Laurel Miller and Eliana Miller v. Debo Homes, LLC ( 2015 )

ACCEPTED
14-15-00004-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
7/28/2015 8:27:19 AM
CHRISTOPHER PRINE
CLERK
CAUSE NO. 14-15-00004-CV
FILED IN
14th COURT OF APPEALS
IN THE FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS
HOUSTON, TEXAS 7/28/2015 8:27:19 AM
CHRISTOPHER A. PRINE
Clerk
LAUREL MILLER AND ELIANA MILLER
Appellants and Cross-Appellees
vs.
DEBO HOMES, LLC
Appellee and Cross-Appellant
From Cause No. 13-DCV-209822
In the 400th Judicial District Court
Fort Bend County, Texas
APPELLEE AND CROSS-APPELLANT DEBO HOMES, LLC’S BRIEF
Craig Welscher
State Bar No. 21167200
Nicholas Martinez
State Bar No. 24087986
The Welscher Law Firm, P.C.
1111 North Loop West, Suite 702
Houston, Texas 77008
(713) 862-0800 – Telephone
(713) 862-4003 – Facsimile
Email: nmartinez@welscherlaw.com
Attorneys for Appellee & Cross-Appellant
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellants and Cross-Appellees
Laurel Miller and Eliana Miller
Appellants’ Counsel
Timothy A. Hootman- Appellate Counsel
SBN: 09965450
2402 Pease St.
Houston, Texas 77003
Telephone: (713) 247-9548
Facsimile: (713) 583-9523
Email: thootman2000@yahoo.com
Brian H. Crockett- Trial Counsel
SBN: 24074094
10565 Katy Freeway, Ste. 400
Houston, Texas 77024
Telephone: (713) 779-3476
Email: brian@crockettlaw.com
Appellee and Cross-Appellant
Debo Homes, LLC
Appellee’s Trial & Appellate Counsel
Craig Welscher
SBN: 21167200
Nicholas Martinez
SBN: 24089786
The Welscher Law Firm, P.C.
1111 N. Loop West, Suite 702
Houston, Texas 77008
Telephone: (713) 862-0800
Facsimile: (713) 862-4003
Email: nmartinez@welscherlaw.com
ii
REQUEST FOR ORAL ARGUMENT
Appellee moves to place this case to the argument calendar. This case meets
the standards in Rule 39.1 for oral argument, in that (a) this appeal is not frivolous,
(b) the dispositive issues raised in this appeal have not been recently and
authoritatively decided, (c) the facts and legal arguments are not adequately
presented in the briefs and record, and (d) as described in the accompanying
memorandum, the decisional process would be significantly aided by oral
argument.
Specifically, this brief presents extensive arguments regarding what is
factually sufficient to support a Deceptive Trade Practices Act finding. Appellee
believes that oral argument would allow this Court to question counsel regarding
specific pieces of evidence from trial and how those relate to the DTPA issues.
iii
TABLE OF CONTENTS
PAGE
Identity of Counsel and Parties.................................................................................ii
Request for Oral Argument......................................................................................iii
Table of Contents.....................................................................................................iv
Index of Authorities……………...........................................................................viii
Statement of the Case................................................................................................1
Issues Presented……….............................................................................................2
Statement of Facts….................................................................................................3
Summary of the Argument........................................................................................8
Argument...................................................................................................................9
A. THE DTPA REQUIRES THE MILLERS TO PROVIDE EVIDENCE FOR A
REPRESENTATION IN § 17.46(B) ........................................................................9
1. The No Evidence Standard.........................................................................9
2. The DTPA Elements and Standard............................................................9
B. THERE IS NO EVIDENCE THE ALLEGED REPRESENTATIONS WERE BREACHED BY
DEBO..............................................................................................................10
1. Representation No. 1: That Debo Hires the Highest Quality
Subcontractors..........................................................................................10
2. Representation No. 2: Onsite Supervision and Inspections.....................14
3. Representation No. 3: That Debo Obtains Third-Party Inspections........16
iv
4. Representation No. 4: The AC Unit in the Model Home Would be in the
Home in Question....................................................................................16
5. Representation No. 5: That All Problems Would be Fixed.....................17
C. THE ALLEGED REPRESENTATIONS IN SUPPORT OF THE JURY’S FINDING TO
QUESTION NO. 1 ARE NONACTIONABLE PUFFERY UNDER THE DTPA................19
1. The Puffery Standard...............................................................................19
2. The Millers’ Representations at Trial are Puffery and Opinion...............21
a. Representation No. 1: That Debo Hires the Highest Quality
Subcontractors.....................................................................................21
b. Representation No. 2: Onsite Supervision and Inspections................23
c. Representation No. 5: That All Problems Would be Fixed................25
3. Debo’s Alleged Representations Are Nonactionable Opinions Under
Ghosh.......................................................................................................27
a. (1) Intertwined with direct representations of present facts and (3)
based on past or present facts..............................................................27
b. (2) The speaker has knowledge of its falsity.......................................28
c. (4) The speaker has special knowledge of facts that will occur or exist
in the future.........................................................................................30
D. THE MILLERS SHOULD NOT BE AWARDED PREJUDGMENT INTEREST..................31
1. Debo’s Tender Into the Court Registry Precludes Prejudgment
Interest......................................................................................................31
E. THE MILLERS SHOULD NOT BE AWARDED POSTJUDGMENT INTEREST.................32
1. Debo’s Deposit Into the Court Registry Halts Postjudgment
Interest......................................................................................................32
v
Conclusion...............................................................................................................32
Prayer.......................................................................................................................33
Certificate of Compliance........................................................................................34
Certificate of Support..............................................................................................34
Certificate of Service...............................................................................................34
Appendix....................................................................................................................a
1. Clerk’s Record
a. Volume 1
i. Plaintiff’s Original Petition, Requests for Disclosure and Demand
for Jury Trial
b. Volume 2
i. Plaintiffs Trial Witness List
ii. Jury Charge
c. Volume 3
i. Defendant Debo Homes, LLC’s Motion to Disregard the Jury’s
Answer to Question Number One
ii. Order Denying Defendant’s Motion to Disregard the Jury’s
Answer to Question Number of the Jury’s Charge
iii. Defendant Debo Homes, LLC’s Response to the Plaintiffs’ Motion
for Judgment on the Jury Verdict
iv. Final Judgment
vi
2. Reporter’s Record
a. Volume 2
i. Examination of Laurel Miller
b. Volume 3
i. Examination of Laurel Miller
ii. Examination of Harold Knueppel
iii. Examination of Kris Dominguez
iv. Examination of Juan Carlos Hernandez
c. Volume 4
i. Examination of Eduardo Michael Cisneros
d. Volume 6
i. Plaintiffs’ Exhibit 1
ii. Plaintiffs’ Exhibit 10
iii. Plaintiffs’ Exhibit 12
iv. Defendant’s Exhibit 2
v. Defendant’s Exhibit 10
vi. Defendant’s Exhibit 11
vii. Defendant’s Exhibit 14
viii. Defendant’s Exhibit 20
vii
INDEX OF AUTHORITIES
TEXAS CASE LAW:
Allen v. Devon Energy Holdings, L.L.C., 367 S.W.3d 355, 370 (Tex. App.-
Houston [1st Dist.] 2012, pet. granted)....................................................................24
Anglo-Dutch Petroleum Int’l, Inc. v. Shore Harbour Capital Management Corp.,
No. 01-09-00417-CV, 2011 WL 862117, *4-5 (Tex. App.- Houston [1st Dist.] Mar.
10, 2011, no pet.) (mem. op.)..................................................................................30
Autohaus, Inc. v. Aguilar, 794 S.W.2d 459, 463-64 (Tex. App.- Dallas 1990, writ
denied)..........................................................................................................20-21, 24
Breault v. Psarovarkas, No. 01-01-00122-CV, 2003 WL 876651, *7 (Tex. App.-
Houston [1st Dist.] Feb. 28, 2003, pet. denied) (mem. op.).....................................32
Browning Oil Co. v. Luecke, 38 S.W.3d 625, 648 (Tex. App.- Austin 2000, pet.
denied)................................................................................................................31-32
GJP, Inc. v. Ghosh, 251 S.W.3d 854, 889 (Tex. App.- Austin 2008, no
pet.)........................................................................................................20, 24, 27, 28
Hedley Feedlot v. Weatherly Trust, 855 S.W.2d 826, 838-39 (Tex. App.- Amarillo
1993, writ denied)........................................................................................19-20, 24
Helm v. Kingston, No. 13-10-00224-CV, 2011 WL 6746064, *5-7 (Tex. App.-
Corpus Christi Dec. 21, 2011, pet. denied) (mem. op.).....................................22-23
Kramer v. Hollmann, No. 02-11-00136-CV, 2012 WL 5869423, *1, 4-5 (Tex.
App.- Fort Worth Nov. 21, 2012, pet. denied) (mem. op.)................................13, 14
Lozano v. Lozano, 52 S.W.3d 141, 166 (Tex. 2001)...............................................17
Matis v. Golden, 228 S.W.3d 301, 307-09 (Tex. App.- Waco 2007, no pet.)....29-30
McCrea v. Cubilla Condominium Corp. N.V., 685 S.W.2d 755, 759-60 (Tex. App.-
Houston [1st Dist.] 1985, writ ref’d n.r.e.)...................................................15, 16, 19
viii
Miga v. Jensen, 96 S.W.3d 207, 212 (Tex. 2002)...................................................32
Paull v. Capital Res. Mgmt., Inc., 987 S.W.2d 214, 218-19 (Tex. App.- Austin
1999, pet. denied)....................................................................................................25
Pegasus Energy Group, Inc. v. Cheyenne Petroleum Co., 3 S.W.3d 112, 125 (Tex.
App.- Corpus Christi 1999, pet. denied)..................................................................31
Pennington v. Singleton, 606 S.W.2d 682, 685-89 (Tex. 1980)..............................20
Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 163 (Tex.
1995)........................................................................................................................21
Reynolds v. Murphy, 188 S.W.3d 252, 268 (Tex. App.- Fort Worth 2006, pet.
denied).....................................................................................................................25
Rocor Int’l v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002)........9, 15
Roubein v. Marino Home Builders, No. 13-01-711-CV, 2002 WL 1765579, *4
(Tex. App.- Corpus Christi Aug. 1, 2002, pet. denied, not designated for
publication).........................................................................................................26-27
Rush v. Barrios, 56 S.W.3d 88, 94-95 (Tex. App.- Houston [14th Dist.] 2001, pet.
denied).......................................................................................................................9
Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 621 (Tex. 2004)............9, 13
St. Paul Mercury Ins. Co. v. Billiot, 342 S.W.2d 161, 164 (Tex. App.- Beaumont
1960, writ ref’d).......................................................................................................32
Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003).................................................9
Trenholm v. Ratcliff, 646 S.W.2d 927, 930-31 (Tex. 1983)........................20, 24, 30
Werth v. Johnson, 294 S.W.3d 908, 910-11 (Tex. App.- Beaumont 2009, no
pet.).....................................................................................................................30-31
ix
TEXAS STATUTES:
TEX. BUS. & COMM. CODE §§ 17.41-17.63..............................................................10
x
STATEMENT OF THE CASE
Appellants and Cross-Appellees Laurel Miller (“L. Miller”) and Eliana
Miller (“E. Miller”) (collectively, the “Millers”) filed suit against Appellee and
Cross-Appellant Debo Homes, LLC (“Debo”) alleging violations of the Texas
Deceptive Trade Practices Act (“DTPA”) among other causes for Debo’s
construction of the Millers’ home (C.R. Vol. 1, at p. 9-19).
Before trial commenced, Debo deposited $60,300.00 into the trial court’s
registry (R.R. Vol. 6, at Dft. Ex. 20). The case then proceeded to trial and the jury
found Debo violated the DTPA and awarded the Millers $60,650.00 in actual
damages (C.R. Vol. 2, at p. 560-82). Debo subsequently challenged the jury’s
DTPA finding in a motion to disregard (C.R. Vol. 3, at p. 755-954), which the trial
court denied (C.R. Vol. 3, at p. 971-72). Debo then deposited an additional
$350.00 into the trial court’s registry (C.R. Vol. 3, at p. 1122).
Upon the Millers’ motion to enter judgment based on the jury’s findings,
Debo challenged the Millers’ request for prejudgment and postjudgment interest
due to Debo’s tender of money into the registry of the court (C.R. Vol. 3, at p.
1115-47). The trial court denied Debo’s challenge, awarding Millers prejudgment
and postjudgment interest on $60,650.00 (C.R. Vol. 3, at p. 1148-51).
1
ISSUES PRESENTED
1. The Jury’s DTPA finding in Question No. 1 must be disregarded because a)
there is no evidence to support a breach of the DTPA and 2) the Millers’
purported representations in support of a DTPA finding are mere puffery.
2. The Millers must not be granted any prejudgment or postjudgment interest
on their damages award because Debo made a complete tender of the actual
damages amount into the trial court’s registry.
2
STATEMENT OF FACTS
In April 2013, the homebuyers Millers and general contractor Debo agreed
to a new home construction contract (the “Agreement”) (R.R. Vol. 6, at Pltf. Ex.
1). The Agreement indicated that the Millers would pay the total amount of
$178,000.00, which the parties ultimately agreed would be paid solely in cash
installments (R.R. Vol. 2, at p. 32:3-16). The Millers made total cash payments to
Debo in the amount of $60,300.00 (R.R. Vol. 6, at Dft. Ex. 2).
Since the Millers agreed to make cash installments, Debo had to fund the
majority of the construction project out of their own pocket, which included
purchasing the lot for $18,500.00 and paying $86,359.79 for the subcontractors
(R.R. Vol. 6, at Pltf. Ex. 10; R.R. Vol. 3, at p. 239:22-25 & 240:1-6). In total, Debo
paid $151,100.78 out of its own pocket to build the home at issue (R.R. Vol. 6, at
Pltf. Ex. 10).
The Millers claimed in their pleadings that Debo made “numerous
representations to induce the Millers to purchase the home” (C.R. Vol. 1, at p. 10).1
Believing those representations were unfulfilled during the first phase of
construction, the Millers hired a lawyer to send a letter to Debo, threatening
litigation, ordering Debo to cease all communications with the Millers, and
ordering Debo to halt construction (R.R. Vol. 6, at Dft. Ex. 10). Debo responded
1
These amorphous “representations” are summarized in a chart on pages 5-6, infra.
3
soon thereafter, reiterating their commitment to customer satisfaction and
fulfillment (R.R. Vol. 6, at Dft. Ex. 11). Debo also acknowledged that if the
Millers were still unsatisfied, that they were “free to terminate the contract with
Debo Homes and we will refund you 100% of the money you have given us after
we sell the house” (R.R. Vol. 6, at Dft. Ex. 11). The Millers’ response to Debo’s
olive branch would be this lawsuit (C.R. Vol. 1, at p. 9-19). The parties never
closed on the home purchase and the Millers never inspected the finished house.
To mitigate their damages, Debo sold the home to a third party for $10,000.00 less
than what the Millers agreed to pay (R.R. Vol. 6, at Dft. Ex. 14).
Still unhappy with Debo’s attempt to resolve the dispute, the Millers filed
suit against Debo, asking for $100,000 to $500,000 in damages plus exemplary
damages and attorney’s fees (C.R. Vol. 1, at p. 9-19). The Millers claimed that
Debo’s representations amounted to a violation of the DTPA, specifically pled by
the Millers as Texas Business and Commerce Code, Chapter 17.41, et seq., Section
17.45(5), and Section 17.46(b) (C.R. Vol. 1, at p. 14). Before trial commenced,
Debo deposited $60,300.00 into the court’s registry on August 14, 2014 (R.R. Vol.
6, at Dft. Ex. 20).
At trial, the Millers failed to designate any expert who could opine as to the
construction of a residential home, what a high quality subcontractor was, and
what is to be expected during the normal course of construction (C.R. Vol. 2, at p.
4
484-85). Instead, L. Miller attempted to provide expert testimony but was
continually sustained throughout her testimony (R.R. Vol. 2, at p. 40:4-7 & 14-17,
41:1-4, 44:20-22, & 45:10-12). The Millers also presented their home inspector
Harold Knueppel (“Knueppel”), who was limited to only describing what he saw
(R.R. Vol. 3, at p. 140-44).2
Since the Millers presented no facts regarding construction defects or that
the home was indeed defective, the Millers instead presented evidence about what
representations were made to them by Debo salesman Kris Dominguez
(“Dominguez”) before construction began. The following chart summarizes these
representations and the Millers’ proffered evidence to support the falsity of those
representations:
CHART OF THE MILLERS’ ALLEGED REPRESENTATIONS
Representation No. Representation Alleged Breach Cite
No. 13 That Debo hires a) L. Miller R.R. Vol. 2, at p.
the highest quality testifies to seeing 33:11-15, 36:16-
subcontractors split boards, 25, & 37:1-4
bowed boards, R.R. Vol. 3, at p.
“cracked things” 25:13-25 & 26:1-4,
b) framers 28:14-22, & 32:19-
correctly cut a 25 & 33:1
2
Before Knueppel testified, the Judge warned that if Knueppel provided any expert testimony
regarding construction, he would be removed from the courtroom (R.R. Vol. 3, at p. 139:23-25
& 140:1-4).
3
For the remainder of this brief, Debo will refer to each representation in this chart as
“Representation No. 1,” etc.
5
piece of wood
c) speculation that
fence diggers cut a
power line
d) “holes” did not
line up
No. 2 Onsite supervision a) only saw R.R. Vol. 2, at p.
would oversee the workers and 33:25 & 34:1-3; p.
project at all times subcontractors 37:15-18
b) saw two Debo R.R. Vol. 3, at p.
people or two men 24:20-25 & 25:1-4
No. 3 Debo obtains third- None4 R.R. Vol. 2, at p.
party inspections 34:4-8
No. 4 AC unit in the None5 R.R. Vol. 2, at p.
model home would 34:21-25 & 35:1-
be the same 10
No. 5 That all problems None6 R.R. Vol. 2, at p.
would be fixed 35:11-18
The Jury found in favor of the Millers’ DTPA claim against Debo in
response to Question No. 1 (C.R. Vol. 2, at p. 563). Based on that finding, the Jury
awarded the Millers a combined $60,650.00 in actual damages (C.R. Vol. 2, p.
566). The Jury unanimously rejected the Millers’ additional DTPA questions that
Debo acted unconscionably and knowingly (C.R. Vol. 2, at p. 564-65). Based on
4
The only evidence in the record establishes that Debo did indeed perform these inspections
(R.R. Vol. 6, at Pltf. Ex. 12).
5
At one point, L. Miller is asked if “that is the A/C unit you saw in the model home” and she
answers “[n]o, not at all” (R.R. Vol. 2, at p. 45:18-20). L. Miller never says this is referring to
the home in question. This will be addressed in more detail in Section (B)(4), infra.
6
L. Miller clarified that Debo had until closing to make any and all necessary repairs (R.R. Vol.
3, at p. 68:2-4 & 106:21-24). The parties never closed.
6
those findings, the Jury unanimously awarded the Millers $0 for attorney’s fees at
all stages of litigation (C.R. Vol. 2, at p. 577). The Jury did not leave the attorney’s
fees question blank, but rather wrote in “$0” (C.R. Vol. 2, at p. 577). Debo
subsequently deposited an additional $350.00 into the court’s registry on
December 12, 2014, totaling $60,650.00 (C.R. Vol. 3, at p. 1122).
After trial, the trial court awarded the Millers full prejudgment interest from
the date the Millers filed their lawsuit on October 7, 2013 until the court entered
judgment and full postjudgment interest from the date of judgment (C.R. Vol. 3, at
p. 1148-49). The trial court entered its judgment on December 22, 2014 (C.R. Vol.
3, at p. 1150).
7
SUMMARY OF THE ARGUMENT
Issue One: Whether Debo’s motion to disregard the jury’s finding that Debo
violated the DTPA should be granted
The Millers’ only successful claim at trial was their DTPA claim against
Debo. To support a DTPA finding, the Millers were first required to show that
Debo made some kind of actionable representation recognized by the DTPA. The
Millers’ evidence presented at trial failed to show 1) that Debo’s alleged
representations were false and 2) even if there was evidence of false
representations, those representations merely amount to puffery.
Issue Two: Whether the Millers should be granted any prejudgment interest
It is uncontroverted that Debo deposited $60,650.00 into the court registry
prior to the entry of judgment. Since a prejudgment tender of the entire sum of
Millers’ damages was made by Debo, Debo is excused from having to pay
prejudgment interest.
Issue Three: Whether the Millers should be granted any postjudgment interest
Debo’s $60,650.00 pre-judgment deposit also halts the accumulation of
postjudgment interest. Debo must be excused from the trial court’s ruling requiring
Debo to pay postjudgment interest.
8
ARGUMENTS AND AUTHORITIES
A. THE DTPA REQUIRES THE MILLERS TO PROVIDE EVIDENCE FOR A
REPRESENTATION IN § 17.46(B)
1. The No Evidence Standard
If there is no evidence to support the Jury’s answer to Question No. 1, then
Debo’s Motion to Disregard the Jury’s answer to that question should have been
granted. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003). If the Plaintiffs’
evidence to support the Jury’s answer to Question No. 1 is no more than a scintilla,
it is no evidence. Rush v. Barrios, 56 S.W.3d 88, 94-95 (Tex. App.- Houston [14th
Dist.] 2001, pet. denied). A scintilla is “when the evidence offered to prove a vital
fact is so weak as to do no more than create a mere surmise or suspicion of its
existence,” which has the legal effect of no evidence. Southwestern Bell Tel. Co. v.
Garza, 164 S.W.3d 607, 621 (Tex. 2004) (quoting Robert W. Calvert, “No
Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 363
(1960)). “More than a scintilla of evidence exists if the evidence furnishes some
reasonable basis for differing conclusions by reasonable minds about a vital fact’s
existence.” Rocor Int’l v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.
2002).
2. The DTPA Elements and Standard
The Millers’ pleadings claimed that Debo committed a violation of the
9
DTPA “laundry list” found in Business & Commerce Code § 17.46(b) and
committed an unconscionable act as that term is defined in § 17.45(5) (C.R. Vol. 1,
at p. 14). The Jury unanimously rejected the Millers’ claim that Debo committed
an unconscionable action but found in a 10-2 decision that Debo committed a
violation of § 17.46(b) (C.R. Vol. 2, at p. 563-65).
To sustain a Jury finding under § 17.46(b), the Millers must show that 1)
they are a consumer, 2) Debo can be sued under the DTPA, 3) Debo committed a
false, misleading, or deceptive act or practice that is specifically enumerated in the
“laundry list” found in § 17.46(b) and that was relied on by the Millers to their
detriment, and 4) Debo’s action was a producing cause of the Millers’ damages.
TEX. BUS. & COMM. CODE §§ 17.41-17.63. Elements 3 and 4 are at issue.
B. THERE IS NO EVIDENCE THE ALLEGED REPRESENTATIONS WERE
BREACHED BY DEBO
1. Representation No. 1: That Debo Hires the Highest Quality
Subcontractors
Even if the representation that Debo utilizes only the highest quality
subcontractors is actionable under the DTPA, the Millers offered no evidence to
show that there was a breach of that undefined standard.
L. Miller repeatedly told the Jury that she was not a construction expert and
had idea what actually constituted a construction defect:
Q: Have you had any formal training in construction?
10
A: No.
Q: Have you ever been taught how to identify construction defects?
A: No (R.R. Vol. 3, at p. 88:24-25 & 89:1-4).
...
Q: But you weren’t sure whether or not this was supposed to have
insulation?
A: That’s right. I’m not a construction expert (R.R. Vol. 3, at p. 137:14-16).
In support of her non-expert testimony, L. Miller provided the following
regarding her idea of a high quality subcontractor:
Q: Once you paid Debo Homes the $60,300, did you go back out and look at
the highest quality subcontractors work on the framing?
A: Yeah. Well, we – we went out to the site, and we looked around. They
were – a couple of weeks later, they were doing the framing, and I just – I
just started looking around, you know, looking – okay, here’s the – trying to
identify which room’s which. And I looked up, and I saw split boards, like
broke in half, and other boards bowedbowed [sic] out and other boards that
just didn’t look right, and cracked things here and there (R.R. Vol. 2, at p.
36:16-25 & 37:1-2).
...
A: He called down to the man on the ground. Then the man on ground cut –
cut a board, handed it up to the man on the roof. The man on the roof set it
on the roof. It was like a – like a piece of the solid base of the roof board, not
like a shingle, just like a main board for the roof – and then kind of moved it
back and forth, shook his head, threw it off the roof. Then called down to the
man on the ground a second time. The man on the ground cut a second
11
board, handed it up to the man on the roof. The man on the roof tried to
place it again. The man on the roof threw it down, called down to the man
on the ground a third time. A third board was cut, handed up, the man on the
roof tried to place it again. Still didn’t work, threw it down. A fourth time
the man on the roof called down, a fourth board was cut, handed it up,
wiggled it this way and that way, got it to fit and then moved on (R.R. Vol.
3, at p. 25:13-25 & 26:1-4).
...
Q: Tell us what you saw about your fence being built.
A: Okay. They were digging the holes, and while they were digging the
holes, all of a sudden a bunch of neighbors decided to come from around,
from behind the house and next door. And all of a sudden – excuse me – we
wondered what was going on, why all of a sudden we’re meeting the
neighbors. Well evidently, they had cut the power, cut the lines upon digging
the holes.
Q: Did that sound like the highest quality subcontractors that Kris promised?
A: No. I would think they’d know where the lines were (R.R. Vol. 3, at p.
28:14-25 & 29:1).
...
Q: Talk to me about the windows where the brick façade was at compared to
the window holes that they made of the house.
A: Yes. They didn’t line up. The holes that were cut into the frame were not
the same holes for the brick. So, they were – they were off. And when I
brought that to their attention, they said, oh, that would work out, that just
works itself out (R.R. Vol. 3, at p. 32:19-25 & 33:1).
L. Miller’s supposition regarding when repairs are made during construction,
12
where the electric lines should be, how “holes” are supposed to line up, and what
she thinks happened fails to raise above the scintilla of evidence standard. This
testimony creates a mere surmise or suspicion that the subcontractor was not of the
highest quality. See Southwestern Bell, 164 S.W.3d at 621. L. Miller admitted that
her testimony was not based on any expertise and that she no way of knowing
whether the construction was defective (R.R. Vol. 3, at p. 88:24-25 & 89:1-4).
The Millers’ claims resemble those discussed by a recent Fort Worth
opinion. In the Kramer case, the homebuyer plaintiffs sued the defendant
homebuilders for the homebuilders’ faulty construction and corresponding
representations about the house’s construction. Kramer v. Hollmann, No. 02-11-
00136-CV, 2012 WL 5869423, *1 (Tex. App.- Fort Worth Nov. 21, 2012, pet.
denied) (mem. op.) The builder represented that they would build a “kick butt
house,” the homebuyers would be “pleased as punch,” and that the house would be
“magnificent” and one of the “finest.” Id. at *4. Those statements were subjective
impressions, lacking specific representations. Id. at *4-5. The builder’s
representations also pertained to the future, which allowed the homebuyers an
opportunity to check into their accuracy with their own diligence. Id.
Likewise, the Millers had an opportunity before construction commenced to
determine if Debo’s subcontractors were the “highest quality subcontractors” under
the Millers’ standards. The Millers failed to investigate. Dominguez’ statements
13
are akin to those in Kramer as well because the representation that a subcontractor
is of the “highest quality” mirrors the Kramer representation the home would be
“one of the finest homes in the city.” Kramer, 2012 WL 5869423, at *4-5. As such,
this alleged representation is not sufficient evidence and fails to provide a legal
basis for the Jury’s answer to Question No. 1.
2. Representation No. 2: Onsite Supervision and Inspections
In Representation No. 2, L. Miller never states that Debo represented to her
that Debo would be onsite at all times. Rather, L. Miller claims the following as an
actionable representation: “there would be onsite supervision at all times
overseeing the project” (R.R. Vol. 2, at p. 34:2-3).
L. Miller admitted that she was not at the construction site all of the time and
instead was there once or twice a week (R.R. Vol. 3, at p. 109:10-15). Despite her
absence from the site, the Millers claim the following supports this representation:
Q: Did you ever see anyone from Debo Homes out there?
A: I never saw anyone from Debo Homes. I only saw the actual workers, the
subcontractors out there (R.R. Vol. 2, at p. 37:15-18).
...
Q: How many people from Debo Homes were out there?
A: I saw two people.
Q: Did you see any superintendents or anyone from Debo Homes?
A: I did not. There were just two, two men (R.R. Vol. 3, at p. 24:25 & 25:1-
14
4).
These representations fail to establish that there was absolutely no onsite
supervision. L. Miller may have complained to the Jury that no one from Debo was
there, but L. Miller never said Debo had to be the ones supervising the work.
Instead, L. Miller clarified that she expected third parties, not Debo, to be
supervising (R.R. Vol. 2, at p. 34:4-8). By L. Miller’s own admission, whether
Debo was the party actually providing the supervision is irrelevant. This testimony
fails to provide a reasonable basis for a vital fact regarding this representation.
Rocor Int’l, 77 S.W.3d at 262.
Of additional importance, a representation is only actionable under the
DTPA if that representation is material to the transaction. McCrea v. Cubilla
Condominium Corp. N.V., 685 S.W.2d 755, 759 (Tex. App.- Houston [1st Dist.]
1985, writ ref’d n.r.e.). In McCrea, the Houston court analyzed the materiality of
the defendant’s representation that a roof was only two years old when in fact
evidence presented demonstrated the roof was three years old. Id. at 760. Despite
the apparent falsity of that representation, the court noted “the evidence also shows
that the characteristics of the roof would have been the same whether it was two or
three years old.” Id. The court ruled that no damages resulted because of the
immaterial representation regarding the age of the roof. Id.
The Millers presented no lay or expert testimony or evidence to demonstrate
15
that not having Debo’s constant and uninterrupted supervision was material and
necessary to the construction of a house. Instead, Debo presented evidence that its
superintendent Eduardo “Michael” Cisneros (“Cisneros”) supervised the home at
issue and another home a street over during the same timeframe (R.R. Vol. 4, at p.
80:1-25 & 81:1-11). The Millers did not question this evidence or provide rebuttal
evidence showing Debo’s supervision routine to be damaging to the Millers. Just
like it does not matter whether a roof is two or three years old, it does not matter
whether a supervisor is actually at a construction site constantly or a street away.
See McCrea, 685 S.W.2d at 759-60.
3. Representation No. 3: That Debo Obtains Third-Party Inspections
It is without question that Debo hired Mortgage Property Services, Inc.
(“MPS”) to inspect the home at issue (R.R. Vol. 6, at Pltf. Ex. 12). In fact, the
Millers themselves entered this exhibit into the record (R.R. Vol. 4, at p. 6:16-25,
7:1-25, & 8:1-4). That Exhibit 12 establishes that MPS inspected the home on
April 25, 2013, May 10, 2013, and August 7, 2013 (R.R. Vol. 6, at Pltf. Ex. 12).
The Millers only provided evidence that this representation was fulfilled.
4. Representation No. 4: The AC Unit in the Model Home Would be in the
Home in Question
L. Miller vaguely testified that she went up into some attic where
Dominguez told her she was going to get that same AC unit (R.R. Vol. 2, at p.
16
34:23-25). During direct examination, the following exchange occurred to support
the claim that Debo breached that representation:
Q: Let me talk to you about the A/C unit.
A: Yes.
Q: Is that the A/C unit that you saw in the model home?
A: No, not at all (R.R. Vol. 2, at p. 45:16-20).
There is no context to determine what the Millers’ attorney was referring to
when he said “[i]s that.” Neither L. Miller nor her attorney noted what AC unit
they were referring to. L. Miller did not say she was referring to the AC unit in the
home in question. Finally, neither L. Miller nor her attorney referred to any exhibit
number. As such, the record is devoid of any evidence that the AC unit in the home
in question was different from the model home. This representation provides no
evidence for the Jury to find a DTPA violation under Question No. 1. Lozano v.
Lozano, 52 S.W.3d 141, 166 (Tex. 2001).
5. Representation No. 5: That All Problems Would be Fixed
Since the Millers’ attorney ordered Debo to stop construction before the
closing date, L. Miller admitted that Debo still had a chance to perform any
repairs:
Q: Now, you agree that after you told Debo about the issues they needed to
repair in the home, that they could have repaired them?
A: Yes, they could have.
17
Q: And you told Kris about these concerns and problems?
A: Yes. Yes, we did.
Q: And Debo did, indeed, repair them, didn’t they?
A: They repaired some. I don’t believe they repaired all of them.
Q: You don’t believe they repaired all of them, or do you know they didn’t
repair all of them?
A: Well, I can’t know, because they drywalled it.
Q: So, you’re saying that there are hidden things behind that drywall?
A: There may be. I don’t know. They drywalled it.
Q: Ms. Miller, you understood that when you brought these concerns to
Debo, the home was still under construction?
A: Yes.
Q: And you understood that Debo still had work to do?
A: Yes (R.R. Vol. 3, at p. 106:21-25 & 107:1-22).
The Millers’ claim that all repairs were not made is based on mere
conjecture that there may be things behind the walls. There is absolutely no
evidence of any repairs not being made or any expert testimony discussing fatal
flaws with the construction.
The aforementioned McCrea case’s discussion of materiality also applies to
this representation. Debo superintendent Cisneros provided insight as to what a
punch out is: “The punch out is when you repair the 2 by 4s that are either cracked
or damaged. You remove the temporary wood” (R.R. Vol. 4, at p. 83:16-18).
Explaining why there were issues that needed to be fixed with the home, Cisneros
18
explained as follows:
Q: Why was there an issue in the first place?
A: Because these are things that are normally that – these are normal things
that are left to be dealt with until the end when there’s a punch out (R.R.
Vol. 4, at p. 90:15-18).
...
Q: And normally when do those get repaired? When do you fix those?
A: Minimum, maximum three days, or one day after finishing.
Q: Let me ask a better question. During the construction process, as you call
it, when do you make all the repairs to the frame?
A: It’s at the end after the man or the plumbing company is finished, the AC
people are finished, and the electricians are finished (R.R. Vol. 4, at
p.105:15-24).
The testimony presented at trial demonstrated that repairs are to be made at
the punch out stage, not at random stages throughout the construction process. It is
immaterial if a repair is not immediately made after it is discovered. See McCrea,
685 S.W.2d at 759-60. The evidence demonstrates that Debo maintained a system
for when to make repairs, not that repairs were not made.
C. THE ALLEGED REPRESENTATIONS IN SUPPORT OF THE JURY’S FINDING TO
QUESTION NO. 1 ARE NONACTIONABLE PUFFERY UNDER THE DTPA
1. The Puffery Standard
A DTPA claim cannot be upheld if it is based on puffery, which is an
expression of opinion by a seller not made as a representation of fact. Hedley
19
Feedlot v. Weatherly Trust, 855 S.W.2d 826, 838-39 (Tex. App.- Amarillo 1993,
writ denied) (discussing Pennington v. Singleton, 606 S.W.2d 682, 685-89 (Tex.
1980)). “An imprecise or vague representation constitutes a mere opinion.” Id. at
839 (citation omitted). “General statements are generally regarded as expressions
of the seller’s opinion or ‘the puffing of his wares’ and do not create an express
warranty.” Autohaus, Inc. v. Aguilar, 794 S.W.2d 459, 463 (Tex. App.- Dallas
1990, writ denied) (quotations and citation omitted).
“Pure expressions of opinion are not actionable.” Trenholm v. Ratcliff, 646
S.W.2d 927, 930 (Tex. 1983). But “[e]ven an opinion may be actionable if: (1) it is
‘intertwined’ with ‘direct representations of present facts;’ (2) ‘the speaker has
knowledge of its falsity;’ (3) it is ‘based on past or present facts;’ or (4) the speaker
has ‘special knowledge of facts that will occur or exist in the future.’” GJP, Inc. v.
Ghosh, 251 S.W.3d 854, 889 (Tex. App.- Austin 2008, no pet.) (citing Trenholm,
646 S.W.2d at 930-31).
This Section C argues that Representations Nos. 1, 2, & 5 are nonactionable
puffery. Representations Nos. 3 & 4 are not addressed. Section (C)(2) addresses
why Representations Nos. 1, 2, & 5 are nonactionable puffery and Section (C)(3)
briefly argues why the four Ghosh scenarios do not apply.
20
2. The Millers’ Representations at Trial are Puffery and Opinion
a. Representation No. 1: That Debo Hires the Highest Quality
Subcontractors
L. Miller testified that Debo told her “they hired the highest quality
subcontractors that there are, just the highest quality” (R.R. Vol. 2, at p. 33:14-15).
The Millers did not provide any additional details as to what “highest quality”
meant or provide any additional evidence regarding that claim. There is no
evidence whereby the Millers provided examples of what actually constitutes the
“highest quality” subcontractor.
In the Supreme Court’s Prudential case, the highest court ruled that the
representations that a property is “superb,” “super fine,” and “one of the finest little
properties in the City of Austin” were nonactionable puffery. Prudential Ins. Co. of
Am. v. Jefferson Assocs., 896 S.W.2d 156, 163 (Tex. 1995). Here, the
representation that subcontractors are of the “highest quality” is just as
nonactionable because it does not involve facts. Id. Rather, it is Debo’s salesman’s
opinion about the subcontractors and their work. Debo salesman Dominguez was
merely puffing his wares, trying to make a sale to the Millers by using broad,
unspecific boasts about Debo’s work. See Autohaus, 794 S.W.2d at 463 (“[g]eneral
statements are generally regarded as expressions of the seller’s opinion or ‘the
puffing of his wares’ and do not create an express warranty”) (citation omitted).
21
An unreported Corpus Christi case discussed the situation where a
homebuilder represented to its client that the condominium unit was of “good
quality” and an “extremely well-built . . . two-bedroom townhouse with a rebar
foundation.” Helm v. Kingston, No. 13-10-00224-CV, 2011 WL 6746064, *5-6
(Tex. App.- Corpus Christi Dec. 21, 2011, pet. denied) (mem. op.). The court
agreed that “the representation that the unit was ‘extremely well built’ is general
and vague . . . ” Id. at *6. However, when grouped together, the builder’s
statements were actionable because of the specific statement about the rebar and
since the individual who made the representation was the president of the
construction company. Id. Of additional importance, the builder’s statements
related to a past or present condition, not a future occurrence. Id. Relying upon a
Fifth Circuit ruling, the court noted that “the quality of workmanship in such units
may be objectively judged by reference to precise specifications and well-defined
terms” in holding the statements actionable. Id. at *7.
In the case before this Court, Debo’s salesman Dominguez did not make
specific representations regarding past or present conditions of the property. The
Millers do not allege that Dominguez made a false representation regarding the
specific construction materials used on the home. Rather, Dominguez’ imprecise
statements were made regarding the future construction of the home for the Millers
(R.R. Vol. 2, at p. 33:14-15). The Millers provided no objective way in which to
22
gauge the subcontractors’ performance, leaving the Jury with no standard to judge
whether Debo’s representation was true. As discussed in the following sections,
Dominguez’ additional representations are just as “general and vague” as the
representation regarding the highest quality subcontractors. Debo’s representation
about the future performance of its subcontractors is unlike the specific
representations made by the builder in Helm and therefore do not support the
Jury’s finding in Question No. 1. See Helm, 2011 WL 6746064, at *5-7.
b. Representation No. 2: Onsite Supervision and Inspections
L. Miller explained at trial that Debo salesman Dominguez represented
“there would be onsite supervision at all times overseeing the project” and “there
would be third-party, independent inspections of the homesite at – building
inspections at various stages of the building while it was going up” (R.R. Vol. 2, at
p. 34:2-3 & 6-8). These alleged representations were made regarding the future
performance, not present facts, as L. Miller noted there “would be” certain
supervision.
L. Miller clarified that even though she was told there would be onsite
supervision at all times, she was incapable of verifying that:
Q: Now, you weren’t at the home site, or were you at the home site every
day after you signed the contract?
A: Not every day, no. It was impossible to be there every day. I was
23
definitely there once or twice a week (R.R. Vol. 3, at p. 109:10-15).
“Statements regarding future events generally fall into two categories:
predictions and promises to perform. Because the future is generally
unascertainable, these statements are typically non-actionable in fraud.” Allen v.
Devon Energy Holdings, L.L.C., 367 S.W.3d 355, 370 (Tex. App.- Houston [1st
Dist.] 2012, pet. granted) (citing Trenholm, 646 S.W.2d at 930). “While
misrepresentations concerning future performance are actionable under the DTPA,
a general statement concerning a future [event] should be looked at differently.”
Autohaus, 794 S.W.2d at 464.
Representation No. 2 regards the future, which makes it impossible to verify
at the time it was made. See Autohaus, 794 S.W.2d at 464. Both Debo and the
Millers were unable to verify the veracity of that statement, indicating that Debo
was just making expressions of opinion and not fact. See, e.g., id.; GJP, Inc., 251
S.W.3d at 889. The Millers even admitted it was impossible to verify there was
someone there every day at the construction site (R.R. Vol. 3, at p. 109:10-15). An
actionable representation for DTPA must not be based on such opinion or puffing.
Hedley Feedlot, 855 S.W.2d at 839. What constitutes “supervision” was undefined
by the Milers at trial and they never explained what that term meant to them. As
such, it is inherently vague and open to interpretation, making it nonactionable.
Hedley Feedlot, 855 S.W.2d at 839.
24
In the Reynolds case, the court ruled that the representations “[a]nd for the
past years, I’ve made money for other people – people like you. . . .,” that their
method is “the safest possible way to invest in the future,” and that it “can help you
invest in the future so that you multiply your wealth up to five times over the next
10 years” were nonactionable. Reynolds v. Murphy, 188 S.W.3d 252, 268 (Tex.
App.- Fort Worth 2006, pet. denied). Similarly, the statement that an investment
will “produce large revenues for a long time” is a representation about the future
that as a matter of law is nonactionable under the DTPA. Paull v. Capital Res.
Mgmt., Inc., 987 S.W.2d 214, 218-19 (Tex. App.- Austin 1999, pet. denied). Not
only is the representation that there will be onsite “supervision” vague and
ambiguous, that statement concerns actions that will happen in the future. As such,
the statement was merely Debo’s opinion. Since Debo was incapable of
guaranteeing what happens in the future and the Millers were absent from the
construction site, the Jury was without an actionable representation to support
Question No. 1. See, e.g., Reynolds, 188 S.W.3d at 268; Paull, 987 S.W.2d at 218-
19.
c. Representation No. 5: That All Problems Would be Fixed
The Millers complained that Debo promised to make all of the repairs on the
home:
Q: Did Kris ever tell you all problems that Debo Homes decides to fix is
25
what they’d fix?
A: He did not tell us that, no. He said all problems would be fixed (R.R. Vol.
2, at p. 35:19-22).
Like the representation regarding future supervision, this representation also
pertains to the future, opening it up to scrutiny. Autohaus, 794 S.W.2d at 464.
L. Miller clarified that Debo was allowed to make any repairs before
closing:
Q: So, then Debo was allowed to repair any problems before closing?
A: Yes. It says they shall complete the problems (R.R. Vol. 3, at p. 68:2-4).
...
Q: Now, you agree that after you told Debo about the issues they needed to
repair in the home, that they could have repaired them.
A: Yes, they could have (R.R. Vol. 3, at p. 106:21-24).
Again, Debo’s representations involved future actions that were incapable of
being verified until the time of closing. In an unreported but factually similar case
out of Corpus Christi, the court ruled that “mere recitals by [the homebuilder
defendant] that he would send someone (in futuro) to fix the garage or that he
believed the garage was fixed, do not add up to guarantee.” Roubein v. Marino
Home Builders, No. 13-01-711-CV, 2002 WL 1765579, *4 (Tex. App.- Corpus
Christi Aug. 1, 2002, pet. denied, not designated for publication). The court there
found the statement to be puffery, a mere statement of opinion. Id.
Here, L. Miller claims that Dominguez told her that any problems would be
26
fixed in the future and that Debo would have until closing to fix those problems.
(R.R. Vol. 2, at p. 35:19-22; R.R. Vol. 3, at p. 68:2-4 & 106:21-24). Dominguez’
statements were his opinion about a future occurrence, failing to add up to an
actionable statement. See Roubein, 2002 WL 1765579, at *4.
3. Debo’s Alleged Representations Are Nonactionable Opinions Under
Ghosh
Even if Debo’s alleged representations are all nonactionable opinions, the
Ghosh case, supra, identified four ways in which Dominguez’ salesman opinions
to the Millers may be actionable: (1) it is ‘intertwined’ with ‘direct representations
of present facts;’ (2) ‘the speaker has knowledge of its falsity;’ (3) it is ‘based on
past or present facts;’ or (4) the speaker has ‘special knowledge of facts that will
occur or exist in the future. GJP, Inc., 251 S.W.3d at 889. Each of those four
scenarios will be addressed in the following subparagraphs.
a. (1) Intertwined with direct representations of present facts and (3) based
on past or present facts
Scenarios (1) and (3) both require Dominguez’ statements to be about
present facts, not future promises. Id. Here, Dominguez’ representations were all
regarding the future.
For Representation No. 1, L. Miller testified that was made by Dominguez
during contract negotiations (R.R. Vol. 2, at p. 32:3-25 & 33:1-15). There is no
evidence that construction had already commenced and that Dominguez’
27
representations were about the present performance of those subcontractors.
For Representation No. 2, L. Miller specifically testified that Dominguez
represented “that there would be onsite supervision” and “there would be third-
party, independent inspections” (R.R. Vol. 2, at p. 33:25 & 34:1-8) (emphasis
added). This testimony establishes that Dominguez made promises about future
performance, not past or present facts.
Finally, for Representation No. 5, L. Miller similarly testified that
Dominguez “said all problems would be fixed” (R.R. Vol. 2, at 35:19-22)
(emphasis added). Likewise, this is a statement regarding future performance with
no relation to present or past facts.
b. (2) The speaker has knowledge of its falsity
For the second scenario identified by Ghosh- that Dominguez has
knowledge of the falsity of his statements- the record is devoid of any such
evidence. See GJP, Inc., 251 S.W.3d at 889.
During Dominguez’ testimony, the Millers’ attorney confirmed with
Dominguez that he has nothing to do with the construction phase:
Q: Now, Kris, what’s your position at Debo Homes?
A: Sales (R.R. Vol. 3, at p. 146:20-21).
...
Q: Well, let me ask you an easier way. After you get the contract signed,
what more do you have involved with the actual construction?
28
A: Nothing.
Q: So, you do still talk to the customers, but you don’t have any
involvement or knowledge about construction, right?
A: Yes (R.R. Vol. 3, at p. 154:19-25 & 155:1).
...
Q: Well, you don’t have any involvement in the construction, right? That’s
what you said.
A: I don’t have any involvement in the construction, no (R.R. Vol. 3, at p.
159:6-9).
Kris succinctly summed up his role with Debo: “Because I don’t do construction. I
sell homes” (R.R. Vol. 3, at p. 188:16).
In the Matis case, the defendants sold investments to the plaintiffs. Matis v.
Golden, 228 S.W.3d 301, 307 (Tex. App.- Waco 2007, no pet.). In selling the
investments to the plaintiffs, the defendants represented that “(1) invested funds
were refundable; and (2) returns would be paid monthly, beginning shortly after
the initial investment, and amount to one hundred percent for ten months.” Id.
There, the defendants had special knowledge and access to unique investment
information. Id. The Waco court found those representations to be actionable and
non-puffery. Id. at 308-09. However, for the purposes of Matis’ application to the
second scenario identified by Ghosh, the Waco court found the defendants’
statements “were not necessarily made with knowledge of their falsity.” Id. at 309.
If the Matis representations fail to rise to the level of “knowledge of falsity,”
29
then there is no evidence that Dominguez had knowledge of the falsity of the
alleged representations. See Matis, 228 S.W.3d at 308-09. Salesman Dominguez’
representations all involved the construction phase, something of which he had no
knowledge of. The Millers offered no counter evidence, whether direct or
circumstantial, to show that Dominguez knew what he was saying was false. See
Anglo-Dutch Petroleum Int’l, Inc. v. Shore Harbour Capital Management Corp.,
No. 01-09-00417-CV, 2011 WL 862117, *4-5 (Tex. App.- Houston [1st Dist.] Mar.
10, 2011, no pet.) (mem. op.) (finding no “knowledge of falsity” because of no
evidence showing the speaker knew the statement was false).
c. (4) The speaker has special knowledge of facts that will occur or exist in
the future
As discussed above, Dominguez’ knowledge of the construction phase is
nonexistent. Dominguez’ expressions to the Millers were nonactionable
expressions of opinion- Dominguez’ opinions about the future construction phase.
