Академический Документы
Профессиональный Документы
Культура Документы
IN RE
Relators
Original Proceeding from the Harris County Civil Court at Law No. 2
Cause Nos. 1080464 and 1080464-101
Hon. Theresa Chang, Presiding
following is a complete list of the real parties in interest and parties whose interest
1. Arbitration is favored under Texas law, and doubts about the scope of
arbitration are resolved in favor of arbitration .........................................11
5. The August 8, 2017 and October 25, 2017 orders denying arbitration
of this claim were thus an abuse of discretion .........................................17
D. Because Abbous claim on the Note was arbitrable, its severance into a
separate cause was an abuse of discretion .....................................................18
3. For the same reason that Abbous claim on the Note is arbitrable, its
severance was an abuse of discretion with no adequate remedy on
appeal ........................................................................................................20
F. All the claims below are arbitrable and the Court should order
Respondent grant the relief requested ...........................................................24
Cases
AutoNation USA Corp. v. Leroy (In re AutoNation USA), 105 S.W.3d 190 (Tex.
Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943 (Tex. 1996) ...................... 11, 12
Cash Biz, LP v. Henry, No. 04-15-00469-CV, 2016 Tex. App. LEXIS 7921 (Tex.
CMH Homes, Inc. v. Perez, 340 S.W.3d 444 (Tex. 2011) ......................................22
Cotton Commercial USA, Inc. v. Clear Creek ISD, 387 S.W.3d 99 (Tex. App.
Emerald Tex., Inc. v. Peel, 920 S.W.2d 398 (Tex. App.Houston [1st Dist.] 1996,
no pet.) ................................................................................................................12
F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680 (Tex. 2007) ...... 18, 19
FD Frontier Drilling (Cyprus), Ltd. v. Didmon, 438 S.W.3d 688 (Tex. App.
Forrest Oil Corp. v. McAllen, 268 S.W.3d 51 (Tex. 2008) ........................ 21, 22, 23
Garg v. Pham, 485 S.W.3d 91 (Tex. App.Houston [14th Dist.] 2015, no pet.) ..12
Radiology Assocs.), 474 S.W.3d 435 (Tex. App.Houston [1st Dist.] 2015,
In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379 (Tex. 2005) (orig.
proceeding) .........................................................................................................10
In re Conseco Fin. Servicing Corp., 19 S.W.3d 562 (Tex. App.Waco 2000, orig.
proceeding) .........................................................................................................12
In re CSX Corp., 124 S.W.3d 149 (Tex. 2003) (orig. proceeding) .........................10
In re D. Wilson Constr. Co., 196 S.W.3d 774 (Tex. 2006) (orig. proceeding) 17, 23
In re Energy Res. Tech. GOM, Inc., No. 14-12-00835-CV, 2012 Tex. App. LEXIS
8359 (Tex. App.Houston [14th Dist.] Oct. 4, 2012, orig. proceeding) ..........19
In re FirstMerit Bank, N.A., 52 S.W.3d 749 (Tex. 2001) (orig. proceeding) ..........21
In re Houston Pipe Line Co., 311 S.W.3d 449 (Tex. 2009) (orig. proceeding) ......22
In re J.D. Edwards World Solutions Co., 87 S.W.3d 546 (Tex. 2002) (orig.
In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (orig. proceeding)10,
11, 19
In re ReadyOne Indus., 400 S.W.3d 164, 169 (Tex. App.El Paso 2013, orig.
In re Reynolds, 369 S.W.3d 638 (Tex. App.Tyler 2012, orig. proceeding) ........19
In re Susan Newell Custom Home Builders, Inc., 420 S.W.3d 459 (Tex. App.
In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (orig. proceeding) .............10
In re VNA, Inc., 403 S.W.3d 483 (Tex. App.El Paso 2013, orig. proceeding)....22
Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266 (Tex. 1992) (orig. proceeding). 17, 23
Kirby Highland Lakes Surgery Ctr., L.L.P. v. Kirby, 183 S.W.3d 891 (Tex. App.
Moses H. Cone Memorial Hosp. v. Mercury Contr. Corp., 460 U.S. 1, 103 S. Ct.
Pennzoil Co. v. Arnold Oil Co. (In re Pennzoil Co.), 30 S.W.3d 494, 498 (Tex.
Pers. Sec. & Safety Sys. Inc. v. Motorola Inc., 297 F.3d 388 (5th Cir. 2002) .........16
Prudential Sec., Inc. v. Marshall, 909 S.W.2d 896 (Tex. 1995) ...................... 11, 12
Senter Invs., L.L.C. v. Veerjee, 358 S.W.3d 841 (Tex. App.Dallas 2012, no pet.)
.............................................................................................................................22
Williams v. State, 406 S.W.3d 273 (Tex. App.San Antonio 2013, pet. denied) 18,
19
Statutes
TEX. CIV. PRAC. & REM. CODE 171.021................................................................21
Rules
TEX. R. APP. P. 52.3 ............................................................................................. i, 27
related to the sale of the membership interests in a limited liability company, for
which the Note was given as partial consideration. Respondent denied a motion to
compel arbitration, severed the claim to enforce the Note into a separate cause,
Cause No. 1080464-101 (the Severed Cause), and found that the remaining
claims in Cause No. 1080464 (the Remaining Cause) were arbitrable but
B. Identity of Respondent
The Honorable Theresa W. Chang, Presiding Judge of the County Civil
1
Appendix (Appx.) Tab A.
2
Appx. Tab B.
Additionally, Relators Albaz and Crossland seek relief from the following
4) Order, in Cause No. 1080464, entered October 25, 2017 (setting aside
October 8, 2017 order denying motion to compel arbitration and
finding case arbitrable but not staying the case pending arbitration) 4
3
Appx. Tab C.
4
Appx. Tab D.
22.221(b)(1), providing that courts of appeal may issue writs of mandamus against
Issue 2: Was severance of Real Party in Interest Abbous claim on the Note
adequate remedy on appeal, when that claim not only arbitrable under
the Agreement but was also so interwoven with the other claims in the
Remaining Cause that they involved the same facts and issues?
Issue 3: Having determined that the claims in the Remaining Cause were
Code 171.021?
Issue 4: Is the failure to order arbitration of the claims in both the Severed
In re IN THE
YAKOV ALBAZ and AA TOP COURT OF APPEALS
SUCCESS, LLC D/B/A CROSSLAND
VAN LINES & STORAGE HOUSTON, TEXAS
Relators
Yakov Albaz (Albaz) and AA Top Success, LLC D/B/A Crossland Van Lines &
Storage (Crossland) hereby file their Petition for Writ of Mandamus (Petition),
A. Factual background
On May 18, 2016, Real Party in Interest Raam Abbou (Abbou) sold his
directly or indirectly arose out of that agreement. Abbou admitted that Albaz
gave him a promissory note for $22,500.00 in partial consideration for Abbous
membership interest in Crossland, and that the note was part of the agreement and
Crossland for all claims that arose on or before May 18, 2016, with an exception
Association:7
5
Mandamus Record (Rec.) Tab I at 8.
6
Id.
7
Id. at 11 (emphasis added).
2016. On May 18, 2016, Albaz executed a Promissory Note (Note) maturing on
July 5, 2016 and having the principal amount of $22,500.00. 8 This was not a
coincidencein his deposition, Abbou testified that the Note was related to the
Harris County, Texas under Cause Number 1080464 (the Remaining Cause),
asserting single claim against Albaz for an amount due of $22,500.00 under the
8
Rec. Tab F, at 4.
9
Rec. Tab M, at 18-19.
10
Rec. Tab O, at 19.
On August 29, 2016, Albaz filed his answer, asserting several affirmative
Abbou.13 Crossland alleged that prior to May 2016, when it was still owned by
rightfully belonged to the company. 14 It asserted claims against Abbou for fraud,
On July 19, 2017, Abbou was deposed and admitted that the Note was
compel arbitration.19
11
Plaintiffs Original Petition, Rec. Tab F.
12
Defendant Yakov Albaz Original Answer and Request for Disclosures, Rec. Tab G.
13
AA Top Success, LLCs D/B/A Crossland Van Lines Plea in Intervention and Requests for
Disclosure, Rec. Tab H.
14
Id. at 2.
15
Id. at 3-4.
16
Rec. Tab M, at 18.
17
Defendant Yakov Albazs and Intervenor AA Top Success, LLCs Motion to Compel
Arbitration, Rec. Tab I.
18
Reporters record of August 8, 2017 hearing, Rec. Tab J.
the claim against Albaz on the promissory note, but asserted other claims (in his
claim against Albaz into a separate cause. 22 Albaz filed a response on September
14, 2017, noting that the Note was related to and given in consideration for the
Agreement. 23
6(h) of the Agreement, for the portion of Albazs crossclaim that arose before
19
Appx. Tab A.
20
Plaintiffs Second Amended Petition, Rec. Tab K.
21
Id. at 7-14.
22
Plaintiffs Motion to Sever, Rec. Tab L.
23
Defendant Yakov Albazs Request for Oral Hearing, Motion for Leave to File Response Out of
Time, and Response in Opposition to Plaintiffs Motion to Sever, Rec. Tab M.
24
Defendant Yakov Albazs First Original Cross Claim, Rec. Tab N.
25
AA Top Success, LLCs D/B/A Crossland Van Lines First Amended Plea in Intervention and
Requests for Disclosure, Rec. Tab O, at 3-4.
asserted a claim on the Note against Albaz, in addition to the claims previously
added.26
August 8, 2017 order denying the motion to compel arbitration, noting that the
multitude of claims in the case below were all related to the Agreement, and were
Abbous motion to sever and Crosslands motion for reconsideration of the order
to sever (the Severance Order).31 Abbous claims on the Note against Albaz were
26
Plaintiffs Fourth Amended Petition, Rec. Tab P.
27
Intervenor AA Top Success, LLCs Motion to Reconsider Order Denying Motion to Compel
Arbitration, Rec. Tab Q.
28
Defendant Yakov Albazs Response Supporting Motion to Reconsider Order Denying Motion
to Compel Arbitration, Rec. Tab R.
29
Defendant Yakov Albazs First Amended Answer and Requests for Disclosure, Rec. Tab S.
30
Reporters record of October 10, 2017 hearing, Rec. Tab T.
31
Appx. Tab B.
Cause that Abbou refused to mediate the dispute between the parties pursuant to
the Agreement.32
In addition to this petition, on October 18, 2017, Albaz and Crossland had
also filed a notice of interlocutory appeal of the trial courts August 8, 2017 order
in the Remaining Cause, which was assigned to the First Court of Appeals under
On October 25, 2017, Respondent entered two additional orders, one in the
the severed claims, the motion to reconsider the August 8, 2017 order denying the
August 8, 2017 order denying the motion to compel arbitration. The order further
found that the claims in the Remaining Cause were arbitrable, but did not
32
Notice of Refusal to Mediate, Rec. Tab U.
33
Rec. Tab V.
34
Appx. Tab C.
35
Appx. Tab D.
interlocutory appeal in the Remaining Cause because the August 8, 2017 order had
been set aside and superseded by the October 25, 2017 order. 36
III. Argument
Every claim by or against every party against every other party in the causes below
(that is, the claims in both the Remaining Cause and the Severed Cause) is
arbitrable because they are all claims or controversies arising directly or indirectly
compel arbitration.38
Later, Respondent severed out a single claim on the Note into the Severed
Cause and reaffirmed her denial of arbitration on that claim. 39 In the Remaining
Cause, Respondent found that all the claims in that cause were arbitrable, but
36
Rec. Tab W.
37
Rec. Tab I at 11.
38
Appx. Tab A.
39
Appx. Tabs B, C.
Because all the claims in question, both in the Severed Cause and in the
Remaining Cause, are all arbitrable under the Agreement, it was an abuse of
discretion for Respondent to first sever out the single claim on the Note into the
Severed Cause, and then, having found that all the other claims in the Remaining
Cause were arbitrable, declining to compel arbitration and staying the proceedings.
Relators would have no adequate remedy at law, because they would first be
forced to litigate many of the same intertwined facts and issues twice (once in the
Severed Cause and once in the Remaining Cause), and furthermore, though all the
claims in this case are arbitrable, they would be denied the benefits of arbitration if
they are forced to partially or fully litigate this matter in court before they proceed
to arbitration.
Relators Abbou and Crossland therefore respectfully request that the Court
cause a writ to issue ordering Respondent to first vacate her August 8, October 16,
and October 25, 2017 orders, and then, once all the outstanding claims between the
parties are consolidated back into the Remaining Cause, to enter an order
compelling arbitration and staying all proceedings pending the outcome of that
arbitration.
40
Appx. Tab D.
clear abuse of discretion by the trial court, and (2) there is no adequate remedy on
appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004)
(orig. proceeding). The relator has the burden of establishing both prerequisites to
mandamus relief. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig.
proceeding).
fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164
S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). A trial court has no discretion in
applying the law to the facts or determining what the law is. In re Prudential Ins.
Co. of Am., 148 S.W.3d at 135. The Court should assess the adequacy of an
detriments. In re State, 355 S.W.3d 611, 614-15 (Tex. 2011) (orig. proceeding); In
re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). In
performing this balancing, the Court should look at a number of factors, including
whether mandamus review will spare litigants and the public the time and money
S.W.3d at 136).
claim and then its severance into a separate cause, was an abuse of discretion for
presumption in favor of arbitration. Cantella & Co., Inc. v. Goodwin, 924 S.W.2d
943, 944 (Tex. 1996) (citing Moses H. Cone Memorial Hosp. v. Mercury Contr.
Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927 (1983); Prudential Sec., Inc. v. Marshall,
909 S.W.2d 896, 898 (Tex. 1995)). Courts must resolve any doubts about an
899); Emerald Tex., Inc. v. Peel, 920 S.W.2d 398, 402 (Tex. App.Houston [1st
opposing an arbitration agreement bears the burden of defeating it. Id. (citing
Marshall, 909 S.W.2d at 900). A court should not deny arbitration unless the court
can say with positive assurance that an arbitration clause is not susceptible of an
interpretation that would cover the claims at issue. Garg v. Pham, 485 S.W.3d 91,
particular dispute that arises between the parties does not specifically pertain to
formation of, or obligations created by, the originating contract. In re Conseco Fin.
Servicing Corp., 19 S.W.3d 562, 570 (Tex. App.Waco 2000, orig. proceeding)
(holding broad arbitration provision encompassed statutory and tort claims not
broad language favoring arbitration. HouScape, Inc. v. Lloyd, 945 S.W.2d 202,
205-06 (Tex. App.Houston [1st Dist.] 1997, no writ). Under those broad
with the contract that is subject to the arbitration agreement, the claim will be
Leroy (In re AutoNation USA), 105 S.W.3d 190, 193 (Tex. App.
S.W.3d 688. 608 (Tex. App.Houston [1st Dist.] 2014, pet. denied).
3. The Note and Agreement are part of the same transaction, and
are to be read and construed together
The general rule is that separate instruments or contracts executed at the
same time, for the same purpose, and in the course of the same transaction are to
be considered as one instrument, and are to be read and construed together. Jones
v. Kelley, 614 S.W.2d 95, 98 (Tex. 1981); see also Harris v. Rowe, 593 S.W.2d
of the same transaction and relating to the same subject matter may be construed
In his July 19, 2017 deposition, Abbou testified that the Note was related to
the Agreement, and was in fact given as consideration for that Agreement:
that is essential to the overall transaction, [courts] presume that they intended the
41
Rec. Tab M, at 18-19.
Hous. Progressive Radiology Assocs.), 474 S.W.3d 435, 443 (Tex. App.Houston
[1st Dist.] 2015, orig. proceeding) (quoting Pers. Sec. & Safety Sys. Inc. v.
Motorola Inc., 297 F.3d 388, 394-95 (5th Cir. 2002)); see also Kirby Highland
Lakes Surgery Ctr., L.L.P. v. Kirby, 183 S.W.3d 891, 900-01 (Tex. App.Dallas
Like the cases cited in Section III.C.2, the arbitration provision in the
submitted to binding arbitration ... in accordance with the commercial rules of the
Abbou agreed that the Note was related to, and given in partial consideration
for, the Agreement. As such, his claim on the Note arises directly out of the
Agreement.
Abbous claim on the Note against Albaz is intertwined with the other
claims at issue, and which Respondent has already ruled are arbitrable: they all
Agreement, there would have been no Notethey are clearly related. The Texas
42
Rec. Tab I at 11 (emphasis added).
arbitration agreement can compel arbitration (and vice versa). Meyer v. WMCO-
Given the foregoing, the conclusion must be that Abbous claim on the Note
was arbitrable under the Agreement, and thus it never should have been severed
re D. Wilson Constr. Co., 196 S.W.3d 774, 780 (Tex. 2006) (orig. proceeding);
Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272-73 (Tex. 1992) (orig.
abuse of discretion to deny arbitration of this claim, and moreover for the reasons
discussed in the following section, to then sever it into a separate cause. Albaz has
arbitration but would in fact be forced to engage in parallel litigation of two causes
with interwoven claims that involve the same facts and issues.
