24·11.

MILLER0009 ~a~ lA 13 10:55a L. Mi 11 er (2811 494-5850 p. 10

Contract concerning 11//5 ~ ~ If~ _ (Address of Property) "$Jl'/blPage9of 9 12-0S-2011 ·1• .

BROKER INFORMAT%0N

Other Broker Firm umnse No. Ustlng Broker firm Ucense No. represents ~ Buyer onty as Buyer's agent represents [J Seller and Buyer as an Intermediary CJ setler i!S Ustfng Braker's subagent (J Seller only as seller's agent

ucensed ~of AssodBtl\_ Telephone Ucensed Supervisor of Associate Telephone c:s4~.sc_avs\~ Assodate U,~·tfffk'~Usti~n-g~Asso----:d~ate--~---------------------Te_J_ep_hone --i('}_,z.&tT~epflone __ 4',11< Sooe:\'Wg nJL ~vn ~~ 't)...J . Facsimile Ustmg Biolrer's omc:e Address Facsimile Sl)QAIL City ~ ( LA-M) i.e. State\ 1 -~7 - q Zip -=a::-ty-----------~sta~te-----Z-lp

:g-r-o: \t\.:\l a ..(\,,

Setling Associate Telephone

Facsimile

Oty . State Zip

Selling Assodete's Email Address

usttng Broker has agreed to pay Other 8nlker ~ of the total sales price when the Ustlng Broker's fee is received. Esaow agent Is authorized and dlre&itO pay other Broker fTcm Ustlng Broker's fee at dosing.

OP'nON FEE RECEIPT' Receipt of$._ _ _ _ _ _ _ (Optlan Fee) in the form of _ _ _ _ _ _ _ _ _ Is acknowledged.

seller or Listing Broker Date

CONTRACT AND EARNEST MONEY Rl!Cl!IPT

Receipt of ClContract and 0$._ _ _ _ _ _ _ _ Earnest Money in the fonn of _ _ _ _ _ _ _ __ Is acknowledged. Escrow Agent: Date:------------

By:~-------------------------------- Emall Address

Telephone ( ) -------

ZIP Facsimile: ( >- - - - - - - TREC NO. 24-12

MILLER0010 Ma~ 1. 4 13 10 : 5 5 a L. Miller C281J 494-5850 p. 11

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MILLER 0011 Ma~ 1.4 13 10:58a L. Miller ( 281) 494-5850 F. 12

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I dining room -,1= ,... -~ · ·-·.' .b~S . iI .rz· c. 1 1~

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FLOOR PLAN (eltvatlan on oppositeside)

MILLER 0013 . ....

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··.·· • -' -\ I rl -- i' ~ ·~ :... -;- .. \ ..- - --

-···-· -..-- · : L---~ - -~ t/] .6(~

• Ma~ 14 13 11:01a L. Mi 11 er (2811 494-5850 p.15 ' I •

DEBO HOMES L.L.C.

~drues: JII 15 (ced, £4,.Ldf._ ·1 Q.TY G . -rJu'._. Port#: ,·

.... 8. · llanCes 7. LI Fbctu,_ • Showa'rl Bath Tube .Surround·

9. Door Patio . L:-/Tf. ~~. 10. 8' Fence in the.Front : .~. /Jo,~

11. Porcb/Patio ... 12.. m .· . . 13. Front Door

... ., . ~ . Selection Worksheet .

. ... ·:·· . ·.:..-;·"'" .·.

MILLER0015 12/30/2013 MON 17:48 PAX 11J035/087

DEBO Homes LL.C. 11115 Leah Dr.-Actual Cost Detail Vendors Summary

~ ·--·------ _J 07111/2013 American Express $2,500.00 06/0412013 Aqua Texas, Inc. .$0.0~· 07/03/2013 Aqua Texas. Inc. $330.43 0810512013 Aqua Texas, Inc. $206.09 0910512013 Aqua Texas, Inc. $152.95 10/0312.013 Aqua Te.xas, Inc. $96.25 11/0412013 Aqua Texas! Inc. $96.25 04/i·9f.l013 Aqua Texas,Jnc.-water/SewerTap D $1,500.00 04129Q.013 Blson Bullding Material .. $7,632.24 05101ll013 Bison BUfldtng· Material. $883.32· 05J01fl013 Bison BuUdfng Material $205.24 05/04/2()13 Bison Buifding Material $4,555.95 05/0312013 Bison BUildlng. Material $389.87 05/06120.13 Bison Building"Material $207.84 05/0912018 lr1SOn BtJirding Materlal $274.96 05/1012013 Bison Buffding Material · $310.~ Q5/20f201-3 Bison Buikfrng Material $77.94 , 0510812013 Builders First Source $1,524.83 .. 06/13120:13 Central Turf Fanns, Inc. $1_416.57 0810112013 Cor.soltdated Communications $177.59 05/1712013 crossvme Tile & stone 5125.71 0511712()13 Crpss"1\la Tiie & Stone . $2.254.24 05/30/2013 CrossvtlleTile &Ston~ $387.55 0612712013 Crossvme Tite & Stone {$315.95) 061271201-3 Crossville Tite & stone ($92.2.4} 06/06/2013 Decor Builders Hardware $78D.1'4 051141201'3 Blfott Eledrie SLi~ly · $194.59 0512:112013 Elliott Efectrfc Supply $521.56 06/19/2013 F1oorslnc. $979.29 05/15(2013 HardWood Products $3,016.41 Cii'03/2013 Kiva Kitchen & Batb . $1,544.73 OSJ23llD13 Lowes Commercial.SerVices . $539.36 05/02/2013 Marathon Spa and Jl.ath .$571.56 04/3012013 Master Brick, Inc. ~.;_, $3,139.25 05/3112013 Pot...0-Gold Waste'SeMce $77.11 05/03/2013 ProBUl1d $379.96 05/08flQ13 ProBuild .. $379.96 05/14/2013 ProBuild : $284.14 05/1712013 ProBuild $1,287.42 05/1712013 ProBuild $1,264.93 05/20'2013 ProSui"t

... Plaintiffs': Ex·. Pago1 of2

'Number DEBO-HMS00018 }

~ 10; ~ ••.hr...- ........ ,.., ,. , .... .... ~ ,. ~. 12/30/2013 KOH 17:49 FAX "'-1036/087

, DEBO Homes LL.C. 11115 Leah Dr.-A~tual Cost Detail Vendors SuRtmary

M•lffi.W 05/0612013 Southern Shhlgtes .. $3,368.47

---+---.--·'--.·-.-~=$4=4.=140=.9=19 . } r;, I -Z:l / .1:- {p TOTAL $'44,140.99

Page2of'2.

DEBCJ.HMS00019 12/30/2013 MON 17 : 50 FAX ~037/087

DEBO Homes L.L.C. 11115 Leah Dr.-Actual Cost Detail Subcontractors

Subcontractor 05/17/2013 All Star Plumb::ig Plumbing Top Out.-11115 Leali Dr $2,150.50 06/28/2013 Ali Star Plutr.blng Pft1mbing Trim.-11110 Leah Dr. $2,211.00 05/03/2013 American Flyers Construction ~rarr.ing.-11115 Leah Dr. . . $3,719.SO C6/28!20~3 Set:er Homes Claaning Window Cleanir.g.-1111.5 Leah Dr. $LOO.OD 07/12/2013 Better Hemes Cleaning Fir.al Cleaning.·11115 Leah Dr. $350.00 --+----~ 05/3 1120~ 3 C-Los Construction Brick Tu:-nkay.-11115 Leah Dr. 54,850.00 06/0512013 C-Los Construction Brick.· 11115 Leah Dr. $50.00 06/0o12C13 C-Lcs Conslruction Arch.-111 !5 Leah $812.25 09/0112013 Consolidated Ccrnmunicaticns i115LEah $66.72 10/01i2013 Ccr.sc!!d2ted Communications - 111'15 Leah. ~; $23.66 11f01/2013 Consolidated Communications . 11115 Leah Efizabe!h 557.98 07/19'/2013 Eduardo V. Cisneros Misc Bonus.-11 11_5·1.:~ah S1 , 100.00 05/1712013 Eugenio Aguilar Garage Door.-11115·Leah Dr. $440.00 06/2812013 EugenioAguilar Garage Opener.-1111-5 Leah Dr. S547.00 04/1912013 Fort Bend County 11 115 Leah Dr- 5200.00 04/20/2013 Harr/ Mitchell Design Plans.-11115 Leah Dr. S760.DO 0412312013 Harry Mitchell Design Plans.-1 1115 Leah $400.00 06/2812013 HM Paint Contractors Paint Turnkey.-11115 Leah Dr. $3,700.00 04/1812013 Home Depot T-P"ole.-11115 Leah Dr. S445.26 05/1012013 Horr.eieam Pest Defense, Inc. J 1115 Leah $125.00 OSti0/2013 Hor.ieTea:n Pest Defense, Inc. · 11115 Leah '$ 150.00 11/07/2013 HomeTeam Pest Defense, Inc. 11115 Leah Eiizabeth S70.00 04/19i2013 Javier A. Vivar T-Pole.-1111S Leah Or. .. $1CO.OO 05{30/20'! 3 Javier Camarena Front Door.-11115 Leah ,$1,100.00 C6/28/2013 Javier Camarena Front Door-11115 Leah· . '$500.00 0510312013 JC Hernandez Construction Scrape Lot.-11 115 Leah Dr. $800.00 . 05/03/2013 JC Hernandez Construction Four.da!ion Tumkey.-11115 Leah $13,550.70 06/28/2013 JC Hernandez Construction Underground Gec!ric.-11115 Leah $1,000.00 06/28/2013 JC Hernandez Construction Trash Turnkey.-11115 Leah Dr. $1,300.00 C6/28/2013 JC Hernandez Construction Fence Tumi

