Dov Avni Kaminetzky v. Dosohs I, LTD

14-14-00410-CV IN THE 14* COURT OF APPEALS OF TEXAS Petitioner, v. BOSOHSiaTB Respondent. APPELLANT'S 1st SUPPLEMENTAL APPENDIX TO INITIAL BRIEF Respectfully submitted on February 14,2015 DOV K. AVNI - PRO-SE APPELLANTffl/IOVANT 150-B Forest Drive, Jericho. NY 11753 Cellphone #: (516) 318-3791 E-Mail: dovduba@aol.com ORAL ARGUMENT REQUESTED APPELLANT'S CERTIFCATE OF TRAP 9 FILING -BY US POSTAL SERVICE I CERTIFY that I after checking with Ms. P. Washington of Civil Post Judgment Dept of Harris County on Thursday (who assisted me in Ms. Michelle's absence) and having been informed that the 68 additional documents from the record of Case #1997-40590 and Case #1998-58867/234* that has been consolidated thereto by judge Davidson will not be ready in time to cite thereto in my brief I reorganized four appeal issues and die related records Already on file in #14-14-00410-cv and filed it through US Postal Service in accordance with TRAP 9 on Sat.2/14/15 after 6pm through its main Houston office at Jefferson St Respectfully uy submitted suDmittea on ^eDruary February 14, 2015 DOV K. AVNI- m V4m (ihMr) i- PRO-SE APPELLANT/MOVANT pro-se appellant/mi 150-B Forest Drive, Jencho.NY 11753 Cellphone #:(516) 318-3791 E-Mail: dovduba@aol.com Certificate of Service I certify that on 2/14/15,after6p,I served copy of 1 Supp Appendix in Case #14-14-00410-cvby First Class, United States mail ,postage prepaid, sent via certified mail per Rules 21/2la from USPS downtown Houston --Jefferson St. main office (77002) on the following current appellate attorney-of- record for Appellee here: NICHOLAS A.PARMA -Attorney-in-Charge of Appeal for Appellee/Respondent/Objecting Non-Movant in Appeal#14-14-00450-cv [from #2011-53721/125*] at Sherer AAssociates 11120Wurzbach Rd. #300 -VIA CM/RRR#__ San Antonio,TX 78230 ~T 7T~^ DOV K. AVNI- APPELLANT/MOVANT IN CIVIL APPEAL #14-14-00450-0/-ACTING HERE PRO-SE 150-B Forest Drive, Jericho.NY 11753 Cell #(516) 318-3791; E-Mail # dovduba@aol.com -2- FILED IN 14th COURT OF APPEALS FEB 18 2015 CHRISTOPHER A. PRINE CLERK 14-14-00410-CV £XM, mm, Petitioner, V DOSOHJmm Respondent. EXHIBIT d£ TO APPELLANT'S FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 9 — V*D »o- 97 "40590 CHOICE CAR WASH, IHC., )( 33 THB DISTRICT COURT AND BUSINESS OHHERSHIP HUD )( LIABILITIES TAKEOVER CORPORATIOR, )( Plaintiffs; )( )( FOR HARRIS COUHTT, TEXAS VS. )( )( DOSOHS I, LTD., )( Defendant. )( »' JUDICIAL DISTRICT PLAINTIFFS* ORISIHaS FKT1T10M FOR DECLARATORY JUDGHBHT, flppucaanoH for temporary rbstraihib8 order., ahp appxieasreoH for temporary or fhrhbhkht umjukuior TO THB HOHORABLR DISTRICT COURT JUDGES Plaintiffs CHOIGB CAR RASH, IRC., and BUSIHBSS OHHERSHIP AND LIABILITIES TAKEOVER CORPORATIOB file this original petition' for declaratory- relief against defendant DOSOHS I, LTD., a Texas limited partnership, pursuant to Tex. Civ. Prae. & Rem. Code, Sec. 37*001 et seq, and would show unto the Court as follows8 1. •••-' :? Plaintiff Choice Car Wash, Inc., (°CCW°), is a Texas corporation which maintains its principal office at 8901~ift. r ~> Bellfort, Suite C, Houston, Texas 77031-2407. Plaintiff Business Ownership and Liabilities Takeover Corporation (^BOLT") >." is a Delaware corporation which maintains its principal office at 150-B Forest Drive, Jericho, HT 11753 and maintains a Texas office at 1609 S. Kirkwood, Suite B, Houston, TZ 77077-3158. 2. Defendant Dosohs I, Ltd., (-Dosohs"), is a Texas limited partnership, and service of process may be made on Matt H. Holak, president of Dosohs I, Inc., a Texas corporation which is the general partner of Dosohs I, Ltd., at the corporate offices of Dosohs I, Inc., located at 1020 H.Bo Loop 410, Suite 200, San Antonio, TZ 78209=1218 [Telephones (210) 828-5641]. RECORDER'S MEMORANDUM TM» instrument is of poor quality at the Bros rf imaging — 10 — 3. Venue is proper in Harris County, Texas, because the real property which iB the subject of this action is situated in Harris County, Texas. 4. The court has jurisdiction of defendant Dosohs I, Ltd., because the defendant is a Texas limited partnership. The court has jurisdiction of this declaratory judgment action pursuant to Tex. Civ. Prac. & Rem. Code, Sec. 37.001 et seq. 5. The real property which is the subject of this action consists of a .9982-acre tract of land containing a full-service car wash and related improvements, (herein called the "Softouch Car Wash Property"), such property being located at 8901 W. Bellfort, Houston, Harris County, Texas, and being particularly described in the Deed of Trust recorded in the Official Public Records of Real Property of Harris County, Texas, under County Clerk's File No. J626467, the record of said Deed of Trust being incorporated herein by this reference. 6. Plaintiffs have learned that Dosohs I, Ltd., has scheduled a deed of trust foreclosure sale of the Softouch Car Wash Property on Tuesday, August 5, 1997. [See notice attached hereto as Exhibit 'A' and incorporated herein by this reference.] 7. Plaintiffs are the present owners of the Softouch Car Wash Property [See copy of certified copy of warranty deeds to plaintiffs, attached hereto as Exhibits '&' and 'C'.] -2- — 11 — 8. Accordingly, plaintiffs are in danger of sustaining the imminent and irreparable harm that will result if Dosohs I, Ltd., Bhould be allowed to conduct a deed of trust foreclosure sale and thereby sell the Softouch Car Wash Property which rightfully belongs to plaintiffs. The harm that will occur to plaintiffs is irreparable because plaintiffs will lose their equity in the Softouch Car Wash Property, as well as the future income to be derived from operation of the full-service car wash involved. The potential loss to plaintiffs is substantial, as evidenced by the Stock Purchase Agreement attached as Exhibit y to the affidavit of Dov Avni Kaminetzky attached hereto as Exhibit 'D' and the undisputed testimony of Richard Liotta [attached as Exhibit _«r to the affidavit of Dov Avni Kaminetzky]. 9. Defendant Dosohs I, Ltd., is not entitled to conduct a deed of trust foreclosure sale of the Softouch Car Wash Property for the following reasons: (a) The debt which Dosohs I, Ltd., asserts as the basis for its foreclosure action is barred by the statute of limitations. More specifically, the debt upon which Dosohs I, Ltd., bases its foreclosure matured on August 15, 1990, almost seven (7) years ago, [See copy of Extension, Renewal and Modification Agreement attached hereto as Exhibit 'E' and copy of page from Dosohs earlier motion for summary judgment, attached hereto as Exhibit 'F'], while the Tex. Civ. Prac. & Rem. Code requires that actions based upon an instrument in writing must be brought within 4 years from the date the cause of action accrues. • -3- — 12 — (b) Notice of the proposed foreclosure sale was not given in accordance with Sec. 51.001 et seq of the Texas Property Code. More specifically, all of the owners of the Softouch Car Wash Property on the date that foreclosure notices were forwarded by Dosohs I, Ltd., were not notified of the proposed foreclosure sale. [See Tamar Avni affidavit attached hereto as Exhibit 'G']« 10. Plaintiffs do not have an adequate remedy at law because the damages to plaintiffs are incalculable in the event that Dosohs I, Ltd., is permitted to continue with foreclosure proceedings against the Softouch Car Wash Property. Accordingly, plaintiffs request that the court preserve the status quo and issue a temporary restraining order to prohibit Dosohs I, Ltd., from conducting a deed of trust foreclosure sale of the Softouch Car Wash Property and that the court thereafter extend the restraining order into a temporary or permanent injunction. 11. Plaintiffs are willing to post bond in such amount as may be required by the court. WHEREFORE, premises considered, plaintiffs pray that the court grant this application for a temporary restraining order and set a hearing on the application for a temporary or permanent injunction, pray further that after a hearing the court issue its temporary or permanent injunction enjoining Dosohs I, Ltd., from conducting or attempting to conduct any foreclosure proceedings against the Softouch Car Wash Property, pray further that after a full trial on the merits a declaratory judgment be rendered -4-*13 against defendant Dosohs I, Ltd., decreeing that the cause of action asserted by Dosohs I, Ltd., is barred by the statute of limitations, pray further for recovery of their costs of suit and reasonable attorney fees, and pray further that plaintiffs have such other relief, both legal and equitable, to which plaintiffs may be justly entitled. Rei Micl State Bar Mo. 21239000 2901 Wilcrest, Suite 105 Houston, Texas 77042 Tel: (713) 7B2-0065 Fax: (713) 782-7868 Attorney for Plaintiffs STATE OF TEXAS ) ) COUNTY OF HARRIS ) BEFORE ME, the undersigned authority, on this day personally appeared DOV AVNI KAMINETZKY, who stated to me that he is a vice president of both of the corporate plaintiffs in the captioned lawsuit, and who, after being duly sworn by me, stated that he has read the foregoing pleading and that the Statements made therein are true and correct. ov Avni Kaminetzky ~ SUBSCRIBED AND SWORN TO before me this y day of August, 1997, to certify which witness my hand and seal of office. Notary Public for the State of Texas -5- MUNN & FLUME 9r AN ASSOCIATION OF PROFESSIONAL CORPORATIONS0 ATTORNEYS AT LAW 9 OneO&kPaifc 1020 N.E. Loop 410, Suite 200 San Antonio, Texas 78209-1218 (210)828-5641 FAX (210) 821-6069 O'Neal Muna, P.C Michael Flume, P.C O'Neal Mann Mfaihaffl Flume Keith P. Miller Jury 15,1997 OelindaBaezGueiTa Todd E. Hotz Erie D. Sherer, P.C Stanley C Allen - Of Counsel VIA CERTIFIED MAIL Z 302474786 VIA CERTIFIED MAIL Z 302474787 RETURN RECEIPT REQUESTED RETURN RECEIPT REQUESTED AND REGULAR U.S. MAIL AND REGULAR U.S. MAIL Fraud Busters and Recoveries Choice Acquisitions Number Three of America, Lie. 8901 W. Bellfort 8901 W. Bellfort Houston, Texas 77031 Houston, Texas 77031 VTA CERTIFIED MAIL Z 302474788 RETURN RECEIPT REQUESTED AND REGULAR U.S. MAIL Choice Acquisitions Number Four 8901 W. Bellfort Houston, Texas 77031 Re: One (1) acre more or less out of 4.9153 acres in Reserve "A" BELLFORT PLACE, a subdivision in Harris County, Texas, according to the Map or Plat thereof, recorded in Volume 207, Page 121 of the Map Records of Harris County, Texas. Said property being more particularly described by metes and bounds in Exhibit "A" attached hereto. Dear Sirs: Enclosed please find a copy of the Notice of Substitute Trustee's Sale on the above referenced property. Pursuant to the provisions of Section 51.002 of the Texas Property Code, and the authority conferred upon the beneficiary by the certain Deed of Trust, executed by Samantha Corporation, Inc., dated July 26, 1984, and duly recorded in Clerks File No. J626467, Real Property Records of Harris County, Texas, you arehereby notifiedthat Matt Molak or Keith Miller or Todd Hotz, as Substitute Trustee under said Deed of Trust, and ^(TV^ Pi •(not a partnership) — 15 — Sirs July 15, 1997 Page 2 in accordance with die applicable provisions of the Texas Property Code, wiD, sell, on August 5,1997, (mat being the firstTuesday of saidmonth), at publicauction to the highest bidder for cash at the place designated by the Commissioner's Court of Harris County, Texas, at 10:00 o'clock a.m., or within three (3) hours thereafter, the property described in said Deed of Trust Very truly yours, MUNN& FLUME CELINDA BAEZ GUERRA. CBG/md Enclosure 14-14-00410-CV DOV K. AVNI Petitioner, v. Respondent. EXHIBIT £>d~ TO APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF \ h SPECIAL WftWWftWTY DEED WITH VENDOR'S LIEN DATE JULY 31,1997 GRANTOR; DOV AVNI KAMINETZKY,TRUSTEE GRANTORS MAILING ADDRESS : 1609 S. Kirkwood ,Suite B. Houston,Texas 77077-3158 Harris County. GHANTEES; CHOICE CAR HASH,INC. a Texas corporation ( 25.0% of the 18% undivided interest being conveyed by this deed ) and BUSINESS AND OWNERSHIP LIABILITIES TAKEOVER CORPORATION, Inc.["B.O.L.T."], a Delaware Corporation ( 75.0% of the 18% undivided interest in the real property conveyed by this deed ( collectively hereinafter: " Grantee"). GRANTEES MAILING ADDRESS : 150-B Forest Drive Jericho, NY 11753 Nassau County. CONSIDERATION : Cash consideration of Eighteen and No/100 Dollars ($18.00) in hand paid to Grantor by Grantee and other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged by Grantor, including receipt of J.V.and Management Agreement with respect to operation of the conveyed property and a Vendor's Lien secured by a First Supplemental Deed of Trust of even date herewith. PROPERTY ; ALL OF GRANTOR'S INTEREST,IN One (1) acre more or less out of 4.9153 acres in Reserve "A" BELLFORT PLACE , a subdivision in Harris County,Texas,acording to the Map or Plat thereof,recorded in Volume 207,Page 12:1 of the Map Records of Harris County,Texas. Grantor's interest in the Property consisting of the following: (1) Eighteen percent (18.00% ) undivided interest in the above-described real property and in the fixed improvements thereon constructed or attached,in the underground gasoline storage tanks,in the gasoline dispensing equipment,fixed car wash equipment and the car wash sign therein permanently installed . (2) Prorated Joint Venture interest in all the business activities now or thereon being conducted,and in all future rights to add additional business activities and to construct and operate additional facilities on the real property described above,with a right of common and uninterrputed access to the property. (3) Prorated interest in all account receiveables from the car wash,auto detailing business,and merchandize sale,n the business related fixtures, the inventory used in such activities and all rights of ingress and.egress to the property,on non-interference basis THE AFOREDESCRIBED UNDIVIDED INTEREST OF EIGHTEEN PERCENT f!8%)IN THE ABOVE-DESCRIBED REAL PROPERTY.WHICH IS SPECIFIED IN PARAGRAPH fl) ABOVE .WAS DECLARED TO BE PROPERTY OF THE CHAPTER 7 BANKRUPTCY — 24 — ESTATE OF DEBTOR SAMANTHA CORPORATION.INC..IN ACCORDANCE WITH AN ORDER SIGNED ON 7/14/97 AND ENTERED ON 7/16/1997 BY US BANKRUPTCY COURT IN CASE 95-45547-H1-7.WHICH IS ATTACHED AS EXHIBIT "A" AND IS INCORPORATED HEREIN FOR ALL PURPOSES.AS IF SET FORTH VERBATIM. WHICH ORDER IS NOW UNDER APPEAL.AND THE AFOREDESCRIBED CONVEYAMCE OF TITLE TO INTEREST IN THE SAID REAL PROPERTY IS MADE SUBJECT TO FINAL DISPOSITION OF THAT ISSUE ON APPEAL,WITHOUT REPRESENTATIONS OR WARANTIES AS TO THE FINAL OUTCOME OF THESE PROCEEDINGS. RESERVATIONS FROM AND EXCEPTIONS TO CONVEYANCE AMD WARRANTY: Easements,rights of way and prescriptive rights,wether of record or not,all publicly recorded instilments,other than liens,encumberances, conveyances and agreements that affect the property; taxes for 1996 and later years the payment of which Grantee assumes,prorated according to its ownership interests in the property after this conveyance. Grantor,for the valuable consideration and subject to the reservations from and exceptions to the conveyance and warranties specified herein, hereby grants, sells and conveys to Grantee all the interests it currently owns in the Property,together with all and singular the appurtenances thereto in any wise belonging and owned by Grantor,to have and to hold,it to, by and under Grantee, its heirs,executors,administrators,successors,and assigns.Grantor hereby binds Grantor and Grantor's heirs,executors,administrators ,successors and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof, except as to the reservations from and exceptions to conveyance and warranty, as specified herein. When the context requires,singular nouns and pronouns include the Plural. This deed is to be construed in Texas District Courts, in Harris County,in accordance with Texas laws now in effect. EXECUTED AND MADE EFFECTIVE ON THIS THE^L DAY OF AUGUST, 1997. GRANTOR: . , DOV AVNI KAMINETZKY,TRUSTEE 1609 S. KIRKWOOD # B HOUSTON,TEXAS 77077-3158 AGREED TO AND ACCEPTED IN ALL RESPECT: CHOICE CAR WASH,INC. BUSINESS & OWNERSHIP LIABILITIES a Texas Corporation TAKEOVER CORPORATION,INC.{"B.O.L. a Delaware Corporation By and Through: By and through: Dov Avni Kaminetzky Dov Avni Kaminetzky its Vice President a/k/a Dov K. Avni and Treasurer Executive V.President acting pursuant to acting pursuant to express resolution express resolution of its Board. of its Board. - 2 - — 25 — STATE OF TEXAS ) ) ACKNOWLEDGMENT COUNTY OF HARRIS ) BEFORE ME ,THE UNDERSIGNED AUTHORITY, on this day personally appeared Dov Avni Kaminetzky,a/k/a Dov K. Avni, known to me to be the person whose name is subscribed to the foregoing instrument as Grantor thereof,«mm* and for the purposes and consideration therein expressed,the receipt and sufficiency of which is hereby confessed and acknowledged. GIVEN UNDER MY HAND AND SEAL OF OFFICE.THIS ^PAY OF AUGUST, 1997. DA.IBWS 1 _—/s^ y 'O £+^-**r~- lWaryWbte.8M»«!J2?8 \ Notary Publi^^in and for 1 t he te of Texas STATE OF AUGUST M.^98 'RATE ACKNOWLEDGMENT COUNTY OF HARRIS ) BEFORE ME ,THE UNDERSIGNED AUTHORITY, on this day personally appeared Dov Avni Kaminetzky,a/k/a Dov K. Avni, known to me to be the person whose name is subscribed to the foregoing instrument as a corporate officer of Choice Car Wash,Inc as Grantee, and on his oath he acknowledged to me that he is authorized to on behalf of that Grantee to accept this conveyance of title, for the purposes and consideration therein expressed,the receipt and sufficiency of which is hereby confessed and acknowledged by Grantee. GIVEN UNDER MY HAND AND SEAL OF OFFICE,THIS. A1- IF AUGUST, 1997. 3=a=a=»s D.A.LEWIS r,f I «i NabiyPuMic, StabofTeas Notary Publi and for the My Commission Expi«s of Texas STATE AUGUST24.1998 ACKNOWLEDGEMT COUNTY BEFORE ME rTHE UNDERSIGNED AUTHORITY, on this day personally appeared Dov Avni Kaminetzky,a/k/a Dov K. Avni, known to me to be the person whose name is subscribed to the foregoing instrument as a corporate officer of B.O.L.T. Corporation, Inc. [Delaware] as Grantee, and on his oath acknowledged to me that he is authorized to on behalf of that Grantee to accept this conveyance of title, for the purposes and consideration therein expressed,the receipt and sufficiency of which is hereby confessed and acknowledged by Grantee. _^ GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS HGUST,1997. After recording retu: Dov Avni Kaminetzky Managing Venturer 1609 S.Kirkwood #B Houston,Texas 77077-3158 - 3 - 14-14-00410-CV Petitioner, ] _v. DOSOHSTLfg Respondent. EXHIBIT j21 TO APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF ^A &> .•:* STATE OF TEXAS ) ) AFFIDAVIT OF DOV AVNI KAMINETZKY COUNTY OF HARRIS ) BEFORE ME, the undersigned Notary Public, on this day personally appeared in Houston,Texas,the undersigned, who after being by me duly sworn, did say: "1. My name is Dov Avni Kaminetzky. I am over eighteen (18) years of age and I have personal knowledge of the facts recited in this Affidavit. I am competent in all respects to make this affidavit and have never been convicted of a felony or crime involving moral turpitude. On my oath the facts are as follows: 2. I have been an executive vice president of Choice Car Wash ,Inc. {"CCW"} and of Business and Ownership Liabilities Takeover Corportion,Inc.{Delaware} ["B.O.L.T"} since their incorporation in the March 1992, and continuously to this day. Throughout that period I was also the Chief executive officer and a director of Samantha Corporation,Inc.,a Texas corportion that have purchased a one acre tract of land in Unrestricted Reserve "A" of Bellfort Place, subdivision of Harris County,Texas and constructed thereon during 1984 a full service automatic car wash known as "Softouch Car Wash",located at 8901 West Bellfort,Houston,Texas 77031-2407. {hereinafter :" Softouch"}. As such I have personal knowledge of all the facts,events,circumstances described or referenced herein and of the exhibit documents hereto attached. 3. In said corporate capacities I was charged, personally and through my agents, with the maintainance and the updating of the corporate business records related to the acquisition,operations appraisals and the sale of the "Softouch Car Wash" property,which was owned by Samantha Corporation Inc.{"Samantha"} until January 7,1994,when it was sold to Choice Acquisitions No.Four,Inc and to myself as Trustee pursuant to the terms of Special Warranty Deed, recorded in the Real Property Records of Harris County, Texas under File No.P 849765 (Film Code No.097 -61-3094 to 3099). True and correct copy of that deed is hereto attached as Exhibit "1". 4. The value of the real property, improved property and the car wash and auto detailing business which was sold on that date was at least One Million Two Hundred and Seventy Five Thousand Dollar ($1,275,000), which was practically unchanged from the appraised value of that car wash on July 11,1990,when the Houston appraisal firm of Aaron &Wrlght performed a full scope MAI appraisal of the property,in support of the sale agreement that is hereto attached ,into which myself and other New York investors have entered with Samantha on or about July 5, 1990 ( later modified, but not with respect to the car wash selling price ). 5. The acquisition and development of the " Softouch Car Wash" property was financed by an equity investment of One Million and Forty Thousand Dollarsf$1.040.000).that was provided to Samantha during 1984-1985 by its original investors,and which was partly supplemented by a draw type construction loan which was provided by Security Bank of Houston ["Security"] which later failed and was acquired by the FDIC as its receiver on February 15,1989. - I,:" Yh STATE OF NEW YORK ) ) AFFIDAVIT OF TAMAR AVNI COUNTY OF NASSAU ) BEFORE ME, the undersigned Notary Public, on this day personally appeared in Plainview New York,the undersigned, who after being by me duly sworn, did say: " 1. My name is Tamar Avni. I am over eighteen (18) years of age and I have personal knowledge of the facts recited in this Affidavit. I am competent in all respects to make this affidavit and have never been convicted of a felony or crime involving moral turpitude. On my oath the facts are as follows: 2. I have been executive officer and director of Fraud Busters and Recoveries of America,Inc.{Delaware}[hereinafter:"FBR"} since April 1,1992 , and continuously to this day. The corporate office of FBR was located throughout the ^nt-iT-A period at 150-B Forest Dr.. Jericho. NY 11753. and its registered office is in Delaware. 3. In said corporate capacity I was charged, personally and through my agents, with the maintainance and the updating of the corporate business records related to the acquisition,operations and sale of the " Softouch Car Wash" property, which was owned by FBR until July 16,1997,and which is located at 8901 West Bellfort Rd.,in Southwest Houston, Texas ["Softouch"]. 4. FBR acqired its interest in the"Softouch Car Wash"property on May 19,1994 as evidenced by a special warranty deed, recorded in the Real Property Records of Harris County, Texas under File No.P 914040 (Film Code No.099 -76-2486 to 2491). True and correct copy of that warranty deed is hereto attached as Exhibit "A". The correct mailing address of Fwn which is reflected on this deed is P.O.Box 710730. Houston.Texas.77271-0730.C/O Dov Avni Kaminetzky. 5. On July 16,1997 FBR sold its entire ownership interest in "Softouch Car Wash"property to Business and Ownership Liabilities Takeover Corporation. Inc. [ -Delaware ], as evidenced by a Special Warranty Deed with Vendor's Lien, recorded in the Real Property Records of Harris County, Texas Under File NO.S548428 ( Film Code No.XXX-XX-XXXX to 1291).True copy thereof is attached as Exh."B". 6. Throughout the entire period between May 19, 1994 and July 16, 1997, the office and mailing address of FBR have not changed. 7. Neither myself or any other officer,director,employee,agent or legal representative of FBR has received any notice of a legal or bankruptcy proceeding related to "Softouch Car Wash" or to any attempted foreclosure proceeding which may affect the owenership interest of FBR in that property,throughout the specified period. 8. On or about June 26,1997 I was notified by Mr.Rich A.Liotta of the hearing,which took place on June 16,1996 in Case #96-4671. Upon entry of the Order attached to Exhibit "A", I have sold FBR' s entire interest in that property,with owner financing.TO THIS DAY FBR DID NOT RECEIVE ANY NOTICE OF A FORECLOSURE SALE BY DOSOHS I. LTD. OR BY ANY PERSON OR ENTITY PURPORTING TO ACT ON ITS BEHALF." — 52 — STATE OF NEW YORK S(&j& <*\(Mr~t+ h\/f^ TAhaAA. HrAfAftyn 7»*iA*-4lfok4i«)~*71lcr COUNTY OF NASSAU This instrument was acknowledged before me on the^**" day of July, 1997,by Tamar Avni,a/k/a Tamar Avni Kaminetzky. Notary Public in and for the state of New iB^joHjgENeRECO-HOOPS^^ „ H&30-478S9& Notary Printed "™§J^tX^»J$? — 53 — ANYFBOVraDBHEKaNmOCH mnacnHBau^BBNTAi, OR tSB OF THH UHW'ttH""' KBAI. COJOa. Oft KAt* 0 BIVAUD AND «iuu.u". A cBKnnso COPY $>fr •' - BEVBO.Y B. KAUIMAH CWBJt* Hanria Coaaiy, Ti IL'&scChsab. 7T / Deputy U0L0HE8 t LOPEZ — 54 — AWPBOVBKTOHESSWWHICHBBSTOCTTHSBUUABHNrAl. OK US OP TUB DH9CBBHD HBAL (BOHRY BHCAUffl OF COLOB. OK RACK, BINVALBJ ANDUNINFOaCSABLS UNDB THBHD3BALLAW. A CBCnFIBD COPY AWBeJUL28tg? Arife&f: • *"" BEVERLY B. KAUFMAN, County dak Hanfa) ComnlyyTexas .Deputy DOLORES T LOPEZ — 55 — ANYPaOVEWTO HEREINWKKHKHSTHCTTHHSUOXISEMIAI. OR USB OP THE DESCBOBD REAL PBOPHBTY BBCAUSS OP COLOR, OKBACH. B B4VAUD AND UNHNPOKCBABUIMDB THB FEDERAL LAW. '. A CERTIFIED COPY BEVERLYE KAUFMAN, County Oak HflniBCounty, Tom DOLORES T LOPEZ — 56 — ANY __ bbcausbop JBAL pbopkoy THE FEDERAL LAW. ATrBgr' ii _ BEVERLY B. KAUFMAN. County <** Haifa County.T«w» . .>: +-«: <£2a~- 0OU3PJESX LOPEZ , Deputy ANYI«W»a»OHBHBWWmCMJBStBKJTHiaALH.BSNIAl. or ussopwbdb£hbd real propbrty bscaibs op color, or race, b invalid and unenforceable 1mdsr thb federal law. a certified copy m ATTEST. JUL 28 W BEVERLYa KAUFMAN. County Oaric Harris County, Texas Deputy — 58 — ANY FROViraeilSREMWHCTEESTRCTTliB SALS. ESNTAL. OR IBB OP THB PEJCRBB) REAL PROPERTY BSCAtSS OP COLOR, OR RACE, B INVALID AND UNENFORCEABLE UNDER THE FEDERAL LAW. '„ A CERTIFIED COPY ATmfjyi28W BEVERLY-B.'KAUFMAN,County Cferit iCounty, To " "" WnfH5flTlnBS _,Dtputy — 59 — •cr- • SI3F94^I2BS: nAim Btne C*a suets cuiyfaifiiiUoa Borela Joiatlr,br - * o£fiears,(eolia«tl«Bl;taSnnt0r*). Jt 1809 «. Klrfcaood .Bolts B. B0UBten,Texas 77077-3188 ^J."J"jg*4i-...,. '-•• •Harris County. :..V-.--:':-^±::i^_l ^ — _ eorftgeltiaa (M.0% MuUvldad Qjts^. 9^ __ a, a.Delaaaro Corporation (a 79.0% «a**Yldud .fntarjast la ^.Property ( coUactlvaly i-Orontss'). -?*, • • • *•'• i 180-B Paraat Drlvo jariefaa, W 11783 i Quint*. A of Shirty SlH ana Bo/100 Dollars (UMOj ta paid ta fecanlor by Orantoa . att C7 sasasB's ttnuiw xa aaa (i) acm ears or less out aC 4.9183 acres la gwaaxra'<!&' BX&LFORS PKCK , a '< sabdivialoa 1* Hariri* Cwrtty,«caa«,ai»rdlB& to tka Has •s or Plat Jtheraof ,reeordad la Voluse 207,Psga 121 or tiw Map Bacoxds of Harris Coaaty,T«sas. Oranftar's % la tiw FAOBdirty oonslatlna of tha f olloslngi 1 Too pareeat (82.00%) undivided Interest la aerilmd raal proparty and la tka £lsed aaaroaasssBts taaraoa ooaatraotad o 1 aaaallaa storaoa tsabs,la ' t,fixed ear vaob eoj i*>_ sreia parsanently Installed . - (ZJ (100%) waaramp latsreat la aU ttOt^T&TtlMI NOf Of tantSCOJOB and la all rotnra rights to add additional activities la tba sola Olaretlon of ©ranter. (3) ana Biiiiffrr* Parcant (100%) Tntv^jt interest la aU anwiwit recaivesales froa tiw car «jbsb and dotal ling hnmnaas.baalnaae ralatad flntares,aad lawoahory aad all rights of ingress sod egress to tba property. JW BBS PPRM WBIMIII. f«br a* •»#•»<•) ANYPPXJVmONS HEREIN WHCHRBSTRT^THBSWLE, RENTAL. OR UK OF THB DH»CHUUB> REAL PROTBXTY BECAU3 OP COLOR, OR RACK, B INVALID ANDUNENFORCEABLE UNDER THE FEDERAL LAW. «"«•» A CERTIFIED COPY Al'lfcST:. AUG 011997 BEVERLY R KAUFMAN, County On* Wanto County, Texas rDeputy "/ SALLVazUMQA — 60 — •• % •a 5I£94='I2B6 , Mgnta'Of «ay.and prescriptive righte.Methor of ..31 .sstVall publicly recorded lastaBents.other tbaa lLeaa,eactEBbarencsa,canreyaacas: and agreeeaata that effect the propertyiteaea for 1996 end later years the payasnt of which ereatee'esstaaas,proreted accordlag to Its ounerehlp iatereats la tka property after this .-.•'.• ereator,for the valuable eoasideratioa end subject to the ^reservations froa aad escastlons to the convayanca end warranties Si.!-*?;H«peelfled herein, hereby grants, sells and Mimioja to ereatee ell 'the iatereete It-CBXxeatJy ouae la the Property,together with ell end eiagular the eitfurfeaasacas thereto ia any viae belonging oeasd ^hy,'jBrewTnr.to heae end ho hold.lt to. by sad iwwtir ^ts;heirs,e8»eutG«,edalnistratarB.suecesaorB,and assigns hereby hinds Orsator^and flieiitm 'e halrB,eBecntor»,aflBlnlatrators clelalng or to clela the esse or any pert thereof, eueept ea to the reservations froa end eaceptions to conveyance and warranty, ae epeelfled herela. reBulreB.elagular aosaa aad proeouhs Inrludw the Plnral. This le to be construed la lease District Courts, ia Barrio Cosaty.la ajitb Sescs leue bow la effect. * % TfrlaYfa A&L 5» d/b/a •Bof teach Car Wash" a Vbbbb Corporation a Baleaere Corporatlea By and through* 'Saaer (teal By aad threaeht ¥eaar Aval a/k/a Tesar aval Raedantahy e/k/e Taaar Aval Realaetaky its Preeideat sad Director. its President and direetor - acting pursuant to oaproBs acting pareuaat to express olatlea of i t s Board. resolution of its Board. ZB 1 U fu «w \&^Jfj > /W l«Wfry CBEM B.XBC. By end thruughc Sov aval its Vice Preeideat a/k/a Dov B. aval Bsecatlve V. Preeideat acting purenaat to iletic expreee resolution of its Board. of Its Board. Attests ff> /a»r«a 1, ANYPRCTOrjNS HEREINWHICH RBSTRKTTHBSALH.BENTAL, OR USB OP THE DESCRIBED REAL PROPERTY BBCAMB OF COLOR, OR RACE. B INVALID AND UNENtCTKBABLB UNDER THB FEDERAL LAW. A CERTIFIED COPY A „ ATTEST: AUS01B97 , , BEVERLYB, KAUFMAN, County Ckak Heunrif County, Tew* Deputy SALLY& ZUMQA. — 61 — 5I3F94=128T. mop HP now aver noam^m ray aeae ia Dov Aval Bsalaatsky,a/k/a Dov B. Aval [herelaeftert •Beainetsby" or "Affiant")•* aa ever tseaty one (21) years of age aad have never boas convicted of felony or cries involving aorel terpitude. I aa legally eoapeteat to testify to the facts stated in tale affidavit, and these faetafara true end eorrect.and ere ea set forth herela: 1. Beteaea March 28,1990 end septaaber 4,1990 1 have eetered late e series of egreeeeats concerntng the eaperetion of ay Individual -properties from the properties of ay eife Saesr Aval, e/k/a Teaar Isai iaainasttay end ay three Bons.Bbnd.Borea end Liar J. Aval,all sneers at that tiaa.Pursuent to the efotseent.tonefl agraeaaats,the ceo esrporatloaa Jointly daaigiiatad herela ae'Createe1 sere funded end ere caned by our sons,la aceordaaee with the coiperete records records of the oleee of business of dune 30,1997. 2. X ea aotlng ia thia tiaiieaiHluw for the benefit of craatee ae a duly authorised eerparata officer, ia eeepliaace with aa esprees reeelutlea of their board.dstsd July 3.1997,1a the hast latarssts of grantaa.aad ia acrnrAanrn Mith the attached 7/M/1997 Order." FuALher Affiant sayeth not.- !£ a/h/a Do* BUtsai • •Affiant0 1MB a.nrtancd fB ROustoa.Tasas 77077-3188 oa this day neremally stsey i/yi obv e. AraiinnB ta_m» *mJ>o> ?• Creator thereof.and end for the purposes sad consideration tharela receipt and euffieiency. of which le ' •up i aval Bfeadaetsky thereinafter! •Avni" or "Affiant"]. (21) years of age and convicted of felony or crlerg involving totpitude. X aa legally cmpniniiL to testify to the » ia tale affldBvlt.aad these facta are true end correct! set forth berelai 1. Between March 29,1990 sad September «,1990 X a eeriee of eareeeaate concerning the separation of ay ladivldnal propeitiee froa the properties of ay hosband Dor aval Rasleetsky. Pursuant to the aforeasntlansd egreeeeats,! acquired ceaerehip of the two corporations jointly deslgnsted herela ee 'Creator", for ayeelf and for other eharaholdere,Hho do not include "Ajc (•«r<c •»«•») ?V„V'» ANYPROVBR^m HEREINWHICH RE5IRRn'THBSALE,RENTAL OR USB OP THE DBBCRDBD REAL PROPERTY BECAUSB OP A CERTIFIEDCOPY ATTEST: AU6 011957 BEVERLY B. KAUFMAN, G»mty Cleric Hurts County, Tens . Deputy 8AU.Y8.2UN1QA — 62 — • '«--«:»!•.;••• 513=94=138 Perthar affiant sayeth i £ Avni . a/k/a Seaar Aval ', "Affiant" 180 Forest Drive Jericho.RY 11783 Tell(Sle)93S-M47 ( Cell to fee ) 8*931 OP >B» YORK UOUMTV OP BMWMI US,-the razdarsigned eatery publlc,on thle* day of July, 1997,pereoncily appealed ia PleiBvlew,Reasaa County, ia the State of Rev york,«eaor Avni a/k/a Taaar Aval Raalnetsby and upoa her oath .under penalty of perjury , aha acknowledged to so that she has assented the f oregolag lastruaeBt sad aieduced the eshlblt anineimts thereto cttacbed , for the parpoeee aad ia the capaeltas thsrelo etated. that ell the facte recited therein ere tree aad correct and that the copies of the deeaaaate hereto replies of the original deeaaaate or eopias - in her lawful eastody.poeeeeeloa, or coatrol.er to which she bee lawful acceesB to. afire* tt&eea** **»" wwa^w.- Oof c s**4»»JrJ c*v OR USE OT THB OESCRBED REAL PROPERTYInuUU'OF SKbw!u£uw?,NV*UD***™*E*MOi A CERTIFIED COPY ATTEST: ^011937 BEVERLY B. KAUFMAN, Coumfcfak Han* County, Texas. T^^at^ Deputy SAuyazuMQA. — 63 — 513343289 UeTEDSTATS BMmfTSr on SajTKBWDSTPjerOFTBM IN THB TOOTEDSTATES BANllUJPTCY COURT aoRtlffl8X>in«EBHDBrBI£rOPTEXAS JUL 1 B 897 HOUSTON DIVISION ,w JNRBj ° SAlyUMTKACOIVOEUmOHINC * CASBN0.95-4SS47.H1-U DEBTOR lTMCAPTOI a^JJNOPPOSED Ontka l*f BBvet fli U/ • 1997.caaeoatobeheartP^MoaoB ofDOSOJSLUm(liB*aB^ • ol AteUSL aaatas|e9 Oaaseg as to «a«fcMt «—«•*» pntpmtjtfrnTlatfiTil fTiiijii ivft dmuBiul la BinMulku ul DmiiAiL lid. forluoWrYoaAeoejaifc r,SAMAOTHACPPJOltATIOK, WCJOaCmiil ilaBeeeaad Ihiil sottee to«B taareJB»1nBrbtoEetftN«^ t • t or Rsnat for hcxrkuj,or appeared sadi I lilj-LfluaBJ pdaea aaaaaanB! Baaai •Usual iWiMlLjnu mM^mWay^mmmSmm^m^SmmmfSSgfl should be GRANTED far < Icasajeajeadsaa efaeassBj*eBir*ae)BBBe»aa^ At •//^ ft PA ftl fV & •.oT.*.»7* ' • . . ' •» \ . ANY PMtTVB10NSHSPJ»WHB»RBSTncrTH89ALB, RENTAL OR tBB OP THE DESCRIBED REAL PROPERTY BKAUB OP COLOR, OR RACE, B VJVAUD AND UNRNFORCRABLB UNDER THEFBDBBALLAW. A CERTIFIED COPY AU6 0119S7 ATTEST: BEVERLY R KAUFMAN, CountyOak i CouittypTocm fr*~5" Deputy SALLY S. ZUNtOA — 64 — BS^WBepasisidftBJ^ IV /,.. ."» e^Be4eaBPjajtabaa*anasBB)y rr n thbbbporb ordered, adjudged and decreed £* the awtosajflssfejyes U U&XL |?Sefte ft* I • One •en or hsante?49153 asm feReieneVt'BSLUVRT PLACE, i ia Hanu CoHBtjr, Teas, aosonBog to ifca Map or Fiat f mVabain207.rB{el21«£B»! ~ ----- 8aa) t ^ 8B*BBBByaBdsRaaBOiiB»eaMW ^tfcewof. aad aB 1 &. I OBB» aboa^ejiiifiHiiiiii resi paaany asset sern ea rr**"1"tbt i i BBaHxafeox, t * Ike stayIstsraiscted so(^patzB^tofas^hwrene&a,] BBwuadfcBeraa^BeeByaro ' Op BA*4 WTysUT/A £•- teDttartobSgBaoao^totbcl ? tv wj£l*9*^ \jur r _.W7. UNTIED STATES BANKRUPTCY JUDGE UNOPPOSED Bra**- d 7- ftia, '*», *> ANYFROVBKJN8HERRINWHEHHESTPJCTTHB SALE. RENTAL OR IBB OF THB DB9CBIBHD REAL PROFBRTY BRCAUSB OP COIOR^OR RAO. B INVALID AND UNSNKJRCHABLR UNDER THEFEDSBALLAW. A CERTIFIED ATTEST: °2fe 01IS5J BEVERLY B. KAUFMAN, County Oak ~*i County,Teas A. fr~ir , Deputy wurazuMOA — 65 — 5I3EI2K ATTORNEYS FOR DOSOHS L LTD. pY" sssssssss V > • V" . AWPROVBRMHEREINWWCHRESITOTTHR SALE. RBOTAL. OR IBS OF THB DESCRIBED REAL PROPERTY BBCAtSS OF COLOR, OBRACE, B INVAUD ANDUNENFORCEABLE UNDSR THE FEDERAL LAW. «w« A CERTIFIEDCOPY ATTEST: AUG 011337 BEVERLY B. KAUFMAN, County dedc • County, Teen Deputy SALLY & «AffQ4 14-14-00410-CV Petitioner, POSOHS I, LTfl Respondent. EXHIBIT £5 TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 68 — I. CN Y No. 97-40590 ^ CHOICE CAR WASH, INC, * IN THE DISTRICT COURT!