See Trenholm, 646 S.W.2d at 930. In a recent Beaumont case, the defendant/future
executrix made an alleged actionable representation regarding a probate issue to
the plaintiff/testator. Werth v. Johnson, 294 S.W.3d 908, 910-11 (Tex. App.-
Beaumont 2009, no pet.). In discussing the Supreme Court’s Trenholm case and
whether the speaker had special knowledge of the facts, the Beaumont court ruled
the speaker’s statements were not actionable. Id. There, the speaker represented to
30
the plaintiff that the plaintiff would receive a house to live in once a certain
individual passed away. Id. The speaker made the representation at a time when the
speaker was not yet the executrix; instead, the plaintiff was still in complete
control of his own estate. Id. The plaintiff attempted to argue that the speaker had
special knowledge as the future executrix, but that argument was rejected. Id.
Here, Dominguez made representations about future construction, something
of which he had no special knowledge of. Different individuals at Debo managed
the construction phase, not Dominguez. The trial record reflects that one
individual- Debo superintendent Cisneros- managed the daily construction (R.R.
Vol. 4, at p. 79:13-14 & 80:1-21). Dominguez only possessed a salesman’s
knowledge about selling a home and not specialized knowledge of the construction
process.
D. THE MILLERS SHOULD NOT BE AWARDED PREJUDGMENT INTEREST
1. Debo’s Tender Into the Court Registry Precludes Prejudgment Interest
“[P]rejudgment interest should not be assessed on funds that were deposited
into the registry of the court.” Browning Oil Co. v. Luecke, 38 S.W.3d 625, 648
(Tex. App.- Austin 2000, pet. denied); see, Pegasus Energy Group, Inc. v.
Cheyenne Petroleum Co., 3 S.W.3d 112, 125 (Tex. App.- Corpus Christi 1999, pet.
denied) (damaged party should not be entitled to prejudgment interest on money
that defendant had already paid into the registry of the court).
31
The Jury awarded total damages to the Millers in the amount of $60,650.00
(C.R. Vol. 2, at p. 566). It is uncontroverted that Debo deposited the entire amount
of the jury’s $60,650.00 verdict into the registry of the court (R.R. Vol. 6, at Dft.
Ex. 20; C.R. Vol. 3, at p. 1122). As such, prejudgment interest should not be
assessed on those funds. Browning Oil Co., 38 S.W.3d at 648. The trial court’s
award of prejudgment interest commencing on October 7, 2013 and totaling the
amount of $3,663.92 must be reversed in its entirety. Id.
E. THE MILLERS SHOULD NOT BE AWARDED POSTJUDGMENT INTEREST
1. Debo’s Deposit Into the Court Registry Halts Postjudgment Interest
An unconditional tender of the amount owed under a judgment terminates
the accrual of postjudgment interest. Miga v. Jensen, 96 S.W.3d 207, 212 (Tex.
2002). “[A] tender into the registry of the trial court of all sums due under the
judgment is a means of halting post-judgment interest.” Breault v. Psarovarkas,
No. 01-01-00122-CV, 2003 WL 876651, *7 (Tex. App.- Houston [1st Dist.] Feb.
28, 2003, pet. denied) (mem. op.) (citing St. Paul Mercury Ins. Co. v. Billiot, 342
S.W.2d 161, 164 (Tex. App.- Beaumont 1960, writ ref’d)).
Debo deposited all $60,650.00 of the judgment into the trial court registry
before the trial court rendered judgment (R.R. Vol. 6, at Dft. Ex. 20; C.R. Vol. 3, at
p. 1122). As such, the trial court’s award of postjudgment interest must be reversed
and the Millers may not collect postjudgment interest. Miga, 96 S.W.3d at 212.
32
CONCLUSION
The Jury’s finding that Debo violated the Texas Deceptive Trade Practices
Act is without evidentiary support. The alleged representations in support of a
DTPA finding are not actionable under the puffery defense. Finally, the Millers are
not entitled to any prejudgment and postjudgment interest because of Debo’s full
and unconditional tender of all sums owing into the trial court’s registry.
PRAYER
Appellee and Cross-Appellant, Debo Homes, LLC, prays that this Court
grant their Appeal and disregard the Jury’s affirmative finding to Question No. 1.
Furthermore, Debo Homes, LLC prays that this Court reverse the trial court’s
award of prejudgment and postjudgment interest to Laurel and Eliana Miller.
Respectfully submitted,
THE WELSCHER LAW FIRM
/s/ Nicholas Martinez
Craig Welscher
State Bar No. 21167200
Nicholas Martinez
State Bar No. 24087986
The Welscher Law Firm, P.C.
1111 North Loop West, Suite 702
Houston, Texas 77008
(713) 862-0800 – Telephone
(713) 862-4003 – Facsimile
Email: nmartinez@welscherlaw.com
Attorneys for Appellee & Cross-Appellant
33
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing instrument is in compliance with the word
count limit of TRAP 9.4(i)(2)(B) of 15,000 words as it contains 7,135 words.
/s/ Nicholas Martinez
Nicholas Martinez
CERTIFICATE OF SUPPORT
I certify that I have reviewed the record and brief and have concluded that
every factual statement made in the brief is supported by competent evidence
included in the appendix or record.
/s/ Nicholas Martinez
Nicholas Martinez
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded to all known counsel of record in the manner required
by Texas Rule of Appellate Procedure 9.5, on this the 27th day of July, 2015.
Via Electronic Service
Timothy A. Hootman
2402 Pease St.
Houston, Texas 77003
/s/ Nicholas Martinez
Nicholas Martinez
34
APPENDIX
1. Clerk’s Record
a. Volume 1
i. Plaintiff’s Original Petition, Requests for Disclosure and Demand
for Jury Trial
b. Volume 2
i. Plaintiffs Trial Witness List
ii. Jury Charge
c. Volume 3
i. Defendant Debo Homes, LLC’s Motion to Disregard the Jury’s
Answer to Question Number One
ii. Order Denying Defendant’s Motion to Disregard the Jury’s
Answer to Question Number One of the Jury’s Charge
iii. Defendant Debo Homes, LLC’s Response to the Plaintiffs’ Motion
for Judgment on the Jury Verdict
iv. Final Judgment
2. Reporter’s Record
a. Volume 2
i. Examination of Laurel Miller
b. Volume 3
i. Examination of Laurel Miller
ii. Examination of Harold Knueppel
a
iii. Examination of Kris Dominguez
iv. Examination of Juan Carlos Hernandez
c. Volume 4
i. Examination of Eduardo Michael Cisneros
d. Volume 6
i. Plaintiffs’ Exhibit 1
ii. Plaintiffs’ Exhibit 10
iii. Plaintiffs’ Exhibit 12
iv. Defendant’s Exhibit 2
v. Defendant’s Exhibit 10
vi. Defendant’s Exhibit 11
vii. Defendant’s Exhibit 14
viii. Defendant’s Exhibit 20
b
14-15-00004-CV
CLERK’S RECORD
Volume 1 of 3 FILED IN
14th COURT OF APPEALS
Trial Court Cause No: 13-DCV-209822 HOUSTON, TEXAS
in the 400th Judicial District Court 4/14/2015 8:55:52 AM
of Fort Bend County, Texas,
CHRISTOPHER A. PRINE
Honorable Maggie Perez-jaramillo, Judge Presiding Clerk
Style: Laurel and Eliana Miller Plaintiffs, vs Debo Homes, LLC. Defendant.
Appealed to the
Court of Appeals for the Fourteenth Court Of Appeals District of Texas, at Houston, Texas
Court Of Appeals No: 14-15-00004-CV
Attorney for Appellant(s): Attorney for Appellee(s):
Brian H Crockett Nicholas Martinez
SBN: 24074094 SBN: 24087986
Crockett Law PC The Welscher Law Firm
10565 Katy Fwy Ste 400 1111 North Loop West Suite 702
Houston TX 77024 Houston Tx 77008
Telephone: 713-779-3476 Telephone: 713-862-0800
Facsimile: 888-779-3237 Facsimile: :713-862-4003
E-Mail Address: E-Mail Address: :
Appellant(s): Appellee(s):
Laurel Miller and Eliana Miller Debo Homes, LLC
Electronically submitted to the Court of Appeals for the Fourteenth Court Of Appeals District of Texas, at Houston, Texas
on March 23, 2015.
DISTRICT CLERK ANNIE REBECCA ELLIOTT
Fort Bend County, Texas
By: /s/ Lisa Tucker
Deputy District Clerk Lisa Tucker
Telephone: (281) 341-4516
1
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CLERK’S RECORD
Volume 2 of 3 FILED IN
14th COURT OF APPEALS
Trial Court Cause No: 13-DCV-209822 HOUSTON, TEXAS
in the 400th Judicial District Court 4/14/2015 8:55:52 AM
of Fort Bend County, Texas,
CHRISTOPHER A. PRINE
Honorable Maggie Perez-jaramillo, Judge Presiding Clerk
Style: Laurel and Eliana Miller Plaintiffs, vs Debo Homes, LLC. Defendant.
Appealed to the
Court of Appeals for the Fourteenth Court Of Appeals District of Texas, at Houston, Texas
Court Of Appeals No: 14-15-00004-CV
Attorney for Appellant(s): Attorney for Appellee(s):
Brian H Crockett Nicholas Martinez
SBN: 24074094 SBN: 24087986
Crockett Law PC The Welscher Law Firm
10565 Katy Fwy Ste 400 1111 North Loop West Suite 702
Houston TX 77024 Houston Tx 77008
Telephone: 713-779-3476 Telephone: 713-862-0800
Facsimile: 888-779-3237 Facsimile: :713-862-4003
E-Mail Address: E-Mail Address: :
Appellant(s): Appellee(s):
Laurel Miller and Eliana Miller Debo Homes, LLC
Electronically submitted to the Court of Appeals for the Fourteenth Court Of Appeals District of Texas, at Houston, Texas
on March 23, 2015.
DISTRICT CLERK ANNIE REBECCA ELLIOTT
Fort Bend County, Texas
By: /s/ Lisa Tucker
Deputy District Clerk Lisa Tucker
Telephone: (281) 341-4516
394
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CLERK’S RECORD
Volume 3 of 3 FILED IN
14th COURT OF APPEALS
Trial Court Cause No: 13-DCV-209822 HOUSTON, TEXAS
in the 400th Judicial District Court 4/14/2015 8:55:52 AM
of Fort Bend County, Texas,
CHRISTOPHER A. PRINE
Honorable Maggie Perez-jaramillo, Judge Presiding Clerk
Style: Laurel and Eliana Miller Plaintiffs, vs Debo Homes, LLC. Defendant.
Appealed to the
Court of Appeals for the Fourteenth Court Of Appeals District of Texas, at Houston, Texas
Court Of Appeals No: 14-15-00004-CV
Attorney for Appellant(s): Attorney for Appellee(s):
Brian H Crockett Nicholas Martinez
SBN: 24074094 SBN: 24087986
Crockett Law PC The Welscher Law Firm
10565 Katy Fwy Ste 400 1111 North Loop West Suite 702
Houston TX 77024 Houston Tx 77008
Telephone: 713-779-3476 Telephone: 713-862-0800
Facsimile: 888-779-3237 Facsimile: :713-862-4003
E-Mail Address: E-Mail Address: :
Appellant(s): Appellee(s):
Laurel Miller and Eliana Miller Debo Homes, LLC
Electronically submitted to the Court of Appeals for the Fourteenth Court Of Appeals District of Texas, at Houston, Texas
on March 23, 2015.
DISTRICT CLERK ANNIE REBECCA ELLIOTT
Fort Bend County, Texas
By: /s/ Lisa Tucker
Deputy District Clerk Lisa Tucker
Telephone: (281) 341-4516
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1 REPORTER'S RECORD
VOLUME 2 OF 6 VOLUMES
2 TRIAL COURT CAUSE NO. 13-DCV-209822 FILED IN
14th COURT OF APPEALS
APPELLATE COURT CAUSE NO. 14-15-00004-CV
HOUSTON, TEXAS
3
2/20/2015 3:47:35 PM
4 LAUREL MILLER AND ) IN THE CHRISTOPHER
DISTRICT COURT A. OFPRINE
ELIANA MILLER ) Clerk
5 )
VS. ) FORT BEND COUNTY, TEXAS
6 )
DEBO HOMES, LLC ) 400TH JUDICIAL DISTRICT
7
8
9
10
11
12 _____________________________________________
13 JURY TRIAL
_____________________________________________
14
15
16
17
18
19 On the 19th day of August, 2014, the following
20 proceedings came on to be held in the above-titled and
21 numbered cause before the Honorable Clifford J. Vacek,
22 Judge Presiding, held in Richmond, Fort Bend County,
23 Texas.
24 Proceedings reported by computerized stenotype
25 machine.
2
1
2 APPEARANCES
3 Mr. Brian H. Crockett
Texas Bar No. 24074094
4 Mr. William G. Kanyha
Texas Bar No. 24087827
5 Crockett Law, PC
10565 Katy Freeway, Suite 400
6 Houston, TX 77024
Telephone: 713.779.3476
7 Counsel for Plaintiffs
8
9 Mr. Nicholas T. Martinez
Texas Bar No. 24087986
10 Mr. Craig Welscher
Texas Bar No. 21167200
11 The Welscher Law Firm
1111 North Loop West, Suite 702
12 Houston, TX 77008
Telephone: 713.862.0800
13 Counsel for Defendants
14
15
16
17
18
19
20
21
22
23
24
25
3
1 VOLUME 2
2 JURY TRIAL
3 August 19, 2014
PAGE VOL.
4
Opening Statement by Mr. Crockett ................. 4 2
5
Opening Statement by Mr. Martinez ................ 14 2
6
PLAINTIFFS' WITNESS:
7
Laurel Miller Direct Cross V.Dire
8 By Mr. Crockett 27 v2
9 Reporter's Certificate ........................... 49 2
10
11 ALPHABETICAL INDEX OF WITNESSES
12 Direct Cross V.Dire
13 Miller, Laurel 27 v2
14
15 EXHIBITS OFFERED BY PLAINTIFF
16 EXHIBIT DESCRIPTION OFFERED ADMITTED
17 1 Contract 30 v2 31 v2
18 2 Photographs 39 v2 39 v2
19
20
21
22
23
24
25
27
1 MR. CROCKETT: Your Honor, Plaintiffs call
2 Laurie Miller.
3 LAUREL MILLER,
4 having been first duly sworn, testified as follows:
5 DIRECT EXAMINATION
6 Q. (BY MR. CROCKETT) Laurie, can you go ahead and
7 introduce yourself to the jury?
8 A. Yes. My name is Laurel Miller.
9 Q. And Laurie, who's the other Plaintiff in this
10 case?
11 A. That's my daughter. Her full name is Eliana,
12 but we all call her Ellie.
13 Q. Now, this home that you were going to buy from
14 Debo Homes, who was it for?
15 A. It was for my daughter and myself.
16 Q. Was there a reason you wanted to be in that
17 area?
18 A. Yes. We really -- we really liked being out in
19 the country, like the Needville area, and we wanted to
20 be out there. And that neighborhood afforded us a lot
21 more land for the price and a little out of the city
22 area a little bit.
23 Q. I know that you have a bunch of dogs.
24 A. Yes, we do. We love our dogs.
25 Q. What was it about being in this area that was
28
1 also important to you?
2 A. We weren't tied down to an HOA. Right now,
3 we're kind of in a subdivision where there's an HOA, and
4 we have a small back yard. And my daughter's a dog
5 groomer, and we were trying to get a house where she
6 could do grooming in the garage and really made a nice
7 custom house so she could have -- do her dog grooming in
8 the garage and have a nice back yard where the dogs
9 could -- and not a business, per se, just for our
10 personal dogs -- and have the dogs run around in the
11 back yard and have a nice -- this was going to be like a
12 half acre, a little more than a half acre, just a nice
13 size for the two of us and our few dogs, and run around
14 with them. And we also -- we played fly ball with them
15 and dock dogs, a couple of dog sports that's like a
16 hobby for us with the dogs. We just enjoy them a whole
17 lot, and it's just -- this would have afforded a whole
18 lot of extra fun. And it was a little smaller home with
19 a bigger -- with a bigger yard for us. And being a
20 newer home, we were pretty excited about getting into
21 it.
22 Q. Now, was there a reason you were looking for a
23 new home versus a used home or an older home?
24 A. Yes. Neither myself nor my daughter know how
25 to make any repairs. We're in an older home now, and
29
1 it's just repair after repair. And we know that's just
2 a matter of what it is. We've been in the home ten
3 years now, and it's just when it rains, the back yard
4 floods. It's typical. When it needs paint, it needs --
5 it just needs this and that, normal upkeep for a
6 35-year-old home, and we just thought a new home would
7 just give us peace of mind that we wouldn't have to do
8 these things. And once we -- plus, being on a fixed
9 income, I couldn't afford, once we paid out, to keep
10 paying on these repairs and pay on a mortgage and pay on
11 taxes, et cetera. So, it just -- it gets very
12 expensive, all these extra payments, and I just can't do
13 these things myself, you know, always having to hire
14 out.
15 MR. CROCKETT: Your Honor, permission to
16 approach the witness?
17 THE COURT: Yes, sir.
18 Q. (BY MR. CROCKETT) Ms. Miller, I'm showing you
19 what's been marked as Plaintiff's Exhibit No. 1.
20 A. Yes.
21 Q. Do you recognize this?
22 A. Yes. That's the sales contract that Debo
23 Homes, Kris Dominguez and Ellie and I got into back in
24 April of '13.
25 Q. Now, in this contract, were y'all purchasing
30
1 the house with the cash payment plan, or was this the
2 finance plan?
3 A. No, sir. That was -- that was financing. We
4 wanted to get financing with just a small -- like $1,000
5 down or something they said we could get, and we could
6 go to the bank and get financing, because the interest
7 rates were so darn low. So, we wanted to get in on
8 that.
9 Q. If you can look through Exhibit No. 1 --
10 A. Yes.
11 Q. -- can you confirm that this contract is the
12 initial contract that y'all signed?
13 A. (Referring to document.)
14 Q. And the signatures at the end, is that yours
15 and your daughter's?
16 A. Yeah.
17 Q. Go back to it.
18 A. Yes.
19 Q. Okay.
20 MR. CROCKETT: Your Honor, the Plaintiffs
21 would ask that we can admit Exhibit No. 1.
22 MR. MARTINEZ: Judge, we believe it's been
23 pre-admitted already, so no objections.
24 THE COURT: There have been no exhibits
25 that have been pre-admitted. Do you have any objection
31
1 to Plaintiff's Exhibit 1?
2 MR. MARTINEZ: No, Judge.
3 THE COURT: Plaintiff's Exhibit 1 is
4 admitted.
5 Q. (BY MR. CROCKETT) Now, Ms. Miller, on Exhibit
6 No. 1, who was this contract between?
7 A. It was between me and my daughter and Debo
8 Homes.
9 Q. And what was the purchase price for this home?
10 A. The full purchase price is $178,000.
11 Q. And on Part B, it talks about the financing of
12 that home. How much were you trying to finance?
13 A. (No response.)
14 Q. I'm sorry, it's actually on your screen, might
15 be easier to see there.
16 A. No, it's not.
17 Q. No?
18 THE COURT: Your screen is not on?
19 THE WITNESS: No.
20 THE COURT: Sheriff, can you turn that
21 screen on?
22 THE WITNESS: That's why I'm trying to
23 see.
24 Q. (BY MR. CROCKETT) I'm sorry.
25 A. No, I apologize.
32
1 (Bailiff turned on screen)
2 THE WITNESS: Thank you.
3 Q. (BY MR. CROCKETT) What was the amount that
4 y'all were going to try to finance?
5 A. Yes, $118,700.
6 Q. Did y'all qualify for financing?
7 A. No, sir, we didn't qualify.
8 Q. When Kris Dominguez learned that y'all didn't
9 qualify for financing, what did he tell you about their
10 cash installment plan?
11 A. Yes. He told us that they have cash clients
12 that just pay cash. They come in -- he said they have
13 lots of people that do that, and they do it in three
14 phases. Phase 1 starts the process. Phase 2 is
15 where -- is right at the drywall, and Phase 3 is at the
16 closing.
17 Q. Tell us, what was your hesitation about
18 entering into a cash installment plan?
19 A. Well, I had -- I'm a very frugal person, so I
20 saved and saved for -- really forever. And so here was
21 just pretty much everything just being emptied out into
22 this home. Just it really scared me. And just to make
23 three lump sum payments like this, whereas, had it been
24 financed, it would be a slow trickle out, an easy way to
25 pay over the course of very many years. And just having
33
1 a fixed income, disability income, it was very scary to
2 me not to have that reserve money in the bank should
3 something catastrophic happen.
4 Q. Had you already been down the road with a bunch
5 of repairs in a home?
6 A. Yes, in my current home, only because it's an
7 older home. That's what we could afford now, and --
8 well, back ten-plus years ago. So -- and I didn't want
9 to buy into another home that needed continual repairs.
10 That's why we were looking at a new home.
11 Q. So, when Kris Dominguez learned about your
12 retirement money, what did he tell you about Debo Homes'
13 subcontractors?
14 A. Well, he told us they hired the highest quality
15 subcontractors that there are, just the highest quality.
16 Q. Are you aware of the other types of homes that
17 Debo Homes builds? Do they only build small
18 single-family homes?
19 A. No, they -- they build single-family homes like
20 we were looking at, and homes smaller than we were
21 looking at, all the way up to million-dollar homes. And
22 we drove by them, and we saw them.
23 Q. And they looked nice?
24 A. They did. I couldn't afford them.
25 Q. What did Kris Dominguez tell you about who
34
1 would be supervising those subcontractors?
2 A. He told us that there would be onsite
3 supervision at all times overseeing the project.
4 Q. What did Kris Dominguez tell you about who
5 would also be checking Debo Homes' work?
6 A. He said there would be third-party, independent
7 inspections of the homesite at -- building inspections
8 at various stages of the building while it was going up.
9 Q. Now, when you were having these conversations
10 with Kris, I think the defense lawyer alluded earlier
11 that this was a very long process of saying we had a lot
12 of questions, didn't we?
13 A. We -- we actually met with Kris twice, but on
14 the second occasion, we signed the contract. The first
15 time, we were there a good couple of hours asking a lot
16 of questions. Then we came back a second time and
17 signed the contract because we asked so many questions.
18 I wanted to know exactly what we were getting into, what
19 appliances, what A/C unit, what -- just what exactly was
20 going to be in our house versus the model house.
21 Q. Did Kris tell you every single thing you wanted
22 to hear?
23 A. He did. He said -- when I asked if I'm going
24 to get -- we actually went up in the attic, and I said,
25 "Am I going to get this A/C unit?" And he said yes.
35
1 Because that one looked efficient, because the house
2 we're in, being older, it's not efficient. My A/C bill
3 is crazy for the home we're in. It's just -- you know,
4 I was comparing now to then. And I asked about the
5 stove, and I asked about the hot water heater because I
6 didn't want an attic hot water heater. I asked about
7 fixtures and just various things that just popped in my
8 head at those times. And he said -- every answer was
9 what's in this model home, and really, he had exactly
10 what I wanted to hear at every step of that moment.
11 Q. And even after that, what did -- what did Kris
12 tell you about, if there were any problems after the
13 first payment, what safeguard did you have?
14 A. Well, the next payment wouldn't be needed until
15 the drywall is going in. So, there would be -- if there
16 were any problems, we wouldn't have to give him the next
17 payment until then. And he said any problems, all
18 problems would be fixed along the way.
19 Q. Did Kris ever tell you all problems that Debo
20 Homes decides to fix is what they'd fix?
21 A. He did not tell us that, no. He said all
22 problems would be fixed.
23 Q. These promises or these representations that
24 Kris Dominguez told y'all, did you rely on them?
25 A. Absolutely. He was the person that -- he was
36
1 the go-to person. In fact, he told us, Kris told us
2 that we were not allowed to speak to anyone else onsite,
3 that we were not to disturb the workers, we were not to
4 disturb anyone else, and we held up to that. We did not
5 want to disturb them. We did not want to stop their
6 work. We left everyone else alone, and if we saw
7 anything unusual, then we contacted Kris personally.
8 Q. Based on what Mr. Dominguez told you, did you
9 pay Debo Homes $60,300?
10 A. Yes, we did. We were excited to get that house
11 going.
12 Q. Did you start packing up your house?
13 A. We did. Not only did we start packing up the
14 house, we still have things in boxes we haven't
15 unpacked.
16 Q. Once you paid Debo Homes the $60,300, did you
17 go back out and look at the highest quality
18 subcontractors work on the framing?
19 A. Yeah. Well, we -- we went out to the site, and
20 we looked around. They were -- a couple of weeks later,
21 they were doing the framing, and I just -- I just
22 started looking around, you know, looking -- okay,
23 here's the -- trying to identify which room's which.
24 And I looked up, and I saw split boards, like broke in
25 half, and other boards bowedbowed out and other boards
37
1 that just didn't look right, and cracked things here and
2 there. And I contacted Kris to tell him that it looked
3 like these were issues, what I had seen. I told him
4 what I had seen.
5 Q. How long did you stay out there and watch the
6 framers work?
7 A. Oh, I can't say for sure, but maybe -- maybe an
8 hour or so, maybe a couple of hours.
9 Q. In that time period, did you look across the
10 street and see Debo Homes' superintendent apparently
11 working on another house next-door?
12 A. No. Actually, there were no other houses being
13 constructed around that whole block. Ours was the only
14 house on the whole block being constructed.
15 Q. Did you ever see anyone from Debo Homes out
16 there?
17 A. I never saw anyone from Debo Homes. I only saw
18 the actual workers, the subcontractors out there.
19 Q. So, you contacted Kris Dominguez, told him that
20 -- you told him what, exactly?
21 A. I told him I saw some problems out there that I
22 need to address with him. I saw some broken boards. I
23 saw a pipe that didn't look attached. I saw -- I just
24 saw some things that didn't look right. I'm just -- I'm
25 not a construction expert or anything. I just saw
38
1 things that didn't look right. So, he told me he would
2 meet me out there, I don't recall whether it was the
3 next day or the following. So, we met, and he looked at
4 it all with me, and he handed me a can of red spray
5 paint and asked me to spray the areas that looked
6 unusual.
7 Q. Did that seem odd to you, that the salesman's
8 telling you to find the defects in the house?
9 A. I don't know if it felt unusual. I just felt
10 like, oh, I guess we're working together at this point.
11 I just was happy that we were working together right
12 then and there.
13 MR. CROCKETT: Your Honor, you want me to
14 keep asking to approach?
15 THE COURT: Just go ahead.
16 MR. CROCKETT: Thank you, Your Honor.
17 Q. (BY MR. CROCKETT) Ms. Miller, I'm showing you
18 what's been marked as Plaintiff's Exhibit No. 2.
19 A. Uh-huh.
20 Q. It is a bunch of photographs. Have you seen
21 these photographs before?
22 A. Yes.
23 Q. Are these photographs photographs that were
24 taken of different problems at the home throughout
25 construction?
39
1 A. (Referring to documents.) Yes.
2 Q. Do these photographs fairly and accurately
3 represent the things that you saw during the
4 construction?
5 A. A lot of the problems, I'm not going to say all
6 of the problems. Yeah.
7 Q. Thank you.
8 MR. CROCKETT: Your Honor, we'd ask that
9 Plaintiff's Exhibit No. 2 be admitted.
10 THE COURT: For the record, how many
11 photos are there?
12 MR. CROCKETT: Your Honor, it is 33.
13 THE COURT: Any objection?
14 MR. MARTINEZ: Yes, Judge. Hearsay,
15 expert report, improper predicate, all three.
16 THE COURT: Overruled. Plaintiff's
17 Exhibit 2, consisting of 33 photos, is admitted.
18 Q. (BY MR. CROCKETT) Ms. Miller, you talked about
19 some of the problems you were seeing in the house. I
20 will eventually learn how to use this thing. Now, what
21 was the issue that you saw with this?
22 A. Well, that was at the top of the garage, and
23 that just -- when I walked into the garage, and I just
24 went straight in the garage and looked up, I said, oh,
25 my goodness, that board is just split square in half,
40
1 and that's going to hold up the whole roof, the garage
2 area to the roof. And I just thought that's not
3 supposed to be split like that.
4 MR. MARTINEZ: Objection, Judge. This is
5 expert testimony about what beam is going to hold up
6 what part of the roof.
7 THE COURT: Sustained.
8 Q. (BY MR. CROCKETT) Now, here we've got a picture
9 of a beam, Ms. Miller. What was the problem that you
10 saw here?
11 A. Well, it looked there that there were no ties.
12 There's supposed to be metal ties on the bottom of
13 that --
14 MR. MARTINEZ: Objection, Judge. How
15 would she know whether or not a tie is supposed to be
16 there? She's not a construction expert.
17 THE COURT: Sustained.
18 Q. (BY MR. CROCKETT) Actually, Ms. Miller, I'm
19 talking about as far as the beams here -- it doesn't
20 show very well -- do you see any issues with the cracks
21 against the beams?
22 A. Yes.
23 Q. Were you concerned about that?
24 A. Yes. They should not be cracked. They should
25 be flush. They should be cut flush.
41
1 MR. MARTINEZ: Objection, this is all
2 expert testimony about what should be what in the
3 construction.
4 THE COURT: Sustained.
5 Q. (BY MR. CROCKETT) Did you see broken beams and
6 boards throughout the framing?
7 A. Yes, I did.
8 MR. MARTINEZ: Objection, leading.
9 THE COURT: Overruled.
10 Q. (BY MR. CROCKETT) Did you see broken beams and
11 boards?
12 A. Yes, I did.
13 Q. Throughout the home?
14 A. Yes, I did.
15 Q. Did you tell Kris Dominguez about these broken
16 beams and boards?
17 A. Immediately.
18 Q. And this red spray paint, this is the spray
19 paint you put on there?
20 A. Yes, it is.
21 Q. Ms. Miller, do you know what this is?
22 (Indicating.)
23 A. Yes, that's a pipe. That's like a vent pipe.
24 It's a vent pipe.
25 Q. When you looked at the home and the framing,
42
1 did you wonder why some of the vents and the pipes
2 weren't connected to anything?
3 A. Yes. I just had an awful lot of questions, so
4 when Kris asked me to spray paint things that didn't
5 look right that I had questions about, that's exactly
6 what I did.
7 Q. Do you know who wrote on the beams when they
8 weren't even?
9 A. Yes.
10 Q. Who did that?
11 A. Mr. Kneuppel.
12 Q. Okay. Did you notice -- well, what was the
13 issue with the beams being uneven?
14 MR. MARTINEZ: Judge --
15 MR. CROCKETT: Judge, I'm not asking for
16 an expert opinion. I'm just saying did she see beams
17 that were uneven.
18 MR. MARTINEZ: That question's okay.
19 MR. CROCKETT: Okay. I'm sorry.
20 Q. (BY MR. CROCKETT) Did you see uneven beams
21 throughout the home?
22 A. Yes, I did.
23 Q. When you mean uneven, were there beams that
24 were actually shorter than the other beams that were
25 doing the same job?
43
1 MR. MARTINEZ: Objection, leading.
2 THE COURT: Overruled.
3 A. There were beams shorter and unattached at the
4 base.
5 Q. (BY MR. CROCKETT) Let me show you -- do you
6 know what this picture is of, Ms. Miller?
7 A. Yes.
8 Q. Where is this at in your house -- or what was
9 your house -- what part of the house?
10 A. In the attic, I believe.
11 Q. Is this piece of wood in the attic connected to
12 the support beam?
13 A. No, sir.
14 Q. When you were out there, did you see wood that
15 was just floating, not connected to anything?
16 A. Yes, sir.
17 Q. Did you have some concerns about that?
18 A. Absolutely.
19 Q. We talked about short boards. Did you see
20 things like that throughout the house?
21 A. Yes.
22 Q. Now, is this board right here nailed into this
23 board that's too short?
24 A. I believe so. I believe so.
25 Q. This board, when you were looking at it, was it
44
1 actually sitting on a beam just part of the wood? Did
2 you have concerns about that?
3 A. I had a lot of concerns. It just -- like I
4 said, it just didn't look right, and I know I can't fix
5 these things myself.
6 Q. How would you describe the wood that you saw as
7 the frame? What did it look like to you?
8 A. It just --
9 MR. MARTINEZ: Objection, opinion.
10 THE COURT: Overruled.
11 Q. (BY MR. CROCKETT) What did the wood that was
12 framing your house look like?
13 A. Looked like scrap lumber, like -- it just
14 looked like it was picked off the scrap pile.
15 Q. Do you know what's in this picture, Ms. Miller?
16 A. Yes.
17 Q. What is it?
18 A. It's two boards that don't meet that's supposed
19 to meet.
20 MR. MARTINEZ: Objection. "Supposed to
21 meet," how does she know that?
22 THE COURT: Sustained.
23 Q. (BY MR. CROCKETT) When we talked before about
24 boards that were shorter --
25 A. Yes.
45
1 Q. -- and had other boards attached to them.
2 A. Yes.
3 Q. Is that the kind of thing you were talking
4 about right here?
5 A. Yes. It's just -- yes.
6 Q. What about this vent?
7 A. Yes. That's the vent for the dryer, the dryer
8 vent. That's the utility room like right below that,
9 and it's crushed, and it would have been a fire hazard.
10 MR. MARTINEZ: Objection as to being a
11 fire hazard.
12 THE COURT: Sustained.
13 Q. (BY MR. CROCKETT) Did you have concerns about
14 the vent being crushed?
15 A. Absolutely.
16 Q. Let me talk to you about the A/C unit.
17 A. Yes.
18 Q. Is that the A/C unit that you saw in the model
19 home?
20 A. No, not at all.
21 Q. Did it look anything like that?
22 A. No, sir.
23 Q. Did the A/C unit have a drip pan that was about
24 half the size of the actual A/C unit?
25 A. No. No, sir.
46
1 Q. Did you tell Kris Dominguez about your concerns
2 that the A/C unit wasn't the same?
3 A. Yes.
4 Q. What did Kris tell you?
5 A. He said -- he really didn't say anything. He
6 just said, "We'll get to it, we'll see."
7 Q. Did Kris ever get to any of these things?
8 A. He got to some, but not all.
9 Q. Do you know what this picture is? It's kind of
10 hard to make it out. Did you have expectation that
11 you'd have insulated pipes in your home?
12 A. Yes, yes.
13 Q. Does the pipe here look like it's actually
14 insulated?
15 A. No. That -- that brought -- I looked up, and
16 there were a lot of uninsulated pipes here and there, so
17 I took pictures.
18 Q. Kris told you they were going to get to it?
19 A. He did. He said maybe. He said -- he did tell
20 me they're not going to get to everything, they wouldn't
21 do everything.
22 Q. When you saw these photographs, did you end up
23 hiring somebody to come and look at the house?
24 A. I did. I hired -- I hired a home inspector,
25 because I was very concerned, because I knew I was
47
1 uncomfortable with what I saw, and I didn't really know
2 exactly what I was looking at. So, I hired a home
3 inspector to come and take a look at the house.
4 THE COURT: Counsel, let's go ahead and
5 break for the day.
6 Ladies and gentlemen, I'm going to ask
7 that you be back at 8:45 in the morning. We cannot get
8 started until all 12 of you here, so please leave your
9 home in plenty of time to get here, get parked, get in
10 the jury room at 8:45. We will start promptly at 9:00
11 o'clock in the morning.
12 Remember the instructions that I've given
13 you: That is, do not discuss this case with anyone,
14 even amongst yourselves, until after you've heard all of
15 the evidence and received the Court's charge and heard
16 the attorneys' arguments.
17 You may bring bottled water into the
18 courtroom. However, keep the cap on it when you're not
19 drinking. We will normally take a 15-minute break in
20 the morning at about 10:30. We'll go until noon. We'll
21 normally take an hour and a half for lunch we'll resume
22 at 1:30 we'll take a 15 minute break somewhere around
23 3:00, 3:15, and we'll generally go until 5:00 o'clock
24 every day.
25 So, with that, have a good evening. And
48
1 we'll see y'all back at 8:45 in the morning.
2 (Jury out)
3 THE COURT: Counsel, see y'all at 8:45 in
4 the morning.
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1 REPORTER'S RECORD
VOLUME 3 OF 6 VOLUMES
2 TRIAL COURT CAUSE NO. 13-DCV-209822 FILED IN
14th COURT OF APPEALS
APPELLATE COURT CAUSE NO. 14-15-00004-CV
HOUSTON, TEXAS
3
2/20/2015 3:47:35 PM
4 LAUREL MILLER AND ) IN THE CHRISTOPHER
DISTRICT COURT A. OFPRINE
ELIANA MILLER ) Clerk
5 )
VS. ) FORT BEND COUNTY, TEXAS
6 )
DEBO HOMES, LLC ) 400TH JUDICIAL DISTRICT
7
8
9
10
11
12 _____________________________________________
13 JURY TRIAL
_____________________________________________
14
15
16
17
18
19 On the 20th day of August, 2014, the following
20 proceedings came on to be held in the above-titled and
21 numbered cause before the Honorable Clifford J. Vacek,
22 Judge Presiding, held in Richmond, Fort Bend County,
23 Texas.
24 Proceedings reported by computerized stenotype
25 machine.
2
1
2 APPEARANCES
3 Mr. Brian H. Crockett
Texas Bar No. 24074094
4 Mr. William G. Kanyha
Texas Bar No. 24087827
5 Crockett Law, PC
10565 Katy Freeway, Suite 400
6 Houston, TX 77024
Telephone: 713.779.3476
7 Counsel for Plaintiffs
8
9 Mr. Nicholas T. Martinez
Texas Bar No. 24087986
10 Mr. Craig Welscher
Texas Bar No. 21167200
11 The Welscher Law Firm
1111 North Loop West, Suite 702
12 Houston, TX 77008
Telephone: 713.862.0800
13 Counsel for Defendants
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3
1
2 VOLUME 3
3 JURY TRIAL
4 August 20, 2014
PAGE VOL.
5 PLAINTIFF'S WITNESSES:
6 Laurel Miller Direct Cross V.Dire
By Mr. Crockett 13 v3
7 By Mr. Martinez 53 v3
By Mr. Crockett 127 v3
8 By Mr. Martinez 132 v3
9 Harold Knueppel Direct Cross V.Dire
By Mr. Crockett 140 v3
10 By Mr. Martinez 143 v3
By Mr. Crockett 145 v3
11 By Mr. Martinez 145 v3
12 Kris Dominguez Direct Cross V.Dire
By Mr. Crockett 146 v3
13 By Mr. Martinez 181 v3
By Mr. Crockett 195 v3
14 By Mr. Martinez 196 v3
15 Brian Crockett Direct Cross V.Dire
By Mr. Kanyha 197 v3
16 By Mr. Martinez 210 v3
By Mr. Kanyha 221 v3
17 By Mr. Martinez 222 v3
18 Juan Carlos Hernandez Direct Cross V.Dire
By Mr. Crockett 223 v3
19
Reporter's Certificate .......................... 248 3
20
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25
13
1 THE COURT: Mr. Crockett, you may continue
2 your examination of the witness.
3 MR. CROCKETT: Thank you, Judge.
4 DIRECT EXAMINATION (CONTINUED)
5 Q. (BY MR. CROCKETT) Now, Ms. Miller, yesterday we
6 talked about the contract that y'all had entered into,
7 the initial contract. Then we had the other agreement
8 as far as the cash installment plan. You saw
9 construction happen. We went through the photographs.
10 What we're going to talk about now is basically after
11 you saw these photographs, what happened, what did you
12 see, what did you do. Okay?
13 A. (Nodding.) Yes.
14 Q. When we were looking at the photographs in
15 Exhibit No. 2, the broken boards, broken beams, the
16 areas that you had concerns, you brought that to the
17 attention of Kris Dominguez?
18 A. Immediately, yes. Yes.
19 Q. I'm going to show you Exhibit No. 3, which is
20 the text messages between yourself and Kris Dominguez.
21 Did you tell Kris that you wanted him to see what you
22 had saw out at the construction?
23 A. Yes, because I saw things I wasn't comfortable
24 with, and I wanted him to see exactly what I was looking
25 at.
14
1 Q. Did Kris agree to meet you?
2 A. He did.
3 Q. When Kris got there, you told Kris an inspector
4 was coming? You told Kris that there was the inspector
5 coming on May 9th?
6 A. Yes.
7 Q. And Kris was there with the inspector?
8 A. Yes.
9 Q. Okay. Who was the inspector you hired?
10 A. I hired a man named Harold Knueppel.
11 Q. Why did you hire Mr. Knueppel?
12 A. I looked up on the Internet and -- under home
13 inspectors, and I -- he had credentials. He had -- he
14 had done home inspections all over the United States and
15 outside the United States. He was an older gentleman.
16 He also lived in Fort Bend County for, my gosh, a very
17 long time, and I just thought here's a man who --
18 MR. MARTINEZ: Objection, Judge, a lot of
19 this is hearsay about his credentials, posings on the
20 web site.
21 THE COURT: Sustained.
22 Q. (BY MR. CROCKETT) Ms. Miller, my question with
23 you is --
24 A. Yes.
25 Q. -- why did you feel like you had to hire Mr.
15
1 Kneuppel? Why couldn't you just tell Kris Dominguez and
2 Kris Dominguez would have it fixed?
3 A. Because Kris was telling me that they were
4 going to fix some things, but they weren't going to fix
5 everything.
6 Q. When you went to -- when you had this meeting
7 with Kris -- and Kris was present the entire time and he
8 saw everything that you saw, right?
9 A. Yes.
10 Q. What response did he have as far as all of the
11 issues you saw?
12 A. He kind of looked up and went, looked around
13 and -- (looking different directions) -- he -- he did
14 hand me a can of red spray paint and asked me to spray
15 things that I thought was unusual.
16 Q. Did Mr. Knueppel issue a report about all of
17 his findings?
18 A. He did.
19 MR. MARTINEZ: Judge, objection, expert
20 report and hearsay.
21 THE COURT: Overruled.
22 Q. (BY MR. CROCKETT) Did Mr. Kneupple issue a
23 report with all of the things that he found?
24 A. Yes, he did.
25 Q. Did you give that report to Kris Dominguez?
16
1 A. Yes, I did.
2 Q. Did you have a meeting with Kris Dominguez at
3 your house about that report?
4 A. Yes, we did.
5 Q. Who was -- who else was at that meeting?
6 A. My daughter, Ellie, and myself, Kris, and I
7 believe a friend of mine, Stan.
8 Q. Okay. Did you see anybody who was a
9 superintendent from Debo Homes during that meeting?
10 A. Yes, yes. The superintendent -- yes, and that
11 was the first time I had -- I had met him, the
12 superintendent.
13 Q. You didn't see him all those days that he was
14 there every day across the street?
15 A. No. Across the street, no, because this was
16 the only house being built in that whole block.
17 Q. Did the inspector -- let me say it this way:
18 Did Debo Homes' superintendent come and talk to you
19 about the problems that you saw?
20 A. No, he did not talk with me at all. He and
21 Kris went to another part of the house and talked
22 privately.
23 Q. At any time did anyone from Debo Homes, other
24 than Kris, come and talk to you about the problems in
25 the house?
17
1 A. No. And we were specifically instructed by
2 Kris not to talk with anyone else. We were only to talk
3 with Kris about the house.
4 Q. Did you want to talk to the superintendent
5 about all the problems that you saw?
6 A. I would have liked to know what the
7 superintendent was saying about what the fixes were
8 going to be and what the remedies were, yes.
9 Q. After Kris went in the other room and came
10 back, what did Kris tell you the superintendent had
11 agreed to?
12 A. Nothing specific. He just said -- he said,
13 "We're going to fix some things. We're not going to fix
14 everything."
15 Q. Was that the first time that there was a change
16 in how Kris was talking to y'all?
17 A. Yes. Prior to that, he was, "Oh, we've got
18 this covered, we're going to make you happy, we're going
19 to do whatever you want." And at that point, his
20 demeanor changed, and he said, "We're just not going to
21 fix everything." He was very curt.
22 Q. After that meeting, did Debo Homes tell you
23 that they wanted to start putting the drywall in?
24 A. It was very soon, very soon after that meeting.
25 Q. Debo Homes start asking you for anything else?
18
1 A. Right after that, they started asking for the
2 next payment.
3 Q. How much was the next payment?
4 A. $59,300.
5 Q. Now, did Kris just ask once or twice?
6 A. No. He asked multiple times through texts,
7 through phone calls, just to the point where I -- I
8 wasn't -- couldn't even take his calls anymore.
9 Q. Did you tell Kris that you weren't going to
10 make another payment until you knew that the repairs
11 were complete?
12 A. Yes, yes. I told him that the next payment
13 wasn't due until the next phase, that was the drywall,
14 when the drywall was actually going in, and that all the
15 problems -- the problems were supposed to be fixed prior
16 to the drywall, and another inspection was supposed to
17 be done prior to the drywall. Everything prior to the
18 drywall. But he just kept going on about, "You owe the
19 next payment, you owe the next payment."
20 Q. Did you have Mr. Knueppel come back and do
21 another inspection?
22 A. I did. He came back for a second -- it was
23 after the insulation went in and prior to the drywall.
24 Q. In between the time that the first inspection
25 happened and the second inspection, did Debo Homes keep
19
1 constructing the house?
2 A. Yes, they never stopped. It was -- it was like
3 just being in a whirlwind.
4 Q. When you went out to the second time, did you
5 ask Kris Dominguez to be there?
6 A. Yes, he was invited at every step. I wanted
7 them part of it. This was going to be our home. I
8 wanted them -- they were our builder. I wanted them
9 part of the process. This was -- this was not something
10 that I felt that they should be left out of.
11 Q. Did Kris Dominguez show up at the second
12 inspection?
13 A. He did not.
14 Q. In the second inspection, were there problems
15 with the new work that Debo Homes had been doing over
16 the last four days?
17 A. Yes, there were additional problems on top of
18 the original problems that hadn't been fixed.
19 Q. Did Kris tell you he wanted money again?
20 A. Yes. That -- that did not stop. The continual
21 asking for the $59,300 just did not stop.
22 Q. So, we had the May 9th inspection. On May
23 11th, did you tell Debo Homes that you wanted to have
24 another inspection to confirm that all of the problems
25 had been fixed?
20
1 A. Yes, I did.
2 Q. Did you actually text Kris on May 11th that you
3 wanted to have Mr. Knueppel come back again -- this
4 thing will eventually catch. Did you tell him you
5 wanted him to come back again and confirm that the
6 repairs were done?
7 A. Yes.
8 Q. You told Kris, and he knew that you wanted him
9 to come back again?
10 A. Yes, yes.
11 Q. And that inspection was going to happen before
12 or after the drywall went in?
13 A. Before the drywall. Mr. Knueppel specifically
14 said after the insulation --
15 MR. MARTINEZ: Objection, hearsay as to
16 what Mr. Knueppel said.
17 THE WITNESS: He said it to me.
18 THE COURT: Sustained.
19 Q. (BY MR. CROCKETT) Did you tell Debo Homes that
20 you wanted Mr. Knueppel to come back out before the
21 drywall got installed?
22 A. Yes.
23 Q. Did Debo Homes understand from the message you
24 sent -- did Kris ever say, "I don't understand why you
25 want to come back out again before it gets installed"?
21
1 A. Kris understood from my texts.
2 Q. Later that day, what did Kris tell you about
3 the drywall?
4 A. He said they were supposed to be -- he said he
5 has until Monday to complete his part, because we're
6 sheetrocking on Tuesday. That's what Kris wrote.
7 Q. 5-13, this was after the second inspection, and
8 Kris texted y'all that all that he was told was that
9 they started at 2:00 to 3:00, and that's it, and that
10 they're going to finish today?
11 A. (Nodding.) Yes.
12 Q. Were you ever aware that -- other than that
13 day, that they were just going to start drywalling?
14 A. No.
15 Q. Did you make the $59,300 payment?
16 A. No, I never made the second payment.
17 Q. But they started drywalling anyway?
18 A. They did.
19 Q. Here's the text message here about them
20 starting on 5-14, May 14th.
21 MR. MARTINEZ: Can we get a date from the
22 previous one?
23 MR. CROCKETT: May 13.
24 Q. (BY MR. CROCKETT) The previous one is May 13th.
25 May 14th, at 10:51 a.m., Kris told y'all for the very
22
1 first time that they were going to drywall at 2:00 to
2 3:00?
3 A. (Nodding.)
4 Q. Or tomorrow, right?
5 A. Yes.
6 Q. So, did you think that they were going to
7 drywall May 15th, if he wrote you that on May 14th?
8 A. Yes.
9 Q. Had you been able to get Mr. Knueppel back out
10 to do the inspection?
11 A. If we had a whole day? I don't know. It's
12 possible, if we had --
13 MR. MARTINEZ: Object to speculation.
14 THE COURT: Sustained.
15 Q. (BY MR. CROCKETT) And then actually an hour
16 later, about an hour and a half later, Kris texts you
17 "Can you please call me, because they're showing up
18 today and not tomorrow to sheetrock the house. My boss
19 will knock a hundred dollars off."
20 MR. MARTINEZ: That assumes facts not in
21 evidence and misconstrues the evidence there. That's
22 talking about insulation, not sheetrock.
23 THE COURT: Overrule the objection.
24 Q. (BY MR. CROCKETT) Did they install the drywall
25 on May 14th?