Pase 1 or2

DEBO-HMS00020 12/30/2013 MON 17:51 FAX 1Z103etos1

DEBO Homes L.LC. 11115 Leah Dr.-Actual Cost Detail Subcontractors· ·~ .' M!i\,t.iilUM 05/3112013 Krfs Dominguez · •. · ~esComm!ssion.-11115 Leah O 06/07'2013 Kris Dominguez •. • Sal~ Comm~ion.-1111°5 Leah·d • $700.00 05124120~3 LOS Construction • .-·Trim 1.-11115 Leah Or. $829~2 05Ji4J2013 LOS Constructicn Cabfriets.~1111 s Leah Dr. $1,630.00 0012812013 LOS Construction Trfm·11.-1111s Leah Dr. $300.00 05/2412013 Mill'CQS Reyes. Vanity T-ops 'Granite.-11115 Leah .$3,236~00 · 11115 Leah $103.n :_ 111115 Leah $103.72. 08107/201~ M~age Property Services. Inc 1111·1s LEah dr $-'lo3.n 0111212013w. Grass & Mirror Mirrors/Showers.-11.115 Leah·oi. $1,181.00 04~013 Nrd'fOls.Enterprise Cover-11115 Leah Dr. $416.75. 051101201~ OrtandQArQue\ies. Electric Rough.~11115:leah Dr. $2,268.oo '. extras.-11115 Leah dr. $700.00 ElectlfcTrfm Final-11115· Leah $1:,000.00 ·b5i'llll2013 P~fd:Waste Service 11115 Leah $10.00 • 1111.15.Leal\ .m.11 07J12/201~ Pot~ld Waste,SetVice 11115 Leah $2.75 ·. o6/051201:3 Rettant Energy 11115 Leah Elizabeth • so.ca 111115 Leah $20.3.61 0810512013 Reliant energy 11115 Leahdr $36.48 09/04/201'3 Reliant. Energy 11115 Leah Or. 1·o/OS/2013 Refiant Energy 11115 Leah $138.81 1110112013 Reliant Energy 11115 leah ·$84.24 0510312013 Rolando Cisnado €ornice.-11115 Leah Dr. $1~$92.75 0511.7.12013 Sergfo:.Medina· · ~tt lnsulatfon.-11115 Leah Dt~ '$700.00 05/171201~ .Se lo Medfna· Btown lnsulatlon.-11115 L~ah,Or. $600.00 06/1412013 Sergio Medina ~·t:uers-1111.5 Leah $500•.00 .. 06128/20'13 Tiburcio Contreras Ti!e Subc.-11115 Leah Dr. $3,500~00 osn01201a VictorBontfla, Prewire Securlty:-11115 Leah Dt. $450.00. C6128/20-13 Vlctor Bonilla Securfty Flnat-11115 Leah Dr. $450.00

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..

Paga.2 of~~.

DEBO·HMS00021 12/30/2013 KON 17:52 PAX IZJ039/087

. . DEBO Homes L.L.C. · 11115 Leah Dr.- Aqua) .Cost Detail Ovsrhead co~.

Date

l 700.00 06/21/2013 Kris Dominguez 11 700~00 .!( . . •.. .. Total .$. ·2, 100.00 . .. .:. . . .

.J~· _·:..:.::.:~: ::.• _ _ ci 1a,soa.oo I ........., .. ·.: - I

Contract Sales Price $ 168 000.00

House Construction Costs $151,109.78

Closin Costs ·$ 4, 128·.17 Customer Earn~st Money\Ui?grades .$: 1,000.00 Net Closin Costs $. · 3,128.1.7 .

