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ACCEPTED
01-18-00394-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/17/2018 5:21 PM
CHRISTOPHER PRINE
CLERK

No. 01-18-00394-CV
_____________________________________________________________

IN THE FILED IN
1st COURT OF APPEALS
FIRST COURT OF APPEALS HOUSTON, TEXAS
8/17/2018 5:21:22 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
DORON ALMOG,
APPELLANT
VS.

GREENTREE APTS, LLC, PATTAYA, LLC, GLEN WILLOW, LLC, OFER
MIZRACHI, MIKE MIZRACHI, SHARON MIZRACHI, AND GARY MIZRACHI,
APPELLEES
_____________________________________________________________

On Appeal from the 215th Judicial District Court, Harris County, Texas
Cause No. 2015-41745
_____________________________________________________________

BRIEF OF APPELLANT DORON ALMOG

_____________________________________________________________

Andrew S. Golub F. Eric Fryar
DOW GOLUB REMELS & GILBREATH, PLLC THE FRYAR LAW FIRM
State Bar No. 08114950 State Bar No. 07495770
asgolub@dowgolub.com eric@fryarlawfirm.com
Moira Chapman Christina D. Richardson
State Bar No. 24092246 State Bar No. 24070495
mchapman@dowgolub.com crichardson@fryarlawfirm.com
2700 Post Oak Blvd., Suite 1750 912 Prairie Street, Suite 100
Houston, Texas 77056 Houston, Texas 77002-3194
Telephone: (713) 526-3700 Telephone: (281) 715-6396
Telecopier: (713) 526-3750 Telecopier: (281) 605-1888
ATTORNEYS FOR APPELLANT DORON ALMOG

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following are

parties and counsel in this appeal:
Counsel for Appellant Doron Almog
Andrew S. Golub F. Eric Fryar
DOW GOLUB REMELS & GILBREATH, PLLC THE FRYAR LAW FIRM
State Bar No. 08114950 State Bar No. 07495770
asgolub@dowgolub.com eric@fryarlawfirm.com
Moira Chapman Christina D. Richardson
State Bar No. 24092246 State Bar No. 24070495
mchapman@dowgolub.com crichardson@fryarlawfirm.com
2700 Post Oak Blvd., Suite 1750 912 Prairie Street, Suite 100
Houston, Texas 77056 Houston, Texas 77002-3194
Telephone: (713) 526-3700 Telephone: (281) 715-6396
Telecopier: (713) 526-3750 Telecopier: (281) 605-1888
Counsel for Appellees Mike Mizrachi and Ofer Mizrachi
Steven J. Knight Daniel W. Jackson
State Bar No. 24012975 State Bar No. 00796817
steven.knight@chamberlainlaw.com daniel@jacksonlaw-tx.com
R. Kyle Hawes 3900 Essex Lane, Suite 116
State Bar No. 00796725 Houston, Texas 77027
kyle.hawes@chamberlainlaw.com Telephone: (713) 522-4435
1200 Smith, Suite 1400 Telecopier: (713) 527-8850
Houston, Texas 77002
Telephone: (713) 654-9603
Telecopier: (713) 658-2553

TABLE OF CONTENTS

Identity of Parties and Counsel i

Table of Contents ii

Table of Authorities iv
Statement of the Case ix
Statement Regarding Oral Argument xi
Issues Presented xii
Statement of Facts 1
A. An Overview of The Dispute. 1

B. The Family Background and Business Relationships. 3
C. Business Disputes Between Doron and His Brothers Led to
Litigation and Settlement. …………………………………………………………… 4
1. The parties convened for depositions but settled instead. ………. 4
2. The parties crafted a Rule 11 agreement. …………………………….. 5
3. Mike injects a side issue about Simha’s property. …………………. 5
4. The parties reached agreement about Simha’s assets. ……………. 7
5. The parties included a backup plan. …………………………………….. 8
6. The remainder of the settlement provisions. …………………………. 8
D. Settlement Quickly Goes Off the Rails. ………………………………………. 10
E. The Trial Court Grants a Directed Verdict. …………………………………. 18
Summary of Argument ……………………………………………………………………………….. 20
Argument…………………………………………………………………………………………………… 22
A. The Trial Court Erroneously Granted a Directed Verdict on
Breach of the Settlement Agreement. 22
1. Doron tendered performance. 23
a. The legal framework. 24
b. More than a scintilla of evidence showed that
Doron performed or tendered performance. 27

i. Doron did everything required to transfer
Glen Willow-Palermo and Pattaya. 28
ii. Doron had no obligation to transfer his
interest in Aliana Cypress. 30
iii. Other than for Greentree, Doron had no obligation to execute documents disclaiming

his interest in various entities. 30

iv. Doron returned the shekels to Simha. 33
v. Only Appellees had tax withholding
obligations. 35

vi. Doron had no obligation to list or market the
properties. 36
vii. Doron’s pleading amendment in lieu of dismissal does not constitute a failure to

perform. 37
c. Appellees’ argument for claim forfeiture is really about failure of conditions precedent; however, none of their directed verdict grounds were ever

pleaded. 39
2. Doron produced more than a scintilla of evidence of

damages. 41
a. The Mizrachis’ refusal to take the LLC ownership
they purchased did not establish absence of
damage. 42
b. Doron had no obligation to prove damages net of
taxes. 45
3. Conclusion. 50

B. The Trial Court Erroneously Granted a Directed Verdict as to
Doron’s Plea for Specific Performance. 51
C. Judge Palmer Erroneously Denied A Trial Amendment. 56
Conclusion and Prayer 58
Certificate of Compliance with Volume Limitations 60
Certificate of Service 60

iii

TABLE OF AUTHORITIES

Cases

17090 Parkway, Ltd. v. McDavid,

80 S.W.3d 252 (Tex.App. – Dallas 2002, pet. denied) 24

Bay Rock Operating Co. v. St. Paul Surplus Lines Ins. Co.,

298 S.W.3d 216 (Tex.App. – San Antonio 2009, pet. denied) 45

Bendalin v. Delgado,

406 S.W.2d 897 (Tex. 1966) 57

Big Bird Tree Servs. v. Gallegos,

365 S.W.3d 173 (Tex.App. – Dallas 2012, pet. denied) 49

Board of Regents of University of Texas v. S & G Construction Co.,

529 S.W.2d 90 (Tex.Civ.App. – Austin 1975, writ ref’d n.r.e.) 26

Burtch v. Burtch,

972 S.W.2d 882 (Tex.App. – Austin 1998, no pet.) 34, 39

CDB Software, Inc. v. Kroll,

992 S.W.2d 31 (Tex.App. – Houston [1st Dist.] 1998, pet. denied) 45

Chilton Ins. Co. v. Pate & Pate Enterprises., Inc.,

930 S.W.2d 877 (Tex.App. – San Antonio 1996, writ denied) 25

Christy v. Williams,

292 S.W.2d 348 (Tex.Civ.App. – Galveston 1956, writ dism’d) 35

Cifuentes v. Costco Wholesale Corp.,

238 Cal. App. 4th 65 (Cal. Ct. App. 2015) 47, 49

CKB & Associates, Inc. v. Moore McCormack Petroleum, Inc.,

734 S.W.2d 653 (Tex. 1987) 32

Clearview Louver Window Corp. v. Rubin Glass & Mirror Co.,

284 S.W.2d 221 (Tex.Civ.App. – Austin 1955, writ ref’d n.r.e.) 42

Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227 (Tex.

2004) …………………………………………………………………………………………………….22
iv

Cox, Colton, Stoner, Starr & Co., P.C. v. Deloitte, Haskins & Sells,

672 S.W.2d 282 (Tex.App. – El Paso 1984, no writ) 25

Criswell v. European Crossroads. Shopping Ctr., Ltd.,

792 S.W.2d 945 (Tex. 1990) 41

Crosby v. U.S. Postal Serv.,

243 F.3d 560 (Fed. Cir. 2000) 48

Danciger Oil & Refining Co. of Texas v. Powell,

154 S.W.2d 632 (Tex. 1941) 32, 55

Deutsch v. Hoover, Bax & Slovacek, L.L.P.,

97 S.W.3d 179 (Tex.App. – Houston [14th Dist.] 2002, no pet.) 40

Exxon Corp. v. Emerald Oil & Gas Co.,

348 S.W.3d 194 (Tex. 2011) 22

Federal Signs v. Texas Southern University,

951 S.W.2d 401 (Tex. 1997) 26

Foster v. Nat’l Collegiate Student Loan,

2018 WL 1095760 (Tex.App. – Houston [1 st Dist.] Mar. 1, 2018, no pet.) 23

Francis v. Coastal Oil & Gas Corp.,

130 S.W.3d 76 (Tex.App. – Houston [1st Dist.] 2003, no pet.) 57

Glass v. Anderson,

596 S.W.2d 507 (Tex. 1980) 24

Greenspun v. Greenspun, 194 S.W.2d 134 (Tex.Civ.App. – Fort Worth), aff’d,

198 S.W.2d 82 (1946) 29

Gupta v. Eastern Idaho Tumor Institute, Inc.,

140 S.W.3d 747 (Tex.App. – Houston [14th Dist.] 2004, pet. denied) 25, 26

Henry v. Masson,

333 S.W.3d 825 (Tex.App. – Houston [1st Dist.] 2010, no pet.) 25, 27

Houston Belt & Terminal Ry. Co. v. J. Weingarten, Inc., 421 S.W.2d 431

(Tex.Civ.App. – Houston [1st Dist.] 1967, writ ref’d n.r.e.) 25

I.E.E. Int’l Elecs. & Eng’g, S.A. v. TK Holdings Inc.,

2015 WL 4527809 (E.D. Mich., July 27, 2015) 48

In re Estate of Trevino,
195 S.W.3d 223 (Tex.App. – San Antonio 2006, no pet.) (en banc) 53

Int’l Union, United Automobile Aerospace & Agric. Workers v. Hydro Auto.
Structures N. Am., Inc., 2015 WL 630457 (W.D. Mich., Feb. 12, 2015) 48