23
1 A. They did.
2 Q. When you went out to the house on May 15th, did
3 you see that they had already drywalled over a bunch of
4 things?
5 A. Yes, yes, the drywall was in.
6 Q. Why did you take these pictures?
7 A. To show that the drywall was in. I was
8 shocked. I couldn't believe -- we were supposed to
9 still be in frame and insulation.
10 THE COURT: Counsel, I see some people
11 coming in the courtroom. Are these witnesses?
12 MR. CROCKETT: No, they're not.
13 THE COURT: Okay. I'm going to depend on
14 you to let me know if any come in, so that I can
15 instruct them.
16 Q. (BY MR. CROCKETT) We've got drywall up here.
17 Were you surprised to see the drywall up throughout the
18 house?
19 A. Yes, yes.
20 Q. Were these areas that you were planning to
21 inspect?
22 A. Oh, yes.
23 Q. When Debo Homes put the drywall in, before they
24 put it in, is there anything that you ever said to tell
25 Debo Homes, "You can't make the repairs"? Did they ever
24
1 tell you, "Why won't you let us make the repairs?"
2 A. I'm sorry?
3 Q. Bad question. Before the drywall got put in,
4 did anyone from Debo Homes come to you and say, "Why
5 aren't you letting us repair the problems with the
6 house?"
7 A. No.
8 Q. Would you have given Debo Homes as much time as
9 they needed to make the repairs before the drywall went
10 in?
11 A. Absolutely. We -- we wanted -- wanted a great
12 house. We wanted a solid house without problems. We
13 wanted a house that we didn't have to worry about fixing
14 up, and we would give them as much time as they needed
15 prior to even thinking about moving in. We were in no
16 rush to move in.
17 Q. After this happened, did you walk away from the
18 contract like Debo Homes' lawyer said?
19 A. No.
20 Q. Let me talk to you about the continued
21 construction that you saw afterwards. After the drywall
22 went in, did you have a chance to see Debo Homes working
23 on your roof?
24 A. Yes, absolutely.
25 Q. How many people from Debo Homes were out there?
25
1 A. I saw two people.
2 Q. Did you see any superintendents or anyone from
3 Debo Homes?
4 A. I did not. There were just two, two men.
5 Q. And what were they doing?
6 A. One man was on the roof, and another worker was
7 on the ground. The man on the roof called down to the
8 man on the ground --
9 MR. MARTINEZ: Objection, hearsay.
10 MR. CROCKETT: Judge --
11 THE COURT: I haven't heard any statements
12 yet. Overruled.
13 A. He called down to the man on the ground. Then
14 the man on ground cut -- cut a board, handed it up to
15 the man on the roof. The man on the roof set it on the
16 roof. It was like a -- like a piece of the solid base
17 of the roof board, not like a shingle, just like a main
18 board for the roof -- and then kind of moved it back and
19 forth, shook his head, threw it off the roof. Then
20 called down to the man on the ground a second time. The
21 man on the ground cut a second board, handed it up to
22 the man on the roof. The man on the roof tried to place
23 it again. The man on the roof threw it down, called
24 down to the man on the ground a third time. A third
25 board was cut, handed up, the man on the roof tried to
26
1 place it again. Still didn't work, threw it down. A
2 fourth time the man on the roof called down, a fourth
3 board was cut, handed it up, wiggled it this way and
4 that way, got it to fit and then moved on.
5 Q. (BY MR. CROCKETT) Does that sound like the
6 highest quality subcontractors that Kris promised you?
7 A. I was -- I just went -- I was just shocked. I
8 was (indicating). I just couldn't believe it.
9 Q. Did that give you some concern about all the
10 uneven boards you saw before on the frame?
11 A. It just kind of brought everything home.
12 Q. Right then and there, did you walk away from
13 the contract, like Debo Homes' lawyer said?
14 A. No, I didn't. We still stuck with it. I don't
15 run away from things.
16 Q. Let me talk to you about the driveway. Did you
17 see Debo Homes pour your driveway?
18 A. Yes, I did.
19 Q. Did you see that the driveway was framed with
20 wood around it?
21 A. Yes. Yes, it was.
22 Q. Was there anything -- in the actual forms where
23 they were pouring the concrete, was there any mesh, was
24 there any rebar, was there anything?
25 A. No, just the dirt, just the base dirt that they
27
1 flattened out.
2 Q. Have you ever seen drywall -- not drywall -- a
3 driveway after this or a sidewalk be poured?
4 MR. MARTINEZ: Objection, relevance, other
5 sidewalks not near this house.
6 THE COURT: Sustained.
7 Q. (BY MR. CROCKETT) After you saw your driveway
8 poured, did you ask Kris Dominguez why there was no
9 rebar or mesh inside the driveway?
10 A. I did.
11 Q. What did Kris tell you about the mesh?
12 A. He told me -- I asked him why there was no
13 rebar in the driveway, and he told me that, had we
14 wanted rebar, we would have had to specify that at the
15 time of the signing of the contract.
16 Q. Did Kris tell you that they put mesh in the
17 driveway?
18 A. He did tell us that they automatically put mesh
19 in the driveway.
20 Q. What did you tell Kris about what you had saw?
21 A. I told him I saw that there was no -- neither
22 mesh nor rebar, there was just plain cement, and he
23 insisted that it had to have mesh, after I told him it
24 didn't because I saw it being poured.
25 Q. What explanation did Kris give you?
28
1 A. He gave me no explanation. He just
2 (indicating) was quiet.
3 Q. Let me ask you, when you saw the driveway being
4 poured, how many people from Debo Homes were there?
5 A. There were no people from Debo Homes. It was
6 just the contractors.
7 Q. After you saw the driveway being poured and the
8 responses back from Kris, did you run away from the
9 contract, like Debo Homes' lawyers told us?
10 A. I did not.
11 Q. Did you have a chance to see your fence being
12 installed?
13 A. Yes. Yes, we did.
14 Q. Tell us what you saw about your fence being
15 installed.
16 A. Okay. They were digging the holes, and while
17 they were digging the holes, all of a sudden a bunch of
18 neighbors decided to come from around, from behind the
19 house and next door. And all of a sudden -- excuse
20 me -- we wondered what was going on, why all of a sudden
21 we're meeting the neighbors. Well evidently, they had
22 cut the power, cut the lines upon digging the holes.
23 Q. Did that sound like the highest quality
24 subcontractors that Kris promised you?
25 A. No. I would think they'd know where the lines
29
1 were.
2 Q. Did you run away from the contract after you
3 saw that, like Debo Homes' lawyer said you did?
4 A. No, we didn't. We still stuck with it.
5 Q. This was that driveway you were talking about,
6 right?
7 A. Yes, that's it.
8 Q. Why did you take a picture of that driveway
9 again?
10 A. Because I watched it being poured, and there
11 was no rebar, no mesh. There was nothing other than
12 concrete to hold it together, and --
13 MR. MARTINEZ: Objection, getting into
14 expert testimony about holding driveways together. She
15 doesn't know what rebar is for.
16 THE COURT: Overruled.
17 Q. (BY MR. CROCKETT) You can answer the question.
18 A. Okay. There was nothing but plain cement to
19 hold it together.
20 Q. Your next-door neighbors, do they have a
21 driveway?
22 A. Yes, they do.
23 MR. MARTINEZ: Objection, same objection
24 as earlier, relevance about other driveways, other
25 sidewalks.
30
1 THE COURT: Overruled.
2 Q. (BY MR. CROCKETT) Your neighbors next-door, did
3 they have a driveway?
4 A. Yes, the neighbors next-door had a driveway.
5 Q. Did Debo Homes build that house?
6 A. Yes, they did.
7 Q. How did that driveway look?
8 A. It was very broken up.
9 Q. How old was that house?
10 A. About five years old, at the most.
11 Q. Did you have some concerns after seeing your
12 driveway get poured and then seeing the neighbor's
13 driveway?
14 A. Yes, yes. We looked over at the neighbor's
15 driveway, and we said that's what ours is going to look
16 like in a couple of years. That's --
17 MR. MARTINEZ: Objection, speculation.
18 THE COURT: Overruled.
19 Q. (BY MR. CROCKETT) Let me talk to you about some
20 of the other things about the repairs Debo Homes said
21 you didn't let them do.
22 MR. CROCKETT: I'm sorry, can I --
23 bailiff, how do I get rid of this green thing that I've
24 accidentally written on there?
25 BAILIFF: Touch the bottom right on the
31
1 screen.
2 MR. CROCKETT: Thank you.
3 Q. (BY MR. CROCKETT) Now, on here, Debo Homes said
4 that they were going to put the waterproofing on this
5 foundation, right?
6 A. Yes.
7 Q. When Debo Homes said they were going to make
8 some repairs, is that the repair that they made?
9 A. That is exactly it.
10 Q. Did you have some concerns about the
11 waterproofing that was the repair job?
12 A. Yes, yes.
13 Q. Did you run away from the contract, like Debo
14 Homes' lawyer said you did?
15 A. No. We still -- we still kept going.
16 Q. Had Debo Homes started doing the brick facade
17 of your house?
18 A. Yes.
19 Q. What happened to the waterproofing?
20 A. I really don't know. it's gone.
21 Q. How did that make you feel about how good the
22 repairs were being done?
23 A. Well, pretty upset. It was there, and now it's
24 gone. So, what else was there and then it's gone?
25 Q. Now, talk to me about this brick wall.
32
1 A. Yes. It was free-standing. I could put my
2 fist inside between the framing and the brick wall.
3 Q. You're talking about right here? (Indicating.)
4 A. Yes, sir. And we actually looked in there with
5 a flashlight, and there was no -- there was nothing
6 holding that wall to the frame. It was just
7 free-standing. And I leaned on it, and it started to
8 move. And it was very disturbing. Plus, it shrunk in
9 the rest of the house. The house was not all the way to
10 the edge.
11 Q. What do you mean by that?
12 A. Well, if the house was in a good three inches
13 or so, that means the room sizes were smaller.
14 Q. Did you tell Kris Dominguez about the brick
15 facade?
16 A. Yes, immediately.
17 Q. Did Kris tell you, "We're going to repair it"?
18 A. He said, "We'll take care of it."
19 Q. Talk to me about the windows where the brick
20 facade was at compared to the window holes that they
21 made of the house.
22 A. Yes. They didn't line up. The holes that were
23 cut into the frame were not the same holes for the
24 brick. So, they were -- they were off. And when I
25 brought that to their attention, they said, oh, that
33
1 would work out, that just works itself out.
2 Q. Did you tell them that they had to repair it
3 right now, or that you were going to run away from the
4 contract?
5 A. I never said that. We just wanted the house
6 fixed so we could enjoy living there.
7 Q. Now, the window here, what was going on with
8 this window?
9 A. I don't know how it got broken, but it's --
10 it's -- inside, it's a broken master bedroom window.
11 Q. Did Kris tell you, "We're going to get it
12 replaced right away"?
13 A. He never said -- he said, "We'll fix it."
14 Q. Did you get that a lot?
15 A. Yes.
16 Q. When you add up all of the things that you saw
17 and you look at all of the responses that Debo Homes
18 gave you, did you ultimately say, "I want to confirm all
19 the repairs are actually going to be done before I pay
20 you any more money"?
21 A. That's exactly what was said.
22 Q. Did you ever see those repairs happening?
23 A. We saw some repairs happening. We didn't see
24 enough repairs happening.
25 Q. Did you see the construction of the house keep
34
1 going, though?
2 A. The construction never stopped.
3 Q. On May 21st, did you write an e-mail to Kris
4 Dominguez telling him that you wanted them to stop
5 construction?
6 A. I did.
7 Q. Did you outline all of the things that you saw
8 or had an issue with with Debo Homes?
9 A. I did.
10 Q. Did construction stop?
11 A. It did not.
12 Q. You told Debo Homes, "We expect Debo Homes to
13 complete all of these repairs prior to us submitting any
14 more funds"?
15 A. Yes.
16 Q. So, you didn't pay them anything more, and the
17 construction kept going?
18 A. That's correct.
19 Q. Ultimately, did you have to ask us to tell them
20 to stop?
21 A. Ultimately, yes. It was not something we
22 wanted to do. It was something we had to do.
23 Q. Now, this letter was made on May 22nd. Did
24 Debo Homes stop after we sent our letter?
25 A. They did not.
35
1 Q. You know that Debo Homes told us that they were
2 going to let us inspect the house, right?
3 A. Yes, they did.
4 Q. Did we have an inspection scheduled for July?
5 A. We did.
6 Q. Let me ask you this: After Debo Homes knew
7 that you had hired lawyers, did they keep calling you
8 directly?
9 A. They did.
10 Q. Now, were they calling you to say, "Ms. Miller,
11 let's try to work this out, let's do the repairs"?
12 A. No. No.
13 Q. What did Kris Dominguez keep calling you about?
14 A. $59,300.
15 Q. At that point, when he kept calling and
16 calling, did you say, "Talk to my lawyers"?
17 A. That's exactly -- prior to that, I wouldn't
18 have had to. I didn't have lawyers.
19 Q. Wasn't how the defense lawyer had said earlier,
20 which was right from the start, you said, "Talk to my
21 lawyers." Did Debo Homes send you this letter directly?
22 MR. MARTINEZ: I object to what counsel
23 said. There's no question. He was making a statement.
24 THE COURT: Sustained.
25 Q. (BY MR. CROCKETT) Did Debo Homes write you a
36
1 letter, directly to you, May 29th, 2013?
2 A. Yes.
3 Q. And it's supposed to be from Juan Carlos
4 Hernandez, the President of Debo Homes?
5 A. Yes.
6 Q. On May 29th, Mr. Hernandez said, "It's come to
7 my attention that you have some concerns about the
8 quality of the construction and the materials that go
9 into your home." Did you have some concerns?
10 A. (Nodding.) Yes, we had a lot of concerns.
11 Q. Now, when you first met with Kris Dominguez, he
12 told y'all that they had a third-party independent
13 inspector inspect the entire work from Debo Homes,
14 almost a check the checker?
15 A. Yes. They had -- that's exactly what he told
16 us -- third-party independent inspectors throughout the
17 building process.
18 Q. Mr. Hernandez's letter was the first time that
19 you knew that there was only three inspections?
20 A. Yes.
21 Q. Did you learn for the first time that they also
22 have onsite supervising all of the subcontractors' work?
23 A. Yes.
24 Q. Did you actually ever see that?
25 A. No, we did not see that.
37
1 Q. You couldn't even talk to the guy, if you
2 wanted to?
3 A. No, we were -- we were specifically told not to
4 talk with the workers.
5 Q. Now, this part is really interesting. At the
6 end of it, Juan Carlos Hernandez told y'all, "If you are
7 not happy with our service, you are free to terminate
8 the contract with Debo Homes, and we'll refund you a
9 hundred percent of the money you gave us after we sell
10 the house." Are you surprised now that they're actually
11 suing you, saying you breached the contract?
12 A. Yes.
13 Q. Did they say a lot of things to you and then
14 say something different later?
15 A. Unfortunately, that's exactly what happened.
16 Q. Now, Debo Homes' lawyer said that they offered
17 you a hundred percent of the money whenever they sold
18 the house. Did you ask him for a specific date?
19 A. Well, we tried to work it out that it would
20 happen within 90 days.
21 Q. Did you ever hear a single thing from Debo
22 Homes or its lawyers?
23 A. We never heard anything. It just -- everything
24 got silent at that point.
25 Q. A week before the inspection that was
38
1 scheduled, did you go out to the house to see whether or
2 not anything had been changed or altered?
3 A. Yes. We wanted to make sure everything was --
4 was okay for the building inspector to get out there and
5 keep going. We still hadn't pulled out.
6 Q. Is this what you saw when you got there?
7 (Indicating.)
8 A. That's exactly what we saw.
9 Q. Were you shocked that your home was available
10 for sale?
11 A. We were dumbstruck.
12 Q. Now, you bought some fans, some fixtures for
13 your new house, right?
14 A. Yes, we did.
15 Q. Did you see Debo Homes installed them?
16 A. Yes. We -- we specifically wanted extra
17 ceiling fans for the rooms because it keeps energy costs
18 down. You know, this way we could keep the AC a little
19 higher and put the fans on, a little nicer. And Kris
20 told us just drop them off at his office, he'll make
21 sure they get in the house.
22 Q. They got in there, didn't they?
23 A. They did.
24 Q. Were you surprised to see the sales table out
25 there?
39
1 A. Yes. Evidently, looks like they're -- they've
2 got a nice little office going on in there.
3 Q. Let me ask you this: Your home, what was the
4 floor supposed to be?
5 A. It's supposed to be all tile, a hundred
6 percent. We didn't want carpet because of the dogs. We
7 have carpet now, and it just gets eaten up.
8 Q. This back corner here and in the other parts in
9 the house, what did they install?
10 A. They put carpet throughout the bedrooms.
11 Q. They built the house cheaper?
12 A. Yes, they did.
13 Q. They're not asking for a reduction off of their
14 lost profits, even though they saved money making it
15 cheaper, are they?
16 MR. MARTINEZ: Objection, it assumes facts
17 not in evidence about the cost of tile and carpet.
18 THE COURT: Sustained.
19 Q. (BY MR. CROCKETT) Did Debo Homes tell you that
20 they would give you your money back for the money that
21 they saved building a cheaper home?
22 MR. MARTINEZ: Objection, same objection.
23 THE COURT: Sustained.
24 Q. (BY MR. CROCKETT) When we asked Debo Homes what
25 was going on, and we went to the house and saw that it
40
1 was completed, what did they tell you?
2 A. They told us we were trespassing. We didn't go
3 in the house, we went around the outside of the house.
4 They told us it's not our house, and that we were
5 trespassing, and that we don't have any right to be on
6 -- on the property at all.
7 Q. Did you feel like they were intimidating you?
8 A. Intimidating, and just we couldn't understand
9 how a house we owned a third of already --
10 MR. MARTINEZ: Objection, it's a legal
11 conclusion about --
12 THE COURT: Sustained.
13 Q. (BY MR. CROCKETT) What did Debo Homes' lawyers
14 tell you about that $60,300, how much of that were they
15 going to give you back?
16 A. They were going to -- they were going to give
17 it minus the attorney's fees, broker's fees, interest,
18 any and all costs.
19 Q. Is that what Juan Carlos Hernandez said in
20 Exhibit No. 6?
21 A. No.
22 Q. That he was going to seek all lost profits, pay
23 for all my attorney's fees, my interest? Did he ever
24 tell you that?
25 A. No, not at all.
41
1 Q. Now, you know that -- Exhibit No. 8 -- Debo
2 Homes ultimately sold your house to someone else?
3 A. Yes.
4 Q. Sold it for $168,000?
5 A. Yes.
6 Q. They signed that contract on October 19, 2013.
7 See that?
8 A. Yes.
9 MR. MARTINEZ: Objection, leading.
10 THE COURT: Overruled.
11 Q. (BY MR. CROCKETT) Did you hear Debo Homes'
12 lawyer said that they actually didn't close on the house
13 until December?
14 A. Yes, and we didn't find out about it until May
15 in the deposition.
16 Q. So, you waited two months for them. How long
17 did they wait for you?
18 A. A couple of days.
19 Q. After Debo Homes sold your house, did Debo
20 Homes pay you back the money that Juan Carlos
21 Hernandez --
22 A. They paid us nothing.
23 Q. -- promised he would do?
24 A. Yes.
25 Q. You heard Debo Homes' lawyer tell you they put
42
1 $60,300 in the Court's registry?
2 A. Yes, I heard that.
3 Q. Do you know when they did that?
4 A. Yes. We found out that they put it in just
5 last week, but we found out on Monday, this past Monday.
6 Q. Over the last year and a half, what changed,
7 other than 12 jurors?
8 A. Nothing.
9 Q. How long have we been in this lawsuit?
10 A. Since the end of May, 2013. 2013.
11 MR. MARTINEZ: Objection, that assumes
12 facts not in evidence. This was filed in October.
13 THE COURT: Overruled. You can
14 cross-examine her.
15 Q. (BY MR. CROCKETT) How long have you had to deal
16 with Debo Homes and their lawyers?
17 A. Since the end of May, 2013.
18 Q. During that entire time, have they ever said
19 anything to you other than you're going to pay our lost
20 profits, or attorneys fees, our lost interest, and
21 anything else that we come up with?
22 A. No.
23 Q. That's all you've ever heard?
24 A. Yes.
25 Q. If Kris Dominguez would have told you this is
43
1 the way that Debo Homes was going to do business with
2 y'all, would you have handed over $60,300?
3 A. Never.
4 Q. Did Debo Homes make promises, representations
5 to y'all that as of today you know weren't true?
6 A. Yes.
7 Q. What did Debo Homes tell y'all, what did they
8 promise y'all about their subcontractors?
9 MR. MARTINEZ: Objection, asked and
10 answered many times.
11 THE COURT: Overruled.
12 A. They promised that they would be the highest
13 quality subcontractors.
14 Q. (BY MR. CROCKETT) What did Debo Homes tell you
15 about their supervision of those highest quality
16 subcontractors?
17 MR. MARTINEZ: Same objection.
18 THE COURT: Overruled.
19 A. That there would be continual onsite
20 supervision at the jobsite, at the home.
21 Q. (BY MR. CROCKETT) What did Debo Homes tell you
22 about the third-party inspectors?
23 A. That there would be multiple building
24 inspections of the structure and at various phases --
25 Q. What did Debo Homes tell you --
44
1 A. -- by a third-party inspector.
2 Q. What did Debo Homes tell you about the next
3 time you'd have to pay $59,300?
4 A. That that would not have to happen until we go
5 into sheetrock, and that all problems would be fixed
6 before we paid the next phase.
7 Q. What did Kris Dominguez tell you about the AC
8 unit and the appliances that were going to be installed
9 in your house?
10 A. That they would be the same ones that we saw in
11 the model house.
12 Q. Were any of those a hundred percent true?
13 A. No, not at all.
14 Q. Now, Debo Homes' lawyers talked earlier about
15 saying that this was the contract; regardless of
16 whatever we told you, the contract says that we don't
17 have to follow that.
18 MR. MARTINEZ: Objection, counsel is
19 making a statement?
20 THE COURT: Sustained.
21 Q. (BY MR. CROCKETT) In this contract, when was
22 this contract signed, Exhibit No. 1? Was this signed --
23 let me ask a better question. Exhibit No. 1, when this
24 was signed, were you doing the cash installment plan or
25 were you doing the financing?
45
1 A. This was the financing. This was when we tried
2 to get financing. We went in with that -- with that
3 mind-set.
4 Q. And y'all signed this April 13th?
5 A. Yes.
6 Q. Is that what you remember?
7 A. Yes.
8 Q. And when you came back to meet with Kristopher
9 Dominguez, when you didn't qualify for financing -- I
10 think I need a better one. How many days later from the
11 original contract did y'all write a check to Debo Homes
12 for $59,300 and a thousand dollars in earnest money?
13 A. I believe it was three days later.
14 Q. April 16th, 2013. And you paid them that
15 money, correct?
16 A. Yes.
17 Q. And the agreement was the cash installment
18 plan?
19 A. Yes.
20 Q. After you made that agreement, did Kris
21 Dominguez tell you, "Well, we're still going to hold you
22 to this other agreement that says whatever we just told
23 you right now, we're going to ignore that, and we're
24 going to say that that doesn't apply"?
25 A. No, he never said that.
46
1 Q. Other than after this lawsuit was filed, did
2 you ever hear from anyone at Debo Homes, other than
3 their lawyers, that they weren't going to honor any
4 agreement that wasn't in writing?
5 A. Can you rephrase the question?
6 Q. Before this lawsuit was filed --
7 A. Yes.
8 Q. -- did anyone from Debo Homes ever tell you,
9 "Well, we're going to hold you to the old contract and
10 all these representations we just made, we're not going
11 to honor"?
12 A. No.
13 Q. Once this lawsuit happened, did you find out
14 that was the defense?
15 A. Yes.
16 Q. During your deposition, is that when you found
17 out Debo Homes was saying, "Well, No. 19 says we don't
18 have to honor anything that's not in writing, no
19 warranties, no promises"?
20 A. That's exactly when I found out.
21 Q. In your agreement with Debo Homes, is anywhere
22 in this contract that talks about the cash installment
23 plan?
24 A. No, because that contract is all about the
25 financing.
47
1 Q. Is anywhere in this contract that Debo Homes
2 put in writing that you didn't have to make a payment
3 until before the problems had been fixed?
4 A. That contract -- no, because, again, that's
5 about the financing.
6 Q. Did Kris Dominguez tell you a different story?
7 A. He did.
8 Q. Debo Homes lawyer said that y'all were here
9 asking for treble damages and all this excess damages
10 because you just wouldn't take your money back when they
11 offered it to you. Did they ever offer your money back?
12 A. Not really. They offered it minus this, minus
13 attorney fees, minus the costs and other fees, and so it
14 never came down to just our money back.
15 Q. Are you suing Debo Homes just about this
16 incident? Is this all about just you?
17 A. No. It's not about me. Because if they can
18 build me a home like this, they can build anybody a home
19 like this. If they can take my money, they can take
20 anybody's money. They can -- it's very upsetting that I
21 and my daughter have had to go through this, but they
22 can do this to anyone.
23 Q. Ms. Miller, if you wouldn't have been out on
24 that jobsite, if you wouldn't have been there and saw
25 the work that was done, you think that any of the
48
1 repairs would have been done?
2 MR. MARTINEZ: Objection, speculation.
3 THE COURT: Sustained.
4 Q. (BY MR. CROCKETT) If you wouldn't have been
5 there to see the crushed vent pan, you think it would
6 have been fixed?
7 MR. MARTINEZ: Same objection.
8 THE COURT: Sustained.
9 Q. (BY MR. CROCKETT) Based on the work that Debo
10 Homes did or what you witnessed, you think that you
11 would be doing a bunch of repairs after you paid off
12 this house?
13 MR. MARTINEZ: Objection, speculation.
14 THE COURT: Overruled.
15 A. Yes, I think we would. And I think we'd be
16 paying very high AC bills based on the air conditioning
17 unit they put in versus the one they promised us. I
18 think we'd have a wet ceiling based on the pan being too
19 small for the AC unit.
20 MR. MARTINEZ: Objection. This is getting
21 into the cost of electricity, the ceiling pan from the
22 AC unit.
23 THE COURT: What's your legal objection,
24 counsel?
25 MR. MARTINEZ: Speculation and expert
49
1 testimony.
2 THE COURT: Sustained.
3 Q. (BY MR. CROCKETT) Ms. Miller, I want to talk to
4 you about the construction timeline.
5 MR. CROCKETT: Judge, I have a
6 demonstrative that I've talked to defense counsel about.
7 I think they're looking for your ruling on my timeline.
8 MR. MARTINEZ: We object to the -- he's
9 making statements in that demonstrative there, expert
10 opinion, hearsay.
11 MR. CROCKETT: Judge, it's all things that
12 she's already testified about.
13 MR. MARTINEZ: Some of which was expert
14 testimony, which I've objected to.
15 MR. CROCKETT: I can show Your Honor.
16 THE COURT: Bring it up.
17 (Bench conference)
18 MR. MARTINEZ: The portion that we're
19 objecting to, all the words in writing and that sort of
20 stuff.
21 THE COURT: This is it?
22 MR. CROCKETT: That's it, Judge.
23 MR. MARTINEZ: If I may, Judge, they
24 changed a little bit --
25 MR. CROCKETT: It says stop construction.
50
1 MR. MARTINEZ: This is repetitive, and
2 it's confusing.
3 MR. CROCKETT: You can delete it. I'm
4 just trying to get the timeline in here.
5 MR. MARTINEZ: Yeah. We're fine with
6 that.
7 THE COURT: Okay.
8 (End of bench conference)
9 Q. (BY MR. CROCKETT) Ms. Miller, I want to talk to
10 you about this timeline, because it's a big deal in this
11 construction timeline. At the very left side, April
12 16th, 2013, is that when you entered into your cash
13 installment agreement?
14 A. Yes.
15 Q. And what were the representations, the promises
16 that Kris Dominguez told y'all?
17 A. That we would get the same things that were in
18 the model home; that we would have quality superior
19 quality workers; that they would be supervised at all
20 times; that they --
21 Q. Let me ask you this.
22 A. Yes.
23 Q. On May 9th and 13th --
24 A. Yes.
25 Q. -- when Mr. Knueppel did the report --
51
1 A. Yes.
2 Q. -- are those pictures of what you saw?
3 A. Yes.
4 Q. Does that sound like, what you saw, anything
5 like Mr. Knueppel gave y'all, or what Debo Homes
6 promised y'all?
7 A. It's nothing what they promised.
8 Q. May 14th, we talked about those text messages,
9 is Kris Dominguez demanding more money from y'all?
10 A. Absolutely.
11 Q. In fact, on the inspection from May 13th, in
12 these photographs you already saw that they had all the
13 drywall waiting to be thrown up?
14 A. Yes.
15 Q. When you did the inspection on May 13th, how
16 late at night was it?
17 A. Oh, it was -- it was after hours. There were
18 no more workers there.
19 Q. And May 14th, all the drywall went up?
20 A. Yes.
21 Q. May 21st and the 22nd, was Debo told to stop
22 construction?
23 A. Yes.
24 Q. Did you ever pay them the money for the
25 drywall?
52
1 A. I did not.
2 Q. In fact, did construction ever really stop?
3 A. It did not. It just kept going and going like
4 a snowball going downhill.
5 Q. May 29th, is it accurate that Debo Homes, the
6 president of the company, told you that you're free to
7 terminate the contract, have no liability to us, and
8 we'll give you your money back when we sell the house?
9 A. Yes, he did.
10 Q. Was any of that true?
11 A. It turned out not to be true.
12 Q. June 3rd was the closing date. Did you ever
13 tell Debo that if they're not done with the home and the
14 repairs by June 3rd, that you were walking from the
15 contract?
16 A. Never.
17 Q. July 24th, your home was complete?
18 A. (Nodding.) Yes.
19 Q. Is there anywhere in this entire timeline that
20 you told Debo Homes, "We're not going to let you make
21 the repairs"?
22 A. Never. We wanted them to make the repairs.
23 Q. Do you have any idea how Debo Homes was going
24 to make the repairs like their lawyer said, when the
25 home was complete?
53
1 A. We couldn't have -- no. Not once the drywall
2 went up, we didn't know how it was possible.
3 MR. CROCKETT: Thank you, Ms. Miller.
4 THE WITNESS: Thank you.
5 MR. CROCKETT: Your Honor, I pass the
6 witness.
7 MR. MARTINEZ: Judge, may I proceed?
8 THE COURT: You may.
9 MR. MARTINEZ: I apologize, one moment to
10 get my computer back up.
11 THE WITNESS: Sir, may I have water?
12 THE COURT: I'm sorry?
13 THE WITNESS: May I have water? I have
14 water there.
15 THE COURT: Yes, ma'am.
16 THE WITNESS: Thank you.
17 MR. CROCKETT: (Handing.)
18 THE WITNESS: Thank you.
19 CROSS-EXAMINATION
20 Q. (BY MR. MARTINEZ) Good morning, Ms. Miller.
21 A. Good morning.
22 Q. I'm a little confused. Now, I thought
23 throughout this whole transaction you were relying upon
24 that contract we've seen here in Exhibit 1 signed April
25 13th. Is that not correct?
54
1 A. That's the contract for financing.
2 Q. So, you're not suing Debo for breach of
3 contract based upon that contract?
4 A. Correct.
5 Q. So, you're saying that contract has nothing to
6 do with this case?
7 A. Correct. That's not the contract -- that's not
8 the contract that we're -- that's in question.
9 Q. Where is the other contract that's in question?
10 A. We don't have a copy of it.
11 Q. So, why did we just go through a bunch of
12 questions about this contract, if this is irrelevant to
13 you?
14 A. I don't know.
15 Q. Then why are you suing my client for breach of
16 contract when there's no contract?
17 A. I don't know. They asked us -- they had a
18 three-tier payment program that Kris came up with, and
19 he had it written down, he had it in writing.
20 Q. Where is that three-tier payment program in
21 writing?
22 A. I don't know.
23 Q. You just said it was in writing.
24 A. It was.
25 Q. Where is it?
55
1 A. I don't know.
2 Q. So, are you telling the ladies and gentlemen of
3 the jury that they should disregard that contract
4 entirely?
5 A. I suppose so.
6 Q. So, you're suing Debo based upon an oral
7 contract, then, if there's no contract in writing?
8 A. I'm not sure.
9 Q. Well, Ms. Miller, I'm sorry, but I do need you
10 to be sure.
11 A. I'm not a lawyer.
12 Q. Well, if you're not relying on that contract,
13 then what are you relying on? Because you're suing Debo
14 Homes for breach of contract. Where is the contract?
15 A. Kris had it.
16 Q. That's the first time I've heard that, Ms.
17 Miller.
18 A. Kris wrote down the three-tier program. He
19 came up with three payments, and he had written them
20 down on a contract.
21 Q. Like that? (Indicating.)
22 A. It was similar, yes, like that.
23 Q. And you signed it?
24 A. We did.
25 Q. You realize that in Texas, you have to have a
56
1 written contract to sue for issues involving property?
2 A. No, I'm not aware --
3 MR. CROCKETT: I'm going to object to a
4 lot of the legalese that Debo Homes' lawyer is trying to
5 ask about.
6 THE COURT: Overruled.
7 Q. (BY MR. MARTINEZ) Ms. Miller, if I started
8 asking you questions about this contract, you're telling
9 the ladies and gentlemen of the jury that I really
10 shouldn't be doing that?
11 A. (No response.)
12 Q. You understand the question?
13 A. Not really. Can you rephrase it?
14 Q. I know your lawyer went through the contract at
15 length, so is it unfair for me to go through the
16 contract and ask you questions as well?
17 A. I'm not sure.
18 Q. Ms. Miller, I'm not sure either. I'm just
19 confused, because I don't understand why we went through
20 that whole direct examination --
21 A. Yes.
22 Q. -- talking about the contract, when you are
23 telling me right now that that is not the contract.
24 A. It's not. It's -- that one is in reference to
25 the financing.
57
1 Q. When was this other contract signed?
2 A. Three days later, on the 16th.
3 Q. Ms. Miller, I asked you in your deposition
4 before, did you read this contract fully, this one,
5 Exhibit 1.
6 A. Yes.
7 Q. And you fully understood its terms?
8 A. Yes.
9 Q. Since I don't have a copy of this other
10 contract, what terms are different between that and this
11 other contract?
12 A. The way the money is proportioned.
13 Q. Is that the only difference?
14 A. From what I -- from what I can recall,
15 possibly.
16 Q. So, is it fair for me to talk about this
17 contract and say it's the same as this other contract,
18 as long as I don't talk about that part, the sales price
19 portion? Is that the only difference, that circled
20 part?
21 A. That's one difference. I'm not sure if it's
22 the only difference.
23 Q. Well, Ms. Miller, I need to know, because this
24 is the first time I've heard this. I'm a little bit
25 surprised, and I'd like to be able to tell the ladies
58
1 and gentlemen of the jury what you signed and what
2 you're suing Debo for. Is that fair?
3 A. Yes, it's fair.
4 Q. Ms. Miller, would you care to look at Exhibit 1
5 in full and please tell us what's different between this
6 contract and this other contract signed three days
7 later?
8 A. Like I said, I believe it's primarily the
9 money.
10 Q. Okay. But I'm offering you the contract, if
11 you'd like to look it over and perhaps tell us what's
12 different, because this is the first time I've heard
13 this. I didn't get to discuss it in deposition, so this
14 is my only shot.
15 A. I can't -- after a year and a half, I can't --
16 I can't tell you each and every aspect that might be
17 different, but I believe it's primarily just the money
18 aspect.
19 Q. Okay. Well, let's go ahead and break it down
20 then and see if we can figure out what's different and
21 what's new right here, today in this courtroom for the
22 very first time.
23 Now, Ms. Miller, your attorney went over
24 this section with you a while ago, isn't that correct,
25 No. 19?
59
1 A. Yes.
2 Q. Is this the same in both contracts?
3 A. I believe so.
4 Q. Now, is it true that says that all
5 representations and warranties must be in writing?
6 A. It does say that.
7 Q. So, you've been talking a lot today about how
8 Kris and Debo made a lot of oral representations to you
9 during the negotiation phase, correct?
10 A. Yes.
11 Q. Well, then why did you sign a contract with
12 that clause in there, if you were relying upon oral
13 representations?
14 A. Because when you choose your items for a home,
15 they're not in that contract. You go through and you
16 choose a stove. That's not in there. And that's why
17 they have a model, so you can choose a stove, and
18 efficient HVAC, high-energy AC unit, and so they can
19 show you what they offer. So, you know what you're
20 going to get in your home, or they wouldn't show you a
21 model home. And when they tell you this is this and
22 this is that. And then they show you tile samples and
23 they show you other samples, and when you ask, "Am I
24 going to get that," and they say yes, you expect to get
25 exactly that.
60
1 Q. I think my question is a little bit different.
2 I agree that, you know, if you choose a stove or a color
3 of roof, that's a separate, you know, detailed home
4 selection chart. I'm asking you about those
5 representations that Kris made to you, like you'll love
6 the home; we'll have a superintendent there at all
7 times; you know, we'll fix everything immediately.
8 Where is that written down?
9 A. (Reading.) It's not in there.
10 Q. Well, is it true?
11 A. I do know Debo advertises that they use the
12 highest quality workers.
13 MR. MARTINEZ: I'll object as
14 nonresponsive.
15 THE COURT: Sustained.
16 Q. (BY MR. MARTINEZ) Well, Ms. Miller, you said
17 you read this contract from A to Z, or you read through
18 the entire thing, correct?
19 A. Yes.
20 Q. And you understood it?
21 A. Yes.
22 Q. And you accepted all of its terms?
23 A. Yes.
24 Q. And you had a realtor there to look it over for
25 you?
61
1 A. Yes, who is a friend, yes, a friend.
2 Q. But you did have a realtor read over the
3 contract and explain some things to you?
4 A. Yes.
5 Q. That leads me to my question, Ms. Miller: Why
6 are you relying upon oral statements, oral statements?
7 If you had a realtor read it over to you, you read the
8 whole thing, you understood it and you're relying upon
9 those representations, then why did you agree to that
10 clause, No. 19?
11 A. (Reading.) Because it says -- we never
12 expected --
13 Q. I'm sorry?
14 A. We trusted Kris. At that point, he still had
15 our trust. We trusted everything he was telling us. We
16 asked questions, he said everything right. We asked --
17 we had -- I had a long page of questions. He gave us
18 all the right answers. Our friend, Stan, the realtor,
19 asked questions. He gave him all the right answers.
20 Q. Ms. Miller, also there's another thing in
21 paragraph 19 I'd like to point out. I didn't mean to
22 write over that. Would you mind reading the underlined
23 portion?
24 A. It says, "Seller may continue to show the
25 property and receive, negotiate and accept backup
62
1 offers."
2 Q. And you agreed to that condition?
3 A. Yes.
4 Q. Twice, actually?
5 A. Yes.
6 Q. And you fully understood what that meant?
7 A. Yes.
8 Q. So, why are we now in this court having you
9 complain about Debo selling the home to someone else, if
10 you agreed to that?
11 A. We're here because we weren't offered our money
12 back at the point --
13 MR. MARTINEZ: I'll object to
14 nonresponsive, Judge.
15 Q. (BY MR. MARTINEZ) My question is: Why are you
16 complaining about the home being sold to someone else
17 when it's in the contract that they're allowed to do
18 that?
19 A. (No response.)
20 THE COURT: Can you answer the question?
21 A. I'm sorry, can you rephrase?
22 Q. (BY MR. MARTINEZ) Sure. The question is: Why
23 are you complaining that Debo Homes sold the house to
24 the Benges and not you when this contract explicitly
25 says Debo may do that?
63
1 A. We're here because we were never given an
2 opportunity to fix the problems, to get to that point,
3 to even negotiate to that point. As I see, this says
4 negotiate and accept backup offers. We were never given
5 that opportunity to negotiate. We were never given
6 opportunity whether that was a backup or a go-ahead. We
7 were never given opportunities.
8 Q. Ms. Miller, my question is: Why wasn't Debo
9 allowed to talk to the Benges or anyone else in the
10 community about selling this home?
11 A. They were allowed.
12 Q. Then what's the problem with Debo selling the
13 home to the Benges?
14 A. We just didn't know about it until this past
15 May, and then they still kept our money.
16 MR. MARTINEZ: I'll object as
17 nonresponsive to the "kept our money."
18 THE COURT: Sustained.
19 Q. (BY MR. MARTINEZ) Ms. Miller, you're
20 complaining that -- now, you're complaining that you
21 didn't know that the home was sold to someone else until
22 May?
23 A. Yes.
24 Q. And who did you expect to tell you that
25 information?
64
1 A. Well, we would have liked for Debo to tell us.
2 Q. I agree, but as of the time the contract was
3 agreed to with the Benges, which is October, and the
4 time that the home was finally sold to the Benges, which
5 was New Year's Eve, 2013, at that point, isn't it true
6 that you had already filed this lawsuit?
7 A. Yes.
8 Q. Well, isn't it also true that you told Debo,
9 "Don't contact me"?
10 A. Yes.
11 Q. Well, then how do you expect them to tell you
12 what happened to the home?
13 A. I would expect them to tell our attorney.
14 Q. To tell your attorney, not you?
15 A. Yes.
16 Q. I want to make that clear.
17 A. Thank you.
18 Q. So, Ms. Miller, you had no problem with Debo
19 selling the home to the Benges, a third party, right?
20 A. Not after all the -- not after all that time
21 had gone by.
22 Q. So, it's perfectly fine that they sold it to
23 someone else for a lower price?
24 A. Not after they didn't make the house the way we
25 wanted it, put carpet in it.
65
1 Q. Ms. Miller, I just wanted to know whether or
2 not you're going -- if you're telling the jury is it
3 okay for Debo to sell the home to someone else. Is it
4 okay or not, according to you?
5 A. Because it wasn't the house we wanted anymore,
6 yes, it's okay, later on.
7 Q. Ms. Miller, I'd like to talk about the default
8 provision in this contract. Well, first of all, take
9 your time reading it. Is it different from this
10 contract and from this other contract you just told us
11 about?
12 A. I don't know for sure. I'd have to -- I can
13 guess it might be the same.
14 Q. Well, would you mind reading it to the jury?
15 A. No, I don't mind. "If buyer fails to comply
16 with this contract, buyer will be in default, and seller
17 may: A, enforce specific performance, seek other relief
18 as may be provided by law, or both; or B, terminate this
19 contract and receive the earnest money as liquidated
20 damages, thereby releasing both parties from the
21 contract. If seller fails to comply with this contract,
22 seller will be in default, and buyer may: A, enforce
23 specific performance, seek such other relief as may be
24 provided by law, or both; or B, terminate this contract
25 and receive the earnest money, thereby releasing both
66
1 parties from this contract."
2 Q. Now, having read that, do you have a better
3 recollection of whether that's the same in this contract
4 as well as in the other one?
5 A. I'll say it's the same.
6 Q. Okay. You understand that if Debo's found to
7 be in breach or you're found to be in breach, the
8 breaching party has to forfeit the earnest money,
9 correct?
10 A. Yes.
11 Q. And how much was the earnest money?
12 A. $1,000.
13 Q. We touched upon this topic a little bit, but I
14 think it would be helpful if you wouldn't mind reading
15 Section F to the jury.
16 A. "Completion of repairs, treatments and
17 improvements. Unless otherwise agreed in writing,
18 seller shall complete all agreed repairs, treatments and
19 improvements," parentheses work, "prior to the closing
20 date. All required permits must be obtained and work
21 must be performed by persons who are licensed or
22 otherwise authorized by law to provide such work. At
23 buyer's election, any transferable warranties received
24 by seller with respect to the work will be transferred
25 to buyer at buyer's expense. If seller fails to
67
1 complete any agreed work prior to the closing date,
2 buyer may exercise remedies under Paragraph 15 or extend
3 the closing date up to 15 days, if necessary, for seller
4 to complete work."
5 Q. Do you recall if this section is the same in
6 this contract as well as this other contract?
7 A. I don't recall exactly, but it may be.
8 THE COURT: Ladies and gentlemen of the
9 jury, let's go ahead and take our morning break at this
10 time. If you would please be back in the jury room at
11 10:45.
12 (Jury out)
13 THE COURT: Counsel, see y'all back at
14 10:45.
15 (Short break)
16 (Jury in)
17 THE COURT: Be seated. You may continue.
18 MR. MARTINEZ: Thank you, Judge.
19 Q. (BY MR. MARTINEZ) Ms. Miller, before we took a
20 break, I believe we were talking about Section F, about
21 completion of repairs, treatments and improvements. I
22 believe you just read that section to the jury, then we
23 took a break. And do you recall whether or not that
24 section is the same in this contract as well as the
25 other contract?
68
1 A. I believe it's probably the same.
2 Q. So, then Debo was allowed to repair any
3 problems before closing?
4 A. Yes. It says they shall complete the problems.
5
6 Q. Correct. Now, Ms. Miller, earlier today you
7 testified that there's a three-tiered payment structure?
8 A. Yes, it was three phases, three phases,
9 three-tier payments, that was written down in -- that
10 Kris wrote up for us in the contract, yes.
11 Q. Ms. Miller, do you ever remember testifying
12 differently about that?
13 A. About the three different --
14 Q. About how the payment structure works?
15 A. No. We first went for financing. We didn't
16 get it. And when we couldn't get the financing, we went
17 back and --
18 MR. MARTINEZ: I object as nonresponsive.
19 Q. (BY MR. MARTINEZ) My question was just whether
20 you remember testifying differently, yes or no.
21 A. Can you rephrase the question then?
22 Q. Sure. My question was: First, you testified
23 earlier today that -- and yesterday that there was a
24 three-tier payment structure.
25 A. Yes, I did.
69
1 Q. Now, do you ever remember testifying
2 differently about how that structure was set up?
3 A. I don't recall.
4 Q. Do you recall that on May 8th, 2014, we took
5 your deposition in your lawyer's former office?
6 A. Yes.
7 Q. Do you remember me asking you how the second
8 payment was going to be?
9 A. Yes, I remember that.
10 Q. And what was your response?
11 A. I believe I said we were set to pay at the time
12 of drywall.
13 MR. MARTINEZ: Judge, at this point, I'd
14 like to show her deposition excerpt, and it does
15 contradict that testimony.
16 THE COURT: You may.
17 Q. (BY MR. MARTINEZ) Ms. Miller, the question was:
18 "So, when was the second payment supposed to be?"
19 Your answer: "I'm not sure."
20 So, why did you just tell the ladies and
21 gentlemen of the jury that you told me in your
22 deposition about the payment structure?
23 A. Well, I knew we had an agreement about payment
24 structure. We had talked about how much to pay and how
25 much I was going to pay in which phases.
70
1 Q. Ms. Miller, did you not understand the question
2 when I asked it on May 8th?
3 A. I did.
4 Q. Then why did you not tell me about how the
5 payment structure was supposed to work?
6 A. I'm not sure.
7 Q. You're not sure?
8 A. No.
9 MR. CROCKETT: Judge, we would just object
10 as far as mischaracterizing. If we can get some time
11 context about the question, was he asking when during
12 the exact time period was the second payment supposed to
13 be made, or this is when the contract says? I can clear
14 it up on the other side, but here he's actually saying
15 when during the construction.
16 MR. MARTINEZ: That's not what it says. I
17 asked her if she understood the question. She said yes.
18 MR. CROCKETT: All right. We'll clear it
19 up.
20 THE COURT: Overrule the objection.
21 Q. (BY MR. MARTINEZ) So, Ms. Miller, why are you
22 giving the jury different testimony?
23 A. I don't believe I am.
24 Q. Well, you testified back then that you didn't
25 know the payment structure. You testified yesterday and
71
1 today that you knew the payment structure. Then you
2 just told the jury that that's really not what you said
3 in your deposition. So, are you not being truthful?
4 A. I am being truthful.
5 Q. Well, maybe it's just the fact that your
6 lawyer's been telling you what to say at trial?
7 A. That's not true. I'm not sure if on that --
8 during the deposition, they were asking me for a
9 specific date, and I might have thought you were asking
10 me for a specific date, because there was no specific
11 date set up.
12 Q. So, now you're telling me that you were
13 confused about that question, based on what your lawyer
14 just objected to?
15 A. You were asking an awful lot of questions.
16 MR. CROCKETT: We object to the --
17 MR. MARTINEZ: She's changing her
18 testimony based upon what he just said to the Court.
19 THE COURT: Overruled.
20 Q. (BY MR. MARTINEZ) You just heard your lawyer
21 say that you may have been confused and you may not have
22 understood that question. You heard him say that?
23 A. Yes.
24 Q. And you heard me ask you whether or not you
25 understood that question, and you said yes, right?
72
1 A. Yes.
2 Q. Now, you're telling me that, well, maybe that
3 question meant something else. Didn't you just say
4 that?
5 A. It depends what it was -- what the prior
6 questions were in reference to.