Total Actual Costs $ . 154,228.95 Gross. Profit or (Loss) . · $ .. 13,771:.05

Page lofl

DEBO-HMS00022

-:-. - 04/25/2013 16: 33 281-489-7673 J IM SU...LIVAN PAGE 02/05

~~~b:. J. R. SULLIVAN CODE ENFORCEMENT OFFICER Oftk» (2a1) 324-3862 Fu (281) 324-2138

ON SITE FOUNDATION, INSPECTION REPORT These inspections and reports are for the sole purpose of Mortgage Property Services Inc., the home builder and their reqnireu:ienu. The buyer or olher parties involved in this propet1y have other rlghu to !n~pectio111 for their purposes and protection. This report I& a profcs.o;ional opinion and is not a gummty·or warranty.

Bun.oBR _ __...D--~-.w..'o~o'--~~~c<:------PRoP .. "ooRsss \ 1\ \ S . \.e;Q.~ EJ..c. ~ DATB OP INSncrtON_~-t..... /._~-'--;-;:_~...._\_\_ _ _ _ __ SUBD1VISION 1$.o!>~ '-~ u>T_ _--=$'---_BLK q SEC-_..._--- INSPP.CTOR. .;:> \<"'C"'\. s....,, \' -.i....J~,._j ~ PRE-Pl.ACE!MBNT PLAN t Cl Pl.ACBMENT PLAN DATE--- -- - - -

TJllS REPORT lS FOR ON SITIS .AND INTBR-OFFICH COMMUNICATIONS ONLY. TSE omcJAL JN8P'ECTJON llJtPORT AND CBJtTD'ICATION"S MUST BE OBTAINJ!D FROM MORTGAGE PROYERTY SEJlVlCES, INC. OR TifK IJUlLDltll.

FOR lNSPECTlONS CALL (281) 324-38521NOl'tgof~propstt,-,@ya"lloo.com

LIST ALL SUBSTANTIAL, NON·COMPLIANC.I!: WITH PLANS, SPECS AND RELATED CODF..S. ±\.E. <:..LU~~ ~ \.~6c:h~ A. C NO NON-COMPLIANCE OBSERVED. A~~ ~bRr<.. B. C MINOR NOfll-COMPJ, IANC6 OBSl!RVE:D AND USTED. BUILDEJl SHALLCOMPl.V AND J'ROCBBO

C. C SERIOUS NON-COMP1..IANC£ \..TSTI!D. BUILDt:R SHAU. CORR6CT AND CALL POll RRINSPECTION.

BEAMS A. DEP'm SHOWN ON PJ..ANS -.Z.. ~ " (E"XlCRJOR)

B. Pl!PTif SHOWN ON PLANS "l.. f- " [IN1ER10R) C. WlDTB SHOWN ON FLANS I. )......

D. PU!LD M.IWHJREP DBP'TH ?=}o n (EXTERIOR) !!. PIEU> MB.ASURBO DBPnl 'Z_. .f- " (INTBRIORJ F. FI.eLD MEASURED WJJJTH \ >-- u

REINFORCING S1'E¥- A. STBELSHOWNOND6T,lllLSHBBT 'YES ONO _ _ _J;;....__ _ _ CORRECT AND PROCEED

B. IF ' 'YBS", WJ\S STBliL lNSTALL£D PER PLJ.NS7 ~CJ NO - - - - - - - RBCAJ..L FOR RBTNSl'£C110N SIZE OP RBBAR ~ SIZE OP WlRB MESH

oara:'f"O•'t ........,"""'"

- - - - - - - - - - _ .. _ .... ,,~~~""'

.........: ....,.l'roplrfySetvfcn,lne.. J. R. SULLIVAN CODE ENFORCEMENT OFFICER Olllt:e (181} 32..f4862 mottgageproptevtlyahoo,com Fax (a81J »f..2131

ON SITE FRAMING INSPECTION REPORT These inspections and reports are for the sole purpo5C of Mortgage Property Services tnc., the home builder and their requirements. The buyer or other parties involved in this property have other rights to Inspections for their purposes end prorection. This report is a professK>naJ opinion od is nor a guaranty or warranty.

BUR.DBlt 'Q.t;~C't \~~3' PrlOPADORBSS t\\\~ ~ t_.\_\.7J\~ DATE OF INSPECTION 'Y'l O /\2 SUBDtVISlON s~ ~\ ~ LOT ,:; BLK 1? SEC-__,\....__ _ _ JNSPECTOR ~\~ ~ \\~ PLAN'------------··------ PLAN DATE _ _ _ _ _ _ _ _ _ _ _ __

THIS REPORT IS FOR ON Sn'B AND INTER-OFFICE COMMUNICATIONS ONLY. THE OFFICIAL INSPECTION REPORT AND Cg)O'DlJCATIONS MUST BE OBTl\INID FROM MORTGAGE PROPKJlTY SERVICES. INC. OR Tlf8 BUILDER.

FOR INSPECTIONS CALL (281) 324-3852 mortgagepropsen@yahao.com

LIST ALL SUBSTANTIAL, NON-COMPLIANCE WITH PLANS, SPECS AND RELATED CODES.

A. 0 NO NON-COMPUANCE OBSE!RVED.

8. ~OR NON.COMPLIANCE OBSERVED AND US'tED. OUILDBR SHALL COMPLY AND PROCEBD C. C Sl!IUOUS NON-COMPLIANCB LISTED. BU1LD£R SHALL CORRECT ANO CALL FOR REINSPECTJON.

~&:\~s...-x :t.l~c:... '+-l' R.~ A ~~ ~·~& A~ ~k~ k~w~~ ~ 3w '>3- \j;-t--\ G-~£. A\: ~ \.'-')c ~ ~LOC.k ~~ ~~~ g>\Nt? W"'~'§'J I '"'

Q CORRBCT ITEMS NOT1!I> ABOV6AND PllOCBBD :t?o:RECT ITEMS NOTED ABOV.EtU!CALL Poa RBINSPBCllON

t1=1Y-11-2013 09:20 From:281 489 7673 ID:MORTGAGE PRCPERTIES Page:001 R=96% DEBO-HMS00049 I ~ 08/07/2013 17:27 281-489-7673

" JIM Sll..LIVAN PAGE 02/82

CD

MPS INSPECTION REQUEST Rr.QUIST l'fVMBER MtJS1' BE ON ALL REQUEST_NUMBER Ji66s3f .. ·····-· ·: INSPICTION REPORTS UPPER RIGHT CORNER ·• · --··· · ·-·-' Tnlday, Atiplt 06, 2013 11 :34:54

STRSETNUllBER

STREET NAME !jliis·--- . ....... . . ~·--···---. ,LEAR ELIZABETIJ ·-· REQUEST DAT!! ~~Z~!!.. ·~=· ·-.~=:·: DRIVE ~=-==-=:::... .,,........_, CITY NEEDVILLE. . ......,.,.: ZJPCODE COUNTY 'ORTliiND.:....-.:: . . . LOCATION r-- ·--.. ··- ... .... ~~ - ":' .. ·.. -······· .. .. . . -· ··---~=---=:.;:::·.:.:-=-~--=-' FINA.L"N\V ... . .. . SUBDMSION ~-WIND--·--, JNSPecTION TYPE ItD-·· ·-· ·-. · · - · · 1 · · - - · •· - · · · ....... ..1 --··---·----···· J - - - - · ·--- ··-] BUILDER -··~I!~~.·-- ... _.J CALLEO 1Nav Im~-~----· LOT :1:t-······-- ·---- • .- . !s -~~--=.·:· ·.~-:~·.~] •OPSTORIES sa FOOTAGE c--··-·~~.=~-~·· r--··-· ·----·- BLOCK ~ ---··· ...... _._I SECTION ~NS r_; RE·2 L: RE-3 i:: INSPDATE --~·==:~.- I PHOTO'S NEEDED rJ ~ PLANS 1utbe'rlzed plans found on file for this property.

.. . ···---··- ·-·- . .. .. ···-···-.. ··-·· ·----- ·-· ···-----------. ---- ASSIGN!DlNSPECTOR ~~AN:~· ~·1 CONTACT PERSON ~~"(5~0S _j CONTACT PHONE NUMBER ~~~~---·-=-~J KEY UAP [- - ·-·-~·:-::~1 .;·.:.A·c;;;, ····· ... ----··-·:-:-fF.iAFi1e11an11t c- . :===-:~;.- .... , ··-·-- ·-·-···· L--···-· SPEclAL.tNBTRUCTiONS·--.. .... ... -.-·.--·- ..-·-··· . ·····- -.. . -···--···· ...._J ~-·. ·-·-· IMiUA--ciADDID .. ... . · · - - - .. . .. - ---·. - I c:a Pased Ottold D Fallad ~ ...... ···----·· ···---· ..... . - ..•. - ---··-··· • ·-·· __J j lnltfala--e

MORTGAGE PROPERT't' SERVICES INC. 281..324-3852 FAX 211-324-2138 Page 1 of1

~ ~ AU:i-07-2013 17:21 From:281 489 7673 ID:MORT~ PRCFERTIES Paee:002 R=96%

DEBO-HMS00050 . .

EXHIBIT 2

i* DEFENDANrs EXHIBIT ~ 2. ~ ::~.-:+~: .•· ·•· 3.000 i;·l·l:i•! ·.._;.; :··~··~- :.7;0-~.2J:i:_'i'~ s·su·~o. . it.'.· ...~. ~. . . -·. :. ~ .. .·::. ~: .. ~,,;;;;~,,~~i:~~.,~;~t·ikf;~,~if~T~~~#'!,:~~;i:,>iii_~;~~.&.~

DEBO-HMS00014 EXHIBIT 10

! DEFENDANT'S ~ EXHIBIT § 70 I Date: May 22, 2013, 1:38:36 PM CDT To: "krissdominguez@yahoo.com" , "info@debohomes.com" · Cc: "lorinew99@aol.com" ·Subject: 11115 Leah Elizabeth Dr., Needville, Texas 77461

Dear Mr. Rodriguez and Domingue-z:

Laurel and E11ie Miller have retained our firm to investigate whether their home is being constructed in accordance with the plans and specifioations of their contro.ctunl agreement with Debo Homes. In order to prevent irreparable hmm, as well as, ensure that any defects have been ·corrected prior to continued building - we hereby demand that you cease and desist further construction on the home. Furthermore, please discontinue ~er contact with my clients. Please direct all questions, concerns or correspondence to our firm.

Once our experts have determined the current status of the home and whether any repairs are necessary - we will send notice of such repairs via certified mail. In accordance with the Residential Construction Liability Act, you will be provided an opportunity to make these reasonable and necessary repairs, prior to any suit being filed. Thank you for your patience, while we investigate this matter.

Very Respectfully, .., .'

Brian H. Crockett ... Newton Jones & Spaeth Attomeys and Counselors at Law 3405 Marquart

··.•

. l.!·:\

10 ·;···--·········-····---Houston, TX 77027 713-493-7620 (Telephone) 713-493-7633 (Facsimile) ~ 713-493-7627 (Direct) 713-493-7591 (Direct Facsimile) 877-204-5670 (Toll Free) bcrockett@newton-lawyers..com

Confidentialitv Notice:

The information in this email may be confuientia/ and/or privileged. This email is intended to be reviewed by only the individual or organization named above. Ifyou are not the intended recipient or an authorized representative of the intended recipient, you are hereby notified that any review, dissemination or copying ofthis email and its attachments, ifany, or the information contained herein is prohibited. Ifyou have received this email in error, please immediately notify the sender by return email and delete this email from your system. Thank You

,.,...

2 EXHIBIT 11

r~ DEFENDANT'S § EXHIBIT l - ... If -- (?) - -~ ¥.>EB© H©MES 1108 FM 2977 Richmond, TX 77469 Office: 281-342-3528 Fax: 281-342-1088

May29, 2013

Laurel and Ellie Miller:

Based off the contract made on April 13, 2013, Debo Homes LLC has an obligation to construct your new home at 11115 Leah Elizabeth Drive in Needville, TX. We have built and sold over 160 houses and have a strict construction standard in every one of our homes. It's come to my attention that you have concerns about the quality of construction and materials going into your home. I'm sorry that you feel that way, but I can assure you that the quality of construction and materials in your home has met our quality control standard. Throughout the construction of every one of our homes we schedule three inspections from a 3rd party (Mortgage Property Services) hired by Debo Homes to assure quality. A foundation inspection is done before we pour concrete, frame inspection is done before we insulate and install drywall, and finally a final inspection is done at the completion of the house. In addition, we also have our super-intendent on site supervising all subcontractors hired by Debo Homes. Also, you hired another inspector to inspect the frame of the house and we fixed the minor issues he requested.

We have a reputation of going above and beyond to meet our customer's satisfaction, if there is something we can do to accommodate your needs, please let us know. If you have any questions or doubts about the way we do a certain job, please ask us and in turn give us the opportunity to diligently answer you. We are professionals and were hired to provide our expertise in all aspects throughout the construction process; I believe that is why you decided to hire us to build your home. If you are not happy with our service, you are free to terminate the contract with Debo Homes and we will refund you 100% of the money you have given us after we sell the house. However, we are confident that we can reach an agreement and move forward with building your new house.

Juan Carlos Hernandez President Debo Homes LLC

DEBO-HMS00003 11 EXHIBIT 14

* DEFENDANT'S ; EXJ IBIT ~m ~ c.. PROMUl.GATED BY THE TEXAS REAL CSTATE COMMISSION (TREC) 17-05-2.011

NEW HOME CONTRACT (Completed Construction) NOTICE: Not For Use For Condominium Transact!ons or a~ar to Completion of Construdfor. 1. PARTIES: The partlesJo t ·s co trq,;% re Df:4o ~ft5 ?'.L.. ___C___,. _______ (Seller) and f,,,,. "1 , ~~fkh.q.L, . (Buyer). Se\ler agrees to sell and convey o Buyer and Buyer agr~ btJ<( from Seller the Property defined below. 2.PROPERTY: Lot .r; .... ,Block SJ · - - - - - - - - - - - - - ' oC_....... ~~~~ . -- . _,r;:ouotv.9f G-d: ~ Addition, City Texas, known as _j.fjlS- J.~i<~ 011.J.l;vf<..·-'L_~/{/-c,,, ,~_"2.-..-_ 7 ...,L.... 'w...,,l.._·_. _ _ _ _ _ __ (address/zip code), or as descrioed on attached exhtbit1 together with: (i) improvements, fixtures and all other property located thereonj and (ii) all rights, privUeges and appurtenances the1·eto, tnduding but not llmfted to: permits, easements, and cooperativP. and ris~ndatlon memberships. AU property sold by thls contract is called the "Property". 3·!~l~!::~~n of at Sales Price payable by Buyer closing .................. $.......... ~......................---....-......-- 8. Sum of all financing described below (excluding any loan funding fee or mortgage insurance premium) ........................................... $ / kf:_ tft1V c. Sales Price (Sum of A and B) ...................................................... $ ,T

! l j Restrfctfve covenants mmmon tn the platted subdivision In whtch the Property is located. 2 The standard printed exception for standby fees, taxes and assessments. 3 Ltens created as part of the financing described \n Paragraph 4. 4 Utility easements created by the dedication deed or plat of the subdlVlslon In which the Property is located. (5) Reservations or exceptions other.vise permitted by this contract or as may be approved by Buyer in writing. (6) The standard printed exception as to marital rights. (7) The standard printed exception as to waters, tidelands1 beaches, streams, and related matters. (8) The standard printed exception as to discrepancies, conflicts, shortages In area or boundary lines, encroachments or protrusions, or overlapping improvements. Buyer, at Buyer's expense, may have the exception amended to read, 11 ho :ages In area".

Initialed for identification by Buy _ . TREC NO. 24-12

DEBO-HPllS00029._ -· . 14 //307 ·L.:6 - G/,~J-t;_ JI.~~ ._.ltf...;a::.~~~._.L.-__.__.1.-ZS.....__.__._ _Page 2 of9 12·05~2011 1

eomrnctCorl(;eming •.. I (Address of Property)

B. COMMITMENT: Within 20 days after the Title Company receives a copy of this contract, Selter shall furnish to Buyer a commitment for title Insurance (Commitment) and, at Buyer's expense, legible copies of restrictive covenants and documents evldenctng exceptions in the Commitrnent {Exception Documents) other than the standard printed exceptions. Seller 1authorlzes the Trtle Company to deliver the Commitment and Exception Documents to Buyer at Buyers address shown in Paragraph 21. lf the Commitment and Exception Documents are not delivered to t:su~er within the specified tlm~, the time for delJvery wm be automatically extended up to 15 Ciays or the Closing Date, whichever is earlier. If1 due to fact.ors beyond Seller's control, the Commitment and Exception Documents are not delivered within the time required, Buyer may terminate this contract and the earnest money wm be refunded to Buyer. c. SURVEY: The survey must be made by a registered professional land surveyor acceptable to the Title Company and Buyer's lender(s). {Check one box only) Cl (1) Within days a~er the effective date of this contract, Seller shall furnish to Buyer and Title Company Seller's existing survey of the Property and a Residential Real Property Aft'idavrt promulgated by the Texas Department of I11:su' am:.e (T-47 Affidavit). If Seller fails to furnish the existing survey or affidavit within the time prescribed, Buyer shall obtain a new survey at Seller's expense no later than 3 days prior to Closing Date. If the existing survey or affidavit is not acc_.gptable to Title Company or Buyer-s lender(s} 1 Buyer shall obtain a new survey at u Sellers - 0 Buyer's expense no later than 3 days prior to Closing Date. f/J (2) Within ':J.O days after the effective date of this contract, Buyer shall obtain a new surver at Buyer's expense. Buyer is deemed to receive the survey on the date of .. actua receipt or the date specified in this paragraph, whichever iS earlier. (J (3) Within _ _ _ days after the effective date of this contract, Sellerr at Seller's expense shall furnish a new survey to Buyer. o. OBJECTIONS; Buyer may object in writing to defects, exceptions, or encumbrances to tltle: disclosed on the survey other than Items 6A( 1) through (7) above; disclosed in the Commitment other than items 6A(1) through (8) above; or which prohibit the following use or activity:--······ --,---------------------- Buyer must object the earlier of (t) th-e-·closing Date or (ii) ~..days after Buyer recelv~ the Commitment, Exception Documents, and the survey. Buyer's failure to object within the time allowed will constitute a waiver of Buyer's right to object; except that the requirements In Schedule C of the Commitment arc not waived by Buyer. Provided Seller is not obligated to incur any expense, Seller shall cure the tlmeiy objections or Buyer or any third party lender within 15 days after Seller receives the objections and the Closing Date will be extended as necessary. If objections are not cured within such 15 day period, this contract will terminate and the earnest money wtff be refunded to Buyer unless Buyer waives the objections. E. mLE NOTICES: (l} ABSTRA(.I OR TITLE POLICY: Broker advises Buyer to have an abstract of title covering the Property examined by an attorney of Buyer's selection, or Buyer should be furnished with or obtain a Tltle Policy. If a Title PoUcy Is furnished, the Commitment should be promptly reviewed by an attorney of ·suyer's choice due to the time lfrnltations on Buyer"s right to object. {2) MEMBERSHIP IN PROPERTY OWNERS ASSOCIATION(S): 1·he Property llf.s Qis not subject to mandatory membership in a property owners associatfon(s). If the Propetty is subject to mandatory membersh1p In a property ov-mcrs zissoclation(s), Seller notifies Suyer under §5.012, Texas Property Code, that, as a purchaser of property in the residential community identified in Paragraph 2A in which the Property is located, you are