D. Because Abbous claim on the Note was arbitrable, its severance into a
separate cause was an abuse of discretion
Not only is Abbous claim on the Note arbitrable, but it was also interwoven
with, and involved the same facts and issues as, the other claims in the Remaining
Cause, and thus should not have been severed. In the cases below, severance
convenience.
the dispute involves multiple causes of action; (2) the claims sought to be severed
would be proper subjects of independently filed lawsuits; and (3) the claims are not
so interwoven with each other that they involve the same facts and issues. In re
State, 355 S.W.3d at 614. Severance should only be granted to avoid prejudice, do
justice, and increase convenience. Id. at 613; F.F.P. Operating Partners, L.P. v.
Duenez, 237 S.W.3d 680, 693 (Tex. 2007). However, just because a claim may be
severed does not mean that it must be. Williams v. State, 406 S.W.3d 273, 280
(Tex. App.San Antonio 2013, pet. denied) (quoting In re Wilkerson, No. 14-08-
Houston [14th Dist.] June 6, 2008, orig. proceeding) (mem. op.)). A trial court has
a duty to sever only if all of the facts and circumstances unquestionably require
tending to support a contrary conclusion, and if the parties legal rights will not be
prejudiced by severance. Id. (quoting In re Reynolds, 369 S.W.3d 638, 650 (Tex.
a waste of public and judicial resources. In re Energy Res. Tech. GOM, Inc., No.
Dist.] Oct. 4, 2012, orig. proceeding). Appeal is no remedy at all for the
S.W.2d 194, 198 (Tex. 1999). Mandamus review of a severance order is thus
proper to spare private parties and the public the time and money utterly wasted
Res. Tech. GOM, Inc., 2012 Tex. App. LEXIS 8359, at *4-5 (quoting In re
the Note was related to the Agreement, and actually given as consideration for the
Agreement. Thus, litigating this claim on the Note in the Severed Cause
necessarily concern the same facts and issues as the other claims in the Remaining
Cause.
defenses) necessarily concern the facts and circumstances surround the sale of
Litigating these issues twice and in parallel does nothing to avoid prejudice,
43
Rec. Tab S, at 2.
that [a]n order compelling arbitration must include a stay of any proceeding
subject to Section 171.025. TEX. CIV. PRAC. & REM. CODE 171.021(c).
an application for that order is made under this subchapter. TEX. CIV. PRAC. &
Accordingly, the Texas Supreme Court has held that when a claim falls
within the scope of a valid arbitration agreement and there are no defenses to its
enforcement, a court has no discretion but to compel arbitration and stay its own
proceedings. Forrest Oil Corp. v. McAllen, 268 S.W.3d 51, 56 (Tex. 2008)
(quoting In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753-54 (Tex. 2001) (orig.
proceeding)); see also In re J.D. Edwards World Solutions Co., 87 S.W.3d 546,
Once a court determines that claims are arbitrable, a stay is generally the
only appropriate order for a state court with jurisdiction of all issues. Senter Invs.,
CMH Homes, Inc. v. Perez, 340 S.W.3d 444, 450 n.4 (Tex. 2011)).
arbitration and (b) staying pending litigation constitutes an abuse of discretion for
which there is no adequate remedy on appeal. Forrest Oil Corp., 268 S.W.3d at 56.
properly make its decision on the motion to compel because it lacks sufficient
arbitrability. In re Houston Pipe Line Co., 311 S.W.3d 449, 451 (Tex. 2009) (orig.
merits of the underlying controversy. Id.; see also In re VNA, Inc., 403 S.W.3d
483, 487-88 (Tex. App.El Paso 2013, orig. proceeding) (abuse of discretion to
agreement); In re ReadyOne Indus., 400 S.W.3d 164, 169 (Tex. App.El Paso
2013, orig. proceeding) (same); In re Susan Newell Custom Home Builders, Inc.,
420 S.W.3d 459, 462-63 (Tex. App.Dallas 2014, orig. proceeding) (defense of
unclean hands).
The Court FINDS that all the claims in [the Remaining Cause] are
subject to arbitration following adequate discovery, including but not
limited to the deposition of Yakov Albaz and unsuccessfully
mediation.44
re D. Wilson Constr. Co., 196 S.W.3d 774, 780 (Tex. 2006) (orig. proceeding);
Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272-73 (Tex. 1992) (orig.
re ReadyOne Indus., 400 S.W.3d at 169 (citing Walker v. Packer, 827 S.W.2d 833,
Once Respondent determined that the claims in the Remaining Cause are
arbitrable, she had no discretion but to order arbitration and stay the proceedings.
Forrest Oil Corp., 268 S.W.3d at 56. If Relators were forced to litigate this matter
44
Appx. Tab D at 1.
Issue 4 restated: Is the failure to order arbitration of the claims in both the
Severed Cause and the Remaining Cause and to stay
those proceedings an abuse of discretion for which there
is no adequate remedy on appeal?
F. All the claims below are arbitrable and the Court should order
Respondent grant the relief requested
The arbitration provision in the Agreement is broad, covering any claim or
There is no dispute that the claims in the Remaining Cause are arbitrable.
The only dispute as to arbitrability is the claim on the Note in the Severed Cause.
As shown above, this claim is also arbitrable. In his deposition, Abbou admitted
that the Note was related to the Agreement, and in fact was given as partial
Thus, all the claims in the Severed Cause and the Remaining Cause are
arbitrable. That being the case, Respondent had no discretion but to have ordered
arbitration and stay the proceedings. Thus, (i) the October 16, 2017 order severing
the claim on the Note into the Severed Cause, (ii) the August 8, 2017 and October
25, 2017 order denying arbitration, and the (iii) October 25, 2017 order in the
45
Appx. Tab I at 11 (emphasis added).
Respondent to vacate those orders, and enter an order to arbitrate all the claims
(now reconsolidated into a single cause) and to stay proceedings pending the
outcome of arbitration.
IV. Prayer
WHEREFORE, PREMISES CONSIDERED, Relators respectfully prays
vacate the August 8, 2017 and October 25, 2017 orders in the Severed
Cause, and vacate in part the October 25, 2017 order in the Remaining
Cause;
4) Order Respondent to enter an order that all the claims in the cases
SIDDIQUI AYRES
NOW COMES, YAKOV ALBAZ, Defendant herein, by and through its undersigned
counsel, and files this Defendant Yakov Albaz Original Answer and Request for Disclosures and
I.
GENERAL DENIAL
lawsuit and demands strict proof thereof in accordance with Rule 92 of the Texas Rules of Civil
II.
AFFIRMATIVE DEFENSES
part, to the extent that Plaintiff has failed to mitigate, minimize, avoid, or abate any damages
allegedly sustained, and any recovery against Defendant must be reduced by that amount.
Page 1 of 3
6. Plaintiffs claims are barred because Plaintiff breached its agreement with
Defendant.
in part.
misrepresentation of Plaintiff.
11. Defendant asserts that Plaintiffs claim is barred because of conversion on the part
of Plaintiff.
III.
REQUEST FOR DISCLOSURE
Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendant requests that
Plaintiff disclose, within thirty (30) days of service of this request, the information and/or
WHEREFORE, Defendant prays that this honorable court dismiss Plaintiffs claim with
prejudice and award Defendant his cost of court and attorney fees, and for such other and further
Respectfully submitted,
Page 2 of 3
State Bar No. 24060578
Jason@Sheenalawfirm.com
2500 West Loop South, Suite 518
Houston, Texas 77027
(713) 224-6508
(713) 225-1560 Facsimile
ATTORNEYS FOR DEFENDANT
Yakov Albaz
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing instrument was sent
via first class mail and/or facsimile and/or certified mail, return receipt requested and/or hand
delivery and/or electronic mail, and/or electronically through the electronic filing manager to the
below listed counsel of record on this the 29th day of August, 2016.
By: /s/ Danny M. Sheena
Danny M. Sheena
Hsien-Te J. Koong
Koong Law Group, PLLC
405 Main Street, Suite 801
Houston, Texas 77002
(346) 808-0529
(713) 491-2874 Facsimile
john@koonglaw.com
ATTORNEY FOR PLAINTIFF
Raam Abbou
Page 3 of 3
Tab H
11/18/2016 2:46:27 PM
Stan Stanart
County Clerk
Harris County
CAUSE NO.1080464
COMES NOW, Intervenor AA Top Success, LLC d/b/a Crossland Van Lines &
Storage (Intervenor) and files this Plea in Intervention complaining of Raam Abbou,
I.
Texas Rule of Civil Procedure 169. Accordingly, pursuant to Rule 190.2 of the Texas
Rules of Civil Procedure, discovery in this case shall be conducted under Level 1.
PARTIES
3. Intervenor AA Top Success, LLC d/b/a Crossland Van Lines & Storage is
a limited liability company with its principal place of business in Harris County Texas.
III.
6. The Court has jurisdiction because the amount in controversy exceeds this
County, Texas pursuant to Section 15.002 of the Texas Civil Practice and Remedies Code
IV.
FACTUAL BACKGROUND
and long distance moves. Plaintiff is the former managing member and owner of
Intervenor. In May of 2016, Plaintiff sold the ownership and assets of Intervenor to
Hanya Vaknin.
8. However, during the process of, and the time directly after the sale,
Plaintiff wrongfully obtained over $19,000 in funds from customers of Intervenor. This
2
information and belief, Plaintiff set up a separate account that was substantially similar to
V.
CAUSES OF ACTION
A. Fraud
when he had to duty to disclose information to Intervenor including, but, not limited, to:
Intervenor; and
12. Plaintiff knew that Intervenor was ignorant of the facts and Intervenor did
13. Plaintiff was deliberately silent when it had a duty to speak. By failing to
disclose the facts, Plaintiff intended to induce Intervenor to take some action or refrain
3
owed Intervenor fiduciary duties as a member/officer of the company. Plaintiff breached
that duty by intentionally and knowingly diverging funds from Intervenor, and pocketing
C. Conversion
intrntnationally assumed and exercised control over the money to the exclusion of, or
inconsistent with Intervenors rights as an owner by depositing the funds in his own bank
account. Intervenor demanded return of the money and Plainitff has refused to return the
money.
money from Intervenor that in equity and good conscience belongs to Intervenor.
VI.
DAMAGES
paragraphs for all purposes as if set forth fully herein. Intervenor seeks the following
4
damages of Plaintiffs wrongful actions;
wrongful acts;
usurious rate;
VII.
JURY DEMAND
VIII.
CONDITIONS PRECEDENT
5
IX.
25. Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Intervenor
requests that Plaintiff disclose, in thirty (30) days or less after service, the information
26. Further, pursuant to Rule 190.2 of the Texas Rules of Civil Procedure
Plaintiff is requested to disclose all documents, electronic information and tangible items
that the disclosing party has in its possession, custody or control, and may use to support
XI
PRAYER
enter Judgment in for of Intervenor AA Top Success, LLC d/b/a Crossland Van Lines &
Storage against Raam Abbou for actual damages, exemplary damages, for costs of Court,
for prejudgment and post judgment interest, as allowed by law, and for such any further
Respectfully submitted,
6
Houston, Texas 77027
(713) 224-6508
(713) 225-1560 Facsimile
Danny@Sheenalawfirm.com
Jason@Sheenalawfirm.com
Blake@ Sheenalawfirm.com
Service@Sheenalawfirm.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing instrument
was sent via electronic service and/or hand delivery and/or facsimile and/or certified
mail, return receipt requested, to all counsel of record on the 18th day of November 2016.
Hsien-Te J. Koong
Koong Law Group, PLLC
405 Main Street, Suite 801
Houston, Texas 77002
(346) 808-0529
(713) 491-2874 Facsimile
john@koonglaw.com
7
Tab I
1080464
7/25/2017 2:27 PM
Harris County - County Civil Court at Law No. 2 Stan Stanart
County Clerk
Harris County
RAAM ABBOU,
Plaintiff
vs.
IN THE COUNTY CIVIL COURT
YAKOV ALBAZ,
Defendant
AT LAW NO. 2
AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES & STORAGE.
Intervenor HARRIS COUNTY, TEXAS
vs.
RAAM ABBOU,
Defendant in Intervention
COMES NOW, Defendant YAKOV ALBAZ (Albaz) and AA TOP SUCCESS, LLC
D/B/A CROSSLAND VAN LINES & STORAGE (Crossland), by and through their
undersigned counsel, and files this Defendant Yakov Albazs and Intervenor AA Top Success,
LLCs Motion to Compel Arbitration (Motion), and in support thereof would respectfully show
I. Summary
1. Defendant Albaz and Intervenor Crossland hereby move that Court to enter an order
compelling to parties to arbitrate their dispute, and to abate this case, including pending
discovery, pursuant to the attached valid, binding arbitration agreement entered into by Plaintiff
2. Abbou sued Albaz on a promissory note. This was part of a transaction wherein Abbou
sold his membership interests in Crossland to Yosef pursuant to that certain Membership
Transfer Agreement (Agreement) dated May 18, 2016, attached hereto as Exhibit A. In
consideration, Albaz paid Abbou $20,000.00 in cash and executed a promissory note for
$22,500.00.
3. As seller, Abbou made certain representations about the value of Crossland, and
represented that Crossland was entitled to certain receivables and other funds. Specifically, he
represented that at the closing of the sale, Crossland would have at least $20,000.00 in
receivables, and the sale of Abbous interests in Crossland was premised on such representations.
Albaz and Yosef relied on those representations. If he had known those representations were
untrue, Albaz would not have paid the consideration or made the note, and Yosef would not have
Crossland. Crossland also discovered that Abbou had opened a separate bank account into which
he deposited these misappropriated gains. Crossland does not have access or control over these
accounts. Finally, Crossland likely diverted customers that rightly belonged to Crossland for his
A. If a valid arbitration agreement exists, and the matter is arbitrable, state and
federal law strongly favors arbitration, and the Court must compel such arbitration
and abate the case pending the arbitration
5. A party seeking to compel arbitration must show (1) the existence of a valid, enforceable
arbitration agreement and (2) that the claims asserted are arbitrable, i.e. they fall within the scope
of that agreement. In re FirstMerit Bank, 52 S.W.3d 749, 753 (Tex. 2001); Valero Energy Corp.
these two showings are made, the burden shifts to the party opposing the arbitration to present a
valid defense to the arbitration agreement. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227-
28 (Tex.2003).
6. Federal and state law strongly favors arbitration. In re FirstMerit Bank, 52 S.W.3d at
753. Doubts regarding an agreements scope are resolved in favor of arbitration because there is
a presumption favoring agreements to arbitrate. Id.; Cantella & Co. v. Goodwin, 924 S.W.2d
7. Once a party seeking to compel arbitration establishes that there is a valid agreement to
arbitrate and that the claims raised are within the agreements scope, the Court must compel
arbitration. See 9 U.S.C. 2, 4 (Federal Arbitration Act/FAA); TEX. CIV. PRAC. & REM. CODE
171.001, 171.002, 171.021 (Texas Arbitration Act/TAA); In re D. Wilson Constr. Co., 196
S.W.3d 774, 781 (Tex. 2006); In re Dillard Dept Stores, Inc., 186 S.W.3d 514, 515 (Tex. 2006);
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003).
8. When a court orders the parties to arbitration, it must abate the proceedings pending the
outcome of the arbitration. 9 U.S.C. 3; TEX. CIV. PRAC. & REM. CODE 171.025.
written contract to submit to arbitration any controversy thereafter arising between the parties is
valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the
revocation of any contract. Phillips v. ACS Mun. Brokers, Inc., 888 S.W.2d 872, 875 (Tex. App
11. As noted above, the Agreement provides that any claim or controversy arising directly
or indirectly out of this Agreement shall be resolved by binding arbitration. The claims and
controversies in this case all arise from the Agreement and the transaction which it embodied.
Abbou seeks to enforce payment of a promissory note made in consideration of the transaction
detailed in the Agreement, and which he admitted in deposition was part of the Agreement. See
email attached as Exhibit B. Defendant Albazs defenses are premised on the Agreement.
12. It is clear the the claims and controversies in this case arise directly or indirectly out of
this agreement.
D. Conclusion
13. Because a valid arbitration agreement exists, and the dispute is arbitrable, under the
relevant statutes the Court must compel arbitration and abate this suit pending the outcome of the
arbitration.
IV. Prayer
that the Court grant this Motion, enter an order compelling the parties to arbitrate their dispute, to
abate this case pending the outcome of the arbitration, and for all other relief to which they may
be justly entitled.
I HEREBY CERTIFY that on or about July 19, 2017, during the deposition of Plaintiff
Raam Abbou, I conferred with HsienTe J. Koong, his counsel regarding arbitrating this matter.
I followed up by email on July 21, 2017, attached hereto as Exhibit B, but no response has been
received as of the date the above Motion was filed, so it is presumed that Plaintiff is opposed.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Defendant Yakov
Albazs and Intervenor AA Top Success, LLCs Motion to Compel Arbitration was sent via
electronic service and/or hand delivery and/or facsimile and/or certified mail, return receipt
requested, to all counsel of record on the 25th day of July 2017.
HsienTe J. Koong
KOONG LAW GROUP, PLLC
3302 Canal St., Suite 50
Houston, Texas 77003
(281) 895-1688
(281) 895-1356 Facsimile
john@koonglaw.com
ATTORNEY FOR RAAM ABBOU
John:
I still did not hear back from you on your position on Arbitration.
As you know, the agreement between the parties contains a clear arbitration agreement.
Mr. Abbou admitted during his deposition that the Note was part of the Agreement.