7 Q. Isn't that what your lawyer just said? Is it?
8 A. It is.
9 MR. MARTINEZ: I object to side-bar,
10 Judge.
11 THE COURT: Overruled.
12 Q. (BY MR. MARTINEZ) Now, Ms. Miller, on May 21st,
13 2013, you told them in an e-mail what repairs they
14 needed to make?
15 A. Yes.
16 Q. Let's go ahead and get that e-mail. Ms. Miller
17 is that indeed the e-mail you sent Debo on May 21st, or
18 a portion of it?
19 A. That's part of it, yes.
20 Q. And that's the rest of it, correct?
21 A. Yes, yes.
22 Q. Now, in that e-mail, you specifically pointed
23 out what repairs you wanted Debo to make?
24 A. Yes.
25 Q. And you told Debo that you wouldn't give them
73
1 anymore money before they made those repairs?
2 A. Those, and then I wrote, "The above are a quick
3 list and may not include all of the problems.
4 Therefore, we will not be limited to these lists." And
5 it's right there in that paragraph below, right in
6 the --
7 MR. MARTINEZ: I'll object as
8 nonresponsive.
9 Q. (BY MR. MARTINEZ) My question was, yes, whether
10 or not you said once you make these repairs, you'll
11 submit more funds?
12 A. No, that's not.
13 Q. That's not what it says?
14 A. No, there's more.
15 Q. Okay. I agree, but I'm just asking you whether
16 or not you told Debo that once they make the repairs in
17 those lists, along with other repairs, then you would
18 submit more funds?
19 A. On this note, there's more.
20 Q. More repairs?
21 A. Well, it depends -- we have to check to make
22 sure everything -- that it's done.
23 Q. Because it says here you will not be limited to
24 those lists, right?
25 A. Yes.
74
1 Q. That's what you mean?
2 A. Yes.
3 Q. Okay. I'm just getting at, once those repairs
4 are made, whatever repairs are made, you agreed to give
5 Debo the second payment?
6 A. Not those repairs. It has to be -- the house
7 has to be done and checked, and then we would agree.
8 Q. So, now the house has to be completely done
9 before you give another payment?
10 A. I didn't say completely done.
11 Q. Ms. Miller, I just want to know when would you
12 be submitting the second payment?
13 A. Just prior to drywall, just as the drywall was
14 ready to go in.
15 Q. And once repairs were made?
16 A. Yes.
17 Q. Okay. But the very next day, May 22nd --
18 A. Yes.
19 Q. -- your lawyer told Debo to cease construction
20 completely.
21 A. Yes.
22 Q. How can they make repairs if they're not
23 working?
24 A. They weren't working -- they weren't making
25 repairs all along.
75
1 Q. No, my question is: If you tell them to stop
2 working completely, how are they supposed to go in the
3 house and make the repairs?
4 A. We needed to get an inspection.
5 MR. MARTINEZ: Objection, nonresponsive.
6 THE COURT: Overruled.
7 Q. (BY MR. MARTINEZ) Ms. Miller, your attorney
8 told Debo to stop working on May 22nd.
9 A. Yes.
10 Q. The day after you told Debo to make repairs.
11 A. Yes.
12 Q. When was Debo supposed to make those repairs,
13 then, if you told them to not do any more construction?
14 A. I don't know. The drywall had already gone in.
15 Q. Well, isn't that a little contrasting? On one
16 hand, you're asking Debo to make repairs immediately,
17 and you'll pay them. Now, on the other hand, your
18 lawyer's telling them to stop, don't do anything.
19 A. I agree it is contrasting, because they weren't
20 supposed to get put the drywall in until they got paid
21 to put the drywall in.
22 Q. I'm still getting mixed signals. Which is it,
23 repair and go on, or stop?
24 A. They were already past the point that they were
25 supposed to be --
76
1 Q. I'm sorry.
2 A. -- so we had to tell them to stop.
3 Q. So, you're saying that one day difference is
4 what matters? That on May 21st, you're saying repair
5 it, but on May 22nd, they were past the deadline to make
6 repairs?
7 A. They wouldn't listen to me, so I had to involve
8 an attorney.
9 Q. Over the span of -- so, you sent your e-mail,
10 let's see, 5:38 p.m., May 22nd, correct?
11 A. Yes.
12 Q. And your lawyer sent his e-mail the very next
13 day, May 22nd, 1:38 p.m.?
14 A. Yes.
15 Q. So, you went out and found a lawyer within less
16 than 24 hours; yes or no?
17 A. Yes.
18 Q. Ms. Miller, I still am confused, because at
19 5:00 p.m. on May 21st, you told Debo, "Y'all make these
20 repairs, then we'll continue on our relationship,"
21 correct?
22 A. Yes.
23 Q. Well, what happened between 5:00 p.m., may 21st
24 and 1:38 p.m., May 22nd?
25 A. Kris pressed us for $59,300.
77
1 Q. How did he do that?
2 A. By contacting us directly and that -- there was
3 no indication he was going to make the repairs. He told
4 us, "We'll make some of the repairs, but we won't make
5 all of them."
6 Q. This all happened between 5:00 p.m., May 21st
7 and 1:38 p.m., May 22nd? That's all I'm asking about.
8 A. Well, I don't know if it all happened that
9 evening, but we were contacted that evening, asked for
10 the money.
11 Q. So, one thing that happened to shatter your
12 confidence between 5:00 p.m., May 21st and 1:38 p.m.,
13 may 22nd, was one phone call from Kris?
14 A. I don't know if it was just one phone call.
15 Q. What else was it?
16 A. Our confidence -- I don't know, but he
17 continued to ask for the money, when we asked for them
18 to stop continuation and start making repairs, and they
19 continued with the process -- with the building, they
20 continued moving on with the building instead of going
21 -- fixing problems that had already occurred.
22 Q. Ms. Miller, I'm just asking about between 5:00
23 p.m., May 21st and 1:38 p.m., May 22nd. So, you're
24 saying all that happened between that span of time?
25 Because a lot happened. You went and got an attorney
78
1 and told Debo to stop working. I just want to figure
2 out what made that switch. What changed? That one
3 phone call from Kris?
4 A. I don't know if it was just one phone call. I
5 just know, rather than take our continued problems and
6 continue asking for them to fix the problems seriously,
7 they just wanted us to pay.
8 Q. Ms. Miller, you testified earlier today that
9 Kris texted you a demand for payment.
10 A. Yes.
11 Q. Well, let's look at those text messages. Now,
12 I would like to go through all these, because I think it
13 establishes what relationship you had with Kris. Would
14 you agree?
15 A. Sure.
16 Q. Would you mind reading the first one from April
17 17th, 3:37 p.m.?
18 A. Sure. "Kris, was thinking about cabinets. We
19 didn't choose them, prefer cherry versus maple or
20 walnut, et cetera. I know you said they would be the
21 same as the home we were in, but what about the
22 bathrooms, laundry room, et cetera? We prefer natural
23 wood, same as kitchen, not painted wood. Thanks, Lori &
24 Ellie."
25 Q. How about that response from Kris? What did it
79
1 say?
2 A. He says, "I have to put some type of finish on
3 them."
4 Q. And y'all's response?
5 A. And I wrote, "Yes, was referencing the cherry
6 cabinets in the kitchen we saw versus paint."
7 Q. And you clarified?
8 A. And "My misuse of the word 'natural,' my
9 meaning is didn't want painted. We like cherry wood.
10 Sorry if it was confusing to you, Lori."
11 Q. Then Kris responded?
12 A. "Okay. Light or dark?" And "I think dark
13 prettier. Your thoughts?" "Walnut Creek home has dark,
14 doesn't it?" And he wrote, "Medium. Dark is real
15 nice." "Dark would be good then, nice contrast for the
16 light granite, too. Thank you so much."
17 Q. So, it seems at this point y'all talked about
18 some specific things you wanted in the home right?
19 A. Yes.
20 Q. And Kris said, you know, we'll stain it however
21 you want it, right?
22 A. Yes.
23 Q. Okay. Let's move on to the next one there at
24 the top of the page.
25 A. I wrote, "Good morning, Kris. Wanted to make
80
1 sure my mom got things right with you yesterday. The
2 bathrooms are going to have to cherry cabinets with
3 granite tops too, right?" From Ellie.
4 He wrote, "No. Just the kitchen will have
5 cherry but it will have granite."
6 So, then we wrote, "What color in the
7 bathrooms? Can you please call me because I'm driving?"
8 Q. And what did y'all discuss, or was there a
9 phone call after that?
10 A. I have to suppose so, because the next text
11 isn't for a few days.
12 Q. Do you recall what y'all talked about on the
13 18th?
14 A. I'm going to just figure we talked about colors
15 and stuff.
16 Q. Okay. How about that one?
17 A. "Thanks for lunch. Have you found out the
18 dimensions for the fridge space? Was wondering what
19 kind of height there was for washer and dryer."
20 He says, "Just go buy it and send me
21 dimensions, and we will build around it."
22 "Very cool, thanks."
23 Q. So, y'all went to lunch?
24 A. We did.
25 Q. So, Kris took y'all to lunch, and y'all had a
81
1 pleasant afternoon, I guess?
2 A. It was.
3 Q. How does it -- go on right here. What's that
4 read?
5 A. "Washer and dryer, stacking washer is 27 width
6 by."
7 Then he wrote, "They won't fit." So,
8 okay, then we rewrote it.
9 Q. You just clarified the dimensions?
10 A. Yes.
11 Q. Is it fair to say that these text messages were
12 either from you or your daughter?
13 A. Yes. Depending on who was driving at the time,
14 the opposite person was texting. We don't text and
15 drive.
16 Q. Well, very good, but these are both your
17 representations, correct?
18 A. Yes.
19 Q. Okay. How about that text message?
20 A. The one at the top?
21 Q. Yes, ma'am.
22 A. He says, "Just buy them and bring them to me or
23 have them delivered to my main office" on F.M. 2977.
24 Q. And y'all are talking about the washer and
25 dryers?
82
1 A. I believe it was just all the appliances,
2 actually. It was just going to be all the appliances
3 delivered to the house.
4 Q. Okay. How about the next one?
5 A. Okay. "Don't want them delivered" -- and he
6 says, "Free delivery included."
7 And he wrote, "What?"
8 "We are on our way."
9 "Okay, I'm not there. Open the gate and
10 get them."
11 "Okay. Are you at the office? We have
12 the ceiling fans."
13 "Just leave them at my main office."
14 "Okay."
15 "Thanks for the boxes, left fans at your
16 office."
17 "Okay."
18 "Did you remember to mark them
19 accordingly?"
20 "Yes, with the name, address and room."
21 "Okay."
22 Q. Okay. So, you bought some fans, and you took
23 them to Debo's office?
24 A. Yes.
25 Q. And you paid for those out of your own pocket?
83
1 A. We did.
2 Q. And Debo installed them in the house?
3 A. Evidently, they did, from what we could see.
4 Q. Those are those specific fans you wanted,
5 right? You chose the model, the style?
6 A. We bought them. Well, we bought two of the
7 three. One was a gift from my dad.
8 Q. But those are fans you wanted in the house?
9 A. Yes.
10 Q. Okay. Let's start back up here.
11 A. "Good morning, sorry we missed your call
12 earlier."
13 "Kris, didn't get pic."
14 "What's your e-mail?"
15 "Got it this time."
16 "Oh, got the one we picked?"
17 "Well, they were sent at the same time, so
18 it will show up."
19 "Got it. Looks nice, tricolor."
20 "Okay. I'll order it then."
21 "Thanks."
22 "Do you have an e-mail I can send pics to?
23 Too much for my phone to send. Thanks."
24 "Will you meet me at the house this
25 morning?"
84
1 Q. Real quick, before we move on, what were y'all
2 talking about? Pictures there, that you mentioned
3 sending the picture and tricolor, what were y'all
4 talking about?
5 A. Roof colors.
6 Q. And y'all chose a gray roof, I believe?
7 A. No.
8 Q. What color was it?
9 A. The original roof color that we chose was like
10 kind of a medium to dark brown. It was like a tricolor.
11 Q. So, you're saying that that's the color you
12 wanted on the home, was sort of a brown color?
13 A. Yeah, it was sort of a brown, a medium to dark
14 brown, the original roof color that we chose.
15 Q. Okay. Then we get in some texts about the
16 inspection. Mind reading this?
17 A. Sure. "Good morning. Please let us know when
18 they man to put in the sheetrock and insulation. Our
19 inspector, Mr. Knueppel, needs to go through the house
20 again before it is installed. Thanks."
21 Kris wrote, "Okay. Tell him to be there
22 Monday."
23 "Okay. Thanks, I will."
24 "Mr. Knueppel would like to see the house
25 after insulation and before the sheetrock. When do you
85
1 think that will be? Still Monday? Appreciate you
2 working with us on this."
3 "He has until Monday to complete his part
4 because we're sheetrocking Tuesday."
5 "Okay. Thanks so much."
6 Q. Would you mind going on?
7 A. "No worries." "Happy Mother's Day."
8 "Thanks, appreciate the wishes."
9 "Do you know if they got the insulation
10 completed yet? Thanks."
11 "All I was told that they started between
12 2:00 and 3:00, and that's it. I know they will finish
13 today, but not a time of completion."
14 "Okay. Thanks for info. Have a good
15 evening."
16 Q. Okay. Here's another set of text messages.
17 So, there's one from your daughter's phone and one from
18 your phone?
19 A. Um--
20 Q. Because these start --
21 A. I suppose so.
22 Q. Okay. So, let's go ahead and go down each of
23 them.
24 A. Okay. "The back door with the window will not
25 fit our dog door. The space is only three feet. We
86
1 need three feet, eight inches. We would like a door
2 without a window."
3 "Noticed the hot water heater was
4 installed. I never got a price for a tankless hot water
5 heater" -- "tankless water heater. Please let me know
6 why."
7 "Good morning. Did you get my message
8 about the water heater? The difference is $900."
9 "Thanks for the quote. I'm thinking it
10 through. I've decided against the tankless water
11 heater. Since the hot water heater is already
12 installed, we will need floored access to the water
13 heater. Thanks again."
14 "Don't worry about the other water heater.
15 That was my bosses fault. We can put in the tankless
16 water heater. He apologized for the mistake."
17 "It's okay to leave the hot water heater.
18 Because of this heater's location, I would prefer to
19 have the attic floored for easier access. Thanks."
20 "Okay."
21 Q. Okay. Let's go on.
22 A. "Please let me know when the insulation is
23 completed. I would like to come out to the house
24 tonight."
25 "They will start at 2:00 and will be
87
1 finished today," 5/13.
2 "Thanks."
3 "No worries."
4 "Talked about the garage being climate
5 controlled. Noticed there wasn't insulation in the
6 garage. What can we do to fix it?"
7 "Garage has to be insulated. How much
8 would it cost?"
9 "I'll ask and tell you tomorrow."
10 "Thanks."
11 "Have you found out how much it will cost
12 to install insulation?"
13 "Waiting on a call back from the owner."
14 "$400."
15 "Okay. And this price includes attic over
16 garage, too?"
17 "I'm sorry, I thought you just wanted
18 ceiling done, but you want all the walls, it will be
19 $800."
20 "That seems high. Going to check some
21 prices. We'll get back with you."
22 "Well, they're going to sheetrock the
23 house tomorrow. The reason it's a little high because
24 they have to go back to the house. It would have been
25 cheaper were if it" -- something.
88
1 Q. I think it continues on.
2 A. Oh, sorry. "If it had been scheduled a week
3 prior." He says, "Can you please call me because they
4 are showing up today and not tomorrow to sheetrock the
5 house. My boss said he'll knock off a hundred dollars
6 if you want to do it."
7 Q. And that's all the text messages, correct?
8 A. Yes.
9 Q. Well, where in that does it say Kris is
10 demanding payment from you?
11 A. He called us.
12 Q. No, you just said to this jury that he texted
13 you.
14 A. I said he contacted us.
15 Q. Your testimony on that record says that he
16 texted you a demand for payment. Is that not true?
17 A. He did contact us. He contacted us. I know he
18 called us with demand for payment. He contacted us.
19 Q. But he didn't text you; yes or no?
20 A. I don't see it there.
21 Q. Now, Ms. Miller, before you retired, you were
22 an accountant?
23 A. Not a CPA.
24 Q. Have you had any formal training in
25 construction?
89
1 A. No.
2 Q. Have you ever been taught how to identify
3 construction defects?
4 A. No.
5 Q. So, you admitted that a lot of these
6 construction issues are simply beyond your expertise?
7 A. I just know things didn't look right. That's
8 why I hired an inspector.
9 Q. And reviewing the construction of a new home,
10 that's something new to you, right?
11 A. Not brand new.
12 Q. I think you said you had a home built for you
13 up in Ohio a few years ago?
14 A. Yeah. Back in the Eighties, yes.
15 Q. But it's not an everyday or common occurrence
16 for you to participate in the home building process?
17 A. That's true.
18 Q. Now, during the contract negotiations, whether
19 we're talking about the first contract or the second
20 contract, you only spoke to Kris?
21 A. Yes.
22 Q. And yesterday and today, I believe you said
23 that you only met with Kris twice?
24 A. That's not -- no. What I said was we met twice
25 to sign the original contract.
90
1 Q. What's the rest of that story?
2 A. Well, we met with him many more times, whether
3 it was to pick colors or to pick granite tops or look at
4 problems, or even just for lunch. We met many, many
5 times. I can't count how many.
6 Q. So, probably more than a dozen?
7 A. That's possible.
8 Q. And it took, you know, about a dozen times or
9 more or less to finally decide on a contract that you
10 were happy with, right?
11 A. No, not to decide on a contract, to make all
12 those choices. There's many choices to make in a home,
13 whether you want this color of paint on the walls or
14 that -- that kind of facade, whether you want the hip to
15 go this way or that way. There's just so many choices.
16 So, you meet with your builder or your representative of
17 the builder to make those choices, and he invites you to
18 do that as many times as you need.
19 Q. That's fair. You had a lot of questions, you
20 asked questions from A to Z?
21 A. Yes.
22 Q. Because you wanted to be personally comfortable
23 with what you were signing?
24 A. And he did that at the first -- those two
25 meetings, those first two meetings.
91
1 Q. So, the first two meetings were different from
2 the other meetings that happened after?
3 A. Well, those first two meetings had to do with
4 just the initial contract.
5 Q. Now, you weren't rushed into signing either the
6 contract we've seen in Exhibit 1 or this other contract
7 that we learned about today?
8 A. I -- I felt a little bit almost -- because, I,
9 mean, he wanted to get go. He just kept saying, "We can
10 get you a great house." I wanted to get the financing.
11 We couldn't get the financing because I'm on a fixed
12 income, and my daughter is commission only. So, with
13 the new financing laws, they wouldn't approve us. They
14 knocked us out from the get-go. And we've got a great
15 credit score, but that doesn't matter anymore. So, at
16 that point, we sat down and talked about it, and he knew
17 that I had this money put away for all these years, and
18 he said, "Oh, no, we can work out -- we can work this
19 out. We sell all these homes." And I did feel
20 pressured into buying right away with this three-tiered,
21 three-phase program.
22 Q. Do you ever remember testifying differently?
23 A. I may have. I might not have remembered then.
24 Q. As I mentioned before, the deposition, May 8th,
25 correct?
92
1 A. Yes.
2 Q. Do you remember I asked you, "Were you rushed
3 into signing it at all, you know, coerced into signing
4 this at all?" Your answer was no. You disagree with
5 that?
6 A. I was not rushed into signing the financing
7 contract.
8 Q. So, it was different from the other contract?
9 A. Well, that one moved quite quicker. That one
10 seemed to -- in my recollection, it moved a little
11 quicker.
12 Q. And you also said that you signed the finance
13 contract?
14 A. Yes.
15 Q. Freely and openly?
16 A. Yes.
17 Q. Different for the cash one?
18 A. Well, I signed that freely, but he answered --
19 he had all the right answers. We were getting exactly
20 what was in the model, we were getting the exact AC
21 unit, exact cabinets. Everything was exact.
22 Q. Well, you testified before that you had Stan,
23 your friend, who was also a realtor?
24 A. Yes.
25 Q. He read over the financing contract, we'll call
93
1 it, completely, right?
2 A. Yes.
3 Q. Did he do the same with the other contract?
4 A. No, he wasn't there with us.
5 Q. Now, you've alleged that Kris made numerous
6 representations to you during the contract negotiations
7 and after the contract was signed?
8 A. Yes.
9 Q. Whether it be the financing contract or the
10 cash one?
11 A. Yes.
12 Q. And Kris promised you, you said, that he'd give
13 you a house you'd be comfortable with?
14 A. Yes.
15 Q. He said Debo would fix what needed to be fixed?
16 A. He said we'd fix everything.
17 Q. Kris promised that the home was 100 percent
18 guaranteed; that's according to your testimony?
19 A. Yes.
20 Q. And you've previously testified that that was
21 it, that's all he said to you as far as representations
22 and warranties, correct?
23 A. I may have. I'm not sure.
24 Q. Those, I think, four things I just said?
25 A. Okay.
94
1 Q. That's all you told me before. But now you're
2 telling us about a lot more representations here in this
3 courtroom today, correct?
4 A. You're asking more questions, different
5 questions.
6 Q. No. The question is what representations and
7 warranties did Debo make to you? Now, I asked you that
8 question in your deposition. Do you remember?
9 A. Yes.
10 Q. And you responded he said -- you said that Kris
11 said he represented that you'd get a home that you'd be
12 100 percent guaranteed, personally satisfied,
13 comfortable with, that he'd fix what needed to be fixed,
14 and that's it. those are the only representations you
15 identified, right?
16 A. Okay.
17 Q. Well, then why are we having these new
18 representations brought up in court today? Why didn't
19 you tell me back then?
20 A. You didn't ask to identify what -- what 100
21 percent completely satisfied means.
22 Q. Well, that's not what I'm getting at. I want
23 to know what Kris said to you. However you interpret
24 it, that's not what I'm asking. That's up to you. I
25 just want to know what Kris said.
95
1 A. He said they would have high quality. He said
2 that they would have high-quality work. He told us that
3 they would have supervised -- that there would be
4 supervised -- they would be supervised while they're
5 there, and he explained that there would be inspections,
6 building inspections along the way, and he told us if
7 there was any problems, they'd be fixed before the next
8 phase. That's what he told us.
9 Q. And those are warranties?
10 A. Yes.
11 Q. Well, do you ever remember testifying
12 differently?
13 A. I may have.
14 Q. And why is that?
15 A. Because I couldn't recall at that time. I was
16 asked a lot of questions.
17 Q. Well, it's a little inconvenient that I took
18 your deposition for almost six hours, and I expected to
19 get the full truth about all the facts in this case. I
20 come here today, it's August 20th, and I get a different
21 answer. Is that fair?
22 A. I don't think it's a different answer. It's
23 what I recall.
24 Q. So, your memory's gotten better in May to
25 August, even though all the events happened spring of
96
1 '13?
2 A. Actually, yes, because I was going through
3 menopause, and I'm taking black cohosh. It helps.
4 Q. Ms. Miller, how can you expect Debo to prepare
5 a defense if they really don't know what's coming?
6 A. I don't know. I'm not a lawyer.
7 Q. I'm trying my best.
8 THE COURT: Counsel, we don't need any
9 side-bar remarks.
10 MR. MARTINEZ: Yes, Judge.
11 Q. (BY MR. MARTINEZ) Now, did Debo fix all things
12 that you wanted them to fix before June 3rd?
13 A. All things?
14 Q. Correct.
15 A. No.
16 Q. How do you know that?
17 A. Because when we walked around the property, we
18 could see there were still things that weren't right.
19 We walked around the property prior to inspection, and
20 there was still a couple of things that were still --
21 that didn't look exactly right from -- we didn't go
22 inside, because the building was -- you know, the house
23 was closed. And this was in July. But there were still
24 a couple of things that didn't look right to us.
25 Q. Okay. So, you walked around the house in July?
97
1 A. Yes.
2 Q. Do you recall a better date?
3 A. No. It was just prior to when would he thought
4 our building inspector or building expert was going to
5 be getting out there.
6 Q. Well, you were there in July. When was the
7 time that you were there previously to that? When was
8 the last time?
9 A. End of May, after the 22nd.
10 Q. Because that's when your lawyer sent the e-mail
11 telling Debo to stop?
12 A. Possibly. No -- I don't -- I don't believe so.
13 I'm not sure.
14 Q. So, you don't know when the last time you were
15 at the home before the time you were there in July?
16 A. Not really, no.
17 Q. Well, if your lawyer told them to stop, told
18 Debo to stop working on May 22nd, how do you know they
19 didn't stop working?
20 A. I had been out there in the beginning of June.
21 We -- and they continued. I apologize.
22 Q. So, you were there in June?
23 A. Yes.
24 Q. Can you give me a better date?
25 A. No. I really can't give you an exact date.
98
1 Q. Well, what did you see when you went there in
2 June?
3 A. They were continuing construction.
4 Q. Well, that date is sort of important, Ms.
5 Miller, because there will be testimony in this case
6 about when construction restarted.
7 A. It was -- I believe they -- they may have
8 stopped for a couple of weeks, maybe two weeks, and then
9 they continued again.
10 Q. Do you remember testifying differently?
11 A. I don't recall.
12 Q. Well, earlier today you said that Debo did not
13 stop construction.
14 A. Okay.
15 Q. Now, you're saying they did stop construction.
16 Isn't that what was said?
17 A. Yes.
18 Q. So, you hired this Mr. Harold Knueppel,
19 correct?
20 A. Yes.
21 Q. Because you wanted a different point of view
22 about how things were going?
23 A. Yes.
24 Q. If you wouldn't mind just letting me finish the
25 whole question, then answer.
99
1 A. (Nodding.)
2 Q. So, you just wanted an additional point of view
3 on how construction was going?
4 A. Yes.
5 Q. In fact, you wanted another point of view
6 outside of Mr. Knueppel, didn't you?
7 A. Well, I wanted Mr. Knueppel, because I saw
8 things that weren't right, and I'm not an expert. And I
9 thought, well, if it doesn't look right to me, I need
10 somebody who may be not an expert but an inspector to
11 say -- to verify what I'm seeing and tell me that what
12 I'm seeing is actually right or wrong.
13 Q. Ms. Miller, my question is a little different.
14 A. Yes.
15 Q. I was asking whether or not you wanted another
16 point of view besides Mr. Knueppel's?
17 A. Yes.
18 Q. Another inspector?
19 A. Yes. We -- after Mr. Knueppel's inspections
20 were done, we wanted a building expert to come in and
21 take a look, who actually is -- knows all about
22 construction and soundness and all that.
23 Q. Well, isn't it true that you wanted another
24 point of view because you didn't agree with Mr. Knueppel
25 about everything?
100
1 A. No. I don't think you can -- I liked what Mr.
2 Knueppel said about everything. He brought things to my
3 attention that I would have never seen, because he -- he
4 saw -- he saw things that were a revelation to me. And
5 I liked what he said. I don't -- I just know he -- even
6 what he even told me, what he can do is limited. He has
7 limitations on his expertise, and then we just felt we
8 needed somebody else to go a step further.
9 Q. Well, Ms. Miller, isn't it just true that you
10 wanted someone to agree with all your opinions about the
11 construction?
12 A. No. I like diverse opinions. I like to hear
13 from different people to know what's going on. That's
14 why I brought in Mr. Knueppel in the first place,
15 because I sure didn't know what was going on and whether
16 -- whether it was right or wrong. That's why I invited
17 Kris to come to the inspections, so Kris could see and
18 know what we were get -- looking at and whether it could
19 be fixed, whether -- what needed to be fixed. And Kris
20 got the reports from Mr. Knueppel, and I wanted
21 everybody involved. I wanted everybody's input, not --
22 not just mine. I knew mine was the lowest lay person
23 that there was.
24 Q. Debo never restricted your access to the
25 property, did they?
101
1 A. They did not. They restricted our
2 conversations with workers. We didn't --
3 MR. MARTINEZ: I'll object as
4 nonresponsive.
5 THE COURT: Sustained.
6 Q. (BY MR. MARTINEZ) Did Debo ever prevent you
7 from taking pictures of the home?
8 A. They did not.
9 Q. Did Debo ever tell you that you're not allowed
10 to have an inspector go in the home?
11 A. They did not.
12 Q. So, you were free to send an inspector to go
13 look at the home?
14 A. I didn't understand your question.
15 Q. You were free to send an inspector to go look
16 at the home, correct?
17 A. Yes, we could.
18 Q. Was Mr. Knueppel ever restricted during his
19 inspection of the home?
20 A. No, he wasn't. He wasn't restricted.
21 Q. Did Debo ever protest or try and prevent Mr.
22 Knueppel from coming in and looking at the home?
23 A. I don't believe they did, no.
24 Q. Let's talk a little about your home choice,
25 about the specifics of your home. Now, you were free to
102
1 choose whatever type of home you wanted?
2 A. Well, within -- it had to be one of their
3 floorplans. It could be modified, not whatever -- I
4 mean, build a round home or something.
5 Q. It wasn't an A frame or something like that?
6 A. Yes.
7 Q. But you were free to pick and choose what type
8 of lights you wanted, what type of roof, all that?
9 A. Yes, as long as it fell within their -- with
10 their choices.
11 Q. Let's look at those choices, so we can get a
12 better idea of what you chose here. Is that the home
13 you chose?
14 A. Yes.
15 MR. MARTINEZ: That's Exhibit 33, for the
16 record.
17 Q. (BY MR. MARTINEZ) Why did you choose that home?
18 A. Because it looked low maintenance, and it just
19 -- just I didn't want to have a lot of maintenance with
20 painting or a lot of debris like in gutters or -- just
21 something simple that we could maintain ourselves.
22 Q. And we're talking about this one, right?
23 A. The top one, yes. The one that's circled.
24 Q. The one on top. Did Debo pressure you into
25 choosing that home?
103
1 A. No, no, we chose that. We liked the style.
2 Q. All right. What do we have here in this
3 picture?
4 A. The floorplan that we -- with a couple of
5 modifications.
6 Q. Some of those modifications, like you chose to
7 put a dome light in the breakfast room?
8 A. Yes.
9 Q. And you chose to increase the square footage?
10 That may not be in there, but --
11 A. No, I don't see that at all.
12 Q. But you did choose to increase the square
13 footage at one point?
14 A. It is -- it's out the back a little bit, and we
15 made the back porch a lot bigger.
16 Q. That area? (Indicating.)
17 A. Yes.
18 Q. You also chose to put a sink in the garage,
19 right?
20 A. Yes.
21 Q. That was so y'all could, I think, bathe your
22 dogs in the garage?
23 A. That would be a dog washing area.
24 Q. So, you wouldn't have to do them in your home?
25 A. Right, so I wouldn't have to drag them through
104
1 the house when they run around.
2 Q. Also, you wanted a window put there in the
3 garage?
4 A. Yes.
5 Q. Why was that?
6 A. Oh, so that we could put an AC unit in, so we
7 could climate control the garage for the dogs. We were
8 going to put individual kennels. In fact, we already
9 bought them. Put individual, like eight-by-eight
10 kennels. We were going to turn the garage into like
11 just a little dog run for them, so that -- so the dogs
12 could kind of stay out there. So, they were just going
13 to enjoy a lot of running room out there. I mean,
14 they're performance dogs. They've got a lot of energy.
15 Q. What type of dogs are they specifically?
16 A. We've got a couple of Schnauzers, a standard
17 poodle and a Welsh terrier.
18 Q. So, that would be their home, the garage?
19 A. Well, no. The land would be their home. The
20 whole home would be their home, but that's their
21 sleeping area, and their -- I guess their siesta area.
22 But it would be a lot nicer than just a little small box
23 that we have now in our current home.
24 Q. And that's why you went to Debo, because they
25 could do something like that for you?
105
1 A. Well, that's what they promised.
2 Q. You also wanted tile throughout the entire
3 home, correct?
4 A. Yes.
5 Q. And you were again allowed to choose these
6 things on your own free will?
7 A. Yes.
8 Q. You also made a complaint that the square
9 footage of the home was actually short?
10 A. Yes.
11 Q. Well, what happened there?
12 A. Nothing.
13 Q. Are you alleging that Debo gave you a home or
14 was constructing a home with less square footage than
15 you agreed to?
16 A. We questioned it. We never heard whether it
17 was or wasn't. We just asked a question, but we thought
18 it was.
19 Q. Well, do we know if it's correct or not?
20 A. I don't know. We weren't allowed back in the
21 house. We had a no-trespassing order against us.
22 Q. I'm talking about up until May 22nd. When did
23 you believe that the square footage was incorrect?
24 A. When we saw that brick wall that was at the
25 edge of the foundation and then the actual frame of the
106
1 house was inches in.
2 Q. So, that's the only part that was cut off?
3 A. Around the whole house.
4 Q. You mean the brick wall around the entire
5 house?
6 A. The frame is inches in. The frame is inches in
7 from the foundation, then they made the wall to the edge
8 of the foundation. So, we just questioned whether --
9 why there's this big gap between the wall, the brick
10 wall and the frame. And so if you're three-plus inches
11 in, that means you must be losing square footage inside
12 the home. We just questioned it. We just wanted these
13 questions answered.
14 Q. Well, isn't it true that that's common in
15 construction, where you put the brick on the edge of the
16 foundation?
17 A. I don't know. I'm not -- yes, but it usually
18 is attached to the frame. There's not a gap of a fist
19 or so -- (indicating) -- from what I've noticed. I'm
20 not a construction expert.
21 Q. Now, you agree that after you told Debo about
22 the issues they needed to repair in the home, that they
23 could have repaired them?
24 A. Yes, they could have.
25 Q. And you told Kris about these concerns and
107
1 problems?
2 A. Yes. Yes, we did.
3 Q. And Debo did, indeed, repair them, didn't they?
4 A. They repaired some. I don't believe they
5 repaired all of them.
6 Q. You don't believe they repaired all of them, or
7 do you know they didn't repair all of them?
8 A. Well, I can't know, because they drywalled it.
9 Q. So, you're saying that there are hidden things
10 behind that drywall?
11 A. There may be. I don't know. They drywalled
12 it.
13 Q. Ms. Miller, you understood that when you
14 brought these concerns to Debo, the home was still under
15 construction?
16 A. Yes.
17 Q. And you understood that Debo still had work to
18 do?
19 A. Yes.
20 Q. You understand that they're not saying that the
21 home was done and not capable of being fixed?
22 A. I do.
23 Q. And according to the contract, I believe either
24 one, Debo is allowed to take until June 3rd to make
25 those repairs?
108
1 A. Yes.
2 Q. And you have no evidence or opinion on whether
3 or not there is any defect in that home today?
4 A. Today, like right today?
5 Q. Right, today, any day after.
6 A. Well, we weren't allowed to bring our home
7 inspector in. It was drywalled over, so I can't know.
8 Q. So, you can't know. You're not telling the
9 jury that you know there's a defect in the home?
10 A. No. We weren't -- we weren't allowed to -- I
11 can only tell you what we saw.
12 Q. Let's talk about that other inspector real
13 quick. Now, you said that you agreed with Debo to go
14 out there on a certain date?
15 A. Yes.
16 Q. And when was this supposed to be?
17 A. It was at the end of July.
18 Q. Okay. There's no e-mail showing that, is
19 there?
20 A. I had told Kris.
21 Q. There's no text message showing that you'd be
22 there on that date, is there?
23 A. I don't believe so.
24 Q. There's no letter showing that you would be
25 there on that date?
109
1 A. (Nodding.)
2 Q. Is that correct?
3 A. I didn't -- I don't believe so.
4 Q. Now, you wanted to stop all communications with
5 Debo around May 22nd because you felt harassed for
6 payment?
7 A. Yes.
8 Q. And how many times was that?
9 A. I don't know the exact number.
10 Q. Now, you weren't at the home site, or were you
11 at the home site every day after you signed the
12 contract?
13 A. Not every day, no. It was impossible to be
14 there every day. I was definitely there once or twice a
15 week.
16 Q. Do you know the superintendent's name?
17 A. No. It's -- no, but I know what he looks like.
18 Q. Do you know if he speaks English?
19 A. I don't believe he does. He may speak a little
20 English, but I know he speaks Spanish.
21 Q. Because earlier you testified that --
22 A. Yes.
23 Q. -- you couldn't talk to the superintendent and
24 the other workers on the home?
25 A. We weren't -- we were asked specifically not to
110
1 speak -- Kris asked us not to speak with them. It had
2 nothing to do with language barrier.
3 Q. Well, perhaps it was.
4 A. It wasn't.
5 Q. Now, you contend that Debo's not entitled to
6 take of $10,000 from your damages because they had to
7 sell the home to someone else. You're saying Debo
8 doesn't get those damages?
9 A. Well, they had an opportunity to pay us back
10 long before.
11 Q. I just want to know whether you think Debo is
12 entitled to receive $10,000 because they had to sell the
13 home at a smaller price to someone else?
14 A. But it wasn't the same house anymore. They
15 changed things. It wasn't all tile. They put carpet
16 in.
17 MR. MARTINEZ: Objection, nonresponsive.
18 THE COURT: Sustained.
19 Q. (BY MR. MARTINEZ) Ms. Miller, I'm just asking
20 you whether or not it's your opinion that Debo should be
21 refunded $10,000?
22 A. No.
23 Q. Even though, as we can see in the exhibit on
24 the screen, this was a custom home, correct?
25 A. Yeah. Yeah, it was -- it was customized for
111
1 us.
2 Q. There's also another page showing the other
3 features in the home, correct?
4 A. Yes.
5 Q. And it shows there you wanted a ceiling fan on
6 the patio?
7 A. Yes, we talked about putting a ceiling fan, an
8 outside ceiling fan out on that back patio to keep the
9 air moving, which we planned on using that a lot, and at
10 least having it -- and I believe we even bought the
11 outdoor ceiling fan. We bought the ceiling fan for it.
12 That was one of the three.
13 Q. What do we have here on this page?
14 A. That was the choices we made.
15 Q. What were some of those choices on that, on
16 this list?
17 A. Okay. For example, no carpet, black
18 appliances, bronze fixtures, patio lights, two doors for
19 the fence, an oval -- a half-oval front door, tile in
20 the bedrooms, and the choice of which tile and which
21 grout, the tankless water heater, that we wanted to get
22 the price for a tankless water heater, the Painted
23 Desert shingles and to get the self-cleaning oven price.
24 Q. When it says shingles and Painted Desert, are
25 we talking the roof?
112
1 A. Yes.
2 Q. That would have been what color?
3 A. That was like a medium to dark brown. We found
4 out later it was unavailable, that it had been
5 discontinued or something. So, we didn't get our
6 original choice.
7 Q. What did you end up choosing?
8 A. Something that Kris had sent us a picture of on
9 the computer.
10 Q. Can you tell us what color that was?
11 A. It was like a medium -- it was like a light
12 brown. It was nice. It would reflect the sun real
13 well, wouldn't make it too hot to run up your AC bill.
14 Q. You understand that Debo purchased the lot on
15 which this home sits?
16 A. I'm sorry?
17 Q. You understand that Debo purchased the lot on
18 which this home sits?
19 A. Yes, yes. They purchased it?
20 Q. Yes. You agree with that?
21 A. They purchased it from us?
22 Q. No, the lot, the vacant land for them to
23 develop.
24 A. Oh, yes.
25 Q. And you only paid them one payment of $60,300?
113
1 A. Correct, yes.
2 Q. And that payment essentially gets Debo through
3 the foundation work and the framing work, correct?
4 A. No. It gets the foundation, framing,
5 electrical, plumbing, all the way through the
6 insulation.
7 Q. But before drywall?
8 A. Before -- yeah, it stops at the drywall.
9 Q. So, if anything continues past that, Debo would
10 have to finance it out of their own pocket if you didn't
11 make another payment, correct?
12 A. I don't know. I thought it stops at drywall,
13 and then I pay them, and then they continue. I don't
14 really know. I don't know the construction business.
15 It's not my business. It wasn't --
16 Q. Did Debo --
17 A. I'm sorry.
18 Q. Were you finished? I'm sorry.
19 A. No, I'm done.
20 Q. And Debo themselves, they paid all the trades,
21 the framers, the foundation people, correct?
22 A. Yes.
23 Q. So, even though Debo made this home for you
24 with these custom choices, they had to finance the
25 project out of their own pocket, you still think that
114
1 entitles them to receive $10,000 in damages?
2 A. No, because they -- they wouldn't work with us.
3 They ignored all the pleadings and all the times we
4 wanted them to help us. They just kept snowballing
5 through, and they were not going to stop until it was
6 done. They were not -- they wouldn't listen to us.
7 They wouldn't look and see the broken beams. They
8 wouldn't -- they just wouldn't listen until we had to
9 get attorneys involved, and that was not something we
10 wanted to do.
11 THE COURT: Counsel, let's go ahead and
12 take our lunch break at this time.
13 Ladies and gentlemen of the jury, I'm
14 going to ask you to be back in the jury room at 1:30.
15 Remember the instructions I've given you: That is, do
16 not talk about this case with anyone, even amongst
17 yourselves while you're out at lunch. Have a good
18 lunch, and we'll see you back at 1:30.
19 (Jury out)
20 THE COURT: Counsel, see y'all back at
21 1:30.
22 (Lunch break)
23 (Jury in)
24 THE COURT: Be seated. You may continue.
25 MR. MARTINEZ: Thank you, Judge.
115
1 Q. (BY MR. MARTINEZ) Ms. Miller, earlier today,
2 you said that Debo made representations to you about
3 rebar insulation or wire mesh insulation in the
4 driveway?
5 A. Yes.
6 Q. Do you ever remember testifying differently?
7 A. I do remember.
8 Q. And you recall when that was?
9 A. When my testimony was, or when they made the
10 representations?
11 Q. When you had the different testimony.
12 A. Different than what? I'm sorry, can you
13 rephrase the question?
14 Q. Sure. Earlier today, you said that Debo
15 represented that they installed either wire mesh or
16 rebar in your driveway?
17 A. Yes.
18 Q. I asked you, do you remember testifying
19 differently about that?
20 A. No.
21 Q. You remember your deposition May 8th at your
22 lawyer's office?
23 A. Yes, it was six hours long. I remember it.
24 Q. And you remember me asking you a question about
25 rebar installation?
116
1 A. Yes.
2 Q. You remember me asking you -- the question was:
3 "Did they make any representations about the rebar in
4 the driveway, whether it would be there or not be
5 there?" Your answer was no. Why is it different today?
6 A. Because when I asked Kris -- later on, when I
7 asked Kris about it, he told us there's mesh in the
8 driveway.
9 MR. MARTINEZ: Judge, may I display the
10 excerpt?
11 THE COURT: Yes, sir.
12 MR. MARTINEZ: Thank you.
13 Q. (BY MR. MARTINEZ) Ms. Miller, you see the
14 highlighted portion?
15 A. Yes.
16 Q. My question is why you told me no, Debo made
17 absolutely no representations about the rebar in the
18 driveway, but today you're telling us they did?
19 A. That was within the six-hour context of a
20 deposition. Kris told us later on, when I questioned
21 why there wasn't any rebar, that you had to pay extra
22 for rebar, that was something we had to bring out up
23 front. He told us that it would be mesh, like a wire
24 mesh in the driveway.
25 Q. So, you admit that your answer in the
117
1 deposition was incorrect?
2 A. No. The question talks about rebar.
3 Q. So, you're saying the representation was wire
4 mesh?
5 A. He told us there would be wire mesh.
6 Q. Then why did you talk about rebar this morning
7 during your direct examination?
8 A. Because I asked him about both. I had asked
9 him about rebar, because I had observed rebar being put
10 up on my street when I came home that day. So, that was
11 an awakening for me. So, I called him, I said when I
12 saw the driveway being put in, I saw nothing but
13 concrete, no rebar. And he said, "We don't put up
14 rebar, we put wire mesh down." And I didn't understand
15 him.
16 I said, "What's the difference?" He said,
17 "Well, wire mesh isn't quite as good as rebar, but you
18 get wire mesh."
19 I said nothing was put in, and he said
20 nothing.
21 Q. Because when you were negotiating the contract
22 with Debo, you never asked them about wire mesh or
23 rebar, correct?
24 A. I never -- no.
25 Q. Earlier, we talked about how -- or you
118
1 mentioned that there were, indeed, two different
2 contracts?
3 A. Yes.
4 Q. Well, this is the contract that's been produced
5 in this case, that's Exhibit 1. And right here, you'll
6 see there's a whole section called "Financing."
7 Correct?
8 A. Yes.
9 Q. Well, you're telling the jury that this is a
10 financing contract, so why isn't that section filled out
11 then?
12 A. I don't know, but B, says "Sum of all
13 financing, 118,700.
14 MR. MARTINEZ: Objection, nonresponsive.
15 THE COURT: Overruled.
16 Q. (BY MR. MARTINEZ) Ms. Miller, if this is a
17 financing contract, why are there no checks about
18 third-party financing, you know, or promissory notes?
19 A. Because we hadn't gone to a mortgage company
20 yet. We hadn't chosen a mortgage company yet. We were
21 seeking approval from -- whether it was Chase or
22 whomever to approve us.
23 Q. Why isn't there an addenda or addendum to this
24 contract saying this is what the financing's going to
25 be?
119
1 A. I don't know. This is what we were given.
2 Q. And this is the only contract in this case,
3 correct?
4 A. No.
5 Q. Ms. Miller, you also said that you have a
6 friend, Stan, the realtor?
7 A. Yes.
8 Q. And that he reviewed this contract for you,
9 only this one?
10 A. Yeah, he came with us that day.
11 Q. Which day would that be?
12 A. The day we signed this, April 13th.
13 Q. So, he came with you and met with Kris and
14 reviewed this contract the day you signed it?
15 A. Yes.
16 Q. I'm looking at this page here. It talks about
17 broker information. Is Jan -- I can't read that name.
18 A. Pascovsky.
19 Q. Pascovsky?
20 A. Right.
21 Q. Is that the broker for Stan, the realtor?
22 A. Yeah. Stan and Jan, they're the spouses who
23 sell houses. And so Stan's Jan's husband, and Stan --
24 we're just more -- we're just better friends with Stan,
25 so he came with us. But that's their -- they're in
120
1 business together.
2 Q. So, he signed this April 13th?
3 A. Yes.
4 Q. And you're alleging that Debo never let you
5 take this contract home?
6 A. This particular one?
7 Q. Uh-huh, yes.
8 A. No, we have that one.
9 Q. I mean before you signed it on April 13th, did
10 Debo allow you to take it home and review it?
11 A. They did not.
12 Q. Earlier, you mentioned that your May 21st
13 e-mail told Debo to stop construction.
14 A. Yes.
15 Q. Well, I'm just curious where in there it says
16 that. Is it on the first page?
17 A. (Reading.) No.
18 Q. Can you point out to us where it says that on
19 the second page? Take your time.
20 A. (Reading.) Well, in the final line, "We expect
21 Debo Homes to have completed all of these repairs prior
22 to us submitting any more funds to you."
23 Q. Does that say stop construction?
24 A. Yes, because the next -- the next payment was
25 due prior, at the time of sheetrock.
121
1 Q. Would you mind just reading those two lines
2 real quick?
3 A. "We expect Debo Homes to have completed all of
4 these repairs prior to us submitting any more funds to
5 you."
6 Q. Thank you. Now, earlier you said that you were
7 dumbstruck that when you showed up at the homesite, you
8 saw a "For Sale" sign?
9 A. Yes.
10 Q. Could you describe that feeling a little bit
11 more for us?
12 A. Yes. We were just very surprised to see that
13 the house was for sale, and it had been completed, and
14 not to our specifications. We just -- we just were very
15 surprised, because we weren't informed. We weren't
16 aware that it had been put up. We thought we were still
17 onboard for the next inspection.
18 Q. But you've testified also that that was fine,
19 Debo was free to sell to someone else?
20 A. It was in the contract under negotiations. It
21 could be negotiated.
22 Q. But Ms. Miller, you've testified before in your
23 deposition that it did not bother you that they sold to
24 someone else. Is that true?
25 A. That was part of the negotiation process.
122
1 Q. Well, Ms. Miller, I was asking whether or not
2 you agree that you previously testified that you did not
3 have a problem with Debo selling the home to someone
4 else?
5 A. That's true.
6 Q. Ms. Miller, your attorney showed you some
7 pictures of the home. I think one of those pictures had
8 a table -- this one right here. (Indicating.)
9 A. Yes.
10 Q. Well, you testified that, I think it was June,
11 you said you went by the house and looked at the
12 outside?
13 A. Yes.
14 Q. Well, how did you get this picture of the
15 inside?
16 A. Through the window.
17 Q. This is through the window?
18 A. Yes, sir, with my phone camera, through the
19 back window.
20 Q. Was there a grate there or anything?
21 A. No, there was no screens. All the pictures we
22 took of the interior of the house was through the
23 windows. We never stepped inside of the house.
24 Q. So, I'm looking at, you know, this window
25 across the way. It's hard to see, but there are -- you
123
1 know, there's grate around it. Did the window that you
2 took the picture through have those grates, you know,
3 crossbars, what have you?
4 A. I don't know. We might have took it through
5 the back door. I'm not sure. I know we took them
6 through the windows. I put the camera right up on the
7 window.