<, *<r# ** ^ AND BUSINESS OWNERSHIP AND * %po °fy LIABILITIES TAKEOVER * <$tec&C/. ** CORPORATION * ^/fy£ffi>. * *LJ % VS. * j^ttJDICIAL DISTRICT * * DOSOHS I, LTD. • HARRIS COUNTY, TEXAS _ ENTERED DEFENDANTS ORIGINAL ANSWER TO THE HONORABLE JUDGE OF SAID COURT: ' NOW COMES DOSOHS L LTD. ("Dosohs"), Defendant in the above styled and numberedcause, and files this Defendant'sOriginal Answer to Plaintiffs Original Petition filed herein, and in support thereof would respectfully show the court as follows: L GENERAL DENIAL Dosohsdenies generally each and every, aU and singular, tlie allegations contained in Plaintiffs'OriginalPetition filed herein and states that this Defendantwill require strict proof thereof. PRAYER WHEREFORE, PREMISES CONSIDERED, Dosohs praysthat aU reliefprayed for by Plaintiffsbe denied; that the Plaintiffs take nothing by their suit herein; and that Dosohs recover costs of court from Plaintiffs; and that Dosohs receive such other and further relief, general or special to which it may show itself justly entitled to receive. RECORDER'SMEMORANDUM This insliumenl is of poorquality at the HmBol imaging — 69 — O f> Respectfully submitted, MUNN & FLUME One Oak Park, Suite 200 1020 N.E. Loop 410 San Antonio, Texas 78209-1218 (210) 828-5641 (210) 821-6069 Facsimile -ilfkhaS MICHAEL FLUME State Bar No. 07188480 ATTORNEYS FOR DOSOHS I, LTD. CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the foregoing document has been sent by certified mail, return receipt requested #P 211841995 to Michael C. Whalen, 2901 Wilcrest, Suite 105, Houston, Texas 77042 on this Wflay of August, 1997. ICHAEL FLUME 14-14-00410-CV pom avni Petitioner, v. bOSOHS l/LTfl Respondent. EXHIBIT Oi TO APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF 14-14-00410-CV mmmm. Petitioner, v. fc Respondent. EXHIBIT ^_ TO APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF • "•% c^- Cause No. 9740590 CHOICE CAR WASH INC IN THE DISTRICT COURT OF r vs HARRIS COUNTY. TEXAS DOSOHS I LTD (TEXAS LIMITED PA 11TH JUDICIAL DISTRICT SCHEDULING ORDER Based on the information available to the court, the following scheduling order shall apply to this case unless modified by the court If no date is given below, the item is governed by the Texas Rules of Civil Procedure. 1-01/12/98 JOINDER. All parties must be added and served, whether by amendment or third party practice, by this date. THE PARTY CAUSING THE JOINDER SHALL PROVIDE A COPY OF THIS SCHEDULING ORDER AT THE TIME OF SERVICE. 2. EXPERT WITNESS DESIGNATION. A list including each expert's name, address, and the topic of the witness* testimony must be filed by: (a) 02/16/98 Plaintiff(s) <b) 03/02/98 All other parties. Experts not listed in compliance with this paragraph will not be permitted to testify absent a showing of good cause. This designation is not a substitute for any required interrogatory supplementation. 3. STATUS CONFERENCE Parties shall be prepared to discuss all aspects of the case with the court on this date. TIME: 4. ALTERNATIVE DISPUTE RESOLUTION. By this date the parties must either (1). file an agreement for ADR statiny the form of ADR requested and the name of an agreed mediator, if applicable; or (2) set an objection to ADR. If no agreement or objection is filed, the court may sign an ADR order. 5. 03/16/98 DISCOVERY DEADLINE. All discovery requests and deposition notices must be filed by this date. Counsel may initiate discovery beyond this deadline by agreement. Incomplete discovery will not delay the {rial date. 6. MOTIONS FOR SUMMARY JUDGMENT. Must be set for consideration by this date. 7. FACT WITNESS LISTS. A list including the.name, address, phone number, and topic of testimony of each fact witness Who may be called at trial must be filed by this date. Fact witnesses not listed in compliance with this paragraph will not be permitted to testify absent a showing of good cause. This list is not a substitute for any required interrogatory supplementation. 8- 03/23/98 PLEADINGS. All amendments and supplements must be filed by this dale. This order does not preclude prompt filing of pleadings directly responsive to any timely filed pleadings. 9-04/17/98 DOCKET CALL. Parties shall be prepared to discuss all aspects of trial with the court on this date. TIME: g . 3 o AM 10.04/20/98 TRIAL. If not assigned by the second Friday following this date, the case will be reset. SIGNED DATE GENERATED: 11/10/97 MARK DAVIDSON JUDGE, 11TH DISTRICT COURT MICHAEL FLUME 07188480 1020 N E LOOP 410200 RECORDER'S MEMORANDUM SAN ANTONI TX 78209 This instrument is of poor quality at the time of imaging jcvoo: •7"Qrcv.031«6 Cause No. 9740590 CHOICE CAR WASH INC IN THE DISTRICT COURT OF vs HARRIS COUNTY, TEXAS DOSOHS I LTD (TEXAS LIMITED PA 11TH JUDICIAL DISTRICT SCHEDULING ORDER Based on the information available to the court, the following scheduling order shall apply to this case unless modified by the court If no date is given below, the item is governed by the Texas Rules of Civil Procedure. 1-01/12/98 JOINDER. All parties must be added and served, whether by amendment or third party practice, by this date. THE PARTY CAUSING THE JOINDER SHALL PROVIDE A COPY OF THIS SCHEDULING ORDER AT THE TIME OF SERVICE 2- EXPERT WITNESS DESIGNATION. A list including each expert's name, address, and the topic of the witness' testimony must be filed by: (a) 02/16/98 Plaintiff(s) (b) 03/02/98 All other parties. Experts not listed in compliance with this paragraph will not be permitted to • testify absent a showing of good cause. This designation is not a substitute for any required interrogatory supplementation. 3. STATUS CONFERENCE Parties shall be prepared to discuss all aspects of the case with the court on this date. TIME: 4. ALTERNATIVE DISPUTE RESOLUTION. By-this. date the parties must either (1) file,an agreement for ADR stating the form of' ADR-requested-.and the name of an agreed mediator, if applicable; or (2) set an objection to ADR. If no agreement or objection is filed, the court may sign an ADR order. 5.03/16/98 DISCOVERY DEADLINE All discovery requests and deposition notices must be filed by this date. Counsel may initiate discovery beyond this deadline by agreement Incomplete discovery will not delay the trial date. 6. MOTIONS FOR SUMMARY JUDGMENT. Must be set for consideration by this date. 7. FACT WITNESS LISTS. A list including the name, address, phone number, and topic of testimony of each fact witness who may be called at trial must be filed by this date. Fact witnesses not listed in compliance with this paragraph will not be permitted to testify absent a showing of good cause. This list is not a substitute for any required interrogatory supplementation. 8- 03/23/98 PLEADINGS. All amendments and supplements must be filed by this date. This order does not preclude prompt filing of pleadings directly responsive to any timely filed pleadings. 9-04/17/98 DOCKET CALL. Parties shall be prepared to discuss all aspects of trial with the court on this date. TIME: g. 30 &M 10.04/20/98 TRIAL. If not assigned by the second Friday following this date, the case will be reset SIGNED DATE GENERATED: 11/10/97 MARK DAVIDSON JUDGE, 11TH DISTRICT COURT MICHAEL C WHALEN 21239000 2901 WILCREST 105 HOUSTON TX 77042 JCV002 •7'1rov.03U96 14-14-00410-CV aaaaajtasaaj^asB^EBEBIBEflBBBBBlBCaBE^BBBBa JPOVOVNJ, Petitioner, v. POSOHSiiLfP Respondent. EXHIBIT 07 TO APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 78 — ,pn NO. 97-40590 CHOICE CAR WASH, INC., IN THE DISTRICT COURT BUSINESS AND OWNERSHIP LIABILITIES TAKEOVER CORPORATION, and DOV AVNI KAMINETZKY, Plaintiffs; FOR HARRIS COUNTY, TEXAS VS. DOSOHS I, LTD., i-a- tP Defendant. 11th JUDICIAL DISTRICT* . _ <S. °2 WLAimUFES' THIRD AMENDED PETITION. %•><•. SEEK1WZ A DECLARATORY JUDGMENT. %&£ «° BRINGING ACTION IN TRESPASS TO TUT TTWjgsu^y. ?C AND SEEKING DAMAGES FROM DEFENDANT ry-2<-^ TO THE HONORABLE DISTRICT COURT JUDGES 6 Plaintiffs CHOICE CAR WASH, INC., .BUSINESS AN £|0W^EHS1 HIP LIABILITIES TAKEOVER CORPORATION, and'DOV AVNI KAMINETZKY, in his individual capacity, file this third amended petition seeking a declaratory judgment pursuant to Tex. Civ. Prac. & Rem. Code, Sec. 37.001 et seq, decreeing that the liens asserted by defendant Dosohs I, Ltd., ("Dosohs"), against the hereinafter described "Softouch Car Wash Property" are barred by the statute of limitations and that the deed of trust foreclosure sale of the Softouch Car Wash Property purportedly conducted by Dosohs is void, bringing action in trespass to try title to establish that plaintiffs should recover title to the Softouch Car Wash Property and the possession of the property against the claims of Dosohs, for damages recoverable from defendant Dosohs, and would respectfully show the Court as follows; 1. Plaintiff Choice Car Wash, Inc., ("CCW"), is a Texas corporation which maintains its principal office at 8901 W. Bellfort, Suite C, Houston, Texas 77031-2407. — 79 — Plaintiff Business and Ownership Liabilities Takeover Corporation ("BOLT") is a Delaware corporation which maintains its principal office at 150-B Forest Drive, Jericho, NY 11753 and maintains a Texas office at 1609 S. Kirkwood, Suite B, Houston, TX 77077-3158. Plaintiff Dov Avni Kaminetzky ("Kaminetzky") maintains a Texas residence in Harris County, Texas, at 1609 S. Kirkwood, Suite A, Houston, TX 77077-3158. 2. Defendant Dosohs I, Ltd., ("Dosohs"), is a Texas limited partnership with its office located at 1020 N.E. Loop 410, Suite 200, San Antonio, TX 78209-1218 [Telephone: (210) 828-5641]. Dosohs has filed an Answer herein and service may be made upon its attorney, Michael Flume, at the address shown for Dosohs. 3. Venue is proper in Harris County, Texas, because the real property involved is situated in Harris County, Texas. 4. The court has jurisdiction of defendant Dosohs I, Ltd., because the defendant is a Texas limited partnership, has jurisdiction of the declaratory judgment action pursuant to Tex. Civ. Prac. & Rem. Code, Sec. 37.001 et seq., and has jurisdiction of the trespass to try title action because jurisdiction of actions involving title to realty is placed exclusively in the district courts by Article V of the Texas Constitution. -2- — 80 — 5. The real property which is the subject of this action consists of a .9986-acre tract of land containing a full-service car wash and related improvements, (herein called the "Softouch Car Wash Property"), such property being located at 8901 W. Bellfort, Houston, Harris County, Texas, and more particularly described in the special warranty deeds referred to below. 6. Plaintiff CCW claims to own a 20.25% undivided interest in the fee simple title to the Softouch Car Wash Property under two special warranty deeds to CCW and BOLT and plaintiff BOLT claims to own a 60.75% undivided interest in the fee simple title to the SoftoUch Car Wash Property under the same two special warranty deeds, a certified copy of each of said deeds being attached hereto as Exhibits 'A' and 'B' and incorporated herein by this reference. Plaintiff Kaminetzky claims to own a 19% undivided interest in the fee simple title to the Softouch Car Wash Property under a special warranty deed from CCW and BOLT to Kaminetzky, a certified copy of which is attached hereto as Exhibit 'C and incorporated herein by this reference. 7. Plaintiffs collectively were the record owners of title to the Softouch Car Wash Property and were in possession thereof at the time of the deed of trust foreclosure Bale hereinafter referred to and claim valid fee simple title to said property under the special warranty deeds to Plaintiffs that are attached hereto as Exhibits 'A', 'B' and 'C -3- — 81 — 8. Defendant Dosohs I, Ltd., purportedly conducted a deed of trust foreclosure sale of the Softouch Car Wash Property on Tuesday, September 2, 1997, and claims title to and the right to possession of the Softouch Car Wash Property pursuant to the trustee'8 deed executed after the purported foreclosure sale. 9. However, the deed of trust foreclosure sale of the Softouch Car Wash Property purportedly conducted by Defendant Dosohs I, Ltd., is void because the debt and lien relied upon by Dosohs is barred by the statute of limitations. (a) More specifically, the debt upon which Dosohs I, Ltd., bases its foreclosure matured no later than August 15, 1990, inasmuch as Dosohs has judicially admitted in pleadings in related litigation that the debt upon which Dosohs based its foreclosure sale matured on August 15, 1990. Accordingly, even the extended 6-year period of limitations granted to the FDIC under 12 U.S.C. 1821(b), and claimed by Dosohs I, Ltd., as an assignee of the FDIC, would have expired on August 15, 1996, whereas the foreclosure was not held until September 2, 1997. (b) Alternatively, the debt upon which Dosohs I, Ltd., bases its foreclosure is barred because Dosohs did not bring its action prior to the expiration of the 30-day window afforded by 11 U.S.C. 108(c) after the stay was lifted in Adversary No. 96-4671 in the United States Bankruptcy Court. 10. Notice of the purported foreclosure sale was not given as required by Sec. 51.002(b) of the Texas Property Code. -4- — 82 — More specifically, notice of the proposed foreclosure sale was not posted as required by Sec. 51.002(b)(1) of the Texas Property Code and the deed of trust and a copy of the notice was not recorded in the office of the County Clerk as required by Sec. 51.002(b)(2) of the Texas Property Code. 11. Therefore, the deed of trust foreclosure sale purportedly held on September 2, 1997, was void and Dosohs is unlawfully claiming title to and the right to possession of the Softouch Car Wash Property. 12. Plaintiffs will show that the common source of the title is Samantha Corporation, Inc., and will produce at trial certified copies of deeds showing a chain of title emanating from the common source. 13. Dosohs I, Ltd., by persisting in its knowingly wrongful attempts to conduct a deed of trust foreclosure sale of the Softouch Car Wash Property, has required plaintiffs to spend a considerable sum of money to resist such efforts by Dosohs. WHEREFORE, premises considered, plaintiffs pray that after a full trial on the merits a declaratory judgment be rendered against defendant Dosohs I, Ltd., decreeing that the cause of action and liens asserted by Dosohs I, Ltd., are barred by the statute of limitations and that the deed of trust foreclosure sale purportedly conducted by Dosohs is void, that judgment be rendered that valid title to and the right of possession of the Softouch Car Wash Property is vested in plaintiffs in the -5-*83 undivided interests set out above, pray further for recovery of damages caused by the knowingly wrongful attempts of Dosohs I, Ltd., to conduct a deed of trust foreclosure sale of the Softouch Car Wash Property in such amount as may be awarded by the court or jury, pray for recovery of their costs of suit and reasonable attorney fees, and for such other legal and equitable relief to which plaintiffs may be justly entitled. Respectfully submitted. iel C. Whalen State Bar No. 21239000 2901 Wilcrest, Suite 105 Houston, Texas 77042 Tels (713) 782-0065 Fax: (713) 782-7868 Attorney for Plaintiffs Choice Car Wash, Inc., and Business and Ownership Liabilities Takeover Corporation Dov Avni KaminetzkyT P^o Se >'^#$CS -6- — 84 — STATE OF TEXAS ) ) VERIFICATION COUNTY OF HARRIS ) BEFORE ME. the undersigned authority, on this day, personally appeared Dov Avni Kaminetzky a/k/a Dov K.Avni,and after being duly sworn by me, the said Dov Avni Kaminetzky stated to me that he is the chief operating officer,the managing vice president of the two corporate plaintiffs named in the above captioned lawsuit,and that he is their authorized corporate representative, who, after being duly sworn by me, has stated to me that he has carefully read the foregoing pleading, and that the statements made therein are true, correct and u for* A+* lfam*<(tfk/7 Dov Avni Kaminetzky SUBSCRIBEfi^SNIU' UfKMff"" W/"'Bel'ore me,on this /^ day of January, 199S, to certify which witness my hand and seal of office. iry Public for the Stare of Texas Notary My Commission Expires: C -46 -JLao/ CERTIFICATE OF SERVICE The undersigned attorney of record for corporate Choice Car Wash, Inc. and Business and Ownership Liabilities Takeover Corporation hereby certifies that a true and corrcet copy of the foregoing has been forawrded to the attorney of record for plaintiff on the Wt*k day of January,1998 by facsimile transmission and by certified U.S.mail,postage prepaid,at the following address Michael Flume Munn & Flume Attorneys at Law 1020 N.E.Loop 410,Suite 200 San Antonio,TX 78209-1218 fax #: (210) 821 -6069 Mi^ael CJ Whalen ^- 14-14-00410-CV iDOVlLAVNi, Petitioner, v. POSOHSiLTd Respondent. EXHIBIT 0$ TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 85 — NO. 97-40590 CHOICE CAR WASH, INC., IN THE BUSINESS AND OWNERSHIP LIABILITIES TAKEOVER CORPORATION, and DOV AVNI KAMINETZKY, Plaintiffs; FOR HARRIS COUNTY^. TE^AS \ VS. DOSOHS I, LTD., Defendant. llth JUDICIAL{^DISTRICT REQUEST FOR JURY TO THE HONORABLE DISTRICT COURT JUDGE: "2 \ srV ^^J) The Plaintiffs in the above captioned cause hereby request a trial by jury. The required jury fee has been deposited with the clerk of the court at the time of filing this Request For Jury. Respectfully submitted. £U- Michafel C."Whalen State Bar No. 21239000 2901 Wilcrest, Suite 105 Houston, Texas 77042 Tel: 713/782-0065 Fax: 713/782-7868 Attorney for Plaintiffs Choice Car Wash, Inc., and' Business and Ownership Liabilities Takeover Corporation Dov Avni Kaminetzky^ / Dov Pro Se Plaintiff «£3^ *86 J" . I CBRTIFICATB OF SERVICE The undersigned attorney of record for the corporate plaintiffs and the undersigned pro se litigant hereby certify that a true, copy of the foregoing document has been forwarded on March Jff"1 , 1998, to the attorney of record for defendant by certified U.S. Mail, return receipt requested, at the following address: Michael Flume Munn & Flume Attorneys at Law 1020 N.E. Loop 410, Suite 200 San Antonio, TX Telecopier No: 210/821-6069 .QfrJ/yfJL MichSel C.~ Whalen Dov Avni Kaminetzky, Pro Se -2- 14-14-00410-CV Petitioner, Respondent. EXHIBIT Of TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 92 — ?J No. 97-40590 CHOICE CAR WASH, INC., * IN THE DISTftW^oii^J^ J] AND BUSINESS OWNERSHIP AND * *** a«" LIABILITIES TAKEOVER * «,„,. CORPORATION * WHK *1 U1999 * vs. * f'SS'^S'J&Jnas 11TH jnniflWAi. districtxas DOSOHS I, LTD. * HARRIS COUNTY, TE EfTWKi DEFENDANTS THIRD AMENDED ORIGINAL ANSWER [VTJinEi ^J^Mf 1 TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES DOSOHS I, LTD. ("Dosohs"), Defendant in the above styled and numbered cause, and ffles this Defendant's Third Amended Original Answer to Plaintiffs Original Petition filed herein, and in support thereof would respectfully show the court as follows: I. GENERAL DENIAL 1.1 Dosohs denies generally each and every, all and singular, the allegations contained in Plaintiffs' Original Petition filed herein and states that this Defendant will require strict proof thereof. AFFIRMATIVE DEFENSES II. RES JUDICATA COLLATERAL ESTOPPEL 2,1 Plaintiffs' claims are barred by res judicata or collateral estoppel. More specifically, Dosohs alleges that on September 26,1996, Dosohs instituted alawsuit against 1 RECORDER'S MEMORANDUM This Instrument is of poor quality at the time of imaging — 93 — Samantha Corporation, Inc. in Adversary Proceeding No. 96-4671, styled Dosohs I, Ltd. vs. Samantha Corporation, Inc., in the United States Bankruptcy Court for the Southern District of Texas, Houston Division. That cause was brought to determine the validity and extentof Dosohs' lien. On final hearing, the Bankruptcy Court determined the amount and validity of Dosohs' lien on the property made the issue of this lawsuit Further, the court heldthatthe statute of limitations hadnot expired andDosohs is entitled to seekcollection. Accordingly, the Plaintiffs' claims asserted in this state court proceeding were previously litigated in the bankruptcy court m. PLAINTIFFS LACK STANDING 3.1 In the alternative, Plaintiffslack standing toassert theirclaims against Dosohs. IV. DEFECT OF PLAINTIFFS 4.1 In the alternative, that there is a defect of Plaintiffs. V. NEGLIGENCE 5.1 Pleading in the alternative, Dosohs would show the court that the Plaintiffs are themselves guilty ofvarious acts and omissions each ofwhich constituted negligence and contributory negligence, and each of which was a sole cause or alternatively, a proximate and producing cause of the occurrence in question and the alleged damages alleged by Plaintiffs in this lawsuit — 94 — VI. THIRD PARTY LIABILITY 6.1 Pleading further in the alternative, Dosohs would state that the incident in question was a result of or in the alternative, partially, caused by persons, factors, instrumentalities and circumstances over which it had no control or right of control VII. THIRD PARTY NEGLIGENCE 7.1 Pleading inthealternative, Dosohs would show thecourt that damages, if any, suffered by Plaintiffs were caused bythe negligence and acts of third parties. VIII. ESTOPPEL 8.1 For further answer, if any is necessary, Dosohs alleges that Plaintiffs are estopped from asserting the claims made the basis of Plaintiffs' petition. IX. MITIGATION OF DAMAGES 9.1 Pleading further in the alternative, Dosohs would show the court that Plaintiffs failed to mitigate their damages. X. WAIVER 10.1 For further answer, if anyis necessary, Dosohs alleges the affirmative defense of waiver by Plaintiffs. — 95 — XL DOSOHS NOT GUILTY 11.1 Dosohs is not guilty of the injury complained of in the petition filed by the Plaintiffs against Dosohs. PRAYER WHEREFORE, PREMISES CONSIDERED, Dosohs prays that all reliefprayed for by Plaintiffs be denied; thatthe Plaintiffs take nothing by their suitherein; and that Dosohs recover costs of court from Plaintiffs; andthatDosohs receive such otherand further relief, general or special to which it may show itself justly entitled to receive. Respectfully submitted, MUNN & FLUME One Oak Park, Suite 200 1020 N.E. Loop 410 San Antonio, Texas 78209-1218 (210) 828-5641 (210) 821-6069 Facsimile MICHAEL FLUME State Bar No. 07188480 ATTORNEYS FOR DOSOHS I, LTD. — 96 — CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the foregoing document has been viacertified mail, return receipt requested to Michael C.Whalen, 2901 Wilcrest, Suite 105, Houston, Texas 77042 and to Dov-Avni Kaminetzky, 1609 S. Kirkwood, Suite A, Houston, Texas 77077-3158 on this J}J day of March, 1998. 'MICHAEL FLUME — 97 — VERIFICATION STATE OF TEXAS COUNTY OF BEXAR On this date, MATT N. MOLAK, personally appeared before me, the undersigned Notary Public, and after being duly sworn stated under oath that he is the President of Dosohs, Inc., General Partner of Dosohs I, Ltd., Defendant in the above styled and numbered cause; that he has read the foregoing Defendant's Second Amended Original Answer; and that every statement contained therein is within his personal knowledge and is true and correct DOSOHS L LTD. By: DOSjDfflS, INC.,/G9n«ral Partner MATT N. MOLAK, President SWORN AND SUBSCRIBED TO BEFORE ME by the said Matt N. Molak, President of Dosohs, Inc., General Partner of Dosohs I, Ltd., to certify which witness my hand and official seal ofoffice on thisdfe^ day ofMarch, 1998. Notary Public in arid for the State of Texas JAMIE J. TAYLOR WSSIONEXHRES MirOOMMSStONEXHffiS i ary12,2001 February i | 14-14-00410-CV Petitioner, Respondent. EXHIBIT iO TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 98 — f<8 •A. No. 97-40590 Fj^jL B ^ CHOICE CAR WASH, INC., * IN THE DISTRICT COUKT AND BUSINESS OWNERSHIP AND • JHA/? 3 Q1Q LIABILITIES TAKEOVER • • ° Q O -* CORPORATION ♦ ^ «** G,^ ^ 0' DO* QY VS. * 11TH JUDICIAL DISTOSiu^ DOSOHS L LTD. * HARRIS COUNTY, TEXAS PLEA IN ABATEMENT TO THE HONORABLE JUDGE OF SAID COURT: NOW COME DOSOHS LLTD., ("Dosohs") and files this Plea In Abatementurging that this action be dismissed or, in the alternative, be abated, and shows the court as follows: FACTS I. BACKGROUND INFORMATION 1.0 On August 15, 1985, Samantha Corporation, Inc., ("Samantha") by and through its president, executed an Extension, Renewal and Modification Agreement of a $850,000 note payable to Security Bank. 1.1 Pursuantto the terms of the extension, the note matured on August 15,1990. 1.2 Security Bank was closed on February 16, 1989 and its assets taken over by the Federal Deposit Insurance Corporation ("FDIC"). 1.3 Samantha filed a Chapter 11 bankruptcy petition on Jury 28, 1995. The bankruptcywas subsequently converted to a Chapter 7 filing on October 25, 1995. 1.4 The FDIC filed a Proof of Claim on December 11,1995. 1MbInstrument is of poor qw% atto firm oftanging — 99 — 1.5 On May28,1996, Dosohs acquired the $850,000 Note from the FDIC and on Jury 12, 1996, the FDIC transferred the liens and security interests associated with the $850,000 Note. n. ADVERSARY PROCEEDING NO. 96-4671 2.0 OnSeptember 26,1996, Dosohs filed an action against Samantha inAdversary Proceeding No. 96-4671, styledDosohsL Ltd. vs. Samantha Corporation, Inc., in the United States Bankruptcy Court for the Southern District of Texas, Houston Division. 2.1 On or about February 20, 1997, Dov Avni Kaminetzky ("Kaminetzky") filed an Original Petition in Intervention requesting declaratory relief as to Dosohs' claim that Dosohs' action was barred by the statue of limitations. A copy of the Original Petition in Intervention is attached hereto as Exhibit "A". 2.2 On July 17, 1997, the Bankruptcy Court entered a Final Judgment in this action. 2.3 On July 28, 1997, Samantha, filed a Notice of Appeal from the Final Judgment which was docketed as Civil Action No. 97-H-2870. 2.4 On November 19, 1997, the Honorable Nancy Atlas entered an Order Dismissing Appeal in the Final Judgment Appeal for the reason that the Final Judgment that Samantha sought to appeal from was not a final order since no identification of the real property in issue was made in the order and the order could not be enforced. 2.5 Although Dosohs is of the opinion that the Final Judgment is a valid final order,the rulingof the Honorable NancyAtlas controverts this belief and Dosohstherefore — 100 — requested that the Bankruptcy Court, pursuant to Bankruptcy Rule 9024 and Rule 60(a) of the Federal Rules of Civil Procedure, amend its FinalJudgment to include a full description of the property to which it refers in the order. 2.6 On March 13, 1998, Dosohs filed a Motion to Correct Clerical Error in the Final Judgment of the Bankruptcy Court entered on July 17, 1997. 2.7 On March 19,1998, Dov Avni Kaminetzky ("Kammetzky") filed an Objection to the Motion-to Correct Clerical Error in the Final Judgment of the Bank Court entered on July 17,1997. A true and correct copy of the Objection is attached hereto as Exhibit "B". 2.8 It is Dosohs contention that the issues raised by the Plaintiffs in this proceeding are issues that have been previously raised in the Adversary Proceeding, Case No. 96-4671, Bankruptcy Court for the Southern District of Texas, Houston Division and as such were disposed of by the Final Judgment dated July 17, 1997, herein referenced. 2.9 Dosohs therefore, requests that this court dismiss this action or abate this proceeding until further order of this court. III. ADVERSARY PROCEEDING 97-4813 3.0 Dosohswould further showthecourt that onSeptember 12,1997, Kaminetzky, filed Bankruptcy in Case No. 97-49007-H1-11, in the United States Bankruptcy Court For the Southern District of Texas, Houston Division. 3.1 On December 10, 1997, Kaminetzky filed an Adversary Proceeding, in the United States Bankruptcy Court for the Southern District of Texas, Houston Division, — 101 — Adversary No. 97-4813, tided, Adversary Proceedingsby Debtor-In-Possession to Avoid an Unlawful Foreclosure Sale and Time Barred Debts and Liens, to Recover Property and Money of the Bankruptcy Estate, and for Injunctive Relief and Declaratory Judgments. 3.2 On January 12,1998, Kaminetzky joined ChoiceCarWash, Inc. and Business Ownership and Liabilities Takeover Corporation and filed Plaintiffs Third Amended Petition. The Third Amended Original Petition raised the same issues that have already been raised by Kaminetzky in the Adversary Proceeding filed on December 10, 1997. A true andcorrect copy of the Adversary Pleading filed by Kaminetzky filed in Adversary No. 97-4813, is attached hereto and labeled Exhibit "C". A true and correct copy of the Answer filed by Dosohs, in Adversary No. 97-4813, is attached hereto and labeled Exhibit "D". 3.3 Therefore, Dosohs requests that this court dismiss this action or abate this proceeding. WHEREFORE, PREMISES CONSIDERED, Dosohs requests that theproceedings in this action be dismissed or abated, that Dosohs recover all costs and for such other and further relief to which Dosohs may be rightfully entitled. Respectfully submitted, MUNN& FLUME One Oak Park, Suite 200 1020 N.E. Loop 410 San Antonio, Texas 78209 (210) 828-5641 (210) State Bar No. 07188480 ATTORNEYS FOR DOSOHS I, LTD — 102 — CERTIFICATE OF CONFERENCE The Defendantconferedin good faith with the Plaintiffs, ChoiceCarWash, Inc.and Business Ownership and Liabilities Takeover Corporation's, attorney Michael Whalen, via telephone conversation, and were unable to reach an agreement concerning the attached motion. The Defendant attempted to confer with Plaintiff, Dov Avni Kaminetzky, via telephone, however we were unable to reach him. ICHAEL FLUME NOTICE OF HEARING It ishereby ORDERED bythe Court that a hearing be held on the foregoing Plea In Abatement on the 2nd day of April, 1998, at 8:00 a.m., in the 11th Judicial District, Harris County, Houston, Texas. HONORABLE MARK DAVIDSON CERTIFICATE OF SERVICE Ihereby certify on this JjT day of March, 1998, that atrue and correct copy of the Plea and Abatement has been sentvia certified mail to the following: Michael C. Whalen 2901 Wilcrest, Suite 105 Houston, Texas 77042 Dov Avni Kaminetzky, Pro Se 1609 South Kirkwood, #B Houston, Texas 77077-3158 ICHAEL FLUME — 27 — r . 6. The exact amount which was funded by during 1984 and 1985 by Security bank for the construction of the "Softouch Car Wash" has not yet been finally determined by a court of law,but it was over Eight Hundered and Twenty Five Thousand Dollars ($ 825,000), as evidenced by the detailed business* construction loan records of Samantha,which were in my personal possesion,custody,care and control since early July 1990.According to the corporate records of Samantha, the entire indebtedness of Samantha to Security Bank, which assets were administred by FDIC.was paid off at that time. Based on these records, the cost basis of the car wash property was in excess of One Million Eight: Hundred Sixty Five Thousand Dollars ($1.865.000).excluding the accrued cost of money. 7. On May 30,1995,over a year after "Softouch Car Wash" was sold by Samantha,a liquidator of the FDIC in Dallas sent demand letter to Samantha,claiming a remaining debt in excess of 1.215 million dollars on the construction loan which was provided by the failed Security Bank. The maturity date of that delinquent debt was stated as August 15,1990. 8. As result of these demands,which were not supported by any records and threat by FDIC to foreclosed the Deed of Trust held against the real property of "Softouch Car Wash", Samantha had to file for Chapter "11 • bankruptcy protection on July 28,1995. 9. The FDIC has never moved to lift the automatic stay against the 18.0% undivided ownership interest in the real property Which was purportedly vested in Samantha, nor did FDIC move to foreclose its Deed of Trust Lien against the 82% undivided interest in that real property, which was acquired by the car wash buyers in 1994. 9. In May 1996 the FDIC has sold the rights and claims to the debt allegedly owed by Samantha to Security Bank,to Dosohs I,Ltd and on June 28,1996 assigned to it its interest in the liens it has held as security for that debt.Dosohs failed to post the 82% ownership interest held by the car wash buyers for non-judicial foreclosure,and on September 25,1996 filed an adversary petition against Samantha under Case 96-04671,which was tried on 6/16/97, after the honorable U.S. Bankruptcy judge M.Leal denied Dosohs I, Ltd motion's for sumary judgment.Dosohs*counsel admitted there to final maturity of the alleged debt to Security as being 8/15/1990 as evidenced by Exhibit "2",true copy thereof is hereto attached. 10. I testified at that trial on behalf of Samantha, and later ordered,paid for and obtained the Statement of Fact of the trial and all the pertinent summary judgment and trial exhibits. 11. Among these documents which I have personally obtained,were: a. Copy of the uncontroverted testimony of Richard A.Liotta,a joint valuation agent for Samantha and its buyers in which he testified to a value in excess of one Million Dollars for the real property and the business- attached as Exhibit "3". b. Copy of the stock purchase agreement of July 5,1990,produced by Dosohs,and evidencing the 1.275 M$ purchase price for the real property and the business-attached hereto as Exhibit"4" c. Testimony of Dosohs president Matt Molak with respect to his knowledge in 1996 of the deeds that were recorded in May and June 1994,conveying this property - attached as Exhibit "5". - 2 - — 28 — Further Affiant sayeth not. Dov Avni Kaminetz) a/k/a Dov K. Avni 1609 S. Kirkwood # B Houston,Texas 77077-3518 "Affiant" STATE OF T E X A S ACKNOWLEDGMENT COUNTY OF HARRIS BEFORE ME, the undersigned notary public,on this day of August 1997,personally appeared in Houston,Harris County, in the State of Texas, said DOV AVNI KAMINETZKY a/k/a DOV K.AVNI, and upon his oath he acknowledged to me under penalty of perjury that he has executed this affidavit and has produced the exhibit documents thereto attached for the purposes and in the capacites therein stated, and that all the facts, events and circumstances recited therein are true and correct ,and that the copies of the documents hereto attached are true and correct replica of the original source documents in his lawful custodj£*possession,care, or control. ,in and for - 7 - — 29 — pm e,s~ „.„ „„„,„. „„, Qgrer-am 1MB STATE OF TEXAS % t wow t u m n thbbb presentsi that COUHTY AT KARRIS b ,.,,.,-, SAMJUrrHA CORPOMATIOa . • Texas corporation acting heroin by and through lta duly authorised offlean (wether ana or corn ). hereinafter called "Grantor* ( Mather one or sore), for and In consideration of the sua of TEH ABO HO/100 DOLLARS (010.00) and othar good and valuable canelderatlann caah in hand paid by tba Graateaa hareio naned. the receipt of which la hereby confessed end acknowledged.and the further coaelaeration of the eescutlon end delivery by aald Grantees of that me certain participation agreeeent of even date herewith, known also aa "Acknowledgenent of Participation In Certain Ceuaols) of action and in proceeds of all Future Racovorlae '.have ORAMTED, SOLO UD CONVEYED, and by thase prasanta do CRANT .SELL AMD COMVEY onto t choice acquistions MO. FOUR .INC. a Texas corporation , end DOV AVHI KAMIRBrzuy .TRUSTEE (herein called • Cranteae°.setner one or Bare >. both of whose Baillog adraaa is : 8901 Meat Ballfort, Houston Texas 77031.C/0 Beftonch Car Haah ALL OF THE FOLLOWING DESCRIBED REAL PROPERTY.TOGETHER KITH ALL U0>R0VBHEFr THEREON, LOCATED IN HARRIS COVRTT.TEIAS, TO -WIT: A 0.99B1 acres tract of land oat of the 4.9133 acres of land known aa the Unrestricted neoorva 'A* Block 1 of tea Ballfort Place Bob Division , oat of the Bsnry B. Cane Survey. A-191; being toasted at the Boathwaat corner of Hast Ballfort Blvd. (8 ' ROW) and ftlcovlllo School Road (£0* BOH ), aa recorded in Voluaa 207, page 121 of THB HAP RECORDS of Harris County, Texas; being ears particularly described by nates ana bounaa oa follows: BEGIRDING at the Eartheaet comer of aald Naaarva *A'; •ald point being on the Southerly Right -Of-Msy Una of aald Heat Ballfort Blvd.; Thence B 02 33' 23 " B ;along tha Eaatraa boundary line of aald Reaava "A",a distance of 300.00 feet for a earner; being the Soathaaet corner of tba herein described tract; olso being Southeast corner of aald Reaarve 'A': Thence B 07 30" 24 • H ;along the Southern boundary line of eald Reaava *A*.a distance of 145.00 feet for a corner; being the Southwest comer of tba heroin daacrlbad tract; Thence H 02 33' 23 • H ; a dlatanea of 300.00 feet for a comer: said point being en tba Southerly Rlgbt-Of-Hay Una of aald Heat Bellfort Blvdf Thence H 87 30' 24 • B ;along the eald Boutbarly Right- 0f-Hay Una of aald Heat Ballfort Blvd.,a dlatanea of 145.00 faat to the POIRT OP BBSHWIM; containing 0.998C2 acres of land. Page. 1 Of 5 Pages A:\lCh\FOftBjMD.DOC\94-01-07 / i OB UBS OP THB D&OBBD REAL rTOFHOT BKAUSH OP _ A gf. COLOR. OB BAOL B INVALID AMD IJNIINBriBr-nAej Bllfspoe W^JM " ACEKTIFIEDCOFY *~~. T" AA//«n"'>\ BEVERLY a KAUFMAN, ComfyOak Harris County,Texas <£%£*. OOLORESt.LOPEZ — 30 — Thle conveyance la node and accepted subject to <8TOl=»6 (1) Any and all reetrlctlone , covenanto. condltiana, easenanta, malntonanca charges and the liana securing eald charges, sli ninerel and royalty Interests if any, all leases, •enageeent and operation contracts and agreaeenta.al1 purchase and lease options,all lawful and duly donjmahted clelaa for any due and owing Indebtedness or obligations of Grantora secured by the Property,and all other nattere.If any.affecting the property, presuaee or laprovesumto conveyed hesiata and now of record in the Office of the County Clerk of Borria County, Taxes, but only to the extent .but only to the extant. the aaae are bow In force and effect end relate to aald property ,and save and except: a) Any and all obligations and liabilities of Grantor caused or related to any existing or alleged envlxoneentel contami nation or any existing or elleged breach of any envlrmiaentel statute,law .ordinance,nanaata, directive or regulation,which vera in force and effect and affected eald property, preniaaa or lnprovaeente .and any bueinees or other ectlvlty conducted thereon . on the date of or at oar time prior to too date of the execution of thla Instrument, b) Any and all obligations and liabilities of Grantor caused or related to any existing or alleged participation in bank fraud or in any benefit accruing thereof, or that era or Bay be alleged In the future to have been caused or rotated to any exiating or alleged breach of any atatuta, lew. policy, directive or regulation, which are related to the appraisal, underwriting, valuation, and funding of any bank loon or any othar financing eccoaodation by any lnotltutlon which woo at any tine prior to the data of thla conveyance suvject to any bonking regulation or supervision by ths Btsta of Texas or by any lnstmentality or agency of the united,States of Aearica, and all other govemeant reguletlone and policies that were In force and effect and affected aald property, practises or Inprovesants . and any business or other activity conducted thereon , en the data of or at any ties prior to the data of tha execution of thle lusl iiieaiil. c) Any and all obligations and liabilities of Grantor caused or related to any existing or alleged participation In Incoca Tax evasion .sdaraportlng or fraud or ia any benefit accruing thereof, or that are or nay be alleged In the future to have boon caused or related to any existing or alleged breach of any atatuta, law, policy, directive . regulation or circular. Issued by tba Internal Revenue Service ("IRS") of the United Statee of Aaarica or by the Cpatroller of Public Accounts of. the Stete of Texaa. which are caused by or are related to tha acquisition, funding .closing, developcant.operation,leasing, management, conveyance of interests, distributions of profits and proceeds, deduction of depredation, any reporting or any lack of reporting required by law,or any expensing of capital or pareonal expanses .which waa at any tins prior to the date of thla conveyance euvject to any faderel lncnna tax statute or regulation or which waa or could be clalaed to be subject to any audit or Inspection by the Stete of Texas or by any lnstunxantallty or agency of the United States of Aaarica, Page 2 of 5 Pages A:\lCh\FoftSpHD.Doc\94-01-07 OR USE OF THB DBBCWBEO REAL PROPERTY HBCAUBB OP THB FEDERAL LAW. ACEBTIHEDCOPY BWEW.YB.KAIjra4V^Co»mtjrCaeric pwnr/,Tta«» ._.