obligated to be a member of the property owners assoclation{s). Restrictive covenants governing the use and. occupancy of the Property and all dedicatory instruments governing the estat51Jshment, maintenance, and operation of this residential community have been or will be recorded in the Real Property Records of the county in which the Property ls located. Copies of the restrictive covenants and dedicatory instruments rnay be obtained from the county clerk. Y.ou .are Qbligam_d ...m .mw.. stss§.5JIH1=ntl !Q ...tl1e Q.C.QD~ owners assoctationfs). The amj)unt of thi assessmentLisiub}ect tochanae; Your failure to pay the assessments could result in enforcement of the associatjon's lien on and the foreclosure of the Property, Section 207 .003, Property Code,. entitles an owner to receive copies of any document that governs the establishment, maintenance, or operation of a subdivision, Including, but not £1mited to, restrictions, bylaws, rules and regulations, and a resale certificate from a property owners• association. A resale certificate contains information including, but not llmjted to, statements specifying the amount and frequency of regular assessments and the style and cause number orlawsults to which the property owners' association is a party, other than lawsuits relating to unpaid ad valorem taxes of an Individual member of the association. These documents must be made available to you by the property ~ owners' association or th ssocia ·en's agent on yo r request. t Initialed for identification by Buy ___,._,,..__ ....,,~-~ and Seller-...----- ..... TREC NO. 24·12

DEBO-HMS00030- Ccntrat;t Conceming --'h..r /r"fi,,S ~ ti, l12.4iK . liLh. ~ " z• ·- .,,J5< 77 cfre / Page 3 of 9 12--05-2011 () {Address of Property)

If Buyer is concerned about these matters, the TREC promu,gated Addendum for Pro~rtv Subject to Mandatory Membership in a Property Owners Association should be used. (1} STATUTORY TAX DISTRICTS: If tha Property is situated in a utility or other statutorily created district providf ng water, sewer, drainage, or flood control facilltles and services, Chapter 49, Texas Water Code, requires Seller to deliver and Buyer to stgn the statutory notice relating to the ldX rate, bonded indebtedness, or standby fee of the district prior to flnal execution of this contract. (4) TIDE WATERS: If the Property abuts the tidally influenced waters of the state, §33.135, Texas Natural Resources Code, requires a notice regardlng coastal area property to be included In the contract. An addendum containing the notice promulgated by TREC or required by the parties must be used. (5) ANNEXATION: If the Property is located outside the limits of a municipality, Seller notifies Buyer under §5.011, Texas Property Code, that the Property may now or later be included in the extraterrjtorial juri~riirtfon of a municlpallty and may now or later be subject to annexation by the municipalit'/. Each municipality maintains a map that depicts its boundaries and extraterritorial jurisdiction. To determine if the Prope~ is located within a municipality's extraterritorial jurisdiction or is like1y to be iocated withm a municipality's extraterritorial jurisdiction, contact all municipalities located in the general proxtmity of the Property for further information. (6) PROPERTY LOCATED IN A CERTIFICATED SERVICE AREA OF A UTI111Y SERVICE PROVIDER: Notice required by §13.257, Water Code: The real property, described in Paragraph 2, that you are about to purchase may be located in a certificated water or sewer service area, which Is authorized by law to provide water or sewer service to the properties In the certificated area. If your property is located in a certificated area there may be special costs or charges that you will be required to pay before you can receive water or sewer service. There may be a period required to construct llnes or other facilities necessary to provide water or sewer service to your property. You are advised to determine if the property is in a certificated area and contact the utility servjce provider to determine the cost that you wm be required to pay and the period, if any, that is required to provide water or sewer service to your property. The undersigned Buyer hereby acknowledges receipt of the foregoing notice at or before the exec::utjon of a binding contract for the purchase of the rear property described In Paragraph 2. or at closing of purchase of the real property, (7) PUBLIC IMPROVEMENT DISTRICTS: If the Property is In a public improvement district; §5.014, Property Code, requires Seller to notify Buyer as follows: As a purchaser of this parcel of real property you are obligated to pay an assessment to a municipality or county For an improvement project undertaken by a public Improvement district under Chapter 372, Local Government Code. The assessment may: be due annually or tn periodic fnstnllments. More information concerning the amount of the assessment and the due dates of that assessment may be obtatned from the municipality or county levying the assessment. The amount of the assessments is subject to change. Your failure to pay the assessments could result in a lien on and the foreclosure of your property. (8) TRANSFER FEES: If the Property is sub~ct to a private transfer fee obligation, §5.205, Property Code,. requires Seller to notf Buyer as follows: Tne pr1vate transrer fee obligation may be governed by Chapter , Subchapter G of the Texas Property Code. 7. PROPERTY CONDITION: A. ACCESS, INSPECTIONS ANO UTfl.mFS: Selier shall permit Buyer and Buyer's agenh; access to the Property at reasonable times. Buyer may have the Property Inspected by inspectors selected by Buyer and licensed by TREC or otherwise permitted by law to make inspections. Seller at Seller1s expense shall immediately cause existing utilities to be turned on and shall keep the utilities on during the tlme this contract is in effect. B. A._CCEPTANCE OF PROPERTY CONDITION: (Check one box only) D {1) Buyer accepts the Property in its present condition. D (2) Buyer accepts the Property rn its present condition provided Seller, at Sellers expense, shall complete the forlowing specific repairs and treatments:_---,--_ _ _ __ ---------·····-· (Do not insert general phrases, such as "subject to Inspections," that do not identify specific repairs.} NOTICE TO BUYER AND SELLER: Buyer's agreement to· accept the Property in lts present condition under Paragraph 78(1) or (2) does not preclude Buyer from inspecting the Property under Paragraph 7A, from negotiating repairs or treatments In a subsequent amendment, or from termlnatrng this contract during the Option Period, if any. C. WARRANTIES: Except as expressly set forth in this contract, a separate writing, or provided by law, Seller makes no other express warranties. Seller shall assign to Buyer at closing e1U C:l~~iyndl.Jle manufacturer warranties. D. INSULATION: As required by Federal Trade Commission Regulations,. the information relating to the insulation Installed or to be Installed in the Improvements at the Property Is:

DEBO-HMS00031 conuar:t. Cv11ccrnin9 - _/fJ./1 Le(!.4- uz.tf;df.\; 1/~-~I -lk 77'/.tf;_L_P2ge 4 of 9 12-05-2011 {I (Address cf Property)