Josifovich v. Secure Computing Corp.,

2009 WL 2390611 (D.N.J., July 31, 2009) 49

Koenning v. Manco Corp.,

521 S.W.2d 691 (Tex.Civ.App. – Corpus Christi, writ ref’d n.r.e.) 23

Levetz v. Sutton,

404 S.W.3d 798 (Tex.App. – Dallas 2013, no pet.) 54

Lidawi v. Progressive County Mut. Ins. Co.,

112 S.W.3d 725 (Tex.App. – Houston [14th Dist.] 2003, no pet.) 39

Lyon v. Building Galveston, Inc., 2017 WL 4545831

(Tex.App. – Houston [1st Dist.], Oct. 12, 2017, pet. filed) 57

Mantas v. Fifth Court of Appeals,

925 S.W.2d 656 (Tex. 1996) 38

Marion v. Bowers,

371 S.W.2d 575 (Tex.Civ.App. – Amarillo 1963, no writ) 42

Martin v. Martin, Martin & Richards, Inc.,

12 S.W.3d 120 (Tex.App. – Dallas 1999, no pet.) 52, 53

Miga v. Jensen,

96 S.W.3d 207 (Tex. 2002) 57

MKM Engineers, Inc. v. Guzder,

476 S.W.3d 770 (Tex.App. – Houston [14th Dist.] 2015, no pet.) 26

Morrow v. Morgan,

48 Tex. 304 (1877) 32

Mulherin v. Brown,

289 S.W.2d 609 (Tex.Civ.App. – Amarillo 1956, writ ref’d n.r.e.) 42

Newman v. Toy, 926 S.W.2d 629 (Tex.App. – Austin 1996, pet. denied) 52

Noel v. N.Y. State Office of Mental Health Cent. N.Y. Psychiatric Ctr.,

697 F.3d 209 (2nd Cir. 2012) 48

Proctor v. Quality Signs, Inc.,

2017 WL 2871782 (Tex.App. – Houston [1st Dist.] July 6, 2017, no pet.) 39

Seagraves v. Wallace,

41 F.2d 679 (5th Cir. 1930) 42, 43

Smith v. Ratliff,

157 S.W.2d 945 (Tex.Civ.App. – San Antonio 1942, no writ) 43, 45

Stafford v. Southern Vanity Magazine, Inc.,

231 S.W.3d 530 (Tex.App. – Dallas 2007, pet. denied) 55, 57

Star Operations, Inc. v. Dig Tech, Inc.,

2017 WL 3263352 (Tex.App. – Austin, July 27, 2017, pet. denied) 50

Tabe v. Texas Inpatient Consultants, LLP,

2018 WL 3583359 (Tex.App. – Houston [1st Dist.] July 26, 2018, no pet.) 41

Telles v. Vasconcelos,

417 S.W.2d 491 (Tex.Civ.App. – El Paso 1967, writ ref’d n.r.e) 34

Transit Enterprises, Inc. v. Addicks Tire & Auto Supply, Inc.,

725 S.W.2d 459 (Tex.App. – Houston [1st Dist.] 1987, no pet.) 45

Trevino v. Allstate Ins. Co.,

651 S.W.2d 8 (Tex.App. – Dallas 1983, writ ref’d n.r.e.) 40

West v. Triple B Servs., LLP,

264 S.W.3d 440 (Tex.App. – Houston [14th Dist.] 2008, no pet.) 23

Western Irrigation Co. v. Reeves County Land Co.,

233 S.W.2d 599 (Tex.Civ.App. – El Paso 1950, n.w.h) 26

Wincheck v. American Express Travel Related Services Co.,

232 S.W.3d 197 (Tex.App. – Houston [1st Dist.] 2007, no pet.) 24

vii

Statutes

TEX. CIV. PRAC. & REM. CODE § 18.091 49

Other Authorities

C. Wilson & J. Busby, Charging the Jury in the Wake of HB 4,

TEX. BAR. J. 276 (April 2004) 50

viii

STATEMENT OF THE CASE

Doron Almog (“Doron”) filed this case on July 20, 2015. CR 7.1 He sued individually and derivatively on behalf of Greentree Apts, LLC, Pattaya, LLC, and Glen Willow, LLC, seeking access to their books and records. Id. Doron and Appellees Mike and Ofer Mizrachi – Doron’s brothers – settled in February 2016. PX01. Their executed Rule 11 agreement, filed with the Court on April 7, 2016, disposed of all matters in dispute. Supp. CR 115-19. The settlement reflected a comprehensive business resolution, with Mike and Ofer promising to pay Doron nearly $2 million for his interests in various entities they co-owned. PX01 (Appendix Tab 2). Mike and Ofer also promised that various properties would be liquidated and the proceeds split. Id. The parties exchanged mutual releases and established a path for addressing other outstanding (but unrelated) family disputes about their still-living mother’s property in Israel. Id.

However, the Mizrachi brothers repudiated the settlement and then failed to pay. So Doron amended his petition to dismiss his underlying claims and to sue only for breach of the settlement. CR 46. The Mizrachi brothers counterclaimed. CR 61.

On February 2, 2018, the trial court abated the Mizrachis’ counterclaims so that the parties could first resolve the question of whether the parties’ disputes were

1The Clerk’s Record will generally be referred to as “CR” followed by the page number.
The First Supplemental Clerk’s Record will be referred to as “Supp. CR”.

already settled. CR 470. Trial began on February 5, 2018. RR-3.2 Doron rested on February 20. RR-7, p. 129-30.3 Appellees moved for a directed verdict. Supp. CR

214. Judge Palmer granted the motion and released the jury. RR-7, p. 183-84. Appellees moved to lift the abatement and to sever their counterclaims, realign

the parties, and for an expedited trial on their abated counterclaims. CR 472. Doron opposed this relief but agreed that the counterclaims should be severed so that the directed verdict could be appealed. Id. at 493. The trial court agreed with Doron, and on May 3, 2018, severed the counterclaims and entered a final judgment as to the breach of settlement claim. Id. at 499 (Appendix Tab 1). Doron timely appealed. Id. at 513.

2This refers to Volume 3 of the Reporter’s Record. Herein, these will appear in the format of “RR-x, p. y”, as in RR-4, p. 43 (Reporter’s Record Volume 4, p. 43).

3The trial took an extended break between February 7 and 19 due to a courtroom space shortage in Harris County. RR-5, p. 213.

STATEMENT REGARDING ORAL ARGUMENT

Appellant respectfully requests oral argument. Appellees sought a directed verdict primarily based on novel arguments about the measure of damages, including an argument that damages must be proved net of contemplated tax withholding (as opposed to the full contract price the Appellees agreed to pay). Though the record included a written contract stating liquidated prices for the sale of LLC ownership, the trial court flatly declared that Appellant failed to present any proof of damages at all. The stakes here are extremely high. The parties settled more than 2 ½ years ago for nearly $2 million yet still remain mired in litigation. As the non-breaching party who simply wants the Appellees to pay what they promised and for this litigation finally to end, Appellant seeks the fullest opportunity to explain to this Court how the trial court erroneously short-circuited the trial by granting a directed verdict. He therefore asks that the Court set this matter for oral argument.

ISSUES PRESENTED

1. A non-breaching party may either discontinue contractual performance and sue for breach, or treat the contract as continuing and demand that the defendant perform, as well. While the latter choice deprives the plaintiff of any excuse for terminating his own performance, it does not limit his cause of action for damages covering the original breach. Here, Appellees breached their Rule 11 agreement to settle this case. Appellant treated their agreement as continuing and wants the settlement enforced. At trial, Appellees demanded a directed verdict on grounds that Appellant forfeited his claim by not subsequently performing what they claimed were his own obligations (most of which were found nowhere in the settlement). Aside from that not being the law, the record amply established that Appellant performed or tendered all his obligations. Did the trial court erroneously grant directed verdict on grounds that Appellant, after Appellees’ breach, failed to perform or tender contractual performance?

2. It is well-settled that when a buyer breaches a contract to purchase stock, the seller may elect to treat the sale as complete, hold the stock for the buyer’s benefit, and sue for the full contract price. When Appellees settled the underlying litigation, they promised to pay $1.86 million for his interest in two LLCs and some houses owned by a third. Yet, Appellees demanded a directed verdict on grounds that Appellant had no damages. Since Appellant could elect to treat the sale as complete and sue for the contract price, did the trial court err by declaring that Appellant presented no evidence of damages and granting a directed verdict?

3. The proper measure of damages requires only proof of the price the parties agreed to, without regard to taxation or tax withholding obligations. Yet, Appellees argued below that Appellant had not proved any damages at all because he submitted no evidence about how much in tax withholdings Appellees would have sent to the IRS on Appellant’s behalf. Since the legal remedy is the gross contract price, and since Plaintiff’s Exhibit 24 in any event provided evidence of the maximum applicable withholding rate, did the trial court err to the extent it believed Appellant had to prove (and could only recover) the contract price minus pre-payments of potential tax made by Appellees on his behalf?

xii

4. When 100% of a company’s owner act in concert, since they are the corporate property’s beneficial owners they may deal individually with that property however they agree. Here, 100% of the owners of some LLCs agreed as part of a lawsuit settlement that some real properties owned by the LLCs would be sold and their proceeds disbursed as agreed. Appellees refused to perform so Appellant sought specific performance. At trial, Appellees moved for directed verdict on ground that the LLCs were not party to the settlement or this litigation, which the trial court granted. Since the settling parties could deal with the property they beneficially owned however they wanted, did the trial court err by concluding it could not enforce their promises by specific performance?

5. A trial court lacks discretion to refuse a trial amendment unless the opposing party presents actual evidence of surprise or prejudice or the amendment is both objected to and asserts a new claim or defense. Here, Appellant requested a trial amendment to demand specific performance requiring Appellees to consummate the stock sale transaction and any other obligations for which he had not already sought specific performance. The trial court initially granted the request, but then denied it and ended the trial. Appellees, however, presented no evidence of surprise or prejudice, and specific performance is a remedy, not a cause of action. Did the trial court err by refusing Appellant’s request for a trial amendment?

xiii

STATEMENT OF FACTS

A. An Overview of The Dispute.

Doron Almog and his brothers, Mike and Ofer Mizrachi, settled this lawsuit on February 24, 2016. PX01. Mike and Ofer promised to pay Doron $1,733,333.33 for his interest in two companies they owned together. They promised to pay $127,000 more for his interest in two houses in Houston (or, at their election, to sell the houses and distribute his share of the proceeds). The brothers also agreed that some LLCs they completely owned would liquidate some real estate holdings and distribute Doron his share. They exchanged releases. Mike and Ofer promised to drop their complaint against Doron with the Israeli Bar. Mike promised to drop a lawsuit he had filed against Doron in Israel.

The settlement also addressed a side issue spurred by Mike and Ofer’s jealously over a monetary gift their mother, Simha, had given Doron and their older sister, Zila. With Zila’s concurrence, Doron agreed to return the money to their mother. The parties also agreed that all four siblings would equally share any future gifts from Simha. This agreement had two alternative mechanisms. The first required Mike’s Israeli lawyer to draft some form of estate planning instrument – either an irrevocable trust, a will, or the Israeli equivalent of an irrevocable trust. After Doron’s lawyer approved the document, it would go to Simha, who would have until April 8 to execute it. The second path – applicable only if these things

had not occurred by April 8 – had the siblings agreeing to enter into a contract among themselves to share equally anything they might later receive from Simha.

In early March, Mike sent Doron an outline of a proposal – for Simha to gift all her assets jointly to her children, who would then control them for the rest of Simha’s life – but everyone agrees that Simha rejected that idea. Simha never signed any document by April 8. Nor did Mike’s Israeli lawyer ever even prepare one.

Realizing their mother would not agree to hand over her assets, Mike and Ofer became dissatisfied with the backup plan to just share equally. They therefore began agitating to change the deal. On a March 7 phone call, they unequivocally told Doron that, absent material changes to the settlement, “there’s no agreement” and they “will not budge”. PX08, p. 3. They did not budge, and when the agreed-upon Closing date arrived they failed to make their first payment. Through trial they had paid Doron none of the nearly $2 million or done any of the other things they had promised. Doron amended to sue for breach of the settlement.