„ •"' OOtOrlEg T CBPW Deputy — 31 — ra^.-jfBB dl Any and all liabilltlae of Grantor,wether now existing llgudBted and of record, or currently being unliquidated, coatlgant. estieated. dlapotad or contaapleted which are eauaed .related to or anticipated aa a result at any dale, dispute, arbitration, eadlatlon, arbitration , litigation, voluntary accepted or duly adjudged liability,any judgocant or eottleaent of claims and dlopateo.wether recorded or not. insolvency, reorganisation, bancraptcy, liquidation .oerger. dissolution,forfeiture of charter.license or of right to do nueliiase. or caused by or related to any act of disposition of assets and liabilities by Grantor,or by any oflta agents officers, directors, founder,or by any other Insider who waa tha direct or beneficial holder ,at any tine during the ten (lO)years preceding the date of execution of thla lnatrlxsent of 5.0 « or aora of the laaued cnaann atock of Grantora. lv) All taxea .oaeeaaaanta and othar public dues affecting the property, prenlooa ox laproveaante conveyed harem tor year 1994 and for all eubsaquent years, all eubseqnently taxed aasesaaente for prior years due to change In tha land usage. • in valuation or due to change of awneruhlp of tha property, preaieee or lapTrwnaehto conveyed herein which way be levied after the date of execution of thla lnatruaant,which Graataa hereby assuees and agrees to pay, and v) Any aad all other Lava ,otatutos, ordinances, codee,xonlng, end governsantel regulations now applicable tD and currently enforceable against aald property,praaleaa or iaatavaaante, and vl) All existing eaaeennte.encroachBanta and and overlapping of laproveeanta.watnsx visible or not.lt any. ro KAVB AMD TO HOLD tha above deacribed praalaea. together with all and singular the rights and appurtenanoea thereto in anywise belonging unto the eald Grantees, their successors or assigns forever.and subject to tba above incorporated aattera. SAMANTHA CORPORATION of Houston, Toxaa aa Grantor hereby binds itself ito eucceeaora aad assigns to WARRANT AMD FOREVER DEFERS all aad singular tha aald property, praalaea or laproveaante. harelnbelng conveyed unto the said Grantees, their successors and assigns, against every parson wteaxwever lawfaly clalalng or to data the eooa or any part thereof.by .through or under Grantor .but not otherwise. Grantors have executed thle Special warranty Deed end granted, sold and unuiiayed tha above described property, practises and lsnroveaant's together with all lights and appurtenances thereto in anywise belonglag , end Grantees have accepted tale Bpsclel Warranty Deed end hereby purchaaa tha above deeerlbsd property, praalaea and loproveoento together with all and singular tha rights and appurtenances thereto in anywise belonging AS IB. HBBBE IS, AND HITH ALL FAULTS WHICH CURRENTLY BXIBT, WITHOUT Am RBPRE8ANTATI0NS OR WARRANTIES OF WHATSOEVER NATURE. EXPRESS OR IMPLIBD.IT IS BEING THE IMTEMTION OF GRANTORS AND GRAMTBXB TO EXPRESSLY RBVORB. RELEASE , HECATE AMD EXCLUDE ANY AND ALL BXPRES8 OR IMPLIED HEPRB8AMTATI0HS AND WARRANTIES HADE BY THB GRANTORS TO GRANTEES PRIOR TO THE EXECUTION OF THIS INSTRUMENT. SAVE AMD EXCEPT THE LIMITED SPECIAL WARRANTY OF GRANTEE'S TITLE TO THE PROPERTY, PREMISES AMD THE 1HROVBHBKTS VUUHTHKH WITH ALL RIGHTS AMD APPURTENANCES THERETO IN ANYWISE CURRENTLY BELONGING AS EXPRESSLY SET FORTH HEREIN. Page 3 of 5 Pages A: \lCh\Foft3pwD.Bec\9«-01-07 I j '• OR USB OF THB 13BKHBBD SEAL PBCfBKTt BBCAUSE OF COLOR, OH BACK, B INVALID AND WiaTWORCBABLB UND8K THB FEDERAL LAW. A CEKilFlUU COPY ATrffirVm-^^ BEVERLY & KAUFMAN, County Oafc Hants County, Tetss , Deputy D°WHESlijQpEZ r — 32 — EXECUTED at Houston,Texas on this 7tb day of January 1994 Attest: Grantor: SAMlHTtlA C0RP0BATION , i a Taxaa Corporation 'iLKlhn Ehud Avni or.-Dov Aval »* Xaalaatsky A*. J//**.//?'] " / Aeat Treasurer Prealdont.CBO and Secretary Saaantha Corporation THIS SPECIAL WARRANTY DEED IS ACCEPTED AND AGREED TO THIS DATS IN ALL RESPECTS. Ga7AOt088£ CHOICE A0Q0I8ITI0NB NO.FOUR ISC. a Texas Corporation <* _. . jL-a Bbud Avni By : /Jffas&b LjSs(~nJ]L H. Grlco II ABst.Sacretary Vice President and Acquisitions No. Asst. Baeretary of Choice Four,lac. Acquisitions Bo. Four,Inc. And. DOV AVNI iUUUBETXRY. TRUSTEE sy: jy A>. /tfw/frH Dov Aval Kaelnatxky,Trustee Kaalnatxky.Trt STATE OF TEXAS L A COUNTY OF HARRIS t BEFORE HE, the undoralgnad authority, on this day peraoiully appeered Dov Aval Kaelnstsky. known to as to be the person whose nose le subscribed to the foregoing inetrnnent. and ha acknowledged to ne that he executed the sana for the purposes and consideration!s) therein expressed. In tha capacity therein atsted and ae tha eat and deed of aald corporation. GIVEN UNDER NT BAND AND SEAL OF OFFICE, thla 9 day of >/lfitZ- »94. JJ . • Notary FffbUc in the State of Texas Nana: ^S}. ,c /<•., f..•. / ,n « ~- Hy Coaaieelon expires: j —/> ty STATE OP TEXAS k A COUNTY OF HARRIS 6 BEFORS lis, tha undersigned authority, on thla day personally appeared Jenee R. Grloe 11, known .to ae to be the person whose name is subscribed to tba foregoing lnstrunant , and be acknowledged to ae that he executed the eooa for tie purposes and conoideratlon(e) therein exprassed, in the capacity therein stated and ae the act and doed of eald corporation. Page 4 of 5 Pages A:\lCh\FoftSpWD.Doc\94-01-07 OR USB OF THE DBSCRIBED REAL PROPERTY BECAUBS OF COLOR, OR RACE, B D4VAUD AND UrlBTilORCaABLB UNDER THB FEDERAL LAW. AcxtcnnEDCogpY BEVERLY B. KAUFMAN, County Oak HarrisCounty, Teas , Deputy DOLORES T. kQPEZ ' ~" — 33 — MY HARD AND SEAL OF OFFICE, this 9 day of 3I-3Q98 1994. tf . Notary Publico tha Statjs of Texas Naaai i-Ed^et. Hy Coeal salon sxpl &a ffAi'fi* •xjpmjrviot &&KRI8 V' .;HSFOEB' of. tha uaderelgned authority , en thla day personally '"-^iw»rad.'i»bv Aval JCoalnetsky .truatee . known to an to be tba {eonrVboae nnsevi'e aubscrlbad to the foregoing instruaant . and __^"be;3gcluiowiaBged to aa that __ ho executed the sane tor tba poxJjQ&oa and conaldaration(e) therein axpreasad .and In.tha .capacity therein stated . 'MY BANJO AND SEAL OP OFFICE, thla 'Aft.. 1994. --•*=— ~-">— -^ -— -—--—^fexae . *'" It STATE I'W TEXAS A V-V • * . VC08NYY OF HARRIS A BBFORB MS, the undaralgnad authority, on thla day personally appaarad Band Aval, known to aa to ha the parsoa whose name is subscribed to tha foregoing lnstmaent . and he acknowledged to aa that ha attested execution at tha Bona in tba capacity therein statod . MY HAND AND SEAL OF OFFICE, this f day of 1994. ,, ±J6£k Sry PubCfc In the State of Texas •'• .•MtaV.aVwy Cntl/gQe My Coaalaaloa exnlAas: A-/A -7f • «• ••"."• 4*/ •". if i- ;.—' ••v>; '•After recording-return to: ;„ 3J Choice Acquisitions Ho. Four, Inc. ;< -* -n , c/o Softouch car wash :•-. < = ' 8901 wast Bellfort ;- rn 77031 )p S O •c ro Page S of 5 Pages A:\lCh\PoftSpHD.Doc\94-01-07 AlWHOvlSlOrJSHERBM OR USE OF THB DESaUBED REAL PJDrnTTTY BBCAUSS OP O^ORrOR TOE RACB, FOSSA!. LAW.B INVALID AND llrfflNPOICHABLB ~-«w«lji UflDER unuut ACERnFIEDCOPy BlWERLY&KAUjBnaAH County Clerk —•——-* —£_! _, Deputy ^ ;Deed of Trust") and the other Deed of Trust securing the $550,000 Note ("$550,000 Deed of Trust"), both dated July 26, 1984, both recorded in the Deed Records of Harris County, Texas, and both executed by Josie Haikin as President of Samantha. (See Affidavit of Michael Haikin, Exhibits 3, 4, and 5) 2.4 On August 15,1985, Josie Haikinand Michael Haikin paid the $550,000 Note. (See Affidavit of Michael Haikin and Exhibit 6) 2.5 Also on August 15,1985, Samantha renewed and extended the $850,000 Note and executed and promised to pay according to the terms thereof, an Extension, Renewal and Modification Agreement("$850,000 Extension") payable to Security Bankintheoriginal principal amount of $645,000. At the time the extensionwas executed, Samanthaowed the principal amount of $645,000. (See Affidavitof Michael Haikin and Exhibit No. 7) 2.6 On February 15,1987, Samantha executed and promised to pay, according to the terms thereof, a Modification Agreement payable to Security Bank in the original principal amount of $638,199.79 ("$850,000 Modification Agreement") which modified the $850,000 Extension and the $850,000 Note. At the time the $850,000 Modification Agreement was executed, Samantha ratified that the indebtedness the subject of the Modification Agreement was a first and prior lien encumbrance on the property. (See Affidavit of Michael Haikin and Exhibit No. 8) r2.7 Pursuant to the terms of the $850,000 Extension and $850,000 Modification Agreement, the $850,000 Note matured on August 15, 1990. (See Exhibits 7 and 8) 2.8 Security Bank wasclosed on February 16,1989 and its assetswere taken over by the Federal Deposit Insurance Corporation ("FDIC"). Dosohs purchased the $850,000 aaa) • • J** /w$') *35 r note, the Extension, Modification Agreement, and the related Deeds of Trust from the FDIC on May 28, 1996, and it is the owner and holder of the $850,000 note indebtedness and related liens. (See Affidavit of Matt Molak, Exhibit Nos. 11 and 12) 2.9 Samantha filed a voluntary Chapter 11 petition on July 28, 1995. /The bankruptcy was subsequently converted to a Chapter 7 riling on October 25, 1995 and Sommers was appointed as the Chapter 7 Trustee. The FDIC filed a Proof of Claim on December 11,1995 and the claim was transferred to Dosohs on June 28,1996. * 2.10 The amount owmg asof Jtiiy2o\ 1995 on toe $o^^ / JJL DOSOHS IS ENTITLE!) TO SUMMARY JUDGMENT AS A MATTER OF LAW STANDARD OF REVIEW 3.1 Summary judgment is proper as the Movant demonstrates that there is an absence of genuine issues of material fact See Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 247 (1986). The substantive issues will identify which facts are material Jd, at 248. Such a showing entities the movant to summary judgmentas a matter of law. Fed. R. Civ. P. 56(c). The Movant accomplishes this by informing the Court of the basis for its Motion and by identifying portions of the record which reveal that there are no genuine issues of genuine material fact issues. Ducket v. City of Cedar Parir, Tct»S[ 950 F.2d 272 (5th Cir. 1992). 3.2 Once the party moving for summary judgment produces evidence that there is no genuine material fact issue, non-movantmust then direct Court's attention to evidence in record sufficient to establish that there is a genuine issue of material fact for trial; that — 36 — h 1.2 .. The following exhibits: Exhibit 1 - January 30, 1984 Promissory Note payable to the order of Security Bank in the amount of $1,100,000 executed by Josie Haikin as President of Samantha Corporation, Inc. Exhibit 2 - January 30, 1984 Deed of Trust executed by Josie Haikin as President of Samantha Corporation, Inc. * Exhibit 3 - July 26,1984 Promissory Note payable to the order of Security Bank in the amount of $850,000 executed by Josie Haikin as President of Samantha Corporation, Inc. endorsed to Dosohs Exhibit 4 • July 26,1984Deed ofTrust securingthe $850,000 Note executed by Josie Haikin as President of Samantha Corporation, Inc. Exhibit 5 - July 26,1984Deed ofTrust securingthe $550,000 Note executed by Josie Haikin as President of Samantha Corporation, Inc. Exhibit 6 - U.S. Life Title Co. of Houston Borrower's Statement dated August 15,1985, executed by Michael Haikin and Josie Haikin Exhibit7- August 15, 1985 Extension, Renewal and Modification. Agreement executed by Josie Haikin as President of Samantha Corporation, Inc. Exhibits- February 15,1987 ModificatioTi Agreementexecutedby Michael Haikin as Vice-President of Samantha Corporation, Inc. L Exhibit 9 - Stock Purchase Agreement dated July 5,1990 3 Exhibit 10 - January 7, 1994 Amended listing of creditors in Chapter 7, bankruptcy of Michael and Josie Haikm Exhibit 11 - Transfer of Lien from the FDIC to Dosohs I, Ltd. Exhibit 12 - Bill of Sale (Loan Sale No. 96CM02) from the FDIC to Dosohs LLtd. Exhibit 13 - Payment history Llotta - ca b by Mr. FMme 62 1 up installing equipment, Pat's Maintenance Service. 2 Q But you personally weren't involved with it; one of your 3 companies was? 4 A one of my dealers, right. 5 Q Right. A And I had one of my employees - In fact, my stepson was employed with Pat's putting in the equipment. 8 Q And the first time you became connected, or when you did 9 get -- became connected with the car wash and did the 10 analysis, it was with Mr. Kaminetzky. 11 A No, sir, it was with a combination of Samantha Corpora 12 tion, Mike Haikin and Mr. Kaminetzky. 13 Q Right. 14 A They both retained my services as a independent to 15 evaluate the car wash and to find out and verify that what Mr. 16 Haikin said was built there on the construction contractor, 17 whatever, were in fact there. 18 Q And your opinion of the value of the car w*sh is what, 19 $600,000? 20 A of the construction that's there? 21 Q No, the property a6 an operating car wash. 22 A Today, tomorrow, yesterday, when? 23 Q Today. 24 A Back when they were talking it was in the million dollar 25 range. Today I would say it's in the same range JUDICIAL TRANSCRIBERS OF TEXAS, INC. F« <713> 462-3042 • Office (713) 462-6434 — 38 — Liotta - o ts by Mr. Flume 63 r 3 Q It's in the million dollar range? So that'd be the value of the property? A well, again I'm talking about the whole thing and the 4 operating business -- 5 Q That's what I'm talking about. 6 A --and everything. The property itself, I'm not a real 7 estate appraiser so I'm not qualified to appraise the real 8 estate. 9 MR. PLUME* I have no further questions, Your Honor. 10 THE COURT: Any further examination? 11 MR. WHALEN* Nothing further, Your Honor. 12 THE COURT. All right. You may step down, sir. 13 I believe that's your final witness, Mr. 14 Whalen. Do you rest? 15 MR. WHALEN* That's correct, Your Honor, we rest. 16 THE COtJRT, All right. All the evidence is now 17 closed. 18 Is there anything else, gentlemen? 19 MR. FLUME: Do you wish argument, Your Honor? 20 THE COURT.- How much time do you wish to reserve for 21 argument? 22 MR. plumb.- I think it'll take just about ten -- no 23 more than ten minutes, if even that. 24 THE COURT* Mr. whalen? 25 MR. WHALBW.. Yes. sir. Ten to 15 minutes, Your . JUDICIAL TRANSCRIBERS OFTEXAS, INC F«(713) 462*3042 • Office (713) 462-6434 — 39 — 1 IN THE UNITED STATES BANKRUPTCY COURT 2 FOR THE SOUTHERN DISTRICT OF TEXAS 3 HOUSTON DIVISION 4 DOSOHS I LTD. CASE NO. 96-4671-Hl-ADV 5 VERSUS HOUSTON, TEXAS 6 JUNE 16, 1997 9s24 O'CLOCK A.M TO 7 SAMANTHA CORPORATION INC. 3s50 O'CLOCK P.M. 8 PARTIAL TRANSCRIPT - TRIAL / AFTERNOON SESSION EXCLUDING RULING 9 10 BEFORE THE HON. MANUEL D. LEAL, UNITED STATES BANKRUPTCY JUDGE 11 APPEARANCES: 12 For the Plaintiff: MICHAEL FLUME 13 One Oak Park, Ste. 200 1020 N.E. Loop 410 14 San Antonio, Texas 78209-1212 15 For the Debtor Defendant MICHAEL C. WHALEN and Trustee: 2901 Wilcrest Dr., ste. 105 16 Houston, Texas 77042 17 Court Recorder: Diane Justice 18 19 20 PREPARED BY: 21 JUDICIAL TRANSCRIBERS OF TEXAS, INC. 7035 West Tidwell 22 Building J, Suite 109 Houston, Texas 77092 23 (713) 462-6434 24 Proceedings recorded by electronic sound recording, transcript 25 produced by transcription service. JUDICIAL TRANSCRIBERS OF TEXAS, INC. Fa* (713) 462-3042 • Office (7)3) 4<>2-<>434 — 40 — 1 INDEX 2 3 WITNESSES 4 DOV KAMINETZKY 5 by Mr. Whalen . 1 49 6 by Mr. Flume 30 51 7 RICHARD LIOTTA 8 by Mr. Whalen 53 9 by Mr. Flume 61 10 11 12 EXHIBITS Marked/Of feral Received 13 Defendant 1 8 8 14 2 10 10 3 17 20 15 3-4 20 20 16 Plaintiff :21 33 33 17 • 22 37 37 18 19 20 ARGUMENT P acre 21 Closing argument by Plaintiff 64 Closing argument by Debtor 70 22 23 REBUTTAL none 24 RULING none 25 JUDICIAL TRANSCRIBERS OF TEXAS, INC. F«x (713) 462-3042 » Office (713) 462-6434 — 41 — CERTIFICATION 1 2 3 4 5 6 I certify that the foregoing is a correct 7 8 transcript from the electronic sound 9 10 recording of the proceedings in 11 the above-entitled matter. 12 13 14 15 16 17 18 19 <'&- Signature of Transcriber 20 21 SignaturexQf Proofreader 22 23 (o-^N-n )ate — 24 — 25 WW rrr# JUDICIAL TRANSCRIBERS OF TEXAS. INC. Fax (713) 462-3042 • Office (713) 462-6434 HHB9009:kgj/07-19- 1040.0138 THE STATE OF TEXAS S S STOCK PURCHASE AGREEMENT COUNTY OF HARRIS S THIS AGREEMENT is made between MICHAEL HAIKIN and wife, JOSEPHINE HAIKIN, as Sellers and the sole shareholders of all outstanding stock of Samantha Corporation, a Texas corporation, now called the Corporation, and DOV A. KAMINETZKY and HOWARD WEISS, as Buyers. Buyers desire to acquire all outstanding stock of the Corporation, the same being unencumbered and owned solely by Sellers. There are 1,000 shares of stock authorized, issued and outstanding, being of one class only, common capital stock of the Corporation, at $1.00 par value per share, hereinafter referred to as the Stock. Sellers agree to sell the Stock to Buyers, and Buyers agree to purchase the stock from Sellers, for the price and upon terms and conditions hereinafter set forth. _Now, therefore,, in consideration of the mutual promises one to the other as hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows: 1. At the Settlement Date, as hereinafter defined, Sellers shall sell, assign and transfer the Stock to Buyers, and Buyers shall purchase said Stock from Sellers pursuant to the terms and conditions hereinafter stated. 2. (a) The sales price for the Stock is $1,000.00 in cash due and payable by Buyers to Sellers at the Settlement Date. The further consideration is the payment and satisfaction by Buyers at the Settlement Date of that certain mortgage debt being administered by the Federal Deposit Insurance Corporation, now called the FDIC, being more particularly described in that certain Modification Agreement executed by Samantha Corporation with Security Bank dated February 15,1987, bearing File Number L157385 of the County Clerk of Harris County, Texas and Film Code in that office of XXX-XX-XXXX, hereafter called the Mortgage Debt, a copy thereof being hereto attached and made a part of this Agreement by reference. (b) Concurrently with the execution of this Stock Purchase Agreement, two other documents of even date are also executed, one entitled Earnest Money Contract, and the other is entitled Lease Agreement, all three documents constituting the Contract Documents, the unremedied breach of any one of them constituting a breach of all of them at the election of the party in performance of all of them. Reference is made to the Contract Documents for all purposes. (c) Referring to the foregoing paragraph (a), in the event the Mortgage Debt is not timely paid or if the Corporation and the guarantors of the Mortgage Debt are not timely released and discharged, then and in such event, at Sellers' election, this Agreement shall be of no further force or effect. 3. (a) Reference is made to that certain Lease executed by the Corporation as Landlord and Choice Acquisition No. 3, Inc., a Texas corporation, hereinafter called "CA 3" as Tenant, dated July 5, 1990, hereafter called "Subject Lease". All rental obligations •*. % * *» ¥£ttf — 43 — I v£HB9009:kgj/07-19-90/ /JO' \I040.0138 / and all other sums of money agreed to be paid by CA 3 and the Buyers, as guarantors, as further shown in the Guaranty attached thereto, and with respect to the payment and performance of Subject Lease, shall be timely paid and performed by CA 3 and Buyers, now called "Obligors". In the event of any unremedied default of Subject Lease by Obligors, they having joint and several liability for the payment and performance of paid Contract Documents, including Subject Lease, then and in such event, such default if unremedied in timely manner, shall constitute a default hereof and of the' Contract Documents, by the Obligors at Sellers' election, and thereupon Sellers shall have no further obligation hereunder to sell, assign and transfer the Stock; provided, however, notwithstanding any provision in this Agreement hereby executed, the Obligors shall remain jointly and severally liable for payment and performance of their obligations pursuant to the Contract Documents, including those as set forth in Subject Lease. Obligors have the right to remedy a default to the extent as provided in Subject Lease. (b) Reference is also made to that certain Earnest Money Contract executed by the Corporation as Seller and Buyers and CAS as Purchaser, dated July 5, f 1990 with reference to the property therein described, being a Contract Document, I Breach thereof by Purchaser shall constitute a breach of the Agreement hereby executed f and all other Contract Documents at Sellers election. Under the terms of the Earnest I Money Contract, Purchaser has agreed to pay $1,270,000.00 for the purchase of the- I property therein described, subject to its provisions. Purchaser shall be entitled to credit I thereon to the extent of funds advanced or paid by it as follows: (1) rentals paid to I Landlord pursuant to Subject Lease, (2) repairs per Exhibit "A" hereto attached, totaling** $21,203.00 and Exhibit "B", totaling $44,372.00 and (S) commissions totaling $58,250.00, but in no event to exceed $210,000.00 as applied to the sales price for the propertyonly; provided, Obligors shall not be entitled to or have any claim, for such funds (other than credit on said Sales Price upon consummation of such sale); provided, further, notwithstanding any provisions in the Earnest Money Contract or other Contract Documents, or with respect to that hereinabove set forth, the Obligors (Buyers and CA3) jointly and severally, agree to pay $330,000.00 to Sellers, Michael Haikin and Josephine Haikin, or Samantha Corporation as hereinafter provided, referred to as the Haikin/Samantha Receivable totaling $330,000.00 plus interest and other charges as provided in the Contract Documents, including the obligation to pay and perform Subject Lease. (c) The Corporation is indebted to Sellers in the approximate amount of $1,040,000.00 and upon sale of said stock to Buyers, said indebtednesses are to be cancelled upon payment of the Haikin/Samantha Receivable, as follows: (1) Two Promissory Notes, one called Note 2(c) and the other called Note 2(d) in the Earnest Money Contract of even date, being one of the Contract Documents; and (2) Obligors' execution of a Promissory Note payable to Sellers' order, in the principal amount of $105,000.00 bearing interest at 9% per annum, due and payable in successive monthly installments commencing one month from payment of Note 2(d) Date at $3,750.00 each, payments made applying first to interest accrued and the balance to principal, to mature in the entirety, the balance of such Note being due and payable 32 months from date of payment of Note 2(d), to be secured by a Deed ofTrust and Security Agreement for the real and personal property of, and known as the Johanna Square Project comprised of 38 apartment units, at Wirt and Long Point in Houston, Texas, the real property being described as follows: Lot 7 in Block 8 of HILLENDAHL ACRES, an Addition in Harris County, Texas, according to the map thereof recorded in Volume 18 at Page 17 of the Map Records of Harris County, Texas, together with all improvements situated thereon and related thereto; -2- Molak - cross by Mr. Whalen 49. 1 you ever seen a copy of a deed — ' 2 A I've seen a copy of a deed — 3 Q -- from Samantha Corporation conveying this property? 4 A I can't recall. I'm sure we ordered a title run and have 5 looked at numerous documents. And you can see this is just a 6 partial list of recorded documents that affect that property 7 and I might have seen a deed. I can't really recall. 8 (Pause - Attorneys conferring) . 9 Q Were you aware that the FDIC was aware of the conveyance 10 from Samantha to Choice Acquisitions No. 4, Inc.? 11 A Was I aware that the — 12 Q Uh-huh. 13 A — that were was some kind of conveyance made subject to 14 our lien on the property? I — 15 Q No -- 16 A --I'd have to -- 17 THE COURT: No. No, he asked you, were you aware -- 18 was FDI -- were you aware that FDIC was aware of it. If I 19 understand what you're saying. , 20 THE WITNESS: Was I aware that the FDIC -- 21 MR. WHALEN: That's correct, Your Honor. 22 THE WITNESS: — was aware? I can't recall. I 23 couldn't say. 24 BY MR. WHALEN: 25 Q In all the documentation that the FDIC gave to — or JUDICIAL TRANSCRIBERS OFTEXAS, INC. gWtfl ^ F«(713)462-3042 • Office(713)462-6434 ^*WF» * — 45 — Molak - crot- by Mr. Whalen 50. 1 transferred to Dosohs as part of the acquisition of the 2 Samantha note to Security Bank, did the FDIC include any 3 documentation to show that there had been such a conveyance? 4 A Like I say, I don't recall seeing anything, or what it 5 would matter. 6 Q What did the FDIC give you in the way of documentation -- 7 give to Dosohs? 8 A Oh, there's -- from the bank files. There's credit 9 files, financial statements, appraisals, original loan docu 10 ments, security documents, and all the associated renewals, 11 modifications, internal bank memos, bank correspondence. 12 FDIC, same thing. Whatever type of internal correspondence or other reports that they had ordered follow ing the closing of the bank. Q Well, would it be fair to say that the FDIC gave you all the paperwork they had dealing with this situation -- with , this transaction? A I would say so. All that they knew they had. Something might have been overlooked. , MR. WHALEN: Excuse me, Your Honor. Do I have some time left? THE COURT: You have 21 minutes left, sir. MR. WHALEN: 20 minutes. (Pause - Attorneys conferring) Q Mr. Molak, do you have any personal knowledge of any of JUDICIAL TRANSCRIBERS OF TEXAS, INC. Fax (715) 462-3042 • Office (713) 462-6434 — 46 — Molak - cro. . by Mr. Whalen 46, 1 tion or extension agreement, other than this Exhibit #11? 2 A No. I'm not. 3 Q Then would it be your testimony that based on the docu 4 ments that Dosohs possesses that the maturity date of this 5 indebtedness, which it's claimed that Samantha owed to 6 Security Bank, that the date of that -- the maturity date of 7 that indebtedness was August 15th, 1990? Is that correct? 8 A Yes. 9 Q Now, Mr. Molak, you testified that Dosohs Limited, the 10 adversary Plaintiff, had earlier at some point filed a motion a 11 to lift the stay in the bankruptcy proceeding of Samantha; is 12 that correct? 13 A That's correct. 14 Q What happened to that — what was the progress of that 15 motion? 16 A The progress of the motion. Well, the stay -- 17 Q Or what happened to it? 18 A — was not granted. That's why we're here. 19 Q Pardon? , 20 A They stay was not granted and that's why we're here. An 21 adversary was filed instead. 22 Q Well, isn't it a fact that Dosohs voluntarily withdrew 23 that motion to lift the stay? 24 A Certainly. 'Cause there were some questions that needed 25 to be answered, and that's why we're here. JUDICIAL TRANSCRIBERS OF TEXAS. INC. f Fax (713) 462-3042 • Office (713) 462-6434 — 47 — Molak - re* ss by Mr. Whalen 55, Haikin - direct by Mr. Flume 1 A Not of my own personal knowledge, no. 2 Q Mr. Molak, do you know when the adversary action this 3 adversary action that we're here about, do you know when that 4 was filed? A Well, it was sometime last fall if I recall cor -- I can't remember. Or last summer. Q Well, of course, it's in the file, and we can check it, 8 but if the filestamp on the pleading says September 25th,. 9 1996, would you have any reason to doubt that? 10 A No, I wouldn't. m 11 MR. WHALEN: I'll pass the Witness for right now, 12 Your Honor. 13 THE COURT: Anything on that one single point, sir? 14 MR. FLUME: No further questions. Your Honor. 15 THE COURT: You may step down. 16 THE WITNESS: Thank you. 17 THE COURT: Who is your next witness, sir? 18 MR. FLUME: Michael Haikin. 19 THE COURT: Okay. , 20 (The Witness is sworn) 21 DIRECT EXAMINATION OF MICHAEL HAIKIN 22 BY MR. FLUME: 23 Q Can you please state your name and spell your last name 24 for the record? 25 A My name is Michael Haikin, H-A-I-K-I-N. JUDICIAL TRANSCRIBERS OF TEXAS, INC. Fax (713) 462-3042 • Office (713) 462-6434 — 48 — Haikin - cross by Mr. Whalen 89. — 49 — Haikin - cross by Mr. Whalen 90. — 50 — CERTIFICATION 1 2 3 4 5 6 I certify that the foregoing is a correct 7 8 transcript from the electronic sound 9 10 recording of the proceedings in 11 the above-entitled matter. 12 13 14 15 16 17 18 19 20 Signature « ft Transcriber () 21 U^y Signature of Proofreader 22 23 rate 24 25 /</&/ JTT# JUDICIAL TRANSCRIBERS OF TEXAS, INC. Fax (713) 462-3042 • Office (713) 462-6434 14-14-00410-CV DOVK.AVNI. Petitioner, v. DOSOHS LLTP Respondent. EXHIBIT 0}L TO APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF 14-14-00410-CV Petitioner, v. wm*mi \M Respondent. EXHIBIT M_ TO APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 103 — t it • PA No. 97-40590 1^ 1 , CHOICE CAR WASH, INC., • IN THE DISTRICT COURT**6** cg*^* D AND BUSINESS OWNERSHIP AND • LIABILITIES TAKEOVER • * • u 1998 CORPORATION * By ***** Q> VS. * 11TH JUDICIAL DISTRICT i^^ DOSOHS LLTD. * HARRIS COUNTY, TEXAS ^,C_ MOTION TO STRIKE THE INTERVENTION OF DOV AVNI KAMINETZKY. PRO SE TO THE HONORABLE JUDGE OF SAID COURT: NOW COME DOSOHS I, LTD., and files this Motion to Strike Intervention of Dov Avni Kaminetzky, Pro Se, Plaintiff and would show the court the following: L FACTS 1.0 On August 4, 1997, Choice Car Wash, Inc., and Business Ownership and Liabilities Takeover Corporation, ("Choice Car Wash and Business Ownership") filed a lawsuit in this case claiming to be the most recent owner of real property at issue. 1.1 On September 2, 1997, Choice Car Wash and Business Ownership filed Plaintiffs' First Amended Petition for Damages and for Declaratory Judgment, Application for Temporary Restraining Order, and Application for Temporary orPermanent Injunction. 1.2 On August 26,1997, Defendant, Dosohs 1 Ltd., ("Dosohs") filed its Original Answer. 1.3 On September 4, 1997, the Plaintiffs, Choice Car Wash and Business Ownership filed Plaintiffs' Motion for Summary Judgment 1.4 On September 19,1997, Defendant, Dosohs filed its First Amended Original Answer. ^OTODERS MEMORANDUM ._ ^wOe time ofimaging — 104 — 1.5 On September 22, 1997, Dosohs filed its Response to Motion for Partial Summary Judgment 1.6 On December 8, 1997, Plaintiffs, Choice Car Wash and Business Ownership filed Plaintiffs' Second Amended Petition in Trespass to Try Title, for Damages and/or Declaratory Judgment 1.7 On January 12, 1998, Plaintiffs, Choice Car Wash and Business Ownership filed Plaintiffs' Third Amended Petition Seeking a Declaratory Judgment, Bringing Action in Trespass to Try Title, and Seeking Damages from Defendant This Petition was joined by Dov Avni Kaminetzky, ("Kaminetzky") Pro Se, as a Plaintiff against Dosohs. 1.8 On January 20, 1998, Plaintiffs, Choice Car Wash, Business Ownership and Kaminetzky filed Plaintiffs' Fourth Amended Petition, Seeking a Declaratory Judgment, Bringing Action in Trespass to Try Title, Seeking Damages from Defendant, Making Application for a Temporary Restraining Order, and Making Application for a Permanent or Temporary Injunction. n. DOSOHS I. LTD.. REQUESTS THE COURT STRIKE THE INTERVENTION 2.0 Kaminetzky, in the Third Amended Petition, refers to himself as a Plaintiff in this case, however, does not file the formal Plea in Intervention. The pleadings on file do not establish that Kaminetzky has a judicial interest in the matters in controversy in this litigation. Furthermore, Kaminetzky has not established that his intervention will not unduly complicate the existing litigation by multiplication of issues. 2.1 Dosohs would further show the court that on December 10,1997, Kaminetzky filed an Adversary Proceeding in the United States Bankruptcy Court for the Southern District of Texas, Houston Division, Adversary No. 97-4813, titled Adversary Proceedings 2 *105 by Debtor-In-Possession to Avoid an Unlawful Foreclosure Sale and Time Barred Debts and Liens, to Recover Property and Money of the Bankruptcy Estate, and for Injunctive ReUef and Declaratory Judgments. 2.2 The issues raised by Kaminetzky in his Adversary Proceeding filed in the Bankruptcy Court are the same or similar issues raised in the Plaintiffs Third Amended Petition filed herein. To allow Kaminetzky to intervene in this proceeding would involve multiplicity of issues. 2.3 Dosohs therefore request that the court strike the intervention of Kaminetzky. WHEREFORE, PREMISES CONSIDERED, Dosohs hereby requests that the parties take notice of this motion, that on hearing of the court grant this Motion to Strike the Intervention, make such other and further relief and orders as may be just and equitable. Respectfully submitted, MUNN& FLUME One Oak Park, Suite 200 1020 N.E. Loop 410 San Antonio, Texas 78209 (210) 828-5641 (210) 821-6069 Facsimile MICHAEL FLUME State Bar No. 07188480 ATTORNEYS FOR DOSOHS L LTD — 106 — CERTIFICATE OF CONFERENCE The Defendant confered in good faith with the Plaintiffs, Choice Car Wash, Inc. and Business Ownership and Liabilities Takeover Corporation's, attorney Michael Whalen, via telephone conversation, and were unable to reach an agreement concerning the attached motion. The Defendant attempted to confer with Plaintiff, Dov Avni Kaminetzky, via telephone, however we were unable to reach him. MICHAEL FLUME NOTICE OF HEARING It is hereby ORDERED by the Court that a hearing be held on the foregoing Motion to Strike on ihe 2nd day of April 1998, at 8:00 a.m., in the 11th Judicial District, Harris County, Houston, Texas. HONORABLE MARK DAVIDSON CERTIFICATE OF SERVICE I hereby certify on this _^f day of March, 1998, that a true and correct copy of Motion to Strike the Intervention of Dov Avni Kaminetzky, Pro Se has been sent via certified mail to the following: Michael C. Whalen 2901 Wilcrest, Suite 105 Houston, Texas 77042 Dov Avni Kaminetzky, Pro Se 1609 South Kirkwood, #B Houston, Texas 77077-3158 MICHAEL FLUME notiQa.4\ridk6-<Bia\3-w8tad 14-14-00410-CV $m K;--/jgNl Petitioner, v. BlillgUffi Respondent EXHIBIT Id TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF r\ r\ & NO. 97-40590 CHOICE CAR WASH, INC. AND IN THE DISTRICT COURT OF BUSINESS AND OWNERSHIP LIABILITIES TAKEOVER CORPORATION (DEL.),INC. Plaintiffs, VS. HARRIS COUNTY,T E X A S DOSOHS I, LTD. Defendant. 11TH JUDICIAL DISTRICT VERIFIED RESPONSE IN OBJECTION OF JOINT PLAINTIFF ^ DOV AVNI KAMINETZKY.PRO SE LITIGANT.TO THE IMPROPER *%. J MOTIONS OF DOSOHS I.LTD FOR ABATEMENT OF THIS ACTION vj, V\ ^ :... ^ AND STRIKING HIS "INTERVENTION".AND IN THB ALTERNATIVE.