Thanks.
Danny M. Sheena
The Sheena Law Firm
2500 West Loop South, Suite 518
Houston, Texas 77027
(713) 224-6508
(713) 225-1560 Facsimile
E-mail: Danny@Sheenalawfirm.com
Web: www.Sheenalawfirm.com
NOTICE OF CONFIDENTIALITY
The information contained in this e-mail message and any attachments hereto is privileged and confidential, and is intended only for the use of the intended recipient and others who have been specifically
authorized to receive it. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, disclosure, use or copying of this communication, or the making or retention of a copy of
this communication, is strictly prohibited. If you have received this communication in error, please contact the sender by return e-mail and delete this message. If this e-mail message has any filed attached to it,
they should be virus-checked before they are opened. Thank you for your cooperation.
https://mail.google.com/mail/u/3/?ui=2&ik=5cc144cffb&jsver=HFKfDpt&q=abb&search=query&th=15d6710674a6ad43&siml=15d6710674a6ad43 Page 1 of 1
Tab J
1
15 machine.
16
17
18
19
20
21
22
23
24
25
2 HSIEN-TE J KOONG
SBOT NO. 24097951
3 AND ERIC YU
Koong Law Group, PLLC
4 3302 Canal, Suite 72
Houston, Texas 77003
5 Telephone: 281.895.1688
Fax: 281.895.1356
6 E-mail: ask@koonglaw.com
Attorney for Plaintiff, Raam Abbou
7
DANNY M. SHEENA
8 SBOT NO. 00792830
The Sheena Law Firm
9 2500 West Loop South, Suite 518
Houston, Texas 77027
10 Telephone: 713.224.6508
Fax: 713.225.1560
11 E-mail: service@Sheenalawfirm.com
Attorney for Defendant, Yakov Albaz and Intervenor,
12 AA Top Success, LLC
13
14
15
16
17
18
19
20
21
22
23
24
25
2 CHRONOLOGICAL INDEX
4 Adjournment ...................................23 1
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5 the record.
9 plaintiffs.
13 Arbitration?
5 the agreement?
11 is the company.
23 case?
25 case.
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
6
15 LLC?
18 considerations.
25 to Compel Arbitration?
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
7
10 shares. Okay?
16 Okay?
21 22,500.
25 2016.
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
8
10 (indicating).
11 Basically it says:
14 "Yes.
18 "Yes".
10 case.
13 Abbou --
17 case?
10 Arbitration Association.
6 says.
7 So any conduct --
10 it.
14 shall be responsible.
4 this. Okay?
11 bank account --
15 contract, conversion.
18 Raam Abbou.
21 misrepresentation, conversion.
9 of seller.
13 reference.
21 case here.
2 So what is it saying?
7 clause.
15 agreement to arbitrate.
22 what happened?
8 Honor?
10 Anything else?
20 jurisdiction to be at 200,000.
8 that.
22 Anything --
12 Success.
3 the same.
5 same.
9 sorry, Judge.
22 agreement.
3 bench trial?
8 confused.
15 apologize.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2 COUNTY OF Harris
21 November, 2017.
22
/s/Karen S. Bernhardt
23 Karen S. Bernhardt, CSR 1601
Expiration Date: 12/31/18
24 Deputy Court Reporter, County Civil Court at Law No. 2
Harris County, Texas
25 3901 29th Street No.
Texas City, Texas 77590 Telephone: 713.962.2530
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
Tab K
1080464
8/22/2017 11:36 AM
Harris County - County Civil Court at Law No. 2 Stan Stanart
County Clerk
Harris County
files this First Amended Petition against Defendants, Yakov Albaz (hereinafter sometimes referred
Prosperity or Defendant) in support thereof would respectfully show the Court as follows:
DISCOVERY-CONTROL PLAN
1) Plaintiff intends to conduct discovery under Level 2 of Texas Rule of Civil Procedure and
affirmatively pleads that this suit is not governed by the expedited-actions process in Texas Rule of
Civil Procedure 169 because of the complexity of the legal and factual issues, and the number of
parties and witnesses involved in the new factual allegations. Furthermore, based on what we know
PARTIES
3) Plaintiff, Raam Abbou, is an individual, residing in Houston, Harris County, Texas at 5906
4) The last three digits of Plaintiff Raam Abbous drivers license number are 852.
5) The last four digits of Plaintiff Raam Abbous Social Security number are 3526.
6) Defendant, Yakov Albaz is an individual, residing in Houston, Harris County, Texas at 5929
Queensloch Dr., Apartment No. 131, Houston, Texas 77096. Defendant may be served with process
located in Harris County at 4295 San Felipe Houston, Texas 77027, may be served with process by
serving its registered agent for service of process, Charlotte M Rasche, in Fort Bend County at 80
8) Intervenor, AA Top Success, LLC d/b/a Crossland Van Lines & Storage is a limited liability
9) This Court has jurisdiction over the subject matter of this case because the amount in
10) This Court has personal jurisdiction over the Defendants and Intervenor because they have
11) Venue is proper in Harris County, Texas pursuant to Tex. Civ. Prac. & Rem. Code 15.002
Plaintiffs First Amended Petition 2
(a) (1) in that all or a substantial part of the acts and omissions giving rise to the claims in this suit
FACTS
12) Plaintiff, Raam Abbou (Raam), is a seasoned commercial vehicle driver and mover with
substantial know-how in the field of local and long-distance transportation and storage. Plaintiff is
also the former managing member and owner of Intervenor, AA Top Success D/B/A Crossland Van
Lines (Crossland).
13) Defendant, Yakov Albaz (Yakov), is a successful business man investing and owning
14) Defendant, Prosperity Bank (Prosperity) is a Houston, Texas based regional financial holding
company with an established relationship and extensive dealings with Yakov Albaz, where Yakov
holds accounts for his other businesses and is considered a prominent banking client.
15) On or about January 2015, Yakov and Raam discussed the possibility of being partners in a
local and long-distance transportation and storage business. In these discussions, Yakov informed
Raam that he owns a warehouse that their business could use free of charge. Furthermore, Yakov
assured Raam that Raam could move his personal storage unit containing Raams personal property
including but not limited fine jewelry, two Rolex watches, Mont Blanc pen set, art memorabilia, an
antique rug, washer and dryer, dining room set, patio furniture, and other personal items to Yakovs
16) On or about March 2015, Yakov and Raam entered into a partnership and formed Crossland,
to provide storage as well as local and long-distance moving services. In addition to making a
contribution to fund the partnership, Yakov Albazs role in Crossland was to pay Raam Abbou a fixed
salary of $10,000 per month in exchange for Raam Abbou acting as manager in maintaining
17) The relationship between Yakov and Prosperity is notable. Yakovs existing relationship with
Prosperity include; Yakov owning multiple business banking accounts at Prosperity for various
businesses he owns in and around Houston, Texas; and the relationship Yakov formed with Prosperity
after years of gifting fine jewelry and watches to Prosperity employees for taking care of his banking
needs. For these reasons, Yakov insisted that Raam open Crosslands bank accounts with Prosperity
18) On or about March 2015, Raam Abbou, alone, opened the partnerships business accounts at
the Prosperity Bank location Yakov Albazs requested. Raam was the sole signatory for the accounts
at Prosperity.
19) While operating Crossland and as his managerial duty, Raam was often outside of Texas
driving commercial trucks around the clock for clients of the partnership. As a result, Raam had
difficulty monitoring the daily banking activities. Yakov insisted to Raam that certain individuals
Yakov trusted should be placed into managerial roles in order to help Raam with the daily operations.
As a business partner, Raam trusted Yakov and agreed to Yakovs course(s) of action.
20) On or about April 2015, without Raams knowledge, cash withdrawals of $18,000 were made
from the Crossland bank accounts with Prosperity Bank for unknown purposes.
21) On or about July 2015, Raam Abbou noticed unauthorized withdrawals of substantial sums
from the partnerships bank account in the form of cash, checks, and wire transfers on multiple
occasions. Upon learning of the unusual withdraws, Raam Abbou made inquiries to Albazs
employees for an explanation. However, instead of receiving an explanation to his questions, Albazs
1Raam Abbou sold his membership rights of Crossland on May 18, 2016. See Exhibit B.
Plaintiffs First Amended Petition 4
employees repeatedly deflected and delayed the issue.
22) On or about July 2015, Yakovs employee notified Raam of a lease agreement between
Yakovs warehouse and Crossland, and that Raam had allegedly signed the lease. After learning about
the existence of the alleged lease, Raam dug further into the issue and discovered bank statements
23) Raam, to the best of his knowledge, never signed a warehouse lease agreement and only knew
what Yakov represented in January 2015; that Yakov is the warehouse owner, Yakov and Raams
company could use Yakovs warehouse for business purposes free of charge, and Raam could use the
24) On or about August 2015, Raam brought his concerns regarding the unauthorized withdrawals
directly to Yakov. Yakov explained to Raam that he jointly purchased the warehouse building where
Crosslands warehouse was located. It is further alleged that Yakov told Raam that the withdrawals
were for warehouse rent and that the warehouse was no longer free of charge. Further, Yakov
explained that he needed to show the joint owner that the warehouse was profitable, but the amount
of the withdrawals would be returned immediately. On or about September 2015, a final withdrawal
25) After Yakovs employee brought the lease and Yakovs withdrawals to Raams attention,
Raam became worried and felt uneasy of the explanations Yakov provided. On or about January 2016,
Raam attempted to gain an understanding of the issues regarding the unauthorized withdrawals with
a Prosperity Bank branch manager. The manager acknowledged that the withdrawals from
Crosslands account was in fact completed without authorization and then the manager provided a list
26) The manager at Prosperity assured Raam that the bank could temporarily reimburse Crossland
by making a deposit of an amount equal to the unauthorized withdrawals back into Crosslands
27) On or about February 2016, a withdrawal of approximately $100,000 from Crosslands bank
28) On or about May 2016, Raam grew frustrated with his business partner and unsatisfied with
Yakovs explanations regarding the lease and unauthorized withdrawals, Raam decided to shut down
Crossland.
29) On or about May 16, 2016, Yakov persuaded Raam to sell Raams interest in Crossland to Jak
30) On or about May 16, 2016, Yakov assured Raam that Raams personal storage unit held at
Yakovs warehouse would be returned to Raam, and that Yakov would transport it to Raams
31) On May 18, 2016, Raam Abbou, seller, sold and transferred his ownership interest in
32) On May 18, 2016, Yakov Albaz, for valuable consideration, executed and delivered to Raam
Abbou a promissory note promising to pay Raam the sum of $22,500.00 on or before July 5, 20163.
On or about May 2017, Raam contacted Yakovs employee for the return of Raams storage unit. The
employee told Raam that Yakov would not allow the return of his storage unit unless Raam paid
$2,000. As of the filing of this petition, Raam does not have possession of items he stored in Yakovs
warehouse, in addition, Raam does not know the location of his storage unit, or whether it still exists.
CAUSES OF ACTION
2See Exhibit B
3See Exhibit A
Plaintiffs First Amended Petition 6
Count 1- Civil Conspiracy to Commit Fraud (Warehouse Lease)
33) Raam Abbou incorporates by reference the factual allegations contained in the preceding
paragraphs.
unlawful purpose or a lawful purpose by unlawful means. Firestone Steel Prods. Co. v. Barajas, 927
35) The elements of civil conspiracy are (1) two or more persons; (2) an object to be accomplished;
(3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5)
damages as the proximate result. Chon Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005); Boales v.
Brighton Builders, Inc., 29 S.W.3d 159, 164 (Tex. App.Houston [14th Dist.] 2000, pet. denied);
Henkel v. Emjo Invs., 480 S.W.3d 1, 7 (Tex. App.Houston [1st Dist.] 2015 no pet.).
36) As set forth above, Raam discovered bank statements showing unauthorized withdraws of
$14,000 in May and July of 2015. Yakovs employee then notified Raam of a lease agreement between
Yakovs warehouse and Crossland, and that Raams signature was on the lease. Raam, to the best of
his knowledge, never signed a warehouse lease agreement. After learning about the existence of the
alleged lease, Raam confronted Yakov for an explanation. Yakov told Raam that the withdrawals were
for warehouse rent and that the warehouse was no longer free of charge. Further, Yakov explained
that he needed to show the joint owner of the warehouse that the warehouse was profitable, but the
amount of the withdrawals would be returned immediately. On or about September 2015, a final
withdrawal of $14,000 was made, to Raams knowledge. The identity of the employees and potential
37) The conspiracy on the lease caused injury to Raam and Crossland which resulted in damages
of approximately $42,000.
38) Plaintiff seeks damages within the jurisdictional limits of this Court.
39) Raam Abbou incorporates by reference the factual allegations contained in the preceding
paragraphs.
unlawful purpose or a lawful purpose by unlawful means. Firestone Steel Prods. Co. v. Barajas, 927
41) The elements of civil conspiracy are (1) two or more persons; (2) an object to be accomplished;
(3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5)
damages as the proximate result. Chon Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005); Boales v.
Brighton Builders, Inc., 29 S.W.3d 159, 164 (Tex. App.Houston [14th Dist.] 2000, pet. denied);
Henkel v. Emjo Invs., 480 S.W.3d 1, 7 (Tex. App.Houston [1st Dist.] 2015 no pet.).
42) As set forth above, Prosperity honored the unauthorized withdrawals of checks, cash, and wire
transfers between April 2015 and February 2016. Prosperity Bank branch manager acknowledged that
the withdrawals from Crosslands account was in fact completed without authorization. Raam was the
sole signatory on the Crossland account. Raam waived the investigation after the managers firm
persistence to purposefully dissuade Raam from seeking an investigation. The identity of the
43) The unauthorized withdrawals of funds caused Raam and Crossland injury. The amount of
damages caused to Raam and Crossland is at least $118,000 but the exact amount is still under
investigation.
44) Plaintiff seeks damages within the jurisdictional limits of this Court.
45) Raam Abbou incorporates by reference the factual allegations contained in the preceding
46) Plaintiff brings an action under the Texas Theft Liability Act (TLA) for an unlawful
47) The elements of a cause of action for theft of property under the TLA are (1) plaintiff had a
possessory right to the property; (2) the defendant unlawfully appropriated the property by taking it
without the plaintiffs effective consent; (3) the defendant appropriated the property with the intent to
deprive the plaintiff of the property; and (4) the plaintiff sustained damages as a result of the theft.
Tex. Civ. Prac. & Rem. Code 134.003(a); Tex. Pen. Code 31.03(a), (b); Statewide Hydraulics, Inc.
v. EZ Mgmt. GP, LLC, No. 14-13-01049-CV (Tex. App.Houston [14th Dist.] 2015, no pet.) (memo
op.; 1-13-15).
48) As set forth above, Yakov brought about the transfer of Raams storage unit to be held at his
warehouse in their discussions on or about January 2015. On or about May 2016, Yakov reassured
Raam he would deliver his storage unit to Raams residence free of charge. When Raam asked for his
storage unit returned on May 2017, Yakovs employee told Plaintiff that Yakov would not allow it
49) Yakovs wrongful conduct caused injury to plaintiff, which resulted in the following damages;
all personal belongings of Raam in the storage container including but not limited to fine jewelry, two
Rolex time pieces, Mont Blanc pen set, art memorabilia, an antique rug, washer and dryer, dining
50) Plaintiff seeks damages within the jurisdictional limits of this Court.
51) Raam Abbou incorporates by reference the factual allegations contained in the preceding
paragraphs.
53) The elements of a cause of action for common-law fraud are (1) the defendant made a
representation to the plaintiff; (2) the representation was material; (3) the representation was false; (4)
when the defendant made the representation, the defendant knew the representation was false, or made
the representation recklessly, as a positive assertion, and without knowledge of tis truth; (5) the
defendant made the representation with the intent that the plaintiff act on it; (6) the plaintiff relied on
the representation; and (7) the representation caused the plaintiff injury. Zorrilla v. Aypco Constr. II,
LLC, 469 S.W.3d 143, 153 (Tex. 2015); Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194,
217 (Tex. 2011); Italian Cowboy Partners v. Prudential Ins., 341 S.W.3d 323, 337 (Tex. 2011).
54) Yakov represented to Raam that he owned a warehouse that Crossland could use for operations
free of charge.
55) Yakovs representation to plaintiff was material because there was in fact a lease agreement
for the warehouse being used for Crossland, and Raams alleged signature was on the lease agreement.
To the best of his knowledge, Raam never signed a warehouse lease agreement. The cost of renting a
storage warehouse was material in the operation of a moving and storage company. Furthermore, the
representation by Yakov was important to Raam in his decision to enter into business operations with
Yakov.
56) Yakovs representation to Raam was a false statement of fact. On or about August 2015, Raam
brought concerns of unauthorized withdrawals from Crossland bank accounts to Yakov. Defendant
explained that the withdrawals were for the cost of rent of the warehouse. This contradicts Yakovs
initial representation that the use of the warehouse would be free. More alarming is the fact that
Raams alleged signature was found on the warehouse lease agreement that to the best of Raams
57) Defendant made the false representation knowing it was false. On or about August 2015, Raam
Yakov explained to Raam that he jointly purchased the warehouse building where Crosslands
warehouse was located. Further, Yakov explained that he needed to show the joint owner that the
warehouse was profitable, but the amount of the withdrawals would be returned immediately.