The case went to trial in February 2018. After Doron rested, and despite uncontradicted evidence of a written contract containing liquidated amounts the Mizrachis promised to pay, plus evidence of their failure to pay, Judge Elaine Palmer granted a directed verdict, at first solely on grounds that there was no evidence of damages. RR-7, p. 157-59 (Judge Palmer’s statements that directed verdict was granted “on the damage issue”, “that Plaintiff never put on any evidence of

damages”, and “[t]here was no evidence of damages”). Reminded that Doron also sought specific performance, though, Judge Palmer conceded that the trial would proceed with Appellees’ case. Id. at 157-59 and 160 (Judge Palmer’s statement that the defense would proceed with their evidence). Appellees countered that Doron sought specific performance only as to selling the real estate (and as to which Judge Palmer had not granted a directed verdict), so Doron sought a trial amendment seeking specific performance as to all of Appellees’ promises. Judge Palmer granted this request. But after further argument and a short break, Judge Palmer announced she was granting directed verdict on all grounds raised by Appellees, that Doron’s trial amendment request would be denied, the trial was over, and the jury would be excused. RR-7, p. 183-84.

This appeal follows.

B. The Family Background and Business Relationships.

Doron Almog, an accountant and non-practicing lawyer, lives just outside Tel Aviv, Israel. RR-5, p. 89-90. The youngest of 84-year-old Simha Mizrachi’s four children, he is the only one who still resides in Israel. Id. at 88-89, 92. He lives minutes away and helps with all Simha’s needs. Id. at 90. Appellees Mike and Ofer Mizrachi are Doron’s brothers. Id. at 92. Their sister, Zila Gore4, is the oldest. Id.

4Zila is also called “Sheila”. RR-5, p. 53.

Their father is deceased. RR-5, p. 88.

Doron and his brothers co-owned various American real estate investments together – Greentree (apartments in Houston); Glen Willow (apartments in Houston); Pattaya (apartments in Houston); another Glen Willow entity (12 units in Florida); and Beacon Condos (vacant land in Florida). RR-5, p. 92-93. All four siblings jointly owned Aliana Cypress, with two houses in the Houston area. Id. at

93. Doron was merely a passive investor with no active day-to-day involvement in any of these businesses. Id.

C. Business Disputes Between Doron and His Brothers Led to Litigation and Settlement.

Business disputes arose between Doron and his brothers, so Doron hired Eric Fryar, a business litigator specializing in lawsuits between business co-owners, to represent him. RR-4, p. 4-6. Doron filed suit on July 20, 2015, naming his brothers, Sharon and Gary Mizrachi (Mike’s wife and son), and three LLC’s as defendants. CR 6; RR-4, p. 11-14.
1. The parties convened for depositions but settled instead.

After several months of document discovery, the parties scheduled mediation for February 22, 2016, with depositions set later that week. RR-4, p. 11-12. Mediation failed, so on February 24 the parties met at the office of Daniel Jackson
– the Mizrachis’ lawyer – for depositions of Mike, Ofer, Sharon, and Gary. Id. at

13. Gary’s went first and was short. Id. at 14. After it ended, though, Doron and

Mike disappeared into a separate room and negotiated a settlement that required a complete buy-out of Doron’s ownership in their various co-owned businesses. Id. at 14-15; RR-5, p. 99-100.

2. The parties crafted a Rule 11 agreement.

The brothers and their lawyers then went into Jackson’s office. RR-4, p. 15-

16. Jackson sat at his computer and the group worked point-by-point through the deal outline to draft a detailed agreement laying out how the business relationships would be unwound and monies would be paid. Id. at 16. Jackson did the typing, reading language out loud as he went, and they would then all talk about it. Id. They went through multiple drafts before finalizing the final agreement. Id. This process lasted the entire afternoon, approximately four hours. Id.

3. Mike injects a side issue about Simha’s property.

Near the end, Mike brought up an unrelated family dispute about Simha’s property. RR-4, p. 17. This was not part of the agreement that Doron and Mike had hammered out in private. RR-5, p. 100. Mike did not raise this issue until after they had gone through several drafts dealing with the buyout of Doron’s interests. Id. at

106. This issue stemmed from a substantial gift of Israeli shekels that Simha made in the summer of 2015 to Doron for him and Zila.5 Simha had made the gift from

5The gift was around 1.6 million shekels, or approximately $450,000. RR-5, p. 95. The funds were given to Doron but were for both him and Zila. RR-5, p. 64. Because Zila did not have

her own funds. RR-5, p. 72, 95. Upon learning of the gift, Mike and Ofer became jealous, upset, and angry. RR-5, p. 95. Among other things, they filed a complaint against Doron with the Israeli Bar and Mike sued Doron in Israel. Id. at 96; PX01,
¶ 15 (calling for Mike to dismiss lawsuit against Doron in Israel). Fryar believed that jealously over Simha’s unequal gift helped explain the brothers’ difficulties as business partners. RR-4, p. 8. These family spats ultimately had nothing to do with the pending lawsuit, though. Id. at 7-8.

Nonetheless, as they neared the end of the negotiation Mike said he wanted the shekels returned to Simha and that no more gifts be made. RR-4, p. 19. Doron agreed. Id. at 19-20. Mike and Ofer had a plan, which was for Simha to put everything she owned in an irrevocable trust; this would keep her from making more gifts and at death her assets would be distributed equally among the siblings. Id. at 20. The Mizrachi brothers were “very insistent” that Simha’s assets be “secured in an irrevocable trust.” Id. at 22. Doron countered that a trust was not appropriate, and that if his brothers really sought an equal, four-way division of her estate, a will would be cheaper and simpler because it required no administration and comparatively little expense. Id. at 22-23. The brothers were not satisfied with a will, though, and insisted on a trust. Id. at 23. They made clear that they wanted not

an Israeli bank account, she and Doron executed an agreement establishing how Doron would hold, invest, and manage them for their joint benefit. RR-5, p. 85; DX12.

just to get their equal share when Simha died, but to control her assets while she still

lived. Id. at 26-27. “[T]hey were pushing hard for a trust.” Id. at 27.

4. The parties reached agreement about Simha’s assets.

Because neither Jackson nor Fryar knew Israeli law, they ultimately decided

to punt the decision about how to structure Simha’s proposed estate planning to an

Israeli attorney. RR-4, p. 27. And they chose not just any lawyer; instead, they

agreed that Mike’s Israeli lawyer, Boaz Kraus, would decide how to accomplish it

and to draft the papers. Id. at 27-28. Thus, the parties agreed that:

Mike’s Israeli lawyer will draft an irrevocable trust or will (or the Israeli functional equivalent of an irrevocable trust) covering all of Simha Mizrachi’s assets. The irrevocable trust, will, or the functional equivalent shall be reviewed and approved by Doron’s Israeli lawyer and executed by Simha Mizrachi before Closing. Mike, Ofer, Doron, and Zila shall be co-trustees of the irrevocable trust, will, or functional equivalent. Any action on behalf of the trust shall take the express written permission of all four (4) trustees.

PX01, ¶ 13. In other words, Kraus would both choose and prepare one of three forms

of proposed instrument: an irrevocable trust, a will, or the Israeli equivalent of an

irrevocable trust. Whichever document he prepared would then go to Doron for his

lawyer’s approval. And Simha would have until one day before Closing6 to execute

it (or not).

6Closing was forty-five days after execution, making it April 9, 2016. PX01, ¶ 1.

5. The parties included a backup plan.

Fryar reasonably thought that hinging a multi-million-dollar settlement on an Israeli octogenarian’s willingness to put everything she owned under her children’s complete and irrevocable control was probably not a solid idea. He explained:
Well, listening to the discussion, it seemed to me sort of inappropriate that we had people sitting in a lawyer’s office in Houston, Texas making a decision about somebody else’s property halfway around the world. And I thought, you know, ultimately, the decision belongs to her. She’s going to have to agree to this and we need to acknowledge that and we need to deal with the possibility that she might say no, right? And so I said, I mean, “What if she says no?”

RR-4, p. 33. All three brothers pushed back, expressing that Simha wanted them to

stop fighting and would agree to anything. Id. at 33-34. But Fryar insisted that

settlement could not depend on Simha’s consent, particularly when they did not

know for sure what she would do; thus, they needed a “Plan B”. Id.

Plan B became ¶ 14 of the settlement. It read: “In the event Simha Mizrachi

refuses to execute the irrevocable trust or its functional equivalent, Mike, Ofer,

Doron and Zila shall execute an agreement that requires each of them to equally

share in all of Simha Mizrachi’s assets whenever or however distributed.” PX1, p.

2; RR-4, p. 37-38. It would become operative only if Simha had not signed the

Kraus-prepared and Doron-approved instrument before April 9. RR-4, p. 51-52.

6. The remainder of the settlement provisions.

The settlement was otherwise quite straightforward and contained the

following provisions:

• ¶ 1 – “Closing” is forty-five days after execution;

• ¶ 2 –Appellees buy Doron’s interest in Glen Willow-Palermo for $549,333.33;

• ¶ 3 – Doron disclaims interest in Glen Willow-Palermo’s Kismet property;

• ¶ 4 – Requiring Glen Willow-Palermo’s 12-unit apartment complex be listed for sale within thirty days after Closing, setting formula for distributing proceeds, and giving Doron right of first refusal;

• ¶ 5 – Agreeing that taxes would be withheld from Mike and Ofer’s payment for Glen Willow-Palermo and then remitted to IRS, with withholding done at lowest possible rate;

• ¶ 6 – Appellees promised $1,184,000 for Doron’s Pattaya interest, release Doron from bank loan, and indemnify Doron regarding loan;

• ¶ 7 – Setting payment schedule for $1,184,000 payment, with half less withholding taxes due by June 15, and half (with no withholding) due by September 15;

• ¶ 8 – Lowest tax withholding rate applies to the June 15 payment;

• ¶ 9 – Appellees, within 90 days after Closing, either purchase Doron and Zila’s Aliana Cypress interests for $127,000 apiece or list its property for sale, setting formula for payment following sale, and giving Doron right of first refusal;

• ¶ 10 – Doron disclaiming interest in GreenTree, and promising to execute documents reasonably required to confirm that;

• ¶ 11 – Requiring that Beacon Condos property be listed for sale within 30 days after Closing, establishing a formula to split proceeds, and giving Doron right of first refusal;

• ¶ 12 – Doron’s agreement to return Simha’s assets, including the shekels;

• ¶ 15 – Mike dismisses lawsuit in Israel;

• ¶ 16 – Mike represents a debt had been paid and indemnifies Doron;

• ¶ 17 – All payments go to Fryar’s trust account;

• ¶ 18 – Exchanging mutual releases;

• ¶ 19 – Setting a deadline to dismiss lawsuit; and

• ¶ 20 – Appellees to use best efforts to withdraw Israeli Bar complaint. PX01. Doron, Mike, Ofer, and their attorneys signed the settlement agreement. Id.

at 3.

D. Settlement Quickly Goes Off the Rails.

Doron returned home to await the document to review with his lawyer. RR-5, p. 119. He expected to receive it quickly because Closing was just forty-five days away. Id. at 120. By the following week he had heard nothing, though. Id. at 120 and 135. So, on March 1 Doron emailed Mike, saying:

I didn’t get anything from Boaz Krause [sic] and I want to fill my part of our agreement.

Can you pls check with him?

I also wait for the report and a[d]dress of Palermo.