^ft^* *£ \£\ S^ HIS MOTION FOR CONTINUANCE OF THE ORAL HEARING SET °^C, ''•'•\^V TO APRIL 2.1998.WITHOUT CONFERENCE OR PROPER NOTICE. <3&&g\ *£> "'* rO TO THE HONORABLE DISTRICT JUDGE MARK DAVIDSON: ^Jj&-^. V- VJ- COMES NOW Joint Plaintiff Dov Avni Kaminetzky, a pro-litigant who was joined in these proceedings on 1/12/1998 ,pursuant to Rule 39,Tx.Rules.Civ.Proc. ["Kaminetzky"], and files this his verified responses in objection to the improper motions of defendant Dosohs I,Ltd.["Dosohs"] for abatement of this action and for the striking of his alleged "intervention" in thius case,and in the alternative his motion for continuance of the oral hearing, improperly set by Dosohs to April 2,1998 @8.00 A.M.,and in support thereof will show this honorable court the following: I. RELEVANT FACTS 1.1 On February 16,1989 the Federal Deposit Insurance Corporation took over the assets of the failed Security Bank of Houston, Texas ["Security"] which provided financing to Samantha Corporation, Inc. for the construction and operation of a full service automatic car wash,located in southwest Houston and known as "Softouch Car Wash". ["Softouch"]. 1.2. The said initial construction financing was later extended and converted by Security Bank into three promissory notes, which RECORDER'S MEMORANDUM -1- This inslrumsnt isof poor quality at the time of imaging 1C)R — 109 — were all in default, upon which the FDIC attempted to foreclose . 1.3. On January 7,1994 Samantha sold all its title,interests and rights in and to the " Softouch Car Wash" property to Kaminetzky as Trustee, and to Choice Acquisitions No. Four, Inc. of Houston Texas ["CA-4", a Texas corporation which he founded and owned ]. 1.4. The transaction was documented by a Special Warranty Deed , filed for record on May 9.1994 in the office of the Harris County Clerk under File No.P849765,as later corrected, a true and correct copy thereof is incorporated herein by reference as Exhibit " A " for all purposes,as if set forth at length,and should be judicially noticed by this court,pursuant to TRCE 201(d). 1.5. On July 28, 1995, over six years and five monthes after the takeover of the failed "Security" and the three defaulted Samantha notes owned by it, Samantha filed for a voluntary bankruptcy under Case #95-45547-Hl-ll in the Southern District of Texas [ Houston ]. 1.6. On July 16,1997 the honorable bankruptcy judge Manuel D. Leal terminated the automatic stay with respect to Samantha's pecuniary interest in the "Softouch Car Wash" property,effectively abandoning any claims of the estate to that property and notes secured by it. A true and correct copy of judge Leal's order, entered on 7/16/1997 in Case No. 95-45547-*Hl-ll is incorporated herein by reference as Exhibit "B " for all purposes,as if set forth at length, and should be judicially noticed by this court/pursuant to TRCE 201(d). 1.7. By two special warranty deeds,dated July 16 and August 1,1997 corporate plaintiffs Choice Car Wash, Inc. ["CCW"] and Business and Ownership Liabilities Takeover Corporation,Inc.["B.O.L.T"} acquired the "Softouch Car Wash" from Kaminetzky and corporate successors to "CA-4". The deeds were recorded in the office of the Harris County -2-*110 Clerk under Files No. S548428 and S575264. True and correct copies of these two deeds are incorporated herein by reference as Exhibits "C" and "D" respectively,for all purposes,as if set forth at length and should be judicially noticed,pursuant to TRCE 201(d). 1.8. After Dosohs has served Kaminetzky with a defective notice of intent to conduct non judicial foreclosure sale of the " Softouch " property pursuant to rights it allegedly acquired on July 12, 1996 from the FDIC as receiver for the failed Security Bank-Houston,the two corporate plaintiffs filed on August 4.1997 this suit against Dosohs,in attempt to enjoin the foreclosure sale, set for 8/5/1997. Additionaly,By a Lis Pendens instrument filed on August 29,1997 in the office of the Harris County Clerk under File S615275,corporate Plaintiffs "CCW" and nB.0.L.T.",gave public notice of the pendency of this lawsuit,filed under Case No.97-40590 in this Court.True and correct copies of this Lis Pendens deeds is incorporated herein by reference as Exhibit "E" for all purposes,as if set forth at length and should be judicially noticed, pursuant to TRCE 201(d). 1.9. After Kaminetzky elected to exercise two repurchase options he owned with respect to "Softouch", pursuant to Exhibits "A" and "D" incorpoated herein by reference, by two warranty deeds, dated September 2,1997 corporate plaintiffs "CCW" and "B.O.L.T" conveyed to Kaminetzky a total of 19.00% undivided interest in the"Softouch" property and in all business activities thereon conducted.The deeds were recorded in the office of the Harris County Clerk under Files No. S and S620270.True and correct copies of these warranty deeds are incorporated herein by reference as Exhibits "F" and "G" respectively,for all purposes,as if set forth at length and should be judicially noticed by this court, pursuant to TRCE 201(d). -3-*111 1.10. Later on September 2,1997 Dosohs claims to have conducted a non-judicial foreclosure sale of the "Softouch Car Wash" property, 19% of which was owned by Kaminetzky. 1.11. Minutes before this foreclosure sale,after the representative of Dosohs sneaked from a TRO hearing,held by the hon.Kathleen Stone as the ancilliary judge of the Harris County District Courts,at the request of corporate plaintiffs "CCW" and "B.O.L.T." and proceeded to the Family Court building, in order to non-judicially foreclose upon the "Softouch" property,Kaminetzky who became privy to Dosohs plans filed his own personal bankruptcy under Case 97-49007-H1-11, now pending in U.S.Bankruptcy judge Manuel D.Leal's court,thereby staying and voiding this alleged non-judicial foreclosure sale. A true and correct copy of Kamiinetzky's original bankruptcy petition is incorporated herein by reference as Exhibit "H" for all purposes and should be judicially noticed,pursuant to TRCE 201(d). 1.12. On December 10,1997 Kaminetzky,acting as debtor in possession filed an adversary action against Dosohs I,Ltd,Dosohs Inc. and Matt N.Molak in the United States Bankruptcy Court,under Case No,97-4813 now pending in that court. True and correct copies of Kaminetzky's original petition and the three "Dosohs Defendants" response thereo are incorporated by reference as Exhibits "I"and "J" respectively, for all purposes,as if set forth at length and should be judicially noticed by this court, pursuant to TRCE 201(d). 1.13. On January 12,1998 Corporate plaintiffs "CCW" and "B.O.L.T" joined Kaminetzky,INDIVIDUALY,as indispensible party plaintiff in this lawsuit,a fact unoppsed by Dosohs I,Ltd,until last week-WHEN EXTENSIVE PRE-TRIAL DISCOVERY BECAME DOB BY DOSOHS TO KAMINETZKY. 1.14. On or after 3/25/1998 Dosohs filed its motions and set them for an oral hearing on 4/2/98-WITHOUT CONFERRING WITH KAMINETZKY. -4- — 112 — II. KAMINETZKY'S OBJECTIONS TO DOSOHS' PLEA IN ABATEMENT 2.1. Dosohs never conferred with Kaminetzky prior to the filing of its plea and the setting of this hearing, violating both the local rules of the Harris County District Courts,and rules of this court. 2.2. Kaminetzky only received notice of this proposed hearing and of Dosohs' plea only on Monday afternoon,March 30,1998. Such short notice also in violation of the local rules of the Harris County District Courts,and the specific rules of this court. 2.3. DOSOHS' PLEA IN ABATEMENT IS UNVERIFIED, AND SHOULD NOT BE CONSIDERED BY THIS COURT. Neelv v.Intercity Mcnnt.Corp. 732 S.W.2d. 644,648 (Tex.App.-Corpus Christi,1987,1978 writ refused n.r.e.). 2.4. THE FAILURE OF DOSOHS TO VERIFY ITS PLEA PRECLUDED THIS COURT FROM SUSTAINING IT. Sparks v.Bolton 335 S.W.2d.780,785 (Tex.App.--1960,no writ). III. KAMINETZKY'S OBJECTIONS TO DOSOHS' MOTION TO STRIKE 3.1. Dosohs never conferred with Kaminetzky prior to the filing of Its motion and the setting of this hearing,violating both the local rules of the Harris County District Courts,and rules of this court. 3.2. Kaminetzky only received notice of this proposed hearing and of Dosohs' plea only on Monday afternoon,March 30,1998. Such short notice also in violation of the local rules of the Harris County District Courts,and the specific rules of this court. 3.3. Kaminetzky voluntarily withdrew his interventon by right in Adversary Case 96-4671,and judge Leal so ordered on April 18,1997. True and correct copy of judge Leal's order is incorporated herein by reference as Exhibit " K " for all purposes, as if set forth at length and should be judicially noticed, pursuant to TRCE 201(d). DOSOHS* COUNSEL IS MISREPRESENTING THIS MATERIAL FACT TO THIS COURT -5-*113 3.4. Adversary Case 97-4813 involves additional parties,bankruptcy specific claims,and other issues related to adverse possion of the "Softouch Car Wash" property prior to the 7/28/95 bankruptcy, and was filed in the United States Bankruptcy Court on 12/10/1997,over four (4) monthes after the filing of this case bt "CCW" and "BOLT". 3.5. Kaminetzky is not a Rule 60 intrevenor in this case. He is a properly joined plaintiff,pursuant to Rule 39, TX.Rules Civ.Proc. 3.6. Kaminetzky is an indispensibel party to this proceeding,and in his absence no complete relief can be obtained in this dispute. 3.7 DOSOHS' COUNSEL CONCEALED THESE MATERIAL FACTS FROM THIS COURT IN BAD FAITH AND SHOULD ACORDINGLY BE SANCTIONED BY THIS COURT. IV. RELIEF REQUESTED WHEREFORE,PREMISES CONSIDERED,joined plaintiff Kaminetzky prays that this honorable court grant him the following acts of relief: (1) Refuse to conduct this improperly noticed hearing. (2) Deny Dosohs' unverified plea in abatement,filed in bad faith. (3) Deny Dosohs' motion to strike his pleading,filed in bad faith, and in a clear attempt to avoid overdue discovery requests by Kantintezky and in the alternate, (4) Grant kaminetzky's motion for continuance,resetting this oral hearing to Monday,April 13,1998 at 8.00 O'clock ,A.M. Respectfully submitted, <JJ /W \lftlfu*JtytAj Dov Avni Kaminetzky,Plaintiff 1609 S.Kirkwood # A Houston,TX 77077-3158 Tel &Fax:(281) 493-6965 [Call first to fax] STATE OF TEXAS } } COUNTY OF HARRIS } On this day, Dov Avni Kaminetzky, the affiant herein appeared before me, the undersigned notary public, and after I administered an oath to him, upon his oath he acknowledged to me that he has filed this response in objection to Dosohs plea and Motion to strike,and all facts recited therein are true, correct; and personally known to him based on his interest in "Softouch". -6- — 114 — Further affiant sayeth not. J\j /SW IflUift Dov Avni KamirJertzky a/k/a Dov K. Avni Joint Plaintiff in Civil Action #97-40590 appearing herein pro-se "Affiant" 1609 South Kirkwood # A Houston,Texas 77077-3518 Tel &Fax :(281)493-6965 { Call first to fax } SUBSCRIBED AND. SWORN TO before me,the undersigned notary public on this the £?/*dav of March,1998. and for the Texas -7- — 115 — CERTIFICATE OF SERVICE I hereby certify that a true and .correct copy of the foregoing . Response was forwarded on this, the 3L—.days of March 1998 by a hand t^hfaithfy delivery, facsimile transmission, and/ or by First Class U.S. * Mail, to all parties or counsels of record, and to all other parties in interest in this matter, at their last known mailing address as it appears in the files of this court. Dov Avni Kamine Debtor -8- 14-14-00410-CV DOV K. AVNI. Petitioner, v. DOSOHS i, Ltq Respondent. EXHIBIT B TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 116 — P6 NO. 97-40590 CHOICE CAR WASH, INC., IN THE DISTRICT COURT BUSINESS AND OWNERSHIP LIABILITIES TAKEOVER CORPORATION, CO o and DOV AVNI KAMINETZKY, UJ < Plaintiffs; FOR HARRIS COy^u,^, fgXAS VS. DOSOHS I, LTD., Defendant. 11th JUDICIALlj^piST'gCCT CO c5 a"* CO HBSPOHSE OF PLAINTIFFS CHOICE CAR WASH. INC. . AND BUSINESS AND OWNERSHIP L1APTT.TTTWS TRKKfWlgt CORPORATION TO DEFENDANT'S MOTION TO STRIKE THE OF DOV AVNI KAJgDfflBTgKY. FRO SB TO THE HONORABLE UNITED STATES DISTRICT JUDGE: Plaintiffs CHOICE CAR WASH, INC., and BUSINESS AND OWNERSHIP LIABILITIES TAKEOVER CORPORATION ask leave of court to file this response to Defendant's Motion to Strike the Intervention of Dov Avni Kaminetzky, Pro Se, and would show the court as follows: 1. Plaintiff Dov Avni Kaminetzky did not join in this lawsuit by intervention, as alleged by Defendant, but joined in this lawsuit by appearing as a co-plaintiff in the Third Amended Petition previously filed herein by plaintiffs. Rule 65, Tex.R.Civ.Proc., states in part as follows: "Unless the substituted instrument shall be set aside on exceptions, the instrument for which it is substituted shall no longer be regarded as a part of the pleading in the record of the cause, * * * .". Accordingly, inasmuch as, all previously filed petitions were superseded by the Third Amended Petition, Dov Avni Kaminetzky properly made an appearance as a pro se plaintiff in the Third Amended Petition. SS^«6*W^ — 117 — Dov Avni Kaminetzky has been named as a pro se party plaintiff in all subsequent amendments of the petition of. plaintiffs. 2. Rule 40, Tex.R.Civ.Proc, states in part as follows: "(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. * * ". Plaintiff Dov Avni Kaminetzky owns an undivided interest in the property which is the subject of this lawsuit. (See the Verified Response in Objection of Joint Plaintiff Dov Avni Kaminetzky to Defendant's Motion, which Verified Response includes a copy of the deeds of conveyance to Kaminetzky, such Verified Response and exhibits thereto being incorporated herein by this reference.) Consequently, Kaminetzky is a necessary party to this lawsuit. WHEREFORE, premises considered, plaintiffs Choice Car Wash, Inc., and Business Ownership and Liabilities Takeover Corporation pray that Defendant's Motion to Strike the Inter vention of Dov Avni Kaminetzky, Pro Se, be denied, and pray further that the corporate plaintiffs have such other relief, both legal and equitable, to which they may be justly entitled. Michapr c: .* WLrv^ State Bar No. 21239000 2901 Wilcrest, Suite 105 Houston, Texas 77042 Tel: (713) 782-0065 Fax: (713) 782-7868 Attorney for Plaintiffs Choice Car Wash, Inc., and Business and Ownership Liabilities Takeover Corporation. -2-*118 .r~ The undersigned attorney of recorcL-for the corporate plaintiffs hereby certifies that on April_/4£_, 1998, a true copy of the foregoing document has been forwarded to the attorney of record for defendant, at the following address: Michael Flume Munn & Flume Attorneys at Law 1020 N.E. Loop 410, Suite 200 San Antonio, TX 78209 .' Telecopier: 210/821-6069 *I^$&k -3-*119 •> NO. 97-40590 CHOICE CAR WASH, INC., IN THE DISTRICT COURT BUSINESS AND OWNERSHIP LIABILITIES TAKEOVER CORPORATION, and DOV AVNI KAMINETZKY, Plaintiffs; FOR HARRIS COUNTY, TEXAS VS. DOSOHS I, LTD., Defendant < 11th JUDICIAL DISTRICT ORDER DENYING DEFENDANT'S FLEA IN ABATEMENT Came on for consideration Defendant's Plea in Abatement. The Court, after considering the evidence and the argument offered on behalf of the parties, is of the opinion that Defendant's Plea in Abatement should be denied. It is therefore ORDERED that Defendant's Plea in Abatement is denied. SIGNED on this day of April, 1998. Judge Presiding ENTRY REQUESTED AND APPROVED AS TO FORM BY: Michael C. Whalen, State Bar No. 21239000 2901 Wilcrest, Suite 105 Houston, Texas 77042 TEL: (713) 782-0065 FAX: (713) 782-7868 Attorney for Defendants Choice Car Wash, Inc., and Business and Ownership Liabilities Takeover Corporation atthettn»oHn«tW 14-14-00410-CV POVK.AVN1, Petitioner, v. DOSOHS I, Lflj Respondent. EXHIBIT Jj[_ TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 127 — ft p^ No. 97-40590 . ~""*Qe* «-CJ ^ CHOICE CAR WASH, INC., * IN THE DISTJRICT COlllS? /Llll'^V AND BUSINESS OWNERSHIP AND * 8y mrris Goanty, ft K'\u LIABlUnES TAKEOVER * ** ^jas CORPORATION * ^pu£" * VS. • 11TH JUDICIAL DISTRICT * DOSOHS L LTD. • HARRIS COUNTY, TEXAS MOTION FOR BIFURCATED TRIAL TO THE HONORABLE JUDGE OF SAID COURT: Now comes, DOSOHS L LTD. ("Dosohs"), Defendant in this action, and requests the court to Bifurcate the Trial of this action so that the determination, if necessary, of the amount of any exemplary damages may be held in a second phase of trial, and only after the court determines that there is a legal basis for an award of exemplary damages against Dosohs based on the findings of the jury in the first phase of trial. Dosohs further moves that all evidence of its financial condition or net worth, along with all other evidence relevant only to the amount of exemplary damages, be excluded for the first phase of trial Dosohs, is entitled to this relief as a matter of law pursuant to Texas Civil Practices and Remedies Code Sections 41.009 and 41.011 and the decision of the Texas Supreme Court in Transportation Inc. Co. v. Model. 879 S.W.2d 10, 29-30 (Tex.1994). WHEREFORE, PREMISES CONSIDERED Dosohs requests that the Court order a Bifurcated Trial of the amount of exemplary damages from the other issues in this case and make such other orders as the court deems fair and just RECORDER'S MEMORANDUM This instrument is of poor quality at the timeof imaging — 128 — Respectfully submitted, MUNN& FLUME One Oak Park, Suite 200 1020 N.E. Loop 410 San Antonio, Texas 78209 (210) 828-5641 (210) 821-6069 Facsimile MICHAEL FLUME State Bar No. 07188480 ATTORNEYS FOR DOSOHS L LTD. CERTIFICATE OF SERVICE I do hereby certify on this the//^dayof April, 1998, that atrue and correct copy of the foregoing document has been sentby certified mail and via facsimile to the following: Michael C. Whalen 2901 Wilcrest, Suite 105 Houston, Texas 77042 Dov Avni Kaminetzky, ProSe 1609 South Kirkwood, #B Houston, Texas 77077-3158 MICHAEL FLUME-' 14-14-00410-CV POV ft. AVNI Petitioner, v. 'K Respondent. 7< EXHIBIT /> TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 129 — NO. 97-40590 fll CHOICE CAR WASH, INC. AND IN THE DISTRICT COURT OF BUSINESS AND OWNERSHIP LIABILITIES TAKEOVER CORPORATION (DEL.),INC. and DOV AVNI KAMINETZKY,A PRO-SE LITIGANT. Plaintiffs, VS. HARRIS COUNTY^T EXAS g «% DOSOHS I, LTD. Defendant. 11TH JUDICIAL^DT^H&CCteA PLAINTIFF DOV AVNI KAMINETZKY'S VERIFIED ROLE 215 MOTION ' TO STRIKE DEFENDANT'S PT.g*nTWQ, EXCLUDE ITS WITNESSES AMD TRIAL EXHIBITS AND GRANT HIM MONETARY SANCTIONS. MaPpIM. gB%, Tem ALTERNATIVE.TO COMPEL RESPONSES TO DISCOVERY AND APPEARANCE tp',4Cfiy~ TO SCHEDULED ORAL DEPOSITIONS.NOW SET FOR 6/31/98BASa-fr A.M. -Q^ffi TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Dov Avni Kaminetzky,a pro-litigant joined here as plaintiff on 1/12/98,pursuant to Rule 39,TRCP ["Kaminetzky"], and file this his Verified Rule 215 [TRCP] Motion to Strike Defendant Dosohs I,Ltd.'s Pleading,Exclude its Witnesses and Trial Exhibits and to Grant him an Award of Monetary Sanctions for his unnecessary costs, ["Motion to Strike" ]and in the Alternative,Compel Responses of Defendant to his timely discovery requests and for appearance of Matt N.Molak,C.B.Guerra,and Ed B.Schultz, designated fact witnesses by Dosohs to their noticed and scheduled pre-trial oral depositions ["Motion to Compel"],and for an oral hearing on these motions to be conducted on Monday, August 31,1998,8.00 O'clock A.M.,in court, and in support thereof will respecfully show the court for as follows: I. RELEVANT FACTS 1.0. On May 21,1997 Defendant Dosohs' I,Ltd.["Dosohs"] designated its three trial witnesses for a scheduled bench trial of Adversary Case 96-4671,in which it had sued debtor,Samantha Corporation.Inc. ["Samantha"] in order to obtain declaratory judgment with respect to the alleged validity of a deed of trust lien it claimed to have acquired from an unspecified entity of FDIC. RETORDEffSMBMRANDUM -1- This Instrument is of poor qusffiy atthetimeofimagfrg — 130 — 1.1 A true and correct copy of this " Joint Witness and Exhibit Statement" is attached hereto as Exhibit "1" and incorporated here for all purposes,as if copied verbatim. 1.2. In addition to Michel Haikin and harry H.Brochstein, who had personal knowledge of facts,acts and.or events affecting Samantha between January 25,1984 and May 7,1990,Dosohs also designated Matt N.Molak ["Molak"] as its third trial witness,detailing its factual knoweldge in pages 3 and 4 of said Exhibit "1". 1.3. During the bench trial held on June 16,1997 in Case 96-4671, both Haikin and Molak gave false testimony with respect to material issues of fact,which persuaded U.S. Bankruptcy Judge M.Leal to make a number of erroneous findings of fact and conclusions of law in a so called "final judgment" he entered in that case on July 17,1997. 1.4. Also on July 14,1997 said judge Leal terminated immediately the automatic stay which affected the "Softouch Car Wash" property after its claimed reimposition on that property on August 29,1996, subsequent to a previous order entered by judge Leal in the matter. 1.5. Between July 14 and July 31,1997 the two corporate plaintiffs have purchased their interests in the now freed "Softouch" property from its prior corporate owners,and on August 4,1997 filed suit in this court against Dosohs I,Ltd.,under Case #97-40590.["the Suit"]. 1.6. On November 10,1997,after this plaintiff had acquired his own partial ownership of the "Softouch" property and filed for personal bankruptcy,Dosohs I,Ltd. moved to annul the automatic stay imposed on the property due to Kaminetzky's bankruptcy filing,and obtained a preliminary hearing thereon on December 15,1997. 1.7. During the December 15,1997 Dosohs counsel M.Flume examined Matt N. Molak,Dosohs* fact witness,and adduced from him materially different testimony than his prior trial testimony in Case 96-4671, -2- — 131 — given on June 16,1997. 1.8. Plaintiff cross-examined Molak under severee restrictions imposed by the hostile bankruptcy judge M.Leal (who has failed to recuse himself,despite evident bias, and preffered bank borrower relationship with Frost National Bank, Kaminetzky's adversary,and subsequent to an unwelcome determination by judge N.Atlas,finding Leal's "final judgment" ori July 17,1997 to be erroneous,non-final and unenforceable,on November 19,1997 in Appeal case H-97-CV-2871) and adduced additional acts of perjury and original false testimony by Molak. Judge Leal summarily ignored these false or contradictory statments by Molak,and annuled the automatic stay against"Softouch" on December 29,1997.Later judge Leal was reversed also by district judge John Rainey,who followed Judge Atlas in three other appeals, all arising from the same erroneous "final judgment" of 7/17/1997. 1.9. On January 12, 1998 Corporate plaintiffs "CCW" and "BOLT" joined Kaminetzky,as an indispensible party plaintiff in this suit, a fact which was unopposed by Dosohs until 3/25/1998,when it had to respond to his timely requests for discovery. 1.10. On March 7 &8,1998, Kaminetzky served Dosohs with his First Sets of Requests for Admissions of fact,Requests for Production of Documents and Interrogatories,which were due back on April 9,1998. [ hereinafter: " Kaminetzky* First Set of Discovery Requests"]. 1.11. On March 13,1998 ,Kaminetzky served Dosohs with his written deposition questions,pursuant to Rule 208(3) of the Tex.R.Civ.Proc. and requested therein that an authorized representative of Dosohs will respond thereto under oath on March 27,1998. 1.12. On March 13 614,1998,Kaminetzky served Dosohs with his Second Sets of Requests for Admissions of fact, Requests for Production of Documents and Interrogatories,which were due back on April 14,1998. -3- — 132 — [ hereinafter: " Kaminetzky' Second Set of Discovery Requests"]. 1.13. Dosohs never answered Kaminetzky*s questions,and did not move for any protective order or to quash the said deposition by written questions. Instead,it elected to move,on or after march 25,1998, to strike Kaminetzky's alleged"intervention" and to indefinitely abate this lawsuit.On April 8,1998 this Court denied Dosohs* motion. 1.14.On April 8,1998 Dosohs' designated representative,Matt N.Molak has failed to comply with the TRCP Rule 177 subpoena which was duly served upon him at his san Antonio residence, and did not appear to oral hearing,set upon Dosohs* own motion on their motions to strike Kaminetzky's "intervention" and to abate this lawsuit. M. Molak was comanded by the aforesaid subpoena to produce key documents, still unidentifed and unproduced by Dosohs, pursuant to a Subpoena Duces Tecum incorporated therein. Molak elected not to appear and testify in the April 8,1998 hearing,without moving for protective order, or for the quashing of the aforesaid subpoena. 1.14.On April 13,1998 Michael C.Whalen,counsel for plaintiffs "CCW" and " BOLT " was served with a copy of Dosohs1 evasive responses to Kaminetzky's First Set of Discovery Requests, which appeared not to have been mailed on April 9,1998, thus turning Dosohs* late,evasive responses to Kaminetzky*s First Request for Admissions of Fact into deemed admissions,disposing of all disputed material issues of fact, 1.15. Only on April 14,1998 did Plaintiff receive Dosohs* responses to his First Discovery Request,which included a verified response by Molak to his First Set of Interrogatories. 12 of the 30 answers of Molak were false,misleading or knowingly partial and selective. 1.16. On April 15,1998 Plaintiff was permitted,by a fax letter of M.Flume,to inspect the business records of Dosohs in San Antonio, and did so on Thursday afternoon,April 16,1998. -4- — 133 — 1.17. Despite the impossibly short time,hours before the pre-trial hearing set for April 17,1998,830AM in Houston,Kaminetzky,a veteran ex-Israeli military intelligence officer and surveillance engineer, suceeded in scanning and listing 1315 pages of Dosohs1 records,and ordered their copying by Dosohs,who had contracted for that purpose with Compex,a local legal documents copying service center. 1.18.The inspected Dosohs documents contained copies of certain key documents,related to the Samantha's loans with Security Bank, which were concealed by Dosohs, Flume,Molak and Hakin in Case 96-4671,and by Dosohs,Flume and Molak in Bankruptcy Case 97-49007-Hl-ll,both in Judge Leal'8 bankruptcy court. True and correct copies of documents which were concealed by the Dosohs "point men" are attached hereto as Exhibits "33" and "34". 1.19. On April 20,1998,after the jury trial of this case,originally set to that date,was passed by visiting judge L.Dugan,did plaintiff receive Dosohs' responses to his second set of discovery requests. 1.20. Dosohs Responses included its responses and objections to Kaminetzky's 2nd Set of Interrogatories ,attached hereto as Exhibit "2" and to his 2nd Set of Requests for Production, attached hereto as Exhibit "3",both incorporated herein for all purposes as if set forth at lenght. 1.21. Dosohs' "answers" to 29 of the 30 interrogatories included in Exhibit"2" hereto,"VERIFIED" BY M. MOLAK were identical,evasive and non responseive**boiler plate" responses,AND SHOULD BE STRICKEN BY THIS COURT AS AN APPROPRIATE RULE 215b TTRCPI SANCTION. 1.22. On June 1,1998 this court granted Plaintiff's First Motion to Compel,and ordered Molak and Dosohs to resopnd to Kaminezky's pending discovery requests by July 16,1998. 1.23. Between June 3 and 9,1998 Dosohs and M.Molak did partially respond to this court's order,and produced the Dosohs business •r5- — 134 — records,attached hereto as Exhibits "16" to"21","23"through"31". 1.24. On June 28,1998 Kaminetzky served Molak with a 1st Amended Notice of Oral Deposition and Subpoena Duces Tecum for Documents, attached hereto as Exhibit "4", and incorporated herein for all purposes as if set forth at length. 1.25. MOLAK APPEARED TO HIS DEPOSITION,BUT CONCEALED THE MATERIAL FACT THAT TOGETHER WITH HIS COUNSEL,C.B.GUERRA,THAT "COACHED" HIM EXTENSIVELY DURING THAT DEPOSITION, HE BAD JUST EXECUTED AND LATER FILED,IN AVOIDANfi OF THE SUBPOENA DUCES TECUM FOR DOCUMENTS,A NEW, SECOND CORRECTION DEED FOR THE PROPERTY,FALSELY ATTEMPTING TO CURE DEFECTS IN THE ORIGINAL AND FIRST CORRECTION DEED,THUS PRECLUDING AND AVOIDING BEING DEPOSED THEREON BY PLAINTIFF (!!) . A CERTIFIED COPY OF THIS KEY DOCUMENT,DISCOVERED BY PLAINTIFF ON AUGUST 12,IN PREPARATION TO MOLAR'S "SUPPLEMENTAL DEPOSITION OF RECEIVERSHIP" THAT WAS CONDUCTED. IN SAN ANTONIO ON AUGUST 13,1998 IS ATTACHED AS EXHIBIT "39" AND INCORPORATED FOR ALL PURPOSES AS IF COPIED HEREIN. 1.26 ON AUGUST 6,1998 DOSOHS, ACTING AGAIN BY AND THROUGH GUERRA, AND SAME MOLAK AS ITS "VERIFICATION AUTHORITY", *SUPPLEMENTED" THEIR RESPONSES TO KAMINETZKY'S DSCOVERY REQUESTS,CONTINUING TO CONCEAL A NUMBER OF MATERIAL DOCUMENTS. 1.27. ON AUGUST 18,1998 PLAINTIFF RECEIVED FROM COMPEX A DUPLICATE SET OF DOSOHS RECORDS,WHICH INCLUDED THREE NEW KEY DOCUMENTS ,AND WHICH EVIDENCED THE CONTINUED WITBOLDING OF NINE (9) OTHER PAGES OF RECORDS BY DOSOHS. TRUE AND CORECT COPIES OF THE RELATED DOCUMENTS ARE HERETO ATTACHED AS EXHIBITS "6" THROUGH "11". 1.28. IMMEDIATELY AFTER POINTING THE ATTENTION OF MS. GUERRA TO THIS MATERIAL CONCEALMENT OF DOCUMENTS AND THE CONTINUING EVASION OF SUPPLEMENTING MOLAR'S CONTRADICTORY STATEMENTS,SHE UNILATERALLY PREPARED MATERIAL CHANGES IN THE DEPOSITION TESTIMONIES OF MOLAK AND MILLER,EVIDENCED BY EXHIBITS "11"THROUGH"14",ATTACHED HERETO. -6- — 135 — II. PLAINTIFFS* RULE 215 MOTION FOR SANCTIONS AGAINST DOSOHS 2.0. Plaintiffs reallege and reincorporate by reference all facts stated in the preceding paragraphs 1.0 through 1.28,as if set forth at length. 2.1 The Supreme Court of Texas has alraedy ruled in similar cases, as follows: " If a party does not comply with a discovery request pursuant to Rule 167 and 168, the party may be prohibited from' introducing a requested document or evidence at trial". Schein v. American Rest. Group, Inc. 852 S.W. 2d. 496,497 (Tex.1993). Said ruling followed the prior holding by the Supreme Court in its "Alvarado" decision, regarding the automatic exclusion of such concealed and unproduced documents.Alvarado v. Farah Mfq*Co. 830 S.W.2d. 911,914(Tex.1992). In its "Schein" decision the Supreme court of Texas elaborated and said as follows: " The purpose of a sanction [Rule 215(2)(b)] that excludes evidence for failure to respond to a proper discovery request is to require complete responses of discovery in order to promote responsible assessment of settlement and avoid trial by ambush ". [ boldened for emphasis 1. Schein,Supra at 496,497. 2.2. The Supreme Court of Texas has already ruled in similar cases, as follows: ''Rule 215(1)(c) states that for purposes of Rule 215,an evasive or incomplete answer is to be treated as failure to answer" Able Supply Co. v. Move. 898 S.W.2d.766,771 (Tex.,1995) 2.3. Pursuant to Texas Rules of Civil Procedure 203(2) and 215(1) (b)(2a;2b;3a;3b;and 3c),Rule 215(2)(b)(3;4;and 5),Rule 215(3) and Rule 215(4), Plaintiff files this his Motion for Sanctions against Dosohs, and pray that this court grant them relief against Dosohs, for its repeated abuse of discovery-procedures, as follows: *136 (a) Find Dosohs's evasive and late answers to Kaminetzky's Second Set of Requests for Admissions, attached as Exhibit " 3 " to this motion,to constitute"deemed admissions" as to the factual issues inquired therein. (b) Find Dosohs' answers to Kaminetzky'8 Interrogatories 3 through 10 of his First Set to be false,as Dosohs'employees,its agents and attorneys have no personal knowledge of the facts inquired into in these eight interrogatories,and strike these answers. (c) Find Dosohs'answers to Kaminetzky's 2nd Set of Interrogatories to be evasive and/or false and strike these answers,attached as part of Exhibit "2" to this motion. (d) Find Dosohs* responses to Kaminetzky's request for listing identification and production of documents, as part of his First and Second Set of Discovery Requests, to be false, misleading and evasive,as it totally evades identification of specific documents identified in said request. (e) Strike Dosohs' witnesses and trial exhibits for its failure to respond faithfully to the two sets of interrogatories,requests for production of documents and requests for admission of fact (g) Enter a default Judgment against Dosohs as to liability. (h) Enter a declaratory judgment in favor of plaintiffs as to the title of the "Softouch Car Wash" property made the subject of this dispute. Xi) Order Doshos to pay the sum of One Thousand, Two Hundred and Fifty Dollars ( $ 1,250.00) as reimbursement of the attorney fees incurred by Plaintiffs "CCW" and "BOLT" in preparation of their previous motion to compel discovery by Dosohs. (1) Order Dosohs to pay the sum of Four Hundred and Ten Dollars ($410.00) for the needless expenses incurred by Kaminetzky. -8- — 137 — III. MOTION IN ALTERNATIVE TO COMPEL RESPONSES TO DISCOVERY BY DOSOHS 3.0. Plaintiff realleges and reincorporates by reference all facts stated in the preceding paragraphs 1.0 through 1.28,as if set forth at length. 3.1. In the alternative to,and without waiving the relief requested in the foregoing motion for entry of sanctions against Dosohs I,Ltd Plaintiffs file, pursuant to Rule 215(l)(d), this Motion to Compel Responses to Discovery Requests,and pray that this court order the Defendant and its designated representatives to identify,list and produce the requested documents,to respond to the written questions served upon them, and to supplement the vague and evasive answers and responses to the interrogatories, and requests for production of documents served upon them by Kaminetzky in June and AuguStl998. 3.2. Plaintiff further pray that this court orders Dosohs to respond to the requested order to compel, and physically deliver same to Plaintiffs,no later than Wednesday,September 2,1998, 2.00 P.M.,at the law office of Michael C. Whalen,and upon the failure to do so,all documents and responses Inquired into, and witnesses sught to be identified in Kaminetzky *s two sets of Requests for Discovery are to be automaticaly excluded, pursuant to Alvarado v. Farah Mfg. Co..Supra. 830 S.W.2d. 911,914 (Tex.,1992). > V. RELIEF REQUESTED WHEREFORE,PREMISES CONSIDERED,corporate plaintiffs "CCW","Bolt" and joint plaintiff Kaminetzky,appearing herein pro-Be,pray that this honorable court grant him the acts of relief prayed for above. Respectfully submitted, k . , tr » letzlsy' Dov Avni Kaminetzl Joint Plaintiff,Pro-se 1609 S. Kirkwood # A Houston,TX 77077-3158 Tel: (281) 493-6965 Fax: (713) 270-5505 -9- — 138 — wrvPTfg nv ireapTMft It is hereby ORDERED by the Court that a hearing be held on the foregoing Motions on the 31st day of August,1998 at 8.00 A.M.in the 11th Judicial District,Harris County,Texas,in person. PRESIDING JUDGE STATE OF TEXAS } } VERIFICATION COUNTY OF HARRIS } On this day appeared before me, the undersigned public notary, Dov Avni Kaminetzky a/k/a Dov K.Avni,who is personally known to me, and upon his oath stated to me that he is executive vice president of corporate plaintiffs "CCW" and "BOLT" and a joint plaintiff who is representing himself in Case No. 97-40590, currently pending in the 11th Judicial District of Harris County,Texas, and that he has personal knowledge of the proceedings conducted in that case and of all the discovery requests and the responses thereto by the parties and witnesses who have deposed and testified in this case, and that at all times material hereto he was the custodian of records and an executive corporate officer of the two corporate plaintiffs and of Samantha Corporation Inc., and as such he has personal knowledge of the acts and events referred to herein , and upon his oath further stated to me that all the facts recited in this pleading are true and correct,and that the attached copies of documents are true and correct replica of the original source documents in his custody. A?