(check only one box below) 0 (1) as shown in the attached specifications. LJ (2) as follows: a) Exterior walls of Improved living areas: insulated wit h - -· - - - - - - - - - insulation to a thickness of _ _ ._ _ inches which yields an R-Value of _ _._ __ b) Walls in other ;;rP.as of the home: insulated with insulation to a thickness of Inches which yields an R-Vatue of _. c) Ceilings in improved living areas: insulated with ·- - - - -- - insulation to a thickness o f - - -·- inches which yields an R-Value of • d) Floors of improved living areas not ariplied to a slab foundation: insulated with-:-:,---- - __ insulation to a thickness of ... inches which yields an R- -V-a-lu_e_ o_ f_ . e) other Insulated areas: insulated with . insulation to a thlckrn:!ss of inchcc which yie!ds an R-V;;ih1P. nf .· All stated R-Values are based on information provided by the manufacturer of the insulation. E. LENDER REQUIRED REPAIRS AND TREATMENTS: Unless otherwise agreed in writing, neither party is obligated to pay for lender required repairs, which Includes treatment for wood destroying insect!>. If the parties d o not agree to pay for the lender required repairs or treatments, this contract wil l terminate and the earnest money wlll be refunded to Buyer. If the cost of lender required repairs and treatments exceeds 5% of the Sales Price, Buyer may terminate this contract and the earnest money will be refunded to Buyer. F. COMPLETION OF RFPAIRS, TREATMENTS, AND IMPROVEMENTS: Unless otherwise agreed i;i writing, Seller shall complete all agreed repairs. t reatments, and improvements (Work) p1 ior to the Closing Date. All required permits must he obtained, and Work must be performed b~ persons who are licensed or other.'>'ise authorized by law to provide such Work. At Buyers P.lection, any transferabfe warranties received by Seller with respect to the Work will be transferred to Buyer at Buyer's expense. Ir Seller fa lls to complete any agreed Work prior to the Closing Date, Buyer may exercise remedies under Paragraph 15 or extend the Closing Date up to· 15 days if necessary for Seller to complete Wori<. G. ENVIRONMENTAL MATTERS: Buyer is advised that the presence of wetlands, toxic substances, including asbestos and wastes or· other environmental h a zards or the presence of a th:-eatened or endangered species or its habitat may affect Buyers intended use of the Property. ff Buyer is concerned about these matters, an addendum promulgated by TREC or required by the parties should be used. H. SELLER' S DISCLOSURE: C:xc:ept os otherwise dlsdosed in this contr;:ict, Seller has no knowledge of the following: (1) any flooding of the Proper::y whi:::h has had a material adverse effect on the use of the Property; (2) any pending or threatened litfgation, rondemnatlon, or special assessment affecting t he Property; (3) any environmental hazards or conditions materially affecting the Property; (4) any dumpsite, landfill, or underground tanks or containers now or previously located on the Property; (5) any wetlands, as defined by Federal or state law or regulation, affecting the Property; or (6) any threatened or endangered species or their habitat affec.ting the Property . I. RESIDENTIAL SERVICE CONTRACTS: Buyer may purchase a residential service contract from a residential service company licensed by TREC. If Buyer purchases a residential ser.,lce contract, Seller shall reimburse Buy~r at:; cloSing for the cusl ur t ile residential service contract in an amount not exceeding $ t?!Z': ·-- . Buyer should review any residential service contract for the scope of coverage, exclusions and limitations. The purchase o f a residential service contract is optiona l. Similar coverage may be purchased from var ious companies authorized t o do business in Texas. 8 . BROKERS' FEES: Alt obligations of the parties for payment of brokers' fees are contained in separate written agreements. 9 ' ~~~;er~l~~lng a~er of the sale will be on or before .._,1-?~.-k :5/. . 20_L3_, or w ithin 7 clays 1 objections made under Paragraph 60 H ve been cured or wa ived, whichever date is later (Closing Date). If either party falls to dost! the sale by the Closing Date, the non-defaulting party ml:ly exercise. the remedies cont

Initialed for identification by B TREC NO.

DEBO-HMS00032 I Contract Conc:cmlng 11 '3-CJ?._.. ._,,~:.....s.;~~;..:.....~-r.::::;J.,., .Wt. ~ ~ rr_2Z'I' IP I Page 5 of 9 12·05·2011 (Addrass of Property)

sale and the issuance of the Title Policy. (4)There will be no liens, assessments, or security interests against the Property whkh will not be satisfied out of the sales proceeds unless securing tne payment of any loans assumed by Buyer and assumed loans will not be in defauit. 10. POSSESSION: Seller shall deliver to Buvet;tpossession of the Propert'LJn it.s present or required condition, ordinary wear and tear except~cr~m \1rmn dosing and funding ·u according to a temporary residential lease form promulgated by TREC or other written lease required by the parties. Any possession by Buyer prior to closing or by Seller after closing which is not authorized by a written lease will establish a tenancy at sufferance relationship between the parties. Consult your insurance aQent prior to change of ownership and ~session b_ecause insurance coverage may be limited or terminated. The absence of a written lease or appropriate insurance coverage may expose the parties to economic loss. 11. SPECIAL PROVISIONS: (Insert only factual statements and business details applicable to the sale. TREC rules prohibit licensees from

12. SETTLEMENT AND OTHER EXPENSES: A. The following expenses must be paid at or prier to closing: (1) Expenses payable by Seller (Sellers Expenses)~ {a)Releases of existing liens, induding prepayment penalties and recording fees; release of Seller's loan ltabmty; tax statements or certlflcatesi preparation of lfeed; one-ha!f of escrow fee; and other expenses payable by Seller u~fs contract. (b )Seller shall also pay an amount not to exceed $ -~ to be applied in the following order; Buyer's Expenses which Buyer js prohibited from paying by FHA, VA, Texas Veterans Land Board or other governmental loan programs, and then to other Buyer's Expenses as allowed by the lender. (2) Expenses payable by Buyer (Buyers Expenses): Appraisal fees; loan application fees; adjusted origfnatlon charges; credit reports; preparation of loan documents; interest on the notes from date of disbursement to one month prior to dates of first monthly payments; recording fees; copies of easements and restrictions; loan title policy with endorsements required by render{ loan .. related tnspectlon fees; photos; amortization schedules; one-half of escrow fee; ah prepaid items, Including required premiums for flood and hazard insurance, reserve deposits for Insurance, ad vaJorem taxes and speclal aovemmentaJ assessments; final compliance inspection; courier fee; repair inspection; underwriting fee; wire transfer fee; expenses Incident to any Jean; Private Mortgage Insurance Pre.mium (PMI), VA Loan Funding Fee, or FHA Mortgage Insurance Premium (MIP) as required by the lender; and other expenses payable by Buyer under this contract. B. If any expense exceeds an amount expressly stated in this contract for such expense to be paid by a party, that party may terminate this contract unless the other party agrees to pay such excess. Buyer may not pay charges and fees expressly prohibited by FHA, VA, Texas Veterans Land Board or other governmental loan program reguJatlons. 13. PRORATIONS AND ROLLBACK TAXES; A. PRORATIONS: Taxes for the current year, maintenance fees, assessments, dues and rents will be prorated through the Closing Date. The tax proration may be calcu1ated taking into consideration any change rn exemptions that will affect the current years taxes. If taxes for the current year vary from the amount prorated at closing the parties shall adjust the prorations when tax statements for the current year are avaHable. If taxes are not paid at or prior to closing,. Buyer will be obligated to pay taxes for the current year. B. ROLLBACK TAXES: If Seller's change in use of the Property prior to dosing or denial of a special use valuation on the Property r~ul~ in additional taxes, penarties or interest (Assessments) for periods prior to closing, the Assessments wm be the obligation of Seller. Obligations tmposed by this paragraph wm survive closi g.

DEBO-HMS00033 o:ntsnd: concemh'9 _lfiLL.. J.eu~ tli1,fo~/e...:. L/(~/£& , J"X: 27'/

Initiated for identification by ... ffi and S e l l e r - TREC NO. 24-12

DEBO-HMS00034 "- 21. NOTICES: Alt notices from one party to the other must be in writing and are effective when ( mailed to, hand-delivered at, or transmitted by facsimile or electronic transmission as follows: To Buyer at;

22. AGREEMENT OF PARTIES: Thi!; mntract contains the entire agreement of the parties and cannot be changed except by their written agreement. Addenda which are a part of this contract are (check all applicabie boxes): J Third Part'/ Financing Addendum for Credit CJ Addendum for "Back-Up" Contract ~ Approval a Seller Financing Addendum Q Addendum for Coastal Area Property