PX02, p. 1; RR-5, p. 135. Filling his “part of our agreement’ meant reviewing the Kraus-prepared document with his lawyer and to approve it. RR-5, p. 135-36. He referred to Palermo to confirm that Mike was following through with the obligation to sell the Florida property. Id. at 136. Mike responded that afternoon:

I guess that there was a misunderstanding. We were waiting for you to tell us that you talked to ima7 and its [sic] ok to go to Boaz. We didn’t hear from you so we just waited. Do I call Boaz to make it today?

PX02, p. 2; RR-5, p. 136. This surprised Doron because the settlement did not

condition Kraus’s document preparation on Doron first speaking to Simha about it.

RR-05, p. 138. Doron responded: “Yes, he should send me what he wants her to

sign.” Id. At 1:49 p.m., Mike replied: “ok, i will call him today.” PX02, p. 3.

Having received nothing from Kraus by the following afternoon, Doron

emailed Mike again:

I didn’t hear from Boaz Kraus and I’m going to Europe soon and I don’t want to hold it too much, can you tell me where are we standing with the agreement please?

Did you put the houses, Palermo and the land on the market?

PX02, p. 5; RR-5, p. 140-41. Mike’s response began by contradicting the previous

day’s email. PX02, p. 6. He now revealed that “[w]e contacted Boaz the next day

after our agreement and he had questions and we sent emails back and forth.” Id. In

other words, there had been no “misunderstanding”, and they had not been waiting

to “go to Boaz” until Doron first spoke to Simha. Compare PX02, pp. 1 and 6.

Doron was concerned by the realization that Mike had lied. RR-5, p. 141-42. Mike

continued that “the [Simha] agreement should be ready very soon”, inquired about

7The word “ima” referred to their mother. RR-05, pp. 136-37.

Doron’s travel plans, and gave a lengthy report about his steps towards selling the various real properties. PX02, p. 6. In his first hint about backing out, though, Mike said that “legally we don’t [sic] have the final contract signed, so im [sic] not sure if I can do anything. I need to ask Daniel [Jackson] what to do.” PX02, p. 6. Doron quickly responded that “[w]e do have a final agreement since all the terms are signed by all of us.” Id. Doron said this “[t]o make it clear to him that we did have a final contract.” RR-5, p. 143. Mike reply of “Ok” satisfied Doron’s concern about Mike saying there was no final settlement. Id.; PX02, p. 6.

On March 4, Mike emailed Doron what he described as “a copy of the draft that Boaz will make the document from. If its [sic] ok, let me know so I can forward it to him today.” PX03, p. 1. Doron opened and read the attached Word document. RR-5, p. 145. The original Hebrew document is PX04; an English translation is PX05. Id. at 145-49 (Appendix Tab 3). The gist of Appellees’ proposal was that Simha’s home and assets would be outright gifted to her children. She could stay in her home for the rest of her life, but all her funds would go to a bank account in the children’s names. Simha would live off her monthly income, but if she wanted access to her other funds she would need written permission from three of her four children. The proposal also required squaring up accounts if Mike and Ofer after Simha’s death received less than ¼ of what Simha owned. It also said that “[a]fter

written authorization of this document, . . . Boaz Krauss [sic] will prepare an agreement in accordance with the law.” See id. at 150-54; PX05.

This was not how ¶ 13 of the settlement was supposed to work. Kraus was supposed to choose a structure and prepare the legal document. It would then go to Doron for his lawyer’s approval. Simha would then have until April 8 to sign it (or not). Despite this noncompliance, Doron promptly told Mike that he could live with this proposal. PX03, p.1 (“If you can convince her to give away all her assets while she is a live [sic], im [sic] ok with it but I cant [sic] do it.”); RR-5, p. 154-55. Doron testified that if he had ever actually received such a legal document prepared by Kraus, he would have consented to that, as well. RR-5, p. 155.

Doron did not think Simha would agree to it, though. RR-5, p. 155-56. His brothers proposed “taking everything from mom. She losses [sic] control and she needs the three of us to agree in writing if she wants something.” Id. at 156. Doron had already spoken to his mother and he knew she would reject the idea. RR-5, p. 137, 156, 161-62. Even before March 4, Doron had already told Mike that Simha wanted to do a will, not a gift. RR-7, p. 95.

Later on March 4, Mike emailed Doron again. He asserted that “[i]n the contract you signed you promised that you will talk to her and will make the irrevocable will.” PX03, p. 2. No such promise appears in the settlement, and no party obligated themselves to speak to Simha, let alone secure her signature on

anything. PX01; RR-5, p. 160.8 Further, at no time was Doron ever sent a will – irrevocable or otherwise – to review and approve. RR-5, p. 160. Nor did Mike’s proposal even involve a trust or a will; instead it was “a gift. It’s a functional equivalent of a trust”, or the third option Kraus could pick from. Id. at 154; PX01, p. 2 (the options were “irrevocable trust”; “will”; “or the Israeli functional equivalent of an irrevocable trust”). Still, neither Appellees nor Kraus ever sent Doron any such document for review and approval. RR-5, p. 160-61; RR-7, p. 111, 114-15.

Doron pointed Mike to ¶ 14 of the settlement, the backup plan in case Simha would not or did not execute before Closing. PX03, p. 2. This was why they had included that Plan B. RR-5, p. 161. Doron also said that “I dont [sic] think she will agree to your draft and if she will, [sic] I wont [sic] stop her but I cant [sic] force anybody to give you all his assets as a gift.” PX03, p. 2. He said this because he had already spoken to Simha, who had told Doron what she wanted. RR-5, p. 161-62.
Even so, Doron took the proposal to Simha’s house and showed it to her. RR-5, p. 163. They sat in her living room while she read it. Id. at 163-64. Simha began to cry. Id. at 164. She said she did not want to sign it. Id.

8That said, Doron had no problem talking to Simha about it and had already done so. RR-
5, p. 160.

The following Monday, March 7, Jackson emailed Fryar, saying a problem

had arisen that he hoped the American lawyers could resolve. PX06. Jackson wrote

that

Per [Kraus], there is no such thing as an ‘irrevocable will’ and an ‘irrevocable trust’ is far to [sic] expensive. [Kraus] recommended that Simha Mizrachi gift all her assets to the 4 children, with an agreement that all the assets remain in Simha’s possession and ultimate control for the remainder of her life.

Id. This was not even remotely what Mike and Ofer had proposed. They wanted

Simha to hand “ultimate” control over her assets to her children, and thereafter to

require written permission from three of them to access her own money. PX05; RR-

5, p. 168. Jackson continued that he had been led to believe “this was communicated

to Doron, but Doron has refused to discuss this issue with his mother, instead telling

Mike that he should handle it.” PX06.9 Fryar immediately forwarded this email to

Doron. RR-4, p. 87.

After receiving it, Doron immediately called his brothers, recording their

conversation. RR-5, p. 169. A certified English translation of the conversation was

admitted as PX08 (Appendix Tab 4). Id. at 170. The speakers were Doron (Speaker

1), Mike (Speaker 2), and Ofer (Speaker 3). Id. at 171.

9In reality, Doron had discussed the proposal with his mother. RR-5, p. 169. He had not told Mike to should handle it. Id. But he had told Mike he was free to convince Simha if he could. Id.

Doron told Mike he had spoken to Simha on March 4 (the previous Friday), that he understood Mike had spoken to her as well, and the idea of a gift would not work; thus, they needed to go to the ¶ 14 backup plan. PX08, p. 1; RR-5, p. 171-72. Mike did not dispute having already spoken to Simha. RR-5, p. 172. Doron said: “She told you Motti10, that she did not want to give a gift, and I understand her, she’s afraid. That’s why we put section 14 in place, so that if she does not agree then an agreement will be made.” PX08, p. 1. Doron asked why they were now going in reverse. Id. Mike replied: “Because we do not have any collateral . . . . I want to have collateral and then it’ll be fine.” Id. Mike claimed the agreement was unfinished and he now wanted to “add that I want collateral, that’s all.” PX08, p. 1. Doron insisted that the agreement was “finalized.” Mike confirmed that nothing had changed. Id. at 1-2.

Mike then made two things clear. First, he did not want his mother to make a will, only a gift. PX08, p. 2. And second, he admitted Simha had already told him she had no interest in his gift proposal. Id. So, Doron urged that they proceed with the deal they had already agreed to. Id. But Mike insisted that unless Doron would put up collateral “there’s no agreement.” Id. at 2-3. Ofer piped up to confirm his participation in this repudiation. Id. at 3. Both brothers said they would not budge.

10“Motti” is Mike. RR-5, p. 149-50.

After that phone call, Fryar and Jackson engaged in a series of back-and-forth correspondence (PX09-11 and 13-21), none of which is necessarily germane to this appeal. On April 6, three days before Closing, Fryar told Jackson that Doron would not change the deal; that Fryar would shortly file the Rule 11 Agreement with the Court; that Doron remained willing to cooperate to get any reasonable deal done but had no control over Simha; and that Doron and Zila stood ready to return the disputed shekels to their mother. PX22 (Appendix Tab 5). Ultimately, though, “Doron expects the settlement agreement to be performed as written. Id. Fryar filed the Rule 11 Agreement the following morning. PX23.

Closing passed without Mike’s lawyer preparing any estate planning document for Simha, Doron having an opportunity to approve it, Simha signing it, or the Mizrachis’ first settlement payment being delivered. RR-4, p. 180 and RR-5, p. 102-03. Five days later, on April 14, Fryar wrote Jackson again, spelling out precisely how much should be withheld for taxes ($282,030) and the net amount that should be delivered by the close of business ($267,303.33). PX24 (Appendix Tab 6). The Mizrachis did not pay. RR-4, p. 176. The next day, Fryar amended Doron’s pleading to drop all settled claims and to assert a single claim for breach of the settlement agreement. CR 46; RR-4, p. 177.

Through trial, the Mizrachis had not paid Doron a single dollar promised in settlement. RR-4, p. 184. Nor did they do any of the other things they had promised.

Id. at 100, 184. Doron, by contrast, gave the shekels to his mother’s lawyer, Daniel Friedenberg. RR-5, p. 100-01, 211.11 He chose this route because of his brothers’ repudiation of the contract; he thought it would be best to put the money in the lawyer’s hands until the question of settlement was resolved.12 Id. at 101.

Doron has at all times since executing the settlement been willing to perform his obligations and to go forward with it. RR-7, p. 86-87. He has tried to do so, but his brothers insisted that they would not perform unless he agreed to new and additional terms. Id. at 87; PX08. At no point since April 9, 2016, have the Mizrachi brothers taken any steps to comply with the settlement or to pay Doron any of the money owed him under it. RR-7, p. 115.

E. The Trial Court Grants a Directed Verdict.

Doron rested after presenting testimony from Fryar, Zila13, and himself. The Mizrachis moved for directed verdict, making four arguments. Supp. CR 214.

The “main crux”, RR-7, p. 131, was that Doron had failed to demonstrate his continued tender of performance. Supp. CR 217-18. They argued this by both

11The 100,000 shekels in Doron’s safe went directly to Simha; the balance went to a trust account in her name. RR-5, p. 210-12.

12After all, if there is no settlement to be enforced then the shekels would revert back to Doron and Zila’s ownership. RR-7, p. 74.