8 Q. Ms. Miller, you understand that by the time
9 your attorney sent that e-mail on May 22nd telling Debo
10 to stop construction, and between the time we, as
11 lawyers for Debo, sent a response in late August, that
12 had been a couple of months, right?
13 A. Yes.
14 Q. Is it fair to say that there are some costs
15 incurred by Debo during those few months?
16 A. There might be. I don't think so, though.
17 Q. Well, if Debo had to finance the rest of the
18 construction, wouldn't they have had to pay that out of
19 their own pocket?
20 A. They should have stopped construction.
21 Q. Ms. Miller, that's not my question. My
22 question is: If they had to finance it out of their own
23 pocket, wouldn't they have had to pay incurred costs?
24 A. They were asked to stop construction.
25 MR. MARTINEZ: Objection, nonresponsive.
124
1 THE COURT: Sustained. Answer the
2 question.
3 Q. (BY MR. MARTINEZ) Ms. Miller, I'm just asking
4 you whether it's reasonable that if Debo had to pay to
5 finish construction on the home, that they would incur
6 some costs?
7 A. If they continued, yes.
8 Q. Well, if they had to take out, you know, a loan
9 to finance the rest of the construction so they could
10 sell it to someone else, isn't it true that there's
11 interest on that loan?
12 A. There might be.
13 Q. Well, isn't it true that if they had to put the
14 home back on the market, they'd have to pay for various
15 marketing costs?
16 A. I don't know what their marketing costs would
17 be.
18 Q. But it's fair that they would incur some?
19 A. I don't know. They -- they have signs
20 everywhere anyway.
21 Q. What I'm getting at, Ms. Miller, is Debo sent
22 you a letter on May 29th, this letter that we've seen
23 before, and towards the bottom it says that Debo will
24 refund you a hundred percent of the money, correct?
25 A. Yes.
125
1 Q. Well, this is May 29th.
2 A. Yes.
3 Q. Before the home was finished, correct?
4 A. Yes.
5 Q. Before Debo had to pay the rest of the trades
6 to finish the home?
7 A. Yes.
8 Q. Before Debo had to put the home back on the
9 market and pay for marketing?
10 A. Yes, except it was already just about done at
11 that point. We gave them 90 days at that point to sell
12 the house, and we never heard back.
13 Q. I'm going to go to the top real quick, so we
14 can see what we're talking about. This is a letter from
15 our firm on August 30th, correct?
16 A. Yes.
17 Q. And at the bottom, it says that you will
18 receive your money back, but minus the costs that Debo
19 incurred. Is that fair?
20 A. No.
21 Q. Well, I'm just asking if that's what the letter
22 says.
23 A. That is what the letter says. That's not fair.
24 Q. Well, that's not my question. My question is
25 that we just talked about how Debo, if they had to pay
126
1 for the rest of the trades, you know, pay to hire us,
2 and pay to finance the rest of the construction, it's
3 different from May 29th to August 30th. There's a
4 difference, isn't there?
5 A. They didn't have to pay to hire you. They
6 could have given us the money. We gave them an
7 opportunity to sell the house.
8 MR. MARTINEZ: Objection, nonresponsive.
9 THE COURT: Sustained.
10 Q. (BY MR. MARTINEZ) Ms. Miller, I just want to
11 know whether or not it's fair to say that at the time
12 Debo sent you that letter on May 29th that we just
13 looked at where they offered you 100 percent back, in
14 between that time on May 29th to August 30th, Debo
15 incurred costs, and, therefore, they had to reduce the
16 payment they could give you back. Is that fair?
17 A. No.
18 Q. Ms. Miller, also you said something earlier.
19 You said that you had to deal with Debo's lawyers in
20 May?
21 A. This past.
22 Q. Oh, 2014, not '13?
23 A. Yes, sir.
24 Q. Okay. I just wanted to clear that up.
25 Earlier, you said that Debo never actually offered you
127
1 the money back, isn't that right? Earlier today --
2 A. Yes.
3 Q. -- you said that Debo did not offer you your
4 money back. Do you recall saying that?
5 A. They offered it in the letter. Then we gave
6 them 90 days to sell the house. We never heard anything
7 back from them until we got the letter from their
8 attorney.
9 MR. MARTINEZ: Judge, I'll pass the
10 witness.
11 MR. CROCKETT: Short redirect, Judge.
12 THE COURT: Yes, sir.
13 REDIRECT EXAMINATION
14 Q. (BY MR. CROCKETT) Ms. Miller, in that letter
15 that Debo Homes sent, did you see the rest of the part
16 that Debo Homes' lawyer didn't highlight, which was to
17 pay you back "whenever we sell the home"?
18 A. No, not right now. I mean, I did, at first
19 when I read it, yes.
20 Q. When you first were buying the house, did you
21 agree to give Debo Homes a loan of $60,300 for as long
22 as they want?
23 A. No, not -- there was -- can you rephrase that
24 the question?
25 Q. Yeah. Did you just hear Debo Homes' lawyer
128
1 say, "Well, isn't it fair that we offered to give back
2 your money whenever we sold the home"?
3 A. No, there has to be a time limit. I mean, they
4 can't keep my -- our money forever and never give it
5 back.
6 Q. How long have they kept $60,300?
7 A. A year and a few months.
8 Q. Until really just Monday?
9 A. Yes.
10 Q. Before they were talking to you about the
11 deposition and Debo Homes' lawyer showed you just one
12 segment of it. They didn't show you the entire six
13 hours, did they?
14 A. No, not at all.
15 Q. During that six hours, did you get asked the
16 same question again and again and again?
17 A. Yes.
18 MR. MARTINEZ: I'll object to
19 misconstruing the evidence.
20 THE COURT: Overruled.
21 Q. (BY MR. CROCKETT) Did you get asked the same
22 questions again and again and again?
23 A. Yes. They continually asked identical or near
24 identical questions.
25 Q. Did you testify during your deposition that the
129
1 payment was due before the drywall went in?
2 A. Yes.
3 Q. When you were asked when the specific date you
4 were supposed to pay was, did you know?
5 A. No. There was not a date. I said I don't
6 know. They said, "When is the next payment due?" I
7 said I don't know, because there was never a specific
8 date.
9 Q. When Debo Homes' lawyer asked you about the
10 representations, did he ever add context to it, like
11 representations during the first contract, or
12 representations during construction, or did he basically
13 just say, "Tell me every single representation that Kris
14 told you whenever"?
15 A. It was -- it was open-ended. It was -- it was
16 whenever. It was -- there was no Phase 1, Phase 2. It
17 was just, "We want to know it all, and if it's not all,
18 then it doesn't count."
19 Q. One of the things I was going to ask you about
20 is the text messages. When the text messages were sent
21 in Exhibit No. 3, do you know what date the texts ended,
22 at least in the exhibit?
23 A. Looked like around maybe -- was it the 12th,
24 13th or something like that? I don't know the exact
25 date, no, if I'm not looking at it.
130
1 Q. The last date of any of the text messages, May
2 14th.
3 A. Okay.
4 Q. Did Kris keep contacting you after that?
5 A. Yes, he did.
6 Q. Is it kind of hard to say, "Well, show me where
7 it's at," when you know it's not even all of them?
8 A. Yes.
9 Q. And one of the things, Debo Homes' lawyer asked
10 you about if you had any evidence that there were any
11 defects in the home. On May 9th, did you see problems
12 during the inspection with Mr. Knueppel?
13 A. Yes, yes. We saw many problems.
14 Q. In May 13th, on the second inspection, did you
15 see problems at the home?
16 A. Yes, we saw even additional problems.
17 Q. When was that second inspection at? Was it in
18 the afternoon or the evening-time?
19 A. It was in the afternoon, late afternoon, after
20 the workers were all done.
21 Q. By May 14th, the next day when they drywalled
22 everything up, based on what you had seen from their
23 work, was there any way that they actually fixed
24 everything?
25 MR. MARTINEZ: Objection, speculation and
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1 expert testimony.
2 THE COURT: Sustained.
3 Q. (BY MR. CROCKETT) Do you believe that all of
4 the things that you saw on May 9th and May 13th were
5 done before May 14th?
6 A. I don't believe it could have been, because we
7 were there after hours, and they started drywalling the
8 next morning. I don't know how they could have possibly
9 fixed all of it in time.
10 Q. Is there any way to show the evidence of the
11 house when you drywall over the evidence?
12 A. No one has showed me how.
13 Q. Is it hard to go back and inspect a home after
14 you sell it to somebody else?
15 MR. MARTINEZ: Objection, this is
16 speculation.
17 THE COURT: Overruled.
18 A. We haven't been able to. That's why we peeked
19 through the window and took pictures, just -- and we
20 were unable -- you can't see. It's covered up.
21 Q. (BY MR. CROCKETT) Thank you, Ms. Miller.
22 MR. CROCKETT: Pass the witness, Judge.
23 MR. MARTINEZ: Judge, short recross.
24 THE COURT: Yes, sir.
25
132
1 RECROSS-EXAMINATION
2 Q. (BY MR. MARTINEZ) Well, Ms. Miller, if those
3 aren't all the text messages, where are the rest?
4 A. I don't know. The phone I used to have got
5 stolen.
6 Q. How did you get some of them, not the others?
7 A. I didn't -- I don't know. Those --
8 Q. So, you said that it was inappropriate for Debo
9 to wait until December to sell the home; that it was too
10 long?
11 A. Well, what I -- can you rephrase that, please,
12 ask it again?
13 Q. Yeah. You sort of were getting at that, you
14 know, Debo didn't really tell you when they would
15 ultimately sell the home?
16 A. Yes.
17 Q. That's just an open window, that could be
18 whenever. Is it your testimony that it's inappropriate
19 for them to not get to that until December, 2013?
20 A. Well, it would have been nice for us to know.
21 Q. Are you saying that was too long, it took them
22 too long to resell it?
23 A. I don't know if that's too long. We didn't
24 know. We weren't given opportunity to know about it.
25 Q. Ms. Miller, I think you'd agree that $60,300 is
133
1 a lot of money?
2 A. It's a whole lot of money when I get very
3 little per month.
4 Q. And wouldn't you agree that if Debo used that
5 60 grand to buy the lot, do the foundation, framing,
6 electric, that uses -- that can use the 60 grand?
7 A. Well, it can. (Nodding.)
8 Q. So, then how is Debo supposed to get all that
9 money back and give it to you if they already put it
10 into the house?
11 A. Well, they offered it back once they sold it,
12 so we needed a timetable. They offered it back.
13 Q. Are you complaining that it took Debo too long
14 to actually put that money in the registry of the court?
15 A. Yes. They -- they had -- they sold the house
16 in October, closed in December. They never gave us
17 anything back.
18 Q. Isn't it true since October there's been an
19 ongoing lawsuit?
20 A. Yes.
21 Q. Ms. Miller, you said that during your
22 deposition I asked you the same question again and again
23 and again. Which question was that?
24 A. Many, many questions. It was six hours long.
25 Q. Well, Ms. Miller, your attorney went over that
134
1 I asked you about what representations were made, and
2 you acknowledged that you did not disclose all the
3 representations in your deposition, correct?
4 A. I probably -- I'm sure I didn't.
5 Q. Well, Ms. Miller, do you remember me asking you
6 did Debo make any other express warranties besides the
7 ones in the contract that we've seen? You remember that
8 question?
9 A. Yes.
10 Q. And then you responded, you said, "Kris
11 promised us we'd get a house we would be happy with,
12 comfortable with and love, even after I brought an array
13 of concerns and questions, and he answered every one
14 exactly within my comfort zone." Does that sound
15 familiar?
16 A. Yes.
17 Q. And then I asked, "Were there any other
18 warranties that Kris or anyone else at Debo ever made to
19 you before you signed this contract?"
20 Your answer was: "I don't recall."
21 Is it fair to say that I gave you an
22 opportunity to give me more representations and more
23 facts?
24 A. At that time, yes, maybe. Yes.
25 Q. Also, in your deposition, I went over your
135
1 pleadings because the question I asked was, "Well, what
2 numerous representations did Debo make to induce you to
3 purchase the home specifically?" And you gave me a long
4 list, and I think we've gone over those, like, you know,
5 he had the right answers, he said we'd have a home we'd
6 love, and if we're not happy, it's a hundred percent
7 guaranteed. And you gave me your full answer, correct?
8 A. It may not have been the full answer.
9 Q. Well, where else in this deposition did I ask
10 you that question again?
11 A. I don't know, but within the deposition, you
12 asked a lot of questions over and over. It was six
13 hours long.
14 Q. Can you give me another example?
15 A. Not right now.
16 Q. Ms. Miller, earlier you said that the drywall
17 covers up, you know, any defects, right?
18 A. I didn't say any. I said it covers up a lot of
19 defects, covers up a lot of the defects we were looking
20 at.
21 Q. Okay. And this is a picture that y'all took of
22 the house, right?
23 A. Yes.
24 Q. And there's some drywall put up, right?
25 A. Yes.
136
1 Q. Can't you still see the studs?
2 A. Not -- not really. Only partial, only the
3 bottom part, some of them.
4 Q. Well, is there anything blocking you from going
5 into the wall and checking things out?
6 A. That's not the complete drywall. That's only
7 part of the drywall.
8 Q. I'm asking you if it's possible for you to go
9 into this wall and look at things?
10 A. Some things.
11 Q. Ms. Miller, also you said that -- one last
12 question. You said that Debo represented to you that
13 they'd insulate the pipes in the home?
14 A. Yes.
15 Q. So, you thought that Debo would install
16 insulation on the pipes?
17 A. That they would wrap the pipes, yes.
18 Q. You remember testifying differently?
19 A. They would wrap the pipes that needed to be
20 wrapped.
21 Q. I'm asking whether or not you remember
22 testifying differently about what Debo represented about
23 the pipe insulation.
24 A. I don't recall.
25 Q. And in that deposition, I asked you, "Is that
137
1 why you took the picture?" And I'm talking about the
2 picture we saw earlier with the pipe. Let me see if I
3 can get it. No. -- there we go. I think this was the
4 picture, right? This is the pipe without insulation?
5 A. Yes.
6 Q. So, I asked, "Is that why you took the picture,
7 that picture, because there was no insulation?"
8 And your response was, "I was -- yes. I
9 was -- I didn't know if it was supposed to or not. I
10 took pictures of things I had questions about"?
11 A. Yes, that's exactly true. I took pictures of
12 things I had questions about, so our inspector could
13 verify them.
14 Q. But you weren't sure whether or not this was
15 supposed to have insulation?
16 A. That's right. I'm not a construction expert.
17 Q. Well, you told me that Debo represented to you
18 that it would be covered.
19 A. That the ones that needed to be wrapped. The
20 hot pipes, from what I learned, needed to be wrapped,
21 but the cold ones don't. But that's their job to know
22 which ones need to be wrapped and which ones don't. So,
23 I took pictures of ones, does it or doesn't it. I'm not
24 an expert. I took pictures of everything that looked
25 unusual.
138
1 Q. Ms. Miller, was it fair for me today to rely
2 upon your deposition in asking you questions?
3 A. Yes.
4 MR. MARTINEZ: Nothing further. Thank
5 you.
6 MR. CROCKETT: No further questions,
7 Judge.
8 THE COURT: You may step down.
9 You may call your next witness.
10 MR. CROCKETT: Your Honor, the Plaintiffs
11 call Harold Knueppel.
12 MR. MARTINEZ: And, Judge, before he even
13 gets to the stand, we have an objection to him
14 testifying at all. First, if I may --
15 THE COURT: Ladies and gentlemen, I ask
16 that you step back in the jury room for just a few
17 minutes.
18 (Jury out)
19 THE COURT: Be seated.
20 MR. MARTINEZ: Judge, my objection was
21 that -- and we talked about this before -- Mr. Knueppel
22 is a home inspector, and they have not designated him as
23 an expert. He's not qualified to testify about
24 construction issues. All he can do is say, you know,
25 that's a picture of a broken stud, but Ms. Miller
139
1 already did that. The photos are already in evidence.
2 Under Rule of Evidence 403, that is redundant, that is
3 cumulative, that is confusing. It's already been
4 presented. He is just a duplicate witness for what we
5 already just saw.
6 MR. CROCKETT: Judge, you specifically
7 said that he can testify to what he saw, and our plan is
8 to just ask him what he saw. He's also a witness as far
9 as the time lines of what happened. It's not
10 duplicative of anything. In fact, oftentimes you'll
11 have five to eight witnesses all testify about the same
12 thing. He's talking about duplicative, meaning we're
13 putting on expert after expert after expert who are
14 doing the exact same thing, and we're not. We're
15 allowed to put as many fact witnesses as we want, as
16 long as it's not something where one witness gets up and
17 says the exact same thing and another one gets up and
18 says the exact same thing and another one gets up. I'm
19 talking about two people, Your Honor. That's it. It's
20 not duplicative. The reason they want him off is they
21 don't want the jury to ever see him and argue anything
22 that someone else can match the time line.
23 THE COURT: Well, I'm going to allow him
24 to testify, but carefully phrase your questions, and
25 you'd better caution him that he should not be giving
140
1 opinions, particularly expert opinions.
2 MR. CROCKETT: Yes, sir.
3 THE COURT: If he does, I'm going to stop
4 the testimony and escort him out of the courtroom.
5 MR. CROCKETT: Yes, Judge.
6 THE COURT: Okay?
7 MR. MARTINEZ: Thank you.
8 THE COURT: If you'll give me a moment,
9 I'll tell him that.
10 THE COURT: Okay. Tell him to just answer
11 the question.
12 (Discussion off the record)
13 MR. CROCKETT: I think we're good, Judge.
14 THE COURT: Bring them in.
15 (Jury in)
16 THE COURT: Be seated.
17 BAILIFF: Sir, please stand before the
18 clerk to be sworn.
19 (Witness sworn)
20 HAROLD KNUEPPEL,
21 having been first duly sworn, testified as follows:
22 DIRECT EXAMINATION
23 Q. (BY MR. CROCKETT) Mr. Knueppel, could you
24 please state your name for the record?
25 A. Harold Knueppel.
141
1 Q. Okay. Mr. Knueppel, did you get called out to
2 look at a house that Ms. Miller had purchased?
3 A. Yes, sir.
4 Q. All right. I'm going to show you some of the
5 photographs, and I just want to confirm that you saw the
6 things that are in here. Okay?
7 A. Yes.
8 Q. All right. Now, when you went out there -- you
9 went out there May 9th?
10 A. Yes, sir, uh-huh.
11 Q. When you went out there May 9th, did you see
12 broken boards?
13 A. Pardon?
14 Q. When you went out there on May 9th, did you see
15 broken boards?
16 A. I'm not sure who you're talking about there. I
17 misunderstood you there.
18 Q. Okay. When you went out there to see Laurie's
19 home on May 9th, 2013, did you see broken boards?
20 A. Yes, uh-huh, absolutely.
21 Q. Did you see broken boards, just one or two, or
22 throughout the entire house?
23 A. Several.
24 Q. Did you see boards that weren't cut even?
25 A. Yes.
142
1 Q. Did you see boards that weren't connected to
2 anything?
3 A. Yes.
4 Q. See boards nailed into other boards?
5 A. Yes, uh-huh.
6 Q. See a crushed vent?
7 A. Yes.
8 Q. When you came back out a second time -- I
9 believe it was May 13th?
10 A. Yes, sir, uh-huh.
11 Q. Did you see that there was new work done on the
12 house?
13 A. There was some work done, yes.
14 Q. Did you see issues and take pictures of the new
15 work that was done?
16 A. I did not take pictures of new work. I took
17 pictures of what other things I saw there, yeah.
18 Q. Okay. When you went out on May 13th, did you
19 plan on coming out again and looking at whether any
20 progress had been made?
21 A. No, not unless I was asked to, uh-huh.
22 Q. Normally, whenever you look at something, take
23 pictures of it, are you ever asked to look at those
24 things later?
25 A. Yes.
143
1 MR. MARTINEZ: Objection as to what he
2 normally does during his job, expert.
3 THE COURT: Overruled.
4 Q. (BY MR. CROCKETT) Mr. Knueppel, did you see
5 this AC unit installed at the Millers' house?
6 A. Yes.
7 Q. Have you ever seen an AC unit like that in your
8 life?
9 MR. MARTINEZ: Objection, Judge. It's
10 getting into what he does as an inspector
11 professionally.
12 THE COURT: Overruled.
13 Q. (BY MR. CROCKETT) Mr. Knueppel, have you ever
14 seen an AC unit in the attic that looked like that?
15 A. No.
16 MR. CROCKETT: No further questions. Pass
17 the witness, Judge.
18 (Off the record discussion between Messrs.
19 Martinez and Welscher.)
20 MR. MARTINEZ: Judge, just a few.
21 CROSS-EXAMINATION.
22 Q. (BY MR. MARTINEZ) You just saw a bunch of
23 pictures of some broken studs, correct?
24 A. That's some of the pictures, yes.
25 Q. Did Debo ever deny that there was a broken
144
1 stud?
2 A. Not that I'm aware of.
3 Q. Did they ever try to hide it when you were
4 there?
5 A. Did they ever try to what?
6 Q. To hide any of these pictures we just saw when
7 you were there.
8 A. Not that I'm aware of, no.
9 Q. Did they ever prevent you from inspecting the
10 home?
11 A. No.
12 Q. Now, after you walked through the house, isn't
13 it true you had a discussion with Ms. Miller?
14 A. Sure.
15 Q. In fact, she was arguing with you?
16 A. No, no arguing.
17 Q. Well, she raised her voice to you; she was
18 upset?
19 A. She was upset, yes, but not at me.
20 Q. And you were out there May 13th, right?
21 A. Yes.
22 Q. And the sheetrock was installed the very day
23 after, the 14th?
24 A. I don't know when it was installed.
25 MR. MARTINEZ: Nothing further, Judge.
145
1 MR. CROCKETT: One last question, Judge.
2 REDIRECT EXAMINATION
3 Q. (BY MR. CROCKETT) Mr. Knueppel, whenever you
4 look at a house -- let me say it this way: Are you able
5 to look at the studs and the beams or anything behind
6 that drywall?
7 A. No.
8 MR. MARTINEZ: Objection as to what he
9 looks to normally.
10 THE COURT: Overruled.
11 Q. (BY MR. CROCKETT) Are you able to see the studs
12 or the beams or the broken boards or anything once we
13 have this drywall and everything's walled in?
14 A. No.
15 Q. Thank you, sir.
16 MR. MARTINEZ: I have one question about
17 that, Judge.
18 RECROSS-EXAMINATION
19 Q. (BY MR. MARTINEZ) Mr. Knueppel, would you mind
20 taking a look at that picture?
21 A. Okay.
22 Q. Isn't it true that you can still see studs?
23 A. Some studs, yeah.
24 Q. Isn't it true that if you went into the wall,
25 you could see the rest of the studs?
146
1 A. I don't remember seeing this picture here.
2 MR. MARTINEZ: Nothing further, Judge.
3 MR. CROCKETT: That's it, Your Honor.
4 THE COURT: May this witness be excused
5 and released?
6 MR. CROCKETT: Yes, Judge.
7 MR. MARTINEZ: Yes, Judge.
8 THE COURT: Thank you, sir. You may step
9 down. You're excused and released.
10 (Witness out)
11 MR. CROCKETT: Your Honor, Plaintiffs call
12 Kris Dominguez.
13 (Witness sworn)
14 KRIS DOMINGUEZ,
15 having been first duly sworn, testified as follows:
16 CROSS-EXAMINATION
17 Q. (BY MR. CROCKETT) Good morning, Mr. Dominguez.
18 Can you please state your name for the record?
19 A. Kris Dominguez.
20 Q. Now, Kris, what's your position at Debo Homes?
21 A. Sales.
22 Q. How many other salesmen are there other than
23 you?
24 A. Just me.
25 Q. Okay. And you have the ability to bind Debo
147
1 Homes to any agreements, correct?
2 A. Yes.
3 Q. You're the only one that talks to the
4 customers?
5 A. No.
6 Q. As far as the sales?
7 A. Yes.
8 Q. Okay. Now, obviously, you were involved in the
9 sale of the home to the Millers?
10 A. Yes, sir.
11 Q. Okay. Now, you remember that in Exhibit No. 1,
12 the Millers initially came, signed an agreement with
13 you, in behalf of Debo Homes, to purchase the house? Do
14 you remember that they originally tried to finance the
15 home?
16 A. I'm sorry?
17 Q. Originally, did they try to finance the home?
18 A. No.
19 Q. They never tried to finance the home?
20 A. No.
21 Q. There was always a cash installment plan?
22 A. Yes.
23 Q. Okay. Now, before you testified here today, I
24 notice that you had a chance to talk to Juan Carlos
25 Hernandez and his son. Did they tell you to say
148
1 anything today?
2 A. No.
3 Q. What did you talk about?
4 A. Today at lunch?
5 Q. Well, the 15 minutes when we were on break that
6 you were talking to them and then over lunch.
7 A. We were just talking about business.
8 Q. Never mentioned anything about the case or the
9 testimony here today?
10 A. No.
11 Q. All right. They never asked you about a second
12 contract? Did anyone ever ask you about --
13 MR. WELSCHER: Object. This is getting
14 into attorney-client privilege. I was with Kris at
15 lunch in meetings.
16 THE COURT: Can you rephrase your
17 question?
18 MR. CROCKETT: Yes.
19 Q. (BY MR. CROCKETT) Outside of being present with
20 the Debo Homes lawyer, did anybody tell you or ask you
21 about a second contract?
22 A. Can you repeat that again? I'm sorry.
23 Q. Did anyone, outside of when you were talking
24 with your lawyers, mention a second contract?
25 A. Yes.
149
1 Q. Okay. Who?
2 A. Mr. Hernandez.
3 Q. All right. So, you talked about a second
4 contract, right?
5 A. Yes.
6 Q. And you said what?
7 A. There isn't one.
8 Q. Okay. So, you did talk about the testimony
9 that was at the trial, right?
10 A. Just that specific question.
11 Q. Nothing else over the 15-minute break where you
12 were talking out in the hallway after Ms. Miller's
13 testimony or at lunch, right?
14 MR. WELSCHER: Judge, he needs to be more
15 specific about who was there, because I was there at
16 lunch the whole time.
17 Q. (BY MR. CROCKETT) Did you ever talk with him
18 outside of the lawyer being there? I can't talk to you
19 about that. Did they ever come in and ask you questions
20 out in the hallway for that 15 minutes or during lunch
21 about the testimony here today?
22 A. No.
23 Q. Did you know before you got on the stand I'd be
24 asking you about a second contract?
25 A. I'm sorry, what?
150
1 Q. Before you got on the stand, did you know that
2 I was going to ask you about a second contract?
3 A. I wouldn't know what you would ask, sir.
4 Q. Okay. Let me ask you this: Whenever you do a
5 cash installment plan, tell the jury how that plan is
6 divided up. How does that work?
7 A. It's talked about, so it's different, depending
8 on the customer, how they want to pay. It's either half
9 and half or thirds.
10 Q. So, you do do it by a third, right?
11 A. Yes.
12 Q. Is there three phases to that?
13 A. Yes.
14 Q. Tell me about those phases.
15 A. I don't set up the phases. Mr. Hernandez tells
16 me when to initially collect the first phase, and then
17 he'll call and tell me when the next part of the money
18 is due.
19 Q. With the Millers, when was the second payment
20 due?
21 A. Date-wise or construction-wise?
22 Q. Well, that's a good point. If you don't ask,
23 then it makes it kind of confusing. Let me ask you
24 this: Construction-wise, when was the second payment
25 due?
151
1 A. Near or close to sheetrocking.
2 Q. Right. The drywall is kind of a universal
3 thing about that system, right?
4 A. I'm sorry, I don't understand the question.
5 Q. Yeah. The cash installment plan, when you do
6 50-50 --
7 A. Uh-huh.
8 Q. -- first 50, start. Second 50 is when?
9 A. That's based upon when I'm told to ask for it.
10 I don't determine that.
11 Q. You don't know?
12 A. No.
13 Q. All right. But you do know specifically that
14 with the Millers' cash plan, the first third was due,
15 and the second payment was due before drywall or after
16 drywall, sometime with drywall, right?
17 A. I can't say specifically. I was just -- that's
18 when I can remember when it was due, when the owner
19 asked me to ask for it.
20 Q. Okay. So, normally whenever Mr. Hernandez says
21 go collect the money, you go collect the money?
22 A. Yes.
23 Q. All right. Do you have any idea why the
24 Millers met with you and gave you another check, or
25 actually two checks for $59,300, and another one for a
152
1 thousand dollars on April 16th, 2013?
2 A. That's to initially begin construction. One is
3 a down payment, and one is earnest money.
4 Q. Right. Well, why did they come back after
5 apparently there was only this contract? Why did they
6 have to come back and then write you a check?
7 A. I can't remember.
8 Q. You sell a lot of homes, right?
9 A. I try to, sir.
10 Q. Do you remember everything you tell people?
11 A. I'm sorry?
12 Q. Do you remember every promise or representation
13 you tell your customers?
14 A. I mean, we take notes, so I don't just make
15 promises. We make notes and write stuff down.
16 Q. Do you remember the promises you made to the
17 Millers?
18 A. They're written down. I didn't make any
19 promises other than what was written down as far as the
20 construction of the house.
21 Q. Okay. During construction, how early on in
22 construction did the Millers tell you that they had
23 concerns about the construction of their house?
24 A. Again, is that date-wise or like process?
25 Q. We'll keep it with construction.
153
1 A. Okay. I mean, they had a couple of questions,
2 but nothing that couldn't be fixed.
3 Q. How early on?
4 A. I think after the frame and the roof was put
5 in.
6 Q. Remember giving Ms. Miller a red spray can and
7 telling her to spray whatever they had problems with?
8 A. Yes.
9 Q. Okay. Do you normally do that?
10 A. Never.
11 Q. What was different about this time?
12 A. She called me at 8:00 in the morning concerned
13 about the wood framing, but I reiterated to her that the
14 superintendent hadn't punched the house yet. So, he
15 hadn't -- the superintendent hadn't had a chance to walk
16 the house and mark it hisself (sic), which he does with
17 spray paint. But since she insisted on it, I told her I
18 would go buy the paint and meet her at the house, and
19 she could paint or mark what she thought needed to be
20 fixed.
21 Q. Did you ultimately get to meet with the
22 superintendent?
23 A. Sir?
24 Q. Did you meet with the superintendent and talk
25 about Ms. Miller's or the Millers' complaints?
154
1 A. Yes.
2 Q. Tell me about that conversation.
3 A. About the wood?
4 Q. Well, you said you met with the superintendent
5 to talk about the Millers' complaints.
6 A. Well, that was the first complaint, that was
7 the wood. I talked to him about -- specifically about
8 the red paint. He was at the house, and I told him that
9 what she had marked. And he said to me again, "Kris, I
10 haven't walked the house, but have her mark it. I'll
11 come back, mark it, and we'll replace what we have to
12 get fixed."
13 Q. Okay. Did y'all fix everything that the
14 Millers spray painted or had an issue with?
15 A. I don't fix it, so I don't know if it was
16 fixed, everything. That's not part of my job.
17 Q. Okay.
18 A. So, I couldn't say yes or no to that question.
19 Q. Well, let me ask you an easier way. After you
20 get the contract signed, what more do you have involved
21 with the actual construction?
22 A. Nothing.
23 Q. So, you do still talk to the customers, but you
24 don't have any involvement or knowledge about
25 construction, right?
155
1 A. Yes.
2 Q. So, when the Millers told you those complaints,
3 it goes from you right to the superintendent, correct?
4 A. No.
5 Q. Who does it go to?
6 A. Goes to my boss, Mr. Hernandez, and then he or
7 whoever else directs it to Michael. And sometimes I do
8 talk to Michael, but not all the time.
9 Q. So, it goes at least to either Mr. Hernandez or
10 it goes up to Michael, and is there any follow-up by you
11 to discuss with the Millers what decisions were made,
12 what would be done?
13 A. Well, what I do is I take it to the proper
14 channel. Then they come back and let me know if it had
15 been fixed, but they don't go into detail with me.
16 Q. Is it fair to say that you don't really know
17 whether or not there were repairs made?
18 A. I know there were repairs made, because I went
19 back, and the red paint was gone.
20 Q. Okay. You know every repair that was made?
21 A. No, I said on the red paint. We're talking
22 about the red paint, what I'm talking about.
23 Q. I'm just talking about all the complaints.
24 A. That was the one complaint that I got from
25 them, was the red paint issue with the split
156
1 two-by-fours.
2 Q. All right. Now, you mentioned something about
3 promises or representations. You would agree with me
4 that any promises that you made during the sales
5 process, that Debo Homes has to honor those, correct?
6 A. Again, sir, if I make -- if I make a note to
7 give them something, I write it down. When you say
8 promises, I don't understand what you're saying. Can
9 you give me one example of what you say I said?
10 Q. Yeah. Well, let me ask it even easier. If you
11 make a representation, a promise during sales, do you
12 believe that you have to honor that as Debo Homes?
13 A. I'm conflicted with the word promise, because I
14 write it down, I make a note. If they said they want
15 brick, stone, accent, granite color, this, I write it
16 down. So, I don't understand promise. Like if they ask
17 for something specifically, like a door or a French
18 door, I make notes of it. So, I don't understand, other
19 than, you know, closing the contract and making a date
20 to close.
21 Q. Let me ask you if you agree with me. In
22 exchange for $178,000, Debo Homes was going to build the
23 Millers a home in accordance with the plans and
24 specifications. You agree with that?
25 A. Yes.
157
1 Q. Do you agree with me that Debo Homes was going
2 to build a home in accordance with anything that's in
3 the contract or any representations made to the Millers?
4 A. Can you repeat that again?
5 Q. Yeah. Would you agree with me that Debo Homes
6 was going to build the home in accordance with anything
7 that's in the contract or any representations made to
8 them?
9 A. Not 100 percent of what you said. What's in
10 the contract, yes.
11 Q. Okay. Now, you remember we did your
12 deposition, right?
13 A. Yes.
14 Q. You didn't say that before.
15 A. Uh-huh.
16 Q. Before, you just said yes. You remember saying
17 yes, that the representations you made to them --
18 MR. WELSCHER: Objection, improper
19 impeachment. He never gave him the opportunity to even
20 identify what we're talking about.
21 THE COURT: Overruled.
22 Q. (BY MR. CROCKETT) Do you remember in your
23 deposition, you said that, yes, the representations and
24 the words in the contract were binding on Debo Homes?
25 A. I don't understand when you say
158
1 representations. Represent -- what did I represent?
2 Q. Let me read it to you.
3 A. Okay.
4 MR. MARTINEZ: Line and page, Brian?
5 MR. CROCKETT: It is page eight.
6 MR. MARTINEZ: Line what?
7 MR. CROCKETT: Line 14.
8 Q. (BY MR. CROCKETT) Here, I asked you: "You guys
9 were all going to build the home in accordance with
10 anything that's in the contract or any representations
11 made to them, correct?"
12 A. Yes.
13 Q. And you said, "Yes"?
14 A. Yes.
15 Q. Okay. You understood that question?
16 A. Yes.
17 Q. Okay. The representations that you made during
18 the sales then, you would agree -- or at least you used
19 to agree that Debo Homes had to honor that, correct?
20 A. Yes.
21 Q. Okay. Do you remember attending an inspection
22 with a Mr. Knueppel?
23 A. I know I was there with an inspector. I can't
24 remember his name.
25 Q. Why were you there?
159
1 A. I just happened to be there when he was there.
2 Q. So, it was just by luck?
3 A. I was -- I was at my job, walking the house,
4 and he just -- he was there. I don't know if it was by
5 luck, or coincidence, I guess.
6 Q. Well, you don't have any involvement in the
7 construction, right? That's what you said.
8 A. I don't have any involvement in the
9 construction, no.
10 Q. So, you were walking out there. What were you
11 doing, just looking around?
12 A. Sir?
13 Q. You were just looking around?
14 A. Just working.
15 Q. Helping with construction?
16 A. No.
17 Q. Just walking the grounds?
18 A. I have to give my customers updates if someone
19 calls and asks me what stage the house is, because I
20 write on the contract a closing date. So, I just go by
21 when I'm working, walk by. I don't involve myself with
22 telling someone how to work. I just walk the house. I
23 don't stop or intrude on them.
24 Q. Is it pretty common that your customers have to
25 hire home inspectors?
160
1 A. Fifty percent of our customers hire their own
2 inspectors.
3 Q. Okay. And you don't meet with those inspectors
4 or find out any of their thoughts or conclusions or
5 anything?
6 A. I've met with some in the past.
7 Q. Did the Millers give you a report from Mr.
8 Knueppel?
9 A. I think he sent it to me.
10 Q. Okay. Then what did you do with it?
11 A. Forwarded it to the proper people.
12 Q. Did you have any other involvement, other than
13 forwarding it to someone else?
14 A. No.
15 Q. Did you get another inspection -- you're aware
16 there was another inspection May 13th, right, four days
17 later?
18 A. No.
19 Q. You weren't aware of that?
20 A. Huh-uh.
21 Q. Is that a no?
22 A. By the same Mr. Knueppel, or another company?
23 Q. No, same guy.
24 A. Yeah, he came back and did something else.
25 Q. Did the Millers invite you to that? Did the
161
1 Millers invite you to come out?
2 A. No.
3 Q. Would you have wanted to be there?
4 A. Sir?
5 Q. Would you have wanted to be there?
6 A. No.
7 Q. It doesn't really concern you, right?
8 A. I wouldn't say it doesn't concern me, but I was
9 there the first time by coincidence. By chance, I was
10 there again, but I don't intrude on his work. I don't
11 know what he does. I'm not fluent in that part of the
12 construction, so I wouldn't interfere. I wouldn't know
13 what to say.
14 Q. So, that was May 13th, though, right?
15 A. I know it was in May, but I don't know the
16 exact date.
17 Q. Let me ask you, as far as that inspection, the
18 second one, you got a report forwarded to you again,
19 right?
20 A. Yes.
21 Q. And then what did you do?
22 A. Just forwarded it to the proper people.
23 Q. And you had no further involvement after that?
24 A. No.
25 Q. Who made the decision to start drywalling the
162
1 day after Mr. Knueppel's inspection?
2 A. I don't know who made that call. I'm not
3 involved in that.
4 Q. I show you Exhibit No. 3. These are the text
5 messages back and forth between you and the Millers.
6 This one is May 14th at 10:51 a.m. Do you remember this
7 text message?
8 A. Yes.
9 Q. When did y'all say you were going to do the
10 drywall?
11 A. I think it was on the weekend -- or, no, it was
12 Tuesday.
13 Q. Then it looks like about an hour or so after
14 you told them, the Millers, that you were going to
15 sheetrock tomorrow, you said, "No, actually, we're going
16 to sheetrock today." Right?
17 A. Yes.
18 Q. Who told you to tell the Millers, "No, we're
19 going to sheetrock today," plans changed?
20 A. My boss.
21 Q. Who?
22 A. Mr. Hernandez.
23 Q. Okay. Mr. Hernandez told you that, "We're
24 going to sheetrock on May 14th, 2013"?
25 A. Yes.
163
1 Q. And you had already sent Mr. Hernandez two
2 reports?
3 A. Yes.
4 Q. Did you ask Mr. Hernandez, "Well, are we going
5 to fix the issues with the home?"
6 A. I didn't have that -- I didn't know that
7 information, so I wouldn't have asked him that.
8 Q. That's not your lane?
9 A. No, sir.
10 Q. I'm showing you Exhibit No. 4, and we've seen
11 this e-mail before, Mr. Dominguez. Do you remember
12 getting a letter from the Millers on May 21st, 2013 with
13 a list of concerns that they had?
14 A. Yes.
15 Q. What did you do with this e-mail?
16 A. I forwarded it to the proper people.
17 Q. What did you do after that? What more did you
18 have involved with this?
19 A. Just waiting to see if they were going to
20 correct the issues, or if there were issues even to be
21 corrected.
22 Q. Okay. But you, yourself, didn't have any
23 further involvement?
24 A. With correcting the issues?
25 Q. Well, just this. Once you forwarded it on,
164
1 that's the extent of your involvement?
2 A. Yes, sir.
3 Q. All right. When you got this e-mail from the
4 Millers, did you talk to Mr. Hernandez?
5 A. No.
6 Q. Did you tell him -- even when they said, "We're
7 not going to make another payment until we've confirmed
8 these repairs have been made," did you talk to Mr.
9 Hernandez about that?
10 A. I don't remember having a conversation with him
11 about this list after I forwarded it to him, because I
12 knew he would fix them.
13 Q. Did Mr. Hernandez tell you to call the Millers
14 because it was time to pay $59,300?
15 A. Yes.
16 Q. Did you call them once?
17 A. Yes.
18 Q. That was the only time you called them?
19 A. I called her once.
20 Q. Okay. When?
21 A. When he asked me to call them. I don't know
22 exact date.
23 Q. Was it before or after the drywall had gone in?
24 A. I can't recall.
25 Q. Did you call and ask for the money after the
165
1 drywall went in?
2 A. I can't recall when -- when -- what phase the
3 house was in when he called me and asked me to ask for
4 the money.
5 Q. So, you asked them one time, and what was the
6 Millers' response?
7 A. They asked me to call you.
8 Q. When was that?
9 A. They retained you, I guess, after that, they
10 had issues with the house.
11 Q. So, they told you to call me?
12 A. Through e-mail or text message, I believe.
13 Q. Did you call me?
14 A. Yes, I called you.
15 Q. When did you call me?
16 A. I don't know the exact date, but I called you,
17 and then you said you were having your inspector come
18 from Corpus to inspect the house, for us to cease on the
19 house and not do any more work.
20 Q. Did you have an issue with us telling you we
21 wanted to have an inspector from Corpus Christi?
22 A. No issue at all. Just wanted to know what day
23 and time you were going to bring him.
24 Q. And did we tell you it was going to be July?
25 A. You told me July, but you never gave me a date.
166
1 Q. Did you ever ask for a follow-up?
2 A. Yes, I asked several times.
3 Q. How many times did you call me?
4 A. I think once or twice. But I asked more than
5 once as to when you were going to send your inspector,
6 and I also asked you why he had to come from Corpus.
7 Q. Have you had inspectors come from different
8 parts of Texas?
9 A. No.
10 Q. First time?
11 A. Yeah. Houston's a big city, they got a lot of
12 inspectors. You wanted that one from Corpus.
13 Q. Right. You had a problem with that?
14 A. No, just wanted to know the date when he was
15 coming.
16 Q. Have you ever been involved with construction
17 defect litigation?
18 A. No.
19 Q. You don't know anything about it?
20 A. No.
21 Q. In May, you got a letter from me. What did you
22 do with this letter that said stop construction?
23 A. I didn't do anything with the letter but
24 forward it to Mr. Hernandez.
25 Q. That was the extent of your involvement?
167
1 A. (Nodding.)
2 Q. Yes?
3 A. Yes.
4 Q. All right. Now, you knew that we had told you
5 that we were going to do a July inspection and that an
6 expert was going to come from Corpus, right?
7 A. Yes.
8 Q. When did Mr. Hernandez tell you to start
9 construction again or start selling the home?
10 A. Those are two -- that's a two-part question.
11 Q. All right.
12 A. I don't start construction.
13 Q. Let me ask you this: When did you find out
14 that Debo Homes was going to start construction again
15 after we asked them to stop?
16 A. I didn't know.
17 Q. You never knew?
18 A. I wouldn't say I never knew. I just didn't
19 know when he decided to do that. You'd have to ask him
20 that.
21 Q. You have no idea what date that would be from
22 when you learned?
23 A. No, sir.
24 Q. When did Mr. Hernandez tell you to start
25 marketing the house to sell to someone else?
168
1 A. August? I think August.
2 Q. Now, talk to me about that time period between
3 when the Millers said to stop and August. Did you ever
4 ask Mr. Hernandez what happened to the Miller agreement?
5 A. No.
6 Q. That's not your lane, right?
7 A. No.
8 Q. Mr. Hernandez says sell the house to someone
9 else, you sell the house to someone else, right?
10 A. It's not that simple.
11 Q. Well, walk me through it.
12 A. Well, I mean, you guys told us to stop. Your
13 inspector never came. We asked. July came, no one ever
14 came.
15 Q. Well, did you see the photographs from July?
16 A. I never seen anyone come, so I'm selling other
17 houses.
18 Q. Well, let me ask you this: You've never been
19 involved in construction defect litigation, right?
20 A. Huh-uh, no, sir.
21 Q. How hard is it to inspect for construction
22 defects when the house is done?
23 MR. MARTINEZ: Objection. He wouldn't
24 know, he's not an inspector.
25 THE COURT: Overruled.
169
1 Q. (BY MR. CROCKETT) Mr. Dominguez, how hard is it
2 to inspect for construction defects when the house is
3 completely done?
4 A. I wouldn't know, sir. I'm not an inspector.
5 Q. Would you be surprised that you'd actually have
6 to take down all the drywall, pretty much deconstruct
7 the entire house? Would that surprise you?
8 MR. MARTINEZ: Objection. He's saying
9 what an inspector would do to inspect the house.
10 THE COURT: Overruled.
11 Q. (BY MR. CROCKETT) Does it surprise you that
12 you'd have to deconstruct a finished house to find a
13 construction defect?
14 A. No.
15 Q. Would it make any sense to deconstruct a house
16 when just that alone would cost more than the house?
17 A. I wouldn't know the cost, sir.
18 Q. Did you ever see this letter of May 29th by Mr.
19 Hernandez?
20 A. Yes.
21 Q. Did he tell you to send this to the Millers?
22 A. I didn't send it, no.
23 Q. Did Mr. Hernandez ever tell you that Debo Homes
24 had agreed to give all their money back and just sell
25 the house to someone else?
170
1 A. Yes.
2 Q. He did, right?
3 A. Yes.
4 Q. Do you know if they've ever given any of the
5 money back, ever?
6 A. I don't write the checks, sir. I wouldn't even
7 know.
8 Q. After the Millers told y'all to stop
9 construction, they didn't make a payment, you didn't
10 have any further contact with them, is that right?
11 A. With the Millers?
12 Q. Right.
13 A. No.
14 Q. That was done?
15 A. Sir?
16 Q. That was done, right?
17 A. You told me in your e-mail not to contact them.
18 You told me to contact you.
19 Q. Did you ever see the letter that the Millers
20 received from Debo Homes' lawyers?
21 A. No.
22 Q. Did Mr. Hernandez ever tell you that, "Mr.
23 Dominguez, if you're ever out there on the property
24 again and you see the Millers, let us know, because we
25 want to vigorously prosecute them" --
171
1 A. No.
2 Q. -- "for trespass"?
3 A. No.
4 Q. Have you ever prosecuted or threatened to
5 prosecute anyone for trespass that's bought a home from
6 y'all?
7 A. No.
8 Q. First time?
9 A. Yes.
10 Q. Were you surprised that that's what Mr.
11 Hernandez told the Millers?
12 A. Am I surprised that that's what he told them?
13 Q. Yeah.
14 A. I mean, I don't know. I don't know how to
15 answer that question. That's him personally. You know,
16 I work with him. I don't know personally what he would
17 do, so I don't know how to answer that question.
18 Q. Okay. Did Mr. Hernandez ever tell you that
19 Debo Homes was not going to pay the Millers back the
20 full amount of their money after you, yourself, said
21 that he told you he would?
22 A. No, he never told me he wouldn't pay them back.
23 Q. Okay. So, this is the first time, in Exhibit
24 No. 7, or when this lawsuit got filed, that anyone from
25 Debo Homes, to your knowledge, has ever said anything
172
1 about not paying them back a hundred percent of their
2 money?
3 A. Yes.
4 Q. And you weren't aware that Debo Homes was suing
5 the Millers now for any lost profits or their attorney's
6 fees or interest or mortgage rates?
7 A. That's not part of my business, so no.
8 Q. How many potential buyers came to buy the
9 Millers' house?
10 A. I can't recall.
11 Q. Ten, 20, one?
12 A. Two, maybe three.
13 Q. And the Benges offered $168,000, and you sold
14 them the house, right?
15 A. Yes.
16 Q. Now, you know that the house that the Millers
17 were buying was different than the house you sold the
18 Benges, right?
19 A. It was different?
20 Q. Yes.
21 A. How so?
22 Q. Well, do you remember that the Millers' house
23 was supposed to have tile throughout?
24 A. Yes.
25 Q. Did the Benges' house have tile throughout?
173
1 A. Sir, I've sold about 30 houses from that time.
2 I can't recall what they had in that house.
3 Q. You just make the sales, right?
4 A. (No response.)
5 Q. You just make the sales, right?
6 A. I sell homes, yes, sir.
7 Q. Okay. And you've seen all the photographs that
8 we sent over to your lawyers?
9 A. I don't know if I've seen all of them.
10 Q. Are these the types of homes that you sell?
11 Whenever you've gone to look at them, do they always
12 look like this: Broken boards, crushed vents, boards
13 nailed together, hanging on the edge, boards that are
14 uneven?