/ J0W' lAn/hA Dov Avni Kaminc a/k/a Dov K. Avni Joint Plaintiff in Civil Action #97-40590 appearing herein pro-se "Affiant" 1609 South Kirkwood # A Houston/Texas 77077-3518 Tel &Fax :(281)493-6965 { Call first to fax } -10- — 139 — SUBSCRIBED AND SWORN TQ before me,the undersigned notary public, by said Dov Avni Kaminetzky, on this the «<7 day of A|MP£|^1998. V* ,'*toS2»ii SHSa^reeOBJ^si Notary PutfLic in and f# the NOTARY PU8UC 3 State of Texas COBtsn. ExfX.C6-1(V»301 CERTIFICATE OF CONFERENCE This is to certify that Plaintiffs have conferred in good faith, ,by and through Dov Avni Kaminetzky, so authorized by "CCW" and "BOLT" and acting also for himslef, via facsimile transmissions, with Defendant's attorney Michael Flume,who did not oppose these motions and the relief requested therein, until the date of its filing with this Court. Dov Avni Kamine'czky Joint Plaintiff,Pro-se and TRCP Rule 14 agent of corporate plaintiffs "CCW" and "BOLT" CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motions for Sanctions,and in.the alternative to Compel/ Continuance was forwarded on this. the 27&6ac9 of August 1998 by a hand delivery, facsimile transmission, and/ or by First Class U.S. Mail, to the following: Celinda B.Guerra\Michael Flume Attorney for Dosohs I,Ltd. c/o Munn & Flume 1020 N.E. Loop 410,Suite 200 Houston,Texas 78209-1218 Michel C. Whalen attorney for co-plaintiffs 2901 Wilcrest Suite 105, Houston,Texas 77041 J*, S<V*f' ••£$, **;*». Dov Avni Kaminetzky Joint Plaintif,Pro-se and TRCP Rule 14 agent of corporate plaintiffs "CCW" and "BOLT" -11- 14-14-00410-CV Petitioner, v. Respondent. EXHIBIT W TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 140 — No. 97-40590 CHOICE CAR WASH, INC., * IN THE DISTRICT O AND BUSINESS OWNERSHIP AND * * LIABILITIES TAKEOVER * CORPORATION * * VS. * 11TH JUDICIAL DISTRICT * DOSOHS I, LTD. •• HARRIS COUNTY, TEXAS DEFENDANT'S FOURTH AMENDED ORIGINAL ANSWER TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES DOSOHS LLTD. ("Dosohs"), Defendant intheabove styled and numbered cause, and files this Defendant's Fourth Amended Original Answer toPlaintiflPs Original Petition filed herein, and in support thereofwouldrespectfully showthe court as follows: I. GENERAL DENTAL 1.1 Dosohs denies generally each and every, all and singular, theallegations contained inPlaintiffs* Original Petition filed herein and states that this Defendant will require strict proof thereof. AFFIRMATIVE DEFENSES n. RES JUDICATA cat I .ATOP Al ESTOPPEL 2.1 Plaintiffs' claims are barred by res judicata and/or collateral estoppel. More specifically, Dosohs alleges that on September 26, 1996, Dosohs instituted a lawsuit against sggsr. *141 Samantha Corporation, Inc. in Adversary Proceeding No. 96-4671, styled Dosohs I, Ltd. vs. Samantha Corporation, Inc., in the United States Bankruptcy Court for the Southern District of Texas, Houston Division. That cause wasbrought to determine the validity andextent of Dosohs1 lien. Onfinal hearing, theBankruptcy Court determined theamount andvalidity ofDosohs1 lienon the propertymade the issue ofthis lawsuit Further,the court held that the statute oflimitationshad not expired and Dosohs was entitled to seek collection. 2.2 On June 16,1997, trial of the Dosohs suit was held and Judge Leal ruled that the statute of limitations had notexpired and that Samantha Corporation owed $1,216,351.27. 2.3 On July 17, 1997, Judge Manuel Leal United States Bankruptcy Judge, entered a Final Judgment inthe Dosohs suit and further found that the statute oflimitations had not expired. 2.4 On July 16,1997, inBankruptcy Case No. 95-45547-H1-11, the bankruptcy court entered an order lifting the automatic stay to allow Dosohs to foreclose on its collateral. 2.5 Furmennore, on March 19,1998, the bankruptcy court entered a Corrected Order Terminating Automatic Stay making the same findings as theprior order and including a more specific property description ofthe collateral to which Dosohs was allowed to foreclose on. 2.6 On June 16,1998, Judge Manuel LealUnited States Bankruptcy Judge entered a Corrected Final Judgment in theDosohs suitmaking thesame findings as thepriorjudgment and including a more specific property descriptionof the collateral to which Dosohs was allowed to foreclose on. 2.7 Dosohs asserts that the Orders and judgments are res judicata and/or collateral estoppel to nie issues raisedin the statecourtproceedings by thePlaintiffs. — 142 — 2.8 Furthermore, on December 15,1997, a hearing concerning the Motion of Dosohs from Relief From Automatic Stay was heard in Case No. 97-49007-H1-11, In Re: Dov Avni Kaminetzky, Debtor. QnDecemberl9,1997, the courtentered anOrderAnnulling and Tenninating Automatic Stayin said causenumberandpursuantto that orderdetermined, Dosohslien on thereal property made the basis of this lawsuit, that Debtor had noequity in theproperty, thecourt further found mat Dosohs hadownership and holder status of the$850,000 promissory note and found the value ofthe property. 2.9 Accordingly, the Plaintiffs claims asserted in the State Courts proceeding were previously litigated in theBankruptcy court and arebarred by thedoctrines of resjudicata and/or collateral estoppel. m. PLAINTIFFS LACK STANDING 3.1 In the alternative, Plaintiffs lackstanding to assert theirclaims against Dosohs. IV. DEFECT OF PLAINTIFFS 4.1 In the alternative, that mere is a defect ofPlaintiffs. V. NEGLIGENCE 5.1 Pleading in the alternative, Dosohs would show the court that the Plaintiffs are themselves guilty of various acts and omissions each of which constituted negligence and contributory negligence, and each of which was a sole cause or alternatively, a proximate and producing causeofthe occurrence in question andthe alleged damages alleged by Plaintiffs in this lawsuit. — 143 — VI. THIRD PARTY LIABILITY 6.1 Pleading further in the alternative, Dosohs wouldstatethat the incident in question was a result of or in the alternative, partially, caused by persons, factors, instrumentalities and circumstances over which it had no control or right ofcontrol. vn. THIRD PARTY NEGLIGENCE 7.1 Pleading in the alternative, Dosohs would show the court that damages, if any, suffered by Plaintiffs werecausedby the negligence and actsofthird parties. vm. ESTOPPEL 8.1 For further answer, if any is necessary, Dosohs alleges that Plaintiffs are estopped from asserting the claims made the basis ofPlaintiffs' petition. DC. MITIGATION OF DAMAGES 9.1 Pleading further in the alternative, Dosohs would show the court that Plaintiffs failed to mitigate their damages. X. WAIVER 10.1 For further answer, if any is necessary, Dosohs alleges the affirmative defense of waiver by Plaintiffs. — 144 — XL DOSOHS NOT GUILTY 11.1 Dosohs is not guilty ofthe injury complainedofin the petition filed by the Plaintiffs against Dosohs. PRAYER WHEREFORE, PREMISES CONSIDERED, Dosohs prays that all relief prayed for by Plaintiffs be denied; that the Plaintiffs take nothing by their suit herein; and that Dosohs recover costs ofcourt from Plaintiffs; and that Dosohs receive such other and further relief, general or special to which it may show itselfjustly entitled to receive. Respectfully submitted, MUNN&FLUME One Oak Park, Suite 200 1020 N.E. Loop 410 San Antonio, Texas 78209-1218 (210) 828-5641 (210) 821-6069 Facsimile UXuu/^>'Jrh;Wy MICHAEL FLUME State Bar No. 07188480 CELINDA B AEZ GUERRA State Bar No. 01505000 ATTORNEYS FOR DOSOHS I, LTD. — 145 — CERTIFICATE OF SERVICE I do hereby certify on this 28th day of August, 1998 that a true and correct copy of the foregoingdocument has been delivered via certifiedmail, returnreceipt requestedto the following: CERTIFIED MAUL NO. Z 435836459 RETURN RECEIPT REQUESTED Michael C. Whalen 2901 Wilcrest, Suite 105 Houston, Texas 77042 CERTIFIED MAIL NO. Z 435836460 RETURN RECEIPT REQUESTED Dov Avni Kaminetzky 1609 S. Kirkwood, Suite A Houston, Texas 77077-3158 CELINDABAEZ — 146 — VERIFICATION STATE OF TEXAS § § COUNTY OF BEXAR § On this date, MATT N. MOLAK, personally appearedbefore me, the undersigned Notary Public, and afterbeing duly sworn stated under oath that he is the President ofDosohs, Inc., General PartnerofDosohs I, Ltd., Defendant in the above styled and numbered cause; that he has read the foregoing Defendant'sFourthAmended OriginalAnswer; andthat every statement containedtherein is within his personal knowledge and is true and correct. DOSOHS I, LTD. By: DOSOHS, INC., General Parmer By: MATT N. MOLAK, President SWORN AND SUBSCRIBED TO BEFORE ME by the said Matt N. Molak, President of Dosohs, Inc., General ParmerofDosohs I, Ltd., to certify which witness my hand and official seal ofoffice on this Zft^day ofAugust, 1998. ^Sy^1" » Notary Public in and for the State ofTexas MAY"$20Q2 14-14-00410-CV Petitioner, v. MLi-i mi Respondent. EXHIBIT H TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 147 — NO. 97-40590 CHOICE CAR WASH, INC., IN THE BUSINESS AND OWNERSHIP LIABILITIES TAKEOVER CORPORATION, and DOV AVNI KAMINETZKY, Plaintiffs; FOR HARRIS VS. DOSOHS I, LTD., Defendant. 11th JUDICTAr NOTICE OF HOW-SaiT BY PLAINTIFFS ftY«,\\^8 Pursuant to Rule 162 of the Texas Rules of Civil PE&BteflflPe*,TwB* plaintiffs Choice Car Wash, Inc., Business andownership Liabilities Takeover Corporation, and Dov Avni Kaminetzky, pro se, hereby give notice that1 plaintiffs take a non-suit with respect to all issues alleged in their petition on file herein, save and except any issues which may be covered by the partial summary judgment rendered by the court on August 20, 1998, and further save and except any issues which may be covered by the so-called Original Counterclaim filed by defendant Dosohs I, Ltd., the non-suit being taken without prejudice to the right of plaintiffs to refile their causes of action against defendant. Respectfully submitted, Wl MIC^ftBL C. WHALEN State Bar No. 21239000 2901 Wilcrest, Suite 105 Houston, Texas 77042 Tel: (713) 782-0065 Fax: (713) 782-0909 ATTORNEY FOR PLAINTIFFS CHOICE CAR WASH, INC., and BUSINESS AND OWNERSHIP LIABILITIES TAKEOVER CORP. •SjSSSs** •4/ ^#.- {fam^jfau? Dov Avni Kaminetzky"; Pro Pr< Se — 148 — CERTIFICATE OF SERVICE The undersigned attorney of record for the corporate plaintiffs and the undersigned pro se litigant hereby certify that a true copy of the foregoing document has been furnished to the below named attprneys of record for defendant by hand delivery on the "3>f 4> day of August, 1998. Michael A. Flume Celinda Baez Guerra Munn & Flume Attorneys at Law 1020 N.E. Loop 410, Suite 200 § San Antonio, TX 78209 x- r' Fax #: (210) 821-6069 > Micfiael C. whalen Attorney for the corporate plaintiffs Dov Avni KaminetzJrjj/ / -2- 14-14-00410-CV Petitioner, v. Respondent. EXHIBIT Jiff TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 165 — V V ? NO. 97-40590 CHOICE CAR WASH, INC., IN THE DISTRICT COURT BUSINESS AND OWNERSHIP LIABILITIES TAKEOVER CORPORATION, and DOV AVNI KAMINETZKY, Plaintiffs; FOR HARRIS COUNTY, TEXAS VS. DOSOHS I, LTD., Defendant. 11th JUDICIAL DISTRICT ORDER DISMISSING PLAINTIFFS' SUIT The Court acknowledges that plaintiffs have filed a Notice of Non-Suit of the causes of action alleged by plaintiffs in the captioned case. Accordingly, it is ORDERED by the Court that the petition of plaintiffs on file herein is dismissed, without prejudice to the right of plaintiffs to refile the causes of action alleged in their petition. SIGNED on this.J-HJk day of dukAkaJ , 1998, YuaiSiU.Judge Presiding in CO CO CO CO CVJ RECORDER'S MEMORANDUM This Instrument is of poor quality at thetime ofimaging 14-14-00410-CV Petitioner, v. Respondent EXHIBIT /fTO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 166 — 09/04/98 FRI 09:58 FAX 7137820909 MICHAEL C WHALEN ®002 NO. 97-40590 CHOICE CAR WASH, INC., )( IN THE DISTRICT COURT BUSINESS AND OWNERSHIP )( LIABILITIES TAKEOVER CORPORATION, )( and DOV AVNI KAMINETZKY, )( Plaintiffs; )( )( FOR HARRIS COUNTY, TEXAS VS. )( )( DOSOHS I, LTD., )( Defendant. )( 11th JUDICIAL DISTRICT ORDER OF ABATEMEHT A This Court is of the opinion that the captioned lawsuit should be abated until the judgment entered by Judge Manuel, Leai;:~-;:^;-^vJ in Adversary No. 96-4671, United States Bankruptcy Courts for the; :^'.-;i;-v;^ Southern District, of Texas, becomes final and non-appealable, •and':^:"''--:;:::K CO it::iS:-sofiio|||^^ .1998, :at •»iio^a^-..f|^^|||| CO SIGNED Norivthls- O CX. CO CO irsa Judge Presiding APPROVED AS TO FORM BY: MicWael C. whalen, Attorney for Plaintiffs Choice Car Wash, Inc., and Business and Ownership Liabilities Takeover Corporation h*J M' fc*"* dov Avni Kaminetz ro Se (jJJL. Celinda Baez/ffiuerra, Attorney forA-Defendant 14-14-00410-CV Petitioner, v. Respondent EXHIBIT^ I TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 173 — NO. 97-40590 CHOICE CAR WASH, INC. AND () IN THE DISTRICT COURT OF BUSINESS AND OWNERSHIP LIABILITIES () TAKEOVER CORPORATION (DEL),INC. and () DOV AVNI KAMINBETZKY,PRO-SE LITIGANT() Plaintiffs, () VS. () HARRIS COUNTY,T E X A S () DOSOHS I, LTD. () Defendant. () 11TH JUDICIAL DISTRICT NOTICE OP FILING AND SERVING NOTICE BY JOINT PLAINTIFF DOV AVNI KAMINETZKY.PRO-SB LITIGANT,OF THB IMMEDIATE WITHDRAW. OF THB NOTICE OF PARTIAL NON-SUIT,WITHOUT PREJUDICE. OF ALL SPECIFIC CLAIMS AND SEGMENTS OF PLEADINGS THAT ARE PRECLUDED BY FINAL CORRECTED JUDGMENT.ENTERED ON 6/16/98 IN ADVERSARY CASE 96-4671 fSAMANTHA1.WHICH HE HAS FILED ON AUGUST 20,1998. TO: Dosohs I, Ltd. by and through its attorney of record,Michael Flume of Muxm & Flume, One Oak Park, 1020 M.S.Loop 410,Suite 200, San Antonio,Texas 78209-1218;Facsimile:(210) 821-6069. Co-Plaintiffs Choice Car Wash,Inc.["CCW"], Business fiOwnership Liabilities Takeover Corporation ["BOLT"] by and through their attorney of record Michael C. Whalen, 2901 Wilcrest, Suite 105 Houston, Texas 77042; Facsimile :(713) 782-0909 COME NOW Plaintiff Dov Avni Kaminetzky ["DAK"],Joint Plaintiff in the above entitled and numbered civil cause, and files his Notice of Immediate Withdral, of the Prior Notice he filed on 8/20/1998 of a Partial Non-Suit, Without Prejudice.-, pursuant to Rule 162[TRCP] of all specific claims and segments of pleadings that are precluded by a "Final Corrected Judgment",entered on June 16,1998 in Adversary Case 96-4671 v. Samantha Corporation, Inc.] prior to 8/20/98 ruling on Dosohs Motion for Partial S/J. An appropriate order will be filed and served separately . Respectfully submitted. *4s £#*»* *&*+, Dov Avni Kaminetzky Joint Plaintiff,pro-se *£ 1609 S.Kirkwood # A Houston,TX 77077-3158 Tel: (281) 493-6965 Fax: (713) 270-5505 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing notice and the attached order is being forwarded on this ^e* aay.of October, 1998 to all counsel of record fhLth'is ,case,as follows: CHARLES BAWljot _ Celinda Baez Guerra u^w&mI'Fy 5&W* Michael C. Whalen HAW\B(fl-™ * W/Enclosure . .... .rtf.yF** •*»*»»» MpJ (Order Granting Non-Suit) A.F1 tK HUuj&aif AvHS Kaminetzky *^ RECORDER'S MF.M0RANQUM Jolnt Plaintiff-Prose TWs instrument isofpoor quality at the time of imaging — 174 — •\. DOV AVNI KAMINETZKY Business Information,Analysis,Reporting and Management Services 1609 South Kirkwood # B Tel: (281) 493-6965 Houston,Texas 77077-3158 Fax: (713) 270-5505 October 26,1998 Honorable Mark Davidson 11th District Court,Harris County Harris County Civil Courts Bldg. 301 Fannin Street, Room 306 Hou8ton,Texas 77002 Attention: Ms.Susan Puett RE: Cause No. 97-40590 Choice Car Wash.Inc. and Business Own«raiHp anH Liabilities Takeover Corporation v.Dosohs I.Ltd. Dear Susan : Enclosed please find the following documents to be filed and attended to ,with respect to the above captioned and entitled case, a notice of withdrawl of prior notice of non-suit by D. kaminetzky, filed in this case on the morning of August 20,1998,before the oral hearing on Dosohs I,Ltd's motion for partial summary judgment. A true copy thereof is also forwarded to each counsel of record in this case, A a. , f/ e _. Truly yours, <**V <% HM**m*^n Dov Avni Kaminetzky ^ * Joint Plaintiff-pros W/Enclosures CC: Celinda Baez Guerra '^?.t-^: aiV^ Michael C. Whalen ,^^ nO^ <o 4?^ * -^ T oeeoRDER'S MEMORANDUM ™ atthetimeofimaglnfl 14-14-00410-CV w$mm Petitioner, v. Respondent. EXHIBIT 2Z TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 175 — k NO. 97-40590 V CHOICE CAR WASH, INC. AND () IN THE DISTRICT COURT OF BUSINESS AND OWNERSHIP LIABILITIES TAKEOVER CORPORATION (DEL.),INC. and DOV AVNI KAMINETZKY,A PRO-SE LITIGANT. Plaintiffs, VS. HARRIS COUNTY,T E X A S DOSOHS I, LTD. Defendant. 11TH JUDICIAL DISTRICT ORDER GRANTING KAMINBTZKY WITHDRAWL OF PARTIAL NON-SUIT Came on for consideration on this day the Notice of Immdeiate Withdrawl,of the Prior Notice of Immediate Dismissal and Non-Suit, Without Prejudice by Kaminetzky,pursuant to provisions of Rule 162. [TRCP] of all specific claims and segments of pleadings that are precluded by a "Final Corrected Judgment",entered on June 16,1998 in Adversary Case 96-4671 [In RerSamantha Corporation,Inc.,debtor]3 filed prior to 8/20/1998 ruling on Dosohs* Motion for Partial S/J. by Joint Plaintiff Dov Avni Kaminetzky, appearing herein prose,and the court, finds Kaminetzky1s request to be timely and well taken, and to be fully supported by legal authrorities. It is therefore, ORDERED,ADJUDGED AND DECREED that Kaminetzky's Notice of Withdrawl of Prior Mon-Suit Without Prejudice of the claims and segments of pleadings that are precluded by "Final Corrected Judgment",entered on June 16,1998 in Adversary Case 96-4671 [In Re:Samantha,Debtor], IS GRANTED, and Kaminetzky's live pleadings,incorporated in the 7th Amended Petition,filed on August 31,1998 on 8.00AM are hereby REINSTATED,SUBJECT TO THE UNAPPEALABLE ORDER OF ABATEMENT OF THIS CASE,SIGNED AND FILED ON SEPTEMBER 24,1998,BUT EFFECTIVE 8/32/1998 ALL OTHER RELIEF NOT EXPRESSLY GRANTED HEREIN IS HEREBY DENIED. Signed this .day of ,1998 Approved as to .form: THE HONORABLE MARK DAVIDSON &** Mtfito fmmt§faffjL* 11TH STATE DISTRICT COURT JUDGE Dov Avni Kaminetzky, PlaTLfftiff 1609 S.Kirkwwod,Houston,TX 14-14-00410-CV PiiiiM, Petitioner, v. DOSOHS I, LTD Respondent. EXHIBIT J3 TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 169 — Jj. t P» a MfO CjQ NO. 97-40590 V CHOICE CAR WASH, INC., IN THE DISTRICT CODRT^Ofig BUSINESS AND OWNERSHIP LIABILITIES TAKEOVER CORPORATION, and DOV AVNI KAMINETZKY, Plaintiffs; FOR HARRIS COUNTY, TEXAS VS. DOSOHS I, LTD., Defendant. 11th JUDICIAL DISTRICT MOTION TO VACATE ORDER DISMISSING PLAINTIFFS' SUIT Plaintiffs Choice Car Wash, Inc., Business and Ownership Liabilities Takeover Corporation, and Dov Avni Kaminetzky, pro se, move the court to vacate the Order Dismissing Plaintiffs' Suit which was signed by the court following the voluntary non-suit filed previously by plaintiffs herein. ^ Plaintiffs acknowledge that the captioned lawsuit is subject to an Order of Abatement signed by the court on September 24, 1998. Respectfully submitted, MICHAEL CT 'WHALEN State Bar No. 21239000 2901 Wilcrest, Suite 105 Houston, Texas 77042 Tel: (713) 782-0065 Fax: (713) 782-0909 ATTORNEY FOR PLAINTIFFS CHOICE CAR WASH, INC., and BUSINESS AND OWNERSHIP LIABILITIES TAKEOVER CORP. Dov Avni Kaminetzky, Pro/lSe (H RECORDER'S MEMORANDUM This Instrument isof poor quality at the time of imaging — 170 — .J 4r CERTIFICATE OF SERVICE The undersigned attorney of record for the corporate plaintiffs and the undersigned pro se litigant hereby certify that a true copy of the foregoing document has been furnished to the below named attorneys of record for defendant by certified U.S. mail, return receipt requested, or by facsimile transmission on the 2fc>**- day of October, 1998. Michael A. Flume Celinda Baez Guerra Munn & Flume Attorneys at Law 1020 N.E. Loop 410, Suite 200 San Antonio, TX 78209 Fax #: (210) 821-6069 U Michael C. wnaTen, Attorney for the corporate plaintiffs Dov Avni Kaminetzky * C\ -2- 14-14-00410-CV BdvK.AVNi Petitioner, v. POSOHS I, LTQ Respondent. EXHIBIT ^ TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 171 — ^.z. NO. 97-40590 CHOICE CAR WASH, INC., IN THE DISTRICT COURT BUSINESS AND OWNERSHIP LIABILITIES TAKEOVER CORPORATION, and DOV AVNI KAMINETZKY, Plaintiffs; FOR HARRIS COUNTY, TEXAS VS. DOSOHS I, LTD., Defendant. 11th JUDICIAL DISTRICT ORDER VACATING ORDER DISMISSING PLAINTIFFS' SPIT The Court acknowledges that plaintiffs have filed a Motion to Vacate the Order Dismissing Plaintiffs' Suit, which Order was signed by the court after plaintiffs filed their voluntary non-suit in the captioned case. Accordingly, it is ORDERED by the Court that the previous Order Dismissing Plaintiffs' Suit is vacated, and plaintiff's suit is reinstated on the court's docket, subject to the Order of Abatement now pending in this suit. SIGNED on this day of ' 1998. Judge Presiding RECORDER'S MEMORANDUM This instrument isofpoor quality at the time of imaging — 172 — r> n CHARLES SACARiSSc DISTRICT CLERK HARRIS CGL'-MTY.'TEXAS 98OCT 26 PMII'28 AFTcU li»;UKS rlUKS 14-14-00410-CV DOV KTAVNl Petitioner, v. DOSOHS I, LTd Respondent EXHIBIT J55 TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 176 — '-c i.998-588 67 f CHOICE CAR WASH, INC., IN tEHE—DI-S-TRieT^COURT BUSINESS AND OWNERSHIP S LIABILITIES TAKEOVER CORPORATION, and DOV AVNI KAMINETZKY, PRO SE, Plaintiffs; FOR HARRIS COUNTY, VS. DOSOHS I, LTD., Defendant. ^"O^^JUDICIAL^DIS' PLAINTIFFS' ORIGINAL PETITION BRINGING ACTION IN TRESPASS TO TRY TITLE AND SEEKING DAMAGES FROM DEFENDANT TO THE HONORABLE DISTRICT COURT JUDGE: Plaintiffs CHOICE CAR WASH, INC., BUSINESS AND OWNERSHIP LIABILITIES TAKEOVER CORPORATION, and DOV AVNI KAMINETZKY, in his individual capacity, file this original petition and seek judgment of the court that the deed of trust foreclosure sale of the hereinafter described "Softouch Car Wash Property" allegedly conducted by Dosohs I, Ltd., ("Dosohs") is void, that the substitute trustee's deed issued to Dosohs after the alleged foreclosure sale is void and is set aside, that the debt secured by the deed of trust involved is barred by the statute of limitations, further bringing action in trespass to try title to establish that plaintiffs have good title to the Softouch Car Wash Property and have the right to possession of the property against the claims of Dosohs, further seeking actual and punitive damages from defendant Dosohs, and respectfully would show the Court as follows: RECORDER'S MEMORANDUM This Instrument is of poor quality atthelime ofimaging 1. Plaintiff Choice Car Wash, Inc., ("CCW"), is a Texas corporation which maintains its principal office at 8901 W. Bellfort, Suite C, Houston, Texas 77031-2407. Plaintiff Business and Ownership Liabilities Takeover Corporation ("BOLT") is a Delaware corporation Which maintains its principal office at 150-B Forest Drive, Jericho, NY 11753 and maintains a Texas office at 1609 S. Kirkwood, Suite B, Houston, TX 77077-3158. Plaintiff Dov Avni Kaminetzky ("Kaminetzky") maintains a Texas residence in Harris County, Texas, at 1609 S. Kirkwood, Suite A, Houston, TX 77077-3158. 2. Defendant Dosohs I, Ltd., ("Dosohs"), is a Texas limited partnership, and service of process may be made on Matt N. Molak, president of Dosohs I, Inc., a Texas corporation which is the general partner of Dosohs I, Ltd., at the corporate offices of Dosohs .1, Inc., located at 1020 N.E. Loop 410, Suite j^fo, San Antonio, TX 78209-1218 [Telephone: (210) 828-5641]. 3. Venue is proper in Harris County, Texas, because the real property involved is situated in Harris County, Texas. 4. The court has jurisdiction of defendant Dosohs I, Ltd., because the defendant is a Texas limited partnership, has jurisdiction of the trespass to try title action pursuant to Article V of the Texas Constitution, and the amount of damages sought is within the jurisdictional limits of the court. -2- 177 i> — 178 — 5. The real property which is the subject of this action consists of a .9986-acre tract of land containing a full-service car wash and related improvements, (herein called the "Softouch Car Wash Property"), such property being located at 8901 W. Bellfort, Houston, Harris County, Texas, and more particularly described in the deeds referred to below. 6. Plaintiffs collectively were the record owners of title to the Softouch Car Wash Property, were in possession thereof at the time of the deed of trust foreclosure sale allegedly held by Dosohs, and claim valid fee simple title to said property under the deeds to Plaintiffs that are listed on Exhibit "A" attached hereto. Plaintiff CCW claims to own a 20.25% undivided interest in the fee simple title to the Softouch Car Wash Property, plaintiff BOLT claims to own a 60.75% undivided interest in the fee simple title to the Softouch Car Wash Property, and plaintiff Kaminetzky claims to own a 19% undivided interest in the fee simple title to the Softouch Car Wash Property. Plaintiffs will show that the common source of title to the Softouch Car Wash Property is Samantha Corporation, Inc. ("Samantha"), and will produce at trial certified copies of the deeds itemized on the attached Exhibit "A" showing a chain of title emanating from the common source. — 179 — 7. Defendant Dosohs I, Ltd., allegedly conducted a deed of trust foreclosure sale of the Softouch Car Wash Property on Tuesday, September 2, 1997, on the ground that Samantha Corporation, Inc., failed to pay a promissory note payable to Security Bank in the original principal amount of $850,000.00, which note [after extensions] had a maturity date of August 15, 1990, (see Exhibits "B", "C" and "D" attached hereto) and claims title to and the right to possession of the Softouch Car Wash Property pursuant to the substitute trustee's deed executed after the alleged foreclosure sale. (A copy of the deed of trust relied upon by Dosohs is attached hereto as Exhibit "E".) 8. However, the deed of trust foreclosure sale of the Softouch Car Wash Property allegedly conducted by defendant Dosohs I, Ltd., is void for at least the following reasons: (a) The $850,000 promissory note relied upon by Dosohs was cancelled in the hands of the Federal Deposit Insurance Corporation ("FDIC"), as receiver for Security Bank (see Exhibit "F" attached hereto). (b) Demand letters from the FDIC, dated January 31, 1990, and February 5, 1990, show that the cause of action on the $850,000 note had accrued and was barred by the statute of limitations months before the date of the foreclosure sale allegedly conducted by Dosohs (see Exhibits "G" and "h" attached hereto). -4- — 180 — (c) The notice of foreclosure sale was not posted at the courthouse door, and did not provide 21 days notice after "receipt" of the notice, as required by the deed of trust (see Exhibit "E"). (d) Notice of foreclosure sale was not given to the trustee in bankruptcy for Samantha Corporation, Inc., and was not given at the correct address for Samantha Corporation, Inc. (see Exhibit "I" attached hereto). (e) The notice of foreclosure sale was not posted in three (3) separate places, as required by the deed of trust (see Exhibit "E"), but was admittedly posted in only one place (see testimony attached hereto as Exhibit "J"). 9. Dosohs I, Ltd., by persisting in its knowingly wrongful attempts to collect a barred debt and to conduct a deed of trust foreclosure sale of the Softouch Car Wash Property, has required plaintiffs to incur actual damages and plaintiffs should be awarded recovery of such actual damages from Dosohs. 10. Plaintiffs allege further that defendant Dosohs is guilty of malice by wrongfully attempting to obtain possession of and title to the Softouch Car Wash property with full knowledge that such attempts have been wrongful. As a consequence of such unconscionable and malicious conduct by the representatives of Dosohs, plaintiffs assert that punitive damages should be assessed against Dosohs and awarded to plaintiffs in such amount as may be determined by the jury, both -5- — 181 — . i s. as punishment and as an example to dissuade others from pursuing a similar course of action. WHEREFORE, premises considered, plaintiffs pray that after a full trial on the merits the court render its judugment that the deed of trust foreclosure sale allegedly conducted by Dosohs is void, that the resulting substitute trustee's deed issued to Dosohs is set aside as void, that valid title to and the right of possession of the Softouch Car Wash Property is vested in plaintiffs in the undivided interests set out above, pray further for recovery of damages, both actual and punitive, which are attributable to the knowingly wrongful attempts of Dosohs I, Ltd., to accomplish a deed of trust foreclosure sale of the Softouch Car Wash Property, in such amount as may be awarded by the court or jury, pray further for recovery of their costs of suit and reasonable attorney fees, and pray further for such other legal and equitable relief to which plaintiffs may be justly entitled. Respectfully submitted, Michael C". Whalen ^^ State Bar No. 21239000 2901 Wilcrest, Suite 155 Houston, Texas 77042 Tel: (713) 782-0065 Fax: (713) 782-0909 Attorney for Plaintiffs Choice Car Wash, Inc., and Business and Ownership Liabilities Takeover Corporation MfJ /?*•" I&ton. Dov Avni KaminetzkYj/Pro Se -6- — 182 — STATE OF TEXAS ) ) COUNTY OF HARRIS ) BEFORE ME, the undersigned authority, on this day personally appeared DOV AVNI KAMINETZKY, who stated to me that he is the pro se litigant and the managing vice president of the corporate plaintiffs in the captioned lawsuit, and who, after being duly sworn by me, stated that he has read the foregoing pleading and that the statements made therein are true and correct. Dov Avni Kaminetzky SUBSCRIBED AND SWORN TO before me on this IH^t day of December, 1998, by Dov Avni Kaminetzky, to certify which I affix my hand and seal of office. Notary Public, State of Texas 8BEKHAR SHROFF NotayPuMc,atrtactTama MJf Commkwlon Expires -7- 14-14-00410-CV OOVKAVNl Petitioner, v. 5osohsj,ltB Respondent. EXHIBIT QA TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 183 — <^ EXHIBIT "A" ^" f\ O -A PLAINTIFFS' TITLE CHAIN EMANATING FROM SAMANTHA AS COMMON I SOURCE WITH RESPECT TO THE " SOFTOUCH CAR WASH w PROPERTY 1. By Special Warranty Deed executed on January 7,1994 and filed on May 9,1994 in the office of the Harris County Clerk under File No. P849765, Samantha Corporation, Inc. {"Samantha"} conveyed all its rights,interest and title to the "Softouch Car Wash" property therein described{"Property") to Choice Acquisitions No.Four,Inc. {"CA-^"} and Dov Avni Kaminetzky,Trustee {"Kaminetzky" }, thereby acknowleding and settling the undisputed claims of Kaminetzky and CA-4 to title by adverse possession of the property and business. 2. By Special Warranty Deed executed on June 15, 1994 and filed on same date in the office of the Harris County Clerk under File NO.P914040, Choice Acquisitions No. Four,Inc. {"CA-4"} conveyed an undivided interest of 82.00% in the real property and improvements of the "Softouch Car Wash" property therein described {"Property"} and all its interests in the business thereon conducted to Fraud Busters and Recoveries of America,Inc.("FBR",Delaware corporation) subject to the specific terms as to participation and partition of interests contained in venture agreement executed contemoraneously therewith. 3. By Special Warranty Deed executed on June 15, 1994 and filed on same date in the office of the Harris County Clerk under File No.P ,Dov Avni Kaminetzky,Trustee{"Kaminetzky"} conveyed an undivided interest of 18.00% in the real property and improvements of the "Softouch Car Wash" property therein described{"Property"}, but excluding any interest in the business activities , now or in the future thereon conducted, to Choice Acquisitions No.One.,Inc.. which later filed voluntary petition in bankruptcy under Chapter "7", under Case NO.94-46087-H3-7, declaring therein its ownership interest in the "Softouch" property,being subject to the specific terms as to participation and partition of interests contained in a joint venture agreement executed contemoraneously therewith. 4. By Special Warranty Deed executed on May 17,1995 (but effective as of May 9, 1995 ), which was filed on same date in the office of the Harris County Clerk under File No.R 401059,Choice Acquisitions No.One,Inc.{"CA-1"},conveyed after emerging from Bankruptcy on May 4, 1995 an undivided interest of 18.00% in the real property and improvements of the "Softouch Car Wash" property {"Property"}, but excluding any interest: in the business activities, now or in the future thereon conducted, to Samantha Corporation,Inc, subject to the specific terms as to participation and partition of interests contained in venture agreement executed contemoraneously therewith 5. By Special Warranty[Deed executed on May 22,1995 (but effective as of 5/17/1995)and filed in the office of the Harris County Clerk under File No. )Fraud Busters and Recoveries of America,Inc {"FBR"} conveyed an undivided interest of 22.55% in the "Softouch Car Wash"property therein described{"the Property"}and in business activities thereon conducted to Choice Acquisitions No.Three,Inc. {"CA-3"},subject to the specific terms as to participation and to partition of interests contained in a venture agreement executed contemoraneously therewith. II »urR>iTy 1 Pg.l of 2 — 184 — EXHIBIT "A" (cont.l •- ,6. By Quitclaim Deea executed on July 26,1995,Samantha Corporation «./. Inc.,conveyed an undivided interest of 18.00% in the real property and the improvements of " Softouch Car Wash " property as therein described {"Property"}, but excluding any interest in the business activities thereon conducted, which were granted to it on May 17, 1995, back to Choice Acquisitions No. One, Inc.["CA-1"1,acting by and through Dov Avni Kaminetzky,its president. 7. By Special Warranty Deed executed on July 16,1997 ,(immediately after the automatic stay pursuant to 11 U.S.C. 362, was terminated in Bankruptcy 95-45547-H1-7, In Re:Samantha,Debtor), and filed on July 18,1997 in the office of the Harris County Clerk under File No.S548428, Choice Acquisitions No.Three, Inc. and Fraud Busters and Recoveries of America,Inc. jointly conveyed undivided interest of 82.00% in the real property and the improvements of " Softouch Car Wash"-property therein described {"the Property"}, and in all business activities thereon conducted to the corporate Plaintiffs, Choice Car Wash,Inc. {"CCW"} and Business Ownership Liabilities Takeover Corporation, {Delaware},Inc.{"BOLT"},both acting by and through Dov Avni Kaminetzky as their managing vice president. 8. By Quitclaim and Correction Deed executed on July 30,1997 and filed on July 31, 1997 in the office of the Harris County Clerk under File No.S569379, Choice Acquisitions No.Four,Inc.,["CA-4"], acting as successor by merger to Choice Acquisitions No.One,Inc. {"CA-1™}, subsequent to a merger which took place on February 7, 1996,conveyed an undivided interest of 18.0% in the real property and the improvements of " Softouch Car Wash" property as therein described {"the Property"},but excluding any interest in business activities thereon conducted to Dov Avni Kaminetzky,Trustee.[DART] 9. By Special Warranty Deed executed on August 1,1997 and filed on August 4, 1997 in the office of the Harris County Clerk under File No.S575264,Dov Avni Kamintezky,Trustee conveyed undivided interest of 18.00% in the real property and the improvements of " Softouch Car Wash"property therein described {"the Property"},but excluding any interest in the business activities thereon conducted, to the Plaintiffs, Choice Car Hash,Inc. {"CCW"} and Business & Ownership Liabilities Takeover Corporation, {Delaware},Inc.{"BOLT"}. 10. By a Special Warranty Deed executed on September 2, 1997 and filed on before 9.41Am on the same day in the office of the Harris County Clerk under File No.S575264,Plaintiffs,Choice Car Wash,Inc. {"CCW"} and Business & Ownership Liabilities Takeover Corporation, {Delaware},Inc.{"BOLT"}.conveyed an undivided interest of 7.00% in the real property and improvements of "Softouch Car Wash" property therein described {"the Property"}, and in the business activities thereon conducted, to Dov Avni Kaminetzky,individually. {"D.A.K."}. 12. By a Correction Deed executed on September 2,1997 and filed on September 3,1997 in the office of the Harris County Clerk under File S620270,Plaintiffs,Choice Car Wash,Inc. {"CCW"} and Business Ownership Liabilities Takeover Corporation,{Delaware},Inc.{"BOLT"} amended their previous conveyance to reflect an undivided interest of 19.00% in the real property and improvements of " Softouch Car Wash" property therein described {"the Property"},and in business activities thereon conducted,which was conveyed as of Septemebr 2, 1997 on 9.41Am to Dov Avni Kaminetzky,individually.{"D.A.K.n}. Pg. 2 of 2 14-14-00410-CV POVK.AVNI Petitioner, v. posoHS urg Respondent EXHIBIT j£2 T0 APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF « ' <*\ ^ n w< /•**'/"/ PROMISSORY NOTE p& EXHIBIT NO_l_l $850,000.00 Houston, Texas July 26 , 1984 FOR VALUE RECEIVED, SAMANTHA CORP., INC., a Texas corpo ration, acting by and through its duly authorized officer (herein after called "Maker") PROMISES TO PAY TO THE ORDER OF SECURITY BANK, •(hereinafter, together with all subsequent holders of this Note, called "Payee") on demand and if no demand on or before the 26th day of jiiiv , 1989, (the "Maturity Date"), as hereinafter provided, the principal sum of EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS (S050.000.00), together with interest on the unpaid principal bal ance from time to time outstanding at the lesser of the applicable rate (as hereinafter defined) or the maximum, rate (as hereinafter defined). As used herein, the term "Applicable Rate" shall mean the rate of interest per annum equal to the Prime Rate as hereinafter defined plus four percent (4%). The "Maximum Rate" shall be the maximum lawful rate which may be constracted for, charged for, taken, received or reserved by Payee in accordance with the laws of the State of Texas from time to time in effect except to the extent the United States Federal Law permits the Payee to contract for, charge, or receive a greater amount of interest, due credit being given for all charges made in connection with the loan evidenced hereby that may be treated as interest under applicable laws. Not withstanding anything in the preceding sentences to the contrary, if at any time the applicable rate exceeds the^ maximum rate, the rate of interest payable hereunder shall be limited to the maximum rate provided, however, that any subsequent reduction in the applicable rate shall not reduce the applicable rate below the maximum rate un til the total amount of interest earned hereunder equals the total amount of interest which would have been earned at the applicable rate if the applicable rate had in all times been in effect. Interest based on a three hundred sixty-five day year, will be accrued on the number of days the funds are actually out standing. Cf no demand is made, then the principal and interest of this Note shall be due and payable in monthly installments of $12,825.00, each, payable on the 26th day of each and every calen dar month, beginning the 2fit-h day of a.