13 Zila testified that Doron called her from the negotiation to advise her of the deal, that she agreed to the terms that required her assent (including returning the gifted shekels), and that to this day remains amenable to those terms. RR-5, p. 62-65.

ignoring overwhelming record evidence and twisting the settlement to invent nonexistent obligations and promises Doron had never made (but which they then claimed Doron failed to perform). For example, they said Doron failed to sign further documents – which the settlement neither contemplated nor required, and the Mizrachis never asked for – to transfer the LLC interests that Mizrachis refused to pay for. Id. at 217. They said Doron breached by failing to pay the withholding taxes that they were to have withheld from the payments they never made. Id. at 217-18.

Second, they argued that Doron had suffered no damages from his brothers’ breach of promise to buy him out because he still ‘owned’ his ownership interests. Supp. CR 218.
Third, even though 100% of the LLCs’ owners had made the settlement, they said specific performance could not compel the signatories to effect the real estate sales absent the corporate owners (which the settling parties owned and controlled) having been formal parties to the settlement or this lawsuit. Supp. CR 220.

And finally, despite evidence of a contract containing liquidated amounts, they argued (without citation to authority) that Doron had failed to prove any damages because he had not showed what his brothers would owe him net of tax withholding. Supp. CR 222.

Following a lunch break, the trial court granted the Appellees’ motion “on the damages issue.” RR-7, p. 157. Upon inquiry from Doron’s counsel, Judge Palmer clarified that she was ruling only “that Plaintiff never put on any evidence of damages.” Id. at 158. Doron’s counsel pointed out that Doron still sought specific performance, so the trial should proceed. Id. Judge Palmer seemingly agreed and said the defense would put on its evidence. Id. at 160.

The Mizrachis then argued that Doron’s pleading sought specific performance only with respect to selling the real estate, dismissing litigation in Israel, and releasing Doron from a loan guarantee. RR-7, p. 162. Doron therefore requested a trial amendment to compel performance of all contractual obligations, which Judge Palmer granted. Id. at 163, 181.

Judge Palmer then called for a fifteen-minute recess. RR-7, p. 183. Upon her return, she announced that she was “going to grant Defendant’s motion for directed verdict in its entirety, which includes damages and specific performance. So we’ll bring the jury in and let them go.” Id. at 183-84. She stated that she was now denying Doron leave to file a trial amendment. Id. at 184. She excused the jury and the trial ended. Id.

SUMMARY OF ARGUMENT

Judge Palmer erroneously short-circuited the trial. Viewed most favorably to Doron, the record established that the Mizrachi brothers i) repudiated the contract

on March 7, ii) thereafter failed to comply with it, iii) never paid Doron any of the $1,733,333.33 required by ¶¶ 2 and 6 of the settlement, iv) failed to buy Doron’s Aliana Cypress interest for $127,000 (or sell the houses and split the proceeds), and

v) otherwise failed to liquidate properties that, the record showed, were owned by entities the brothers owned and controlled. Doron, meanwhile, substantially performed (or tendered performance of) his few obligations under the settlement and, further, stands ready to perform them today. Under well-established legal principles, moreover, Doron is entitled to receive the agreed-upon amounts for the LLC ownership he sold. The liquidated contractual amounts thus establish damages as a matter of fact and law.
Relatedly, Appellees’ argument about tax withholding is simply wrong. Breach of contract damages are not calculated net of taxes, and nor does an obligation to perform tax withholding upon a contractual promise – whether required by law or the contract itself – have anything to do with the legal measure of damages. Losing defendants regularly perform tax withholding when paying judgments, with those withholdings serving as a judgment credit. That a portion of the contract price might go to the government as a prepayment of the recipient’s potential tax liability does not entitle the breaching party to a discount. Further, while Doron had no legal obligation to prove contract damages net of tax withholding, both Appellees and the trial court ignored PX24, which contained evidence of the maximum applicable

withholding rate and the amount due after applying it. So even if the Appellees were right, the record still contained more than a scintilla of such proof.

Finally, even if the trial court issued a correct ruling about damages, it still erred by refusing to let trial proceed on Doron’s demand for specific performance and by refusing (after first permitting) a trial amendment to seek such relief as to all of the Mizrachis’ contractual promises.

ARGUMENT

A. The Trial Court Erroneously Granted a Directed Verdict on Breach of the Settlement Agreement.

Judge Palmer erroneously scuttled Doron’s case. This Court must now do what she did not – “view the evidence in the light most favorable to the person suffering an adverse judgment and decide whether there is any evidence of probative value to raise an issue of material fact on the question presented.” Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 217 (Tex. 2011). In doing so, this Court must also disregard all contrary evidence and inferences and give Doron the benefit of all reasonable inferences created by the evidence. Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex. 2004); Quantel Business Sys. v. Custom Controls, 761 S.W.2d 302, 303 (Tex. 1988). A directed verdict is improper if there is more than a scintilla of evidence on the grounds underlying the directed verdict. Coastal Transp. Co., Inc., 136 S.W.3d at 233. “If the evidence supporting a [fact] finding . . . rises to a level that would enable reasonable and fair-

minded people to differ in their conclusions, it constitutes more than a scintilla of evidence and the case must be reversed and remanded for a jury determination.” Id. at 234 (internal quotations omitted).
This is a breach of contract case, which requires proof: (1) that a valid contract existed; (2) the plaintiff tendered performance or was excused from doing so; (3) the defendant breached; and (4) the plaintiff sustained damages as a result. Foster v. Nat’l Collegiate Student Loan, 2018 WL 1095760, *9 (Tex.App. – Houston [1st Dist.] Mar. 1, 2018, no pet.) (citing West v. Triple B Servs., LLP, 264 S.W.3d 440, 446 (Tex.App. – Houston [14th Dist.] 2008, no pet.)). “If appellant has introduced some evidence on each of the elements of proof which he must establish, the trial court has erred in granting [a] motion for instructed verdict upon the contract cause of action.” Koenning v. Manco Corp., 521 S.W.2d 691, 699 (Tex.Civ.App. – Corpus Christi, writ ref’d n.r.e.). The existence of a valid contract – PX01 – is undisputed. Nor were the Mizrachis’ failures to pay the contract price. The only issues raised as grounds for a directed verdict were whether there was some evidence that Doron sufficiently tendered performance and/or some evidence of damages.

More than a scintilla of evidence supported Doron’s case. This Court should therefore reverse and remand for re-trial.

1. Doron tendered performance.

Appellees argued below that the settlement imposed a myriad of implied

obligations on Doron, that Doron failed to perform them all following the Mizrachis’ repudiation and breach, and that such failure constitutes a complete bar to his claim. Supp. CR 215-18. This argument fails legally because i) Doron need only demonstrate that he tendered performance of his obligations and ii) even a subsequent breach by Doron does not bar his claim for the Mizrachis’ prior breach. And it fails factually because the evidence sufficiently (if not overwhelmingly) establishes that i) Doron tendered performance and/or complied (substantially or completely) with all his obligations under the settlement; and ii) the Mizrachis’ imaginative divination of non-existent contractual obligations provides no basis to deny Doron a remedy as a matter of law.14

a. The legal framework.

A breach of contract plaintiff need only demonstrate performance or tendered performance. Wincheck v. American Express Travel Related Services Co., 232 S.W.3d 197, 202 (Tex.App. – Houston [1st Dist.] 2007, no pet.). As to his few obligations under the settlement, the record contained more than a scintilla of evidence that Doron did one or the other.

14Appellees’ performance argument applies only to Doron’s claim for damages. Their March 7 contractual repudiation legally excused Doron from any further obligation to perform or tender performance before seeking specific performance. Glass v. Anderson, 596 S.W.2d 507, 513 (Tex. 1980); 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 255-57 (Tex.App. – Dallas 2002, pet. denied).

Doron agrees generally that a non-breaching party must elect between two courses, either continuing or ceasing performance. Gupta v. Eastern Idaho Tumor Institute, Inc., 140 S.W.3d 747, 756 (Tex.App. – Houston [14th Dist.] 2004, pet. denied). Where he elects, as Doron did here, “to treat the contract as continuing and insists the party in default continue performance, the previous breach constitutes no excuse for nonperformance on the part of the party not in default and the contract continues in force for the benefit of both parties.” Id. Consequently, this “deprives the non-breaching party of any excuse for terminating their own performance.” Id. at 757, quoting Chilton Ins. Co. v. Pate & Pate Enterprises., Inc., 930 S.W.2d 877, 888 (Tex.App. – San Antonio 1996, writ denied).

But this “election affects only whether the non-breaching party is required to perform fully after the breach.” Henry v. Masson, 333 S.W.3d 825 (Tex.App. – Houston [1st Dist.] 2010, no pet.) (emphasis added), citing Gupta, 140 S.W.3d at 757 n.7. It therefore limits the non-breaching party’s “right to rescind the contract or to refuse performance on its part, but not its cause of action for damages for [the
earlier] breach of the contract ….” Houston Belt & Terminal Ry. Co. v. J.

Weingarten, Inc., 421 S.W.2d 431, 436 (Tex.Civ.App. – Houston [1st Dist.] 1967, writ ref’d n.r.e.) (emphasis added); see also Cox, Colton, Stoner, Starr & Co., P.C. v. Deloitte, Haskins & Sells, 672 S.W.2d 282, 287 (Tex.App. – El Paso 1984, no writ) (when one party materially breaches and the other elects continued

performance, it deprives him only of an excuse for ceasing performance while not depriving him of his claim for breach of contract). The election “operate[s] as a conclusive choice, not depriving the injured party of his cause of action for the

breach which has already taken place, depriving him only of any excuse for ceasing performance on his own part.” Board of Regents of University of Texas v. S

& G Construction Co., 529 S.W.2d 90, 97 (Tex.Civ.App. – Austin 1975, writ ref’d n.r.e.) (emphasis added), overruled on other grounds, Federal Signs v. Texas Southern University, 951 S.W.2d 401 (Tex. 1997); see also Western Irrigation Co. v. Reeves County Land Co., 233 S.W.2d 599, 602 (Tex.Civ.App. – El Paso 1950, n.w.h). In other words, Mike and Ofer would have the right to sue Doron for his own subsequent contractual breaches. It does not mean – as the Mizrachis argued below – that any subsequent breach by Doron will “depriv[e him] of his cause of action for the breach which has already taken place”. Board of Regents, 529 S.W.2d at 97.15

15This therefore does not create, as Appellees posit, an affirmative obligation to prove subsequent compliance with each and every contractual obligation on pain of losing any remedy for the original breach. But see, MKM Engineers, Inc. v. Guzder, 476 S.W.3d 770, 783 (Tex.App.
– Houston [14th Dist.] 2015, no pet.) (citing Gupta for proposition that “[b]ecause Guzder elected to continue performance . . . he was required to show that he fully performed under the contract.”). Doron can find no other case even hinting that the continuing obligation to perform is somehow a ‘requirement’ on which the entire claim hinges. He therefore submits that Guzder is wrong if it implies that a plaintiff’s later non-performance somehow sanctifies the defendant’s earlier breach.

Henry v. Masson 333 S.W.3d at 825, provides a fine illustration of this distinction. There, two doctors squabbled over dissolution of their medical practice. They settled, but their agreement collapsed. Each accused the other of breach. The jury determined that Henry breached first, and this Court affirmed the jury’s $75,000 damage award to Masson. Id. at 835-37. Henry, though, argued that Masson had promised in the settlement to pay him $150,000 for his ownership interest in a property called Hepburn Estates. Having chosen to treat the contract as continuing, Henry argued, meant that Masson still had to pay Henry for the land. This Court agreed. Id. at 841-42.