CJ Addendum for .Property S11hjAct to 0 Environmental Assessmen~ Threatened Mandatory Membership in a Property or Endangered Species an Wetlands owners Association Addendum Cl Buyer's Temporary Residential Lease 0 Seller's Temporary Residentlai l.ease

0 Loan Assumption Addendum :I Short Sale Addendum

0 Addendurn for Sale of Other Property Addend um for Property Located Seaward Cl of by Buyer the Gulf Intracoasta{ Waterway Addendum for Reservation of Oil, Gas CJ and a Other (list): ~ Other Minerals

2.3. TERMINATION OPnON: For nominal consideration, the receipt of which Is hereby acknowledged by Seller, and Buyer's agreement to pay Seller$... (Option .Fee) within 2 days after the effective date of this contract, Seller grants Buyer the unrestricted right to terminate this contract by giving notlce of termination to Seller within days after the effective date of this contract (Option Period). If no dollar amount is stated as the Option Fee or lf Buyer fails to pay the Option Fee to Sellei within the time prescribed, this paragraph will not be a part of thCs contract and Buyer shaU not have the unrestricted right tn terminate this contract. If Buyer gives notice of termination within the time prescribed, the Option Fee wUL not P.ff refunded; however, any earnest money will be refunded to Buyer. The Option Fee l:Jwill uwill not be credited to the Sates Price at closing. Time is of the essence for this paragraph and strict compliance with the time for performance is required. 24.. CONSULT AN ATTORNEY! TREC rules prohibit real estate licensees from glvtng legal advice. READ THIS CONTRACT CAREFULLY. If you do not understand the effect of this contract, consult an attorney BEFORE signing.

Buyers Seller's Attorney is:--·--·· Attorney is:

Telephqne: ..____.... )--------- Telephone:

FacslmHe: Facsimile: ( )

E-matl!

Initialed for identification by Bu TREC NO. 24-12

DEBO-HMS00035 Contract Concerning _0/J /eJ~

EXECUTED the I day of 'J . t,a . ~.:.::....:..!::CJ~.:b:::../~ _ _ _ _ ___, ; ; __:_ 2o_L2_ (EFFECTIVE DATE} . (BROKER: FILL IN THE DATE OF FINAL ACCEPTANCE.)

This contract is subject to Chapter 27 of the --.... Texas Property Code. The provisions of t hat/_,,..-- 'i~u.-A chapter rnay affect your right to recover\____.-.. ~ ·- - - - damages arising from a construction defect. If Bu e .·-1-¥;Z;.¥---A::=:::: you have a complaint concerning a construction defect and that defect has not been corrected as may be requ ired by law or by contract, you must provide the notice required by Chapter 27 of the Texas Property Code to the co11tractor by certified mail, return receipt requested, not later than the 60li1 day before the date you file · suit to recover damages in a court of law or initiate arbitration. The notlce must refer to Chapter 27 of the Texas Property Code and must describe the construction defect. If requested by the contractor, you must provide the contractor an opportunity to inspect and cure the defect as provided by Section 27 . 004 of -5-e-Ue-.r----- - ··- -···- -· -- · ·- -- ··- the Texas Property Cade.

The fo:-m of this contrac.t has been approved by the Texas Real Estate Commission. TREC forms are intended I' j for use only by train ed real estc'.lte licensees. No represe:itatlon is made as to the legal validity or adequacy of , a;-iy pruvisior1 rn any :;pcdfic t ransactinni:. Tt !s not intended for cornp!f!l( transactions. Texas Real Estate Com- m ission, P.O. Sox 12188, Austi n, TX 78711-2 i88, (5l2) 936-3000 (http://www.t:rec::exas.yuv) TR.EC NO. 112. Th1s form ~epl a c es TREC NO. 24-11. 24-l - ·----~----- -- - ~-------

TREC NO. 24-12 r::~tr

BROKER INFOru.,ATION

other ~roker Ftrm t.k:e:1'1sc No~· 1.1::;t1ng B:-cker Firm l.ken10P. No.

represents Q Buyer only as Buye:'s agent represents Clsel?er and Buyer as an Intermediary 0 Seller as Listing Broker's subagent 0 Seller only as Seller's agent

Licensed Supervisor qf Associate ieTephone Ucensed Supervisor of Associate Telephone

Associate Telephone Listing Associate Tetephone

Other Broker's Address Facsimile Ustlng Broker's Office Address Facsimile

aty State Zip City State Zip

Associate Eman Address Ustlng Assoclote•s E!111dll At.h.h ~

Selling Associate Telephone

Semng Associate's Office Add~-s Facsimile

Citv State·----···----····-------······-----Zlp.•

SelUng Associate's E:nall Address Usting Broker has agreed to pay Other Broker _ .of the total sales price when the Usting Broker's , fee is received. Escrow agent is authorized and directed to pay other Broker from Listing Broker's fee at dosing. i -------------------------·-·----··--· OPrtoN FEE RECEIPT

Receipt of$ -----··-·-·· (Option Fee) in the form of _ _ __ ____ is adcnowledged.

bate

CONTRACT AND EARNEST MONEY RECEIPT

Rec:elpt of ¢co~tr:act .ard t/Z ....... JB$__/. . . _. . ~-=----- Earnest Money in the form of is acknowledged. . Escrow Agent:-----------------·--~-- Date: _________~~~----

Email Address

Telephone ( ) _ _ _ _ _ __

Facsimile: { _ _ _) • , .... r- State zJp TREC NO. 24-12

DEBO-HMS00037 12-05-11

PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (1"REC)

THIRD PARTY FINANCING ADDENDUM FOR CREDIT APPROVAL TO CONTRACT CONCERNING THE PROPERTY AT

/!fir i=t,_ ._iii ;~·K.::_d/~7K_.7? l/r;_ / t (Street Address and Citf)

Buyer shall apply promptly for all financing described below and make every reasonable effort to obtain cred it approval for t he fi na ncing ( Credit Approval). Buyer shall furnish all information and rlocurnents required by lender for Credit Approval. Credit Approval will be deemed to have been obtained when ( 1) the terms ot the lcan(s) de::;cr ibed below are L.tvailable and (2) lender determines that Buyer has satisfied all of ier.der's requireme nts related to Buyer's assets, income and credit history. If Buyer cannot obtain Credit Approva l, Buyer· may give written notice to Seller with in ·- - days after the effective date of this contract and this contract will terminate and the earnest money will be refu nded to Buyer. If Buyer does not give such notice within the time required, this contract will no longer be subject to Credit Approval. Time is of the essence for this paragraph and strict compliance with the time for performance is required .

NOTE: Credit Approval does not include approval of iender's underwriting requirements for the Property, as specified in Paragraph 4.A.(1) of t he contract.

Each note must be secured by vendor's and deed of trust !iens.

CHECK APPLICABLE BOXES:

0 A. CONVENTIONAL FINANCING: 0 (1) A first mortgage loan in the principal am ount of$ _ _ _ ______ __ (ex cluding any fin anced PMI premium), due in full in _ year(s), with Interest not to exceed ___ % per annum for the first ____year{s) of the loan with Adjusted Origination Charges as shown on Buyer's Good Faith Esti mate for the loan not to exceed _ _ _ _ % of the loan , CJ (2) A second mortgage loan in the principal amount of $ _. (excluding any fin anced PMI premium), due in full in year(s), with interest not to exceed ···- -···0/o per an num fo r the first . year(s) of the foan with Adjusted Origination c 11arges as shown on Buyer's Good Faith Estimate for the loan not to exceed 010 of the loan.

lJ B. T EXAS VETERANS LOAN : A loan(s) from the Texas Veterans Land Board of$ __ for a perluu in the total nrn o unt cf ___years at t he inh~rest rate established by t he Texas Veterans Land Boa rd . Oc. FHA INSURED FINANCING: A Section - -·- - ·· FHA insured loan of not less than $ ··- ----(excluding any financed MIP), amo1tizable monthly for not less than _ ___yea rs, wit h inter est not to exceed ____ % per annum for the first _ _ _ year(s) of the loan with Adjusted Orig ination Charges as shown on Buyer's Good Fa ith Estimate for the loan not t o exceed % of the loan. A s required by HUD- FHA, if FHA va luation is unknown, "It is expressly agreed U:at, r:o~withstanding

~..:!\,~~-- I nitialed for identification by Bu ~ and Selier_ _ _ TREC NO. 40-5 ;J_ _,.,,~,;f' Third P;igi> 2 of 2 12-05-11 I /IJ/f :~-~ . t; In v1te; /<._ _Lk

r -i • /J·-r- · ---- (Address o(Property)

amount of the appraised valuation . The appraised valuation is arriVe.d ai· to determiue the maximum mortgage the Department of /-fousing and Urban Development wi/I insure. HUD does not warrant the vafue or the condition of the Propertv. The purchaser {Buyer) should satisfy hlmself/ht::rself that the pdcc ~md the condition of the Property ::irP. acceptable. "

