L t t ' ' FILED IN IN THE COURT OF APPEALS FOR THECOURT OF APPEALS FIFTH JUDICIAL DISTRICT OF TEXAS JUN 0 8 2012 AT DALLAS YIGALBOSCH Appellant, Vs. LISA MATZ CLERK, 5th DISTRICT CIRRO GROUP, INC. D/B/A CIRRO ENERGY, a subsidiary ofdomlnion RET AIL, INC. Appellees, Case No. 05-11-01625- v Appeal from the Distrit ourt #296 Collin County, Texas Case: 296-01627-2011 APPELLANT'S REPLY TO APPELLEES' BRIEF -------------------------------------------------------------------------------------------- YIGAL BOSCH-PRO SE 2646 South Loop west Suite #220 Houston, Texas 77054 Tel: (713) 661-2230 Fax: (713) 661-2399 t ~
IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS AT DALLAS YIGALBOSCH Appellant, Vs. CIRRO GROUP, INC. D/B/A CIRRO ENERGY, a subsidiary ofdominion RET AIL, INC. Appellees, Case No. 05-11-01625- v Appeal from the Distrit ourt #296 Collin County, Texas Case: 296-01627-2011 APPELLANT'S REPLY TO APPELLEES' BRIEF YIGAL BOSCH-PRO SE 2646 South Loop west Suite #220 Houston, Texas 77054 Tel: (713) 661-2230 Fax: (713) 661-2399
IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS AT DALLAS YIGALBOSCH Appellant, Vs. CIRRO GROUP, INC. D/B/A CIRRO ENERGY, a subsidiary ofdominion RET AIL, INC. Appellee, Case No. 05-11-01625- v Appeal from the Distrit ourt #296 Collin County, Texas Case: 296-01627-2011 APP ALLENT'S REPLY TO APPELLEES' BRIEF TO THE HONORABLE COURT OF APPEALS: Appellant Yigal Bosh, ("Bosh"), is filing his Reply to Appellee Cirro Group, In. d/b/a Cirro Energy, a subsidiary of Dominion retail, In. ("Cirro") 's Brief and would respetfully show this Honorable Court as follows: -1-
REPLY TO STATEMENT OF FACTS. Appellee's statement that A YS Enterprises, In. is a Texas orporation that, upon information and belief, is owned and operated exlusively by Appellant Bosh ("Bosh") and served as property manager for the four properties identified above (the "properties") is inorret. AYS stands for: 1. A-Ashwin Pandia, 2. Y-Yigal Bosh and 3. S-Sadique Jaffer and was formed in 1990 to purhase and operate the Allen Arms apartments in South Houston, Texas. Eah one of the shareholders owned 33% of the property. During 2000 the omplex was sold and the orporation eased to exist. Appellee ontinues: "Beginning in Deember 2008, A YS entered into separate ontrats for the supply of eletriity ("Eletriity Servies') to eah property and exeuted subsequent renewal ontrats in 2010. (C.R. 172-272)" Bosh or A YS never met any representative of "Cirro" and the different properties handled their eletriity aount through a broker. Cirro opied the name A YS Enterprises, In. on all four aounts from H.L. & P eletri. All payments to Cirro were made diretly by the 4 different orporations. No renewal was signed by A YS or Bosh as Cirro refused to renew the alleged agreements with the 4 entities. (Appellant's Appendix page #5) -2-
Appellee ontinues: "The Bankrupty Cases were jointly administered under 2646 South Loop West, Ltd. bankrupty." The fut is that the Bankrupty Cases were jointly administered by Trent Rosenthal, Trustee." Appellee ontinue: "A YS paid for some, but not for all, of the Eletriity Servies provided." AYS never paid any eletri bill to Cirro, ever. "A YS had a balane on the Aounts for Eletriity Servies provided, inlusive of late fees, of Fifty-Six Thousand One Hundred Forty-One and 611100 Dollars ($56,141.61)." As appellant have shown in his Brief, and in his Response In Opposition to Plainti:tr s Motion for Summary Judgment, the four properties did not owe this amount of money to Appellee. A genuine issue of material fat, point of disagreement that ould not be deided by summary judgment. "The Bankrupty Court entered an order allowing the laim and authorizing disbursement of funds to Atrium, of whih Fifty-Nine Thousand One Hundred Eighty Seven and 481100 Dollars ($59,187.48) onstituted payment for Cirro harges." This figure is insignifiant as appellant will show later in his reply. What Appellee intentionally negleted to state was that 2646 was sold on July 6, 2010, and all some of the above harges belong to the new owner. Midland was sold on July 2, 2010 and all harges belong to the new owner. Angleton was -3-