15 A. Do you see the orange paint?
16 Q. Yeah. What's that?
17 A. Those are marks. Like I gave the can of red
18 paint to Mrs. Miller, because the framers are human and
19 make mistakes. So, the superintendent walks behind them
20 and marks everything that needs to be corrected. So,
21 those red paints and the orange are defects. So, the
22 superintendent walked the house, so the framer comes
23 back and corrects it.
24 Q. In all those houses that you've looked at and
25 sold, do they always look like these pictures?
174
1 A. You'd have to ask the superintendent. I don't
2 walk every house.
3 Q. Well, the ones that you have walked, tell me
4 that, did they all look like that?
5 A. I don't look at all the houses' frames, sir.
6 If it's brought to my attention, then I'll take a look
7 at it.
8 Q. And if it's not brought to your attention, what
9 happens?
10 A. Then the superintendent does his job and marks
11 them.
12 Q. But you don't know that, right?
13 A. Sir?
14 Q. You don't know that; you're not involved with
15 it, right?
16 A. No.
17 Q. Did you ever promise the Millers that Debo
18 Homes would use the highest quality subcontractors?
19 A. No.
20 Q. You would never say that, right?
21 A. I wouldn't ever say never.
22 Q. Well, do you know if you told that to the
23 Millers or not?
24 A. That I said the highest quality contractors?
25 Q. Yeah.
175
1 A. I never said that.
2 Q. Okay. You would never tell the Millers that
3 y'all partner with only the highest quality vendors
4 subcontractors and artisans in the industry, right?
5 A. That's not my part -- that's not part of my
6 job, to hire vendors and contractors. So, I would never
7 say that, because I don't know if they are or not.
8 Q. Well, let me ask you this: Did you ever
9 promise the Millers that they could be assured that, not
10 only will you have a quality, well-built custom home,
11 but that the buyers would be engaged in a process that
12 is truly customer first; building a home is indeed
13 process and one that is best meticulously managed?
14 A. I never use those words.
15 Q. Do you ever tell your customers to go to your
16 web site?
17 A. Yes.
18 Q. But what you say on your web site, that doesn't
19 matter?
20 A. Sir?
21 Q. What you say on your web site --
22 A. You asked me if I said that.
23 Q. Let me ask you this: What's on your web site
24 doesn't matter. Is that true?
25 A. I have to get back to that. You asked me if I
176
1 had said that. What did you say, meticulously this?
2 You were directing that to me. I thought you said if I
3 said that. I never said that. Now, if it's on my web
4 site, then it's on my web site. Those are two different
5 things.
6 Q. Well, do you tell customers that the project
7 needs to be managed, supervised, and that Debo Homes is
8 going to do that?
9 A. I don't tell my customers that it's going to be
10 managed.
11 Q. Do you tell your customers that the vendors and
12 the subcontractors are going to be good, great, average,
13 whoever is there that day?
14 A. I don't discuss that process with my customers,
15 unless they ask me specifically about the framing or the
16 roofing or this -- or the windows. And if I don't have
17 the answer, then I talk to the professional, which is my
18 boss, and he'll tell me what they asked. It's depending
19 on customer to customer, what specifically they ask me
20 about. I mean, I'll build a quality home. If they ask
21 if they should get an inspector, I gladly tell them,
22 "Yes, get one, so you can have peace of mind because
23 you're spending a lot of money, so I want you to be
24 happy with it."
25 Q. Well, I mean, you tell your customers that Debo
177
1 Homes' process of home buying from start to finish must
2 meet every one of our customers' expectations, right?
3 A. That's impossible.
4 Q. So, you tell people to go to your web site, but
5 you're not going to follow through with that?
6 A. If you look at my contract -- and you can put
7 up the contract -- it says -- when there's a part on
8 possession, it says the customer will take possession of
9 home upon funding and closing of the loan and with
10 everyday wear and tear.
11 Q. Right.
12 A. So, there are some issues with the home that
13 will be corrected, but that's what's on the contract. I
14 wouldn't say anything other than what would be on the
15 contract. That's why I go over the contract with the
16 customer. I don't over-promise and under-deliver.
17 Q. So, promises or representations that you make
18 to your customers that aren't in writing, you agree with
19 me that you have no intent, no -- I guess you can say
20 you're never going to honor those, right?
21 A. No. No, I wouldn't say that.
22 Q. Well, are you going to honor them, the
23 representations, the promises that you make?
24 A. We promise to build a good house, quality.
25 We're human beings, we make mistakes. That's why we ask
178
1 if they want to get it inspected, they can hire an
2 inspector to come check our work.
3 Q. I just want to ask you three things, though:
4 You know that you -- if you ever represent or promise
5 something, and it's not in the contract, you know that
6 you're not going to honor that, right?
7 A. No.
8 Q. You don't know that?
9 A. No. It's -- it just depends on the customer.
10 If they specifically ask me for something, then I'll
11 talk to the owner, then he'll do it. Sometimes those
12 are above and beyond what customers ask.
13 Q. You remember the Millers asked a whole lot of
14 questions, didn't they?
15 A. We made a lot of notes, yes. We changed walls
16 and stuff for them.
17 Q. The Millers asked you about the subcontractors,
18 people who were going to be building their house?
19 A. Did they ask me about them?
20 Q. Yeah.
21 A. Like what? Like what did they ask? What did
22 they ask me?
23 Q. What did they ask you?
24 A. I don't know.
25 Q. You don't remember what you told them either,
179
1 right?
2 A. If they used -- if we used professional
3 contractors? If they asked if they're people who were
4 licensed for their field, yeah, they are, but we have
5 our house inspected along the way as well.
6 Q. And talk to me about that. Who inspects the
7 home during that process?
8 A. An inspection company.
9 Q. And you tell your potential buyers about that
10 third-party inspection, don't you?
11 A. They ask if the house will be inspected, yes.
12 Q. And what do you tell them?
13 A. It will be inspected.
14 Q. Do you tell them how many times?
15 A. No.
16 Q. Do you tell them your relationship with that
17 inspection company?
18 A. I don't have a relationship with them.
19 Q. Well, who inspects all of Debo Homes' houses?
20 A. You'd have to ask Mr. Hernandez what the name
21 of that company is.
22 Q. You don't know?
23 A. No.
24 Q. You just know that a third-party, independent
25 inspector inspects it during the construction process,
180
1 right?
2 A. Yes.
3 Q. And that's what you tell your customers?
4 A. Yes.
5 Q. Do you ever remember telling the Millers that,
6 before they ever had to pay another payment, that any
7 problems in the home would be fixed?
8 A. Yes.
9 Q. And you believe here today that you have done
10 that, right?
11 A. Yes.
12 Q. And you would have never done anything
13 differently than what you did, right?
14 A. As far as the selling process or the
15 construction process?
16 Q. Either. Would you do --
17 A. I don't do the construction process. I do the
18 sales. I did a great job selling, selling them a home.
19 MR. CROCKETT: Pass the witness. Thank
20 you, sir.
21 THE COURT: Ladies and gentlemen, let's go
22 ahead and take our afternoon break at this time. If you
23 would please be back in the jury room at 3:30.
24 (Jury out)
25 THE COURT: See y'all back at 3:30.
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1 (Short break)
2 (Jury in)
3 THE COURT: Be seated.
4 Mr. Martinez, you may continue.
5 MR. MARTINEZ: Thank you, Judge.
6 DIRECT EXAMINATION
7 Q. (BY MR. MARTINEZ) Good afternoon, Kris.
8 A. Good afternoon.
9 Q. What do we have here in Exhibit 1?
10 A. A new home contract.
11 Q. Well, where is the other contract?
12 A. There is no other contract.
13 Q. Isn't this a financing contract?
14 A. No, it's cash.
15 Q. Kris, how long have you been with Debo?
16 A. This November will be ten years.
17 Q. And how many homes have you sold over that
18 time?
19 A. Several hundred, I believe, maybe.
20 Q. So, how do you approach the sale of a home with
21 a customer?
22 A. Just greet them, talk to them, find out what
23 they're looking for and see if I can accommodate what
24 they -- what they describe to me.
25 Q. Has it ever been the case where a customer came
182
1 to you, and they didn't end up wanting to buy a home
2 from Debo?
3 A. Yes.
4 Q. Now, when did you first meet the Millers?
5 A. I can't remember. Last year sometime.
6 Q. And how was it working with them? How would
7 you describe that?
8 A. It was good. I had a great experience working
9 with them.
10 Q. How many times did you meet with them?
11 A. More than ten.
12 Q. How about before y'all signed Exhibit 1 here?
13 A. More than ten times.
14 Q. Not just two?
15 A. No.
16 Q. How many times did you meet after you signed
17 Exhibit 1 here?
18 A. A lot more times.
19 Q. More than ten?
20 A. Yes.
21 Q. What did they ask about before they signed
22 Exhibit 1 here?
23 A. They had a lot of changes they wanted to make
24 to a current plan I had. So, we changed walls, added a
25 sink, did a lot of different things to accommodate what
183
1 they wanted in a house that would fit their needs.
2 Q. Did you give them a chance to look over this
3 contract here in Exhibit 1?
4 A. Yes. They took it home.
5 Q. Well, that's not what Ms. Miller said. She
6 said you wouldn't let her take it home.
7 A. I don't see why I wouldn't let her take it
8 home.
9 Q. She also said that Stan -- I believe you met
10 Stan?
11 A. Yes.
12 Q. Who is he?
13 A. Their Realtor.
14 Q. Was he there with you April 13th when y'all
15 signed Exhibit 1?
16 A. No.
17 Q. When did you meet him?
18 A. After, I believe.
19 Q. So, if his signature is on the end of Exhibit
20 1, when did it get signed by him?
21 A. When they took it home.
22 Q. Did the Millers ever tell you that they were
23 using all of their retirement money to purchase this
24 home?
25 A. No.
184
1 Q. Where did they tell you they got the money
2 from?
3 A. I believe it was an inheritance.
4 Q. Did the Millers ever tell you that they simply
5 wouldn't have any money to make repairs of the home?
6 A. No.
7 Q. Did you --
8 A. But I told them they wouldn't need any, because
9 it's a brand new house, and it has a warranty on it.
10 So, whatever the amount of house that was sold for, for
11 the time after, it would be warranted (sic), so they
12 wouldn't need any extra money.
13 Q. That was my next question: Does Debo send its
14 customers who buy a new home a bill for repairs?
15 A. No.
16 Q. I know we've seen a lot of pictures. I think
17 you saw a few of them.
18 A. Uh-huh.
19 Q. Did Debo send a bill to the Millers for a split
20 two-by-four?
21 A. No.
22 Q. Does Debo ever?
23 A. No.
24 Q. Did the Millers ever describe you what their
25 personal level of satisfaction was?
185
1 A. No.
2 Q. What were the Millers actually responsible for
3 paying for during construction?
4 A. Nothing.
5 Q. What about upgrades?
6 A. If they wanted to get upgrades and add
7 additional stuff opposed to the contract, we could make
8 an amendment, and then they would be charged accordingly
9 to whatever the fee was.
10 Q. And that was the only thing that they'd be
11 charged for out of pocket?
12 A. Yes.
13 Q. Let's look at that home selection sheet that
14 you mentioned. You recognize Exhibit 3 here?
15 A. Yes.
16 Q. And what is this?
17 A. That's the elevations for the home.
18 Q. And which one did the Millers pick?
19 A. The first one.
20 Q. And when did they decide on this?
21 A. In the office, while we were talking at one of
22 our meetings.
23 Q. This is before or after they signed Exhibit 1?
24 A. It was before.
25 Q. How about the second page there?
186
1 A. Are the changes of the wall and the back patio
2 and the window in the garage, so forth.
3 Q. How did that happen? What was happening at
4 this meeting when you sat down with them and went
5 through this?
6 A. They were telling me how they wanted the home
7 changed and configured to fit their needs, and we made
8 the notes and did so.
9 Q. How about that page, the third page of Exhibit
10 3?
11 A. Yeah, she had wrote those notes with her
12 concerns about the square footage and size of her rooms.
13 Q. And what about this, this note up here, if you
14 can read that?
15 A. She wrote that.
16 Q. What's that about?
17 A. I think she was -- the approximate square
18 footage of the house on the changes.
19 Q. Did she want to increase it?
20 A. Yeah, she increased it from 1,614 by pushing
21 out the back wall, changing some other things in the
22 house.
23 Q. Was that a problem with Debo?
24 A. No.
25 Q. Is that normal in your home-selling experience?
187
1 A. Yeah, sometimes.
2 Q. Did they come to you with any features that you
3 said, no, we won't do that?
4 A. No.
5 Q. Now, we've also seen some text messages here
6 today. Why did you text with the Millers?
7 A. They were texting me back and forth. Sometimes
8 customers will call me, text me or e-mail me.
9 Q. Well, why did you have lunch with them?
10 A. Like I say, when you asked how the experience
11 was, it was a great experience. We went out and had
12 lunch and talked about their house and other topics.
13 Q. What else did you do to make this experience,
14 you know, memorable in a good way for the Millers?
15 A. Accommodated all their questions on their house
16 and the notes they picked for the changes they wanted
17 for the dogs and the door, back door. They wanted a
18 back door where they can accommodate a big electric
19 doggy door. They wanted to add a sink in the garage.
20 They wanted to put a wall -- open a wall up and put a
21 window, so they could put a window unit, so when she was
22 cleaning her dogs or grooming her dogs, they'd be
23 comfortable in there.
24 Q. Did you tell the Millers when the sheetrock was
25 going to be installed on this house?
188
1 A. Yes.
2 Q. Did you give them a chance to inspect --
3 A. Yes.
4 Q. -- before it was put in?
5 A. Oh, yes.
6 Q. Now, what problems did the Millers express to
7 you about the construction?
8 A. Split boards, I guess the square footage of the
9 house they felt was incorrect. Just some smaller --
10 small issues, really.
11 Q. And what did you do to address those concerns?
12 A. I passed the information down to the correct
13 people to get it fixed.
14 Q. Well, why did you just pass it down, instead of
15 taking care of it yourself?
16 A. Because I don't do construction. I sell homes.
17 Q. About how many times did you actually visit the
18 home in question with the Millers?
19 A. A couple of times.
20 Q. And when was the last conversation you had with
21 the Millers before anything that was said today?
22 A. Around that last year, that time when they told
23 me to call their attorney.
24 Q. And when was that?
25 A. I can't remember the month.
189
1 Q. You can't remember?
2 A. Yeah, I can't remember.
3 Q. So, when you called them, what was said?
4 A. For me not to contact them anymore; that if I
5 had any other questions, to call their attorney.
6 Q. But you called them multiple times demanding
7 payment.
8 A. No.
9 Q. You were aggressive, Kris.
10 A. No.
11 Q. So, when were the Millers supposed to make
12 their second payment?
13 A. When my boss asked, so I guess it was prior to
14 sheetrocking.
15 Q. And how did you contact them for that second
16 payment?
17 A. I believe I called her and asked for the money.
18 Q. Is there a text message for that?
19 A. I don't remember.
20 Q. How was your demeanor when you asked for the
21 payment?
22 A. Extremely nice. I'm asking for almost $60,000.
23 Q. Is that a big decision?
24 A. It's a lot of money, yes. I respect that.
25 Q. I believe you said earlier you started
190
1 marketing the home in August?
2 A. Yes.
3 Q. Was it an easy resale on this home?
4 A. I mean, a couple of issues, I mean, with the
5 house, but -- it was a little rough, what the customer
6 had, because it had a brown roof and a couple of changes
7 that they had made.
8 Q. What do you mean by that, little issues, brown
9 roof? Why did you mention that?
10 A. Well, because they specifically asked -- we
11 mostly sell most of the houses with a black shingle
12 roof, but since they customized the house, we went and
13 did what they wanted, expecting they were going to buy
14 the house from me. So, we put a brown shingle roof on
15 it, changed out the back, put a bigger patio, which
16 normally we don't do because it's an upgrade. So, I
17 couldn't sell the house the way it was for what I wanted
18 to sell it for.
19 Q. How did you market this house after the Millers
20 walked away or didn't want to buy it?
21 A. We put it on -- a sign in the front, made
22 fliers and passed out fliers, maintained the grass and
23 the landscaping, and we had to put a desk and Internet.
24 I mean, I had to sit there and market the house for
25 resale.
191
1 Q. So, ultimately, who did you sell the house to?
2 A. To Benge, a family named Benge.
3 Q. And why would they only pay ten grand less than
4 what the Millers originally agreed to?
5 A. Because they didn't want to pay for the
6 upgrades as far as the size of the house and the extra
7 patio. I normally don't put sinks in the garage. So,
8 things like that.
9 Q. Is that house still standing today?
10 A. Yeah. They're very happy with it.
11 Q. Any complaints from them?
12 A. No.
13 Q. Have you ever had a situation like what we've
14 gone through with the Millers in this case?
15 A. No.
16 Q. Well, did you try and resolve the situation
17 with the Millers?
18 A. Oh, yes.
19 Q. How so?
20 A. By trying to figure out how we could fix it or
21 make them happy, because they did sit down with me at
22 length and had a lot of meetings and spoke about what
23 they wanted to do and make the house how they wanted it.
24 They were happy with the lot size and the yard and their
25 animals would be happy there. I wanted them to be happy
192
1 with the house.
2 Q. Kris, this is the contract again.
3 A. Yes.
4 Q. Here, there's a portion that says -- we'll
5 start with three. It says sales price?
6 A. Yes.
7 Q. What's it say in letter A?
8 A. Cash portion of sales price payable by buyer at
9 closing.
10 Q. And how much?
11 A. 59,300.
12 Q. How about the line below that?
13 A. The sum of all financing described below,
14 excluding any loan funding fee or mortgage insurance
15 premium, which is 118,700.
16 Q. How much is the total price?
17 A. Sales price is the sum of A and B, is 178.
18 Q. Well, if this is a cash deal, why does it say
19 financing on Line B?
20 A. Oh, because if it's going to be financing, then
21 you would mark one of the boxes that were going to be
22 financed.
23 Q. Are you referring to Section 4?
24 A. Yes.
25 Q. So, why is there no box marked here in Section
193
1 4?
2 A. Because it's not financing. It's a cash house.
3 Q. Where is the addenda to this financing
4 contract?
5 A. There isn't any.
6 Q. Why not?
7 A. There's no box marked.
8 Q. Kris, you recognize this contract?
9 A. Yes.
10 Q. What's this here in Exhibit 14?
11 A. This is the Benges' contract.
12 Q. All right. Let's go over the same sections.
13 What do we have there in Section 3, sales price?
14 A. Same thing, cash portion of sale payable by
15 buyer at closing is zero.
16 Q. What about B?
17 A. Sales price of sum of all financing described
18 below, excluding any loan funding fee or mortgage
19 insurance premium, which is $168,000. Total for C is A
20 and B combined, which is 168.
21 Q. Is this the financed home purchase?
22 A. Yeah, this is the boxes, finance.
23 Q. Are you referring to these boxes?
24 A. Yeah, paragraph four.
25 Q. Kris, whenever the home buyer signs a contract,
194
1 do they always deliver you a check on the same day?
2 A. No. Sometimes it will be the next day or a
3 week later a couple of days later. Depending on how the
4 meeting goes, they'll decide, you know, "Okay, well,
5 we'll sign the contract today. Oh, but I wasn't ready,
6 I don't have a check today." I'm like, that's fine, you
7 can bring a check the next day or a couple days later.
8 Q. Why did you call Mr. Crockett multiple times?
9 A. Oh, because I was told not to contact the
10 Millers anymore.
11 Q. What did you ask him about when you called him?
12 A. Oh, he had said that they were going to have an
13 inspector come out, and I called him and asked him when
14 he was coming.
15 Q. Did you ever get a firm answer?
16 A. No. I got a broad one, July, but never a date.
17 Q. When did you put those -- you mentioned earlier
18 that you put like fliers and a sign up on the house,
19 correct?
20 A. Yeah. A sign, yes.
21 Q. When did you put those up?
22 A. In August.
23 Q. Is this Plaintiff's Exhibit 2 what you're
24 talking about?
25 A. Yes.
195
1 Q. How about that one?
2 A. Yes.
3 Q. When was that put up?
4 A. The same time.
5 Q. And that little sign right there?
6 A. Yes, same time, August.
7 Q. Real quick, since you mentioned this earlier,
8 is this the -- are these the other homes in the
9 neighborhood?
10 A. Yes, sir.
11 Q. What color are those roofs?
12 A. Black.
13 Q. Is that the Millers' home right there?
14 A. Yes.
15 Q. And what color is the roof there?
16 A. Brown.
17 MR. MARTINEZ: Nothing further. I pass.
18 MR. CROCKETT: Short redirect, Your Honor,
19 or recross.
20 RECROSS-EXAMINATION
21 Q. (BY MR. CROCKETT) Mr. Dominguez, when you were
22 selling the home to the Benges, did you tell them about
23 the Millers' construction defect claim?
24 A. No.
25 Q. Think that would have stalled the sale?
196
1 A. No.
2 Q. You just did a good job selling to them, right?
3 A. No.
4 Q. You didn't sell good to the Benges?
5 A. They could have hired an inspector.
6 MR. CROCKETT: No further questions,
7 Judge.
8 MR. MARTINEZ: One quick question.
9 REDIRECT EXAMINATION
10 Q. (BY MR. MARTINEZ) Kris, is this the -- in
11 Exhibit 8, is this the home that you sold to the Benges?
12 A. Yes, sir.
13 Q. What do we see there?
14 A. The back of the home.
15 Q. How about that?
16 A. Yeah, that's the house.
17 Q. What's that?
18 A. Ants.
19 Q. How about this?
20 A. That's the inside.
21 Q. How about these pictures?
22 A. Yes, sir, that's it.
23 Q. Is that carpet in the bedroom?
24 A. Yes.
25 Q. How about these?
197
1 A. It's the bathroom, bedroom, carpet on the
2 floor.
3 Q. How about that one?
4 A. That's the attic.
5 MR. MARTINEZ: Nothing further, Judge.
6 MR. CROCKETT: No questions, Your Honor.
7 THE COURT: May this witness be excused
8 and released?
9 MR. MARTINEZ: Yes, Judge.
10 MR. CROCKETT: Yes, Judge.
11 THE COURT: Thank you, sir. You may step
12 down. You're excused and released.
13 THE WITNESS: Thank you.
14 (Witness out)
15 MR. KANYHA: Your Honor, the Plaintiffs
16 would like to call Brian Crockett.
17 BRIAN CROCKETT,
18 having been first duly sworn, testified as follows:
19 DIRECT EXAMINATION
20 Q. (BY MR. KANYHA) Mr. Crockett, I'm going to ask
21 you a few questions about the work that you and I have
22 put in this case, but before I begin to ask you these
23 questions, could you introduce yourself to the jury?
24 A. My name is Brian S. Crockett. Obviously,
25 before I was a lawyer, I spent a long time in the
223
1 were just getting the bottled water filled up so he
2 could have it on the stand.
3 MR. CROCKETT: May we begin, Your Honor?
4 THE COURT: Yes, sir.
5 JUAN CARLOS HERNANDEZ,
6 having been first duly sworn, testified as follows:
7 CROSS-EXAMINATION
8 Q. (BY MR. CROCKETT) Mr. Hernandez, can you please
9 state your name for the jury?
10 A. Yeah, Juan Carlos Hernandez.
11 Q. Mr. Hernandez, you are the president, the owner
12 of Debo Homes?
13 A. Yes, sir.
14 Q. Okay. Now, are you aware of all of the
15 promises or representations that Kris Dominguez makes to
16 its potential buyers?
17 A. Yes, sir.
18 Q. Okay. What do you tell him to say?
19 A. Excuse me?
20 Q. What do you tell him to say?
21 A. Well, when he come to me, it's me and my son,
22 and we going to make decisions. And I always trying to
23 get together and fix them up, you know. But it's no
24 way -- it's nothing to fix over here, because she don't
25 want to deal with us. The first time I asked her is
224
1 when I seen you sent us a letter, and she said
2 construction. I said what does that mean, you know?
3 I'm just trying to work it out nice with this lady, make
4 a house. And, you know, we make a house, and I see
5 people cry in the closing and everybody happy, you know.
6 And that's why I want to talk to them, but she -- after
7 you sent the letter, that's it.
8 Q. After you received our letter, you found out
9 about the -- at least the concerns that Ms. Miller had,
10 correct?
11 A. Yes, sir.
12 Q. All right. And you saw the photographs that
13 Ms. Miller had provided to y'all, right?
14 MR. WELSCHER: Excuse me, Your Honor. May
15 I approach the witness with the bottled water?
16 THE COURT: Yes, sir.
17 MR. WELSCHER: Thank you. (Handing.)
18 Q. (BY MR. CROCKETT) Exhibit No. 2, do you
19 remember seeing this photograph, sir?
20 A. Yeah, I seen that picture.
21 Q. And you would agree with me that that's not a
22 big deal, right?
23 A. That's correct. You know, it's -- those things
24 can be fixed easy. You know, you put another stud
25 together, and it's done.
225
1 Q. How do you fix it again?
2 A. You just put another stud together and you --
3 not take out that one, you just put a strong, good one,
4 and you're done with it, very easy.
5 Q. So, you nail another piece of wood into that
6 one?
7 A. No, another straight two-by-four, replace that
8 for a new one. That's it, that's easy.
9 Q. Tell me about this here. What was the issue
10 here, Mr. Hernandez?
11 A. Well, that house is not finished, you know.
12 That's why when I listen, you know, these things, the
13 house is not even finished. It's not even working by
14 the superintendent. At the last minute, we got an
15 inspector coming, we got procedures in the construction,
16 you know. This right there, they got the new stud and
17 the glue in and everything. They don't even know what's
18 going on there, you know. After you can turn, you can
19 see the stud right there. You got to put joists, and
20 every joist is right there, you know. But we're still
21 not in the procedure. That house, it's not finished
22 framing. It's a procession that you got to finish step
23 by step.
24 Q. Talk to me about what you're pointing at over
25 here. What is that? Is that the beam that supports the
226
1 house?
2 A. No. The beam is on the bottom, and this is the
3 joist. That beam support the joists, and you got to put
4 the joist hanger right there, tie the joist into the
5 beam.
6 Q. What's this one called?
7 A. This is a joist. It's not a beam.
8 Q. Okay. What's this one called?
9 A. A beam, yes.
10 Q. All right. I think we're getting there. So,
11 you're saying that each one of these joists --
12 A. Yes.
13 Q. -- should have basically a hanger that ties
14 into the beam?
15 A. Yes, it's a joist hanger, that's correct.
16 Q. Now, why isn't there joist hangers?
17 A. Because the framing haven't finished.
18 Q. How do the joys hangers get put in?
19 A. Do you know what is a joist hanger?
20 Q. I do.
21 A. What is it?
22 Q. The issue is your joist hangers, is if you
23 already don't have them in, don't you connect them back
24 into the beams?
25 A. Yes, sir. We do the -- we fix all the stuff.
227
1 Even my superintendent, he mark it and paint it and
2 everything. And when the framer coming, he punching out
3 the whole house.
4 Q. So, you put your hangers, your joist hangers
5 over the top of the nails?
6 A. That's the way it's supposed to be.
7 Q. Okay. So, you nail it in first, then you put
8 your joist hangers over the top?
9 A. You put the joist hangers on it, and they got
10 like five holes in every one, nail it together even in
11 the joist hanger.
12 Q. Got you. Now, you know these pictures were
13 taken May 9th, 2013, right?
14 A. That's correct. I don't know when they took it
15 out, you know. I see the pictures later on, you know,
16 when they coming to me, you know.
17 Q. Now, you mentioned an inspection. When does
18 that inspection happen, Mr. Hernandez? This company,
19 tell us about it.
20 A. I don't remember when the superintendent called
21 for the inspection. You know, they call for an
22 inspection, and, you know, I'm in -- I'm the person in
23 the construction and my superintendent got to call when
24 it's ready. When he feels it ready, he call for
25 inspection.
228
1 Q. Tell us about that company that comes out and
2 inspects it.
3 A. It's Mortgage Property Service. It's an
4 inspector company, inspect houses, different builders,
5 you know, and they do three inspections. They do the
6 foundation inspection, they do the framing inspection,
7 and they do the final inspection.
8 Q. Do you know when MPS did this inspection for
9 the framing?
10 A. It's not yet. The framing is not even
11 finished. How he going to inspect it? When Michael
12 call him, he show up the next day. You call over there,
13 and they say, "What time do you want the inspection, in
14 the morning or the afternoon?" And that's when he's
15 ready.
16 Q. And every time that the inspection place comes
17 out, you get a bill for $103.72, right?
18 A. I don't pay the bills. We just -- whatever
19 bill they send to us, that's what we pay for.
20 Q. All right. So, I'm going to show you
21 Plaintiff's Exhibit No. 10. This is the actual cost
22 list, and that's how you keep track of your actual
23 costs, right?
24 A. That's correct.
25 Q. Now, you see right there where it says MORTGAGE
229
1 Property Services, Inc.?
2 A. Yes.
3 Q. And it says $103.72?
4 A. That's correct.
5 Q. So, after each inspection that he does, he
6 charged you $103.72?
7 A. That's correct.
8 Q. Okay. Does he ever come back for free?
9 A. Excuse me. Does he work for free?
10 Q. Yeah.
11 A. You work for free?
12 Q. No. My question is: Does he work for free?
13 A. No. No one --
14 Q. That's right. No one will work for free,
15 right?
16 A. You confuse the question.
17 Q. Now, after the Mortgage -- or MPS comes out and
18 inspects it --
19 A. Yes.
20 Q. -- then he writes a report, and he makes
21 recommendations, correct?
22 A. That's correct.
23 Q. All right. Showing you what's been marked as
24 Defendant's Exhibit No. 6. This is one of Mr.
25 Sullivan's reports.
230
1 MR. MARTINEZ: Well, Judge -- never mind.
2 Sorry.
3 MR. CROCKETT: It's your exhibit.
4 A. Yes, it is.
5 Q. (BY MR. CROCKETT) The foundation is the first
6 inspection, right?
7 A. That's correct.
8 Q. At this stage, Mr. Sullivan identified these
9 issues to be taken care of, and that when they were,
10 work is to proceed, right?
11 A. That's correct.
12 Q. All right. How long have y'all been using MPS?
13 A. Since we started building houses.
14 Q. And do they inspect all your houses?
15 A. Yes, sir.
16 Q. Okay. Do you know Mr. Sullivan pretty well?
17 A. No. I know the company.
18 Q. You know the company well?
19 A. I mean, sometimes, when it's in the field, and
20 I shake hands, and that's it.
21 Q. After he does an inspection, if it is a minor
22 issue, he'll say correct and proceed, right?
23 A. That's correct.
24 Q. Okay. The date of this inspection -- I don't
25 know. Can you see that? It says --
231
1 A. 4-25-13.
2 Q. 4-25-13?
3 A. Yes, correct.
4 Q. April 25th. So, at that point in time, the
5 foundation is completely done?
6 A. The makeup done. The foundation got a
7 different process, okay? It's not for pouring the
8 concrete.
9 Q. I follow you.
10 A. Okay.
11 Q. After the second inspection gets over with --
12 A. Uh-huh.
13 Q. -- the drywall goes in, right?
14 A. That's correct.
15 Q. If there's any problems with the home, it needs
16 to be fixed before the drywall goes in, right?
17 A. That's correct.
18 Q. Why is that?
19 A. They always fix it. When the inspector say
20 something wrong, they fix it and they're ready for
21 drywall. After they finish the framing, the insulation
22 came.
23 Q. Right.
24 A. When the insulation is done, we make sure all
25 the plumbing, electrical, alarm and everything is
232
1 complete. Even we do -- we put termite inspection on
2 the house system and everything is done. And we proceed
3 on that. Superintendent proceed in the system. We got
4 a system that everybody follow. Michael follow the
5 system, and we use it for almost 15 years.
6 Q. In that system, all the problems need to be
7 fixed before drywall comes on because of what?
8 A. Because if the inspector say -- the inspector
9 give us the okay, go ahead, it's ready. When he come
10 inspect it, we fix it. We sheetrock, we put drywall.
11 If we don't fix any things that the inspector say, we
12 cannot put the drywall.
13 Q. Right. If the inspector says it's not fixed,
14 you can't do anything as far as putting the drywall,
15 right?
16 A. The inspector, yes.
17 Q. Now, you've seen these photographs. Is that
18 how y'all build your AC units, like this?
19 A. Well, all the AC units is different. It's a
20 brand new unit. You know, what is it, the bar around
21 here? This is the base of the boards, and this is the
22 dampers going into the system to the houses, and it's
23 all filled in with special things that they do. And
24 they're professional, you know. It's the way they do
25 the system. I know this company. They do the AC unit,
233
1 you know.
2 Q. Let me ask you this: You see this drip pan
3 that's supposed to catch the water?
4 A. Yes.
5 Q. What's catching the water that comes out this
6 way?
7 A. It's another drain that they got in case
8 something -- problems with the house, it's another drain
9 they got that go to the water. It's a drain for -- if
10 something happen, it's a secondary drain.
11 Q. What if the water drips off of here, though, it
12 goes --
13 A. No, they got a drain. There's a pipe going to
14 the outside, to the side.
15 Q. Show me where that drain's at on here.
16 A. It's on the other side. The inspector check it
17 out. The drain is on the other side. If you want to
18 see the house, you can take a look at it. They don't
19 pass if you don't got the secondary drain, you know.
20 It's normally for everybody. The inspector can take
21 good pictures.
22 Q. Let me ask hyou this: This foundation here,
23 why do you put Tyvek on the outside of a home? What is
24 Tyvek?
25 A. What does it mean, Tyvek?
234
1 Q. Tyvek, Tyvek.
2 A. Oh, it's Tyvek, it's protection for the
3 plywood. We do all the plywood houses, and we put a
4 protection for the plywood.
5 Q. Right. What happens if water gets on the
6 actual frame or the plywood?
7 A. That water seeping, they get to the weep holes
8 of the brick. The weep holes, what she saying
9 infestation over there, it's the weep holes. It's where
10 the houses got two inches between the wall and the
11 brick. That way, you get a drain over there. When the
12 brick is sweating, that water is coming to the weep
13 holes. But a lot of people, they don't know
14 construction. But that's what it is. All the houses in
15 Houston, the brick is five and a half inches.
16 Q. Right.
17 A. You got to go between the brick and the wall.
18 You don't want to put the brick up against the wall.
19 Q. Well, you agree with me that the actual
20 exterior of the wall, if you're in construction, you
21 know that water is always going to get through that
22 Hardiplank, that brick, whatever. It's going to get
23 behind that wall.
24 A. But you got the water, it coming in the drain.
25 Q. That's why you've got this Tyvek, right?
235
1 A. No. That is to protect the plywood. You see
2 this black ply? Going 18 inches -- 16-inch poly, they
3 wrap it -- before they put the Tyvek, they go 16 inches
4 under the Tyvek and wrap it up to the edge of the
5 foundation. That way, if you got a leak, they drip onto
6 the poly, this black poly right here.
7 Q. What happens if this --
8 A. Fix it. The brick guys coming, they wrap up
9 the poly, take another one and fix them up. And always
10 my superintendent is there to watch it, you know.
11 Q. Well, that's a good question.
12 A. But this foundation is not even -- this house
13 is not even finished. That's why these people, you
14 know, I never understand. When they take pictures, she
15 want to take pictures, and the house is not even
16 finished.
17 Q. Let me show you some of the repairs here. Is
18 that how you do the repairs, is that -- where you hang
19 the other piece off of it?
20 A. This is not a repair. I think somebody
21 coming -- they got a lot of those in the subdivision.
22 Maybe they come in and drag the poly, because when the
23 brick is going to be done, it's going to fix it, you
24 know.
25 Q. Okay. Well, let's look at when the brick goes
236
1 on. Is that the picture we're talking about right here?
2 A. Yeah. You see the brick and the poly is
3 already wrapping to the other side, and this shrink over
4 there, this shrinking is not on. When they go in this
5 section, they put another piece of poly and drop it
6 down, and later on, they got the poly to the edge of the
7 foundation.
8 Q. That's a good-looking job right there, right?
9 A. No, it's not. It's not finished. You see,
10 when that brick is done is when you got the house
11 finished. That's why they work on the house until the
12 end, you know.
13 Q. How do you get back there and add the
14 waterproofing behind the brick?
15 A. You tear down this Tyvek, pull it out and put
16 another poly underneath and drop it down. It's very
17 easy and simple.
18 Q. Mr. Hernandez, when did y'all make the decision
19 that you were not going to sell the home to the Millers
20 anymore? When did you say, "Hey, you know what, they
21 don't own it"?
22 A. Well, you sent us a letter on the 22nd, right,
23 cease work, and the contract expire on June 3rd. And
24 after June 3rd, they don't have no more contract with
25 us. I asked lawyer -- I told my son to call the lawyer
237
1 and see if we can continue to the house, because we
2 spent a lot of money already in the house, and we need
3 to continue and get our money back. That's when they
4 call us, you know, when we can do it. And after the
5 contract expiring June 3rd is when we stopped it for
6 almost two weeks and a half, and we continued to work
7 after the contract terminated.
8 Q. So, June 3rd, you said that that's a done deal,
9 they don't own it?
10 A. Monday? I never say that.
11 Q. Well, June 3rd, you said was the closing.
12 A. June 3rd. Yes, June 3rd.
13 Q. Yes.
14 A. Yes.
15 Q. Okay.
16 A. I talked to my lawyers. I ask my lawyers when
17 we can continue house, to keep on going, and that's what
18 we do.
19 Q. All right. Why didn't you ever tell us that
20 you were just going to finish the house?
21 A. What did you tell us in your letter? Don't
22 talk to anybody until you, you know.
23 Q. Well, you knew about the July inspection,
24 right?
25 A. No.
238
1 Q. Kris never told you that?
2 A. No. How did you know we continue, because you
3 leave the house on the 22nd, don't -- you know, don't do
4 any construction. So, that mean I think you terminate
5 the contract or something. Then we just -- I wait until
6 you let us know, you know.
7 Q. Well, you got -- you got my letter, and you
8 said that that was it, done deal. But then you wrote
9 the Millers a letter May 29th. You remember -- you
10 remember this letter?
11 A. I'm trying what I do in my good faith. I'm a
12 very professional and honest people in my life. I got
13 35 years in construction. I always trying to negotiate
14 with them and see if they want to work with me. I never
15 even ever meet her. I never seen them. So, maybe she
16 come in to me and see if we can deal together and keep
17 on going, because I know she want the house, and I was
18 trying to be fair. If she want to continue the house,
19 let's go fix the problems and we can go for it. But she
20 never saw the house. After that, they say, you know
21 what, on the 22nd, "Don't talk to us." I tell my son,
22 send a letter on the 29th, if she want to work out
23 something to remedy the problem. I think it's very easy
24 to fix.
25 Q. In order to fix this problem, did they need to
239
1 pay you $59,300?
2 A. Excuse me?
3 Q. In order to fix this problem, did they have to
4 pay you $59,300?
5 A. What do you mean pay me?
6 Q. Wasn't that the next payment?
7 A. Yeah, that's correct. That's correct.
8 Q. Right. When you do cash installments, it's
9 before the drywall, right?
10 A. Yes. Do you know how much money you spend from
11 the buy the lot and do the foundation, the framing and
12 everything? You know how much money is in it? I don't
13 think you have no idea.
14 Q. Well, by looking at your cost sheet here --
15 A. Uh-huh.
16 Q. -- to build the entire Miller home, just the
17 actual cost -- this is just your hard costs, right?
18 A. Yeah. Yes.
19 Q. So, this sheet here that says -- vendor
20 summary, it says $44,140.99, right?
21 A. Yes.
22 Q. And then you hired the trades, and the trades
23 come in, and they do work, the trades, subcontractors?
24 A. That's correct.
25 Q. Right?
240
1 A. Yes.
2 Q. And each one of these subcontractors is listed
3 here?
4 A. Yes.
5 Q. And you paid those trades, it says, $86,359.79?
6 A. That's correct.
7 Q. Who is the trade that you paid the most money?
8 A. It's the -- it's the frame material, the
9 foundation and the -- it's the frame material,
10 foundation and framing cost.
11 Q. Let me ask a you a little bit different
12 question. What subcontractor do you pay the most amount
13 of money on this contract?
14 A. I think it's the foundation.
15 Q. The foundation?
16 A. Because it's a turnkey.
17 Q. Because what I counted up the most is J. C.
18 Hernandez Construction.
19 A. It's the foundation.
20 Q. Is that your company?
21 A. Yes. It's another company. We got the
22 construction company on the house.
23 Q. So, the most expensive subcontractor is your
24 other company?
25 A. Excuse me?
241
1 Q. The most expensive subcontractor --
2 A. It's the cost of the foundation. The most
3 important is the foundation.
4 Q. It's your other company, though, right?
5 A. We run another company. I do foundations all
6 my life. 35 years, I do foundation. So, I used to do a
7 lot of foundations.
8 Q. And in this cost sheet, Kris Dominguez got two
9 commissions here, commissions here, and this breakdown
10 says there was three other commissions.
11 A. Excuse me?
12 Q. Did Kris get multiple commissions for each sale
13 of this home?
14 A. Sir, Kris Dominguez got an advance check every
15 Friday, advance. At the end, when we are done, we
16 calculate the commissions. He made 2 percent -- 2.5
17 percent commission, and we only paid four weeks in
18 advance, which is $2,100. We just counted, paid the
19 rest of the money. But sometimes he want to keep and
20 save the money and pay when we do us another house.
21 That's the way he work. At the end of the year, we
22 total the amount. If we owe him some money, we give him
23 a check for the total.
24 Q. You've already sold this home to the Benges,
25 right?
242
1 A. That's correct.
2 Q. And you've already got the money from that
3 sale, right?
4 A. That's correct.
5 Q. And in your letter of May 29th --
6 A. Yes.
7 Q. -- you told the Millers that, as soon as that
8 house was sold, you'd pay them a hundred percent of
9 their money back?
10 A. Yeah, that's correct. I don't want to keep
11 money that's not mine, you know.
12 Q. You would agree with me that the $60,300 is not
13 yours?
14 A. That's correct, it's not. It's their money.
15 It's their money. I never say I'm going to keep her
16 money, you know. I know she need the money, and we need
17 the money. So, I never -- right here I think is
18 something that really I never -- I never keep somebody's
19 money that's not mine, you know. I'm very honest people
20 than to keep somebody else money.
21 Q. And you'd agree as you sit here now, you're not
22 suing the Millers for $10,000 or your attorney's fees or
23 anything, correct?
24 A. Well, it's what we put right there. She won't
25 agree when we selling the house, we giving the money
243
1 back. She don't lose -- I lose money, because I need to
2 have my lawyer, and she lose money because she had to
3 hire a lawyer, I think it's a fair deal then we can
4 working together. She never respond. "Talk to my
5 lawyer." She always say, "Talk to my lawyer," which is
6 you.
7 Q. My question, though, was: You're not here
8 today asking this jury for $10,000, are you?
9 A. Well, if we working together, to me, I prefer
10 to give them the $60,300, and that's fine to me. At
11 this moment, even my attorney right now, he's here, you
12 know. Yes, correct.
13 Q. Right. You're not seeking your attorney's fees
14 or your $10,000, right?
15 A. No.
16 Q. Mr. Hernandez, earlier you told me that if your
17 inspector came back and told you that the framing was
18 not done, you should never and would never continue with
19 construction by putting the drywall and covering up
20 those defects, correct?
21 A. That's correct.
22 Q. Have you seen the May 10th inspection report
23 from your inspector?
24 A. No. My superintendent seen it. I don't see
25 the inspection report.
244
1 Q. Well, this was done the day after those photos
2 where you were talking about those joist hangers.
3 Remember that? You said it's not done yet, it's not
4 done at all.
5 A. You know about the frame?
6 Q. Yeah.
7 A. The frame, the frame punch-out takes about four
8 or five hours to do it.
9 Q. This one right here, remember, we talked about
10 this?
11 A. Yes, that's correct.
12 Q. This is May 9th.
13 A. Yes.
14 Q. Talked all about the joist hangers and all
15 that, right?
16 A. Uh-huh, yes, sir.
17 Q. If you don't install joist hangers, what
18 happens?
19 A. In the future, probably the joist hanger --
20 maybe 10, 15 years, the joist hangers fall down, because
21 the nails -- depends how many nails the framer putting
22 in. That's why the safety, the joist hangers, that's
23 why they put them in, you know.
24 Q. You see here on May 10th --
25 A. Uh-huh.
245
1 Q. -- your inspector said, "Add the joist hangers
2 at the family room."
3 A. Uh-huh.
4 Q. See that?
5 A. Yes.
6 Q. You know what he told you after that, or your
7 superintendent?
8 A. I don't know.
9 Q. Says right there, says --
10 A. Correct. And proceed, that's correct.
11 Q. No, no. It says, "Correct items noted above,
12 call for reinspection." He was saying it didn't pass
13 go. He said it needed to be reinspected.
14 A. I don't know. I don't see that one. I don't
15 see that one. But I think Michael did call him again,
16 and he come back and check it out.
17 Q. Well, I wanted to make sure. That's why I
18 asked you earlier.
19 A. Well, I don't know. I don't see that one, you
20 know.
21 Q. Nobody works for free, right?
22 A. That's correct.
23 Q. Let's work this one out together. You got May
24 10th. You see that one?
25 A. Uh-huh.
246
1 Q. That's when he didn't work for free?
2 A. Uh-huh.
3 Q. And then what have we got next? Looks like
4 August 7th, 2013?
5 A. That's correct. That's the final.
6 Q. Let me show you -- on August 7th, 2013, show me
7 the joist hangers, Mr. Hernandez.
8 A. How you going to show it when it's already
9 sheetrock over, please? When I turn around the
10 sheetrock, I bet you it's there. You can do it, you
11 know.
12 Q. Let me ask you this, though --
13 A. The joist hangers takes only about one hour,
14 two hours to put it in before we sheetrock.
15 Q. By August 7, when he came back out again, the
16 house was done?
17 A. That's correct.
18 Q. There is no inspection that took place before
19 y'all drywalled?
20 A. I don't remember if Michael call again to the
21 inspector, so I can't answer that question.
22 Q. Maybe he did, maybe he didn't, right?
23 A. I don't know.
24 THE COURT: Counsel, let's go ahead and
25 break for the day. Ladies and gentlemen, please
247
1 remember the instructions I've given you: That is, do
2 not talk about the case. Do not do any research on your
3 own. Do not -- sir, sit down. Sit down.
4 THE WITNESS: Okay.
5 THE COURT: Do not do any type of research
6 on the Internet. Don't talk to anybody about the case,
7 even amongst yourselves. Don't do any posting of this
8 case on the Internet or any of the social web sites.
9 With that, have a good evening. We'll see
10 y'all back 8:45 in the morning.
11 (Jury out)
12 THE COURT: Counsel, see y'all in the
13 morning.
14
15 * * * * * * * * * * * *
16
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18
19
20
21
22
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25
1 R E P O R T E R'S R E C O R D
2 VOLUME 4 of 6
3 Trial Court Cause No. 13-DCV-209822
FILED IN
14th COURT OF APPEALS
4 Appellate Cause No. 14-15-00004-CV
HOUSTON, TEXAS
5/12/2015 1:48:51 PM
5 LAUREL MILLER AND )IN THE DISTRICT COURT
CHRISTOPHER A. PRINE
ELIANA MILLER ) Clerk
6 )
vs. )FORT BEND COUNTY, TEXAS
7 )
)
8 DEBO HOMES, LLC )400TH JUDICIAL DISTRICT
9
10 _________________________________________________
11 TRIAL
12 _________________________________________________
13 On the 21st day of August, 2014, the
14 following proceedings came on to be heard in the
15 above-entitled and numbered causes before the
16 Honorable Clifford Vacek, Judge Presiding, held in
17 Richmond, Fort Bend County, Texas:
18 Proceedings reported by Computerized
19 Stenographic Method.
20
21 VANESSA C. OWENS, CSR
DEPUTY COURT REPORTER
22 FORT BEND COUNTY COURTHOUSE
RICHMOND, TEXAS 77469
23
24
25
Vanessa C. Owens, CSR
P.O. Box 236, Alvin, Texas 77512
281-331-2843
2
1 A-P-P-E-A-R-A-N-C-E-S
2
3
MR. BRIAN H. CROCKETT
4 SBOT NO. 24074094
10565 Katy Freeway, Suite 400
5 Houston, Texas 77024
Telephone: 713-779-3467.