Henry demonstrates that a non-breaching party cannot by litigation obtain a contract’s benefits but avoid its obligations. But it also shows that Masson’s subsequent breach did not mean he forfeited damages for Henry’s earlier breach. This is essentially the argument Appellees made below, and it must be rejected as contrary to well-established principles. Thus, Masson could still recover for Henry’s breach, Masson’s original contractual obligations continued, and Henry could still independently assert his right to enforce those obligations.

b. More than a scintilla of evidence showed that Doron performed or tendered performance.

The Appellees below invented a series of contractual obligations and then contended that Doron failed to perform them. Viewing the record most favorably to Doron, though, each of their assertions lacked merit, and the record certainly did not

affirmatively establish that Doron failed to perform (or tender performance of) any

promise made under the settlement agreement. The directed verdict was therefore

in error and should be reversed.

i. Doron did everything required to transfer Glen Willow-Palermo and Pattaya.

The Mizrachis first argued that Doron failed to transfer his ownership in Glen

Willow-Palermo, LLC and Pattaya, LLC, as required by ¶¶ 2 and 6 of the settlement.

PX01. There is no question that Doron intended to transfer title to his interests in

the companies. He tendered performance in writing and later in the pleadings when

he sued Mike and Ofer for failing to pay for the interests. Appellees’ argument,

though, was that Doron subsequently failed to execute some other legal instruments

transferring title – even though the settlement neither contemplated nor required

their execution, and even though the Mizrachis never asked him to do so. RR-7, p.

79. In reality, only Mike and Ofer had further obligations to act under those two paragraphs. Id.; RR-4, p. 65, 69-70.

As a legal matter, there is no single method for transferring corporate ownership from one person to another:

As between transferor and transferee, it seems to be the rule that transfer of title may take place though there is no delivery of the certificates themselves, nor endorsement of them, nor transfer of them on the books of the corporation, and even though the sale be by parol. In each case the inquiry is whether the minds of transferor and transferee met, whether there was an intention that the stock should then and there be

vested in the transferee, and whether there were acts in the nature of a symbolical delivery of the property.

Greenspun v. Greenspun, 194 S.W.2d 134, 137 (Tex.Civ.App. – Fort Worth), aff’d, 198 S.W.2d 82 (1946). As Fryar testified, Doron’s uncertificated LLC units would automatically transfer to his brothers at Closing. RR-4, p. 46-47. Fryar has written hundreds of agreements transferring LLC ownership and knows how it is done. Id. He said agreements like PX01 typify how such transfers are accomplished. Id. at

50. On cross-examination, when asked by the Mizrachis’ lawyer when Doron had ever executed an assignment of his interests in those entities, Fryar testified that

Doron had done so – when he signed the settlement. Id. at 254-55, 260.16 While one certainly can envision the transfer occurring more formally – like a separate assignment document that PX01 did not contemplate – the transfers could also hav been accomplished by an oral agreement and handshake. Greenspun, 194 S.W.2d at 137.

On its face, the agreement here required no further steps to transfer ownership other than the parties’ signatures and the Mizrachis’ payment. PX01. No reasonable reading of the Rule 11 agreement suggests otherwise. Viewed in the light most favorable to Doron, a reasonable factfinder could conclude that Doron’s execution

16He said the same thing about the Florida Kismet property. RR-4, p. 255-57.

was sufficient to transfer his ownership interests to Mike and Ofer. Appellees’ argument therefore provided no basis for a directed verdict.

ii. Doron had no obligation to transfer his interest in Aliana Cypress.

Appellees also argued that Doron did not transfer them his interest in Aliana Cypress. Supp. CR 218. The settlement paragraph addressing Aliana Cypress obligated only Mike and Ofer to act, giving them ninety days from Closing to i) purchase Doron and Zila’s interests for $127,000 each; or ii) sell the properties and split the proceeds. PX01, ¶ 9. Mike and Ofer chose to do neither. RR-4, p. 267-69.

Doron has at all times been willing to go forward with the settlement. RR-7, p. 86-87. But his brothers never made any election under ¶ 9, so there was nothing further for Doron to do. To suggest that Doron failed to perform obligations regarding Aliana Cypress represents a willful misreading of the settlement. It certainly created no basis for a directed verdict.

iii. Other than for Greentree, Doron had no obligation to execute documents disclaiming his interest in various entities.

The Mizrachis also contended that Doron failed to perform by not executing further documents disclaiming his interest in entities mentioned in the settlement.

Supp. CR 217-18.17 They claimed that “Fryar admitted [this] on the stand”, id. at 217, which would be true only if one i) subscribed to Appellees’ false narrative that the settlement included such a requirement and ii) ignored Fryar’s testimony that nothing more needed to be done to transfer the shares. RR-4, p. 49-51, 255-57, 260-61, 266-70; RR-5, p. 39-40. Indeed, this entire argument is one the Appellees never identified in their Rule 194 disclosures or mentioned until trial was underway. RR-7, p. 141-42. And, they base it entirely on a forced misreading of the contract, so it inherently fails to view the record in a light most favorable to Doron.

First, the settlement did call for Doron’s execution of further documents, but only with respect to one entity – GreenTree, LLC – and then only as “reasonably required to confirm Mike and Ofer’s sole ownership of GreenTree”. PX01, ¶ 10. It is undisputed that the Appellees never asked Doron to execute any such document, so they cannot possibly contend that Doron’s failure to sign a paper they never asked for represents a failure of performance. RR-7, p. 82-83; RR-4, p. 270-71.
Second, as to Appellees’ promises to buy Doron’s other LLC interests, the parties included no such requirement in their agreement. RR-7, p. 83; PX01, ¶¶ 2, 6, and 9. That the parties contemplated further documents in ¶ 10 but not in ¶¶ 2, 6 or 9, implicates the interpretive maxim expressio unius est exclusion alterius,

17This argument applied to Glen Willow-Palermo, LLC, Pattaya, LLC, GreenTree, LLC, and the Florida Kismet property.

meaning “the naming of one thing excludes another”. CKB & Associates, Inc. v. Moore McCormack Petroleum, Inc., 734 S.W.2d 653, 655 (Tex. 1987). This rule “is ordinarily used to control, limit, or restrain the otherwise implied effect of an instrument, and not to annex incidents to written contracts in matters with

respect to which they are silent.” Morrow v. Morgan, 48 Tex. 304, 305 (1877) (emphasis added) (interior quotes and citation omitted). It is basic, moreover, that courts should never read additional provisions into a contract unless absolutely necessary to effectuate the parties’ intent as expressed by the contract as a whole. Danciger Oil & Refining Co. of Texas v. Powell, 154 S.W.2d 632, 635 (Tex. 1941). Implied terms, after all, must appear so clearly within the parties’ contemplation “that they deemed it unnecessary to express it, and therefore omitted to do so,” or it must otherwise be necessary to infer such a covenant “to effectuate the full purpose of the contract as a whole as gathered from the written instrument.” Id. Put simply, the parties knew how to include such a provision if they wanted to; that they did not oblige Doron to sign additional documents disclaiming his interest in the other LLCs provides strong evidence that this choice was deliberate.

Third, at best for Appellees there were disputes of material fact whether Doron already did everything the contract required to transfer his ownership interests to his brothers. Fryar certainly testified that Doron had done so. RR-4, pp. 255-57, 260-61, 266-70. Asked whether there was any reason the parties could not have required

execution of further documents (as they had in ¶ 10), Fryar testified: “Absolutely not. We could have had a very traditional closing with signing and everything. That’s not the way we structured the deal.” RR-5, p. 45-6.18

No reasonable reading of the settlement required Doron to sign additional documents to transfer the LLC ownership. Appellees’ contention that he failed to perform by not doing so must be rejected. Meanwhile, more than a scintilla of evidence established that Doron did everything required of him to transfer his LLC ownership. That precluded any proper directed verdict.
iv. Doron returned the shekels to Simha.

Appellees also argued below that Doron failed to perform by not returning the 1,643,134 shekels to Simha. Supp. CR 217. But this argument fails to view the record favorably to Doron, as this Court must.
The record on this issue is undisputed. First, Doron gave the 100,000 shekels in his safe directly to Simha. RR-5, p. 210-11. Second, Doron gave the 1,543,134 shekels – the ones gifted to him and Zila – to his mother’s lawyer, Daniel Friedenberg, where they have since been held in an escrow account in Simha’s name.

18Fryar also testified that before the cross-examination of him at trial the Mizrachis had never suggested Doron needed to have done anything more under ¶¶ 2, 4, 5, 6, 7, or 9. RR-5, p.

46. Doron likewise confirmed that his brothers never asked him to sign any other documents to transfer or assign the LLC units, and nor did they or their lawyers prepare such documents for him to sign. RR-7, p. 79. Like Fryar, the first Doron ever heard about this theory was during trial. Id. at 80. Not once during the two years preceding trial did the Mizrachis ever suggest that Doron had failed to perform by failing to sign supplemental documents. Id.

Id. at 211-12; RR-7, p. 70. Simha – not Doron – decided that if the settlement was enforced that these funds would then be disbursed to her; otherwise they would revert back to Doron and Zila as she originally intended. RR-7, p. 70-71.19 Moreover, the evidence is undisputed that Friedenberg’s handling of the shekels – with them going to Simha if the settlement goes forward or back to Doron and Zila if it does not – was done at Simha’s instance. RR-7, p. 70-71.20

The record did not conclusively establish Doron’s lack of performance. Rather, it contained more than a scintilla of evidence that Doron either performed or substantially complied with this obligation. Burtch v. Burtch, 972 S.W.2d 882, 889 (Tex.App. – Austin 1998, no pet.) (“The doctrine of substantial compliance excuses contractual deviations or deficiencies which do not severely impair the purpose underlying the contractual provision.”); Telles v. Vasconcelos, 417 S.W.2d 491, 494 (Tex.Civ.App. – El Paso 1967, writ ref’d n.r.e) (“In all domains of law, unless it is

19Appellees have nothing to complain about here, beginning and ending with the fact that this was Simha’s decision. Doron has disgorged himself of the shekels and put them out of his reach and into Simha’s, which is all the settlement required of him. If the settlement goes forward, as he desires, then the funds remain with Simha. They might stay idle in her lawyer’s trust or she might donate them all to charity. That Simha has agreed with this arrangement, though, gives Mike and Ofer no grounds whatsoever to complain.

20Appellees will undoubtedly point out that Friedenberg was also Doron’s lawyer in some unidentified capacity, RR-5, p. 211, but that is beside the point. The standard of review demands that the record be considered in a light most favorable to the non-movant, and there is more than a scintilla of evidence that i) Friedenberg represented Simha; ii) Doron delivered the shekels to Friedenberg in his capacity as Simha’s lawyer; and iii) Friedenberg is holding the shekels for Simha according to her specific instructions.

otherwise provided, either expressly or by necessary implication, a substantial compliance with the specified requirements is the legal equivalent of compliance.”), quoting Christy v. Williams, 292 S.W.2d 348, 352 (Tex.Civ.App. – Galveston 1956, writ dism’d).