forelosed on August 3, 2010 and Harwin was sold on August 28, 2010 and all harges belong to the new owners, whih the Appelle inluded in its lawsuit against them as well. The Bankrupty Order overs in part reimbursements of payments 2646 already made but was not reimbursed, some of whih were reimbursement for payments to Cirro that were already made. After reeiving the payments 2646 paid Cirro the following: Eight Thousand Nine Hundred Fifty Eight and 57/100 Dollars on Midland, Nine Thousand Nine Hundred Seventy Eight and 641100 Dollars ($9,978.64) on Harwin and Ten Thousands Eight Hundred Sixty Two and 03/100 ($10,862.03) on Harwin.(C.R. 141) a total of $29,794.34. Appellant submitted opies of heks but the trial ourt ignored it. The alleged debt ontained a large numbers of errors. The lower ourt allowed $40,255.17 judgment against Atrium, while the requested amount on the Otober letters (C.R. 496-499)differ drastially from this amount. Examining the figures Appellee showen the four properties owed $41,295.65 and $18,932.31 was paid as Appellee admitted in his brief to reeive (Pa. 4). Instead Appellee with unlean hands laimed that $59,187.48 paid to Atrium was debt owed to it. Another point of a genuine issue of material fat, the fat differene in the amounts, does not allow ourt to grant a summary judgment. Appellee ontinues under the deemed admissions:" Importantly, Atrium admitted -4-
that a signifiant portion of the money it reeived from the bankrupty trustee in payment of a final allowane for an administrative laim belonged to Cirro, that when it reeived suh payment its orporate privileges had been forfeited, and that when suh payments were reeived Bosh was an offier of Atrium." Even if we aept this deemed admission by Atrium, Cirro admitted of reeiving from the Atrium the amount of $18,93 2.31 whih is "a signifiant amount" and in addition the other parts were already paid previously. This admission does not serve as a basis for a Summary Judgment. BOSCH WAIVED HIS VENUE CHALLENGE The legislature amended the venue statute in 1995. The stated purpose of senate Bill32 (whih beame the new venue statue) was to "eliminate the many loopholes and legal strategies that promote forum shopping-allowing someone to hose the most favorable ounty despite its tenuous onnetion to the ase." House researh organization, Bill Analysis, Tex. S.B. 32, 74th Leg., R.S. (1995) In the ase at bar, all defendants were residents of Harris County, all the events took plae in Harris County, nothing happens in Collin ounty. The lower ourt judge jurisdition of the ase was questionable, but the judge left the ase in the wrong ounty. Under the urrent rules, the plaintiff had the burden to prove that venue is -5-
maintainable in Collin County. Tex. R. Ci.v. P.87(3)(a). it did not. Beause the defendant suffered from a severe brain injury, he was entitled to a plea of privilege, as he ould not ommute to Collin ounty. "A properly filed plea of privilege onstituted prima faie proof of the defendant's right to a hange of venue unless the plaintiff ontroverted the plea in a sworm pleading." Tex. R. Civ. P. 86(Vernon 1979, amended 1983). The primary purpose of our venue statutes is to give a person who has been sued the right to defend suh suit in the ounty of his residene exept under statutory exeptions. Artile 1995, V,A.C.S. A.H. Belo Corporation vs. Blanton, 133 Tex. 391,129 S.W. 2d 619. Rule 257, leaves open any other reason to hange venue. Severe brain injury is a proper reason. In addition, beause of the distane, Bosh ould not fmd a qualified attorney in Harris County to represent him and A YS. in responding in opposition to the motion for Summary Judgment. The trial ourt judge abused his disretion when he refuse to hear Bosh's motion to hange venue. BOSCH WAS PERSONALLY RESPONSIBLE FOR THE DEBT OF ATRIUM Atrium was not obligated to pay Cirro anything beyond what was due to it. -6-
Atrium made several payments with funds it borrowed from other soures to pay bills. The Trustee reimbursed Atrium only the amounts that the Trustee agreed to. Atrium paid Cirro before it was reimbursed, therefore the amount in the order by the Bankrupty ourt, is not the amount that was owed to Cirro. Atrium does not owe any money to Appellee, therefore Bosh does not owe any money to Appellee. Wrongfully, the trial ourt granted summary judgment against Atrium, without any proof that Atrium retained any money owed to Cirro. Cirro was paid prior to this date with Atrium borrowed money. Therefore the trial ourt without a trial and evidene to the ontrary erred in aepting Cirro' s laims as orret and based on fats that did not exist. Appellee wrote: "The summary judgment evidene also established as a matter of law that the funds paid to Atrium by the bankrupty trustee belonged to Cirro in equity and good onsiene beause the funds represented payment for harges inurred for eletriity servies Cirro provided to the Property." This onlusion of Appelle is unfounded as it did not prove that the amount paid to Atrium was for unpaid bills or partly unpaid bills. The fat is that after Atrium reeived the funds it paid Cirro its outstanding bills. As Appellant showed earlier, the amount release by the Bankrupty Court did not math Cirro's debt. -7-