0 D. VA GUARANTEED FINANCING: A VA guaranteed loan of not less than$ ·- - - - - -- (excluding .iny financed Funding Fee), amortizab!e monthly for not less than years, with interest not to exceed % per annum for the first _year(s) of the loan with Adjusted Origination Charges as shown on Buyer's Good Faith Estimate for the loan not: to exceed _% of the ioa n .

VA NOTICE TO BUYER: "It is expressiy agreed that, notwithstanding any other provisions of this contract, the .Buyer shall not incur any penalty by forfeiture of earnest money or otherwise or be obligated to complete the purchase of the Property described herein, if the contract purchase price or cost exceeds the reasonable value or the Property estabff::;tied by the Department of Veterans Affairs. The Buyer sha!/1 however, have the privilege and option of proceeding with the consurnmation of this contract without regard to the amount of the rt::.asonable 11alue estab!bhed b)' the Department of VP.tP.rans Affairs."

If Buyer elects to co mplete the purchase at an amount in excess of t he reasonable value established by VA, Buyer shall pay such excess amount in cash from a source which Buyer agrees to disclose to the VA and whic!1 Buyer represen t~ wilt not be from borrowed funds except as approved by VA. If VA reasonable value of the Property Is less than the Sales Price, Seller rnay reduce t l1e Sales Price to an amount equal to the VA reasonable value and the sale will be dosed at the lower Safes Pri::e with proportionate adjustments to the down payment and the loan arnount.

Buyer here.by aut horizes any lender to furn ish to the Seller or Buyer or their representatives information refarjng only to the status cf Credit Approval of Bu yer.

\ry/\___/ _;i._JL_._ . ·- si~r ~ - - -·- - - - Seller

I This fo:-m has ! contract forms. be:~·~~p:-oved by th !

TREC NO. tJ0-5 DEBOHMS00040 HU~.l. A. Settlement Statement (HUD-1)

" \' ~·0:: 0~ Q".:s ,_ Qeonv. -~10. •l~Number. 4. 0VA 5. 0 Conv. Jm. J74li•l3·1l~ S97030Cl916 7• ..;.;~ ....,• .,, S1:H3828~·70J • , .. .,;;;;;;;... '"""""'" °"" •..,.....;~ C. NOTE: of This fonn is rumlshed to gl\"e you a !i':Btwnent aotal settlement costs. Amounts pa!d b);;..d by~ sett.:'t1nent a9ent Etn! shown. ltemi: rrnirked '"(o.v.c.)" were !)aid 01.1tst~ the dosi11g! tltay are Mown hf-ff'. fnr fnt~fn!'tftn, ...1 p1~ ~od nni uot i11dcnfod In rh" lol.8&s. o. lllame nnd Addren cf ~wer E. t4ame nnd Aadress or SeUe,. F. Nam Cl and Address or Lend-;.. l0SSP1l OOHGE ~D BRITTANY SENGE DEBO HCMES U.C., ATEXAS UMITED l!N'o'OY MOIU'GAGE UD. a11s LI:AH eutAaall o~-ve UA6JUTY COMPAHY s100 WesTHE1Ml!R kDIJ>, surre 320, ftmEDVW..C. 1X 77-tGl l.11-0t'M U?7 tlOllSTOH, TJt 7705G ruo•MOND, TX 77469

G. P.ropertv LoC41Uon H. Satt:h1m1mt Agent AMSUCAN mu: COtiWANY Of HOUSTON 11115' LEAH EUZABEJH DIUVE, 6360 CORPORATE DIUVF.. SUJTE' B HEEDVIUE. TIC 77461 HOUSTON, "l'X 17t'.l36 ?twne : (713) n•MJ746 counrr: FURT BBU> LOT! 5 Pf.;ac:ia of Settlement ! I. Settlomcnl Oat_, l.l/"2.7/2013 81.0CK:3 SUBOMSION: RO.c;EMEAOOW SEC 3 ~o COllPORAr& DSUV&, SUITEB ii D~me~ D"t.-2 11/:t,./~13 I: HOUSTON, TX 77036

K. sumrna.!Y of Seller's. Transaction JOO.-GrcS. ~nt Dua from Sonower t-40-o-.-G-ros •.-.~0u-~·t-o-·u-~~-~to~.•-SP.~.l-l~~r-=;.;.;;.......;;~;..:.;.------·~ .......s_Ain iaL~cll.l.Sdl-P1k.1: <101. wn1rncr~1cs:-:.~~:ri~ce·-------------.1,_l...,,li""'o""'ooo~....,.,oo J02.· hfsClttal'flnlDCtTI' ~~ 403, . . . ...---.. . . . . . . . . :fij~~ l'~I Pl'QD~Y ~--~---·-~--+--------

t-40~4•.___ _ _ _ _ _ _ ··-·------------1 ,_.40~S·~---,!'-,.,..--~~-~-=-~---+---···- ~"'•tman~ for Items aafd l:W :H:tl11r In t11d1'011a:

t4u&: otyaown.T~4!$ ~- C!JUntv TIOO:s · ....... ----t------1 1400..•Assessnl:enl:s. 109. All Ta'-es 219.77Nr 11121/lQ.~~ ...tn.._...t/'""1,../2,.,0,...1'"".;.-·--t---"'s"':2L,....Ol~ ~!•••fil Tax;;;.ey~21,;.;;;;.,.9:2Y..,,.,,.._yr-1....1..,.,?....,.7.,,.,~""n""i""~-""'to-1i112014 ~-------·-··· -------------··---·----· -----=-- 112. ...........-------t .,...1=1~1·-------·------............ _ 1110. l*-··-------··-·-. ..~t2. _____ .···-------1-----1 ------------- ---·- "'="'_ _ _ _ __ 420, Cirnu Amount Due to SeUef" ····-- t168.U21.02° 200. Amounta.-PaJd bY or In. B~Mlf -oiao·;·~~r ..,, ............... ~

101. l)o-..l't Clt"O~ 11'1__, &i.000.00 zw_ ptf,v-1'"f U>ah Atmunl rn>m Envcv Mcnt9·r;;j"(tJ.td. 2Q.l. EICKttf.l!J:!O&llf') la'ltr:n ~frl~to 204. Scllfir P11Jd.Oosfnu Ccms --S-.,2-l.S,...O_U._D_o""' ·--··--t-----i 205. ···-·---------------\------t .?.fHi~-----··---------· - ·------..-----t ~-~!I!ftf money nata'.!l'!~_w..,._.s ...,...1'..,or......._____ ·· s-1°000...ou c.. . St7'~ Sei!ef'Pbfd ~,_...,h'M,.._1•.;:;Cos=ts...__ _ _ _ _ _ _"""' __.f~ .W?:~ ---------------·······-···-+·-----! t.,;

..,u~s. . .--------······:....~-·······---··-,---+------1 .m:--·------------------.------1 ~ . ?.1.7. .;..----···-···-·-------------11-----~ . ~-l ~-·-----·-·----------------l·····~-- a.12.._ .. ... _____________________..,.___--f

~~ --·--·-·---------o. I 1-;s.,...1""'e.....- - - - - - - - - - - - -.. s19. !52U.:'n>ta'· Reduction AntQunt Pwe Sdll!r s-..120.1; ·-·-··------1"---

GOO.. c;Lsh ~ htth:tncrit t1>ffruT1l.SeD;:-~ 301.. Gcoss ameiunt doe nom oonower Ulne 120i lS174,BS1.;99 "iOI:- Gross-amountdue.toseDer

DEBO-HMS00023 17"'6-l'J.J.152 HU0·.1

704.

BQll... Ucnte.-A. !':rt.t........,...11.c. $250.00 !100. t.tem.. Rnulrect llv Lendl!I" to Be Paid (n Ad liimat

ffmmGfE1f3' "-~ J1T1 tn

$666.UO

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DEBO-HMS00024 HUD-1

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Yow- 1n1da1 .lo!',; ~111:~untJs ~ls.t,957.011

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$1,005.00 In dudes Yo~rinft!•J ~11~1y',~fllQU~~iiwed for prindpoal, Jnt-:r~t ;t Prindpal ancn1ny mP:~~~~~r.fn~ ts · ~ lnten!st .!: Mortlil5;ie lnsurallal --· 0 No. 0 Yes, :t can rtse fO ts nu11dr11um uf %. The 11rst chang~ w!il be on Md can d"1r>ge fs9llio

Clln yo&n;Jntar~nste;rlsa1 ~ery ·--··· llftcr • ~ry d1t1qyc Jae~ your ll'lte~ nite can fttaeaSe or decrease by CM!• OYe;- ln!;e.rnt.f~ is V"fslf:lll~,;u.~i the fife of the iocD, JOI.If" tniw. - · - · - - - - - % ot hlgher~n ,,., -· ...... ·---- Ev1111 ff:ycnr·~a~;p~:Yir(~'!S on time, an your )fJiHI balance .rloe? . · : ." .. rn tlo, D Yes. ll am rtM to ll maxlnuin1 ()!' $ ...... --...-···-·-·· -. -. ·IE.'!~·lfyo~:lfl!J.~~P.11Y.11t~nts ~:tl11111, can your mcmth~y (XJ No. 0 Yes, die nrst lnac!m! ain be on and the 11mounti-&it( ··· . · cnoutblr emutmt ot'Wcd C'..Ul rts~ w$ • Thi: maximum It can

-. for prl~d~).:·)~tercst ~...~ nu~r~go- l~ur::in~ rlse7 ~er rise tu &l S -· ··-··--··· .... [Kl tlo. 0 Yest your roaiclmum pmpllyrMflt penalty ls ~ _ Do~ yo1jr: lo~.n h&w~~ ~.r~p;ry~1C1tll penartyi" ... ___........---· -----···-····-·· - ··- o.,... your.t~on .h:tv•".~ ~oon 'P"'Y"'

D Youart

0 You haW: ah addilfllcsol nooothly ~ pnvm~t of~ J'.lS.J~ that ~In ., t.olal lnk1al monthly. lSlllOdSit owes or$ _ _ _ 1 1334.38 • Tot:tl mon~lr.amuu~t..uwt:d indudl~ a.craw ;:i.ccouut; 1111:1 Tndu:.h:! prfnc.!pisl, lt"cn:J~ any mcntvav~ l~mnce and IM1Y 1tems .Paymcn~. · · c:fleck.ed bek1w: ~ P•nrae•t)' >14•1:ft' IBl }if:Mt~.....i: ~->QI) 0 flood inwranc.e [] 0 D ..

DEBO-HMS00025 EXHIBIT

i DEFENDANT'S i EXHIBIT I :JO OFFICIAL RECEIPT ( ->''fE"nLJ;'>t;.._ /'>"'~ ~

(to.v1~i~;::. . ··'('· w~ ~~"/'V~~~ '

'1,,L i~•J ,'J,. .l ~·31 . / ·"'=-:~11'.~~-~~1 ''!)'f;- -":t"':.~ ~·/. "~g~~°j.; OFFICE OF ANNIE REBECCA ELLIOTT DISTRICT CLERK FORT BEND COUNTY 1422 EU GENE HEIMANN CIRCLE RICHMOND, TEX.AS 77469 Payor Receipt No. The Welscher Law Firm 2014-41 064-DCLK 1111 N Loop west STE 702 Transaction Date Ho:.iston, TX 77008 08/14/2014 I Description Amount Paid I On Behalf Of Debo Homes LLC 13-DCV-209822 Laurel and Eliana Miller PiaintiHs, vs Debo Homes, LLC . Defendant. DEBO HOMES LLC Re;iistry Depcsil 60,300.00 SUBTOTAL 60,300.00

PA YMENT TOTAL 60 ,300 .00 I Cashier's Check (Ref 111 6326'18) Tendered 60,300.00 ·:·o!al T er.de ~ed 60,300.00 Change 0.00

400th - Deposit into the Regist:y of Court. 08/1 4/2014 Cashier alizahid Audit 03:22 PM Station OCR 18 5022554 OFFICIAL RECEIPT