Doron gave the cash in his safe directly to his mother and put the remainder in the hands of Simha’s attorney. RR-5, p. 210-11. The record therefore contains more than a scintilla of evidence that Doron substantially complied with this requirement. This therefore cannot have been a proper basis for a directed verdict.

Finally, the record contained more than a scintilla of evidence that Doron tendered performance with respect to the shekels. PX22. After all, on April 6, 2016, expressly told the Mizrachis’ lawyer that Doron and Zila had agreed to return the shekels to Simha and that they intended to do so.

v. Only Appellees had tax withholding obligations. Appellees also argued below that Doron had not complied with the settlement

because he “acknowledged that he has not made any tax withholdings or remitted any payments to the IRS related to Greentree, Glen Willow, and Pattaya.” Supp. CR 217-18. This represents yet another failure to view the record favorably to Doron or even through the lens of common sense. Not only was Doron never paid, but he was not even the payor. What did the Appellees expect him to withhold from a settlement payment he would not be making (and never even received)?

In fact, ¶ 5 did not require Doron to withhold taxes or make any payments. Rather, he passively agreed that taxes “will be withheld and remitted”, PX01, ¶ 5. Id. The common understanding of “withholding” means an amount deducted at the source of payment, meaning Appellees would hold back money from their gross payment to Doron and then send those funds to the IRS on his behalf. RR-4, p. 68-

69. But to divine from ¶ 5 an obligation for Doron reflects little more than a willful

disregard of the English language.21

The same argument applies as to ¶¶ 7 and 8, where Appellees promised to “pay Doron $592,000, less applicable withholding taxes”, using the “lowest required tax withholding” rate. Again, these paragraphs speak to the Mizrachis’ obligations, not Doron’s. RR-4, p. 70-71.

vi. Doron had no obligation to list or market the properties.

Appellees also argued below that Doron failed to perform because he, “as an owner, failed to take any action to list or market the properties owned by his companies.” Supp. CR 218. This, like their other arguments, was wrong on the record presented.

21Appellees’ argument is also nonsensical. They basically say that unless Doron affirmatively remitted withholding taxes to the government on money his brothers were obligated

– but refused – to disburse then he can never have any remedy for their breach. 36
First, nothing in the settlement agreement required Doron to take any such action. Second, both a fair reading of the settlement and witness testimony established that it was Mike and Ofer’s obligation to sell the properties. RR-4, p. 68-75. As to Aliana Cypress, the contractual obligation was explicit. PX01, ¶ 9. Third, Doron did take steps to have the properties sold. Specifically, he asked Mike for a report on Palermo by email dated March 1 because he wanted to know if Mike was following through with to sell the property (e.g., assessing the Cypress property’s condition, talking to the Aliana tenant about moving out, looking for a realtor for Palermo). PX02, p. 1; RR-5, p. 136. Mike then gave a lengthy status report on all the steps Mike was taking, leading Doron to ask what else was needed to finalize the agreement so they could put it all behind them. PX02, p. 6.

Simply put, nothing in the settlement agreement obligated Doron to do anything with respect to selling the real estate. This was simply an invented “obligation” that the Mizrachis spun out of thin air.

vii. Doron’s pleading amendment in lieu of dismissal does not constitute a failure to perform.

Appellees also argued that Doron failed to perform by not dismissing with prejudice within five days after Closing, despite his brothers’ failure to pay and earlier repudiation. Supp. CR 218.
First, Doron need only demonstrate that he tendered performance and PX24 contains more than a scintilla of proof that he did. On April 15, Fryar emailed

Jackson demanding that the initial payment (less withholdings, which Fryar calculated) be delivered by the close of business. If delivered, Fryar wrote, “I will file the dismissal with prejudice required by the settlement agreement.” PX24. That was more than a scintilla of evidence that Doron tendered performance.

Second, there is more than a scintilla of evidence that Doron substantially complied with the dismissal provision, which is performance enough. Burtch, 972 S.W.2d at 889. On April 15, 2016, Doron amended his pleading to dismiss all of his underlying claims. CR 46. He may not have done so with prejudice, but he eliminated all underlying claims and sued to have the Court enforce the agreement. Id.; RR-4, p. 82 (Fryar: “[W]ell, actually, I did dismiss the original claims, in that… I took the same lawsuit and we just got rid of the claims we settled …. The lawsuit

essentially started over on April 16, 201622 as a breach of contract.”). This was substantial compliance not just because Doron is suing to have the entire contract enforced, but because the Texas Supreme Court requires him to have done it this way. Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex. 1996). To hear the Mizrachis tell it, Doron should have dismissed the underlying case with prejudice and then filed a new and separate lawsuit. But Mantas required Doron to assert his breach of settlement claim by amendment in the original cause. Id. The effect on

22Fryar misspoke; he filed the amended pleading on April 15. CR 46.

Appellees is identical, which is why this constitutes substantial compliance. Burtch, 972 S.W.2d at 889 (substantial compliance excuses contractual deviations that do not severely impair the underlying contractual provision’s purpose).

Finally, at best for Appellees there would have been a fact issue about whether Doron’s supposed technical failure to have dismissed constituted a material breach at all, let alone one excusing Appellees’ contractual breaches. Since the settlement did not make time of the essence as to dismissal, it does not automatically follow that Doron’s failure – even to this date – would constitute a material breach. Proctor v. Quality Signs, Inc., 2017 WL 2871782, *4 (Tex.App. – Houston [1st Dist.] July 6, 2017, no pet.).

c. Appellees’ argument for claim forfeiture is really about failure of conditions precedent; however, none of their directed verdict grounds were ever pleaded.

As discussed above, Appellees misread the law by suggesting that Doron’s subsequent non-performance, if any, would entitle them to anything more than their own breach of contract claim. That might occur if there was a failure of a condition precedent, where the very right to maintain the action hinges on such performance. Lidawi v. Progressive County Mut. Ins. Co., 112 S.W.3d 725, 729 n.1 (Tex.App. – Houston [14th Dist.] 2003, no pet.). But procedurally, such arguments are restricted to those conditions precedent Appellees specifically denied in their pleading. Id.;

Trevino v. Allstate Ins. Co., 651 S.W.2d 8, 11 (Tex.App. – Dallas 1983, writ ref’d n.r.e.).
Appellees’ pleading, though, identified only three conditions precedent Doron supposedly failed to perform: failing to provide “documents and information necessary for preparation of the irrevocable trust, breaching his implied duty of cooperation, and attempting to influence Simha [to refuse] to establish an irrevocable trust.” CR 217. None were raised as grounds for a directed verdict, but these were the only ones supported by pleadings that could conceivably have elevated a performance failure by Doron into a claim forfeiture (if these were even conditions precedent, which they are not).

Rule 268 required Appellees’ motion to identify the specific grounds on which they sought a directed verdict. TEX. R. CIV. P. 268. While such a failure is not necessarily fatal if the trial court grants a directed verdict based on some other undisputed factual issue, the appellate courts cannot affirm on a basis on which the defendant did not specify and the trial court did not rule. Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 195-96 (Tex.App. – Houston [14th Dist.] 2002, no pet.). The point, though, is that none of the grounds actually asserted (and discussed above) could properly be invoked as failed conditions precedent that could outright deny Doron any remedy.

Further, even if Appellees’ arguments had been properly pleaded and raised, none of them are conditions precedent anyway. To make performance conditional, “a term such as ‘if’, ‘provided that’, ‘on condition that’, or some similar phrase of conditional language must normally be included.” Tabe v. Texas Inpatient Consultants, LLP, 2018 WL 3583359, *4 (Tex.App. – Houston [1st Dist.] July 26, 2018, no pet.) (quoting Criswell v. European Crossroads. Shopping Ctr., Ltd., 792 S.W.2d 945, 948 (Tex. 1990). No such language appears in the contract. In fact, none of the ‘obligations’ Appellees say Doron breached were even specifically stated in the agreement, let alone made expressly conditional. Absent express conditioning language, that means they could be promises or covenants, but not conditions. Id.

2. Doron produced more than a scintilla of evidence of damages. Appellees made two damage-related arguments below. First, they said Doron

suffered no damages because he still owns his interests in the LLCs and property listed in the settlement agreement. Supp. CR 218. Second, they said he failed to prove damages because he did not prove what his net recovery after taxes would be. CR 222. Though both arguments lack merit, Judge Palmer flatly declared “[t]here was no evidence of damages”, RR-7, p. 158, and granted the directed verdict. This erroneous decision should be reversed and this case remanded for retrial.

a. The Mizrachis’ refusal to take the LLC ownership they purchased did not establish absence of damage.

The Appellees’ damages argument rests on the fallacious assumption that, because they refused to perform the agreement, Doron still had his LLC ownership interests and thus had incurred no measurable loss. If that assumption was true, of course, buyers could freely repudiate their purchases without ever incurring liability. Fortunately, that is not the law.

It is well-settled in Texas that when a buyer breaches a contract of sale, the seller can elect one of three remedies: He can (1) treat the sale as complete, hold the goods for the benefit of the buyer, and sue for the contract price; (2) resell the goods to someone else and sue for the difference between the contract price and the actual sales price; or (3) keep the goods and sue for the difference between the contract price and the fair market value. Marion v. Bowers, 371 S.W.2d 575, 576 (Tex.Civ.App. – Amarillo 1963, no writ) (describing the rule as “well settled in this state”); Mulherin v. Brown, 289 S.W.2d 609, 611 (Tex.Civ.App. – Amarillo 1956, writ ref’d n.r.e.) (same); Clearview Louver Window Corp. v. Rubin Glass & Mirror Co., 284 S.W.2d 221, 224 (Tex.Civ.App. – Austin 1955, writ ref’d n.r.e.) (same).

This election applies to contracts for the sale of corporate stock. In Seagraves v. Wallace, 41 F.2d 679, 680 (5th Cir. 1930), as here, a buyer breached an agreement to buy stock. The seller, still possessing half the shares, sued for the balance due under the contract and tendered the certificates into the registry of the court. The

trial court entered judgment for the plaintiff and the Fifth Circuit, applying Texas

law, affirmed. The defendant contended the seller could recover only the difference

between the contract and market prices, but the Fifth Circuit found that contention:

not consistent with the rule which has been followed by this court and is in harmony with Texas decisions. If, at the time of the breach by the buyer in an executory contract for the sale of goods, the subject of the contract is in deliverable condition according to the terms of the contract, and the seller is able and willing to fully perform on his part, he may store or retain the property for the buyer and sue him for the entire purchase price….

Id. at 681.

In Smith v. Ratliff, 157 S.W.2d 945 (Tex.Civ.App. – San Antonio 1942, no

writ), similarly, the defendant breached a contract to acquire corporate stock by

refusing to pay and not accepting delivery. The plaintiff tendered the stock to the

court and sued for the purchase price. The trial court awarded the purchase price as

damages and ordered the stock delivered to the defendant. On appeal, the defendant

argued that the judgment was for specific performance, the plaintiff had not pleaded

for specific performance, and that the exclusive measure of damages was the

difference between the contract price and the market price. The court of appeals

rejected those arguments and affirmed the judgment. The court held that the seller

could elect any one of the three remedies discussed above, including: “The seller

may … hold the property for and at the risk of the buyer and recover the contract

price….” Id. at 145.