58) Yakov had reason to expect Raam would act in reliance on the false representation. The cost
for a storage warehouse was imperative in Raams decision to enter into a business operation of a
moving and storage company. Furthermore, the representation by Yakov was important to Raam in
59) Raam justifiably relied on Yakovs false representation when Raam entered into business with
60) Yakovs false representation directly and proximately caused injury to Raam, which resulted
in three separate withdrawals from Crossland bank accounts of approximately $14,000 on or about
May 2015, July 2015, and September 2015 totaling approximately $42,000 in damages.
61) Plaintiff seeks damages within the jurisdictional limits of this Court.
62) Raam Abbou incorporates by reference the factual allegations contained in the preceding
paragraphs.
64) The elements of a cause of action for breach of fiduciary duty are (1) the plaintiff and
defendant had a fiduciary relationship; (2) the defendant breached its fiduciary duty to the plaintiff;
(3) the defendants breach resulted in injury to the plaintiff, or benefit to the defendant. Burrow v.
Arce, 997 S.W.2d 229, 237 (Tex. 1999); Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d
509, 513-14 (Tex. 1942); Heritage Gulf Coast Props. Ltd. V. Sandalwood Apts. Inc., 416 S.W.3d 642,
65) Plaintiff had a fiduciary relationship with defendant. Raam Abbou and Yakov Albaz were
66) As set forth above, Yakov did not disclose to Raam pertinent information regarding the
existence of a warehouse lease that Raams signature was somehow affixed to. More importantly, to
the best of his knowledge, Raam never signed the warehouse lease and never knew about the lease
until Raam made further inquiries into unauthorized withdrawals from Crossland bank accounts.
67) Yakovs breach of fiduciary duty injured Raam by causing damages in Crossland arising from
approximately $42,000 for warehouse lease payments that Yakov did not disclose to Raam.
68) Plaintiff seeks damages within the jurisdictional limits of this Court.
Count 6- Conversion
69) Raam Abbou incorporates by reference the factual allegations contained in the preceding
paragraphs.
71) The elements of a cause of action for conversion are (1) the plaintiff owned, possessed, or had
the right to immediate possession of property; (2) the property was personal property; (3) the
defendant wrongfully exercised dominion or control over the property; and (4) the plaintiff suffered
injury. Green Intl v. Solis, 951 S.W.2d 384, 391 (Tex. 1997); United Mobile Networks, L.P. v.
Deaton, 939 S.W.2d 146, 147 (Tex. 1997); Burns v. Rochon, 190 S.W.3d 263, 267-68 (Tex. App.
72) Raam owned the storage unit containing his belongings including fine jewelry, two Rolex time
pieces, Mont Blanc pen set, art memorabilia, an antique rug, washer and dryer, dining room set, and
patio furniture.
about the transfer of Raams storage unit to be held at his warehouse on or about January 2015. On or
about May 2016, Yakov reassured Raam he would deliver his storage unit to Raams residence free
of charge. On or about May 2017, Raam asked Yakovs employee to retrieve his storage unit. Yakovs
employee told Raam that Yakov would not allow it returned unless Raam Abbou paid $2,000.
74) Yakovs wrongful conduct caused injury to Raam, which resulted in the following damages;
all personal belongings of Raam in the storage container including but not limited to fine jewelry, two
Rolex time pieces, Mont Blanc pen set, art memorabilia, an antique rug, washer and dryer, dining
75) Plaintiff seeks damages within the jurisdictional limits of this Court.
76) Raam Abbou incorporates by reference the factual allegations contained in the preceding
paragraphs.
78) The elements of an action for promissory estoppel are (1) the defendant made a promise to the
plaintiff; (2) the plaintiff reasonably and substantially relied on the promise to its detriment; (3) the
plaintiffs reliance was foreseeable by the defendant; (4) injustice can be avoided only by enforcing
the defendants promise. Collins v. Walker, 341 S.W.3d 570, 573-74 (Tex. App.Houston [14th Dist.]
2011, no pet.).
79) Yakov, promised Raam that Raam could store his storage unit at Yakovs warehouse and
would allow Raam to retrieve his storage unit stored on Yakovs warehouse on two occasions. First,
80) Raam relied on Yakovs promise by storing his storage unit at the warehouse. Because the
Yakovs promise in January 2015 as a factor for consideration for entering into a partnership with
Yakov, and again in May 2016 as a factor for consideration for selling his membership interest in
81) Yakov knew, or reasonably should have known, that Raam would rely on Yakovs promise
because Raams actions were directly affected by his promise to allow Raam to store his storage unit
83) Plaintiff seeks damages within the jurisdictional limits of this Court.
JURY DEMAND
84) Plaintiff demands a jury trial and tenders the appropriate fee with this petition.
85) Under Texas Rule of Civil Procedure 194, plaintiff requests that defendant disclose, within 50
days of the service of this request, the information or material described in Rule 194.2
EQUITABLE RELIEF
86) Plaintiff seeks to be reimbursed for money that was wrongfully and frequently taken from the
PRAYER
87) For these reasons, Plaintiff requests that Defendant be cited to appear and answer herein, and
that Plaintiff have judgment against the Defendants for the following:
Action Towing, Inc. v. Mint Leasing, Inc. 451 S.W.3d 525, 531 (Tex. App.Houston [1st
ii) Exemplary damages. Plaintiffs injury resulted from defendants malice, gross
negligence, or actual fraud, which entitles plaintiff to exemplary damages under Texas
Civil Practice & Remedies Code section 41.003(a) and 41.008(c)(8); McCullough v.
Scarbrough, Medlin & Assocs., 435 S.W.3d 871, 913 (Tex. App.Dallas 2014, pet.
denied);
Respectfully submitted,
The undersigned hereby certifies that this Document has been served to all parties
shown below on August 2, 2017 in accordance with Rule 21 and 21a of the Texas Rules of
Civil Procedure.
HOUSTON, TX 77027
/s/ Eric S. Yu
Plaintiff, Raam Abbou, asks the Court to sever this case into separate proceedings.
INTRODUCTION
1. Defendant, Yakov Albaz, defaulted in his payment on a promissory note by failing to make
payment on or before July 5, 2016. On July 21, 2016, Plaintiff, Raam Abbou, sued Defendant,
2. On November 18, 2016, Intervenor, AA Top Success, LLC d/b/a Crossland Van Lines and
Storage (Crossland) brought claims against Plaintiff for fraud, breach of fiduciary duty and
conversion. On July 25, 2017, Intervenor and Defendant filed a Motion to Compel Arbitration
and Stay Proceeding to arbitrate Plaintiffs claims for the enforcement of promissory note,
Intervenors claim for fraud, breach of fiduciary duty, and conversion. On August 8, 2017, the
Court denied Intervenor and Defendants Motion to Compel Arbitration and Stay Proceedings.
4. This case was set for trial on September 4, 2017, however a 120 day continuance was
BACKGROUND
5. Plaintiffs claims against Defendant, Yakov Albaz, for breach and enforcement of the
promissory note is an independent contract between Plaintiff and Defendant. Claims brought by
independent contract between Plaintiff and Intervenor. On July 25, 2017, Defendant and
Intervenor filed for a Motion to Compel Arbitration concerning all claims mentioned above. On
August 8, 2017, Defendant and Intervenors Motion to Compel Arbitration and Stay Proceedings
were denied by this Court. See Exhibit A. On August 21, 2017, Plaintiff filed his amended
6. Plaintiff asks the Court to sever enforcement of promissory note from the rest of this suit
7. A court may sever part of a case before the case is submitted to the trier of fact. Tex. R.
Civ. P. 41; State Dept of Highways & Pub. Transp. v. Cotner, 845 S.W.2d 818, 819 (Tex.
1993); Christopher Columbus St. Mkt. LLC v. Zoning Bd. of Adjustments, 302 S.W.3d 408, 414
(Tex. App.Houston [14th Dist.] 2009, no pet.). This case has not been submitted to the trier of
fact.
2
8. A lawsuit may be severed into two suits (1) if it involves more than one distinct and
separate cause of action, (2) the severed cause could have been independently asserted in a
separate lawsuit, and (3) the severed cause is not so interwoven with the remaining action that
they involve the same facts and issues. In re State, 355 S.W.3d 611, 614 (Tex. 2011); F.F.P.
Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex. 2007); Liberty Natl Fire Ins.
Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996). When considering whether a cause of action
should be severed, the courts discretion is guided by the following controlling reasons: to do
justice, avoid prejudice, and further the convenience of the parties and the court. In re State, 355
S.W.3d at 613; F.F.P. Operating Partners, 237 S.W.3d at 693; Guar. Fed. Sav. Bank v.
Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990); Owens v. Owens, 228 S.W.3d 721,
9. This case involves the following distinct and separate causes of action: Plaintiffs claims
against Defendant for enforcement of a promissory note; Intervenors claims against Plaintiff
arising out of a Membership Transfer Agreement for fraud, breach of fiduciary duty and
Membership Transfer Agreement for civil conspiracies to commit fraud; theft of property; fraud;
10. This case can be severed because the enforcement of a promissory note could have been
claims against Plaintiff for fraud, breach of fiduciary duty and conversion arising from a
Plaintiffs enforcement of the promissory note which include additional claims against
Defendant for civil conspiracy, theft of property, conversion, fraud, breach of fiduciary duty, and
promissory estoppel.
11. This case can be severed because the cause of action to be severed is not so interwoven
with the remaining action that they involve the same facts and issues. Here, Plaintiffs claims for
breach of promissory note and enforcement of promissory note is an issue based solely on
Defendants promise to pay Plaintiff. The Intervenor is not a party to the promissory note, and
the promissory note is not mentioned in the Membership Transfer Agreement, a separate
contract between Plaintiff and Intervenor. Ultimately, the severance of the enforcement of the
promissory note will serve to eliminate confusion for the fact finder.
12. The Court should grant a severance in this case because the severance would work to
avoid prejudice, do justice, and further the convenience of the parties and the Court. Plaintiff
agrees with the Courts order denying Defendant and Intervenors Motion to Compel Arbitration
and Stay Proceedings on Plaintiffs claim for breach of contract on promissory note and
enforcement of promissory note. Furthermore, because there are multiple parties and complex
claims involved in the cause of action, severing the enforcement of the promissory note will
serve to reduce factual confusion to the fact finder. The severance of these claims would work to
avoid prejudice, avoid material confusion for the fact finder, do justice, and further the
13. In the alternative, if the Court denies this motion to sever, Plaintiff asks the Court to order
separate trials for breach of contract on promissory note and enforcement of promissory note. A
court may order a separate trial of any claim, cross-claim, counterclaim, third-party claim, or
issues arising from a promissory note between Plaintiff and Defendant together with
Intervenors claims against Plaintiff for fraud, breach of fiduciary duty and conversion related to
a separate Membership Transfer Agreement would result in risk of prejudice and create material
CONCLUSION
15. Plaintiff, Raam Abbou, asks the Court to sever this case into separate proceedings and assign
it a new cause number. Plaintiffs cause against Defendant for breach of promissory note and
enforcement of promissory note should be severed from the case because the case involves more
than one distinct and separate cause of action, the severed cause could have been independently
asserted in a separate lawsuit, and the severed cause is not so interwoven with the remaining action
PRAYER
16. For these reasons, Plaintiff asks the Court to sever the claims for breach and enforcement
of promissory note from the other causes of action in this case and order the clerk of the Court to
assign a new number to the severed cause. In the alternative, Plaintiff asks the Court to grant his
Respectfully submitted,
The undersigned hereby certifies that this Document has been served to all parties shown
below on September 5, 2017 in accordance with Rule 21 and 21a of the Texas Rules of Civil
Procedure.
HOUSTON, TX 77027
6
Page 55
Page 56
Tab M
1080464
9/14/2017 3:51 PM
Harris County - County Civil Court at Law No. 2 Stan Stanart
County Clerk
Harris County
RAAM ABBOU,
Plaintiff
vs.
IN THE COUNTY CIVIL COURT
YAKOV ALBAZ,
Defendant
AT LAW NO. 2
AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES & STORAGE
Intervenor HARRIS COUNTY, TEXAS
vs.
RAAM ABBOU,
Defendant in Intervention
through his undersigned counsel, and files this Defendant Yakov Albazs Request for Oral Hearing,
Motion for Leave to File Response Out of Time, and Response in Opposition to Plaintiffs Motion
to Sever (Response), and in support thereof would respectfully show the Court the following:
1. Pursuant to the Courts procedures, Albaz hereby requests an oral hearing. The undersigned
believes the issues are sufficiently complex that the Court will be aided by argument from counsel.
2. Pursuant to the August 28, 2017 order of the Supreme Court of Texas, misc. docket no. 17-
9091, Albaz hereby seeks leave to file his response out of time. The office of the undersigned only
recently reopened and with reduced staff, and several of the attorneys and staff are still dealing
3. The Court should deny the Plaintiffs Motion to Sever (Motion) filed by Plaintiff RAAM
ABBOU (Abbou). All of the parties various claims related to Abbous sale of his interest in
Intervenor AA TOP SUCCESS, LLC D/B/A CROSSLAND VAN LINES & STORAGE
(Crossland) because the claims that Abbou wishes to sever (that is, those against Albaz) are so
interwoven with the remaining claims (Albazs claims against Crossland and Crosslands claims
against Abbou), that they involve the same facts and issues (that is, they all implicate the
relationship between Abbou, Albaz, and Crossland before Abbou sold his membership interest in
4. Specifically:
a) Originally, Abbou sued Albaz on a promissory note.1 This note was partial
b) The sale was pursuant to a Membership Transfer Agreement dated May 18, 2016
c) In deposition, Abbou agreed that the promissory note in question was part of the
1
Plaintiffs Original Petition filed July 21, 2016.
2
Oral Deposition of Raam Abbou dated July 19, 2017, vol. 2 of 2 (Abbou Dep.), attached hereto as Defendants
Exhibit B, at 158:24-159:11.
DEFENDANT YAKOV ALBAZS REQUEST FOR ORAL HEARING,
MOTION FOR LEAVE TO FILE RESPONSE OUT OF TIME, AND
RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION TO SEVER Page 2 of 6
d) Crossland intervened, asserting claims against Abbou for breach of fiduciary and
member of Crossland;3
e) Abbou amended his petition to dismiss his claim related to the promissory note, and
add other claims that seem to really belong to Crossland against Albaz:4 these claims
related to business dealings Albaz had with Crossland and not Abbou in his individual
Crossland was the tenant, not Abbou.5 Likewise, he alleged that Albaz misappropriated
funds that belonged to Crossland. Because he sold all his interests in Crossland
startup costs and general business expenses. Albaz was repaid $80,000, leaving an
amount of 460,836.76 still owing. Albaz now asserts a crossclaim against Crossland;6
g) Similarly, in the Agreement, Abbou agreed to indemnify Crossland for all claims
against it arising from conduct prior to May 18, 2016 (the day Abbou sold his interest
3
AA Top Success, LLC d/b/a Crossland Van Lines Plea in Intervention and Requests for Disclosure filed
November 18, 2016.
4
Abbou filed two amended petitions titled Plaintiffs Second Amended Petition. The first was filed on August 8,
2017 and is not at issued here. On August 21, 2017, Abbou filed his Plaintiffs Third Amended Petition. One day
later, on August 22, 2017, Abbou filed another petition confusingly titled Plaintiffs Second Amended Petition. This
August 22, 2017 petition did not contain a claim to enforce payment of a promissory note, and must be considered
the live petition. TEX. R. CIV. P. 65 (amended pleading supplants earlier pleadings); see also Bennett v. Wood
County, 200 S.W.3d 239, 241 (Tex. App.Tyler 2006, no pet.) (same); FKM Partnership v. Board of Regents of the
Univ. of Houston System, 255 S.W.3d 619, 633 (Tex. 2008) (causes of action not contained in later amended
pleading effectively dismissed).
5
See August 22, 2017 Plaintiffs Second Amended Petition at 7.
6
Defendant Yakov Albazs First Original CrossClaim filed September 14, 2017.
DEFENDANT YAKOV ALBAZS REQUEST FOR ORAL HEARING,
MOTION FOR LEAVE TO FILE RESPONSE OUT OF TIME, AND
RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION TO SEVER Page 3 of 6
claims, which Abbou has failed to do. Consequently, Crossland is now likely to assert
5. Severance will lead to unnecessary costs and delay, by either the duplication of litigation
efforts, or unnecessary disputes about issue and claim preclusion. There would be lower discovery
costs for all parties. Separate trials of these cases could result in the inconsistent adjudication of
common factual and legal issues. Thus judicial economy would be served by the Court declining
6. Furthermore, though the Court previously denied a motion to compel arbitration filed by
Albaz and Crossland, given the multiplicity of claims asserted which are all realted to the
Agreement, Albaz will shortly file a motion for reconsideration of the Courts order denying
arbitration.
WHEREFORE, PREMISES CONSIDERED, Albaz prays that the Court deny Abbous Motion,
Respectfully submitted,
I HEREBY CERTIFY that a true and correct copy of the foregoing Defendant Yakov
Albazs Request for Oral Hearing, Motion for Leave to File Response Out of Time, and Response
in Opposition to Plaintiffs Motion to Sever was sent via electronic service and/or hand delivery
and/or facsimile and/or certified mail, return receipt requested, to all counsel of record on the 14th
day of September 2017.