•.[.-.. a,- i 1984, and shall continue monthly thereafter, until the maturity date, at which time all accrued and unpaid interest and any and all unpaid princi pal balance hereof shall be due and payable in full. The foregoing installments of principal and interest have been amortized based on an interest rate of eighteen percent per annum over a term of three hundred sixty months, however, the use of eighteen percent per annum and a term of three hundred sixty months for the purpose of amortization shall in no manner affect the actual rate of interest accruing on thi3 note as provided above or the final maturity date of this note as provided above. Further more, quarterly beginning the 26th day of October , 1904, from the date hereof an amount equal to the amount of principal which would normally be paid under the aforesaid amortization for the pre ceding quarter less the amount of principal actually paid for the preceding quarter, plus any accrued but unpaid Interest, shall be due and payable (in addition to the monthly installments herein pro vided to be paid) upon Payee furnishing Maker a statement of the am ount due and owing as provided above, so that the monthly install ments due thereafter.shall properly amortize the unpaid principal over the remaining term used for the amortization of this note based on an interest rate of eighteen percent per annum. Failure of Maker to make this additional payment of principal and interest, if any, shall he an event of default under this Note and the instruments se curing same. "Prime rate" shall mean the prime rate of interest per annum publicly announced and charged from time to time by Security 185 tf**"**-*» 000093 Bank, Houston, Harris County, Texas ("Security Bank") as Its general reference rate of interest. Subject to the provisions of the pre ceding paragraphs hereof, each change in the applicable rate provid ed for herein with the fluctuation of such prime rates shall become effective on the date each such change in prime rate is established hereof. Maker and any endorser or guarantors hereof agree that the time for any payments hereunder may be extended from time to time without notice and consent to the acceptance of further security for the release of any existing security for this Note all without in any manner affecting their liability under or with respect to this Note. No extension of time for the payment of this Note or any in stallment hereof shall affect the liability of the Maker under this Note even though Maker Is not a party to such agreement. If (1) default is made in the payment in whole or in part of any sum provided for herein or (ii) an event of default shall occur under any instrument executed as security for, as evi dence of, or otherwise in connection with this Note or the indebted ness evidenced hereby (hereinafter all such instruments are collec tively called the "Security Instruments"), then Payee, at its op tion, without further notice or demand, declare the unpaid principal and accrued interest on this Note at once due and payable, foreclose all liens securing payment hereof, pursue any and all other rights, remedies, and recourse available' to Payee, or pursue any combination of the foregoing, all. remedies hereunder and the Security Instru ments being cumulative.. Upon the occurrence of a default hereunder or in any Se curity Instruments, at the option of the Payee, all amounts payable hereunder or under the Security Instruments shall bear interest for the period beginning with the date of the occurrence of such default at a rate of interest per annum (the "Default Rate"), payable op the first day of each and every month, equal to the Maximum Rate. Failure to exercise any of the foregoing options upon the happening of one or more of the foregoing events shall not con stitute a waiver of the right to exercise the same or any other op tion at any subsequent time in respect to the same or any other event. The acceptance by Payee of any payment hereunder that is less than the payment in full of all the amounts due and payable at the time of such payment shall not constitute a waiver of the right to exercise any of the foregoing options at that time or at any sub sequent time, or nullify any prior exercise of such option without the express written consent of the Payee. All amounts payable hereunder are payable in lawful mon ey of the United States of America. Maker agrees to pay all costs of collection hereof when incurred, including but not limited to reasonable attorney's fees, whether or not any action shall be in stituted to enforce this Note. This Note shall be governed by and construed according to the laws of the State of Texas from time to time in effect except to the extent United States Federal Law permits the Payee to con tract for, charge or receive a greater amount of interest. w It is expressly stipulated and agreed to be the intent of the Maker and the Payee to at all times comply with the applic r able law now or hereinafter governing the interest payable on this Note. If the applicable law is ever revised, repealed, or judicial ly interpreted so as to render usurious any amount called for under this Note or under any of the security instruments, or contracted for, charged, taken, reserved or received with respect to the loan evidenced by this Note, or if Payee's exercise of the option herein contained to accelerate the maturity of this Note or if any prepay ment by Maker results in Haker having paid any interest in excess of that permitted by law, then it is Maker's and Payee's express intent that all excess amounts theretofore collected by Payee be credited on the principal balance of this Note (or, if the Note has been paid in full, refunded to Maker), and the provisions of this Note and the -2- 186 000094 security instruments Immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of execution of any new document, so as to comply with the then applicable law, but so as to permit the recovery of the fullest I amount otherwise called for hereunder and thereunder. hereunder shall be given at the following addresses: All notices I If to maker, Samantha Corp., Inc., whose address is 4406 North Shepherd, Houston, Texas 77017. Either party may change its address for notice purposes I upon giving fifteen (15) days prior written notice thereof in accor dance with this paragraph, provided, however, that the Maker main tain an address in the continental United States. All notices given I hereunder shall be In writing and shall be considered properly given if mailed by first class. United States Mail, postage prepaid, reg istered or certified with return receipt requested, or by delivering the same in person to the intended addressee, or by prepaid tele I gram. Any notice mailed as above provided shall be effective upon its deposit in the custody of the United States postal service; all other notices shall be effective upon receipt. I If this Note is executed by more than one party, each such party shall be jointly and severally liable for the obligations I of the Maker under this Note, if the Maker is a partnership, each general partner of the Maker shall be jointly and severally liable hereunder, and each such general partner hereby waives any require ment of law that in the event of a default hereunder the Payee ex I hausts any assets of the Maker before proceeding against such gener al partner's assets. I The Note herein is those two certain Promissory Notes, one given in renewal and extension in the original principal of sum of $1,100,000.00, dated the 30th day of January, 1984 (the "First Promissory Note") and a second Note in the amount of $275, 000.00 dated the 27th day of January, 1984 (the "Second Promissory Note"), both Notes executed by the Maker and payable to the order of the Payee. The First Promissory Note in the amount of $1,100,000^.00 is more fully described in and secured by the Vendor's Lien retained of even date therewith, filed for record under Harris County Clerk's File Number J3355087 of the Deed Records of Harris County, Texas up on the herein described real property, and is additionally secured by a Deed of Trust and Security Agreement of even date therewith to G. William Beale, Trustee, duly recorded under Harris County Clerk's File Number J3355088 upon the herein described real property, which lien is hereby expressly acknowledged by Maker to be a valid and subsisting lien against the property herein described, and which lien is renewed, extended and continued in full force and effect to secure the payment of the Note hereby secured and represents funds advanced by Payee to Maker hereof at Maker's special instance and request. Additionally, the Second Promissory Note dated the 27th day of January, 1984 in the amount of $275,000.00 is secured by var ious security agreements to Security Bank. Said security interests are hereby expressly acknowledged by Maker to be valid and subsist ing security interest against the collateral therein described and which security interest is renewed, extended and continued in full force and effect to secure the payment of the Note hereby secured; and represents funds advanced by the Payee to Maker hereof at Mak er's special Instance and request. T Additionally, Maker acknowledges that Maker has executed a second promissory Note of even date herewith in the original prin cipal amount of $550,000.00 payable to the order of the Payee, which is also in renewal and extension of the First Promissory Note, and it is expressly stipulated by Maker that should default be made in the payment of said $550,000.00 Note, or any part thereof, principal or Interest, as the same shall become due and payable, or in any of the covenants of the Deed of Trust and Security Agreement, or any other document executed to secure the payment of said $550,000.00 Note, the indebtedness evidenced by this $850,000.00 Note, at the 187 000095 i option of the holder hereof, shall at once, without further notice, all notice requirements if any, being expressly waived by the Payee, shall become due and payable. i It is expressly agreed and stipulated that the holder of these Promissory Notes shall be subrogated to all of the rights, eq uities, liens, and security of the original holder of said Notes i which have been extended or renewed by this Note. Payment of this Note is secured by all security agree ments, mortgages, assignments, lien instruments, construction loan agreements executed by Makers or any other party in favor of Payee, including, but not limited to, those certain documents executed on even date hereof, heretofore or hereafter executed, including that certain Deed of Trust and Security Agreement of even date herewith executed by Samantha Corp., Inc. to Jack Price, Trustee, covering the following described property, to-wit: One (1) acre more or less out of 4.9153 acres in reserve "A" BELLFORT PLACE, a subdivision in Harris County, Tex as according to the Map or Plat thereof recorded in Vol i ume 207, Page 121 of the Map Records of Harris County, Texas. Said property being more particularly described oh Exhibit "A" attached hereto and made a part hereof. EXECUTED this 26th day of July , 1984. • S SAMANTHA CORP., INC. • <&^4aw President i ATTEST: Mdie Haikin Segyetary • Gary S. Cabot • PAY TO THE ORDER OF DOSOHS I LID vmtKHJTKtCOUt^WAIWAKIYC^REniESENTATION. EXPRESSED OS IMPLIED FEDERAL DEPOSIT INSURANCE CORPORATION IN ITS CAPACITY AS LIQUIDATOR OF SBOJsnyaANic »296fl •^ - SHERRY THOS, ATTORNEY IN FACT * W \ J 188 000096 *189 \X%Str& Bwlae Format Ortvm, Hoi &v HO. 97-40590 CHOICE CAR HASH, IHC. AHD IH SHE DISTRICT COURT OF -BUSINESS AHD OWNERSHIP LIABILITIES TAKEOVER CORPORATION (DEL.)/ IHC. AHD DOV AVHI KAMIHET2K7, A PRO-SE LITIGANT Plaintiffs, vs. HARRIS COUNTY, TEXAS DOSOHS I, LTD. '—*..-*.• Defendant. 11TB JUDICIAL DISTRICT EXHIBITS 1 THROUGH 30 TO THE DEPOSITION OF MATT H. MOLAK JULY 28, 1998 ORIGINAL I I •>'•'•' 14-14-00410-CV DOV K. AVNI. Petitioner, v. PQSOlJSlLTg Respondent EXHIBIT gffiO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF .1>. L021 DOC/R:Q&-00-87/mja 5847 SAN fCUPg SUITE 610 Mi HOUSTON. TX 77007 713-760-311B MODIFICATION AGREEMENT V NAMB jf^^niHlrPT 1132-25-2150 0MS*#0 L1573S5 THIS STATU OF TEXAS «»/!)•»/S? UlHliiJ? LlS7*S? J li.ijii COUNTY OP HARRIS THIS AGREEMENT ("Agreement") made and entered Into by and between SAMANTHA CORPORATION, INC., a Texas corporation, acting herein by and through its •P duly authorized offlccr (hereinafter called "Maker"), and SECURITY DANK, a state banking association (hereinafter called "Payee"). WITNESSETH: • RECITALS: Muker has heretofore executed and delivered its certain promissory note ("Note") dated July 26, 1984, payable to the order of Payee, in the original principal sum of EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($850,000.00), bearing interest and being due and payable as therein provided, and finally maturing on July 26, 1089. 'lite Note is secured by: (i) a Deed of Trust and Security Agreement ("Deed of Trust") of even date with the Note from Maker to Jack Price, Trustee, for the benefit ot Payee, duly filed for record In Official Public Records of Real Property in the Office of Ilia County Clerk of Harris County, Texas, under Clerk's File No. J-G26467, covering and m affecting certain real property and improvements in Harris County, Texas, which real property is more particularly described by metes and bounds on Exhibit "A" attached hereto and made a part hereof for all purposes (hereinafter called the "Property"); and (ii) Financing Statements of even date with tiie Note from Maker, duly filed for record in • the Official Public Records of Real Property in the office of the County Clerk of Harris County, Texas, under Clerk's File No. J-GS0951. The Note and the Deed of Trust have been modified by a Renewal, Extension and Modification Agreement dated August 15, 1385, by and among Maker and Payee, duly filed for record in the Official Public Records of Real Property in the office of the County Clerk of Harris County, Texas, under Clerk's File No. K-1732U2. The Property is presently owned by Maker and Maker lias requested and Payee lias agreed to certain modifications to the Note as hereinafter provided. tr PLAINTIFF'S EXHIBIT y%*fl i •** £**-m»tt) 000106 I EXHIBIT U-2WI5I. AGREEMENTS: For and in consideration of the premises, and tlie sum of TEN;AND NO/100 DOLLARS ($10.00) cash und other good and valuable consideration in hand one to the otiier paid, the receipt and sufficiency of wliich are hereby acknowledged and confessed, Payee and Maker hereby agree as follows: 1. The unpaid principal balance of the Note as of February 1.5, 1987 is $i>38,199.79, such principal sum being acknowledged by Maker und Payee. 2. The interest rate on the Note shall be reduced from thirteen percent (13%) per annum to eleven percent (11%) per annum, effective February 15,1987. 3. The monthly payments of principal and interest shall be reduced from $7,350.00 to $8,353.09, effective as of February 15, 1987, when the first payment of $6,353.09 is due and payable. 4. The maturity date of August 15, 1990, shall remain unchanged. 5. Simultaneously with tlie execution of this Agreement, Maker shall pay to Payee a modification fee in the amount of $10,000.00. Said modification fee shall not be applied to the unpaid principal balance of tlie Note or the interest uccrucd thereon. 8. Maker hereby ratifies, confirms, reaffirms, acknowledges, and agrees that the Note, the Renewal, Extension and Modification Agreement dated August 15, 1985, or any renewal and extension of same, the Deed of Trust, the Financing Statements, and each and every other document or instrument which evidences or secures tlie payment of the Note, represents the valid, enforceable obligations of the Maker, and Maker .'further acknowledges that there are no existing agreements, defenses, personal or otherwise, or rights of setoff whatsoever with respect to any of the foregoing instruments or documents, and Maker further acknowledges and represents that to its knowledge and belief, no event has occurred and no condition exists which would constitute u default under any of the aforementioned instruments or documents, or this Agreement, either with or without notice or lapse of time or botlu ' 7. Maker and Payee hereby agree that except as specifically modified herein, all of the terms and provisions of the Note, the Renewal, Extension and Modification Agreement dated August 15, 1»85, or any renewal and extension of same, the Deed of Trust, the Financing Statements, and all other documents and instruments executed in connection with the Note are hereby ratified and reaffirmed, and Maker specifically acknowledges the , validity and enforceablity thereof. S. Maker and Payee hereby agree that this Agreement modifies the Note, the Renewal, Extension and Modification Agreement dated August 15, 1985, tlie Deed of Trust, und the Financing Statements, and in no way acts as a release or relinquishment of the liens, security interests and rights ("Liens") securing tlie payment of the Note, including without limitation, the Liens created by the Deed of Trust. The Liens are hereby renewed, A extended, ratified and confirmedby Maker In all respeets. n-* ' % /c -2- 196 000107 k. I 4 # XXX-XX-XXXX 9. Maker and Payee hereby agree that this Agreement, the Note, the Renewal, Extension and Modification Agreement dated August 15, 1985, the Deed of Trust, the Financing Statements, and all other documents and instruments executed in connection with the Note shall be governed by and construed according to the laws of the State of Texas, from time to time in effect, except to the extent United States Federal law permits Payee to contract for, charge or receive a greater amount of Interest. 10. Maker and Payee hereby agree that this Agreement, the Note, the Renewal, Extension and Modification Agreement dated August 15, 1985, the Deed of Trust, the Financing Statements, and all other documents and instruments executed In connection with the Note are in full force and effect, so nothing herein contained shall be construed as modifying in any manner any of said documents or Instruments except as specifically modified hereby. 11. The Maker and the Payee agree that the Deed of Trust and all the documents and Instruments executed in connection with the Note and the Renewal, Extension and Modification Agreement dated August 15, 1985, as modified hereby are and shall remain and shall continue to. be a first and prior lien and encumbrance on tlie Property. 12. Contemporaneously with the execution and delivery hereof, Maker shall cause Commonwealth Land/ritle Company ("Title Insurer") to issue to Payee an endorsement to the Mortgagee's Policy of Title Insurance ("Policy"} insuring the Liens of the Mortgagee, in form and content acceptable to Payee, affirming that the Policy is still in effect and unimpaired, notwithstanding tlie terms and provisions of this Agreement. 13. Contemporaneously with the execution and delivery hereof, Maker shall pay, or cause to be paid, all costs and expenses incident to the preparation, execution and recordation hereof and the consummation of the transaction contemplated hereby, including, but not limited to, recording fees, title Insurance policy or endorsement premiums or other charges of the Title Insurer and reasonable fees and expenses of legal counsel to Payee. 14. Maker and Payee each represent and warrant unto the other that they are duly authorized and empowered to enter into this Agreement. 15. This Agreement shall extend to, be binding upon Maker and Payee, and their respective heirs, legal representatives, successors and assigns. IN WITNESS WHEREOF, the undersigned have duly executed this Agreement effective as of,the 15th day of February, 1987. f\3t$f MAKER: ATTEST: SAMANTHA CORPORATION, INC., a Texas corporation ft Secretary \ \ (Tme):_x/,r, .rjftfa tt'ertjE. PAYTO Tiff ORDEROF DOSOHS I LTD WITHOUT RECOURSE, WARRANTY OKREPRESENTATION, EXPRESSED OB IMPUBDi FEDERAL DEPOSIT INSURANCE CORPORATION IN IIS CAPACITY ASUQUDATOR OF 3- SECURITY BANKK96S" swmTilitisr ATTORNEY IN FACT 197 0G0108 XXX-XX-XXXX PAYEE: SECURITY BANK, a state banking association (Tltte):' Q/f-Hifi ib*rn<s &F 7h'tr~/frst* & APPROVED: ie Haikin, Guar kin, Guarantor THE STATE OF TEXAS COUNTY OF HARRIS This instrument wasacknowledged before me on ^2** «?& ' «1987, of SAMANTHA CORPORATION, INC., a Texas corporation, on behalf of said corporation. *•'•?"?*'•-•,. (SEAL) (Type or Print Name of Notary) ^ Notary Public In and for the State of Texas '"*m;«.»•»,,, My commlsslon^ijaiitua. THE STATE OF TEXAS COUNTY OP HARRIS This Instrument was acknowledged before me on juna 2 _, 1987, by Ogi" K- ProOa » Chairman of tha Board of SECURITY BANK, a Texas banking association, on behalf of said banking association. (SEAL) £/s,JLi:. JL.Sluicm. is "X "N (Type or Print Name of Notary; Notary Public in and for the : r-'WI ... ! O \ .;.^. State of Texas ••^'r\ • -:3>. My commission expires: 12/03/90 : O .. :--» ' . • :^7 -,.-. . :..y W V-" <^^ '•>•». C. 198 000109 THE STATE OF TEXAS 182-25-? 154 COUNTY OF HARRIS tie foregoing instrument was acknowledged before me on the /& day of Jrffr*f , 1987, by MICHAEL HAIKIN. ~^~ (SEAL) '(Type or Print Name of Notary)^ Notary Public in and for the State ot Texas My commission expires: '*•'^lt,„.•^»•* Karen Chiisllej Hfitary Public Shli ol Texas MY Commisfiin \t&KkJ?'lP'~- THE STATE OF TEXAS S S COUNTY OF HARRIS ^ Tha foregoing instrument was acknowledged before me on the '/•?• day of 2Z*Z _, 1987, by JOSIE HAIKIN (SEAL) _.,««>«Mr#„ AW~"4N (Type or Print Name or Notary) S* Notary Public in and for the ' *• State of Texas !*"'T My commission expires:_ \v;< •£ Karen Cteisttey Notary Public Slate of Texas Mv Commlsacn Firiias &- it? &.Y. I 5- 199 000110 — 200 — NOo 97-40590 J"-."*-'". CHOICE CAR WASH, IMC, AHD • J_i * .IE THB DISTRICT COURT OF. :^Vac-si:: -BUSINESS MID OWNERSHIP ~" '.V.Vrv- LIABILITIES TAKEOVER .„... * CORPORATION (DBL.), ISC, AND DOV AVNI KAH1NETMY, * A PRO-SE LITIGANT *>• * • -Plaintiffs, * - •» .>.t.l»1:-<- • «? -v- • •8. * HARRIS COUNT?, T B Z A S '* DOSOHS I, LTD. :'::',- ^:^ Defendant. ;* 11TH JUDICIAL DISTRICT ; • 'f. .. - • EXHIBITS 1 THROUGH 30 TO THE DEPOSITION OF MATT N. MOLAK •"'.'. JOLT 28, 1998 ORIGINAL -*•. v.:. f "B. T-••y^->-= • „-:.^ • ..... '"SK^ l.-w.y-'.i''.:' "FILED IN 14thC0UOT0FAPPEALS FEB 18 C.n.o-urr.ER A.PRINE CLERK 14-14-00410-CV Petitioner, V. Respondent. EXHIBIT cfil TO APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 201 — IIf-ir-. •• 36ze*67. SeAaO&msi. ''-••&#*,, •,-*,•''•* ~~ SECUr. .x' AGREEMENT TWEiTATtOFTEXAS ! COUKTY nr •! 'rtuiim^.i.i.rd HARRIS .KNOW AU HEN rV THESE fRESENTS: Samantha Corp., Inc.. acting by and through Its duly authorlted officers - •'•' "•• •' --' ttmvtt 002*7774 mi/jut t ir.nn I "->-. --> I HABRIS .County.Ttin, teraatfltf caGtdC'utan twhtihn oat o»aank la CBBadoalM ef. TEN ANU, •.'•.,.-; »- .-.».-. '•••-• :.,•«-.-.,.,.,• ..• •.. ... . . ..- * i . -.* • • ..•<".;i; —•- ...-'• •..«.: •»tj. ? »bJ . • -\< . % .-tf.t .'.t '^-n ' — \> • • '••.• -•••::i ,'....• • -. .••.••.. j. .v-...u*..!-.-jw;; « . KOHK COlLAEitt I0.M1 uia ia lund paidvr ' ' JACK PRICE - . hrrarufirr ttilta Irautt. im tempt of vtaca payment u fccieSr >uiu»lcdfnl and centtacd. aad bI Ur debt dad nun htmiulictnwnuowrf. km Gneled. Banaiard. Said aad faamyrd, aad by Ihtu afutnuiadid. Banna. Sil ladCotmy uoto Trance, laduwojkaienauoioi '-* fc.-i'r ••-< Sl*». ^ .*.., tubuttattTretlet hcttinidet planted, lit fgBewmf dciaibcd ptopnty stalled ia, KAURIS .Cewty.Ttxu, I i»«i«: - . .... . -... •..•-j -. -^* ! . .... . //. •:-„.. .;_„.. ..i .., *.,, *.» " i- I ..'.-•». .'^.rf; .•*.•>••. . • ..,,._ .... - . „.-. _ ...; .. -..-.. <),iij..urt|r''<C,( i| (3.- UKKls't re: -v V.^- .4 iiH'*.V(.-«/i *..-x 'rfp.% '<^ :-j•*% 'mrf- t? ,*_u .o *.- ;• II' , !»..lri :0n« (1) acre mora or leas out o£ 4.9153 acres In Reserve. -, •,/-»'. §f 'uA."..BZtUOSX PtACE, a Bubdlvlalon In Harris County,, Tex—***-•" Tex-*;* -SSS^"*'-* ' i"-' I i.aa, 'according to the Map or Flat thereof, recorded la.'V^'"' ^unty,.-.f |o3>J-..-,**.. v., -Volume 207, Page 121 of the Map Records of Harris. County, i -Texas. .Said.property bemlng "»re particularly described^ erlbed' ^9 ^ 9 Sfl^a 3y Vs"3r ."J-%"" .*" by metes and bounds on Exhibit "A." attached hereto *i^Jl^l.fi^sfe.ia:V«''1 *" 1 'made a part hereof,' and-'«'•--"•'*>«>«•>•.-i.»».V-«^Wa^wtprS ijtu.t.-,*,^^,*. * • ,• i m i ». .. •.<..t;r.N tucl!S.>.A<-.-i«ti*.»iat,n:nMi>uT ....'all furniture, fixtures, equipment, Inventory, end aU^wawg s.fi.:S3-u»»wj.-..-- • twiAc^tt. k. ' ••' I'••'•"x'..) '.~ilaccounts recelvablea how"or hereinafter oyned-by^t*»\V.?>^l'Xits1vjV.iV*.-*-.'; •/"••'•••»-•'Creators end located on the"above-^eacrlbed rajaLproper-^.^atsSSai'" T''^' .'.J" •'':* 'tf as set forth on Exhibit "A" attached hereto and made—^^fju-iw-i.......... .'.''.>'"* ' avpate nereoz,..',..,.:»..;,, i.4 'i>^,.-.w'-;ii»«. ^-••|uJ--.«5;.*ii5.lr.r^:•i-vy_»^a;tf:vv^t.••>;^•.-'•• laitiha «hb .0 iaptMaracaU Uoaua aad Baraaftai duet Iheiaaa. led i3 ibidau.aaitimU. awnanr'asadi. »rH«ra«B« •p7«aiM. and mat - tad at BMdaa la» abBW dooaad pcsptalr at lat maMmcatan laamm. aBtadnf. b«l bm •ummn UannkKKBd . bmindla.iHhunae, %huat.nfnpniioa. phjaJbine, Biautoilat.launcnung. OT»a4aiuat. cacataa iad n <Bjfldiltowadas,wiwMat. aaat.(Utai«iMd -tf.-unmta. wiadoar antat, »w«o« lAadn. naetoa ebadi. jflraact. lUnt nmuifi aad tanawwr aad aaneaal preptn* Man clniMll lad atnei ad Man awd « fumiacd ia owbcuwi mik lat apoauttc. a* aad laiejrMai ef lat absw dawhktdBiBpinr aad tha -. BWJiltftpbrammUiediueJMelioMUaiBcfdftdlddMo^ afluadis ikt ibow dcatnbai ml piaptitr:aad.al aadajagalM lV»»Jiii.pinan«VteadWiB^».»rpimtaMM^(«u.pfanuiadiaooajalai tnr*tn modemat ipptfuuaag w taa praaigiwi hutliiiiMwidaauiUd. R<f«..tff hm ..»•» *\+~e.&^<wk.i i^i^J *'}V*u£v2it, .<• TO HAVE AND10IIOLO Uwifcoradaeriaad preaaiw. iBgnhn vjtk al aadHatalaitha rigba.jairi»|qa.bBadlUa«Miiedia»ai«iiuK«t ihtnaatoia wym» uddtat. iBBrnaMai at staa«la(<t« of btbcb fthaaauftaaJIsd Bi«m»«(»aai»T»aa»>sic4Wi»«caaoBciiaA»uieiM . (eirrtr. ud Ciuion hmbr bud OwiaiBbti. lata- ban. inccown iad lepl Npnaaiiinn. is annul aad fount dtftad aid sibbbm* nalo Tnniee. hit rjectnan aadasbKUeln.opuut anqr oanoa «tama>tKXlie4u^ctaiai^orlad«niBtu«ac<tar pMUanel. »-^^«n - Tfcb caanriat* « witiaM It • Ottd ofTrtci tad Stcsih^ piMvvw sf ufanngaad tafoionj lat a»raaal el aaladtbudaaii, attvidtaeid ia panby a catiam ptoaaaafy aett (aatiaifatctiad Naial ef CRadHiLtRVtthHithtBnaBBalBjn .. •',\'''lV "V" '"• "l*:" " •:'*•* '••- '•i':.*rf ;4>i X^-t'<-^<-'iit H-'*i*« ,»*»'*H"-* rf erenT imwn»m>TPiT winnMim inn mnm. •, ' . • .Vif«(i:iw.Mi . •- -'- _ t ': -t it,".~ !-»••: «i'«t '-J ••«.«w»»' cucuiaf by let Cnnisn aad asyiUa to Ifcaarda of, A -JT. STimBTTT MhW' Tout caiponiiea, lawaiaafltr. tatttlat wile lay mbaqBtal baMtr at tka Heto.calad &cmlku>rl. laa larea of bMcb Mateam asanantcd IM fctnia by itfntmx. aid Neta banng iaioot at tha nil umtm aondad.bortrnat^'adialiitHBOi^Mjnbaitlhaontaof beaaficaryu . !':' V •'" * .-•*-•••••• I* !••'****•»» "'" '•'"' :••- •••- '-.'. '•'•••* J •">• -«ia«. 1*4 vt-jsiiif «<:£«;<*•.•*»*t.«cJ *J«* ihntia p>e»idWand ftailly raanunt *" aa therein BBt-eJf-faJ -tihialtnit eapart due BRadpai iad auntt it'ot aa nv ««>d llitRia.Said Hew prsndii«torattdtnlloa ef nuliuilyia tut «f deliuuiadfoip«>mfntoIT«aU07«pttc»tilu»ii«yt(««»Uthau»»a it rlKcd (a tka kindt ef aaaltemry ret coDtclioo et cotetlrf lhrt»»hIkt fteeut Caatt.aiatiBp.icyCcait at slhu• ktatprooaaat. aadaba far the puipov «f Ktunnc lk» piyawat of ta o*et dttru ef ««t UadanddaiKht nowat IwnalKi bwumby anyef Ova Ci.Mtenla tkakeidu at kridtn of Un iwuMiunetl aeia akauut anh dibit to andnand by onttta uaouult or not aad alitibcc ibry ba-ilaut sUutiuu •mwt eai a • tBMair, todancanau tontyihip et otbtrntt. ot wktllict tkty as ioiat.imtd etladitatt.tad wbtlkMOar van batisteit et PLAINTIFF'S •it ktmfut purdaaal ei elbtima aaqijiitd. uid iIbb fu - lay sf ihen. miy btcea* ohunitd bcrramlsr.«btfeafUrtkaamid laeibtajaiav' whu aad bnoa tcftn ta aadtaMM.lka ibataluaibid Bate Ii EXHIBIT 1)4 lk« titdabtcdaca caa°aso4 Unteeir. icttlktr trttbnUIOUIBf itt otlat loan M m iccw If Hiw IDUH«V lHM>Ifa MB.IBBM aaa Ban m w a w away bjvib aiwmtammm aaae^ aa—a aaa—»r» a BtfaiBttiadtbtadMUMdciiiilliaiaatantorinyD r Moil* >tf ' Tniil"ttcunitr twtt Ud """"- ...-#—i. — .i.—^-» .—«-r aid aoitt inddttdi el unit aad aid (it, ianteflcuryt * "^- ^^^ •* •••». •-•*,•-»«..«» -.J«W e» |taaii«*'d eal-tir: b«'. • tkaDttdiofTiuu, Cuumr^RbytxpattlycaitaaalaadaireallaU „,, |.%v.. ,r,-ta(i,„.„, .. . 1 .. -.. • . mm. 4..'•,'».Mr.«.'»,< I--.-' I; ThtyailvrOwNoiawouadtottiyu»Mdtra«iiblb«tmasanjfeoiuiratha^ . . . _. -.^•-fc- i. *«'«—J . ~ ?. * ^ "»TC - .f.'... ef aay debnfaeni amuuntt dai btnaadei u> aatkt tka tuna of aid Beta,Uanatf acne that Binfitary Bay caCtcl• bis dartt not to lined :JffVajM*ff| - sil 16*) per ant of jny auillmemwhkhit odl paid wlbla tin IS)diyt «f Uadaadilttbtnof ttcoTOIteauasiptLuaanBlndmhaadltat dcbaqiicntpaymenu.;.'~","" ' • ,,"','' "". * '"'T'V" ; ' "*—•*•'*. "*•"' '•'.•'•^-'**V"{5.''*''.!fc*:!!**''i?1*,:,*srM**,v,i:Mtrr* ** . 2. Tail Deed ofTratlVhtO comWa^^ Vcinaajeoaatt'in^ r^^ —payracai ikritof.lilevua. tbacieculioael thit Deed of TruUdull Mibnpw at uTctt at be tlTcrtcdby aay elket tNatily wtockaiy b»pnajle lecertlot payfflcalafthe iodcbledata tensed fccrabr ot ley put baVeagaad 18IwtkiddiOcettl IWTirtly aaB bereawiartd atraaatiun. T»- tibuf «| additional Kturity. ticuuaa ef nanal nlaaut ef lat atcnliy at aaytUronno sf Urns ef paynaatef tor isdebtcdataacacd keitby ' i>iBBetdiaimxkik«<oit€.eiTectefCea«dtteD»edef1faitetrft»an mjktr, iuiety w tadona fat the payntni of aid indtbudaru. • • •" -«••••. '•• — •• • •--•» ••i*-*-* f*.», >n»r» iiie^ *-t+at m^j tv»A:.»» . _ . ..-•• ."•'••"•.." ' • - i -:•-'••;•* - '••' "^.-.^<w*.i»«*^JW.M:i^*^.w«i"S.J,»fr^!„v; •J. Tbey anil toy » amrcsme dot aad betoa they beceaia deBnqaanl.iB ttaet. imaaeit aad etbat elaata tapped. Iwad-ee aaaaad iliuntikepicniMtt. • ..•>.••..•..••>.••...-,.. i„-ii,..!t.... • ..-..»•... '•n.-rrf^t).t»i\*i*r Ttl rrn*y h •-**•.**. l-r-f. .••» 4.- They tut keep tha ercmnaa in gued condtiaaiand rtxait aad«ral not taaaat at yatmit aayeaata,iapaemqat at dtlun imtlaai at Ike aaa. •xd trnnili* win not do «» m.1 by vkick Ua nlvs ef tka aeora lUiuiUit pitaiici aar bi!«Beiimte»jaBBaVlte»ltW'teaaaByaaeBa«Bwaii» fivimtx.of penonalpivpett*beiltired. dcteoyed tt ranond fnm aid property witkeattha BTBteaeoaiaatefbur tltinry. .^.w: »-„•• •'- ••'.' • * *• Uiltr^tt « v » for Ikt tntiw.it al in# Noit ,mI alt nmt la eaauca dlM ucd^ Uib. I>sri c4 Tnm. Cjwwn kenbr uafa la »<ni'L«i" 11 irrit. trteaurA ino imim item Ik, pnmv«.imi«hn«a!it>il>.n^nu<ktnmi,m90t>.icvalUn;ntatitndi>«T«riuwtTtun|la • - •.' - •""' .' '.V.:"-."|J.':>;'i'4<'j;;"B"»:*4fl''?"•.•'.•-. '':>.i*r-i::>r;iv^««,\^b^-a(.a«-Si.t*^ /.M- *,«^dJ.^.*V»v_aw^j|«at " 000030 Ba^taBaaaaaaaaai na of fc»fa~Mr».iha»ha»«uta rata, bat aal oar ilaaHaa, lata taSaL tanas, vet bat aad eefBlarereata.iriiraai.atri weenaaad ta apply tat aaa ta icddaealiMtde etcoaottioe. Ob aaa deastt. ot ibaat ikt aBprcoe&u of f Ciamon-Laeame. oo mtb ba SBDtfcdlo leat a rrccmr appeased BaatslaMnuOaatanaad regardto the ._ .itilaiilencdttai panajaaerii ef Gnatsa et aay allay ptnoa btka fet aay pari ef Ita ea«nr« •rated hereby. gSsil *- Gnatsa en* km!** a iiBBtid anaat aata Baadta<aracBsiaBBta.fci 0 6?S9AnaMa'eBaaasapesse»teall ibaaaaaSacaaaaj . . i ta Boaucory a>na iaatei §3i38ih«reof th^badeovetrt to aeroftussy BUBteaafy apaa aajiart Ibacaf. luprtlat with ttttata atanag piaaal of afl Payaat taw faiaBcaeft^Baflraealheted^te •ejj'k'Bi daaaee tolet prataaa.or eaattemel aad applyell at aay pan ofIkt aaaa.awe aaaa ieaa»ilaacapeaa.aaeaaaalaatka adttanliaii iScaraaXMby.eatallaaaykie^iBdaaaa ItaTSr trbadds* etattHBMtaa of aay pan ef da e»w*si at dtaruytd erataaa. Aay aaek aaatybad byBaafcary totrtbartfnaet 4*: KbaaaaapteiBedaaBdlkt jrttlewtBJBiteBbelBalaejteB^ Becnaiiiy abaseat be aapumi*rVi> lee lba eaaateIBtestacl ihatsaBteBBdaasf ttaeBaoaTaaaaaae. 7. irCnaton uBlaeay bafeta eaaajBtety eB awe, nanmn «ad ether cbarpti aaaaea. aaad ea aaaed aaaal aadtaBptliy et la ^|^..-1^(mrTOffr,1.jj.lriyT,Ta~tT~t.|.iii.iIii.lia^-~ft-i^y-~r atjaaaataa aaa«a»«ta«»iM»rf^eat«eB»aiaBBalB»BBiHaBlaT Ttaa let break ol !BfeataBmBteetEBMde»eia.B»^^ <jt—an, a, Imlliiq nil mm llril mny 111 antiiinni hniniliiiiiriilitin ptnmiii nifnatni Tdt THhrtlnaajnlltin tntanaBtrelir**ir*^*-"*T•**—(•—*• lanB. jBawaaala. daaaa aad tot aaa, dta sajttata of Ibt paaptr oObxn Mat tosseaaa atataat of Ua stfsay a* aaaa* tanast All auminu «o paM by BiiailfcHiin Baa fataaawaV secant set to totaCdiiy. baalbw tHtt taaata tatta aaa " Ba fata day sf tkt eaktada Btasth ia whah aaca, payaaaB an* nade at Ibc tan taaaaadtarat "JetoMtaatlbartey.aadalaadiaBi tJnH bfsBstd to bcs sWCajest & pan af tta tadahtidnaa attaad by lba Bradaf Tata. - B. &aati»arfBs*laBTaaiBaadtta*Bnaatn«>«a^ ». 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Gtaatan. ar-Hae tainst laejaetoi teffcraan! ef Ike patekaaref tad paaaatpet aay pal thtraof.at tack Traaart Sale oe fim baae Baa: aadthattartiptBcaajct* daU ba eatiipd lo the aBaaata pnawkw tbasaf. iad apea faBtas to aniindiii pwtltiaai. Ua Bawbaay.aa liadail. daB kaat ikt npkt lo to into inr I nf tna Itiii«rniin in ttnrPntriml naiiitmiaty(hi wWrtillitprBBryiy ntnriailntrt fllnia Mima fnt limintiB: ram aadariaatt. tin t> iiiiiiii inn i jiinii Hii Hi iiita taaanut ilmh llilm iiniinniianif—I '" nn nlniiri |iiiiilniiii TTliiimail n imiiliii a n~" nip inn allttaadat the porthwar aay haw Luimdui easUauwiai- Tba Deed ef Tnrnt andTtaaeaU Deed taetated aada Uapa—tt«taaied haare> taatt be. m »ny aetaw ef fottdat attakar. ptlaa faea Uiantort. lam icnaBtt aneVee aaJan. 000031 > ^ ^ . . e -.••-..• I .• 11 J •Jla-yeaetaBBjas kyJmamMiid. e: .tpr«srst ««e»Sr.- «Bt;*«.•«*»,*« - .-IS. 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Tb sb ttae tad aaaa es I to pay tattaat ta . a Ot BayiBBBI sf aanat tar tta tat sf satf.etraaabsdto U. T^.aMaatdyda-^8aa»efa*aa^^ farfna*ftay _jtaaa>> • apavi uiaja^to^lMg asp as jpataadBBB3aa..^^r^gt^ .M. TtoeBatesoa aad'ejieaBeBta bs^ caBtaaad Be. a* •'• ««a? .' .TSSS^tl^^mst-^^. . jantal aa^n(y,.<ii«ntoi«.m2|ll p^ the ora^of^jpoaa:s^»^^ ....... lfcW foam such. extot;M.Vwa.i!» .WQjulJrt^feiwqli! «g8aey :1ft:—*-**•—**"— ""•"^ QglatlBg BpvaJ'ttBkmte^VgBgilatlrwia itfvagalJg'ttBvJ ivftrs •.*£- 38. It, 1* etpreasly «0paUt6d and agnad to to tte Jstas^i clary to' at all ^lw^coaBjily stth. tts «p9licabla-ft»Ai ttein- traeet payable ba. tte Mte mcHse&hen&i >.:.U ^tte __ ed, Or jraH««a'liy dalal^watarl SO fiS tO rCOdtT MaUriOM Note or under any- of 'tte.BBonrity luaLruBieuta, or;aontEa ,,—.—^—-— v noeLied »lth napest tb tte .ioan tn^fknoadL.by &*mitm&L>m*tfw^^ Siary ea«rrtfj|e>o of tte OStlOB laWalll.OOataiOed .to aMwatlawaataai• ttaBrtaUtlieity.-Of?JUmlmm OT iZ any prepaomart by Grmntors results in OrBaTtora-tevljaKPpB^aiTjKJ^^ pemltted by la>, ttea it is Otwribrs! iand Baitrflolauy'a^^apreaa^lnttiafc.^ amounts theretofore collected, by BenaClolaxr. be- or«iltB^.oa^theM|«top«^ .tbla Note (or. If tte Hate has been paid in full',. TCfutBas1..to^iiVettitosB^-&Ba%^B^ of this Nate and' the: security iiaBtruBeatav liasedlately -tes:alajdid/lrn fr^iB^wfc^y .'aaTMnts thereafter i»»iiaw»dy>|af iareuiider.and tberauadSE rediaOBdv.alUaUUfcStteaMa^ af any new doeuBent, ao aa to ooaply «ith...thfr .then BppllcaibTff-^tbttt^ao aa, jfe pegadt tte recovery of tte. fullest anbant ott^rsiseT called for- htayaiibica'«bilLt&egiiiiiiM>fi ii' ^flffft^fo :<- • ' • 98. In tte event of sale pBtnattt-.to a foreclosure of:tatKDia«toeftp»t osroeter: twua^ of Utle to tte property bert^.yeacribed Jttt .extiibgriirtiBBatEog^teAi hereby, complete title to all Insuranne policies beld.byiBBoettciayR^.toyjil. premlunB ttereon sboll pus to and vest la tte Puxtdaaer-oriflrairteewg^^^f^^-- 87. Any e»dfl^"eaBBarla^iO»ited~Wth" »^ atell be used, at tte discretion'of Beneficiary (inTaddltSJ^to»tte:pnrpOBXB^e»r out here in), to cure any default under this Deed of lrurt~&8>Jd£ . - una. -—^__, eanaMitM wadiMMjokaj .