ATRIUM FORFEITED ITS CORPORATE PRIVILEGES. Atrium served as the manager of 2646 South Loop West Limited Partnership, the owner of2646 South loop West, Houston Texas. Atrium never had any inome as a orporation, and in filing the no inome franhise taxes report it made an error in listing the date on the report.(c.r. 494). It never had any agreement with Cirro for any eletri servie and never benefited from Cirro' s servie to the four properties. Atrium denied and submitted anelled heks of payments to Cirro. Trustee for the bankrupt orporation appointed Atrium as the management ompany to supervise the operations of the four properties. Atrium had to pay bills and payroll and submitted its expenses to the Trustee for reimbursement. After the properties were sold/forelosed, the Trustee refused to reimburse Atrium and left the deision to the Bankrupty ourt. Atrium made a Motion to release the funds it already disbursed and more funds for outstanding bills. On Otober 21, 2010, the ourt ordered the release of funds to Atrium. TEX. CODE 171.255(A) With all respet to all authorities that dealt with Tex Code 171.255 Appellant would like to express his opinion about this statue. This statues was written by the legislature for the purpose of olleting all -8-
state taxes, penalties and osts. When we read a statue we have to find the legislature' s intent. Texas Tax Codes were written in referene to their name, Texas Tax laws. 171.255 an not be interpreted any other way than the way it is written. If the intent was the olletion of other than the tax debt, penalty and osts, it would have written in a different setion of the laws, being part of Texas' orporate laws. When it is falling under Texas Tax laws, the intent was to enfore olletion of tax due and that is what 171.255 meant. There is no mention in 171.255 about all orporation's debt, if the legislature meant all orporate debts, it would have been written that way. The language of the status refers to "any tax or penalty imposed by this hapter". The sentene. " The liability inludes liability for any tax or penalty imposed by this hapter on the orporation that beomes due and payable after the date of the forfeiture." Strengthen the meaning of the legislature's intent as it is related to "tax or penalty imposed by this hapter". The logi behind this sentene is very lear, as some might say if the orporation lost its privileges than why should the orporation pays orporate's taxes. This sentene is to make it lear that a orporation's tax is ontinues to be due even after the orporate privileges were forfeited. "In onstruing statutes, 'our primary objetive is to asertain and give effet to the legislature's intent."' Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex. 2009) -9-
(quoting City of Marshall v. City of Unertain, 206 S.W.3d 97, 105 (Tex. 2006)). "However, it is ardinal law in Texas that a ourt onstrues a statute, 'first, by looking to the plain and ommon meaning of the statute's words.'" Fitzgerald v. Advaned Spine Fixation Sys., In., 996 S.W.2d 864, 865 (Tex. 1999) (quoting Liberty Mut. Ins. Co. v. Garrison Contrators, 966 S.W.2d 482, 484 (Tex. 1998)). "Unambiguous statutory language is interpreted aording to its plain language unless suh an interpretation would lead to absurd results." Hernandez, 289 S.W.3d at 318 (iting Fleming Foods of Tex., In. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999)). When onstruing a statute aording to its plain language, we "may not add language that is not impliitly ontained in the language of the statute." Villarreal v. Wells Fargo Brokerage Servs., LLC, 315 S.W.3d 109, 122 (Tex. App.-Houston [1st Dist.] 2010, no pet.). A Tax law has no intent or purpose to deal with any obligation other than a tax obligation. If a orporate's shield of the orporate offiers and stokholders ould be removed when a orporation defaulted in filing a no inome Franhise tax's report and its prinipals are liable to other debts of the orporation it takes the priniple idea of the orporate struture, to leave the prinipals out of personal liabilities. In the ase at bar, Atrium was disharge as a management ompany the day -10-