HsienTe J. Koong
Eric S. Yu
KOONG LAW GROUP, PLLC
3302 Canal Street, Suite 72
Houston, Texas 77003
(281) 895-1688
(281) 895-1356 Facsimile
john@koonglaw.com
eric.yu@koonglaw.com
ATTORNEY FOR RAAM ABBOU
Saif A. Siddiqui
SIDDIQUI AYRES
State Bar No. 24052305
700 Louisiana Street, Suite 3950
Houston, Texas 77002
(832) 927-2775
(832) 787-1284 Facsimile
siddiqui@siddiquiayres.com
ATTORNEY FOR AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES AND STORAGE
Defendants
Exhibit A
Harris County - County Civil Court at Law No. 2
Defendants
Exhibit B
Raam Abbou
1
CAUSE NO. 1080464
RAAM ABBOU : IN THE COUNTY CIVIL COURT
:
Plaintiff, :
:
VS. :
:
YAKOV ALBAZ :
:
Defendant, :
:
:
VS. :
:
AA TOP SUCCESS, LLC D/B/A :
CROSSLAND VAN LINES & :
STORAGE :
:
Intervenor. : HARRIS COUNTY, TEXAS
*************************************
ORAL DEPOSITION OF
RAAM ABBOU
JULY 19, 2017
VOLUME 2 OF 2
PAGES 1 THROUGH 188
*************************************
158
1 correct?
2 A. Yes.
3 (Exhibit 10 was marked.)
4 Q. (BY MR. SHEENA) Let me show you Exhibit No.
5 10.
6 There's a Promissory Note that was signed.
7 Is that correct?
8 A. Yes. As far as I remember, yes.
9 Q. And the Promissory Note amount is 22,500. You
10 see that?
11 A. Where do you see that?
12 Q. Right there (indicating).
13 A. See, I'm not sure what these words say.
14 Q. 22,500. It says, Principal amount.
15 A. Principal. Okay.
16 Q. Okay. And the payable on July 5, 2016, do you
17 see that right there, right there (indicating)?
18 A. (No verbal response.)
19 Q. See that?
20 A. Yeah.
21 Q. If you look at Exhibit No. 6, Section 4, see
22 where it says 22,500, payable on July 5, 2016?
23 A. Okay. 22,500 to be paid by July. Yeah.
24 Q. Okay. So this Promissory Note relates to the
25 Membership Transfer Agreement of Exhibit No. 6. Is that
159
1 correct?
2 A. If I understand you correctly, that's saying
3 that he promised to pay the remaining 22,500 by July 15,
4 2016.
5 Q. And that's part of the Membership Transfer
6 Agreement, Exhibit No. 6. Is that correct?
7 A. Yes.
8 Q. Okay. So the Promissory Note was part of the
9 transaction that was included in the Membership Transfer
10 Agreement, Exhibit No. 6; right?
11 A. Yes.
12 Q. Okay. Remember a customer named Ahren Lehnert?
13 Does that ring a bell to you?
14 A. A customer?
15 Q. Yes.
16 A. No.
17 (Exhibit 11 was marked.)
18 Q. (BY MR. SHEENA) Show you Exhibit No. 11. Ever
19 seen a document like this?
20 A. If I see one like that?
21 Q. Yes.
22 A. I guess so, but not this one.
23 Q. Is this a job that you did?
24 A. How can I know?
25 Q. Well, it originated in Houston, Texas and was
RAAM ABBOU,
Plaintiff
vs.
IN THE COUNTY CIVIL COURT
YAKOV ALBAZ,
Defendant
AT LAW NO. 2
AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES & STORAGE.
Intervenor HARRIS COUNTY, TEXAS
vs.
RAAM ABBOU,
Defendant in Intervention
through his undersigned counsel, and for cause of action would respectfully show the Court the
following:
1. Discovery is intended to be conducted under Texas Rule of Civil Procedure (Rule) 190.3
(level 2).
II. Parties
Texas.
STORAGE (Crossland) is a limited liability company with its principal place of business in
Harris County, Texas who has already appeared in this case, and therefore no additional service is
necessary.
4. The Court has jurisdiction over these crossclaims pursuant to Rule 97(e). They are within
the jurisdictional limits of this Court, not filed elsewhere, mature, and arise from the same
5. Venue of this suit is proper in Harris County, Texas pursuant to Texas Civil Practice and
Remedies Code 15.062 because the venue of the main action is in Harris County, Texas.
IV. Facts
in March 2015, Albaz loaned Crossland a total of $540,836.76 to cover startup costs and general
business expenses. Albaz was repaid $80,000, leaving an amount of 460,836.76 still owing. Albaz
has demanded the balance due from Crossland, but Crossland has failed to pay him back.
V. Causes of Action
A. Breach of Contract
7. Crossland is liable to Albaz for breach of contract. Albaz agreed to lend Crossland funds,
and Crossland agreed to pay those amounts back. Albaz performed his obligations by loaning
Crossland a total of $540,836.76. Though Crossland paid Albaz back $80,000, it breached the
agreement by failing to pay back $460,836.76, and Albaz thus suffered damages in at least that
amount.
B. Unjust Enrichment
8. Additionally, and in the alternate, Crossland is liable to Albaz for unjust enrichment. The
facts stated above show that Crossland was unjustly enrichment by the loan proceeds it received
9. Additionally, and in the alternate, Crossland is liable to Albaz for fraud. Crossland needed
funds and sought to borrow them from Albaz. It represented to Albaz that it was and would be able
to pay back the money it sought to borrow from Albaz. At the time Crossland made that
representation, it knew it to be false, and it knew that it would never be able to repay Albaz.
Nonetheless, Crossland made these representations to induce Albaz into loaning it money. Relying
still owing.
10. Albaz is entitled to recover reasonable and necessary attorneys fees, as well as a
reasonable fee for any and all appeals to other courts under Texas Civil Practices and Remedies
Code 38.001(a).
11. Pursuant to Rule 194, Albaz requests that Crossland disclose, within the time prescribed
VIII. Prayer
WHEREFORE, PREMISES CONSIDERED, Albaz prays that the Court, upon final hearing,
enter judgment against Crossland, for prejudgment and postjudgment, for costs of court, and for
Respectfully submitted,
I HEREBY CERTIFY that a true and correct copy of the foregoing Defendant Yakov
Albazs First Original CrossClaim was sent via electronic service and/or hand delivery and/or
facsimile and/or certified mail, return receipt requested, to all counsel of record on the 14th day of
September 2017.
HsienTe J. Koong
Eric S. Yu
KOONG LAW GROUP, PLLC
3302 Canal Street, Suite 72
Houston, Texas 77003
(281) 895-1688
(281) 895-1356 Facsimile
john@koonglaw.com
eric.yu@koonglaw.com
ATTORNEY FOR RAAM ABBOU
Saif A. Siddiqui
SIDDIQUI AYRES
State Bar No. 24052305
700 Louisiana Street, Suite 3950
Houston, Texas 77002
(832) 927-2775
(832) 787-1284 Facsimile
siddiqui@siddiquiayres.com
ATTORNEY FOR AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES AND STORAGE
RAAM ABBOU,
Plaintiff
vs.
IN THE COUNTY CIVIL COURT
YAKOV ALBAZ,
Defendant
AT LAW NO. 2
AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES & STORAGE
Intervenor HARRIS COUNTY, TEXAS
vs.
RAAM ABBOU,
Defendant in Intervention
COMES NOW, Intervenor AA TOP SUCCESS, LLC D/B/A CROSSLAND VAN LINES
& STORAGE (Crossland), by and through its undersigned counsel, and for cause of action
I.
DISCOVERY LEVEL
1. Intervenor Crossland affirmatively pleads this matter is no longer an expedited action under
Texas Rule of Civil Procedure (Rule) 169(c)(1)(B) and (c)(2). Accordingly, discovery is
2. Intervenor AA TOP SUCCESS, LLC D/B/A CROSSLAND VAN LINES & STORAGE
(Crossland) is a limited liability company with its principal place of business in Harris County,
Texas.
County, Texas who has already appeared in this case, and therefore no additional service is
necessary.
III.
JURISDICTION & VENUE
4. The Court has jurisdiction because the amount in controversy exceeds this Courts
minimum jurisdictional requirements. Venue of this suit is proper in Harris County, Texas pursuant
to Texas Civil Practice and Remedies Code sections 15.002 and 15.003 because all parties are
residents of Harris County, Texas, and because all or a substantial part of the events or omissions
IV.
FACTUAL BACKGROUND
5. Abbou was the original owner of Crossland. On or about May 18, 2016, Abbou sold his
membership interest in Crossland to Yakov Albaz (Albaz) pursuant to the Membership Transfer
6. Paragraph 6(h) of the Agreement provided that Abbou would indemnify Crossland for all
Page 2 of 8
7. Prior to the sale, Abbou misappropriated $24,259.26 in funds that rightfully belonged to
Crossland. Crossland also discovered that Abbou had opened a separate bank account into which
he deposited the misappropriated funds. Crossland does not have access or control over these
accounts. Finally, through information and belief, it is likely that Abbou diverted customers that
8. Furthermore, prior to May 18, 2016, Albaz had provided funds to Crossland to support its
Crossland for those and other amounts owed. As a result, Crosslands prior counsel withdrew and
the undersigned was designated as its new counsel by court order dated September 7, 2017.
9. On August 24, 2017, Crossland requested in writing that Abbou indemnify Crossland
pursuant to Paragraph 6(h) of the Agreement. A copy of the letter is attached as Exhibit B. As of
the date of this pleading, no response has been received from Abbou.
VI.
CAUSES OF ACTION
A. BREACH OF CONTRACT
10. Crossland realleges and incorporates by reference the preceding paragraphs for all purposes
11. Abbou entered into the Agreement with Crossland, who has fully performed its obligations
thereunder. Under the Agreement, Abbou promised to indemnify Crossland for any claims arising
Page 3 of 8
prior to May 18, 2016. Albaz asserted a claim that arose prior to May 18, 2016 against Crossland
in the amount $353,086.76. Crossland requested that Abbou indemnify them, and Abbou breached
the Agreement by failing to do so. As a result of Abbous breach, Crossland suffered damages.
B. FRAUD
12. Crossland realleges and incorporates by reference the preceding paragraphs for all purposes
13. Abbou knowingly made numerous misrepresentations and failed to disclose material facts
b) The failure to disclose that he opened a separate bank account into which he was
14. Abbou knew that Crossland was ignorant of those facts and did not have an equal
15. Abbou intentionally concealed these material facts to induce Crossland into taking a course
of action it would otherwise not have. Crossland relied on these misrepresentations when entering
16. Crossland realleges and incorporates by reference the preceding paragraphs for all purposes
17. Prior to May 18, 2016, Abbou was the managing member of Crossland, and therefore owed
it the customary fiduciary duties of a member/officer of the company. Abbou breached that duty
when he intentionally and knowingly diverted and concealed funds belonging to Crossland for his
own benefit.
Page 4 of 8
18. Abbous breach was the proximate cause of the injuries sustained by Crossland.
D. CONVERSION
19. Crossland realleges and incorporates by reference the preceding paragraphs for all purposes
20. Crossland was legally entitled to possess the funds misappropriated by Abbou.
21. Abbou unlawfully and without authorization knowingly and intentionally assumed and
exercised dominion and control over said funds to the exclusion of, or inconsistent with,
22. Even though Crossland has demanded the return of the misappropriated funds, Abbou has
23. Crossland realleges and incorporates by reference the preceding paragraphs for all purposes
24. Abbou holds money belonging to Crossland that, in equity and good conscience, must be
returned to prevent his unjust enrichment from the unlawful conduct described herein.
25. Crossland realleges and incorporates by reference the preceding paragraphs for all purposes
26. As a direct result of Abbous misconduct, Crossland is entitled to recover the following
damages:
a) Actual damages;
b) Disgorgement of all profits and benefits enjoyed by Abbou as a result of his wrongful
acts;
Page 5 of 8
c) Exemplary and punitive damages because Abbous wrongful acts were done
d) Pursuant to Texas Civil Practice and Remedies Code 41.008, the amount of
exemplary damages awarded to Crossland should not be limited because Abbou acted
intentionally and knowingly in violation of Texas Penal Code sections 31.03 and 32.45;
e) Reasonable and necessary attorneys fees for the prosecution of its claim for breach of
contract, as well as a reasonable fee for any and all appeals to other courts under Texas
g) Costs of court.
VII.
CONDITIONS PRESEDENT
VIII.
REQUEST FOR DISCLOSURE
28. Pursuant to Rule 194, Crossland requests that Abbou disclose, within the time prescribed
IX.
REQUEST FOR JURY TRIAL
29. Crossland requests a jury trial in this case pursuant to Rule 216.
X.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Crossland prays that the Court, upon final
hearing, enter judgment against Abbou in favor of Crossland and grant the relief requested above,
Page 6 of 8
costs of court, pre and postjudgment interest as allowed by law, and for all other relief to which
Respectfully submitted,
Saif A. Siddiqui
SIDDIQUI & AYRES
State Bar No. 24052305
700 Louisiana Street, Suite 3950
Houston, Texas 77002
(832) 927-2775
(832) 787-1284 Facsimile
siddiqui@siddiquiayres.com
ATTORNEY FOR AA TOP SUCCESS, LLC
D/B/A CROSSLAND VAN LINES AND
STORAGE
Page 7 of 8
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing AA Top Success, LLCs
d/b/a Crossland Van Lines First Amended Plea in Intervention and Requests for Disclosure was
sent via electronic service and/or hand delivery and/or facsimile and/or certified mail, return
receipt requested, to all counsel of record on the 14th day of September 2017.
HsienTe J. Koong
Eric S. Yu
KOONG LAW GROUP, PLLC
3302 Canal Street, Suite 72
Houston, Texas 77003
(281) 895-1688
(281) 895-1356 Facsimile
john@koonglaw.com
eric.yu@koonglaw.com
ATTORNEY FOR RAAM ABBOU
Danny M. Sheena
THE SHEENA LAW FIRM
2500 West Loop South, Suite 518
Houston, Texas 77027-4508
(713) 224-6508 (voice)
(713) 225-1560 (facsimile)
service@sheenalawfirm.com
ATTORNEY FOR YAKOV ALBAZ
Saif A. Siddiqui
Page 8 of 8
Harris County - County Civil Court at Law No. 2
Exhibit A
Harris County - County Civil Court at Law No. 2
Exhibit B
SAIF SIDDIQUI
700 Louisiana Street
Suite 3950
Houston, TX 77002
siddiqui@siddiquiayres.com
Mobile: (713) 927-2775
Office: (832) 390-2692
August 24, 2017
Re: Abbou v. Albaz, Cause No. 1080464 in the Civil Court at Law No. 2 of Harris County,
Texas demand for indemnification
Mr. Koong:
I represent AA TOP SUCCESS, LLC d/b/a CROSSLAND VAN LINES & STORAGE
(Crossland) in this matter. As you may be aware, a motion to substitute counsel has been filed
by Crossland and set for submission with the Court.
Yakov Albaz (Albaz) has asserted a claim against Crossland in the amount of $353,086.76 as of
May 18, 2016. It is anticipated that Mr. Albaz will plead crossclaims against Crossland in the
abovereferenced lawsuit. Thus, it has been necessary for Crossland to retain new legal counsel.
Pursuant to paragraph 6(h) of the Membership Transfer Agreement (Agreement) dated May 18,
2016 and executed by your client, Mr. Raam Abbou (Abbou), Jak Yosef (Yosef) and
Crossland, demand is hereby made that Mr. Abbou indemnify Crossland for Mr. Albazs claims
against Crossland.
I look forward to hearing from you within two (2) business days regarding this matter.
Sincerely,
Saif A. Siddiqui
Tab P
1080464
9/15/2017 2:29 PM
Harris County - County Civil Court at Law No. 2 Stan Stanart
County Clerk
Harris County
files this First Amended Petition against Defendants, Yakov Albaz (hereinafter sometimes referred
Prosperity or Defendant) in support thereof would respectfully show the Court as follows:
DISCOVERY-CONTROL PLAN
1) Plaintiff intends to conduct discovery under Level 2 of Texas Rule of Civil Procedure and
affirmatively pleads that this suit is not governed by the expedited-actions process in Texas Rule
of Civil Procedure 169 because of the complexity of the legal and factual issues, and the number
of parties and witnesses involved in the new factual allegations. Furthermore, based on what we
a) PARTIES
3) Plaintiff, Raam Abbou, is an individual, residing in Houston, Harris County, Texas at 5906
4) The last three digits of Plaintiff Raam Abbous drivers license number are 852.
5) The last four digits of Plaintiff Raam Abbous Social Security number are 3526.