> .--.. .. .roanoiajBtauluailtHirnl • -5STaAtaaairteaBtaa«•* ^^-••^5BaO»W.asWUr--' »•" 000032 Pprc98-ir33 4 - security for tte payment of all indebtedness secured hereby, and the lien of this Deed of 4Trust shall at all times extend to said sans, which suss shall not be assignable or refund- a iM» (except as provided herein), until all such indebtedness has been paid ia full. 28. So long as the Note secured hereby remains unpaid Beneficiary or its agent shall have the right at all reasonable tines tb inspect tte mortgaged premises and all applicable »boohs and flnaw-Jal records related thereto. i 29. Notwithstanding any provision ia this Deed of Trust to tte contrary, tte provisions set forth in this paragraph shall prevail, and this Deed of Trust shall be construed to give full force and effect to that hereafter set forth in this paragraph, lbs sale of real testate Bade under posers conferred by this Deed of Trust shall be made in. Harris County, rTexas, being the county in which tte herela described real, estate, ia situated. Notice of : such proposed sale shall be given by posting written notice thereof, at least 21 days pre ceding the date of the sale at tte courthouse door of the county la which tte sale is to be ..nade. In addition, the holder of tte debt to which tte poser is related, shall at least 21 days preceding tte date of sale, serve written notice of tte proposed sale by certified 3mail on each debtor obligated to pay such debt acoording to tte records of such holder. Service of such notice shall be completed upon deposit of tte notice, enclosed in a post paid wrapper, properly addressed to such debtor at tte most recent address as shown by the r records of tte holder of tte debt, ia a post office or official tfepuHltury under tte care taad custody of tte United states Postal Service. Tte affidavit of any person having knowl edge of the facts to the effect that such service was ooDjpleted shall te prim, fade evi dence of the fact of service. Such sale shall te nade at public, vendue Urtwoon tte hours i of 10:00 ajn. and 4:00 p»m. en tte first Tuesday la any month. Tte bolder of tte debt • shall mean the Beneficiary, and tte Beneficiary's heirs, personal npratBjttttves, succes- • son and assigns. Tte debtor shall Baas tte undesigned herein called 'TSranton" whether one or more, their, Us, her, or its heirs, personal representatives, snooessars and suc- neessors, as tte case aay he, and assigns to tte extent aa say. b* expressly psraitted nur- .suant to.the provisions of this Deed'of Trust and strict, ca&plianee therewith. / The most |.rrecent address of the debtor as that ten is defined in this paragraph is dtmsn&ted as follows: Sanantha Corp.., Inc., is 4408 North, ffhaptwrd. -BuuatUB, Texas 77017. Grantors represent and agree: (a) tte foregoing address is-hareby irrevocably and uncon- ^ optionally designated by said debtor as tte debtor's nest recent address and.shall be deen- • j[ ed to be tte address of tte debtor according to tte records of ..tte. Beneficiary unless and • until written notice is given by such debtor to tte Beneficiary by registered or osrtlfied mail, return receipt requested, postage prepaid, therein and thereby giving at least thirty (30) days before any change of address nay be effected at.any. ttee and. from time to time hereafter. The address first designated above or. any change of. address punctually and ; strictly given in tte twiner hereinabove prescribed, last givan-shall.constitute tte most recent address of such debtor and shall te deemed tte most recetrt address- by tte records of tte holder of the debt, and (b) that tte designation of tte debtor's^ address is given only 'to the extent that notice la required by law aad far that purpose only;.and (c) that the provisions hereof shall not have tte effect of debtor to tte extent- required by law aad without waiving tte rights end ranedies given to tte Basfliclary; la. this Deed of Trust or any other security. ., ...<$ -^v^-jm? *sr «.•••!< ' 30. The security interest granted herein snail not te construed or deeasd to constitute Beneficiary or Trustee as a Trustee or Mortgagee la possession of. tte bxtrtgaged property so as to obligate Beneficiary or Trustee to lease tte mortgaged pnjparty or attempt to do the sane, or to take any action, incur any eapense or pertonn Or rtlBTtwrge aay obligation, duty or liability with respect to tte biartgaged property or any part thereof or otherwise. a 31. This Deed of Trust shall also constitute a "fixture filing0 foe the. purposes of Chap- 1 ter 9-of the Texas Business and Cbteeree Code, all or part-of tte.mortgage property are or are'to become fixtures; information oonoerning the a^curity interests herein granted may be attained at the address as set forth la this Deed of Trust.- Rar purposes of the security t Interest herein granted, tte address of Debtor (Grantor) is set: forth .in Paragraph 29 on I Page 4 of this Deed of Trust and tte address of tte secured party (Beneficiary is 4610 S. Wayside Drive, Rbuston, Texas 77087. ._..«., - 32. Any reference to "Association" shall mean Security Bank, their.: suooessors and as- * signs. 000033 • aityaj^»aiT«ai»w^«jaawe; V^98^I73E (o) Beneficiary shall give Grantors notice, by certified mall,, postage prepaid, of • tte time and place of aay public sale of any at tJM> Collateral or of toe time after which .. ...i-izcr any private sale or otter intended dlsposltloa thereof.ls-J» be made, by: Beading notice to '•...-. *r*?< Graators at tte addresses of GteeUiton set out below opposite?ttelr signatures at least five (9) days before tte time of tte sale or othar disposition;, which, provisions 'for notice .•' . 2 ..it, Grantors and Beneficiary agree are reasonable;-prxwldt^,.lujt*^ teraia•shall rr.i "W'Jj preclude Beneficiary from proceeding as• to both .waitaad. personal property ia..accordance with Beneficiary's rights and reaedlea la respect' to: real, properte^, provided ia tte Uni ••»-•• .22 H form CoBmercial Code, and without aay notice to Grantora ;exoept.£or,jtte notices provided ia tte uniform asnsrelal Code.rand without any notice,to;ar&uitor8j^H»ipt for tte'notices pro • :*'..> «•£»; vided for in paragraph 29 hereof. ••%:_ >i->^i^Vr»**'^*^.>'^s":*i "•£..' **"*• . -.—rat (d) To tte extent ansa aay now or hereafter be perWtted unosr-Texaa lav, Benefl- - ."»• • , ;!• ciary is authorized to execute and file fltwittlng iptatbaaactr ^yjapatjagatlon stateaents under tte Unifora Gaansreial Code with respect to tte'ODllateral.without joinder,of Grant ors la such execution or filing. Grantora siaUl ext»tTtetaUxL deliver to Beneficiary such • ••-.-: i*.-' •financing statements, continuation ertetements and other-dooaaente relatiBg to tte Collater al as Beneficiary may reasonably request from tdae to. tine, te preeerve and. taintaia tte .. •. •:-*-v priority of tte security Interest created by thls-DeeiLaf Trust art.shall pay to Benefid- ....... • .;.••;. ary on demand any expenses aad attoraey'a ft^~ Iiwmre&^';»*^^ onnaectioo with : ••; :'J.-1) the preparation^ execution, and fUlag of this Daed o£-truerr*anchor say ft "pricing state- :. .2..; lt.*i oehte, flffTtirmaiH"" a*a*^MMttal partial releast^^terainatibastatBBMrts or .otter documents necessary or deslable.tb contJane or confira ftwpflfrlary'er teeaglty iLTtagat, or any aodi- flclri<w'' ttereof.\sfhta doarawit and any carboa, ptBrtitjraphto;or jotltgr^rciuoduotloB. ef this C.i-,.. &j document may be filed by Beneficiary and shall be mfflfllerrt. aa.ayflaanrtiag stateaeat. All ' or part of this Collateral la or la to become fixtures: on tte real estate constituting a . i-ii.--a.ie*-] portion of the Byjrtgaged property, but- thla abatement:ahalR'natixfxdr. or- limit tte effee- tivenese of tola doasnsnt aa a security agreement or fl rflifflfd far stetanent far otter pur -.:i; .-.'„' •%&.% poses, aad *Ma Dsed of Trust' shall constitute a^flxtorB~.flatahxlJbr:. statement and aa such, • . •» .•'.aftJdj shall be filed for record ia tte Baal Estate Bsooraa o^tte^Ccanty la which tte land cover .... ed hereby la located. Grantors shall, not changerGraator.rtoname wittbaut tte prior express written consent of Benefieiafy, tte nam* of the; reoostf'OHnB^exVttw land covered by the party or parties defined herein aaGrantors. daVtateartBr^'y^ .yau • -^-. ^., *r^T*t-t&^*^-&bV^\'i^ •(e) 'unless otherwise disclosed .to Bsnefiolary^fepb^ml^^ ' that, except for tte security interest sranted> htaeb^l^p£^alla tte ••••., ---j.-vtiO, '-'jjj 'owners of tte collateral free of'aay adverse alalia,. ssenrltrlatereB^or-erbjiaahrareBeVand • ••• :',..-w*?"a.-j Grantors shall defend tte:Oollateral s^aaiasfr'airole^^aad'jSiBS^ psraoa at any « tdxe oTaiinlng tte ssaafor anyilatertat. thareja^JOraatdrs, havtknot: heretofuie signed say financing statement and no ft imaging rtateaait. erifetso^bj^fj^ Ja file in aay public office'except 'those stateaents, true and>'oarract^bopi«tfofr^ been delivered 4\S fOZVj to Beneficiary. '• So.long as any aaount reoaihs unpalo^oa^'erUdc.iBal^Dteu shall . not execute and there shall not te filed la'aajTs or statements" affeetiag tee Collatsral dary bereunder. tr*i»'Ii-^': '^.r^^ ..'.'' 'ff)-'*.p'B- aaaurlty iBterest ganted to -" atdtute Beseficisry or Trustee aa a IrusU^jae,, _ of. tte Bxtrtgaged ' properly so aa to obligate Benaflclary or TrusteaK-toi property or at- tempt to do tte same, or to take any actios, incur any •r discharge any obligation, duty or liability «tth respect to ' ^Osvaay part thereof or otherwiBe. *s- • JJ=.'»vf-j3Sf. • • • *^3i!tti.f^ffjyy!Ta 38. Tte Grantor aoanowledges that In additdotf tb^'ttat^oerteia'vPixmlasory Note la tte amount of 2830,000.00 executed by Grantor of. even date bsrb»Aa,^GraatiDr has executed a second ProBdasory Note of even date hereof la tte aasnTt^o£r^0,000.00, secured by other security interest, Incinrilng tte real property herela> ftesorlbnd;, and payable to tte order of Security Bans. Grantor cevensata, stipulates: aad.ag<«Bnto;teep..said aeaond Proadssory Note la the ascunt of S390.000.00 ourrent, la. good standtagi-aad not- ia default, and ex pressly stipulates herela that should default bB-madet ia.the-pa^ineBt-of said $880,000.00 Note, or- any part thereof, principal or interest-,, asiitte-aBaxe shall' became due and payable, or ia any of tte covenants of tte Deed of Trust and Security, agretasut,. or any otter docu ments executed to secure tte payment of. said. Sm,0D0.0O.itobt,,< tte-'indebtedness evidenced by the $830,000.00 Note, at tte option of the- bolder: ttereof;jahalT ataoce, without fur- • ,*t BOO ;^&?; 089r98H7'*. -7- ther notice, all notices if required having been waived hereby, become due and. payable. Grantor further acknowledges, stipulates and agrees that in tte event of default under tte terms of toe $850,000.00 Rote executed of even date herewith by Grantor shall also be an event of default under tte $350,000,00 Note executed of even date herewith in favor of beneficiary and further. Grantor acknowledges, stipulates, covenants and agrees that la event of default under tte terms of tte $550,000.00 Note executed of even date herewith by the Graator shall also be aa event- of default under tte terms of tte $850,000.00 Note executed in favor of tte beneficiary herein by tte Grantor herein. EXECUTED in Harris County, Texas, on this the 26 day of July SAUANTHA CORP., INC. '"*.:/#•' JOSIE HAIKU. ATTEST: «yV f/tJfa^Z' itary Gary S. Cabot STATE OF T E X A S S S cccnnr op bahbis s BEFORE HE, the undersigned authority, on this day pmionwny appeared J°"*» ,....-.. President of Samaatha Corp., Inc., known to me to be the" •Jtaim is subscribed to tte foregoing instrument, aad acknowledged to me that te executed tte same for tte purpose and consideration therein expressed, aad in tte capacity therein stated. OWES uTOHtlff HAND AND SEAL OF OFFICE this 26 aay of June, 1984. h HARRIS COUNTY, T EX A 8 lv Karen Chrlstley (Print or Stamp Name of NotaryT ay CbmxLsslon Expires: 7-31-84 Saturn; Security Bank 4610 S. Hayslda Houston, Texas 77087 000035 •aaj 207 *208 a> -a. UfJI _!. A 'JB _J . «*• "W •"•?• - .. .*-*_. * •" •> .* T •" .•**•' * *"*f\ „•"•* ""J""" » J"* .**.»" *"*"*VVT AccaiBSnte HaSptM-tSMS »-•:.> ' *'••.• -' NO. 97-40590 CHOICE CAR WASH, INC. AHD * IN THE DISTRICT COURT OF -BUSINESS AND OWNERSHIP 7' LIABILITIES TAKEOVER * CORPORATION (DEL.), INC. AND DOV AVNI KAMINETZKY, * A PRO-SE LITIGANT * Plaintiffs,.. vs. . . •' ;."',--..*"*' * HARRIS COUNTY, T E X A S I DOSOHS I, LTD. ^ . * - Defendant. T* . * 11TH JUDICIAL DISTRICT '-'.! ' /ft;-- EXHIBITS 1 THROUGH 30 TO THB DEPOSITION OF MATT N. MOLAK .JULY 28, 1998 ORIGINAL I 4. i. VayJja,"* --:• •i-trv-:..-- I "^ •-'••''. 14-14-00410-CV Petitioner, v. feyp Respondent EXHIBIT _3& TO APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF 7'7 ^ " ™ u ... ... vl ^P^TsjMi ... »•: -:. <'• 77 S8SO,000.00 Houston, Texas / -.' July '/26 ,1984 :l.'V. FOR VALUE RECEIVED, SAMANTHA INC., afTexas eotpo- ration, acting by and through its duly thortteed of/leer (herein- after called "Maker") PROMISES TO SAT T jwjJer oe/secoritx BANK, (hereinafter, together with all aubse \ftolHerar ient> of this Mote, id.prirac before the 26th day called °Fayeea) on demand and if no dei of julv > 1989, (the "Maturity )„V*B Tier/lnafter provided, the principal sua of EIGHT HUNDRED FI TteUSAND/AMD HO/100 DOLLARS ($850,000.00), together with inters/ bV tat unpaid, principal bal= ance froa tine to tine outstanding/at. thW lessor ol tha applicable rate (as hereinafter defined) or Ae. Ba^aua,/rate- (as. hereinafter defined). As used herein, the team °AppUcabL6.-Racer shall mean the rate of Interest per annua equaY toya-he: Prime:-Rate as. hereinafter defined plus four percent (4%)/ •m^\maxifam.. Rate" shall be the y.y.:-' maximum lawful rate which aa/ be\ constracted ;for, charged for, taken, received or reserved b/ PataV in accordance: with the laws of the state of Texas from time /to tlB«\ln- effect: except to the extent the united States Federal Law permits., tihe payee..to. contract for, charge, or receive a greater amount. ofyinterestv.due credit being given for all. charges mads in connect/on^with-,' the loan evidenced hereby that aay be treated/as interest/under applicable laws. Not withstanding anything in we preceding/sentences^to, the contrary, if -:rM' at any tiae the applicable rate, exceeds;' the: maximum- rata, the rate of interest payable hereunder shall/fee-'Halted: to:.the maximum rate provided, however, that/ any ^subsequentUredaction.-'in-.the applicable rate shall not reduce tfne applicable rate below* the. maximum rate un til the total amount.of lnterasr earned, hereunder, equals the total aaount of. interest woich wbnld h/vct: been-' earned: at the applicable rate if the applicable rate^/ad lh all. times-.bean in. affect. based\pn a» three: hundred-sixty-five day year, will be accrued or/ the. \uaber/o£ days: the? fundss'are--.actually out I-.."- I 'M standing. If no demand, raj mad*,'thanr therprincipal: and interest of this Note. shall/be dVuei and/payable^-lir^ monthly:-'installments of $12,825.00, each/payable on Abe 26th'"day og each"and" every calen dar month, heoinhing (the ltd. »dafc.ofc^Va./^^•:•^Ii:SV^^"',; 1984, and shall continue sjonthlV thereafter,; until; the! maturity date, at which tiae all accrued and unpai^ intere3ti'and?any-,and"all: unpaid princi- pal. balance he/eof liball ' due and/payable: imfull.. '•"}/.-, •-.:,•-'••.j-Av^V :-'-;i'jX'v.3i'-.^'.''"" .'" Tfie foVdgoine/ installments! ofV principal and Interest have been- omortizedX bases *on on Interest- rate* of eighteen percent per annua oyer a .term ck three-hundred sixty..'months, however, the use of eighteen percent/per annum-, and: tutor8uo'£ three, hundred sixty months for Ahe purpose ybf-amortization shall; in no manner affect the actual ratji of irVteresA accruing: air this- note: as- provided, above or the final /matscity dote o£ this. note-, aa. provided, above. Purther maee, qua/teriy beginning the 26th .;. day.-of? -October , 1984, from the date/hereof /on amount equal to the- amount of principal which would normally oe paid under the aforesaid, amortization for the pre ceding quarter less/ the aaount of principal: actually paid for the preceding quarter, /plus any accrued- but; unpaid: interest,, shall be •KS due ana payable (ii/ addition to the-aonthlyrinstallments herein pro vided £0 be paid) ppon Payee furnishing, Maker: as statement of the am ount due and owlnt) as provided, above,, so that the- monthly install ments due thereafter shall properly amortize- the- unpaid principal, over, the remainlrn term used for the- amortization of this note based on an interest rate of eighteen percent per annua. Failure of Maker to make this additional payment of principal--and interest, if any. shall- be tm-gverft-nf -default-under-this Mote-and, the instruments se- I curing same. "Prime rate" shall mean the- prime rate of interest per atarf » r*« • •=- "annum "publicly-announced-and- cbarged..froB„tiae:jtp time_ by Security agfEJ|s, tgfjflj, 2312 •v ••:;$ .. ..* -"• PLAINTIFF'S EXHIBIT :.jl "... XT rrr • • A*.'> •: •',*> ~f.' — 210 — ' ' / .:* Bank, Houston, Harris County, Texas ("Security Bank") aa its general reference rate of Interest. Subject to the provisions of the pre ceding paragraphs hereof, each change in the applicable rate provid ed for herein with the fluctuation of such prime rates shall become effective oh the date each such change in prime rate is established hereof. Maker and any endorser or guarantors hereof agnfe that the time for any payments hereunder may be extended from tone to time without notice and consent to the acceptance of further/security tof the release of any existing security for this Mote aAl without any manner affecting their liability under or with nfespectftto this Note. Kb extension of time for the payment of this/Mote onfany fn- stailment hereof shall affect the liability of theAaker CUnde? t&ls Note even though Maker is not a party to such agreement. If (1) default is made la the payment in whole or in part of any sua provided for herein or (il> i\$ of dbfault shall occur under aay instrument executed ae sjScuril ir, as evi- dence of, or otherwise in connection with this ljMebted- ness evidenced hereby (hereinafter all ""ouch i eollee- tively called the "Security Instruments"), its op- tion, without further notice or demand, declfl bpald principal aad accrued interest on this Note at oaee d payable foreclose all liens securing payment hereof, pursue a*ay. aa owner rights, remedies, aad recourse available to Payee, any combination of the foregoing, all remedies hereunder/ and. Ity InStru- aents being cumulative. Upon the occurrence of a. fault. or la any Se- curity Instruments, at the option of Payee, all/aaounts payable hereunder or under the Security Insti rata: shall jar Interest for the period beginning with the date a" the »• of such default. at a rate of Interest per annua (the 'Default Bat ), payable on the first day of each aad every month, - the ;lmum Bate. Failure to exercise foregoing options upon the happening of one or more of forVgoiae; events- shall not con- atltute a waiver-of the right " er\iae-th® Aaae or. any other op- rexes tlon at any subsequent tine remit to. she. ease or any other -event. The acceptance by Payjfe of >4ay int. hereunder that is less than the payment ia full Af aJLl the- itr. due aad payable at the time of such payment shall noti'donatl atsalver- of the right to exercise aay of the foregoing ppmoaa that tiae or at any sub- sequent tiae, or nullify any priorjexersii o£ such option without the express written consent/of thiV/Payee All amounts ableAher- ereuadei are* payable in lawful mon- ey of the United States er-agrees to pay all costs of collection hereof .. fa«lfe Fn infiBred lading bat not limited to reasonable attorney's js, whether OKI >t aay action shall be in- stltuted to enforce thii NotS» \ Thla Note hall W governed _ by and construed according to the lass of the 8 fte of Texas f a time to tiae la effect except to the extent Unit States Federa Law permits the Payee to con tract for, charge on receive fer- BBoaat of. Interest. It is aressly stlpu! *ted and. agreed to be the intent of the Haker and lie Payee to at tlaea comply with the appllc- able law' now or orelhafter gove: hing the interest payable on this Note. If the apPi ieable law is «r revised, repealed, or Judlcial- ly interpreted i to render inrioas any amount called for under this Note Or ier any of. the ecurlty instruments, or contracted for, charged, n, reserved received with respect to the loan evidenced by tl 8 Note, or if yee's exercise of the option herein contained to lelerate the .jrity of-this Note or If any prepay- ment by Maker suits in Make: havlng paid any interest in excess of that permi by law, then i/t IS Maker*8"aad"-Payee,s- express latent- that all e: BBS amounts theretofore collected by Payee be credited _.__ on the prim [pal balance of/this Note (or,'if the Note has been paid' In fullT"refunded to Bakery and the provisioaa of •ihla Note andJChe • •%•; « ... • :f'*-.1i, y. X, - -,% ... I -a- 2313 ,T:V. ". 4 .- . ^wi.t TV *"* 1? .-V .• • C -X' • *» .. .-•-. .-*••• '- ./?-. — 211 — ® . security instruments Immediately be deemed reformed and the aaounts thereafter collectible hereunder and thereunder reduced, without the necessity of execution of any new document, so as to comply with the then applicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder and thereunder..* All notices hereunder shall be given at the following addresses* / If to maker, Samantha Corp., Inc., whose/addresavta 4406, North Shepherd, Houston, Texas 77017. / _ X' Either party may change ita address f/r -notace\pi notice\pnrposes upon giving fifteen (15) days prior written not! thereopyin acobr- dance with this paragraph, provided, however, f s aha Maker mftin- tain an address in the continental United States AlA notices Oiven -hereunder shall be in writing and shall be considered Koperly/g iven it sailed by first class, united States Mall ,/postoo ipNrepaid, reg istered or certified with return receipt r«qnftste«i,nprJb-r delivering the sane in person to the intended addresses, oi. by/ prepaid tele gram. Any notice mailed as above provided/shall «e effetyElve upon ita deposit -in the custody of the United siatesvposkal se/vicei all other notices shall be effective upon receipt-. ^\ \ If this Bote is executed by/ mora- thatf one/party, each such party shall be jointly and severally liable- for thye obligations of the Haker under this Note. Xf the/Maker ia a parttnerahip, each general partner of the Haker shall be/jointly/and severally liable hereunder,-and each such general partner hereby waives aay require ment of law that ia the event of a default- hereunder the Payee ex- hausts aay assets of the Maker befor, proceeding, against such gener- al partner's assets. f v , int/rfeaeway and extension bf She Soto herein is given those two certain Promissory Sot one\#n the/original principal BUB Of 81,100,000.00, dated that 30th day ofc/lannacy, 1984 (the °First Promissory Notee) and sondVBote in/the amount of $275, 000.00 dated the 27th day of y, \»84 (.the. QSecond Promissory Note"), both Botes executed by Maker and- payable to the order of the Payee. The First Promissory aottKUa the-ifeount-of 81,100,000.00 is more fully described, in aqfi secs/etr'br tb»/Vendor.'srUen retained of even date therewith, filed for ffgfcrd undAr: Harris-County Clerk's File Number J33SS087 of the/feeed Reaojrds of/Harris County, Texas up- on the herein described re&l pxofexVy, enf; in; additionally secured by a Deed of Trust and Security £sEBeaene/o£ evanr date therewith to 6. William Beale, Trustee/duly rtfefcded Under. Harris county Clerk's File Number J335S088 upoi the herela deajJribed- real, property, which lien is hereby acknowledged by Maker to be a valid and subsisting lien agalns the paeperty herein- described, and which Ilea ia renewed, extei and continued/ itrcfaJX farce aad effect to secure the payment of iBote hereby/secured, and. represents funds advanced by Payee to ker \hereof at/Maker-'av- special iaataace and request. Additional: theYSecond Bfcomisaory Note:, dated the 27th day of January, 1984 in the* amount oi $275,000.00 ia secured by var- ious security agn >nts to. Security, Benko- Said security interests are hereby espresslj acknowxaaged Makes, to- be- valid and subsist- ing security inter; >t against the llateral therein described and which security in rest la renews extended and continued in full force and effect secure the pa nt of the Mote, hereby securedi and represents s advanced by/ Payee: to. Maker, hereof at Hak er's special ins) and request! ••._.. ionally. Maker jfeknowledgeB that Maker has.executed Add a second promi ry Note of even/date herewith in the original priny cioal aaoant of 9550,000.00 payable to the order. o£ the Payee, which is also in renewal and extension of the First Promissory Note, and it "ia expressly stipulated by/Maker that should default be made in the payment e¥ said S550.000.a0 Note, or any part thereof, principal or interest.7as the ease shan become due.aad payeble.u-or-.ia.any of — the covenants of the Deed ia* Trust aad Security Agreeaant,^ or any other document exeented to/aaenra the payaent- of said $550,000.00 Bote, the indebtedness evidenced by this $850,000.00 Bote,_ at the =3- ) fi^V **«;. "'"1" " ' v^ Z3t". m~> "*v; * y :%?*• .-•* • **". "-.j- . '> .: •, " . . - • -?•* V "' ?V' ^: .-• ":".0.:f - *"" " :•'<: — 212 — •^ option of the holder hereof, shall at once, without further notiqe, all notice requirements If any, being expressly waived by the Payee, shall become due and payable. / / It is expressly agreed and stipulated /hat the bolder of these Promissory Notes shall be subrogated to all/of the rights, eq uities, liens, and security of the original holder of said/ Notes which have been extended ox renewed by this Mom Payment of this Rote is secured By allfaecurity ity agree i ments, mortgages, assignments, lien instruments, iCOBstruetlon loan agreements executed by Bakers or any other, narty ft favoy of Payee, iaeludiag, but not limited to, those certain docuMbnts^executed on even date hereof, heretofore or hereaftejr execujjeoj -including that certain Deed of Trust and Security agreement of«t»»n ./late herewith executed by Samantha Corp., Inc. to JajSk Brl$e, Trustee, covering the following described property, to-all One (1) acre more or es in reserve "A" BELLFORT PLACE, a sub County, Tex- as according to the Map or recorded in Vol- uoe 307, Page 121 of the Ha* Harris County, Texas. Said property nelng.more cularly described en Exhibit "A" attaehen he a part.hereof. EXECUTED this 26th esldent ATTEST: ?;s& 2315 r--V?>-v - .<•.' feg^'v::'- =?SK.V.'.c ' •'C ' •> .: -'. - '. :•/•.- '.'•; >.. — 213 — • * • A 0.99862 acres o«. land eat ef the 4.9133 acres ef land fcne&n as Che Unrestricted Reserve "A", Sleek 1 ef tba Bellfort Haee Sub= » division, out of the Henry B. Cose Survey, A-191; said Reserve "A being located ac the Southeast earner of Vest Bellfort Blvd. (80* HOST) aad RleevlUe School Road (SO' ROB), as reeerded ia Volme 207. Page 121 of SBE MAP REC0B5S of Harris County. Texas.; being ansa particularly described by metes and bounds as fellows*/ BECIHHIHG at Che Bortheagt corner of sa£& Reserve "A."; said' point being on the Southerly righe-o£-my- lias.-oi said Uest Bellfort Blvd.j fggwrag'g 02* 351 23*' Es along the ssicesa Borodary/iine of said Beservs "A", a distance of 301X00 fee? fer a/eerners being the Southeast corner ef the Jtereia described tract; also being Southeast corner of aald ResesvawrtPi 5BEHCE S 87* 30* 24' V; along s Southern boundary line ef said Reserve "A** »a distaaci .JL 145.00 feet/for a cornea being the Souehweae earner the herela cWribed tracts fBEHCTH 02° 35" 23w tf; a taace ef 380.00 feet for & corner, said peine bei the Southerly righe=of- way lias of said Vase ~ Blvd.? 'SHEHCE B 87* 30* 24" I; .__„_rly right- of•«av Una of said Wes „ a. distance of 145.00 feet to the P0~ aeaauaj&aifis SaiaSPSaB faaaaaBaaBBaapaaasa, 0.99862 acres ef land 2r-.r TzS-.. ::-ry • £3?' 2316 a»-~A»*V.* ><%.• l-a: '.e-.-r •• •--;.':—'': ' '-"•' i ••,:& ..... x. — 208 — •'"?/•-{.-- • HO. 97= 40S90 CHOICE GSR HASH, INC. AND * IN THB DISTRICT COURT OF.. -BUSESESS AND OlSESSHIP 7" * ilABILITISS -TAKEOVER . *. COKBORATION (DEL..), INC. * • * AND DOV AVNI ItAMINBTlXir, ! A PRO-SB LITIGANT .. Flaintiffs,. . * .* * i HARRIS COUNTX, T E X A S « vb. • .. -" .;",--*"; • * 'VieSr' V- DOSOHS I, LTD.'-*. '.-•- .. * - Defendant. .^ • 11TH JUDICIAL DISTRICT I ;.*-'C> . *. ?a-„ ";»•-" ***• EXHIBITS 1 THROUGH 30 TO THE DEPOSITION OF MATT H. MOLAK .. JULY 28, 1998 ORIGINAL 0 ^. *.-: '. . ' &J.A'- 1 *inr" •"SSbW:.. 14-14-00410-CV &OSOHS I; LTD Respondent. EXHIBIT 31 TO APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF r> rs FDIC Federal Deposit Insurance corporation 7324 Southwest Freeway, Suite 1600 Houston. TX 77074 * (800) 833-5937 or (713) 270-6565 P-T Certified Mali # P 832 856 035 RETURN RECEIPT REQUESTED January 31, 1990 Samantha Corporation, Inc. 8901 W. Bellfort Houston, Texas 77031 Subject: 405-2968, Security Bank Houston, Texas - Irt Liquidation Asset No. 2968-301069-00-1,- -, Asset Name; SAMANTHA- CORPORATION. INC. ^•:?mo ^ Gentl eraen: *-•'" Ci;'.-. -•• •.-..,. •'•i-JLi.'-'•''••'•-'=••• o^r This letter constitutes Formal Notice that your loan is in default. As collateral security for the payment of the referenced indebtedness, you executed a Renewal and Extension Modification Agreement on May 19, 1987 in favor of Security Bank, Houston, Texas. As of January 31, 1990, the unpaid principal balance and accrued interest, with interest continuing to accrue daily is as follows: Loan No. •• 2968-301069-00-1 Principal Balance $625,268.89 Accrued Int. as of January 31, 1990 $ 79,057.88 Dally Int. Accrual after January 31, 1990 $ 222.70 You have failed to make the required monthly payments for the above' referenced note for the months 2/15/89 thru 1/15/90. Each such delinquent monthly payment amounts to $7,350.00 and the total of such delinquent monthly payments Is $88,200.00. This constitutes a default in your obligations under the note securing the above referenced loan. This letter constitutes Formal Notice and Demand, that you cure such defaults within twenty (20) days after the date of this letter. Should FDIC not be in receipt of funds from you In the total amount of $88,200.00 within twenty (20) days after the date of this letter, FDIC will accelerate the maturity of Indebtedness of said Note so that the entire outstanding principal balance of the note, together with all interest, advances, if any, and all other sums evidenced or secured by said note" becomes immediately due and" payable.- Furthermore,-FDIC intends, and will, foreclose upon the property securing such loan at the earliest date permitted by law. — 1121 — (ivm-*?* 214 — 215 — Samantha Corporation, Inc. January 31, 1990 Page Two We trust that the seriousness of this matter has been made clear to you and hope you will cure the defaults within the allotted time. Yours very truly, Robert J.^Carroll Account Officer Real Estate Mortgages -1 JCremb RC3SCI — 1122 — — 216 — BANK # ASSET NAME ASSET/FLAS DATE SENT ~3-*4-0d DATc r.^'illVci 1123 *217 V*.. •*> •SCNOBRt Cniaptats ItBns t end 2 and 4. Pitt your wMraia in tha "RBTURN TO" Sp i. Ankk 4a Aracte rnflnbsr » P 832 856 035 SAMANTHA CORPORATION, INC. TVpaofSmka: ^tf ^ . 8901 W. Bellfort D Ftoetomd a CmffiHi ' • hamed <T 0 000 ^ «^p V /^J% Houston, Texas- 77031 J AnNByv obttn 4 Asset #2968-301069-00-1 «*PATCPRMVliL 'ONLY If #> P8 Form 3811, MSK.19S7 * usamil nsMiaaa domestic Mffumi memf 1 116 14-14-00410-CV Petitioner, v. QQSOHS I, LfB Respondent EXHIBIT %£j TO APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 218 — X- ^ o FDIC Federal Deposit. Insurance Corporation 7324 Southwest Freev&y, Suite 1600 Houston, IX 77074 * (800) 833-5937 or (713) 270-6565 T-2> Certified Hail # P 832 856 043 : rri:., RETURN RECEIPT REQUESTED ..-,"• February 5, -MSC*** ••'#&' Samantha Corporation, Inc. 8901 W. Bellfort Houston, Texas 77031 —" iiw • «ron - ;j:FB*7 * . Subject: 405-2968, SecilRtt3£Banii.v, -;- : *-*vv'--: -•„ Houston*, Texas**- Iirfclquldatfoiv . ,...eM-rATlON O^1 • \ Asset Nov 2966V301069tOO»-L, . . ^ % DOCUWA V Asset Namor SAHAIfnte CORTORATICTty INCtllEP Gentlemen: •» . • r a . • .' \v n This letter constitutes Formal Notice that your loan Is In default. As collateral security for the payment of the referenced Indebtedness, you executed a Renewal and Extension Modification Agreement on Hay 19, 1987 in favor of Security Bank, Houston, Texas. - As of February 5, 1990, the unpaid principal balance and accrued .Interest, with Interest continuing to accrue dally is.as follows: Loan No. 2968-301069-00-1 Principal Balance $625,268.89 Accrued Int. as of February 5, 1990 £ 80,171.38 Dally Int. Accrual after February. 5, 1990 $ 222.70 . You have failed to make the required monthly payments for the above referenced note for the months 2/15/89 thru 1/15/90. Each such delinquent monthly payment amounts to $6,353.09 and the total of such delinquent monthly payments is $76,237.08. This constitutes a default in your obligations under the note securing the. above referenced loan. This letter constitutes Formal Notice and Demand that vou cure such defaults within twenty (20) days after the date of this letter. Should FDIC not be In receipt bf funds .from you In the total amount of $76,237.08 within twenty (20) days after the date of this letter, FDIC will accelerate the maturity of Indebtedness of said Note so that tb entire outstanding principal balance of the note, together with all Interest, advances, if any, and all other:sums, evidenced or secured by said note becomes Immediately due and payable. Furthermore, FDIC "intends, and will7~-forec1ose~upon~the~propeftyrsecur1ng-such-loan-at the earliest date permitted by law. 1 108 /* "v'-» V/****;**!*'M'V^'^^'Hr^'^'*^V\tvt* — 219 — ^ Saaantha Corporation, Inc. February 5, 1990 Page Two * *•;.- . He trust that the seriousness of this ratter has been made clear to :»VKi':. you and hope you will cure the defaults within the, allotted time. Yours RoJfert JaVCarroTl AccountOfficer .<•*-. Real Estate. Mortgages I RJC :embfA SCI% RC3SCI 4>> v !•'."" -$i&. •• :• j v :'•,.- >«•»}« • • " : '• *^'"?"-- . t ••* *" "••" r . '.'." ,' .->. 1 'rf'.W.-' - •-• •>• .-."i. '•--• . 1 -•••' or /- *.'"J i« *"" m •b.-*r? — 1109 — •T •v,v,*»y»~^-"»'^'^.',ffrt »,'«•• •»?' n y • •-,••>.•. Up 11 •• — 220 — T~ •SENDER, CMiptan tans 1 end 2 whan end 4b POT wsar eddrssa tn aa) "RiTURN TO" w i w TGfla sko cnosn ocni*si for i. d&MNaVHLtfMaV I # P 832 856 043 Samantha Corporation, Inc. 8901 W. Bellfort a Houston, Tesas 77031 gagrtBMi • coo i . asset Ho. 2968-30tCG9-QO~ OATfPEuvenaP" r.M*w(OkLr-tf— 6. Olin.niiiia-Aggnt JaM 7. OaSOf OaUwsv nhm 3811, Mas. 1W7 BOMaaTK RETURN RECEIPT ^1 Wr.SEf fUrii — 1101 — 14-14-00410-CV POVlOiVNi, Petitioner, v. DOSOHS 1, LTD Respondent. EXHIBIT _23 TO APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF .Ol ^T i NO. 97-40590 ?n 2 CHOICE CAR WASH, INC AND * IN THE DISTRICT COURT OF 3 BUSINESS AND OWNERSHIP * LIABILITIES TAKEOVER * 4 CORPORATION (DEL.), INC. * AND DOV AVNI KAMINETZKY, * 5 A PRO-SE LITIGANT * Plaintiffs, * 6 * VS. * HARRIS COUNTY, TEXAS 7 DOSOHS I, LTD. 8 Defendant. * 11th JUDICIAL DISTRICT — 9 — — 10 — 11 *228 1 1 Taken on July 29, 1998, beginning at 11:15 a.m., in 2 the jury room of the 11th Judicial District a 3 Courtroom, 3 01 Fannin, Houston, Texas, before Janet 4 6. Hoffman, a Certified Shorthand Reporter and 5 Notary Public in and for the State of Texas, H 6 pursuant to notice, the Texas Rules of Civil 7 Procedure, and stipulations as stated herein. — 8 — • 9 a£££i\iaS£l£: 10 PRO SE: 11 Mr. Dov Avni Kaminetzky Attorney at Law 12 1609 South Kirkwood, tK Houston, Texas 77077-3158 13 FOR THE PLAINTIFFS: 14 Mr. Michael C. Whalen 15 Attorney at Law 2901 Wilcrest Drive, Suite 105 16 Houston, Texas 77042 17 FOR THE DEFENDANT: — 229 — I l ion ftl 2 1 3 ORAL DEPOSITION a* KEITH P. MILLER IMS. I 4 Stipulations 2 5 Examination by Mr. Kaminetzky 5 I 6 Exanlnation by Mr. Whalen 28 *230 T 18 I i the purchase of that property, in that nonjudicial 2 foreclosure sale? 1 3 A. The nonjudicial foreclosure sale? I 4 Q. Yeah. In the deed of trust, are you tha 5 person that either bid on it or sold the property? I 6 Ao No. 7 Q. And let me show you if you are the Keith I 8 Miller — this is No. 6 — if you are the Keith 9 Miller whose affidavit is attached to this deed. 10 Second Correction Substitute Trustee's Deed. n 11 A. Yes. 12 Q. And is it correct that you posted the 13 notice of foreclosure at tha county courthouse of 14 Harris County? n 15 A. Yes. 16 Q. Do you recall the date that you did so? 17 A. Yes. 18 Q. What was the data that you posted the 19 property? 20 A. August 12th, 1997. 