after the sale of the 2646, July 7, 2010, its funtions have ended on August 15, 2010. Beause of the Trustee's refusal to release funds, the only item that remained open was the payment of outstanding bills. Atrium filed a Motion to the bankrupty ourt to release the funds, it was not until until Otober 21, 2010, at whih time the ourt ordered the Trustee to release the funds. After reeiving the funds Atrium paid all justified bills. Atrium had no agreement with Cirro, nor reeived any servies from Cirro, it ated as a liaison between the Trustee and Cirro. On July 2, 2009 2646 filed hapter 11 bankrupty, at that time 2646 owed Cirro $18,054.31. Cirro did not file a laim and the Bankrupty ourt did not allow any payment on any bill prior to filing of the hapter. On Otober 5, 2009, Midland, Angleton and Harwin filed hapter 11 bankrupty, at that time Midland owed Cirro $3,204.91(C.R. 364) Angleton owed $14,102.68 (C.R. 411) and Harwin $33,566.36 (C.R. 386) Cirro did not file laims and the Bankrupty Court did not allow any payments on bills prior to the filing. Sine Atrium had to maintain the operation of the buildings it paid the arrears from money it reeived against future bills of Cirro that were released by the trustee, the relationship of the amounts of the reimbursement and the amount owed was insignifiant. -11-
Atrium to this date did not reeive the amount it paid Cirro, as it never olleted on debt prior to the filing of the bankrupties. Even if Bosh as a prinipal of Atrium was liable, there aren't any funds designated for Cirro out of the Otober 21, 2010 Order. The trial ourt erred in granting a summary judgment against Atrium and Bosh. This Honorable Court respetfully asked to reverse the summary judgement against Atrium and Bosh. Cirro Request for Admissions were not Properly Deemed Admitted. Appellee wrote: "Cirro served requests for admissions on AYS and Atrium along with its original petition on April 11, 2011 (C.R. 10; 293-320). AYS and Atrium failed to timely respond to suh requests. (C.R. 517-18;526). Although Bosh omplained in his response about the requests and argued it was his mistake that they were not timely answered, the response was filed on behalf of Bosh, individually, beause Bosh is not an attorney, and annot file pleading on behalf of AYS and Atrium. (C.R. 525-532). Thus A YS and Atrium did not sek to withdraw or strike the deemed admission." It is an interesting legal question, if Appellee laimed that beause of 171.255 AYS and Atrium lost their Corporate's harter and privileges, than the -12-
orporations are a partnership or a sole ownership then why Bosh, an offier of both orporation, ould not represent himself on behalf ofth~ non existing A.Y.S. and Atrium? Appellee ontinued: "Furthermore, Bosh did not obtain a ruling from the trial ourt on his alleged hallenge to the deemed admissions" (Appellee's Brief pa. 15) This is an admission by the Appellee that the judge abused his disretion in defaulting to submit to Appellant's request for finding of fat and onlusions of Law. Even if Appellee's ontention that the Request for Admission was proper, Appellant showed in his brief that it was defetive. Findings of Fat and Conlusions of Law are Proper in this ase Appelle wrote: "Moreover, this Court made the same speifi finding, further stating that "If a summary judgment is proper, there are no fats to find, and the legal onlusions have already been stated in the motion to response" Willms v. Amerias Tire Co. In., 190 S.W. 3d 796, 810 (Tex. App.-Dallas 2006, pet. Denied) (emphasis added) The important part of this Honorable Court's finding in Willms, is "Proper" in the ase at bar it was not proper. -13-
Without repeating Appellant's laims in respet to this question, Appellant will quote Appellee's own Statement. At the end of its Motion, Cirro admitted that some issues in the ase will require trial. (C.R. p. 168 Par. 49) CONCLUSION Appellant showed to this Honorable Court several issues of material fats that would exlude granting summary judgment's order. Appellee admitted in his motion for summary judgment that some issues in the ase will require trial. PRAYER Appellant prays to this Honorable Court to Reverse the summary judgment Order and remand this ase to a ourt in Harris County. /1 Respetful7mi" ~ r!~ / ( 2 ia1 Bosh Pro-Se l 2646 South Loop west #220 Houston, Texas 77054 Tel: 713-661-2230, Fax: 713-661-2399-14-
CERTIFICATE OF SERVICE I hereby ertify that a true and orret opy of Appellant's Reply to Appellee's Brief, was mailed on June 7, 2012 by first lass mail to the last known address of attorney for Appellee. Eri G. Walraven Kelly E. Bryan /o Hiershe, Hayward, Drakeley & Urbah P.C. 15303 Dallas Parkway Suite 700 Addison, Texas 7 5 00 1 / -15-