6) Defendant, Yakov Albaz is an individual, residing in Houston, Harris County, Texas at 5929
Queensloch Dr., Apartment No. 131, Houston, Texas 77096. Defendant may be served with
7) Defendant, Prosperity Bancshares Inc., a Texas Corporation whose registered office is located in
Harris County at 4295 San Felipe Houston, Texas 77027, may be served with process by serving
its registered agent for service of process, Charlotte M Rasche, in Fort Bend County at 80 Sugar
8) Intervenor, AA Top Success, LLC d/b/a Crossland Van Lines & Storage is a limited liability
9) This Court has jurisdiction over the subject matter of this case because the amount in controversy
10) This Court has personal jurisdiction over the Defendants and Intervenor because they have
11) Venue is proper in Harris County, Texas pursuant to Tex. Civ. Prac. & Rem. Code 15.002 (a) (1)
Plaintiffs Fourth Amended Petition 2
in that all or a substantial part of the acts and omissions giving rise to the claims in this suit
a) FACTS
12) Plaintiff, Raam Abbou (Raam), is a seasoned commercial vehicle driver and mover with
substantial know-how in the field of local and long-distance transportation and storage. Plaintiff
is also the former managing member and owner of Intervenor, AA Top Success D/B/A Crossland
13) Defendant, Yakov Albaz (Yakov), is a successful business man investing and owning multiple
14) Defendant, Prosperity Bank (Prosperity) is a Houston, Texas based regional financial holding
company with an established relationship and extensive dealings with Yakov Albaz, where Yakov
holds accounts for his other businesses and is considered a prominent banking client.
15) On or about January 2015, Yakov and Raam discussed the possibility of being partners in a local
and long-distance transportation and storage business. In these discussions, Yakov informed Raam
that he owns a warehouse that their business could use free of charge. Furthermore, Yakov assured
Raam that Raam could move his personal storage unit containing Raams personal property
including but not limited fine jewelry, two Rolex watches, Mont Blanc pen set, art memorabilia,
an antique rug, washer and dryer, dining room set, patio furniture, and other personal items to
16) On or about March 2015, Yakov and Raam entered into a partnership and formed Crossland, to
provide storage as well as local and long-distance moving services. In addition to making a
contribution to fund the partnership, Yakov Albazs role in Crossland was to pay Raam Abbou a
fixed salary of $10,000 per month in exchange for Raam Abbou acting as manager in maintaining
17) The relationship between Yakov and Prosperity is notable. Yakovs existing relationship with
Prosperity include; Yakov owning multiple business banking accounts at Prosperity for various
businesses he owns in and around Houston, Texas; and the relationship Yakov formed with
Prosperity after years of gifting fine jewelry and watches to Prosperity employees for taking care
of his banking needs. For these reasons, Yakov insisted that Raam open Crosslands bank accounts
18) On or about March 2015, Raam Abbou, alone, opened the partnerships business accounts at the
Prosperity Bank location Yakov Albazs requested. Raam was the sole signatory for the accounts
at Prosperity.
19) While operating Crossland and as his managerial duty, Raam was often outside of Texas driving
commercial trucks around the clock for clients of the partnership. As a result, Raam had difficulty
monitoring the daily banking activities. Yakov insisted to Raam that certain individuals Yakov
trusted should be placed into managerial roles in order to help Raam with the daily operations. As
a business partner, Raam trusted Yakov and agreed to Yakovs course(s) of action.
20) On or about April 2015, without Raams knowledge, cash withdrawals of $18,000 were made
from the Crossland bank accounts with Prosperity Bank for unknown purposes.
21) On or about July 2015, Raam Abbou noticed unauthorized withdrawals of substantial sums from
the partnerships bank account in the form of cash, checks, and wire transfers on multiple
occasions. Upon learning of the unusual withdraws, Raam Abbou made inquiries to Albazs
1Raam Abbou sold his membership rights of Crossland on May 18, 2016. See Exhibit B.
Plaintiffs Fourth Amended Petition 4
Albazs employees repeatedly deflected and delayed the issue.
22) On or about July 2015, Yakovs employee notified Raam of a lease agreement between Yakovs
warehouse and Crossland, and that Raam had allegedly signed the lease. After learning about the
existence of the alleged lease, Raam dug further into the issue and discovered bank statements
23) Raam, to the best of his knowledge, never signed a warehouse lease agreement and only knew
what Yakov represented in January 2015; that Yakov is the warehouse owner, Yakov and Raams
company could use Yakovs warehouse for business purposes free of charge, and Raam could use
24) On or about August 2015, Raam brought his concerns regarding the unauthorized withdrawals
directly to Yakov. Yakov explained to Raam that he jointly purchased the warehouse building
where Crosslands warehouse was located. It is further alleged that Yakov told Raam that the
withdrawals were for warehouse rent and that the warehouse was no longer free of charge. Further,
Yakov explained that he needed to show the joint owner that the warehouse was profitable, but
the amount of the withdrawals would be returned immediately. On or about September 2015, a
25) After Yakovs employee brought the lease and Yakovs withdrawals to Raams attention, Raam
became worried and felt uneasy of the explanations Yakov provided. On or about January 2016,
Raam attempted to gain an understanding of the issues regarding the unauthorized withdrawals
with a Prosperity Bank branch manager. The manager acknowledged that the withdrawals from
Crosslands account was in fact completed without authorization and then the manager provided
26) The manager at Prosperity assured Raam that the bank could temporarily reimburse Crossland by
making a deposit of an amount equal to the unauthorized withdrawals back into Crosslands
27) On or about February 2016, a withdrawal of approximately $100,000 from Crosslands bank
28) On or about May 2016, Raam grew frustrated with his business partner and unsatisfied with
Yakovs explanations regarding the lease and unauthorized withdrawals, Raam decided to shut
down Crossland.
29) On or about May 16, 2016, Yakov persuaded Raam to sell Raams interest in Crossland to Jak
30) On or about May 16, 2016, Yakov assured Raam that Raams personal storage unit held at Yakovs
warehouse would be returned to Raam, and that Yakov would transport it to Raams residence
free of charge.
31) On May 18, 2016, Raam Abbou, seller, sold and transferred his ownership interest in Crossland
32) On May 18, 2016, Yakov Albaz, for valuable consideration, executed and delivered to Raam
Abbou a promissory note promising to pay Raam the sum of $22,500.00 on or before July 5,
20163.
33) On or about May 2017, Raam contacted Yakovs employee for the return of Raams storage unit.
The employee told Raam that Yakov would not allow the return of his storage unit unless Raam
paid $2,000. As of the filing of this petition, Raam does not have possession of items he stored in
Yakovs warehouse, in addition, Raam does not know the location of his storage unit, or whether
it still exists.
2See Exhibit B
3See Exhibit A
Plaintiffs Fourth Amended Petition 6
CAUSES OF ACTION
34) Defendant has defaulted in his payment on the promissory note by failing to make payment on or
before July 5, 2016. He thereby caused damage to Plaintiff in the amount of the balance due on
the principal amount of the promissory note, which is the sum of $22,500.00, together with
attorneys fees to the date of judgment, all of which is provided for in the promissory note.
35) Raam Abbou incorporates by reference the factual allegations contained in the preceding
an unlawful purpose or a lawful purpose by unlawful means. Firestone Steel Prods. Co. v. Barajas,
36) The elements of civil conspiracy are (1) two or more persons; (2) an object to be accomplished;
(3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and
(5) damages as the proximate result. Chon Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005); Boales
v. Brighton Builders, Inc., 29 S.W.3d 159, 164 (Tex. App.Houston [14th Dist.] 2000, pet.
denied); Henkel v. Emjo Invs., 480 S.W.3d 1, 7 (Tex. App.Houston [1st Dist.] 2015 no pet.).
37) As set forth above, Raam discovered bank statements showing unauthorized withdraws of $14,000
in May and July of 2015. Yakovs employee then notified Raam of a lease agreement between
Yakovs warehouse and Crossland, and that Raams signature was on the lease. Raam, to the best
of his knowledge, never signed a warehouse lease agreement. After learning about the existence
of the alleged lease, Raam confronted Yakov for an explanation. Yakov told Raam that the
withdrawals were for warehouse rent and that the warehouse was no longer free of charge. Further,
profitable, but the amount of the withdrawals would be returned immediately. On or about
September 2015, a final withdrawal of $14,000 was made, to Raams knowledge. The identity of
the employees and potential liable parties are still under investigation.
38) The conspiracy on the lease caused injury to Raam and Crossland which resulted in damages of
approximately $42,000.
39) Plaintiff seeks damages within the jurisdictional limits of this Court.
40) Raam Abbou incorporates by reference the factual allegations contained in the preceding
paragraphs.
41) A civil conspiracy consists of a combination by two or more persons to accomplish an unlawful
purpose or a lawful purpose by unlawful means. Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d
42) The elements of civil conspiracy are (1) two or more persons; (2) an object to be accomplished;
(3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and
(5) damages as the proximate result. Chon Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005); Boales
v. Brighton Builders, Inc., 29 S.W.3d 159, 164 (Tex. App.Houston [14th Dist.] 2000, pet.
denied); Henkel v. Emjo Invs., 480 S.W.3d 1, 7 (Tex. App.Houston [1st Dist.] 2015 no pet.).
43) As set forth above, Prosperity honored the unauthorized withdrawals of checks, cash, and wire
transfers between April 2015 and February 2016. Prosperity Bank branch manager acknowledged
that the withdrawals from Crosslands account was in fact completed without authorization. Raam
was the sole signatory on the Crossland account. Raam waived the investigation after the
managers firm persistence to purposefully dissuade Raam from seeking an investigation. The
44) The unauthorized withdrawals of funds caused Raam and Crossland injury. The amount of
damages caused to Raam and Crossland is at least $118,000 but the exact amount is still under
investigation.
45) Plaintiff seeks damages within the jurisdictional limits of this Court.
46) Raam Abbou incorporates by reference the factual allegations contained in the preceding
paragraphs.
47) Plaintiff brings an action under the Texas Theft Liability Act (TLA) for an unlawful appropriation
48) The elements of a cause of action for theft of property under the TLA are (1) plaintiff had a
possessory right to the property; (2) the defendant unlawfully appropriated the property by taking
it without the plaintiffs effective consent; (3) the defendant appropriated the property with the
intent to deprive the plaintiff of the property; and (4) the plaintiff sustained damages as a result of
the theft. Tex. Civ. Prac. & Rem. Code 134.003(a); Tex. Pen. Code 31.03(a), (b); Statewide
Hydraulics, Inc. v. EZ Mgmt. GP, LLC, No. 14-13-01049-CV (Tex. App.Houston [14th Dist.]
49) As set forth above, Yakov brought about the transfer of Raams storage unit to be held at his
warehouse in their discussions on or about January 2015. On or about May 2016, Yakov reassured
Raam he would deliver his storage unit to Raams residence free of charge. When Raam asked for
his storage unit returned on May 2017, Yakovs employee told Plaintiff that Yakov would not
50) Yakovs wrongful conduct caused injury to plaintiff, which resulted in the following damages; all
personal belongings of Raam in the storage container including but not limited to fine jewelry,
51) Plaintiff seeks damages within the jurisdictional limits of this Court.
52) Raam Abbou incorporates by reference the factual allegations contained in the preceding
paragraphs.
54) The elements of a cause of action for common-law fraud are (1) the defendant made a
representation to the plaintiff; (2) the representation was material; (3) the representation was false;
(4) when the defendant made the representation, the defendant knew the representation was false,
or made the representation recklessly, as a positive assertion, and without knowledge of tis truth;
(5) the defendant made the representation with the intent that the plaintiff act on it; (6) the plaintiff
relied on the representation; and (7) the representation caused the plaintiff injury. Zorrilla v. Aypco
Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015); Exxon Corp. v. Emerald Oil & Gas Co., 348
S.W.3d 194, 217 (Tex. 2011); Italian Cowboy Partners v. Prudential Ins., 341 S.W.3d 323, 337
(Tex. 2011).
55) Yakov represented to Raam that he owned a warehouse that Crossland could use for operations
free of charge.
56) Yakovs representation to plaintiff was material because there was in fact a lease agreement for
the warehouse being used for Crossland, and Raams alleged signature was on the lease
agreement. To the best of his knowledge, Raam never signed a warehouse lease agreement. The
cost of renting a storage warehouse was material in the operation of a moving and storage
company. Furthermore, the representation by Yakov was important to Raam in his decision to
57) Yakovs representation to Raam was a false statement of fact. On or about August 2015, Raam
Defendant explained that the withdrawals were for the cost of rent of the warehouse. This
contradicts Yakovs initial representation that the use of the warehouse would be free. More
alarming is the fact that Raams alleged signature was found on the warehouse lease agreement
58) Defendant made the false representation knowing it was false. On or about August 2015, Raam
brought his concerns of a series of unauthorized withdrawals from Crossland bank accounts to
Yakov. Yakov explained to Raam that he jointly purchased the warehouse building where
Crosslands warehouse was located. Further, Yakov explained that he needed to show the joint
owner that the warehouse was profitable, but the amount of the withdrawals would be returned
immediately.
59) Yakov had reason to expect Raam would act in reliance on the false representation. The cost for
a storage warehouse was imperative in Raams decision to enter into a business operation of a
moving and storage company. Furthermore, the representation by Yakov was important to Raam
60) Raam justifiably relied on Yakovs false representation when Raam entered into business with
61) Yakovs false representation directly and proximately caused injury to Raam, which resulted in
three separate withdrawals from Crossland bank accounts of approximately $14,000 on or about
May 2015, July 2015, and September 2015 totaling approximately $42,000 in damages.
62) Plaintiff seeks damages within the jurisdictional limits of this Court.
63) Raam Abbou incorporates by reference the factual allegations contained in the preceding
paragraphs.
65) The elements of a cause of action for breach of fiduciary duty are (1) the plaintiff and defendant
had a fiduciary relationship; (2) the defendant breached its fiduciary duty to the plaintiff; (3) the
defendants breach resulted in injury to the plaintiff, or benefit to the defendant. Burrow v. Arce,
997 S.W.2d 229, 237 (Tex. 1999); Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509,
513-14 (Tex. 1942); Heritage Gulf Coast Props. Ltd. V. Sandalwood Apts. Inc., 416 S.W.3d 642,
66) Plaintiff had a fiduciary relationship with defendant. Raam Abbou and Yakov Albaz were partners
67) As set forth above, Yakov did not disclose to Raam pertinent information regarding the existence
of a warehouse lease that Raams signature was somehow affixed to. More importantly, to the best
of his knowledge, Raam never signed the warehouse lease and never knew about the lease until
Raam made further inquiries into unauthorized withdrawals from Crossland bank accounts.
68) Yakovs breach of fiduciary duty injured Raam by causing damages in Crossland arising from
approximately $42,000 for warehouse lease payments that Yakov did not disclose to Raam.
69) Plaintiff seeks damages within the jurisdictional limits of this Court.
Count 7- Conversion
70) Raam Abbou incorporates by reference the factual allegations contained in the preceding
paragraphs.
right to immediate possession of property; (2) the property was personal property; (3) the
defendant wrongfully exercised dominion or control over the property; and (4) the plaintiff
suffered injury. Green Intl v. Solis, 951 S.W.2d 384, 391 (Tex. 1997); United Mobile Networks,
L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex. 1997); Burns v. Rochon, 190 S.W.3d 263, 267-68 (Tex.
73) Raam owned the storage unit containing his belongings including fine jewelry, two Rolex time
pieces, Mont Blanc pen set, art memorabilia, an antique rug, washer and dryer, dining room set,
74) As set forth above, Yakov refused to return the property on Raams demand. Yakov brought about
the transfer of Raams storage unit to be held at his warehouse on or about January 2015. On or
about May 2016, Yakov reassured Raam he would deliver his storage unit to Raams residence
free of charge. On or about May 2017, Raam asked Yakovs employee to retrieve his storage unit.
Yakovs employee told Raam that Yakov would not allow it returned unless Raam Abbou paid
$2,000.
75) Yakovs wrongful conduct caused injury to Raam, which resulted in the following damages; all
personal belongings of Raam in the storage container including but not limited to fine jewelry,
two Rolex time pieces, Mont Blanc pen set, art memorabilia, an antique rug, washer and dryer,
76) Plaintiff seeks damages within the jurisdictional limits of this Court.
77) Raam Abbou incorporates by reference the factual allegations contained in the preceding
paragraphs.
79) The elements of an action for promissory estoppel are (1) the defendant made a promise to the
plaintiff; (2) the plaintiff reasonably and substantially relied on the promise to its detriment; (3)
the plaintiffs reliance was foreseeable by the defendant; (4) injustice can be avoided only by
enforcing the defendants promise. Collins v. Walker, 341 S.W.3d 570, 573-74 (Tex. App.
80) Yakov, promised Raam that Raam could store his storage unit at Yakovs warehouse and would
allow Raam to retrieve his storage unit stored on Yakovs warehouse on two occasions. First, on
81) Raam relied on Yakovs promise by storing his storage unit at the warehouse. Because the nature
of the promise, plaintiffs reliance was both reasonable and substantial. Raam relied on Yakovs
promise in January 2015 as a factor for consideration for entering into a partnership with Yakov,
and again in May 2016 as a factor for consideration for selling his membership interest in
82) Yakov knew, or reasonably should have known, that Raam would rely on Yakovs promise
because Raams actions were directly affected by his promise to allow Raam to store his storage
84) Plaintiff seeks damages within the jurisdictional limits of this Court.