21 Q. You have record to show that you traveled 22 to Houston at that time? 23 A. I do. 24 Q. Where else did you post this property? 25 A. Where else did I post it? ACCURATE REPORTERS, INC. (281) 556-8074 — 231 — -ar: ci Q. Yewa. 2 A. I posted the property for foreclosure by 3 going to the county clerk's office and paying a fee 4 there and leaving probably the original with theo. 5 I don't remember. 6 q. you have a receipt for this? Did you 7 receive a receipt? 8 A. No, I do not. 9 Q. Did you have to leave a copy of this case 10 trustee of Saaantha oh your trip to Houston? 11 A. I did not. 12 Q- Did you deliver any copy to Samantha 13 itself, any of the two addresses known to you? 14 A. In person? 15 Q. Yeah. 16 A. No. 17 q. you just went to the county courthouse? 18 A. That's right. 19 • Q. But you have no receipt of the filing fee 20 that you paid? 2i a. No. We have a canceled check. Other 22 than that, no. 23 q. I'll get to this in a second. You don't 24 know if they posted it or not on the board at the 25 north side of the first floor? ACCURATE REPORTERS, INC. (281) 556-8074 — 232 — 20 rv 1 A. Say again? 2 Q. Do you know if a copy of this notice has 3 been put with a nail like they do with stapler on 4 the cardboard board on the north side of the side 5 of that family courthouse building on the first 6 floor? 7 A. The family law building that you're 8 talking about, they have boards in there where you 9 put copies of these things. 10 Q. Did you check to see if it was 11 actually 12 A. I put one there. 13 Q. So you put one there? 14 A. Uh^huh. 15 Q. You were going to show me a canceled 16 check, you said? 17 MS. GUERRA: I'm handing over a copy of a 18 canceled check payable to Harris County Clerk. I'm 19 handing over a rental car receipt from Budget 20 Rental Car dated August 12th, 1997, and in there it 21 has an airport receipt, but it's not very legible 22 also, for parking. .23 MR. KAMINETZKY: It speaks for itself.-2 4 MS. GUERRA: And I've got a receipt from 25 Exxon for filling the rental car with gas for ACCURATE REPORTERS, INC. (281) 556-8074 % 30 1 CERTIFICATION OF THE DEPOSITION OF 2 KEITH P. MILLER 3 Taken on July 29, 1998 4 5 I, Janet G. Hoffman, Certified Shorthand Reporter and Notary Public in and for the State of 6 Texas, do hereby certify that the facts as stated by me in the caption hereto are true; that the 7 .above and foregoing answers of the witness, KEITH P.. MILLER, to the interrogatories as indicated were 8 made before me by the said witness after being first duly sworn to testify to the truth, and same 9 were reduced to printing under my direction; that the above and foregoing deposition as set forth in 10 printing is a full, true and correct transcript of the proceedings had at the time of taking said 11 deposition. 12 I further certify that I am neither attorney nor counsel for, related to, nor employed 13 by any of the parties to the action in which this testimony was taken. Further, I am not a relative 14 or employee of any attorney of record in this cause, nor do I have a financial interest in this 15 action. 16 I further certify that the charge for preparation of the foregoing completed transcript 17 is $ , charged to nov Avni Kaminetzky. Texas Bar Number . 18 SUBSCRIBED AND SWORN to on this the 4th 19 day of August 1998. 20 21 22 iOFFMAN,6aSR, JAMET G. HOFFMAN, UttR, RPR RPR Texas certification No. 4Z.08* 23 Cert. Expiration: 12-3,1-99. * 11502 Briar Forest "'. * 24 Houston, Texas 77077 (281) 556-8074 25 ACCURATE REPORTERS, INC. (281) 556-8074 14-14-00410-CV DOV K. AVNI, Petitioner, v. QOSOHS I, LTD Respondent EXHIBIT _2H T0 APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 234 — cm mfis^E C*use No. J99858BA7 CHOICE CAR WASH INC IN THE DISTRICT COURTS OF VS. HARRIS COUNTY- TFXAS DOSOHS I LTD <A TEXAS LIMITED 234th JUDICIAL DISTRICT TRANSFFR ORDFR It is ORDERED that the Harris County District Clerk transfer the above styJed and numbered cause from the ?34th District Court to the 13th District Court SIGNED .„. » 1999 JAN 211999 ,1 L ^ D H0N» SCOTT A. BRISTER AtilSSE ADMINISTRATIVE JUDGE CHARtES. B^cTk CIVIL TRIAL DIVISION hatiis Couwy. 'le*aa Attraction Cause Number 199740590 jy__ TSe^W CHOICE CAR WASH INC vs* i DOSOHS I LTD (TEXAS LIMITED PA File Court 11 JUDGMENT DATE! JUDGMENT TYPE! CASE TYPEJ INJUNCTION SJSSrtrt »• tta**l"*-11* [ 14-14-00410-CV Petitioner, v. POSOHS I, LftT, Respondent EXHIBIT 35 TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 235 — 98-58867- ^ *** 'y* CHOICE CAR WASH, INC. § IN THE^D*$*R|gX &6sm BUSINESS AND OWNERSHIP § LIABILITIES TAKEOVER § <y«\ CORPORATION, AND DOV AVNI § KAMINETZKY, PRO SE, § § VS. § 11* JUDICIAL DISTRICT § DOSOHS 1, LTD. § HARRIS COUNTY, TEXAS DEFENDANTS ORIGINAL ANSWER TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES DOSOHS I, LTD. ("Dosohs"), Defendant in the above styled and numbered cause, and files this Defendant's Original Answer to Plaintiffs Original Petition filed herein, and in support thereof would respectfully show the court as follows: I. GENERAL DENIAL 1.1 Dosohs denies generally each and every, all and singular, the allegations contained in Plaintiffs' Original Petition filed herein and states that this Defendant will require strict proof thereof. AFFIRMATIVE DEFENSES II. RES JUDICATA COLLATERAL ESTOPPEL 2.1 Plaintiffs' claims are barred by res judicata and/or collateral estoppel. More specifically, Dosohs alleges that on September 26,1996, Dosohs instituted a 1 RECORDER'S MEMORANDUM .^ This Instrument isofpoor quality at the timeof imaging — 236 — I lawsuit against Samantha Corporation, Inc. in Adversary Proceeding No. 96-4671, styled Dosohs I, Ltd. vs. Samantha Corporation, Inc., in the United States Bankruptcy Court for the Southern Districtof Texas, Houston Division. That cause was brought to determine the validity and extent of Dosohs' lien. On final hearing, the Bankruptcy Court determined the amount and validity of Dosohs' lien on the property made the issue of this lawsuit. Further, the court held that the statute of limitations had not expired and Dosohs was entitled to seek collection. 2.2 On June 16,1997, trial of the Dosohs suit was held and Judge Leal ruled that the statute of limitations had not expired and that Samantha Corporation owed $1,216,351.27. 2.3 On July 17,1997, Judge Manuel Leal, United States Bankruptcy Judge, entered a Final Judgment in the Dosohs suit and further found that the statute of limitations had not expired. 2.4 On July 16,1997, in Bankruptcy Case No. 95-45547-H1-11, the bankruptcy court entered an order lifting the automatic stay to allow Dosohs to foreclose on its collateral. 2.5 Furthermore, on March 19,1998, the bankruptcy court entered a Corrected Order Terminating Automatic Stay making the same findings as the prior order and including a more specific property description of the collateral to which Dosohs was allowed to foreclose on. 2.6 On June 16,1998, Judge Manuel Leal United States Bankruptcy Judge entered a Corrected Final Judgment in the Dosohs suit making the same findings as 2 *237 the priorjudgment and including a more specific property description of the collateral to which Dosohs was allowed to foreclose on. 2.7 Dosohs asserts that the Orders and judgments are res judicata and/or collateral estoppel to the issues raised in the state court proceedings by the Plaintiffs. 2.8 Furthermore, on December 15,1997, a hearing concerning the Motion of Dosohs from Relief From Automatic Stay was heard in Case No. 97-49007-H1-11, In Re: Dov Avni Kaminetzky, Debtor. On December 19,1997, the court entered an Order Annulling and Terminating Automatic Stay in said cause number and pursuant to that order determined, Dosohs lien on the real property made the basis of this lawsuit, that Debtor had no equity in the property, the court further found that Dosohs had ownership and holder status of the $850,000 promissory note and found the value of the property. 2.9 Accordingly, the Plaintiffs claims asserted in the State Courts proceeding were previously litigated in the Bankruptcy court and are barred by the doctrines of res judicata and/or collateral estoppel. III. PLAINTIFFS LACK STANDING 3.1 In the alternative, Plaintiffs lack standing to assert their claims against Dosohs. IV. DEFECT OF PLAINTIFFS 4.1 in the alternative, that there is a defect of Plaintiffs. — 3 — — 238 — NEGLIGENCE 5.1 Pleading in the alternative, Dosohs would show the court that the Plaintiffs are themselves guilty of various acts and omissions each of which constituted negligence and contributory negligence, and each of which was a sole cause or alternatively, a proximate and producing cause of the occurrence in question and the alleged damages alleged by Plaintiffs in this lawsuit. VI. THIRD PARTY LIABILITY 6.1 Pleading further in the alternative, Dosohs would state that the incident in question was a result of or in the alternative, partially, caused by persons, factors, instrumentalities and circumstances over which it had no control or right of control. VII. THIRD PARTY NEGLIGENCE 7.1 Pleading in the alternative, Dosohs would show the court that damages, if any, suffered by Plaintiffs were caused by the negligence and acts of third parties. VIII. ESTOPPEL 8.1 For further answer, if any is necessary, Dosohs alleges that Plaintiffs are estopped from asserting the claims made the basis of Plaintiffs' petition. — 239 — IX. MITIGATION OF DAMAGES 9.1 Pleading further in the alternative, Dosohs would show the court that Plaintiffs failed to mitigate their damages. X. WAIVER 10.1 For further answer, if any is necessary, Dosohs alleges the affirmative defense of waiver by Plaintiffs. XI. DOSOHS NOT GUILTY 11.1 Dosohs is not guilty of the injury complained of in the petition filed by the Plaintiffs against Dosohs. PRAYER WHEREFORE, PREMISES CONSIDERED, Dosohs prays that all relief prayed for by Plaintiffs be denied; that the Plaintiffs take nothing by their suit herein; and that Dosohs recover costs of court from Plaintiffs; and that Dosohs receive such other and further relief, general or special to which it may show itself justly entitled to receive. — 240 — Respectfully submitted, MUNN & FLUME One Oak Park, Suite 200 1020 N.E. Loop 410 San Antonio, Texas 78209-1218 (210)828-5641 (210) 821-6069 Facsimile MICHAEL FLUME State Bar No. 07188480 CELINDA BAEZ GUERRA State Bar No. 01505000 ATTORNEYS FOR DOSOHS I, LTD. CERTIFICATE OF SERVICE Ido hereby certify on this /fflth day of February, 1999 that atrue and correct copy of the foregoing document has been delivered via certified mail, return receipt requested to the following: CERTIFIED MAIL NO. Z 435836620 RETURN RECEIPT REQUESTED Michael C. Whalen 2901 Wilcrest, Suite 105 Houston, Texas 77042 CERTIFIED MAIL NO. Z 435836621 RETURN RECEIPT REQUESTED Dov Avni Kaminetzky 1609 S. Kirkwood, Suite A Houston, Texas 77077-3158 CELINDA BAEZ GUERRA — 6 — — 241 — VERIFICATION STATE OF TEXAS § § COUNTY OF BEXAR § On this date, MATT N. MOLAK, personally appeared before me, the undersigned Notary Public, and after being duly sworn stated under oath that he is the President of Dosohs, Inc., General Partner of Dosohs I, Ltd., Defendant in the above styled and numbered cause; that he has read the foregoing Defendant's Original Answer, and that every statement contained therein is within his personal knowledge and is true and correct. DOSOHSJ. LTD MOLAK, President SWORN AND SUBSCRIBED TO BEFORE ME by the said Matt N. Molak. President of Dosohs, Inc., General Partner of Dosohs I. Ltd., to certify which witness my hand and official seal of office on this \fl*^ day ofFebruary, 1999. wo MARIE E.DELG0N Notary Public in and for *MAY5,200a the State of Texas 14-14-00410-CV POVTl AVNl Petitioner, v. Respondent EXHIBIT _3^T0 APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 242 — ^w. fV 98-58867 P. O j CHOICE CAR WASH, INC. § IN THE DlSttjICJ COU&ty>, ' ' BUSINESS AND OWNERSHIP § ^^^isr.- J^6 LIABILITIES TAKEOVER § ^U^'!*^ CORPORATION, AND DOV AVNI § Qjfyjwff KAMINETZKY. PRO SE, § ''-* V*0 § VS. § 11* JUDICIAL DISTRICT § DOSOHS I, LTD. § HARRIS COUNTY, TEXAS DOSOHS I. LTD.'S MOTION TO DISMISS AND MOTION FOR SANCTIONS TO THE HONORABLE JUDGE OF SAID COURT: Now comes DOSOHS I, LTD. ("DOSOHS") and files this its Motion to Dismiss and Motion for Sanctions contemporaneously with filing its Original Answer against Plaintiffs' Choice Car Wash Inc, ("Choice"), Business Ownership and Liabilities Takeover Corporation ("BOLTJand Dov Avni Kaminetzky ("Kaminetzky") and in support thereof, would respectfully show the court as follows: I. 1.1 On or about August 4,1997, Choice and BOLT filed Plaintiff's Original Petition for Declaratory Judgment, Application for Temporary Restraining Order and Application for Temporary Permanent Injunction. Pursuant to the Original Petition, the Plaintiffs were claiming that Dosohs was barred from conducting a deed of trust foreclosure sale because the debt upon which Dosohs asserted as the basis for its foreclosure sale was barred by the Statute of Limitations. 1.2 Subsequently Kaminetzky, was joined as a Plaintiff in this cause number on or about January 13,1998. RECORDER'S MEMORANDUM Thll Instrument is of poor quality 1 attheCms of imaging — 243 — 1.3 On or about August 31.1998, Choice, BOLT and Kaminetzky filed their Plaintiffs' Seventh Amended Original Petition bringing an action of Trespass to Try Title, a suit to set aside foreclosure sale, and seeking actual and punitive damages from Dosohs. 1.4 Subsequently to filing Plaintiffs' Seventh Amended Original Petition the Plaintiffs filed a Notice of Non-Suit dismissing their Plaintiffs' Petition on file herein. In a pleading filed in 697067 County Court No. 4, by the Plaintiffs herein, Choice, Bolt and Kaminetzky admitted to non-suiting their claims in the 1997 lawsuit in this court because they claim that this court refused to allow essential discovery requested by the Plaintiffs and then refiled the same lawsuit herein. 1.5 The trial in this cause was scheduled to begin on September 4,1998. 1.6 Subsequently, the court abated this cause, effective August 31,1998 at 8:30 a.m. 1.7 On December 14,1998 the Plaintiffs, Choice, BOLT and Kaminetzky filed Plaintiffs' Original Petition ("new suit") bringing an Action of Trespass to Try Title and Suit to Set Aside Foreclosure sale as void claiming that the statute of limitations had expired and seeking actual and punitive damages from the Defendant, Dosohs. The new suit was filed in the 234th Judicial District Court of Harris County Texas, Cause No. 98-58867. This case was subsequently transferred to the 11th Judicial District Court under the same cause number on January 21,1999. The claims contained in the new suit are the same claims that were previously nonsuited by the Plaintiffs and against the Defendants. — 244 — II. REQUEST FOR SANCTIONS 2.1 Dosohs would show the court that the repetitive filing of lawsuits by the Plaintiff constitutes abuse of process, and bad faith. The Plaintiff refiled this lawsuit solely for the purpose of harassing Dosohs and in an attempt to obtain additional discovery. 2.2 Therefore, Dosohs requests that the court dismiss this case and impose sanctions against the Plaintiffs and their counsel pursuant to Rule 13 of the Tex. Rules of Civ. Pro. Dosohs further requests that the court assess damages and attorney fees, strike the pleadings of Plaintiffs, dismiss this suit and for such other and further relief to which the Defendants may be rightfully entitled. WHEREFORE, PREMISES CONSIDERED, Dosohs prays that the court take notice of the filing of this Motion to Dismiss and Motion for Sanctions, that upon final hearing, the court grant Defendant's Motion to Dismiss and Motion for Sanctions, and for such other and further relief to which Dosohs may show itself justly entitled to receive. — 245 — Respectfully submitted, MUNN & FLUME One Oak Park, Suite 200 1020 N.E. Loop 410 San Antonio, Texas 78209-1218 (210)828-5641 (2101,821-6069 Facsimib MICHAEL FLUf State Bar No. 0718B480 CELINDA BAEZ GUERRA State Bar No. 01505000 ATTORNEYS FOR DOSOHS I, LTD. CERTIFICATE OF SERVICE Ihereby certify on this (h th day of February, 1999 a true and correct copy of the foregoing document has been delivered by certified mail to the following: VIA CERTIFIED MAIL NO. Z 435836620 Michael C. Whalen 2901 Wilcrest, Suite 105 Houston, Texas 77042 VIA CERTIFIED MAIL NO. Z 435836621 Dov Avni Kaminetzky ProSe 1609 South Kirkwood, #A Houston, Texas 77077-3158 CELINDA BAEZ 14-14-00410-CV poFkTavnj Petitioner, v. DOSQHSJ, ITd Respondent. EXHIBIT _30 TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 246 — Ja- No. 97-40590 . ^%/f^ff- CHOICE CAR WASH, INC., § IN THE DISTRICT COUR*^ £ AND BUSINESS OWNERSHIP AND § %£T. -& y£ ^rzz LIABIUTIES TAKEOVER § e£»%. ^ v- CORPORATION § ^pZ>% *t fc VS. § 11TH JUDICIAL DISTRICT ^£% g DOSOHS I, LTD. § HARRIS COUNTY, TEXAS ^ ORDER GRANTING DOSOHS L LTP'S MOTION TO REMOVE ABATEMENT On this J day of February. 2000, came onto be heard and considered the Motion of Dosohs I. Ltd. to Remove Abatement. Dosohs I, Ltd. appeared by and through its attorney of record and announced ready. The Plaintiffs appeared by and through their attorney of record and announced ready and Dov Avni Kaminetzky appeared pro-se and announced ready. The Court, after reviewing the motion and hearing the argument of counsel, finds that Defendants Motion to Remove Abatement is well taken and should be granted. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Abatement on the above-styled and numbered cause is hereby removed. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this case be set for trial on the merits on an expedited basis. Signed thisQL davof 4 flAW^/ t .2000. HONORABLE MARK DAVIDSON uteeoRucR's memorandum Thla Instrument Is ef pool quality and not MtMadtory for photagrapMc fecortfxtion; snnVor •Itorsttons wara praaant at tl)a> time- of imaging 14-14-00410-CV DOV K AVNI Petitic v. MIWSMil Respondent EXHIBIT 4&\ TO APPELUNTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 484 — o APR 19 2M *nwe:^:---TrSriTEo»5p Harris H DOV K. AVNI % By—- '—OaPU** Q 150-B Forest Dr.. Jericho. NY 11753 Cell April 19.2014 f SAT.-Adp. 6 30 PM1 1 Chris Daniel-Clerk ofHarris County FILED 4/18/14 AFTER HOURS I Civil District Courts-No Fee Input Section 201 Caroline St.,2nd Flr,Houston,TX 77002 courtesy copv>Chambers-MON4/21/14,pm-after mail from is accepted in TX RE: DWOPPED CIVIL CAUSE#1997-40S90-in 11* JUDICIAL DISTRICT COURT Dear Deputy Clerk. Enclosed herewith for filing, posting and scanning in timely manner is my Original Request for Findings of Fact and conclusions of law-following the final and appealable modified injunction signed 3/31/14 by hostile Judge Miller after he impliedly denied or disregarded my plea to jurisdiction here. J 1. ORIGINAL TIMELY REQUEST BY DEFENDANT/CTR. PLAINTIFF/^ PARTY PLAINTIFF DOV KJWN1 a/k/a DOV AVNI KAMINETZKY.ACTING INDIVIDUALLY AND AS ASSIGNEE OF RECORD OF CO-PARTIES CHOICE CAR WASH INC.. BUSINESS&OWNERSHIP LIABILITIES TAKEOVER CORPORATION [DELI Inc.. and SAMANTHA CORPORATION Inc -WHO WAS PERMANENTLY ENJOINED 3/31/14 BY JUDGE MILLER WITHOUT DUE PROCESS BASED ON UNCONFERRED AND UNSUPPORTED ATTORNEY'S ALLEGATION ofCHANGED CIRCUMSTANCES" FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW -IN ACCORDANCE WITH RULES 296 AND 297 OF TRCP TO BE MAILED 4/17/14 THEN FILED IN COURT SAT.,4/19/14 m/ V* ftrW Hf &/ty DOV KAVNI-pro-se party in #19971-40590/11th 150-B Forest Dr., Jericho, NY 11753 Cell #516-318-3791 TO ACTTVE+INTERESTED PARTIES IN THIS PROCEEDING ^STATEWIDE RAMIFICATIONS. •/ 1. DOSOHS I. LTD-bv serving its alleged current lawfirm ofsherer&crow pllcof San Antonio BY SERVING RICHARD R, CROW.Jr.-ITS ALLEGED CURRENT ATTORNEY-IN-CHARGE WHO FILED MOTION FOR CONTEMPT AGAINST ME ON 9(26/1312 % YEARS AFTER 3/23/2011 FINALUNAPPEALED DWOP ORDER at: 11120 WURZBACHRD. SUITE 300. SAN ANTONIO .TX 78230 2-13 All other parties named and sued insaid dwopped case who were notserved with 2013-14 filings ororder COURTESY COPIES TO: 1. CHAMBERS OF HON. MICHAEL DAVID MILLER-PRESIDING OVER 11™ JDC. 2. Michael C.Whalen^ormer attorney for "CCW"&"BOLT"-in #97-40590;#98-58867[11,h] 3. PEGGY FIKAC-Bureau Chief-STATE ISSUES =for Houston Chronicle in Austin.TX. 14-14-00410-CV Petitioner, v. PPSOHSUTfl Respondent. EXHIBIT _/30 TO APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF Office ofHarris County District CJerk -Chris Daniel Page 1 of3 HCD.stridclerk.coin o CM ?aSav^vs' kaminetzky- tama* AVNI (AKA Cause: 201153721 CDI: 7 Court: 125 4/14/2014 fb APPEALS i No Appeals found H b COST STATMENTS Q No Cost Stataents found. S o TRANSFERS u No Transfers found. POST TRIAL WRITS No Post Trial Writs found. ABSTRACTS No Abstracts found. < 4 DOCUMENTS No documents Tfyn SUMMARY -^ CASE DETAILS COURT DETAILS File Dale 9/8/2011 Court 125* Case (Cause) Location Civil Intake 1st Floor Address 201 CAROLINE (Floor: 10) HOUSTON. TX 77002 Cose (Came) Status Disposed(Final) Phone-7133686141 Case (Cause) Type REAL ESTATE JudgeMame KYLE CARTER Next/Last Setting Date N/A Court Type Civil Judgment For FINALSUMMARY JUDGMENT SIGNED Judgment Date 3/7/2014 Jury Fee Paid Date 2/29/2012 ACTIVE PARTIES Name Type Post Attorney Jdgm DOSOHSI LTD PLAINTIFF-CIVIL SHERER.ERIC DAVID KAMINETZKY, DOV AVNI(AKADOV K AVNI) DEFENDANT- CIVIL AVNI,DOV K DEFENDANT- CIVIL INACTIVE PARTIES Name Type Post Attorney Jdgm KAMINETZKY, DEFENDANT- CIVIL TAMAR AVNI (AKA TAMAR AVNI) AVNI. TAMAR DEFENDANT-CIVIL /ex y fr-fr/i JUDGMENT/EVENTS •jyy-tefl^SgJ t-.j^^^^^-v r>r.m/ftdocs/Dublic/CaseDetailsPrinting.aspx?Get=42PT43Z0PR... 4/FV2B14 •Office of Harris County District Clerk- Chris Daniel Page 2 ot J Date Description Order Post Pgs Volume Filing Person Signed Jdgm /Page Attorney Filing 3/2672012 HRST SUPPLEMENTAL ANSWER 0 KAMINETZKY, DOV AVNI (AKA DOV K AVNI) 3/26/2012 FIRST SUPPLEMENTAL ANSWER AVNI, DOV K 12/2/2011 FIRST AMENDED ANSWER KAMINETZKY, DOV ORIGINAL PETmON AVNI (AKA DOV K AVNI) 10/10/2011 ANSWER ORIGINAL PETITION AVNLDOVK 10/10/2011 ANSWER ORIGINAL PETITION KAMINETZKY, DOV AVNI (AKA DOV K AVNI) 9/8/2011 ORIGINAL PETITION SHERERvERIC DOSOHSI LTD DAVID SETTINGS Date Court Post Docket Type Comments Requesting Jdgm Party 9/2672011 125 Law Day Docket TEMPORARY INJUNCTION Passed MTN TO EXTEND 09.30 AM FILED 10/10/2011 125 Law Day Docket TEMPORARY INJUNCTION Passed SET IN ERROR 0900 AM 10/10/2011 125 Law Day Docket TEMPORARY INJUNCTION Hearing EXTENSION TO TRO 1000 AM Held GRANTED 10/24/2011 125 Law Day Docket TEMPORARY INJUNCTION Hearing HMWAM Held 1WJ7/20U 125 Law Day Docket TEMPORARY INJUNCTION Hearing 11.00 AM Held 11/14/2011 125 Law Day Docket MTN TO DISSOLVE TRO Passed PER DON 1000 AM KAMINETZKY 358P 11710/11 12/19/2011 125 Submission Docket SUMMARY JUDG - MTN Passed PER LETTER 0800 AM (Local Rule 12) PARTIAL (TRCP 166A) 1/02/2012 125 Submission Docket MTN TO MODIFY/AMEND Denied O/S 01112012 08 00 AM (Local Rule 12) TEMP ORDERS 1/09/2012 125 Submission Docket SUMMARY JUDG - MTN Passed PER NTC FILED 01- 0800 AM (Local Rule 12) PARTIAL (TRCP 166A) 2-12 1/23/2012 125 Submission Docket oBJEcrnoNs Denied O/S 04272012 08 00 AM (Local Rule 12) 3/19/2012 125 Law Day Docket PLEA IN ABATEMENT Hearing CROW. RICHARD 09-00 AM (TRCP 120A) Held RUSSELL JR. 4/09/2012 125 Submission Docket MTN TO MODIFY/AMEND Denied O/S 04272012 0800 AM (Local Rule 12) TEMP ORDERS 4/09/2012 125 Trial Coordinators DOCKET CALL Passed CASE ABATED 08 30 AM Docket 4/5/12 4/1672012 125 Submission Docket SUMMARY JUDGMENT- Passed CASE ABATED 0800 AM (Local Rule 12) MOTION FOR FINAL (TRCP I66A) 4/1672012 125 Trial Scttmg Trial on Merits Passed CASE ABATED 09:00 AM 4/5/12 8/13/2012 125 Trial Coordinators DOCKET CALL Passed SET IN ERROR 08.30 AM Docket 3/28/12 8/20/2012 125 Trial Scttmg Trial on Merits Passed SET IN ERROR 09-00 AM 3/28/12 11/11/2013 125 Submission Docket DEFAUL r - MOTION FOR Granted O/S 12/18 CROW, RICHARD 0800 AM (Local Rule 12) (TRCP 239) RUSSELL JR. 1/13/2014 . 125 Law Day Docket Sanctions (TRCP215) Passed PER DOVE K. AVNI 09-00 AM 125 SEVERANCE (TRCP 41) Granted O/S 1/27 http://wvw.h<riistri<tolerk.ro^ 448/tO14 Office of HarrisCounty DistrictClerk- ChrisDaniel Page 3 of3 1/20/2014 Submission Docket SHERER.ERIC 08:00 AM (Local Rule 12) DAVID 1/20/2014 125 SubmissionDocket SEVERANCE (TRCP 41) Passed TIME SHERER.ERIC 08.30 AM (Local Rule 12) INCORRECT/WILL DAVID RE-FILE 2/03/2014 125 Submission Docket OBJECTTIONS Passed NOT 10 DAYS NTC 08 00 AM (Local Rule 12) 2/03/2014 125 Submission Docket SUMMARY JUDGMENT- Granted OS 3/7 SHERER.ERIC 0800 AM (Local Rule 12) MOTION FOR FINAL (TRCP DAVID 166A) 2/10/2014 125 Law Day Docket MOTION FOR Passed PERKAMINETZY 0900 AM CONTINUANCE (FAMILY) 1054A2/6 2/17/2014 125 Trial Coordinators DOCKET CALL Hearing 0830 AM Docket Held 2/17/2014 125 Law Day Docket Sanctions (TRCP 215) Heard (No UNDER 09-00 AM Ruling ADVISEMENT Made) 2/24/2014 125 Trial Setting Trial on Merits Passed CASE DISPOSED 09flOAM 3/W Jt SERVICES t Type Status Instrument Person Requested Issued Served ReturnedReceived Tracking Tracking Deliver To CITATION SERVICE ORIGINAL 9/8/2011 9/9/2011 10/19/2011 72700984 crv (NON- RETURN/EXECUTED PETrnON AGCY- RESIDENT) CP/ILIAN SERVICE AGENCY 150B FOREST DRJERICO NY 11753 CITATION, SERVICE ORIGINAL KAMINETZKY. 9/8/2011 9/9/2011 9/13/2011 72701328 CIV (NON- RETURN/EXECUTED PETTTION DOV AVNI AGCY- RESIDENT) (AKA DOV K crvniAN AVNI) SERVICE AGENCY 150-B FOREST DR JERICHO NY 11753 SERVICE ISSUED/IN ORIGINAL 9/8/2011 9/9/2011 72701339 CIV POSSESSION OF PETITION AGCY- SERVING AGENCY CIVTUAN SERVICE AGENCY 150B FOREST DRJERICO NY 11753 SERVICE ORIGINAL KAMINETZKY. 9/8/2011 9/9/2011 9/13/2011 72701340 crv RETURN/EXECUTED Hill llON DOVAVNI AGCY- (AKA DOV K CIVILIAN AVNI) SERVICE AGENCY 150-B FOREST DR JERICHO NY 11753 SERVICE ORIGINAL 9/27/2011 9/28/2011 10/19/2011 72707459 CIV RETURN/EXECUTED PETTTION AGCY- CIVILIAN SERVICE AGENCY 1609 SOUTH KIRKWOOD HOUSTON TX 77077 SERVICE ORIGINAL KAMINETZKY. 9/27/2011 9/28/201110/19/2011 72707453 CIV RETURN/EXECUTED PETITION DOVAVNI AGCY- (AKADOVK CIVTLIAN AVNI) SERVICE AGENCY 1609 SOUTH KIRKWOOD HOUSTON TX 77077 482 httn7/www hcriitfrictr.lerk cnm/erlnr.s/niihlic/raspDfttailsPrinrino «<!ror?Or»t=4'?PT417nPTl 4/14/?fl14 14-14-00410-CV Petitioner, posoHsuTq Respondent. EXHIBIT JV TO APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF Officeof Harris County District Clerk - Chris Daniel | Case (Cause)Details 201153721 -7 Page 1 of 1 '«25) « 201153721 - DOSOHS I LTD vs. KAMINETZKY, TAMAR AVNI (AKA TAMAR AVNI)» (Court » • Chl°notoS'cal History p.?f^ All lx_J Summary Appeals Cost Statements Transfers Post Trial Writs Abstracts Parties Court Costs JudgmentsTEvents Settings Services/Notices Court Registry Child Support Images H No records round. I Q I t H z o o IWS11 V finals -&f hum w'vML^mj I htty://vww.hcdistrictclerk.^ 4A3&014 **~~~ 14-14-00410-CV Petitioner, v. POSOHSUTg Respondent EXHIBIT 122 TO APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 494 — DOV K. AVNI o„ «\ 150-B FOREST DR.JERICHO.NY 11753 CELL# 516-318-3791 -. APRIL 30.2014 fWED.-App. 8.1S PM1 v.9r ' TO OFFICE OF CHRIS DANIEL FILED AFTER HOURS > ' ' •4> "*" S*. CLERK OF HARRIS COUNTY CIVIL DISTRICT COURTS- FEE INTAKE DEPARTMENT MOTION FOR NEW TRIAL! 201 CAROLINE St ,1st Fl. HOUSTON.TX 77002 RE Civil Cause # 1997-40590 in the lltb Judicial District Court Styled as:"CH0ICE CAR WASH.Inc.etal v. DOSOHSI.LTD" DEAR DEPUTY CLERK Enclosed herewith are Three documents-to be date stamped, processed, scanned and assigned withtimely and consecutive Image File numbers, then posted in appropriate screensof Civil Courts Information Management Svstem-so that honiudge MILLER who signed 3/31/14 order granting unsupported motion of 2/19/2014 by Dosohs I.Ltd. to modify ambiguous and limited scopetemporary injunction against the undersigned knows about it and grant the enclosed motions or enters findings before I appeal to 14 \l 1. TRCP14 and TRCE 902.10(b) BUSINESS RECORDS AFFIDAVIT OF DOV K.AVNI IN SUPPORT OF HIS MULTI-PRONG POSTJUDGMENT MOTION OF4/30/14-ATACK1NG ORDER OF3/31/UMOVING FORNEWTRIAL [with truecopies of business and courtrecords attached or incorporated here] \l 2. PROPOSED ORDERGRANTING/DENYING MULTI-PRONG POST JUDGMENT MOTION OF DOVK. AVNI FILED 4/30/14 f 3. NOTICE OFSUBMISSION ON6/9/14,8AM OFMULTI-PRONG POSTJUDGMENT MOTION OFDOV K.AVNI FILED 4/30/14 Thanking you in advance for your speedy scanning and posting of this filing and bringing it to attention of Judge Miller to avoid delays in his making the findings and conclusions. Timely mailed and filed 4/30/14 pm [after 8pm] MH V'/Tw* (^/IP)/1/) DOV K.AVNI-pro-se Party/Movant 150-B Forest Dr. Jericho NY11753;Cell#516-318-3791 With 3 documents enclosed with this letter.and served upon the following: • . Mr. Eric D.Sherer At: Sherer & Crow PLLC-Attorneys for Dosohs I. Ltd[DOSLl] 11120 Wurtzbach Rd. Suite 300 San Antonio, TX 78230-served 4/7/14PM by CM/ RRR# _ from USPS Main Downtown office. f 2 .Office of Harris County Civil District Court Clerk -fee Intake -with $30 USPS money b^ KrtW jorder of2/28/14 attached to cover required statutory Jury Fee (returned without note) y]l]N /WITHCOURTESY COPY TO BE HAND DELIVERED ON THU 5/1/14 TO I GhWrs ofHon. Michael David Miller at 9* Flr^ll* JDC) ~K^> f,/lu. (gjl^M*) DO\ AVNI 14-14-00410-CV ^^^BSasSBSXmTSaeSKm^^Sm^am^mmmmB^SMmmmwmmaomWmMonmamWmm pOVKAVNl Petitioner, v. POSOHS I,OB Respondent. EXHIBIT p£_ TO APPELLANTS FIRST SUPPLEMENTAL APPENDIX TO INITIAL BRIEF — 495 — ml g CAUSE NO. 1997-40590 ^ DOSOHS LLTD rrjOSLI"]- designated plaintiff M<N THE DISTRICT COURTS £h S V MHARRIS COUNTY, TEXAS -, •>> « choice CAR wash hic.,BUSiNESS&OWNERSHiP )(dismissed for want of °-< a v LIABUJTIESTAKEOVER CORPORATION [Del.] Inc )(prosecution 3/23/11 and] j ,&> > % dov avni kaminetzky aka dov K. avni,and k applications to modify or / <?p \ ° samanthaCORPORATiON.Inc. hdissolve injunction filed] ° . ^ ~'7,' H designated Defendants hh™ district court '">>- * STATE OF TE XASI TRCP14 &TRCE 902.10(b) BUSINESS RECORDS AFFIDAVIT OF DOV K.AVNI IN SUPPORT OF HIS '4* | MULTI-PRONG POST JUDGMENT MOTION OF 4/3B/14-ATACK1NG 3/31/140RDER MOVING FOR MEW TRIAL -"'-.. « COUNTY OF HARRIS 1 [with true copies of business and court records attached or incorporated here! | before me the undersigned authority.personally appeared this 5th day of APRIL,2014 in HoustonJX o DOV K. AVNI a/k/a Dov Avni Kaminetzky ["Dov" ] - who, by me duly sworn, deposed as follows: 1. My nameis Dov K.Avni a/k/a Dov AvniKaminetzky.l am over21 yearsold.ofsound mind.capable to make this affidavitand I am personally acquainted with the records -copies of which I attached. and facts I recite and swear to here-both personally and as assignee of record In Harris County of SPECIFIC causes of action owned by prior corporate owners of real property made subject hereof aftertheirTX corporate charters were forfeited for not filing their annual TX Franchise Tax reports. or as result of these entities losing control and income from their valuable assets as result of the tortious acts of Plaintiff/Ctr-Def DOSOHS I.Ltd f"DOSL1"1-and its predecessor FDIC in its corporate capacity andas Receiver/Liquidator of security bank HOUSTON-Wavs.de Dr. branch ."SECURITY^WI whose environmental contamination related liabilities DOSL1 ASSUMED in 3Q'96 -when it acquired from FDIC entities certain liens "SECURITY-Wheld bv when it failed in FEB.1989 and was liquidated. 2.I am familiar with FRAUDS-whlch fdic perpetrated in both capacities through account officer Lavalle who concealedcontamination ofSoftouch CarWash"soil+underground waterequiferfrom leaking fuel distribution lines to continue unchecked.FDIC concealed Sep'91 test results from its then owner Samantha and from choice acquisitions No THREE.Inc.f'CA3"1 and myself as lessees of "Softouch' in the 8/90 through 1993 era-despite its 9/17/91 obligation to do co-which liabilities DOSL1 assumed in return for heavily discounted priceof failed/matured loan package in purchased from FDIC in 1996) 3 Iam custodian of records of myself and my wife tamar avni aka TamarAvni Kaminetzky ['Tamar1'] who acquired fromCA-4partownerhip in "Softouch" after its corporatecharterwas forfeited 2/11/05 4.1 attached, recordsas Ex"a-k".I kept them for myself and for my my wife Tamar Avni in the regular courseof our businesses and supportof litigation defenses .Itwas regular courseof ourselvesand ouragents.employees or independent contractors we retained for business.tax work orTXlitigation with knowledge of the act,event, condition, opinion ordiagnosis, recorded to makethe record orto transmit information thereof to be included in that record,-that record was made at or near the time orreasonably thereafter. Theattached copiesare exactduplicates of ouroriginal businessrecords. -1- — 496 — \ if. Attached are -—pages of records.of —seperate documents from our business and court records '» f^f o^fl J which Imimborod sequentially and marked with appropriate exhibit numbeTSaWd-thhrieauoo number /^ O.Said pages of records were kept by myself on behalfof myself and my wife Tamar Avni in the ( r'V/v regular courseof ourbusinesses andlitigation activrties.and itwas regular courseof bothof us and for agents.employees or independent contractors we retained forbusiness,taxworkorTXlitigation with knowledge of the act,event, condition, opinion or diagnosis, recorded to makethe record orto transmit information thereof to be included in that record; and that record was made at or near the time or reasonablythereafter. The copies [attached are exact duplicates of those original records. B.I reserve my rights tosupplement this affidavit and my motion by4gJM and will then pay the motion fee ft. Iwill file additional sets of bulky appendix containing the records/exhibits proving this affidavit andthe undelving multi-prong motion which it supports-if additional copiesarerequired by the courtand Iwill pay the clerkof this courtor its front desk deputiesthe required statutory motion fees-rawer tham mail them in. FurtherAffiantSayethNot /W ^ Aw (l//^V ) Dov KAvni a/k/aDovAvni Kaminetzky Pro-se Appellant/Movant herein 150-B Forest DrJer.cho.NY 11753 "Affiant" SWORN TOand SUBSCRIBED BEFORE ME by Dov KAvni whom Iidentified by his NYState Driver's License No. ""3-^ VdrfjO" (expires onH|fl-L)onthis. rof April 2014. NOTARY PUBLIC )R THE STATE OF TEXAS MATTHEW V GARCIA My Commission Expires January 18. 2017 Footnotes [1] A We drew as we needed it. Yes. [2] Q I was just asking you to agree that the entire amount was [3] not funded — [4] A No, no. [5] Q --in the original note. 6 A It was not. No. 7 (Pause) 8 Q Mr. Haikin - 9 (Talking off the record) 10 Q I'm trying to find --to correctly describe it as Exhibit 11 # — Dosohs' Exhibit #3. Well, it's the one we were just 12 talking about. No, I take it back. That's not the one we 'l3 were talking — I'm talking about the one that was executed in 14 1987. 15 A Uh-huh. 16 Q Are you familiar with the modification agreement which is 17 Dosohs' Exhibit #11 -- 18 A #11. 19 Q -- that was executed February ,15th, 1987? 20 A Just one second. Get to it. 21 (Pause) 22 A That's right. Okay. 23 Q All right. Mr. Haikin, on page 2 of that document, item 24 4 says the maturity date of August 15th, 1990, shall remain 25 unchanged. JUDICIAL TRANSCRIBERS OF TEXAS, INC. Fax (713) 462-3042 • Office (713) 462-6434 1 A That's right. 2 Q Do you have any knowledge of there ever having been a 3 later extension or modification agreement that extended the 4 maturity date of this indebtedness any later than August 15th, 5 1990? 6 A No. 7 (Pause) 8 THE WITNESS x Judge, can I intercede a little bit 9 here? 10 THE COURT: I'm -- He's asking a question. 11 THE WITNESS: No, I'm just saying, can I intercede, 12 maybe make it clearer for you? 13 THE COURT: It's -- it's the lawyers, they're the 14 one in control right now. 15 MR. WHALEN: Do you want to -- 16 THE WITNESS: I just want to clarify what the 1987 17 was. The whole idea of the -- the reason for the modification 18 was to reduce the interest we were paying of 13 percent down 19 to 11, which reduced our payment considerably from over 7,000 20 to 6,300. That was the reason for this modification. It did 21 have nothing to do with extension or anything, and it cost us 22 $10,000 to do the modification. I -- 23 BY MR. WHALEN: 24 Q Well, yeah, I understand, and I suppose that's why it 25 states there then that the maturity date will not change. JUDIOAL TRANSCRIBERS OF TEXAS, INC. Fax(713) 462-3042 • Office (713) 462-6434 [12] ORAL DEPOSITION OF KEITH P. MILLER [13] July 29, 1998 14 [15] ORIGINAL 16 17 18 19 20 21 22 23 24 (JW*'-?9) 25 ACCURATE REPORTERS, INC. (281) 556-8074 227 -*» •wnpWWWf ;,••• ..;.•-—.. [18] Ms. Celinda Baez Guerra Attorney at Law [19] One Oak Park, Suite 200 1020 N. E. Loop 410 [20] San Antonio, Texas 78209-1212 21 22 23 24 25 ACCURATE REPORTERS, INC. (281) 556-8074 7 Reporter's Certification 1 31 8 I 9 10 I II I 12 13 1 14 1 15 16 1 17 18 I 19 II 20 21 I 22 H 23 24 1 25 I ACCURATE REPORTERS, INC. (281) 556-8074 II