6 Fax: 888-779-3237
E-mail: Brian@crockettlawtx.com
7 ATTORNEY FOR PLAINTIFFS
8
9
10
MR. NICHOLAS MARTINEZ
11 SBOT NO. 24087986
MR. CRAIG WELSCHER
12 SBOT NO. 21167200
THE WELSCHER LAW FIRM
13 1111 North Loop West, Ste., 702
Houston, Texas 77008
14 Telephone: 713-862-0800
Fax: 713-862-4003
15 ATTORNEY FOR DEFENDANT
16
17 ALSO PRESENT:
18 INTERPRETER -
DIANE E. TEICHMAN
19 713-263-9237
20
21
22
23
24
25
Vanessa C. Owens, CSR
P.O. Box 236, Alvin, Texas 77512
281-331-2843
3
1 CHRONOLOGICAL INDEX OF EXAMINATIONS
2 VOLUME 4 of 6
3 TRIAL
4 AUGUST 21, 2014 Page Vol.
5 PLAINTIFF'S WITNESSES DIRECT CROSS VOL.
6 JUAN HERNANDEZ 8 9 4
7 Plaintiffs Rests.......................... 74 4
8 Defendant's Motion for Instructed Verdict.. 74 4
9 Court's Ruling............................ 77 4
10 DEFENDANT'S WITNESSES DIRECT CROSS VOL.
11 EDUARDO CISNEROS 79 96 4
12 JUAN HERNANDEZ, JR. 112,139 129 4
13 CRAIG WELSCHER 140 4
14 Defendants Rests........................... 148 4
15 Adjournment................................ 149 4
16 Court Reporter's Certificate............... 150 4
17
18
19
20 ALPHABETICAL INDEX
21 EDUARDO CISNEROS 79 96 4
22 JUAN HERNANDEZ 8 9 4
23 JUAN HERNANDEZ, JR. 112,139 129 4
24 CRAIG WELSCHER 140 4
25
Vanessa C. Owens, CSR
P.O. Box 236, Alvin, Texas 77512
281-331-2843
6
1 that that was the contract. So your request is
2 denied.
3 MR. MARTINEZ: Well, you find that that
4 was the only contract, I believe.
5 THE COURT: Right.
6 MR. MARTINEZ: So there is no other
7 contract, and they are suing under the contract, we
8 haven't seen in the case, yet. So if it's not in
9 writing, which we haven't seen, then it's barred.
10 THE COURT: Your request is denied.
11 Bring them in.
12 THE BAILIFF: All rise.
13 (Jury in.)
14 THE COURT: Be seated.
15 Mr. Crocket, you may continue.
16 MR. CROCKETT: Your Honor, before we
17 begin, I wanted to be able to admit Exhibit No. 6
18 into the record.
19 (Plaintiff's Exhibit 12 was offered.)
20 MR. MARTINEZ: Judge, I believe counsel
21 already showed it to the jury and showed it to
22 everyone else. So he waived it.
23 THE COURT: What is Exhibit 6?
24 MR. CROCKETT: It's the three inspection
25 reports. It's Defendant's Exhibit 6, Your Honor.
Vanessa C. Owens, CSR
P.O. Box 236, Alvin, Texas 77512
281-331-2843
7
1 It's the MPS the foundation inspection, the framing,
2 and we're not sure what that is, but it says it was
3 the inspection.
4 THE COURT: I show Defendant's Exhibit 6
5 is a letter from the defendants to the Millers.
6 MR. CROCKETT: Then I might be out of the
7 numbers. This is the original.
8 MR. MARTINEZ: Judge, this is our amended
9 exhibit list. That's correct. It's Exhibit 6.
10 Because originally when we admitted our exhibits we
11 said we'll admit 1 through 5, and we skipped 6. I
12 guess we didn't admit it. So we went after that to
13 7. So that's why there's a gap.
14 THE COURT: So you're offering Defendant's
15 Exhibit 6?
16 MR. CROCKETT: Yes, Your Honor.
17 THE COURT: Then it's going to be
18 Plaintiff's 12, I guess.
19 MR. CROCKETT: That will work for me.
20 THE COURT: And those are -- let me see
21 what it is you're offering?
22 MR. CROCKETT: I can put a new sticker on
23 that.
24 THE COURT: Any objection to Plaintiff's
25 Exhibit 12?
Vanessa C. Owens, CSR
P.O. Box 236, Alvin, Texas 77512
281-331-2843
8
1 MR. MARTINEZ: No, Judge.
2 THE COURT: Plaintiff Exhibit 12, which
3 consist of three inspection reports, is hereby
4 admitted.
5 (Plaintiff's Exhibit 12 was admitted.)
6 CROSS-EXAMINATION
7 BY MR. CROCKETT:
8 Q Mr. Hernandez, this missing joist hangers,
9 what were they over?
10 A Excuse me?
11 Q What was above -- what was below the joist
12 hangers, the beams and the joist that were --
13 A The joist, the joist hanger support the
14 joists and they attached to the beam.
15 Q What were they above? Were they above the
16 family room?
17 A Excuse me?
18 Q Is that what it says, they were above the
19 family room?
20 A Yes.
21 Q And if those were installed, over time
22 they are going to fall, aren't they?
23 A Yes, they installed.
24 MR. CROCKETT: No further questions, Your
25 Honor. Pass the witness.
Vanessa C. Owens, CSR
P.O. Box 236, Alvin, Texas 77512
281-331-2843
79
1 here.
2 THE COURT: You may proceed.
3 EDUARDO MICHAEL CISNEROS,
4 having been first duly sworn, testified as follows by
5 and through the interpreter:
6 DIRECT EXAMINATION
7 BY MR. MARTINEZ:
8 Q Mr. Cisneros, would you please state your
9 full name for the record?
10 A Eduardo Cisneros Michael.
11 Q So people usually call you Michael?
12 A Yes.
13 Q What is your job title with Debo Homes?
14 A Superintendent.
15 Q How long have you been working for Debo?
16 A Ten years.
17 Q How many homes have you worked on during
18 your career?
19 A An average of 60 or 70.
20 Q If there is a problem during construction
21 with the home, how do you address that problem?
22 A I fix the problem.
23 Q Now, are you familiar with the home at
24 11115 Leah Elizabeth in Needville, Texas?
25 A Yes.
Vanessa C. Owens, CSR
P.O. Box 236, Alvin, Texas 77512
281-331-2843
80
1 Q Do you understand that to be the home in
2 this lawsuit?
3 A Yes.
4 Q Now, how much were you there at this home
5 during construction?
6 A Everyday, and all day long.
7 Q What time did you start in the morning?
8 A At 7:00.
9 Q What time did you finish in the afternoon
10 or evening?
11 A It depends, 8:00, 9:00.
12 Q Were you working on another home in the
13 same subdivision during this time?
14 A Yes.
15 Q Now while you're at the home in question,
16 what did you supervise?
17 A The entire process.
18 Q Did you oversee the framers?
19 A Yes.
20 Q How about the foundation?
21 A Also.
22 Q Now, when you were supervising, about how
23 many people were you supervising at one time?
24 A It depends on the work group that came
25 that day.
Vanessa C. Owens, CSR
P.O. Box 236, Alvin, Texas 77512
281-331-2843
81
1 Q What's the smallest number of people that
2 you had to supervise and what's the largest?
3 A Five to six.
4 THE INTERPRETER: English.
5 A Ten.
6 Q (By Mr. Martinez) How were the trades or
7 subcontractors scheduled?
8 A It depended on their shift.
9 Q Did you always have someone working on the
10 home -- was there a day off or anything?
11 A There's always people there.
12 Q Now as of mid-May, 2013, how was
13 construction going on the home?
14 A It was stopped at the point of the
15 plumbing.
16 Q Could you explain that a little bit more?
17 A After the first person comes in doing
18 their shift work, after the framing is done. Yes.
19 Q Do you know who Laurel Miller is?
20 A I don't know her because I've never spoken
21 to her.
22 Q Do you recognize who the plaintiff is in
23 this lawsuit?
24 A Yes.
25 Q Would you mind pointing her out for us?
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1 A The woman who is to your right.
2 MR. MARTINEZ: Ms. Miller, would you mind
3 standing?
4 Q (By Mr. Martinez) Is this who you
5 identified?
6 A That's she.
7 MR. MARTINEZ: Please let the record
8 reflect that Mr. Cisneros identified the plaintiff,
9 Laurel Miller.
10 Thank you, Ms. Miller.
11 Q (By Mr. Martinez) Now how often was she
12 there?
13 A During construction, on occasion I'd see
14 her two to three times a day.
15 Q Did you ever speak with her when she was
16 there?
17 A Never.
18 Q Why is that?
19 A Well, she never had questions for me.
20 Q What did Ms. Miller do when she was at the
21 construction site?
22 A She looked at the construction and she
23 would make marks with orange colored spray paint.
24 Q When were you first told of repairs that
25 needed to be made in the home?
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1 A The first time was the first few weeks of
2 May.
3 Q Did you walk -- excuse that. While the
4 framers were there, did you notice them making
5 mistakes?
6 A No.
7 Q Isn't it true that there were split 2 by
8 4s?
9 A Yes, but that's normal.
10 Q How often do you see a split 2 by 4 during
11 framing of a house?
12 A With the frequency it's as common as you
13 go all the way up to the point of a punch out.
14 Q Would you mine explaining the punch for
15 us?
16 A The punch out is when you repair the 2 by
17 4s that are either cracked or damaged. You remove
18 the temporary wood.
19 Q Mr. Cisneros, what do we have here in this
20 picture, in Exhibit 2?
21 A What you see here is when a nail was put
22 in very much to the edge of the plywood.
23 Q Why did it split?
24 A Either it went in crooked or it was put in
25 too far to the edge.
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1 Q Was this split repaired?
2 A Yes.
3 Q How was it repaired?
4 A We have two options. You can either
5 remove the damaged part or put another one next to
6 it. So that there's two of them.
7 Q Mr. Cisneros, what do we see here in this
8 picture?
9 A What you see here is that there's no joist
10 hangers inserted or installed, and they do that --
11 they wait to do that until the framer comes to do
12 the punch out.
13 Q Were those joist hangers actually put
14 there?
15 A Yes, that's right.
16 Q Did you see those joist hangers actually
17 put there?
18 A Yes.
19 Q Mr. Cisneros, what do we see here in this
20 picture?
21 A That's the pipe to the dryer. And it's
22 pushing up against the plate that protects it from a
23 nail or any nail.
24 Q Is there anything wrong with it?
25 A No.
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1 Q What do we see here in this picture?
2 A That's a piece of wood that's there
3 temporarily that the framers put up so that they
4 could put up their scaffold.
5 Q Why is it just temporary?
6 A Because they only use it for when they are
7 on the scaffolding or when they're putting up the
8 joist in the ceilings.
9 Q So was this eventually removed from the
10 house?
11 A Yes. Correct.
12 Q What do we see here in this picture?
13 A It's a mark that's at the division of the
14 two pieces of wood, and when the framers come to the
15 point of the punch out, they install or put in a 2
16 by 4 right there in the middle.
17 Q So this picture was taken before the punch
18 out then?
19 A That's right.
20 Q Was the 2 by 4 you mentioned actually put
21 in?
22 A Yes, it's there now.
23 Q What do we see here in this picture?
24 A It's the 2 by 4 on the top there that's
25 cracked or split.
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1 Q Why did that happen?
2 A It's either because there is a whole bunch
3 of people working there at the time or it arrives at
4 the work site cracked or split. It has to be
5 replaced.
6 Q Was it replaced?
7 A It was replaced.
8 Q Did you witness it being replaced?
9 A Yes.
10 Q What do we see here in this picture?
11 A The same thing, 2 by 4s that are split.
12 Q Were those fixed?
13 A That's right.
14 Q How were they fixed?
15 A We removed the damaged wood.
16 Q What do we see here in this picture?
17 A It's a block that didn't reach the beams.
18 Q And why did that happen?
19 A The person -- because the person who
20 installs the plywood adapted it like that to give
21 more support.
22 Q So does this need to be fixed?
23 A Yes. It was repaired.
24 Q How were those repairs made?
25 A Removing the support wood that didn't
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1 quite reach the beam and replacing it with one that
2 did reach the beam.
3 Q What do we see here in this picture?
4 A The drip pan did not -- was not positioned
5 under the wooden box.
6 Q What did you do to make sure that was
7 positioned correctly?
8 A The people who did the air work were
9 brought back to do the job correctly.
10 Q Did they do the job correctly?
11 A That's right.
12 Q What do we see here in this picture?
13 A That is the honey comb, which is produced
14 by air.
15 Q Was that fixed?
16 A Yes.
17 Q How?
18 A Putting more concrete on it.
19 Q What about the black plastic, is there
20 anything wrong with that?
21 A No.
22 Q Does it need to be pulled down eventually?
23 A Yes, when the people who are putting in
24 the brick work are there, they take care of the
25 black plastic.
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1 Q Were you there when the brick people came?
2 A That's right.
3 Q Did you witness them correctly install the
4 plastic?
5 A Yes.
6 Q What do we see here in this picture? And
7 let me make it more specific. What about there?
8 A Okay. That's where the cable comes out,
9 and the company that does the work is the one that
10 puts the tension on it. Those are the same people
11 that cover or fill up the hole that's left.
12 Q What do we see back there?
13 A That's honey comb.
14 Q Was that fixed?
15 A It was fixed. Yes.
16 Q How do you know that?
17 A Because at the time that the brick is
18 installed it's repaired.
19 Q So this was before the brick was
20 installed?
21 A Yes.
22 Q What do we see here in this picture?
23 A This is the counter, and the 2 by 4 that's
24 covering it is cracked.
25 Q Why was it cracked?
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1 A Probably the workers banged into it.
2 Q How often does that happen with the 2 by
3 4?
4 A It's very rare that it happens.
5 Q How do you fix this issue?
6 A You remove the 2 by 4 that's on top there.
7 Q How long does it take to make that repair?
8 A A day.
9 Q Whose's blue paint is that there?
10 A Those are the marks that I make for the
11 punch out.
12 Q Was this fixed?
13 A That's right.
14 Q Are you able to recognize anything in this
15 picture?
16 A I can't really see it very well.
17 Q How about this one?
18 A That's the window frame. And it was
19 bumped by accident.
20 That was repaired when the window
21 company came to make adjustments.
22 Q About when did that happen?
23 A That's at the end.
24 Q Why?
25 A Because the company that makes the window
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1 adjustments or adjustments to the windows comes
2 normally around at the point of the construction
3 being at 70 to 75 percent completed.
4 Q What do we see here in this picture?
5 A It's a pipe.
6 Q Why is there no insulation on that pipe?
7 A It depends. If the pipe is in between the
8 walls that are inside the house it doesn't need
9 insulation, including the walls that are on the
10 edge. Those are the ones that have to have it.
11 Q What do we see here in this photo?
12 A These pictures you have to replace the 2
13 by 4s and the ones that you see that are double you
14 have to replace them, the doubles, for more support.
15 Q Why was there an issue in the first place?
16 A Because these are things that are normally
17 that -- these are normal things that are left to be
18 dealt with until the end when there's a punch out.
19 Q Where these issues here actually repaired?
20 A That's right.
21 Q Did you witness that?
22 A Yes.
23 Q Do you know what we're looking at here?
24 A Yes. I think that's wetness, moisture.
25 Q What does that do to affect that board?
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1 A Normally it doesn't affect it.
2 Q What do we see here in this picture,
3 Michael?
4 A That's concrete.
5 Q What about the plastic?
6 A That's the plastic that you put where
7 you're going to have brick work.
8 Q What do we see here?
9 A You see a 2 by 4 here, and that's used by
10 the people who are going to do the brick work. And
11 they use that for the lines and so that the wall is
12 installed straight. They use it like a level.
13 Q Is it a temporary 2 by 4?
14 A Oh, yes.
15 Q Is there anything wrong with this here?
16 A Nothing.
17 Q This more -- how many, tell me, different
18 angles?
19 A Yes.
20 Q Was that fixed?
21 A Yes.
22 Q Did you witness that?
23 A That's right.
24 Q Are you capable of seeing any issues in
25 this picture?
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1 A No.
2 Q I don't know if that helps at all?
3 A Okay. Right now you see the PVC pipes.
4 And it's -- you have to put the cap or hot cap on
5 it. You can see a piece of wood there at the
6 aluminum cap which was cut to be able to put the
7 pipe in.
8 Q Is there anything wrong here?
9 A No. Normal.
10 Q Are you really capable of telling us what
11 that is?
12 A That looks like Sheetrock.
13 Q Can you see if there's any issues here?
14 A No, there's no problem, because the
15 Sheetrock was just installed. And the next thing
16 that happens is the people come to tape and float
17 it.
18 Q Could you explain tape and float a little
19 bit more for us?
20 A Yes. Since it's a process, the first
21 thing you do is install the Sheetrock. That's done
22 by different people, and then you got the people who
23 come and do the tape and float.
24 The tape is done where you cover the
25 joints of the Sheetrock, and they also cover all the
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1 nails.
2 Q Did you witness all that being done in
3 this house?
4 A Yes, that's right.
5 Q What are we looking at here?
6 A A lot of things.
7 Q Well, if -- are you capable of seeing any
8 issues right now?
9 A No, none.
10 Q What about this picture?
11 A The same. That's the day the people
12 are -- the people are there to install the
13 Sheetrock.
14 Q Wasn't there a gap in the Sheetrock there?
15 A Yes, but that's normal.
16 Q Is it a finished home have that gap?
17 A No. Never.
18 Q When was the gap eventually filled?
19 A The next day.
20 Q Did you witness that?
21 A Yes.
22 Q Is this the same thing here?
23 A Yes.
24 Q What about here?
25 A There you have the Sheetrock installed
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1 only 80 percent.
2 Q Anything wrong with it there?
3 A No.
4 Q What about this picture of the roof?
5 A That's the man who puts up the shingles.
6 He wasn't finished yet. He still needed to nail
7 that in.
8 Q Did he eventually nail it in?
9 A That's right.
10 Q Is this the finished home?
11 A Yes, that's right.
12 Q How about that one?
13 A The same.
14 Q Do you remember a Mr. Knueppel, the
15 inspector for Ms. Miller?
16 A I saw him, yes, but I didn't know his
17 name.
18 Q Were you there when he was there?
19 A That's right.
20 Q Now isn't it true that he identified some
21 things to be repaired in the home?
22 A Yes.
23 Q Were those fixed?
24 A They were repaired.
25 Q Do you remember stopping construction on
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1 the home?
2 A Yes.
3 Q And when did y'all restart construction?
4 A Like it was stopped and then it was
5 started again like the first or second week of June.
6 Q Now when construction was stopped, that
7 interfered with the scheduling of the trades or
8 subcontractors?
9 A Of course.
10 Q Well, did stopping put y'all behind
11 schedule?
12 A Yes.
13 Q Do you remember when construction finally
14 finished on the home?
15 A Yes.
16 Q You have a date?
17 A Not exactly.
18 Q Did you witness Ms. Miller talking to
19 Mr. Knueppel, the inspector?
20 A Yes.
21 Q You don't really speak English that well,
22 correct?
23 THE INTERPRETER: English.
24 A A little bit.
25 Q (By Mr. Martinez) And what happened during
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1 that conversation between Ms. Miller and
2 Mr. Knueppel?
3 A Before the inspector arrived the house was
4 already marked with the color orange. And the
5 inspector made marks that were red, and mine were
6 blue.
7 Q And what did -- what happened between
8 Ms. Miller and the inspector?
9 A When the inspector started looking at the
10 construction, he went along marking what he thought
11 that needed repairs, and the lady would want him to
12 mark something and the inspector would tell her it
13 was normal.
14 Q Was there any type of altercation between
15 them?
16 A Not exactly. But you could tell by
17 looking at the face of the inspector that he did not
18 feel free to do his job.
19 MR. MARTINEZ: Nothing further. Thank
20 you.
21 CROSS-EXAMINATION
22 BY MR. CROCKETT:
23 Q Sir, how are you doing today?
24 THE INTERPRETER: English.
25 A I'm fine.
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1 Q (By Mr. Crockett) How many superintendents
2 are there at Debo Homes?
3 A One.
4 Q Who is that?
5 A Me, personally.
6 Q Okay. That's what I thought.
7 What's your job at Debo Homes as the
8 superintendent?
9 A It's the process of finishing the house.
10 Q Is it your job to inspect or supervise all
11 of the subcontractors?
12 A Yes.
13 Q And that's why you're there -- when do you
14 start, again?
15 THE INTERPRETER: English.
16 A 7:00.
17 Q (By Mr. Crockett) So 7:00 in the morning
18 you start?
19 A That's right.
20 Q And then you finish, I think you said, at
21 7:00 or 8:00 at night?
22 A It depends.
23 Q You work a lot of hours for Debo Homes,
24 right?
25 A If it's necessary.
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1 Q How many houses were you supervising with
2 the Millers' home?
3 A Two.
4 Q And during that time period, where did you
5 spend most of your time?
6 A In the same neighborhood.
7 Q Same one?
8 A That's right.
9 Q Walk me through, how did you go back and
10 forth between the one house and the other house?
11 A Because the house that was under
12 construction was one street over.
13 Q I mean, did you walk across the street,
14 then?
15 A No.
16 Q How did you go back and forth between one
17 house and the other?
18 A In my car, the truck.
19 Q Now whenever you're supervising it, who's
20 bringing the actual supplies, the actual
21 construction supplies to the job site? Who
22 coordinates that?
23 A The companies.
24 Q And who makes sure that the companies are
25 coordinated at the right time for construction?
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1 A Because I'm the one that has the
2 construction schedule, and I call the office when I
3 need the next material.
4 Q So the schedule you were talking about --
5 normally what is the standard for Debo Homes to
6 complete a house, how many weeks?
7 A It depends on the weather. If you got bad
8 weather or if it's raining, six, eight weeks.
9 Q What's the fastest you ever constructed a
10 Debo Home?
11 A It could be six weeks.
12 Q Now before you didn't have the pleasure of
13 being here, during the time that the Millers' home
14 had this stop, this break in construction, we're
15 talking about June to August, y'all completed three
16 other houses?
17 A I don't remember.
18 Q Sir, one of my questions would be, if
19 you're there every single day, do you maintain any
20 logs, anything whatsoever to show that you're
21 actually there?
22 A That's right.
23 Q You have logs?
24 A Not with me here.
25 Q What do the logs say on them?
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1 A Who's the person doing their work.
2 Q Do you ever include on those logs what
3 you've inspected and what's been repaired?
4 A Yes.
5 Q Tell me, for the Millers' house, why
6 weren't there any logs, at all, zero?
7 A I don't understand the question exactly.
8 Q Why was there any logs for the Millers'
9 house? Why didn't you do them for the Millers'
10 house?
11 A Once again, I don't understand the
12 question exactly.
13 Q Let me ask a different one: Do you
14 document the defects in the house and turn those
15 over to anyone at Debo Homes?
16 A Yes.
17 Q Who?
18 A At the headquarters.
19 Q Where is that?
20 A 2977 F.M 1180 -- 18.
21 Q Let me ask you this: Do you remember the
22 timeline when Mr. Knueppel started coming out to the
23 house?
24 A Yes.
25 Q When was the first time you saw him?
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1 A When the concrete slab was put down.
2 Q Did you get a report from Mr. Knueppel
3 that you looked over?
4 A Yes.
5 Q And who read it to you?
6 A At the office.
7 Q Who?
8 A The vice-President and the salesman.
9 Q Who is the subman?
10 A Kris Dominguez.
11 Q The salesman?
12 A Yes.
13 Q You call him the subman. What is that?
14 A Sale man.
15 Q Got you. What did Debo Homes tell you to
16 do with Knueppel's report?
17 A To repair the damages.
18 Q Okay. And you're not sitting here today
19 saying that that house didn't have problems in that
20 report, you agree with that?
21 THE INTERPRETER: The interpreter would
22 like to request to have the question repeated.
23 THE COURT: Repeat the question.
24 MR. CROCKETT: Yes, sir.
25
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1 Q (By Mr. Crockett) Sir, as you sit here
2 today, you agree that in the report you read there
3 were defects in the home that needed to be repaired?
4 A Yes.
5 Q How long did it take you to do those
6 repairs?
7 A One day.
8 Q One day. If Mr. Knueppel came out
9 May 9th, 2013, you were complete with all repairs by
10 May 10th, 2013, correct?
11 A Correct.
12 Q Do you know that you actually repaired all
13 of the items on May 10th, 2013?
14 A Yes.
15 Q There's no doubt in your mind that every
16 repair in that house was completed on May 10th,
17 2013, right?
18 A That's right.
19 Q The hangers were hung on May 10th, 2013?
20 A Yes.
21 Q And you know that 100 percent right now?
22 A That's right.
23 Q It was not repaired on May 11th or 12th or
24 13th. It was May 10th, 2013?
25 A I don't remember.
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1 Q The reality is you don't know when the
2 repairs were made, right?
3 A Not exactly.
4 Q You been with Mr. Hernandez for a very
5 long time, haven't you?
6 A That's right.
7 Q How long have you been working for
8 Mr. Hernandez or with his other construction
9 companies?
10 A When I started I was working with
11 Mr. Hernandez on foundation for ten years. Then he
12 formed the company Debo Homes in the subdivision Los
13 Pinos. And he offered me the opportunity to hire me
14 as a superintendent, with some other builders that
15 worked for Newmark. So I've worked for the company
16 Debo Homes for ten years.
17 Q You owe Mr. Hernandez a lot, don't you?
18 A Partly.
19 Q He's been good to you and your family, has
20 he not?
21 A Of course. If not I wouldn't still be
22 with him here.
23 Q You're hoping to stay with Mr. Hernandez's
24 company for a very long time, aren't you?
25 A As long as he doesn't fire me I'll still
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1 be there.
2 Q That's often how it works.
3 When did Mr. Hernandez tell you that
4 guys were no longer stopping work and that you were
5 to start again?
6 A At the end of May.
7 Q So in May you already knew that you were
8 moving forward with construction again?
9 A Yes.
10 Q Did you ever ask if the issues with the
11 Millers had been resolved?
12 A No.
13 Q That's not your lane, right?
14 A That's right.
15 Q When Mr. Hernandez tells you to start
16 working you start working?
17 A Yes.
18 Q Now when you're working, are you also
19 swinging hammers, doing the manual labor yourself?
20 A If it's a matter of doing that, yes, but
21 it's very rare.
22 Q Let me ask you this: You said you were
23 there everyday for the construction of the Millers'
24 house, right?
25 A Yes.
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1 Q How many times was Mr. Hernandez there
2 during the construction of the house?
3 A Regularly, the man is there at the house
4 two times a day, at a minimum.
5 Q Mr. Hernandez was there for the
6 construction twice a day, right?
7 A That's right.
8 Q And you were there everyday, all day?
9 A That's right.
10 Q Now, all the photographs that Debo Homes
11 lawyer had showed you, while all y'all were present,
12 how did all of these problems happen?
13 A Those are normal things that have to
14 happen.
15 Q And normally when do those get repaired?
16 When do you fix those?
17 A Minimum, maximum three days, or one day
18 after finishing.
19 Q Let me ask a better question. During the
20 construction process, as you call it, when do you
21 make all the repairs to the frame?
22 A It's at the end after the man or the
23 plumbing company is finished, the AC people are
24 finished, and the electricians are finished.
25 Q Are you able to do any repairs to the
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1 framing after the drywall is put in?
2 A It depends.
3 Q Well tell me how?
4 A If it's a matter of a plate that wasn't
5 nailed in right, something simple.
6 Q Let me ask you a better question. If the
7 frame behind this drywall is bent, broken, bowed,
8 damaged, how do you repair it?
9 A You have to do that before you install the
10 Sheetrock.
11 Q Tell me why?
12 A Why. Because if the 2 by 4 is either
13 curved or crooked, the wall, once you Sheetrock it,
14 is going to show that curve, and that doesn't look
15 right.
16 Q Now if you were to make repairs after the
17 drywall had already been put in, to the frame, do
18 you have to take the drywall back off?
19 A I don't see why you would have to do
20 repairs or make repairs if everything had already
21 been corrected.
22 Q I agree. You wouldn't have to, right?
23 A That's right.
24 Q If the repairs weren't done before the
25 drywall went in, you'd agree with me that that would
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1 be absolutely wrong?
2 A That's right.
3 Q Now earlier you had told Debo Homes lawyer
4 that you saw every repair made, correct?
5 A That's right.
6 Q Did you photograph it?
7 A No.
8 Q Did you document it?
9 A Yes.
10 Q How did you do that?
11 A Because I have an inspector that comes
12 from the company to check.
13 Q Is that inspector from MPS?
14 A I don't know, maybe.
15 Q Do you rely on that inspector to clear the
16 construction for drywall?
17 A Yes.
18 Q Before your deposition -- well, not before
19 your deposition, before your testimony here today I
20 noticed you had all these photographs you were
21 carrying them around.
22 A Yes.
23 Q Did you talk to Mr. Hernandez and his son
24 about --
25 MR. MARTINEZ: This is getting into
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1 attorney/client privilege again. We were with him
2 with the photos.
3 THE COURT: Overruled.
4 Q (By Mr. Crockett) Did you talk to
5 Mr. Hernandez and his son before your testimony
6 today about the problems in the house and what your
7 answers would be?
8 A No.
9 Q Why were you carrying around the
10 photographs?
11 A Because those are the same pictures that I
12 received to be able -- in order to make the repairs.
13 Q You had these photographs?
14 A I have them in the office.
15 Q The ones I made last week?
16 A No.
17 THE INTERPRETER: English.
18 A Of course not.
19 Q (By Mr. Crockett) Why were you carrying
20 around the note pad right here on the lawyers' desk,
21 while you were at lunch before you testified today?
22 A To ask me if I had received those
23 photographs.
24 Q You did talk about these photographs,
25 right?
Vanessa C. Owens, CSR
P.O. Box 236, Alvin, Texas 77512
281-331-2843
109
1 A No.
2 Q So if I get this straight, you had
3 photographs that you were carrying that you didn't
4 talk about?
5 A That's right.
6 Q All right. Just wanted to make sure I got
7 that right.
8 Have you ever had it happen that a
9 Debo Homes house did not sell to the customer and
10 Mr. Hernandez told you to sell it to somebody else,
11 keep building?
12 A No, never.
13 Q This is the first time, right?
14 A That's right.
15 Q That surprise you?
16 A Yes.
17 Q Did you ask Mr. Hernandez what happened?
18 A No.
19 Q Now make sure I'm clear. You witnessed
20 every repair made but you can't tell us what dates
21 they were repaired?
22 A That's right.
23 Q Were there other repairs outside of these
24 photographs that you had at lunch that you looked
25 at, made sure that those were repaired?
Vanessa C. Owens, CSR
P.O. Box 236, Alvin, Texas 77512
281-331-2843
110
1 A Yes.
2 Q And you fixed all of those?
3 A Yes.
4 Q Why do you use spray paint to mark the
5 areas in the house?
6 A To identify the damage.
7 Q And what if it doesn't get spray painted?
8 A We wouldn't know what needed to be
9 repaired.
10 Q And who tells y'all what needs to be
11 repaired?
12 A Nobody.
13 Q When MPS came out and did the framing
14 inspection, did you see MPS ever again until August
15 when the house went through the final inspection?
16 A Yes.
17 Q When?
18 A I don't remember exactly.
19 Q You know the month?
20 A Could be July.
21 Q After the drywall had already been put in?
22 A Would you please repeat the question?
23 Q You saw MPS come out for the foundation?
24 A Yes.
25 Q You saw MPS come out for the framing?
Vanessa C. Owens, CSR
P.O. Box 236, Alvin, Texas 77512
281-331-2843
111
1 A That's right.
2 Q You saw MPS come out after the drywall was
3 put in?
4 A Yes, at the end.
5 Q And that's the only time that you saw MPS
6 come out?
7 A I saw them one more time.
8 Q And when was that?
9 A When he came to inspect the frame and he
10 noticed or pointed out the repairs that needed to be
11 made and he came back to check to make sure they had
12 been made.
13 Q And did he give you any documents to show
14 that he had done another inspection?
15 A No.
16 Q He never gives you documents to show or
17 confirm that inspections or repairs had been made,
18 correct?
19 A If they're basic things, no, because he
20 comes back.
21 Q And if they are big things, does he write
22 a report and tell you to go ahead?
23 A If they are basic things, no.
24 Q And during your lunch break Mr. Hernandez
25 didn't tell you to say that?
Vanessa C. Owens, CSR
P.O. Box 236, Alvin, Texas 77512
281-331-2843
112
1 A No.
2 MR. CROCKETT: No further questions.
3 Thank you, sir.
4 MR. MARTINEZ: We'll pass the witness, and
5 we're done with the interpreter. You may excuse the
6 interpreter and Mr. Cisneros.
7 THE COURT: May this witness be excused
8 and released?
9 MR. CROCKETT: Yes, Your Honor.
10 THE COURT: Thank you, sir. You may step
11 down. You're excused and released.
12 Defense, you may call your next witness.
13 MR. MARTINEZ: Judge, we'll call Mr. Juan
14 Carlos Hernandez, Jr.
15 THE BAILIFF: Please stand before the
16 clerk.
17 (Witness sworn by the clerk of the court.)
18 THE BAILIFF: You may take the stand.
19 JUAN CARLOS HERNANDEZ, JR.
20 having been first duly sworn, testified as follows:
21 DIRECT EXAMINATION
22 BY MR. MARTINEZ:
23 Q Mr. Hernandez, would you please state your
24 full name for the record?
25 A Yes. It's Juan Carlos Hernandez, Jr.
Vanessa C. Owens, CSR
P.O. Box 236, Alvin, Texas 77512
281-331-2843
02/20/2015
REPORTER'S RECORD
2 VOLUME 6 OF 6 VOLUMES
TRIAL COURT CAUSE NO. 13-DCV-209822
3 APPELLATE COURT CAUSE NO. 14-15-00004-CV
4
LAUREL MILLER AND ) IN THE DISTRICT COURT OF
5 ELIANA MILLER )
)
6 vs. ) FORT BEND COUNTY, TEXAS
)
7 DEBO HOMES, LLC ) 400TH JUDICIAL DISTRICT
8
9
10
11
12
13
14 EXHIBITS
15
16
17
18
19
20
21
22
23
24
25
INDEX OF EXHIBITS
2 EXHIBITS OFFERED BY PLAINTIFF
3 EXHIBIT DESCRIPTION OFFERED ADMITTED
4 1 Contract 31 v2 31 v2
5 2 Photographs 39 v2 40 v2
6 3 Printout of text 7 v3 10 v3
messages
7 4 E-mail to Debo Homes 8 v3 11 v3
from Millers
8
5 E-mail from Crockett 8 v3 11 v3
9 to Debo Homes
10 6 Letter from Debo 8 v3 11 v3
Homes to the Millers
11
7 Letter from Welscher 8 v3 11 v3
12 to Millers
13 8 Documents from sale 8 v3 11 v3
of home to the
14 Benges
15 9 Settlement Agreement 7 v3 10 v3
from Benge sale
16
10 Debo Homes costs of 7 v3 10 v3
17 construction
18 11 Welscher Law Firm 7 v3 10 v3
partial billing
19
12 Sullivan Inspection v4
20 Report
21
22
23
24
25
EXHIBITS OFFERED BY DEFENDANT
2 EXHIBIT DESCRIPTION OFFERED ADMITTED
3 1 Contract between 10 v3 12 v3
Debo Homes and the
4 Millers
5 2 Checks paid to Debo 10 v3 12 v3
Homes by the Millers
6
3 Home selection 10 v3 12 v3
7 documents
8 4 Blueprints for house 10 v3 12 v3
9 5 Construction permits 10 v3 12 v3
for house
10
7 Printout of text 10 v3 12 v3
11 messages
12 8 Photographs of house 10 v3 12 v3
13 9 E-mail regarding 11 v3 12 v3
home construction
14
10 Crockett 11 v3 12 v3
15 cease-and-desist
letter
16
11 Letter from Debo 11 v3 12 v3
17 Homes to Millers
18 12 Letter from Welscher 11 v3 12 v3
Law Firm to Millers
19
13 Cost list, trades 11 v3 12 v3
20 and list of
contractors
21
14 New Home Contract - 11 v3 12 v3
22 Benges
23 19 Fees - Welscher Law 11 v3 12 v3
Firm
24
20 Receipt for deposit 11 v3
25 into court registry
Ma~ 14 13 10:4?a L. Miller (2811 494-5850 p.2
PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION {TREC) 12-05-2011
NEW HOME CONTRACT
(COmpleted Construction)
NOllCE: Net For Use For Condominium Tran ons or Closfn Prier to Completion of Ccnstructfcn
1. PARTIES: Th~rH ntt:a_st are ~ · L · C..
{Seller} and e:L, 'lafc (Buyer). Seller agrees
to sell and convey to Buyer and Buyer agrees to buy from Seller the Property defined below.
2. PROPBR .: lot · .__&.______________.,
Block...
Addition, Oty
of~s,i~~~~1Jl~~~!i'l:Z~~:li~~tf:...~£1)~~~~2:::;2~~te2~==
Texas, known as L-
(address/zip code), or as described on attached eXhibit, together with: {i) improvements,
fixtures and au other property located thereon; and (ii) all rights, privileges and appurtenances
thereto, fncludlng but not limited to: pennits, easements, and CX>Operatlve and association
memberships. All property so.Id by this contract is called the "Property".
3. SALES PRECE: t:tJ,
A. cash portion of sates Price payable by Buyer at closing ................... $_v~7...,.J-:3.....0~0=----
B. sum of all financfng described below (excluding any loan funding ~
fee or mortgage insurance premium) ............................................ $ 'ft
7()0
c. Sales Price {Sum of A and B) ........................................................ $__:z.--~.,,./LXfl5---=----
4. FINANCING: The portion of Sales Price not payable In cash will be pard as follows: (Check
applicable boxes below)
U A. THIRD PARTY FIN'ANCING: One or more third party mortgage loans in the total amount of
$ (exdudtng any loan funding fee or mortgage insurance premium}.
.. (1) Property Approval: . If the Property does not satisfy the lenders• underwriting
requirements for the loan(s), (indudlng,, but not llm1ted to appmlsal, lnsurabllity and
lender required repairs), Buyer may tenninate this contract by giving notice to Seller
prior to dosing and the eamest money wm be refunded to Buyer.
(2) C[edlt Approval: (Check one box only)
U (a) This contract ls subject to Buyer- being approved for the financing described in the
attached Thlr~ Party Financing Addendum for Credit Approval.
c:J(b) This contract is nof subject ti:> Buyer being approved for financing and does not
Involve FHA or VA financing.
II (J B. ASSUMPTION: The assumption of the unpaid prtnclpal balance of orie or more promrssory
notes described Jn the attached TREC Loan Assumption Addendum.
Cl c. SELLER FINANCING: A promissory note from Buyer to Seller of $ · ,
I
I
I.
s. ~EST Jl..ONEY:
$_/..Jl o O
as escrow agent, at
Upon execution ~bis -ct
secured by vendor's and deed of trust liens, and containing the terms and conditions
descrrbed fn the attached TREC Seller Financing Addendum. If an owner policy of title
insurance is furnished, Buyer shall fumlsn Seller with a mortgagee policy of title ·insurance.
as earnest money with De.l!!J. ~.( ~· [.,..,_c:.,
(address). Buyer shall deposit additional eamest money of$
·
by aJI A'arties,
·
Buyer shall deposit
wrth escrow
,
agent within days after the effective date of tljis contract. If Buyer falls to depostt the
earnest money as required by this contract, Buyer will be in default.
6. TITLE POUCY AND SURVEY:
A.TITLE POLICY: Seller shall furnish to Bu rat D~ller's aB er's
titJe lnsurance (Title Polley} issued by . .
(Title Company) In the amount of tile Sa es Prtce, ated at or a clost g, lnsurfng Buyer
against loss under the provisions of the Title Polley, subject to the pro ulgated exclusions
including existing building and zoning ordinances) and the following exceptions:
!1~ Restrictive covenants common to the platted subdivision in which the Property is located.
2 The standard printed exception for standby fees, taxes and assessments.
3 Lt ens created as part of the financing described 1n Paragraph 4.
4 Utffity easements created by the dedication deed or Plat of the subdlvision in which the
Property is located.
(5) Reservations or exceptions otherwise permitted by this contract or as may be al)groved by
Buyer In writing.
{6) The standard printed exception as to marital rights.
(7) The standard printed exception as to waters, tldelands1 beaches, streams, and related
matters.
(8) The standard ~rlnted exception as to discrepandes, contrfcts, shortages in area or boundary
fines, enaoadiments or ~sions, or overlapping improvements. Buyer, at Buyer'"s
I· expense, may have the exception amended to read, "snort.ages Jn area".
i!
i TREC NO. 24-12
I
I Plaintiffs' Ex.
Number:·
MILLER0002
1;
\
Ma~ 14 13 10:4?a L. Mi 11 er (2811 494-5850 p.3
l
I
I B. COMMITMENT: Within 20 days after the Title Company receives a copy of thfs contract Seller
shall furnish to Buyer a commitment for tltle Insurance (Commitment} and, at Buyer•s
expense, legible copies of restrictive covenants and documents evidencing exceptions in the
commitment· (Exception Documents) other than the standard prJnted exceptions. Seller
authorizes the Title Company to deliver the Commitment and Exception Documents to Buyer
at Buyer's address shown In Paragraph 21. If the Commitment and Exception Documents are
not delivered to B~er within the specified time, the time for denvery wm be automatically
extended up to 15 Clays or the Closing Date, whichever is earlier. If, due to factors beyond
Seller's control, the Commitment and Exception Documents are not delivered within the time
required, Buyer may terminate this contract and the earnest money will be refunded to Buyer.
c. SURVEY: The survey must be made by a registered professional land surveyor acceptable to
the 11tle Company and Buyer's lender(s). (Check one box only)
Q (1) Within days after the effective date of this contract, Seller shaU fumlSh to
Buyer and lltJe Company Seller s existing survey of the Property and a Residential Real
1
Property Affidavrt promulgated by the Texas Department of Insurance (T-47 Affidavit).
If Seller fails to fumlsh the existing survey or affidavit within the time
prescribed, Buyer shall obtain a new susvey at Seller•s expense no ·later than
3 days prior to Closing Date. If the existing survey or affidavit ls not acc_§ltable to
Title Company or Buyer's lender(s), Buyer shall obtain a new survey at U Seller's
Cl Buyer's expense no 1ater than 3 days prior to Closing Date.
~ (2) Within 10 days after the effective date of this contrac~ Buyer shall obtain a new
survey at Buyer's expense. Buyer is deemed to receive cne survey on the date of
actua receipt or the date specified in this paragraph, wh1chever is ear1ier.
[J (3) Within days after the effective date of'thls contract, Seller, at Seller's expense
shall furnish a new survey to Buyer.
o. OBJECTIONS: Buyer may object in writing to defects, exceptions, or encumbrances to title:
·disclosed on the survey ofher than items 6Al1) through (7) above· disclosed in the
Commitment other than ftems 6A(1) through (8) abOve; or whlch prohibit the followlng use or
actlvitY:~~~~~~~~~------------~~~~~~~~~~--~--------~
Buyer must object the earlier of (I) the Closing Date or (Il) _ _ days after Buyer receives
the Commitment, Exception Documents, and the survey. Buyer's failure to object within the
time allowed will constitute a waiver of Buyer's right to object; except that the requirements
rn Schedule C of the Commitment are not waived by Buyer. Provided Seller is not obllgated
to Incur any expense, Seller shall cure the timely objections of Buyer or any thlrd party tender
within 15 days after Seller receives the objections and the Closing Date will be extended as
necessary. If objections are not cured within such 15 day period, this contract will terminate.
and the earnest money will be refunded to Buyer unless Buyer waives the objections.
E. TITLE NOTICES: .
(1) ABSTRACT OR llTLE POUCY: Broker advises Buyer to have an abstract of title covering
the PropertY examined by an attorney of Buyer's selection, or Buyer should be fumlshed
1Mth or obtain a Tltre Polic.y. If a 11tle Policy is furnished. the Commitment should be
1>romptly reviewed by an attorney of Buyer's choice due to the time !imitations on Buyer's
i1g_ht to object.
(2) MEMBERSAIP IN PROPERTY OWNERS ASSOCIATION(S): The Property CJis Ois not
sub~ect to mandatory membership In a property owners assoclatlon(s). If the Property Is
subJect to mandatory -membership in a property owners association(s), Seiter notifies
Buyer under §S.012, Texas Property Code, that, as a purchaser of propercy In the
residential community identified in Paragraph 2A In which the Property is located, you are
obllgated to be a member of the property owners associatfon(s). Restrlc:ttve covenants
governing the use and occupancy of the Property .and all dedicatory Instruments governing
the establishment< maintenance, and operation of this residential communitV have been or
will be recorded m the Real PropertV Records of the county In which the Pro~rty Is
located. Coples of the restrictive covenants and dedicatory instruments ma be obtained
from the county c:lerk. Vi u a Ii
owners a a
n sure Pro
Section 2 7. 03, rQPerty Code, entitles an owner to receive copies of any document that
governs the establlshment, maintenance, or operation of a subdivision, includ1ng, but not
limlted to, restrictions, bylaws, rules and regulations, and a resale certificate from a
proper:t)I owners' association. A resale certificate contains rnformation includlng, but not
Hmlted to, statements specifying the amount and fr~uency of regular assessments and
the style and cause number of lawsuits to which the property owners• association is a
party, other than lawsuits relating to unpaid ad valorem taxes of an Individual member of
the association. These documents must be made avallable to you by the property
owners' association or the associ on•s agent on y uest.
MILLER 000~
Ma~ 14 13 10:4Ba L. Mi 11 er C2Bll 494-5850 p.4
3 of 9 12-05-2011
(Address of Property)
If Buyer is concerned about these matters, the TREC promulgated Addendum for
PropertJ Subject to Mandatory Membership in a Property Owners Association
should &e used.
{1) STATUTORY TAX DISTRICTS: If the Property is situated in a utility or other statutorily
created district providing water, sewer, drainage, or flood control fadlitles and services,
Chapter·491 Texas Water Code, requires Seller to deliver and Buyer to sign the statutory
notice relating to the tax rate,. bonded Indebtedness, or standby fee of the district prlor to
final execution of this contract. ·
(4) TIDE WATERS: If the Property abuts the tidally Influenced waters of the state, §33.135,
Texas Natural Resources Code, requires a notice regarding coastal .area property to be
Included In the contract. An addendum contarnlng the notfce promulgated by TREC or
required b\! the parties must be used. .
(5) ANNEXATION: If the Property Is located outside the limits of a municipality, Setler notifies
Buyer under §5.011, Texas Prope~ Code, that the Property may now or later be
included in the extraterritorial jurisdiction of a municipality and may now or later be
subject to annexation by the munfcfpality. Each municTpatity maintains a map that
depicts its boundaries and extraterritorial jurisdiction. To detennlne If the Prope~ Js
located within a municipality's extraterritorial jurisdiction or is likely to be located withrn a
municlpalf~'s extraterritorial jurisdiction, contact all municipalities located in the general
proximity Of the Property for further infonnation.
(6) PROPERlY LOCATED IN A CERTIFICATED SERVICE AREA OF A UTILilY SERVICE
PROVIDER: Notlce required by §13.257, Water Code: The real propeffi', described in
Paragraph 2, that you are about to purchase may be located in a certificated water or
sewer service area, which is authorized by law to provide water or sewer service to the
pro~rties in the certificated area. If your pro~rty is located in a certificated area there
may be special costs or cha'.1"9es that you will be required to pay before you can receive
water or sewer serv1ce. There may be a perlod required to construct llnes or other
facilities necessary to provide water or sewer servrce to your property. You are advised to
determine if the property is ln a certificated area and contact the utility service provider
to determine the cc>st that you will be required to pay aod the period~ If any, that is
required to provide water or sewer service to your propertv. The unaers1gned Buyer
hereby acknowledges receipt of the foregoing notice at or before the execution of a
binding contract for the purchase of the real property described In Paragraph 2 or at
closing of purchase of the real _property.
(7) PUBUC: IMPROVEMENT DISTRICTS: If the Property is in a public improvement district,
§5.014, Pro~rtv Code, requires Seller to notify Buyer as follows: As a purchaser of thrs
parcel of real property you are obligated to pay an assessment to a municipality or
county for an improvement project undertaken by a public improvement district under
Chapter 372, Local Government Code. The assessment may be due annually or In
P.eriodic installments. More Information concerning the amount of the assessment and the
t:fue dates of that assessment may be obtained from the municipality or county levytng
the assessment. The amount of the assessments is subject to change. Your failure to
pay the assessments could result in a lien on and the foreClosure of your property.
{8) TRANSFER FEES: If the Property is sub~·ect to a private transfer fee obligation, §S.205,
Property Code, requires Seller to noti Buyer as follows: The private tranSfer fee
oblfgatlon may be govemed by Chapter , Suochapter G of the Texas Property Code.
7. PROPERTY CONDITION:
A. ACCESS, INSPEtTIONS AND UTILITIES: Seller shall permit Buyer and Buyer's agents
access to the Property at reasonable times. Buyer may have the Properw fnspected ~
inspectors selected by Buyer and licensed by TREC or otherwise pennttted by law to make
in~ns. Seller at Seller's ex~se shall immedfately cause exlstfJ'tg utilities to be turned
on and shall keep the utilities on dUrif!g the time this contract is in effect.
B. ACCEPTANCE OF PROPERTY CONDITTON: {Check one box only)
a (1) Buyer accepts the Property in its present condit1on.
Q (2) Buyer accepts the Properly in its present condition provided Seller, at Seller's
expense, shall complete the following specific repairs and treatments: _ _ _ _ _ __
___________________________(Do not insert general
p_hrases, such as "subject to inspections," that do not identify specific repairs.) .