JURY DEMAND
85) Plaintiff demands a jury trial and tenders the appropriate fee with this petition.
days of the service of this request, the information or material described in Rule 194.2
EQUITABLE RELIEF
87) Plaintiff seeks to be reimbursed for money that was wrongfully and frequently taken from the
i. PRAYER
88) For these reasons, Plaintiff requests that Defendant be cited to appear and answer herein, and that
$1,000 from defendant under Texas Civil Practice & Remedies Code section 134.005(b)
Action Towing, Inc. v. Mint Leasing, Inc. 451 S.W.3d 525, 531 (Tex. App.Houston [1st
ii) Exemplary damages. Plaintiffs injury resulted from defendants malice, gross
negligence, or actual fraud, which entitles plaintiff to exemplary damages under Texas
Civil Practice & Remedies Code section 41.003(a) and 41.008(c)(8); McCullough v.
Scarbrough, Medlin & Assocs., 435 S.W.3d 871, 913 (Tex. App.Dallas 2014, pet.
denied);
Respectfully submitted,
The undersigned hereby certifies that this Document has been served to all parties
shown below on September 15, 2017 in accordance with Rule 21 and 21a of the Texas Rules of
Civil Procedure.
Houston, TX 77027
/s/ Eric S. Yu
RAAM ABBOU,
Plaintiff
vs.
IN THE COUNTY CIVIL COURT
YAKOV ALBAZ,
Defendant
AT LAW NO. 2
AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES & STORAGE
Intervenor HARRIS COUNTY, TEXAS
vs.
RAAM ABBOU,
Defendant in Intervention
COMES NOW, AA Top Success, LLC D/B/A Crossland Van Lines & Storage
(Crossland), asking the Court to reconsider its August 8, 2017 order denying Defendant and
Intervenors Motion to Compel Arbitration & Stay Proceedings, and enter a new order compelling
the parties to arbitration, and in support thereof would respectfully show the Court the following:
I.
BACKGROUND
1. Plaintiff Raam Abbou (Abbou) sued Defendant Yakov Albaz (Albaz) on a promissory
note1. This promissory note was partial consideration for Abbous sale of his membership interest
1
See Plaintiffs Original Petition filed July 21, 2016.
in Crossland. The sale was pursuant to a Membership Transfer Agreement dated May 18, 2016
2. Crossland intervened, asserting claims against Abbou for breach of fiduciary duty and
3. On July 27,2017, Crossland and Albaz filed Defendant Yakov Albazs and Intervenor AA
4. On August 8, 2017, the Court entered an order denying the Motion to Compel Arbitration.
5. In the meantime, all the parties in this case have amended their pleadings to assert claims
that are all related, directly or indirectly, to the Agreement, and which would subject them to the
6. Crossland hereby moves the Court to vacate its order, and instead enter an order compelling
II.
ARGUMENTS AND AUTHORITIES
7. At the hearing on the Motion to Compel Arbitration, counsel for Abbou cited G.T. Leach
Builders, LLC v. Sapphire V.P., L.P., incorrectly arguing that it held that nonparties to an
8. This is not the case. In fact, G.T Leach Builders only stands for the proposition that non
parties to the arbitration agreement could not compel or be compelled to arbitration if the language
of the arbitration agreement provides only that those claims may be arbitrated.4
2
See AA Top Success, LLC d/b/a Crossland Van Lines Plea in Intervention and Requests for Disclosure filed
November 18, 2016.
3
See G.T. Leach Builders, LLC v. Sapphire V.P., L.P., 458 S.W.3d 502 (Tex. 2015)
4
Id. at 525-26.
Page 2 of 6
9. The holding is inapplicable in this case as the arbitration clause contained in the Agreement
specifically uses the mandatory term shall, and not the permissive term may5:
B. The parties have asserted related claims against each other, all of which are directly
or indirectly related to the Agreement and subject to its arbitration clause
10. All the claims against Albaz pertaining to the sale of Crossland, as described in Abbous
live petition, are, by definition, directly or indirectly related to the Agreement and are therefore
subject to its arbitration clause, a fact Abbou himself admitted during his deposition.6
11. Moreover, when Abbou agreed to sell his interest in Crossland to Jak Yosef (Yosef), the
right to pursue said claims on Crosslands behalf were also passed on and remained subject to the
arbitration clause.
12. Per the terms of the Agreement, Abbou agreed to indemnify Crossland for all claims arising
prior to May 18, 2016, the date he sold his interest to Yosef.
5
Paragraph 13 of Agreement, provides that any claim or controversy arising directly or indirectly out of this
agreement shall be submitted to binding arbitration ... in accordance with the commercial rules of the American
Arbitration Association
6
See Exhibit B, at 158:24-159:11Abbou states that the promissory note in question was part of the transaction that
was included in the [Agreement].
Page 3 of 6
13. Beginning in March 2015, Albaz loaned Crossland a total of $540,836.76 to cover startup
costs and general business expenses. Albaz was repaid $80,000, leaving $ 460,836.76 outstanding.
14. Crossland has demanded that Abbou indemnify it against Albazs claims as provide for in
15. Consequently, Crossland has amended its Plea in Intervention to assert a claim against
16. Crosslands other claims for fraud, breach of fiduciary duty, conversion, and money had
and received, are all related to wrongful acts by Abbou that occurred prior to May 18, 2016, while
he was the manager of Crossland and before he sold his membership interest Yosef, and are
therefore subject to the terms of the Agreement, including the arbitration clause.
17. For the same reasons, Albazs crossclaim is also related to the Agreement and subject to
III.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Crossland prays that the Court vacate its August
8, 2017 order, grant this Motion, and enter a new order compelling the parties to arbitrate their
disputes. Further, Crossland asks to Court to abate this case pending the outcome of the arbitration,
and for all other relief to which they may be justly entitled.
Respectfully submitted,
7
See Defendant Yakov Albazs First Original CrossClaim.
8
See letter dated August 24, 2017, attached hereto as Exhibit C.
9
See AA Top Success, LLCs d/b/a Crossland Van Lines First Amended Plea in Intervention and Requests for
Disclosure, filed September 14, 2017.
Page 4 of 6
/s/ Saif A. Siddiqui
Saif A. Siddiqui
SIDDIQUI AYRES
State Bar No. 24052305
700 Louisiana Street, Suite 3950
Houston, Texas 77002
(832) 927-2775
(832) 787-1284 Facsimile
siddiqui@siddiquiayres.com
ATTORNEY FOR AA TOP SUCCESS, LLC
D/B/A CROSSLAND VAN LINES AND
STORAGE
Page 5 of 6
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Intervenor AA Top
Success, LLCs Motion to Reconsider Order Denying Motion to Compel Arbitration was sent via
electronic service and/or hand delivery and/or facsimile and/or certified mail, return receipt
requested, to all counsel of record on the 19th day of September 2017.
HsienTe J. Koong
Eric S. Yu
KOONG LAW GROUP, PLLC
3302 Canal Street, Suite 72
Houston, Texas 77003
(281) 895-1688
(281) 895-1356 Facsimile
john@koonglaw.com
eric.yu@koonglaw.com
ATTORNEY FOR RAAM ABBOU
Danny M. Sheena
THE SHEENA LAW FIRM
2500 West Loop South, Suite 518
Houston, Texas 77027-4508
(713) 224-6508 (voice)
(713) 225-1560 (facsimile)
service@sheenalawfirm.com
ATTORNEY FOR YAKOV ALBAZ
Page 6 of 6
1080464
Exhibit A
1080464
Exhibit B
Raam Abbou
1
CAUSE NO. 1080464
RAAM ABBOU : IN THE COUNTY CIVIL COURT
:
Plaintiff, :
:
VS. :
:
YAKOV ALBAZ :
:
Defendant, :
:
:
VS. :
:
AA TOP SUCCESS, LLC D/B/A :
CROSSLAND VAN LINES & :
STORAGE :
:
Intervenor. : HARRIS COUNTY, TEXAS
*************************************
ORAL DEPOSITION OF
RAAM ABBOU
JULY 19, 2017
VOLUME 2 OF 2
PAGES 1 THROUGH 188
*************************************
158
1 correct?
2 A. Yes.
3 (Exhibit 10 was marked.)
4 Q. (BY MR. SHEENA) Let me show you Exhibit No.
5 10.
6 There's a Promissory Note that was signed.
7 Is that correct?
8 A. Yes. As far as I remember, yes.
9 Q. And the Promissory Note amount is 22,500. You
10 see that?
11 A. Where do you see that?
12 Q. Right there (indicating).
13 A. See, I'm not sure what these words say.
14 Q. 22,500. It says, Principal amount.
15 A. Principal. Okay.
16 Q. Okay. And the payable on July 5, 2016, do you
17 see that right there, right there (indicating)?
18 A. (No verbal response.)
19 Q. See that?
20 A. Yeah.
21 Q. If you look at Exhibit No. 6, Section 4, see
22 where it says 22,500, payable on July 5, 2016?
23 A. Okay. 22,500 to be paid by July. Yeah.
24 Q. Okay. So this Promissory Note relates to the
25 Membership Transfer Agreement of Exhibit No. 6. Is that
159
1 correct?
2 A. If I understand you correctly, that's saying
3 that he promised to pay the remaining 22,500 by July 15,
4 2016.
5 Q. And that's part of the Membership Transfer
6 Agreement, Exhibit No. 6. Is that correct?
7 A. Yes.
8 Q. Okay. So the Promissory Note was part of the
9 transaction that was included in the Membership Transfer
10 Agreement, Exhibit No. 6; right?
11 A. Yes.
12 Q. Okay. Remember a customer named Ahren Lehnert?
13 Does that ring a bell to you?
14 A. A customer?
15 Q. Yes.
16 A. No.
17 (Exhibit 11 was marked.)
18 Q. (BY MR. SHEENA) Show you Exhibit No. 11. Ever
19 seen a document like this?
20 A. If I see one like that?
21 Q. Yes.
22 A. I guess so, but not this one.
23 Q. Is this a job that you did?
24 A. How can I know?
25 Q. Well, it originated in Houston, Texas and was
Re: Abbou v. Albaz, Cause No. 1080464 in the Civil Court at Law No. 2 of Harris County,
Texas demand for indemnification
Mr. Koong:
I represent AA TOP SUCCESS, LLC d/b/a CROSSLAND VAN LINES & STORAGE
(Crossland) in this matter. As you may be aware, a motion to substitute counsel has been filed
by Crossland and set for submission with the Court.
Yakov Albaz (Albaz) has asserted a claim against Crossland in the amount of $353,086.76 as of
May 18, 2016. It is anticipated that Mr. Albaz will plead crossclaims against Crossland in the
abovereferenced lawsuit. Thus, it has been necessary for Crossland to retain new legal counsel.
Pursuant to paragraph 6(h) of the Membership Transfer Agreement (Agreement) dated May 18,
2016 and executed by your client, Mr. Raam Abbou (Abbou), Jak Yosef (Yosef) and
Crossland, demand is hereby made that Mr. Abbou indemnify Crossland for Mr. Albazs claims
against Crossland.
I look forward to hearing from you within two (2) business days regarding this matter.
Sincerely,
Saif A. Siddiqui
Tab R
1080464
9/22/2017 8:45 PM
Harris County - County Civil Court at Law No. 2 Stan Stanart
County Clerk
Harris County
RAAM ABBOU,
Plaintiff
vs.
IN THE COUNTY CIVIL COURT
YAKOV ALBAZ,
Defendant
AT LAW NO. 2
AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES & STORAGE
Intervenor HARRIS COUNTY, TEXAS
vs.
RAAM ABBOU,
Defendant in Intervention
through his undersigned counsel, and files this Defendant Yakov Albazs Response Supporting
Motion to Reconsider Order Denying Motion to Compel Arbitration (Response), and in support
1. Albaz hereby files this response in support of, and adopts in whole, the Intervenor AA Top
Success, LLCs Motion to Reconsider Order Denying Motion to Compel Arbitration filed by
Intervenor AA TOP SUCCESS, LLC D/B/A CROSSLAND VAN LINES & STORAGE
(Crossland).
2. [S]ometimes a person who is not a party to the agreement can compel arbitration with
one who is, and vice versa. Meyer v. WMCO-GP, LLC, 211 S.W.3d 302, 305 (Tex. 2006). There
are several circumstances in which signatories may compel nonsignatories to arbitrate claims
covered by an arbitration agreement and vice versa: Several rules of law and equity may bind
nonsignatories to a contract. For example, we have held that the principles of equitable estoppel
and agency may bind nonsignatories to an arbitration agreement. In re Labatt Food Serv., L.P.,
279 S.W.3d 640, 644 (Tex. 2009) (orig. proceeding); see also id. at 644-47 (derivative nature of
wrongful death beneficiaries claims generally binds their claims to be arbitrated where decedent
entered into contractual agreement to arbitrate); In re Kellogg Brown & Root, Inc., 166 S.W.3d
732, 739 (Tex. 2005) (orig. proceeding) (noting that nonsignatories may be bound to arbitration
3. As noted by Crossland, Abbou admitted in his deposition that the promissory note that he
sued Albaz to enforce was part of the transaction wherein he sold his interest in Crossland, and
4. His other claims against Albaz sounding in tort rest on the assumption that he was an agent
of Crossland, acting on behalf of Crossland, or the alter ego of crossland (for example, his breach
of a fiduciary owed to Abbou as a member of Crossland). The Texas Supreme Court has indicated
that agency and alterego can be a basis for a nonparty to enforce an arbitration agreement. See
5. His claims against Albaz are intertwined with the claims that are arbitrable: they all concern
the sale of Abbous interest in Crossland, and the rights of the various parties under the Agreement
of sale. Without the sale, there would have been no promissory note. The note and the Agreement
are clearly related. The Texas Supreme Court has held that when claims are intertwined, a non
parties to an arbitration agreement can compel arbitration (and vice versa). Meyer, 211 S.W.3d at
307.
compel arbitration could do so. In re Rubiola, 334 S.W3d 220 (Tex. 2011). The Fifth Circuit has
also held that nonsignatory defendants may compel a signatory plaintiff to arbitration. Grigson
v. Creative Artists Agency, L.L.C., 210 F.3d 524, 526 (5th Cir. 2000).
WHEREFORE, PREMISES CONSIDERED, Albaz prays that the Court (1) grant Crosslands
Motion, (3) vacate its August 8, 2017 Order, (3) enter an order compelling the parties to arbitrate
their dispute and to abate this case pending the outcome of the arbitration, and (4) for all other
Respectfully submitted,
I HEREBY CERTIFY that a true and correct copy of the foregoing Defendant Yakov
Albazs Response Supporting Motion to Reconsider Order Denying Motion to Compel Arbitration
was sent via electronic service and/or hand delivery and/or facsimile and/or certified mail, return
receipt requested, to all counsel of record on the 22nd day of September 2017.
HsienTe J. Koong
Eric S. Yu
KOONG LAW GROUP, PLLC
3302 Canal Street, Suite 72
Houston, Texas 77003
(281) 895-1688
(281) 895-1356 Facsimile
john@koonglaw.com
eric.yu@koonglaw.com
ATTORNEY FOR RAAM ABBOU
Saif A. Siddiqui
SIDDIQUI AYRES
State Bar No. 24052305
700 Louisiana Street, Suite 3950
Houston, Texas 77002
(832) 927-2775
(832) 787-1284 Facsimile
siddiqui@siddiquiayres.com
ATTORNEY FOR AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES AND STORAGE
RAAM ABBOU,
Plaintiff
vs.
IN THE COUNTY CIVIL COURT
YAKOV ALBAZ,
Defendant
AT LAW NO. 2
AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES & STORAGE
Intervenor HARRIS COUNTY, TEXAS
vs.
RAAM ABBOU,
Defendant in Intervention
through his undersigned counsel, and files this Defendant Yakov Albazs First Amended Answer
and Requests for Disclosure (Answer) subject to the Motion to Compel Arbitration, and in
I. General Denial
1. Defendant Albaz generally denies each and every allegation of the Plaintiffs Fourth
Amended Petition (Petition) filed by Plaintiff RAAM ABBOU (Abbou), and any later
amended petition, and demand strict proof thereof in accordance with the Texas Constitution and
2. Defendant Albaz asserts the affirmative defense that some or all of Plaintiff Abbous
3. Defendant Albaz asserts the affirmative defense that some or all of Plaintiff Abbous
claims are barred by misrepresentation and/or fraud on the part of Plaintiff Abbou.
4. Defendant Albaz asserts the affirmative defense that some or all of Plaintiff Abbous
5. Defendant Albaz asserts the affirmative defense that some or all of Plaintiff Abbous
claims are barred because Plaintiff Abbou failed to mitigate damages allegedly sustained, and
6. Defendant Albaz asserts the affirmative defense that some or all of Plaintiff Abbous
7. Defendant Albaz asserts the affirmative defense that some or all of Plaintiff Abbous
claims are barred because he breached his agreement with Defendant Albaz or another party.
8. Defendant Albaz asserts the affirmative defense that some or all of Plaintiff Abbous
claims are barred because of conversion of the property of another by Plaintiff Abbou.
9. Defendant Albaz asserts the affirmative defense that some or all of Plaintiff Abbous
10. Defendant Albaz asserts the affirmative defense that some or all of Plaintiff Abbous
11. Defendant Albaz asserts the affirmative defense that some or all of Plaintiff Abbous
12. Defendant Albaz asserts the affirmative defense that some or all of Plaintiff Abbous
claims are barred because Plainitff Abbou lacks standing to assert those claims.
claims are barred because they failed to state a claim upon which relief can be granted.