NOTICE TO BUYER AND SELLER: Buyer's agreement to aa:ept the Property in its present
condition under Paragraph 76(1) or (2) does not preclude Buyer from inspecting the
Proper:tY under Paragntptl ?A, from negotiating re~lrs: or treatments In a subsaquQnt
amendment, or from terminating this contract during the Option Period, if any.
C. WARRANTIES: Except as expressly set forth ;n this contra~ a separate writlng, or
provrded by law, Seller makes no other express warranties. Seller shall assign to Buyer at
dosing all assignable manufacturer warranties.
o. INSULATION: As required by Federal Trade cammiss1on Regulations, the information
relating to the tnsulatfon lnstalJed or to be Installed in the Improvements at the Property is:
TREC NO. 24-12
MILLER0004
.contract cortcemtng
(dieck only one box below}
t;:J (1) as shown in the attached specifications.
CJ (2) as follows:
a) Exterior walls of improved livtng areas: insulated with
insulation to a thickness of ....n--=R:-:-v.~a"":'lu-e-of-=-------.-
inches which yie:;-Id::;-s:-a
b) Walls In other areas of the home: insulated with_____________ insulation
to a thickness af rnches which yields an R-Value of _ _ __
c) Celllngs In Improved Jiving areas: Insulated With
Insulation to a thickness of inches wh:-ic~h-y""!"ie-:ld-:-s-a-n~R~-v~a~l-ue-o~f------
d) Floors of Improved living areas not applled to a slab foundation: Insulated with
- - - - - - - - - insulation to a thickness of inches which yle-ld-s_a_n_R--
Value of •
e) Other insulated areas2 insulated with 1nsulation to a
thickness of Inches which yields an R-Value af • ·
All stated R-Values are based on Information provided by the manufacturer of the insulation.
E- LENDER ReQUIREP REPAIRS AND TREATMENTS: Unless otherwise agreed In writing_, neither
~arty ls obj~ to p_ay for lender required repairs, which Includes treatment ror wood
destroying lnSects. If the ~rtles do not agree to pay for the tender tequlred repairs or
treatments, this contract will terminate and the earnest monev will be refunded to Buyer. If
the cost of lender required repairs and treatments exceeds 5% ·of the Sales Price, Buyer may
terminate this contract and the earnest money will be refunded to Buyer.
F. COMPLETION OF REPAIRS, TREAlMENTS, AND IMPROVEMENTS: Unless otherwise agreed tn
writing, ~eller shall complete all agreed repairs1 treatments, and improvements (Work) prior to
the Closing Date. All required ~ts must oe obtained, and Work must be perfOrmed by ·
~rsons who are licensed or otherwise authorized by law to provide such Work. At Buyer's
election, any transferable warranties received by Seller wltti respect to the ·Work wHI be
tnmsferfed to Buyer at Buyer's expense. If Seller rans to complete any agreed Work prior to
the Oostng Date, ~er may exercise remedies under Paragraph 15 or extend the Closing
Date up to 15 daY$ If necessarv for Seller to complete Work.
G. ENVIRONMENTA[ MATTERS: Buyer Is advised that the presence of wetlands, toxic substances,
lncludlng asbestos and wastes ·or other environmental hazards or the presence of a
threatened or endangered s~es or its habitat may affect Buyer's intended use of the
Property. If Buyer rs concerned about these matters, an addendum promulgated by TREC or
required by the P'trtles should be used.
H. SELLER'S DISCLOSURE~ Except as otherwise disdosed in this contractr Seller has no
knowledge of the fotlowlng:
(1) any flooding of the Property which has had a materlal adverse effect on the use of the
(2) :~/=bing or threatened litlgatlon, condemJJatiOn, or special assessment affecting the
· Property; .
(3) any environmentat hazards or conditions materially affecting the Property;
( 4) any dumpslte, landflll, or underground tanks or containers now or previously located en the
PrOperty;
any wetlands, as defined by federal or st.ate 1aw or regulation, affecting the Propeify; or
I. W any threatened or endangered spedes or their habitat affecting the Property.
SIDENTIAL SERVICE CONTRACTS: Buyer may purchase a residential service contract from a
residential service com~ny licensed by TREC. If Buyer purchases a residentlal service
·
·contract, Seller shalt reimburse Buyer at closing for the cost of the residential service contract
In an amount not exceeding $ • Buyer should review any residential service
contract for the scope of coverage, exdusions and llmftatlons. . The purchase of a
residential service contract Is oftional. Similar coverage may be purchased from
various companies authorized to ilo business In Texas.
8. BROICERS9 FEES: AR obligations of the parties for payment of brokers' fees are contained in separate
written agreements.
9. CLOSING;
A. The dosing of the sate will be on or before
~ 3 , 20 I
~
, or within 7 days
after objections made under Paragraph 60 filifeeen
cured or waived, w ic ever date Is later
(Closing Date). If either party falls to close the sate by the Cosing Date, the non-defaulting
partv may exerd$e the remedfes contained in Paragraph 15. ·
B. At cfoslng:
(l)Seller shall execute and deliver a general warranty deed conveying title to the Pro_P4!rty to
Buyer and showing no additional exceptions to those permitted In Paragraph 6 and furnish
tax statements or certificates showing no delinquent taxes on the Property.. ,
(2)Buver shall pay the Sales Price In goOd funds acceptable to the escrow agent.
(3)Sefler and Buyer shall execute ani:I deliver any notices, statements,. certificates, affidavits,
releases, loan documents and other documents reasonably required for the closing of the
lREC NO. 24-12
MILLER 0005
Ma~ 14 13 10:51a L. Mi 11 er C281J 494-5850 p.6
contract Ccncemlng ~ ge s of 9 u-os-2011
{Address of Property)
sale and the issuance of the Titte Polley. ·
(4)There wHI be no Hens, assessmen!s_r or security interests against the Pro~rty whlch wtll not
be satisfied out of the sales ~rcceeas unless securing the payment of any loans assumed by
Buyer and assumed loans will not be in default.
10. POSSESSION; Seller shall deliver to Buyr:ossesslon of the Propertv.Jn Its present or requii-ed
condition, ordinary wear and tear excepted:. upon dosing and funding -~ according to a temporary
residential lease form promulgat.ed by TR or other written lease required by the parties. Any
possession bY ~er prior to dosing or by seller after dosing which is not authorized by. a wrttten
lease wlH establlSh a tenancy at sufferance relatlonshlp between the parties. COnSult your
lnsuran~ a~ priar to cha~ of ownership an~ ~session because insurance coverage
may be limited or terminated. The absence of a written lease or appropriate insurance
caveraga may expose the partJaa to economic loss.
11. SPECIAL PROVISIONS: (Insert only factual statements and business details applicable to the
sale. TREC rules prohibit licensees from addi~ factual statements or business details for which a
contract addendum, lease or other form has been promulgated by TREC for mandatory use.)
12. SEn'LEMENT AND OTHl!R EXPENSES:
A.. The folfowlng expenses must be paid at or prior to closing: .
(1) expenses pa~ble by Seller (Seller's Expenses):
(a)Releases of exlstirig liens, including prepayment penalties and recording fees; release of
Seller's loan liabillfy; tax statements or certificates~·
preparation of aeed~ one-half of
escrow fee· and other expenses payable by Seller u this contract.
(b)SeUer shall also ~y an amount not to exceed$ to be applied in the
following order: Buyer's Expenses which Buyer Is frohtbited trOm paying by FHA, VA,
Texas Veterans Land Board or other govemmenta loan programs, and then to other
Buyer's Expenses as allowed by the lenaer.
(2) E~enses payable bY. Buyer (BUyer's Expenses): Appraisal fees; loan application fees:
ad3usted origmatlon charges; credit reportS; preparation of loan documents; Interest on the
notes from date of disbursement to one month prior to dates of flrst monthly payments;
recording fees; copies of easements and restrictions; loan title policy with endorsements
~urred by lender; loan-related Inspection fees; photos; amortiZation schedules; one-half
of escrow fee; all prepaid items, induding required premiums for flood and hazard
Insurance, reserve deposits for insurance, ad valorem taxes and . special govemmental
assessments~ final compHance ln~ectlon; courier fee; repair Inspection; underwriting fee;
wire transfer fee; ~enses incident to any loan; Private Mortgage Insurance Premium
(PMI), VA Loan Funding Fee, or FHA Mortgage Insurance Premium (MIP) as required by the
fender; and other expenses payable by BUyer under this contract.
B. If any expense exceeds an amount expressly stated in this contract for such expense to be
paid by a party, that party may tenninate this contract unless the other ~rtv agrees to pay
such ex~ Buyer may not pay charges and fees expressty prohibited by FHA, VA, Texas
Veterans Land Board or other governmental loan program regulations.
13. PRORATIONS AND ROLLBACK TAXES:
A. PRORAnONS: Taxes for the current year, maintenance fees, assessments dCJes and rents
wlll be prorated through the CJosln_g Dat:e. The tax proration may be calcufated taking Into
conslderatlon any change In exemptions that will affect the current year's taxes. If tmces for
the current year vary from the amount prorated at dosing the parties shall adjust the
proratlons wtien tax statements for the current year are available. If taxes are not paid at or
~rior to dosil'.'l_g,__!3_µyer wlll be obligated to pay taxes for the current year.
a. ROLLBACK TAXES: If Seller's change in use of the Property prior to closing or denial of a
!!Pedal use valuation on the Prooertv results in additional taxes, penalties or Interest
(Assessments) for geriods prior to dosing, the Assessments will be the obligation of Seller.
Obligations Imposed by this paragraph wllfsurvive dosing. ·
TREC NO. 24-12
MIUER0006
L. • 11 .& .&. .& IC'I \ ~u .&. J "T..,"T - "u"u t". ,
(Address of Property)
14. CASUALTY LOSS: If any part of the Property ls damaged or destroyed by fire or other
casualW after the effective date of thls contract, Seller shall restore the Property to Its previous
condition as soon as reasonably P.9SS1ble, but in any event by the Closlng Date. If Seller falls to
do so due to factors beyond seller's control, Buyer may (a) terminate this contract and the
earnest money Wiii be refUnded to Buyer (b) extend the time for performance up to 15 days and
the Cosfng Date wfll be extended · as necessary or ( c) accept the Property in "its damaged
condition with an assignment of Insurance proceeds and receive credit from Seller at dosing In
the amount of the deductible under the Insurance Jl!)licy. Seller's obligations under this
paragraph are Independent of any other obligations of Seller under this contract.
15. DEFAULT: If Buyer fails to compiy wtth this contrag, Buyer wlll be in defau1t and Seller may (a)
enforce specific perfonnance, seet< such other relief as may be provided by 1aw or both, or {b)
terminate this contract and receive the earnest money as ll~idated damages, thereby releasing
both parties from this contract. If Seller falls to comply with this contract Seller will be Jn default
and Bu~ may (a) enforce spedftc performance, seek suc:h other relief as may be provided by
taytl or both~-~~- (o) tenninate this contract and receive the earnest money,. thereby releasing
bom parties TTOm tfifs contract.
16. MEDIATION: It Js the policy of the State of Texas to encourage resolution of disputes through
alternative dispute resolution procedures such as mediatlon. Subject to applicable law, any
dlsPute be~n seller and Buyer related to this contract which is not resolvea through Informal
dJsCussion~wlll Uwtll not be submitted to a mutually acceptable mediation service or P-rovlder.
'The parties to the mediation shall bear the mediation costs equally. This pa~raph i.ioes not
preclude a party from seeking equitable relief from a court of competent jurtSdlctlon.
17"ATrORNEY'S FEES: A Buyer, Seller, Ustfng Broker, Other Broker, or escrow agent who prevails
In any legal proceeding related to this contract is entitled to recover reasonable attorneys fees
and all cOsts of such proceeding.
18. ESCROW:
A. ESCROW: The escrow agent is not (l) a party to thfs contract and does not have llabUlty for
the .performance or nonP.!rformance of any pam:tv to this contract, (II) Hable for Interest on
the earnest money and ~m) liable for the loss of any earnest money caused by the failure of
any_ financial fnstftution 1n which the earnest money has been deposited unless the flnanclal
Institution ts acting as escrow agent.
B. EXPENSES: At dosing, the earnest money must be applied first to any cash down payment,
then to Buye~s Expenses and any excess refunded to Buyer.. If no Closing occurs, escrow
agent may: (I) require a written release of llablllcy of the escrow agent from all parties" (ii)
require payment of unpaid expenses Incurred on behalf of a party, and (iii) only deduct rrom
the earnest money the amount of unpald expenses Incurred on oehalf of fhe party receiving
the earnest money. .
C. DEMAND: Upon termination of this contra~ either ~rtv or the escrow agent may send a
release of earnest money to each party ana the ~rties shall execute counterparts of the
release and deliver same to the escrow agent. If either palt'l falls to execUte the release,
either party may make a written demand to the escrow agent for the earnest money. If onJY
one P.artv makes written demand for the earnest money, escrow agent shall promptly
PrQVitle a COP-Y of the demand to the other party. If escrow agent does not receive written
abjection to tne demand from the other party within 15 days, escrow agent may disburse the
earnest money to the party making demand reduced by the amount of unpaid expenses
Incurred on behalf of the party receiving the earnest money and escrow agent may pay the
same to the creditors. If escrow agent oom~lles with the provisions of this ~ragraph, each
party hereby releases escrow agent from all adverse claims related to the disbursal of the
earnest money.
D. DAMAGES: Any .pa~ who wrongfully fails or refuses to sign a release acceptable to the
escrow agent Within 7 days of receipt of the request will ce Hable to the other party for
riqufdated dama~ In an amount equal to the sum of: (i) three times the amount of the
earnest money; (ii) the earnest money; (iii) reasonable attomey's fees; and (iv) aD costs of
suit.
E. NOTICES: Escrow agent's notices will be effective when sent in compliance with Paragraph
21. Notice of objection to the demand will be deemed effective upon receipt by escrow agent.
19. REPRESENTATIONS: All covenants, representations and warranties in this contract survive
dosing. If any representation of Seirer Jn this contract is untrue on the Closing Date, Seifer will
be In Cfefault. Unless expressly prohibited by written agreement, Seller may continue to show
the Property and receive, negotiate and accept back up offers. .
20. FEDERAL TAX R~UIREMENTS: If seller Is a 11fore1gn person " as defined by applicable law or
if Setler fails to dellVer an afffdavft to Buyer that Seller Is not a ~reign person,~ ttien Buyer shall
withhold from the sales _proceeds an amount sufficient to comply with applicable tax law and
dellver the same to the Internal Revenue Service together with appropriate tax forms. Internal
Revenue Service regulations require flllng written reports if amency In excess of specJfled
amounts rs receJved fn the transaction.
TREC NO. 24-12
MILLER0007
Ma~ 14 13 10:53a L. M1 l l er l281J 4S4-5850 p.8
Address of Property)
21. NOTICES: All notices from one party to the other must be in writing and are effective when
malled to, hand·deUvered at, or transmitted by facsimile or electronic transmission as follows:
Facsimile: Facsimile:
E-mall: E-mail: - - - - - - - - - - - - -
22. AGREEMENT OF PARnES: This contract contains the entire agreement of the parties and
cannot be changed except by their written agreement. Addenda which are a part of this
contract are (check all applicable boxes}:
CJ Third PalW Finandng Addendum for Credit Q Addendum for "Back-Up" Contract
Approval
(J Seller Ftnanclng Addendum Q Addendum for Coastal Area Property
Cl Addendum for PropertY Subject to
Mandatory Membership in a Property
a Envlronmentar Assessment, Threatened
or Endangered Species and Wetlands
Owners Assoclation Addendum
CJ Buye~s Temporary Residential Lease Cl SeJler's Temporary Residential Lease
Cl L.oan Assumption Addendum l:J Short Sale Addendum
tJ Addendum for Sale of Other Property 0 Addendum for Prope~ Located Seaward
by Buyer of the Gulf Intramasta Waterway
Addendum for Reservation of on, Gas
CJ and (J Other (11st):
Other Mfnerals
23.TERMINAUON OPTION: For nominal conslderatron, the receipt of which Is hereby
acknowledged b_y Seller, and Buyer's agreement to pay Seller$ (Option Fee)
within 2 days after the effective date of this contract, Seller grants Buyer the unrestricted right
to terminate this contract by giving notice of termination to seller within days after the
effective date of this contract {Option Period). If no dollar amount ls stated as the Option Fee
or It Buyer falls to pay the Option Fee to Seller within the time prescribed, this para~raph wlll
not be a part of this contract and Buyer shall not have the unrestricted right to terminate this
contract. If Buyer gtves notice of termination within the time prescribed, the Option Fee wULnot
bi! refunded; tioWever, any earnest money wlll. be refunded to Buyer. The Option Fee ~wilt
~wm not be credited to the Sales Prrce at dosing. Time is of the essence for this
paragraph and strict compliance with the time for perfonnance is required.
24.CONSULT AN ATrORNEY: TREC rules prohibit real estate licensees from giving legal advice.
READ ntIS CON-mA.cr CAREFULLY. If you do not understand the effect of thiS contract, consult
an attomey BEFORE signing.
Buyer's Seller's
Attomeyls: ~------------ Attomey is:
Telephone: .........__....___ _ _ _ _ _ __ Telephone:
Facsimile: _.(__)......__ _ _ _ _ _ __ Facsimile:
E-mail: E-mail:-------------
Inltlaled tor Identification by euyer'r;i!\ /1no and SeJler _ _ _ _ _ _ TREC NO. 24-12
MILLER0008
Ma~ 14 13 10:55a L. Mi 11 er (2811 494-5850 p.9
This cantract ls subject to Chapter 27 of the ~
Texas Property Code. The provisions of that
chapter may affect your rfgh.t to recover
damages arising from a construction defect. If Buyer
you have a complaint concerning a
construction defect and that defect has not ~-
been corrected as may be required by law or .
by contract, you must provide the notice
required by Chapter 27 of the Texas Property I i ...45-----
Code to the contractor by certified mall, return
receipt requested, not later than the 60th day
before the date you ftle sult to recover.
damages in a court of law or Initiate
arbitration. The notice must refer to Chapter Seller
27 of the Texas Property Code and must
describe the construction defect. If requested
by the contractor, you must provide the
conb'actor an opportunity to tnspect and cure
the defect as provided by Section 27.004 of Seller
the Texas Property Code. ·
The fOrm of this atntnlct has been approved by the Texas Reel Estate Commission. TREC forms are intended
for use only by trained real estate llcensees. No representation Is made as ta the legal validity or adequacy of
any provision In any spedftc transactlOns. It ls not intended for complex transactions. Texas Real Estate ccm-
mlSSlon, P.O. Box 12188, Austin, 1'X 78711-2188, (512) 936-3000 (http~//WWW.trec.texas.gov) TREC NO. 24-
12. This form replaces TR.EC NO. 24·11.
TREC NO. 24-12
MILLER0009
~a~ lA 13 10:55a L. Mi 11 er (2811 494-5850 p. 10
Contract concerning 11//5 ~ ~ If~
_ (Address of Property)
"$Jl'/blPage9of 9 12-0S-2011 ·1•
.
BROKER INFORMAT%0N
Other Broker Firm umnse No. Ustlng Broker firm Ucense No.
represents ~ Buyer onty as Buyer's agent represents [J Seller and Buyer as an Intermediary
CJ setler i!S Ustfng Braker's subagent (J Seller only as seller's agent
ucensed ~of AssodBtl\_ Telephone Ucensed Supervisor of Associate Telephone
c:s4~.sc_avs\~
Assodate
U,~·tfffk'~Usti~n-g~Asso----:d~ate--~---------------------Te_J_ep_hone
--i('}_,z.&tT~epflone __
4',11< Sooe:\'Wg nJL ~vn
~~ 't)...J
.
Facsimile Ustmg Biolrer's omc:e Address Facsimile
Sl)QAIL
City ~ (
LA-M) i.e. State\ 1 -~7 -
q Zip -=a::-ty-----------~sta~te-----Z-lp
:g-r-o: \t\.:\l a ..(\,, - - - - - - -
TREC NO. 24-12
MILLER0010
Ma~ 1. 4 13 10 : 5 5 a L. Miller C281J 494-5850 p. 11
.•
MILLER 0011
Ma~ 1.4 13 10:58a L. Miller ( 281) 494-5850 F. 12
MILLER 0012
11 a ~ l 't l .:1 l l : uua L. 11 l 1 l er
F. i .:1
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FLOOR PLAN
(eltvatlan on oppositeside)
MILLER 0013
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Ma~ 14 13 11:01a L. Mi 11 er (2811 494-5850 p.15
' I •
DEBO HOMES L.L.C.
~drues: JII 15 (ced, £4,.Ldf._ ·1
Q.TY
G . -rJu'._.
Port#: ,·
....
8. · llanCes
7. LI Fbctu,_
• Showa'rl Bath Tube .Surround·
9. Door Patio . L:-/Tf.
~~.
10. 8' Fence in the.Front : .~. /Jo,~
11. Porcb/Patio
...
12.. m .· .
. 13. Front Door
... ., .
~ . Selection Worksheet .
. ... ·:·· . ·.:..-;·"'" .·.
MILLER0015
12/30/2013 MON 17:48 PAX 11J035/087
DEBO Homes LL.C.
11115 Leah Dr.-Actual Cost Detail
Vendors Summary
~ ·--·------ _J
07111/2013 American Express $2,500.00
06/0412013 Aqua Texas, Inc. .$0.0~·
07/03/2013 Aqua Texas. Inc. $330.43
0810512013 Aqua Texas, Inc. $206.09
0910512013 Aqua Texas, Inc. $152.95
10/0312.013 Aqua Te.xas, Inc. $96.25
11/0412013 Aqua Texas! Inc. $96.25
04/i·9f.l013 Aqua Texas,Jnc.-water/SewerTap D $1,500.00
04129Q.013 Blson Bullding Material .. $7,632.24
05101ll013 Bison BUfldtng· Material. $883.32·
05J01fl013 Bison BuUdfng Material $205.24
05/04/2()13 Bison Buifding Material $4,555.95
05/0312013 Bison BUildlng. Material $389.87
05/06120.13 Bison Building"Material $207.84
05/0912018 lr1SOn BtJirding Materlal $274.96
05/1012013 Bison Buffding Material · $310.~
Q5/20f201-3 Bison Buikfrng Material $77.94
,
0510812013 Builders First Source $1,524.83
..
06/13120:13 Central Turf Fanns, Inc. $1_416.57
0810112013 Cor.soltdated Communications $177.59
05/1712013 crossvme Tile & stone 5125.71
0511712()13 Crpss"1\la Tiie & Stone . $2.254.24
05/30/2013 CrossvtlleTile &Ston~ $387.55
0612712013 Crossvme Tite & Stone {$315.95)
061271201-3 Crossville Tite & stone ($92.2.4}
06/06/2013 Decor Builders Hardware $78D.1'4
051141201'3 Blfott Eledrie SLi~ly · $194.59
0512:112013 Elliott Efectrfc Supply $521.56
06/19/2013 F1oorslnc. $979.29
05/15(2013 HardWood Products $3,016.41
Cii'03/2013 Kiva Kitchen & Batb . $1,544.73
OSJ23llD13 Lowes Commercial.SerVices . $539.36
05/02/2013 Marathon Spa and Jl.ath .$571.56
04/3012013 Master Brick, Inc. ~.;_, $3,139.25
05/3112013 Pot...0-Gold Waste'SeMce $77.11
05/03/2013 ProBUl1d $379.96
05/08flQ13 ProBuild .. $379.96
05/14/2013 ProBuild : $284.14
05/1712013 ProBuild $1,287.42
05/1712013 ProBuild $1,264.93
05/20'2013 ProSui"t~ '-~
u>T_ _--=$'---_BLK q SEC-_..._--- INSPP.CTOR. .;:> \<"'C"'\. s....,, \' -.i....J~,._j
~ PRE-Pl.ACE!MBNT PLAN t Cl Pl.ACBMENT PLAN DATE--- -- - - -
TJllS REPORT lS FOR ON SITIS .AND INTBR-OFFICH COMMUNICATIONS ONLY. TSE omcJAL JN8P'ECTJON llJtPORT
AND CBJtTD'ICATION"S MUST BE OBTAINJ!D FROM MORTGAGE PROYERTY SEJlVlCES, INC. OR TifK IJUlLDltll.
FOR lNSPECTlONS CALL (281) 324-38521NOl'tgof~propstt,-,@ya"lloo.com
LIST ALL SUBSTANTIAL, NON·COMPLIANC.I!:
WITH PLANS, SPECS AND RELATED CODF..S.
±\.E. <:..LU~~ ~ \.~6c:h~
A. C NO NON-COMPLIANCE OBSERVED.
A~~ ~bRr<..
B. C MINOR NOfll-COMPJ, IANC6 OBSl!RVE:D AND
USTED. BUILDEJl SHALLCOMPl.V AND J'ROCBBO
C. C SERIOUS NON-COMP1..IANC£ \..TSTI!D. BUILDt:R
SHAU. CORR6CT AND CALL POll RRINSPECTION.
BEAMS
A. DEP'm SHOWN ON PJ..ANS -.Z.. ~ " (E"XlCRJOR)
B. Pl!PTif SHOWN ON PLANS "l.. f- " [IN1ER10R)
C. WlDTB SHOWN ON FLANS I. )......
D. PU!LD M.IWHJREP DBP'TH ?=}o n (EXTERIOR)
!!. PIEU> MB.ASURBO DBPnl 'Z_. .f- " (INTBRIORJ
F. FI.eLD MEASURED WJJJTH \ >-- u
REINFORCING S1'E¥-
A. STBELSHOWNOND6T,lllLSHBBT 'YES ONO _ _ _J;;....__ _ _ CORRECT AND PROCEED
B. IF ' 'YBS", WJ\S STBliL lNSTALL£D PER PLJ.NS7 ~CJ NO - - - - - - - RBCAJ..L FOR RBTNSl'£C110N
SIZE OP RBBAR ~ SIZE OP WlRB MESH
oara:'f"O•'t ........,"""'"
- - - - - - - - - - _ .. _ .... ,,~~~""'naJ opinion od is nor a guaranty or warranty.
BUR.DBlt 'Q.t;~C't \~~3' PrlOPADORBSS t\\\~ ~ t_.\_\.7J\~
DATE OF INSPECTION 'Y'l O /\2 SUBDtVISlON s~ ~\ ~
LOT ,:; BLK 1? SEC-__,\....__ _ _ JNSPECTOR ~\~ ~ \\~
PLAN'------------··------ PLAN DATE _ _ _ _ _ _ _ _ _ _ _ __
THIS REPORT IS FOR ON Sn'B AND INTER-OFFICE COMMUNICATIONS ONLY. THE OFFICIAL INSPECTION REPORT
AND Cg)O'DlJCATIONS MUST BE OBTl\INID FROM MORTGAGE PROPKJlTY SERVICES. INC. OR Tlf8 BUILDER.
FOR INSPECTIONS CALL (281) 324-3852 mortgagepropsen@yahao.com
LIST ALL SUBSTANTIAL, NON-COMPLIANCE WITH PLANS, SPECS AND RELATED CODES.
A. 0 NO NON-COMPUANCE OBSE!RVED.
8. ~OR NON.COMPLIANCE OBSERVED AND US'tED. OUILDBR SHALL COMPLY AND PROCEBD
C. C Sl!IUOUS NON-COMPLIANCB LISTED. BU1LD£R SHALL CORRECT ANO CALL FOR REINSPECTJON.
~&:\~s...-x :t.l~c:... '+-l' R.~ A ~~ ~·~& A~ ~k~
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~ 3w '>3- \j;-t--\ G-~£. A\: ~ \.'-')c ~
~LOC.k ~~ ~~~ g>\Nt? W"'~'§'J
I '"'
Q CORRBCT ITEMS NOT1!I> ABOV6AND PllOCBBD :t?o:RECT ITEMS NOTED ABOV.EtU!CALL Poa RBINSPBCllON
t1=1Y-11-2013 09:20 From:281 489 7673 ID:MORTGAGE PRCPERTIES Page:001 R=96%
DEBO-HMS00049
I
~
08/07/2013 17:27 281-489-7673
"
JIM Sll..LIVAN PAGE 02/82
CD
MPS INSPECTION REQUEST
Rr.QUIST l'fVMBER MtJS1' BE ON ALL REQUEST_NUMBER Ji66s3f .. ·····-· ·:
INSPICTION REPORTS UPPER RIGHT CORNER ·• · --··· · ·-·-'
Tnlday, Atiplt 06, 2013 11 :34:54
STRSETNUllBER
STREET NAME
!jliis·--- . ....... . .
~·--···---.
,LEAR ELIZABETIJ
·-·
REQUEST DAT!!
~~Z~!!.. ·~=· ·-.~=:·:
DRIVE
~=-==-=:::... .,,........_,
CITY NEEDVILLE. . ......,.,.:
ZJPCODE
COUNTY 'ORTliiND.:....-.:: . . . LOCATION r-- ·--.. ··- ...
.... ~~ - ":' .. ·.. -······· .. .. . . -· ··---~=---=:.;:::·.:.:-=-~--=-'
FINA.L"N\V ... . .. . SUBDMSION ~-WIND--·--,
JNSPecTION TYPE
ItD-·· ·-· ·-. · · - · · 1
· · - - · •· - · · · ....... ..1 --··---·----···· J
- - - - · ·--- ··-]
BUILDER
-··~I!~~.·-- ... _.J CALLEO 1Nav Im~-~----·
LOT
:1:t-······-- ·---- •
.- .
!s -~~--=.·:· ·.~-:~·.~] •OPSTORIES
sa FOOTAGE
c--··-·~~.=~-~··
r--··-· ·----·-
BLOCK
~ ---··· ...... _._I
SECTION ~NS r_; RE·2 L: RE-3 i::
INSPDATE
--~·==:~.- I PHOTO'S NEEDED rJ
~
PLANS
1utbe'rlzed plans found on file for this property.
.. . ···---··- ·-·- . .. .. ···-···-.. ··-·· ·----- ·-· ···-----------. ----
ASSIGN!DlNSPECTOR ~~AN:~· ~·1 CONTACT PERSON ~~"(5~0S _j
CONTACT PHONE NUMBER ~~~~---·-=-~J KEY UAP [- - ·-·-~·:-::~1
.;·.:.A·c;;;, ····· ...
----··-·:-:-fF.iAFi1e11an11t c- . :===-:~;.- .... , ··-·-- ·-·-····
L--···-·
SPEclAL.tNBTRUCTiONS·--.. .... ... -.-·.--·- ..-·-···
. ·····- -.. . -···--···· ...._J
~-·. ·-·-·
IMiUA--ciADDID .. ... . · · - - - .. . .. - ---·. - I c:a Pased
Ottold
D Fallad ~
...... ···----·· ···---· ..... . - ..•. - ---··-··· • ·-·· __J
j
lnltfala--e
MORTGAGE PROPERT't' SERVICES INC. 281..324-3852 FAX 211-324-2138 Page 1 of1
~ ~
AU:i-07-2013 17:21 From:281 489 7673 ID:MORT~ PRCFERTIES Paee:002 R=96%
DEBO-HMS00050
. .
EXHIBIT
2
i* DEFENDANrs
EXHIBIT
~ 2.
~
::~.-:+~: .•· ·•· 3.000 i;·l·l:i•! ·.._;.; :··~··~- :.7;0-~.2J:i:_'i'~ s·su·~o. . it.'.· ...~. ~. . . -·. :. ~ .. .·::. ~: ..
~,,;;;;~,,~~i:~~.,~;~t·ikf;~,~if~T~~~#'!,:~~;i:,>iii_~;~~.&.~
DEBO-HMS00014
EXHIBIT
10
! DEFENDANT'S
~ EXHIBIT
§ 70
I
Date: May 22, 2013, 1:38:36 PM CDT
To: "krissdominguez@yahoo.com" , "info@debohomes.com"
·
Cc: "lorinew99@aol.com"
·Subject: 11115 Leah Elizabeth Dr., Needville, Texas 77461
Dear Mr. Rodriguez and Domingue-z:
Laurel and E11ie Miller have retained our firm to investigate whether their home is being
constructed in accordance with the plans and specifioations of their contro.ctunl agreement with
Debo Homes. In order to prevent irreparable hmm, as well as, ensure that any defects have been
·corrected prior to continued building - we hereby demand that you cease and desist further
construction on the home. Furthermore, please discontinue ~er contact with my clients.
Please direct all questions, concerns or correspondence to our firm.
Once our experts have determined the current status of the home and whether any repairs are
necessary - we will send notice of such repairs via certified mail. In accordance with the
Residential Construction Liability Act, you will be provided an opportunity to make these
reasonable and necessary repairs, prior to any suit being filed. Thank you for your patience,
while we investigate this matter.
Very Respectfully, ..,
.'
Brian H. Crockett ...
Newton Jones & Spaeth
Attomeys and Counselors at Law
3405 Marquart
··.•
. l.!·:\
10
·;···--·········-····---Houston, TX 77027
713-493-7620 (Telephone)
713-493-7633 (Facsimile)
~ 713-493-7627 (Direct)
713-493-7591 (Direct Facsimile)
877-204-5670 (Toll Free)
bcrockett@newton-lawyers..com
Confidentialitv Notice:
The information in this email may be confuientia/ and/or privileged. This email is intended to be reviewed by only
the individual or organization named above. Ifyou are not the intended recipient or an authorized representative of
the intended recipient, you are hereby notified that any review, dissemination or copying ofthis email and its
attachments, ifany, or the information contained herein is prohibited. Ifyou have received this email in error,
please immediately notify the sender by return email and delete this email from your system. Thank You
,.,...
2
EXHIBIT
11
r~ DEFENDANT'S
§ EXHIBIT
l -
...
If --
(?)
- -~
¥.>EB© H©MES
1108 FM 2977 Richmond, TX 77469 Office: 281-342-3528 Fax: 281-342-1088
May29, 2013
Laurel and Ellie Miller:
Based off the contract made on April 13, 2013, Debo Homes LLC has an obligation to
construct your new home at 11115 Leah Elizabeth Drive in Needville, TX. We have built and sold
over 160 houses and have a strict construction standard in every one of our homes. It's come to my
attention that you have concerns about the quality of construction and materials going into your
home. I'm sorry that you feel that way, but I can assure you that the quality of construction and
materials in your home has met our quality control standard. Throughout the construction of every
one of our homes we schedule three inspections from a 3rd party (Mortgage Property Services) hired
by Debo Homes to assure quality. A foundation inspection is done before we pour concrete, frame
inspection is done before we insulate and install drywall, and finally a final inspection is done at the
completion of the house. In addition, we also have our super-intendent on site supervising all
subcontractors hired by Debo Homes. Also, you hired another inspector to inspect the frame of the
house and we fixed the minor issues he requested.
We have a reputation of going above and beyond to meet our customer's satisfaction, if
there is something we can do to accommodate your needs, please let us know. If you have any
questions or doubts about the way we do a certain job, please ask us and in turn give us the
opportunity to diligently answer you. We are professionals and were hired to provide our expertise
in all aspects throughout the construction process; I believe that is why you decided to hire us to
build your home. If you are not happy with our service, you are free to terminate the contract with
Debo Homes and we will refund you 100% of the money you have given us after we sell the house.
However, we are confident that we can reach an agreement and move forward with building your
new house.
Juan Carlos Hernandez
President
Debo Homes LLC
DEBO-HMS00003
11
EXHIBIT
14
* DEFENDANT'S
; EXJ IBIT
~m ~
c..
PROMUl.GATED BY THE TEXAS REAL CSTATE COMMISSION (TREC) 17-05-2.011
NEW HOME CONTRACT
(Completed Construction)
NOTICE: Not For Use For Condominium Transact!ons or a~ar to Completion of Construdfor.
1. PARTIES: The partlesJo t ·s co trq,;% re Df:4o ~ft5 ?'.L..
___C___,. _______
(Seller) and f,,,,. "1 , ~~fkh.q.L, . (Buyer). Se\ler agrees
to sell and convey o Buyer and Buyer agr~ btJ<( from Seller the Property defined below.
2.PROPERTY: Lot .r; .... ,Block SJ · - - - - - - - - - - - - - '
oC_....... ~~~~ . -- . _,r;:ouotv.9f G-d: ~ Addition, City
Texas, known as _j.fjlS- J.~i<~ 011.J.l;vf<..·-'L_~/{/-c,,, ,~_"2.-..-_ 7 ...,L....
'w...,,l.._·_. _ _ _ _ _ __
(address/zip code), or as descrioed on attached exhtbit1 together with: (i) improvements,
fixtures and all other property located thereonj and (ii) all rights, privUeges and appurtenances
the1·eto, tnduding but not llmfted to: permits, easements, and cooperativP. and ris~ndatlon
memberships. AU property sold by thls contract is called the "Property".
3·!~l~!::~~n of at
Sales Price payable by Buyer closing .................. $.......... ~......................---....-......--
8. Sum of all financing described below (excluding any loan funding
fee or mortgage insurance premium) ........................................... $ / kf:_ tft1V
c. Sales Price (Sum of A and B) ...................................................... $ ,T. If the parties d o not agree to pay for the lender required repairs or
treatments, this contract wil l terminate and the earnest money wlll be refunded to Buyer. If
the cost of lender required repairs and treatments exceeds 5% of the Sales Price, Buyer may
terminate this contract and the earnest money will be refunded to Buyer.
F. COMPLETION OF RFPAIRS, TREATMENTS, AND IMPROVEMENTS: Unless otherwise agreed i;i
writing, Seller shall complete all agreed repairs. t reatments, and improvements (Work) p1 ior to
the Closing Date. All required permits must he obtained, and Work must be performed b~
persons who are licensed or other.'>'ise authorized by law to provide such Work. At Buyers
P.lection, any transferabfe warranties received by Seller with respect to the Work will be
transferred to Buyer at Buyer's expense. Ir Seller fa lls to complete any agreed Work prior to
the Closing Date, Buyer may exercise remedies under Paragraph 15 or extend the Closing
Date up to· 15 days if necessary for Seller to complete Wori<.
G. ENVIRONMENTAL MATTERS: Buyer is advised that the presence of wetlands, toxic substances,
including asbestos and wastes or· other environmental h a zards or the presence of a
th:-eatened or endangered species or its habitat may affect Buyers intended use of the
Property. ff Buyer is concerned about these matters, an addendum promulgated by TREC or
required by the parties should be used.
H. SELLER' S DISCLOSURE: C:xc:ept os otherwise dlsdosed in this contr;:ict, Seller has no
knowledge of the following:
(1) any flooding of the Proper::y whi:::h has had a material adverse effect on the use of the
Property;
(2) any pending or threatened litfgation, rondemnatlon, or special assessment affecting t he
Property;
(3) any environmental hazards or conditions materially affecting the Property;
(4) any dumpsite, landfill, or underground tanks or containers now or previously located on the
Property;
(5) any wetlands, as defined by Federal or state law or regulation, affecting the Property; or
(6) any threatened or endangered species or their habitat affec.ting the Property .
I. RESIDENTIAL SERVICE CONTRACTS: Buyer may purchase a residential service contract from a
residential service company licensed by TREC. If Buyer purchases a residential ser.,lce
contract, Seller shall reimburse Buy~r at:; cloSing for the cusl ur t ile residential service contract
in an amount not exceeding $ t?!Z': ·-- . Buyer should review any residential service
contract for the scope of coverage, exclusions and limitations. The purchase o f a
residential service contract is optiona l. Similar coverage may be purchased from
var ious companies authorized t o do business in Texas.
8 . BROKERS' FEES: Alt obligations of the parties for payment of brokers' fees are contained in separate
written agreements.
9
' ~~~;er~l~~lng
a~er
of the sale will be on or before .._,1-?~.-k :5/. . 20_L3_, or w ithin 7 clays
1
objections made under Paragraph 60 H ve been cured or wa ived, whichever date is later
(Closing Date). If either party falls to dost! the sale by the Closing Date, the non-defaulting
party ml:ly exercise. the remedies cont;igi> 2 of 2 12-05-11
I
/IJ/f :~-~ . t; In v1te; /<._ _Lk, surre 320,
ftmEDVW..C. 1X 77-tGl l.11-0t'M U?7 tlOllSTOH, TJt 7705G
ruo•MOND, TX 77469
G. P.ropertv LoC41Uon H. Satt:h1m1mt Agent
AMSUCAN mu: COtiWANY Of HOUSTON
11115' LEAH EUZABEJH DIUVE, 6360 CORPORATE DIUVF.. SUJTE' B
HEEDVIUE. TIC 77461 HOUSTON, "l'X 17t'.l36
?twne : (713) n•MJ746
counrr: FURT BBU>
LOT! 5 Pf.;ac:ia of Settlement ! I. Settlomcnl Oat_, l.l/"2.7/2013
81.0CK:3
SUBOMSION: RO.c;EMEAOOW SEC 3 ~o COllPORAr& DSUV&, SUITEB ii D~me~ D"t.-2 11/:t,./~13
I: HOUSTON, TX 77036
K. sumrna.!Y of Seller's. Transaction
JOO.-GrcS. ~nt Dua from Sonower
t-40-o-.-G-ros •.-.~0u-~·t-o-·u-~~-~to~.•-SP.~.l-l~~r-=;.;.;;.......;;~;..:.;.------·~
.......s_Ain
iaL~cll.l.Sdl-P1k.1: <101. wn1rncr~1cs:-:.~~:ri~ce·-------------.1,_l...,,li""'o""'ooo~....,.,oo
J02.· hfsClttal'flnlDCtTI'
~~
403, . . . ...---.. . . . . . . . .
:fij~~ l'~I Pl'QD~Y
~--~---·-~--+--------
t-40~4•.___ _ _ _ _ _ _ ··-·------------1
,_.40~S·~---,!'-,.,..--~~-~-=-~---+---···-
~"'•tman~ for Items aafd l:W :H:tl11r In t11d1'011a:
t4u&: otyaown.T~4!$
~- C!JUntv TIOO:s
· ....... ----t------1
1400..•Assessnl:enl:s.
109. All Ta'-es 219.77Nr 11121/lQ.~~ ...tn.._...t/'""1,../2,.,0,...1'"".;.-·--t---"'s"':2L,....Ol~ ~!•••fil Tax;;;.ey~21,;.;;;;.,.9:2Y..,,.,,.._yr-1....1..,.,?....,.7.,,.,~""n""i""~-""'to-1i112014
~-------·-··· -------------··---·----· -----=--
112.
...........-------t
.,...1=1~1·-------·------............ _
1110.
l*-··-------··-·-.
..~t2. _____ .···-------1-----1
------------- ---·-
"'="'_ _ _ _ __
420, Cirnu Amount Due to SeUef" ····-- t168.U21.02°
200. Amounta.-PaJd bY or In. B~Mlf -oiao·;·~~r ..,, ............... ~
101. l)o-..l't Clt"O~ 11'1__, &i.000.00
zw_ ptf,v-1'"f U>ah Atmunl rn>m Envcv Mcnt9·r;;j"(tJ.td.
2Q.l. EICKttf.l!J:!O&llf') la'ltr:n ~frl~to
204. Scllfir P11Jd.Oosfnu Ccms --S-.,2-l.S,...O_U._D_o""'
·--··--t-----i
205. ···-·---------------\------t
.?.fHi~-----··---------· - ·------..-----t ~-~!I!ftf money nata'.!l'!~_w..,._.s ...,...1'..,or......._____ ·· s-1°000...ou
c.. .
St7'~ Sei!ef'Pbfd ~,_...,h'M,.._1•.;:;Cos=ts...__ _ _ _ _ _ _"""' __.f~
.W?:~ ---------------·······-···-+·-----!
t.,;ta'· Reduction AntQunt Pwe Sdll!r s-..120.1;
·-·-··------1"---
GOO.. c;Lsh ~ htth:tncrit t1>ffruT1l.SeD;:-~
301.. Gcoss ameiunt doe nom oonower Ulne 120i lS174,BS1.;99 "iOI:-
Gross-amountdue.toseDer:::c=======f
ooo;~i:Rnits8.0tri1Cilllteit wttti LiiKl~r
JUOLinluaf ~ ocaXMl··---------------.,,11num,......-._·:x•..,.=,r..o!ff ......................i556:76
HO•:·::.--·---·-
1100.TJtle Ch•rllM · · :
t.clB.75
·······~
DEBO-HMS00024
HUD-1
_. l
,__ tl.866.20 Si.OGti.20
i----~,s:J~.J9tl""-""',;;::;;n.-+----,-~'1 39\!.111
.,_____...z:r~=.1JJ=.t=-''Y--·-- -....U~.!~9Jl
Chorg~Thu &:An Chango
Good Fa1th --·-.··---
tfU0-1
&tfmotl:
'l'nltfa: cfc!nnc.U· rnr vnur P..aav lnb!n:st: d1a~ • 901 $19."TifdO.. S79.0t U9.09
Homeownet's tnsurance 1'903 l.CJ&D.0{1 s.G~.00
Titlc Setvlces - tenders tmurance .... _____ .. .M31J.7!i
-0wnM"S7itleJmuntnc:e
• 1101
# 1103
._.
.------:u JSC0.00
2!i5.DD it.254.00
su,;,..,,.. ..
r-·
-. -- -- .6 1302'
..
t4M.OD - ....t;:J.~.~
Lr>~o Ter.ms l.oan Nvmher: S~1030091G
Yow- 1n1da1 .lo!',; ~111:~untJs ~ls.t,957.011
Yu"' l~n.~m m-b ;$\j ~rs
i--
-- _ _ _ _!:ill -··-
Yaurin~tlnl:l~r~~te .Is. ~
~--
$1,005.00 In dudes
Yo~rinft!•J ~11~1y',~fllQU~~iiwed for prindpoal, Jnt-:r~t ;t Prindpal
ancn1ny mP:~~~~~r.fn~ ts ·
~ lnten!st
.!: Mortlil5;ie lnsurallal
--·
0 No. 0 Yes, :t can rtse fO ts nu11dr11um uf %. The 11rst
chang~ w!il be on Md can d"1r>ge fs9llio
Clln yo&n;Jntar~nste;rlsa1 ~ery ·--··· llftcr • ~ry d1t1qyc Jae~
your ll'lte~ nite can fttaeaSe or decrease by CM!• OYe;-
ln!;e.rnt.f~ is V"fslf:lll~,;u.~i
the fife of the iocD, JOI.If"
tniw. - · - · - - - - - % ot hlgher~n ,,.,
-· ...... ·----
Ev1111 ff:ycnr·~a~;p~:Yir(~'!S on time, an your )fJiHI balance
.rloe? . · : ."
..
rn tlo, D Yes. ll am rtM to ll maxlnuin1 ()!' $
...... --...-···-·-·· -.
-.
·IE.'!~·lfyo~:lfl!J.~~P.11Y.11t~nts ~:tl11111, can your mcmth~y (XJ No. 0 Yes, die nrst lnac!m! ain be on and the
11mounti-&it( ··· . · cnoutblr emutmt ot'Wcd C'..Ul rts~ w$ • Thi: maximum It can
-.
for prl~d~).:·)~tercst ~...~ nu~r~go- l~ur::in~ rlse7 ~er rise tu &l S
-· ··-··--··· ....
[Kl tlo. 0 Yest your roaiclmum pmpllyrMflt penalty ls ~ _
Do~ yo1jr: lo~.n h&w~~ ~.r~p;ry~1C1tll penartyi"
... ___........---· -----···-····-·· -
··-
o.,... your.t~on .h:tv•".~ ~oon 'P"'Y"'14•1:ft' IBl }if:Mt~.....i: ~->QI)
0 flood inwranc.e []
0 D
..
DEBO-HMS00025
EXHIBIT
i DEFENDANT'S
i EXHIBIT
I :JO
OFFICIAL RECEIPT
( ->''fE"nLJ;'>t;.._
/'>"'~ ~
(to.v1~i~;::.
. ··'('· w~ ~~"/'V~~~
'
'1,,L i~•J ,'J,. .l
~·31 . /
·"'=-:~11'.~~-~~1
''!)'f;- -":t"':.~ ~·/.
"~g~~°j.;
OFFICE OF
ANNIE REBECCA ELLIOTT
DISTRICT CLERK
FORT BEND COUNTY
1422 EU GENE HEIMANN CIRCLE
RICHMOND, TEX.AS 77469
Payor Receipt No.
The Welscher Law Firm 2014-41 064-DCLK
1111 N Loop west
STE 702 Transaction Date
Ho:.iston, TX 77008 08/14/2014
I Description Amount Paid I
On Behalf Of Debo Homes LLC
13-DCV-209822
Laurel and Eliana Miller PiaintiHs, vs Debo Homes, LLC . Defendant.
DEBO HOMES LLC
Re;iistry Depcsil 60,300.00
SUBTOTAL 60,300.00
PA YMENT TOTAL 60 ,300 .00 I
Cashier's Check (Ref 111 6326'18) Tendered 60,300.00
·:·o!al T er.de ~ed 60,300.00
Change 0.00
400th - Deposit into the Regist:y of Court.
08/1 4/2014 Cashier alizahid Audit
03:22 PM Station OCR 18 5022554
OFFICIAL RECEIPT