14. Defendant Albaz asserts the affirmative defense that some or all of Plaintiff Abbous
claims are barred because the injuries they alleged in his Petition, if any, were caused by a new
and independent cause, or by the acts of a thirdparty or Plaintiff Abbous own acts, which
15. Defendant Albaz asserts the affirmative defense of comparative and/or contributory fault
in that, in the unlikely event Plaintiff Abbous arguments are accepted by any trier of fact or law
in this matter, Plaintiff Abbou or a thirdparty were responsible, in whole or in part, for any
16. Defendant Albaz asserts the affirmative defense that some or all of Plaintiff Abbous
17. Defendant Albaz asserts the affirmative defense that some or all of Plaintiff Abbous
claims are barred because Defendant Albazs actions were legally justified, privileged, and/or
excused.
18. Defendant Albaz asserts that Plaintiffs claims to punitive damages, if any, should be
19. Defendant Albaz further reserves the right to assert additional affirmative defenses that
20. Defendant Albaz requests that Plaintiff Abbou disclose, within the time allowed, the
dismiss this suit against him or render judgment that Plaintiff Abbou take nothing by his claims
against Albaz, for costs and attorneys fees, and for all other relief to which he is entitled.
Respectfully submitted,
I HEREBY CERTIFY that a true and correct copy of the foregoing Defendant Yakov
Albazs First Amended Answer and Requests for Disclosure was sent via electronic service
and/or hand delivery and/or facsimile and/or certified mail, return receipt requested, to all
counsel of record on the 5th day of October 2017.
HsienTe J. Koong
Eric S. Yu
KOONG LAW GROUP, PLLC
3302 Canal Street, Suite 72
Houston, Texas 77003
(281) 895-1688
(281) 895-1356 Facsimile
john@koonglaw.com
eric.yu@koonglaw.com
ATTORNEY FOR RAAM ABBOU
Saif A. Siddiqui
SIDDIQUI AYRES
State Bar No. 24052305
700 Louisiana Street, Suite 3950
Houston, Texas 77002
(832) 927-2775
(832) 787-1284 Facsimile
siddiqui@siddiquiayres.com
ATTORNEY FOR AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES AND STORAGE
1 REPORTER'S RECORD
2 (VOLUME 1 OF 2)
FILED IN
1st COURT OF APPEALS
3 TRIAL COURT CAUSE NO. 1080464
HOUSTON, TEXAS
10/24/2017 1:36:55 PM
4 FIRST COURT OF APPEALS
CHRISTOPHER A. PRINE
Clerk
5 APPELLATE CAUSE NO. 01-17-00804-CV
7
RAAM ABBOU, ) THE COUNTY CIVIL COURT
8 Plaintiff )
)
9 VS. )
)
10 YAKOV ALBAZ, ) AT LAW NUMBER TWO (2)
Defendant )
11 )
VS. )
12 )
AA TOP SUCCESS, LLC D/B/A )
13 CROSSLAND VAN LINES & )
STORAGE, )
14 Intervenor ) HARRIS COUNTY, TEXAS
15
16 ---------------------------------------------------
17 HEARING MOTION
OCTOBER 10, 2017
18
---------------------------------------------------
19
24
25
1 A P P E A R A N C E S
2 FOR PLAINTIFF:
9 FOR DEFENDANT:
15 FOR INTERVENOR:
21
22
23
24
25
1 INDEX
Hearing Motion
2
OCTOBER 10, 2017 PAGE VOL.
3
Appearances............................... 2 1
4 Proceedings............................... 4 1
Reporter's Certificate....................34 1
5
6
EXHIBITS
7 PLAINTIFF'S EXHIBITS
9 1 Promissory note 6 6 1
11
DEFENDANT'S EXHIBITS
12 NO. DESCRIPTION OFFERED ADMITTED VOL
14 2 Promissory Note 10 10 1
16
17
18
19
20
21
22
23
24
25
1 PROCEEDINGS
2 (Open Court)
7 the record.
11 Yakov Albaz.
13 Raam Abbou.
19 behalf of Intervenor.
23 in the file.
22 Transfer Agreement --
24 Intervenor.
6 Crossland?
9 All right.
12 you --
14 just saying --
19 to this case.
13 one page.
23 to --
8 Exhibit No. 1.
13 Any objection?
14 on May 18, 2016, same day. And if you look at the date
1 Answer: Yes.
10 Plaintiff.
18 was actually --
2 hearing.
9 third party that has not been paid in full before the
16 for summary judgment and they say, Mr. Albaz, what did
21 Zero, okay.
3 Mr. Abbou, where did that money go. Well, I paid bills.
12 closing.
14 Crossland?
1 money before the closing and you owe me the money. The
8 company that --
11 transaction?
17 not --
21 a loan or anything.
3 Crossland, okay?
16 Crossland?
18 Honor.
20 May 18th --
9 names?
12 d/b/a Crossland?
22 the owner?
25 owner?
2 company.
4 was just --
8 your claim?
11 okay?
17 to the company.
10 just a second.
18 to --
1 your claim.
3 closing.
17 dollars.
3 no --
8 May 18?
21 Judge?
11 sorry.
18 the --
20 Crossland?
14 claims should be --
12 interest, right --
12 Agreement.
13 is much cheaper.
21 says.
14 look?
17 record.
25 assigned.
23 worked --
2 it.
6 with it?
9 here today.
13 you?
21 you file it, just send a copy to Mr. Sheena and a copy
7 the order?
11 about it now.
16 Transfer Agreement --
18 said.
25 all the claims that you have against any party in this
8 Mr. Abbou and Mr. Yakov Albaz were doing business but
10 interest.
13 your discovery?
22 note?
25 scope.
4 mediation?
10 come back, you can argue fully about whether or not the
19 transfer.
24 have changed.
10
11 (HEARING CONCLUDED)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1 REPORTER'S CERTIFICATE
20 October, 2017.
/s/Kevin J. Bruzewski
21 Kevin J. Bruzewski, CSR
Texas CSR 3727
22 Expiration: 12/31/2017
Official Court Reporter
23 County Civil Court-at-Law No. 2
Harris County, Texas
24 201 Caroline, 5th Floor
Houston, Texas 77002
25 713.368.6642
RAAM ABBOU,
Plaintiff
vs.
IN THE COUNTY CIVIL COURT
YAKOV ALBAZ,
Defendant
AT LAW NO. 2
AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES & STORAGE.
Intervenor HARRIS COUNTY, TEXAS
vs.
RAAM ABBOU,
Defendant in Intervention
1. Defendant YAKOV ALBAZ (Albaz) and Intervenor AA TOP SUCCESS, LLC D/B/A
specified in that certain Membership Transfer Agreement dated May 18, 2016 (Agreement),
2. Despite numerous requests, counsel for Abbou has refused to do so at this time. See email
Respectfully submitted,
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Notice of Refusal to
Mediate was sent via electronic service and/or hand delivery and/or facsimile and/or certified
mail, return receipt requested, to all counsel of record on the 18th day of October 2017.
HsienTe J. Koong
KOONG LAW GROUP, PLLC
405 Main Street, Suite 801
Houston, Texas 77002
(346) 808-0529
(713) 491-2874 Facsimile
john@koonglaw.com
ATTORNEY FOR RAAM ABBOU
Saif A. Siddiqui
SIDDIQUI AYRES
700 Louisiana Street, Suite 3950
Houston, Texas 77002
(832) 927-2775
(832) 787-1284 Facsimile
siddiqui@siddiquiayres.com
ss@siddiquilaw.com
ATTORNEY FOR AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES AND STORAGE
Exhibit 1
1080464
Exhibit 2
The Sheena Law Firm Mail - Re: Mediation - Raam Abbou v. Yakov AlbazSuccess - Cause No. 1080464; In the County Civil Court at Law No. 2 10/18/17, 09)08
Re: Mediation - Raam Abbou v. Yakov Albaz v. AA Top Success - Cause No.
1080464; In the County Civil Court at Law No. 2
1 message
I am sorry to hear that. Although Judge Chang ordered Mediation, that does not abate the lawsuit or put discovery on
hold. I'm not sure if you remember, but your motion to compel arbitration was denied. Yet for reasons unbeknownst to
me and my colleagues, you keep mentioning the AAA and arbitration.
While you believe that Judge Chang wrongfully denied your motion, as you stated in your email to Judge Coselli, the
lawsuit must continue. Either file your motion to quash so you can take your issues to Judge Chang or fulfill your
ethical duty and produce your client for deposition.
If you can definitively confirm that your client is unwilling to appear for a deposition prior to mediation, then I will be
forced to file a motion to compel.
P.S. This is the second time you are requesting confirmation regarding mediation even though I already confirmed in
my last email and stated on the record in open court during our last hearing very clearly that we agree to mediation.
Perhaps you should order a transcript of the hearing (just a suggestion).
All these matters can be addressed with AAA, including mediation and deposition schedules.
Please confirm that you do not intend to mediate this case before Mr. Albaz deposition.
Thanks.
Danny M. Sheena
https://mail.google.com/mail/u/1/?ui=2&ik=5cc144cffb&jsver=g8gQ0Bu&qs=true&search=query&th=15f1386eac5026f1&siml=15f1386eac5026f1 Page 1 of 4
The Sheena Law Firm Mail - Re: Mediation - Raam Abbou v. Yakov AlbazSuccess - Cause No. 1080464; In the County Civil Court at Law No. 2 10/18/17, 09)08
NOTICE OF CONFIDENTIALITY
The information contained in this e-mail message and any attachments hereto is privileged and confidential, and is intended only for the use of the intended recipient and others who have been
specifically authorized to receive it. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, disclosure, use or copying of this communication, or the
making or retention of a copy of this communication, is strictly prohibited. If you have received this communication in error, please contact the sender by return e-mail and delete this message.
If this e-mail message has any filed attached to it, they should be virus-checked before they are opened. Thank you for your cooperation.
I am not sure what response you are looking for? We all stated on the record at the hearing yesterday in from of
Judge Chang that we were open to mediation. However, I am trying to take the deposition of your client, Yakov
Albaz prior to the mediation as we believe that it would be more beneficial to have at least the deposition taken
prior to the mediation. Is this going to be a problem? You have ignored repeated requests for dates when your
client will be available for deposition and I am starting to feel that you are trying to resist a deposition of your
client. If you do not provide availability dates of your client for deposition, I am going to notice the depo and let
you move to quash.
Best regards,
John Koong
Houston TX 77003
https://mail.google.com/mail/u/1/?ui=2&ik=5cc144cffb&jsver=g8gQ0Bu&qs=true&search=query&th=15f1386eac5026f1&siml=15f1386eac5026f1 Page 2 of 4
The Sheena Law Firm Mail - Re: Mediation - Raam Abbou v. Yakov AlbazSuccess - Cause No. 1080464; In the County Civil Court at Law No. 2 10/18/17, 09)08
Office : 281-895-1688
Fax : 281-895-1356
Email : john@koonglaw.com
Web : www.koonglaw.com
IMPORTANT/CONFIDENTIAL: This message from the Koong Law Group is intended only for the use of the addressees shown above. This message
contains information that may be privileged, confidential and/or exempt from disclosure under applicable State and/or Federal law. If you are not the
intended recipient of this message, then you are hereby notified that the copying, use, forwarding or other distribution of any information or
materials transmitted in or with, or as an attachment to, this message is strictly prohibited. If you received this message by mistake, please
immediately call us at 281-895-1688 and immediately destroy/delete this message. Thank you.
As you know, I previously informed you that my client is willing to go to mediation at any time so that there will
not be any issues with arbitration.
Please let me know if you agree to mediate the case at this time or if you are objecting to going to mediation at
this time.
Thanks.
Danny M. Sheena
The Sheena Law Firm
2500 West Loop South, Suite 518
Houston, Texas 77027
(713) 224-6508
(713) 225-1560 Facsimile
E-mail: Danny@Sheenalawfirm.com
Web: www.Sheenalawfirm.com
NOTICE OF CONFIDENTIALITY
The information contained in this e-mail message and any attachments hereto is privileged and confidential, and is intended only for the use of the intended recipient and others who have been
https://mail.google.com/mail/u/1/?ui=2&ik=5cc144cffb&jsver=g8gQ0Bu&qs=true&search=query&th=15f1386eac5026f1&siml=15f1386eac5026f1 Page 3 of 4
The Sheena Law Firm Mail - Re: Mediation - Raam Abbou v. Yakov AlbazSuccess - Cause No. 1080464; In the County Civil Court at Law No. 2 10/18/17, 09)08
specifically authorized to receive it. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, disclosure, use or copying of this communication, or the
making or retention of a copy of this communication, is strictly prohibited. If you have received this communication in error, please contact the sender by return e-mail and delete this message.
If this e-mail message has any filed attached to it, they should be virus-checked before they are opened. Thank you for your cooperation.
https://mail.google.com/mail/u/1/?ui=2&ik=5cc144cffb&jsver=g8gQ0Bu&qs=true&search=query&th=15f1386eac5026f1&siml=15f1386eac5026f1 Page 4 of 4
Tab V
1080464
10/18/2017 10:38 AM
Harris County - County Civil Court at Law No. 2 Stan Stanart
County Clerk
Harris County
RAAM ABBOU,
Plaintiff
vs.
IN THE COUNTY CIVIL COURT
YAKOV ALBAZ,
Defendant
AT LAW NO. 2
AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES & STORAGE.
Intervenor HARRIS COUNTY, TEXAS
vs.
RAAM ABBOU,
Defendant in Intervention
SUCCESS, LLC D/B/A CROSSLAND VAN LINES & STORAGE (Crossland), who this Notice
of Interlocutory Appeal (Notice) pursuant to Texas Rule of Appellate Procedure (Rule) 25.1,
and in support thereof would respectfully show the Court the following:
1. Albaz and Crossland desire to appeal from the Order on Defendant and Intervenors
Motion to Compel Arbitration & Stay Proceedings (Order) signed by the Court on August 8,
2017.
2. Albaz and Crossland appeal to either the First or Fourteenth Court of Appeals.
3. The appeal in this case is an interlocutory appeal of an order denying a motion to compel
arbitration and stay proceedings, as authorized by Texas Civil Practices and Remedies Code
(CPRC) 171.098(a)(1), to the extent the arbitration agreement in question is governed by the
Texas Arbitration Act (TAA), or 9 U.S.C. 16(a)(1), as incorporated by CPRC 51.016, to the
5. Pursuant to Local Rule 1.4(a) of both the First and Fourteenth Courts of Appeals, there is
Respectfully submitted,
SIDDIQUI AYRES
I HEREBY CERTIFY that a true and correct copy of the foregoing Notice of
Interlocutory Appeal was sent via electronic service and/or hand delivery and/or facsimile and/or
certified mail, return receipt requested, to all counsel of record on the 18th day of October 2017.
HsienTe J. Koong
KOONG LAW GROUP, PLLC
405 Main Street, Suite 801
Houston, Texas 77002
(346) 808-0529
(713) 491-2874 Facsimile
john@koonglaw.com
ATTORNEY FOR RAAM ABBOU
Saif A. Siddiqui
SIDDIQUI AYRES
700 Louisiana Street, Suite 3950
Houston, Texas 77002
(832) 927-2775
(832) 787-1284 Facsimile
siddiqui@siddiquiayres.com
ATTORNEY FOR AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES AND STORAGE
RAAM ABBOU,
Plaintiff
vs.
IN THE COUNTY CIVIL COURT
YAKOV ALBAZ,
Defendant
AT LAW NO. 2
AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES & STORAGE.
Intervenor HARRIS COUNTY, TEXAS
vs.
RAAM ABBOU,
Defendant in Intervention
SUCCESS, LLC D/B/A CROSSLAND VAN LINES & STORAGE (Crossland), who this
Amended Notice of Interlocutory Appeal (Notice) pursuant to Texas Rule of Appellate Procedure
(Rule) 25.1, and in support thereof would respectfully show the Court the following:
1. Albaz and Crossland desire to appeal from the Order (Order) signed by the Court on
2. Albaz and Crossland had previously appealed the Order on Defendant and Intervenors
Motion to Compel Arbitration & Stay Proceedings (Prior Order) signed by the Court on August
8, 2017, but that Prior Order had been set aside by the October 26, 2017 Order.
3. Albaz and Crossland appeal to the First Court of Appeals. This appeal has already been
arbitratable but denying a request to stay the proceedings, as authorized by Texas Civil Practices
and Remedies Code (CPRC) 171.098(a)(1), to the extent the arbitration agreement in question
CPRC 51.016, to the extent it is governed by the Federal Arbitration Act (FAA).
6. Pursuant to Local Rule 1.4(a) of the First Courts of Appeals, there is no related appeal or
original proceeding previously filed in either the First or Fourteenth Court of Appeals.
Respectfully submitted,
SIDDIQUI AYRES
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Amended Notice of
Interlocutory Appeal was sent via electronic service and/or hand delivery and/or facsimile and/or
certified mail, return receipt requested, to all counsel of record on the 27th day of October 2017.
HsienTe J. Koong
KOONG LAW GROUP, PLLC
405 Main Street, Suite 801
Houston, Texas 77002
(346) 808-0529
(713) 491-2874 Facsimile
john@koonglaw.com
ATTORNEY FOR RAAM ABBOU