That is what happened here, except that LLC ownership typically does not take physical form. RR-4, p. 49. Doron has at all times considered the transaction complete, treated the contract as continuing, and insisted on compliance. That means he gets the cash his brothers promised to pay and they have (or get) the ownership they promised to take.23 If the Mizrachis claim Doron is suing to recover the contract price and still keep his LLC units, then they are simply being disingenuous. Doron is situated no differently than Masson, the prevailing plaintiff in Henry – he should recover for the defendants’ breach but still must give the Mizrachis what he promised in exchange for their cash. But unlike the situation in Henry, there is ample record evidence establishing that the promised property – the non-certificated ownership in Glen-Willow and Pattaya – already transferred to Appellees in April 2016. RR-4, p. 46-50; RR-5, p. 40, 202-03, 208-09.

The Rule 11 Agreement mentioned nothing about delivery of stock certificates. By contrast, the record here included more than a scintilla of evidence that the LLC ownership interests transferred simply by execution of the settlement and occurrence of the Closing. RR-4, p. 46-47 and 49-50. It was only the promised payments that never arrived. Id. Even if the ownership did not already transfer, under Texas law Doron would still be deemed to be “holding” the ownership –

23 As to the cash part of the settlement, this would be $549,333.33 for Glen Willow-Palermo; $1,184,000.00 for Pattaya; and $127,000.00 for Aliana Cypress.

however one “holds” an abstraction like that – “for and at the risk of the buyer.” Smith, 157 S.W.2d at 945.24

Finally, the contract itself, PX01, constitutes sufficient evidence of damages without any other testimony or evidence. This accords with the basic proposition that when a contract states a specific amount due to a party, a trial court errs as a matter of law in not awarding that amount to the plaintiff. CDB Software, Inc. v. Kroll, 992 S.W.2d 31, 37 (Tex.App. – Houston [1st Dist.] 1998, pet. denied) (where contract required payment of $250,000 and jury awarded damages of $1, trial court erred by not disregarding the jury and awarding the full $250,000).25

b. Doron had no obligation to prove damages net of taxes. Appellees’ other argument, made without any supporting caselaw, was that
Doron failed to show the amount of withholding taxes that would come out of the Glen Willow-Palermo and Pattaya payments. Having failed to present evidence of

24The record is also undisputed that Doron has at all times been willing to perform the settlement agreement. RR-5, p. 86-87. Thus, if Doron has not already transferred his ownership then it would be implicit in the remedy he seeks.

25Since “[u]ncontroverted questions of fact . . . need not be, and should not be, submitted to the jury for determination”, Bay Rock Operating Co. v. St. Paul Surplus Lines Ins. Co., 298 S.W.3d 216, 235 (Tex.App. – San Antonio 2009, pet. denied), Doron had actually anticipated seeking a directed verdict himself on the question of damages, at least for the contract amounts that were liquidated. See Transit Enterprises, Inc. v. Addicks Tire & Auto Supply, Inc., 725 S.W.2d 459, 462 (Tex.App. – Houston [1st Dist.] 1987, no pet.) (damages need not be submitted to jury where the amount is not disputed.). Since the contract here literally lists the prices for Doron’s LLC interests, Judge Palmer’s decision to grant a directed verdict against Doron was especially surprising.

“his net recovery . . . after taxes”, they argued, he had failed to prove any damages at all. Supp. CR 222. This argument also fails.

First, PX24 (which was admitted without objection)26 specifically laid out the amounts the Mizrachis needed to pay net of withholding taxes. It stated the maximum withholding rate for foreign investors, directed the Mizrachis to withhold $282,030 from the first payment, and demanded a net after-withholding payment of $267,303.33 by the close of business that day. Assuming that the jury would even be asked to award damages net of withholding taxes – which it would not, since neither taxes nor withholding are part of the legal measure of damages – the jury could have applied the 30% maximum withholding rate to the $592,000 payment that had been due by June 15, which was the only remaining settlement payment that contemplated any withholding. PX01, ¶ 7. This provided more than a scintilla of evidence on the tax issue Appellees complained about, so their factual sufficiency argument should have been rejected on that basis alone.

But as discussed above, a seller like Doron may elect to receive the actual contract price in exchange for his tender of the promised stock. That measure of damages does not include any offset for withholding taxes (if any), or for taxes actually owed (again, if any), so it is no accident that Appellees’ motion below

26RR-7, p. 129.

included no supporting authority. That some part of these payments might be withheld and remitted to the IRS (for the seller’s benefit and on his behalf), that the payor might have a contractual or legal obligation to engage in tax withholding, or that the payee might (or might not) ultimately owe some income taxes on the transaction, has absolutely nothing to do with whether the seller may recover the full price stated in the contract. Further, that something might be withheld from the gross amount as a prepayment of the seller’s potential taxes reduces neither the contract price nor his right in court to recover the full amount of that price.

Judgment debtors regularly withhold taxes when paying judgments, with the amounts withheld serving as a judgment credit. That was the issue in Cifuentes v. Costco Wholesale Corp., 238 Cal. App. 4th 65 (Cal. Ct. App. 2015). Following his termination, Cifuentes sued for breach of contract and won a judgment of $325,692.07, representing an award of past and future wages. Costco paid the judgment. However, it concluded that IRS regulations required income and FICA tax withholding from its payment to Cifuentes so it withheld more than $116,000 in payroll taxes and sent that to the government, disbursing the rest to Cifuentes. Costco told Cifuentes it considered the judgment satisfied. Cifuentes disagreed and claimed Costco should have paid him in full, issued a 1099, and allowed him to pay his taxes directly. Even after receiving a tax refund of nearly $70,000, Cifuentes claimed Costco still owed him nearly $24,000. Costco moved for an

acknowledgment of judgment satisfaction which the court of appeals agreed it was entitled to. This is a typical result.27

Doron’s point is ultimately threefold. First, the contractual withholding provisions might ultimately affect the net amount Doron will collect from Mike and Ofer, but they have nothing to do with the gross amount his brothers must pay (to him and to the IRS). If they agreed to pay $1.86 million (less withholdings) then that is what they should be required to pay, whereupon their post-judgment withholdings would be credited towards their judgment debt. Second, it is deeply cynical for them to argue that Doron could only recover his damages net of withholding taxes, an argument designed only to reduce their liability to pay fully for Doron’s stock.28 And third, Appellees seem to have conflated questions of tax withholding with ultimate taxability. See Josifovich v. Secure Computing Corp.,

27Noel v. N.Y. State Office of Mental Health Cent. N.Y. Psychiatric Ctr., 697 F.3d 209, 215 (2nd Cir. 2012) (holding former employer’s payment of back and front pay awards in judgment was payment of wages and obligation to withhold income and payroll taxes was implied in judgment); I.E.E. Int’l Elecs. & Eng’g, S.A. v. TK Holdings Inc., 2015 WL 4527809 (E.D. Mich., July 27, 2015) (holding “that a settlement agreement’s silence with regard to tax consequences leaves the paying party free to withhold taxes from its settlement payment in accordance with applicable law”); Int’l Union, United Automobile Aerospace & Agric. Workers v. Hydro Auto. Structures N. Am., Inc., 2015 WL 630457, at *2-4 (W.D. Mich., Feb. 12, 2015) (holding that a settlement agreement silent on issue of taxes is subject to any withholding required to comply with federal tax law); Crosby v. U.S. Postal Serv., 243 F.3d 560 (Fed. Cir. 2000) (taxes properly withheld from payments under a settlement agreement that provided for payments subject to “standard deductions”)

28This argument would be doubly-pernicious because Doron could be liable for taxes on the amount he does receive, yet his brothers will have escaped any obligation to pay that portion of the consideration that would have gone towards potential taxes.

2009 WL 2390611, *2 (D.N.J., July 31, 2009) (“whether the settlement proceeds are taxable, or whether they constitute gross income, is not before the Court. The sole issue presented . . . is whether any portion of the settlement proceeds is subject to employment withholding taxes.”). Even in Cifuentes, the judgment creditor ended up receiving nearly $70,000 of the withheld dollars back because, self-evidently, the amounts withheld substantially overpaid the taxes he actually owed. In the Mizrachis’ formulation, though, Doron’s courthouse recovery must be reduced by the amount of withholding, even if the IRS would ultimately return every last dollar to him as a tax refund. But if the Mizrachis are never held liable for those amounts, then Doron will have received less than he bargained for, which is inconsistent with the legal measure of damages.

Finally, and while not raised in their motion, the Mizrachis’ orally argued below that § 18.091 of the Civil Practice & Remedies Code applied here. RR-7, p.

138. It does not. That statute applies where a claimant sues for lost earnings, earning capacity, contributions of pecuniary value, or inheritance, none of which Doron sought here. TEX. CIV. PRAC. & REM. CODE § 18.091. Such damages generally arise in personal injury or inheritance matters, cases involving generally non-taxable recoveries. Consequently, this statute prevents “a plaintiff obtaining a windfall by being awarded pretax income on awards that are not subject to taxation.” Big Bird Tree Servs. v. Gallegos, 365 S.W.3d 173, 179 (Tex.App. – Dallas 2012, pet. denied).

But applying this approach to non-personal injury cases, such as claims for breach of contract, undermines the statute’s purpose, fails to make plaintiffs whole, and subjects them to double taxation. See C. Wilson & J. Busby, Charging the Jury in the Wake of HB 4, TEX. BAR. J. 276, 280 (April 2004). It therefore does not apply to a party seeking damages for breach of contract. Star Operations, Inc. v. Dig Tech, Inc., 2017 WL 3263352, *15 (Tex.App. – Austin, July 27, 2017, pet. denied) (applying § 18.091 to breach of contract claim “would require us to stretch the interpretation of Section 18.091 to fit a category of damages to which it seemingly was not intended to apply and in which there is no discernable potential for a plaintiff to obtain a windfall of tax-free damages.”).

3. Conclusion.

The Mizrachis’ demand for a direct verdict on grounds of performance were misplaced. Doron tendered performance, performed, or substantially performed his few contractual obligations. Appellees misread the law, moreover, by suggesting that any failure in performance effected a forfeiture of Doron’s claim. They certainly had not properly pleaded such failures of conditions precedent, not that any of the performance failures the Mizrachis have imagined would properly be described as such. Viewing the record in the light most favorable to Doron, a directed verdict should have been denied on these grounds. There was surely more than a scintilla of evidence that Doron tendered performance or performed.

As for damages, the Mizrachis’ arguments enjoy no legal support at all. A stock seller in Doron’s position may sue for the agreed-upon price. The record contained evidence of the agreed-upon price. That was more than a scintilla of proof of Doron’s damages. Further, the legal measure of damages does not contemplate a reduction for amounts that might be withheld and remitted to the IRS on the non-breaching party’s behalf. Judge Palmer erred to the extent she concluded otherwise.

This Court should reverse and remand for re-trial.

B. The Trial Court Erroneously Granted a Directed Verdict as to Doron’s Plea for Specific Performance.

The settlement agreement did not just require the Mizrachis to pay money for Doron’s LLC interests. It also required them to do various things, most notably to liquidate various real estate holdings, determine the appropriate amounts required to be withheld from their payments, and to indemnify Doron for various debts. Doron’s pleading specifically sought specific performance to compel the Mizrachis to liquidate the real estate and pay Doron his share.

In their motion for directed verdict, Appellees argued that the Court could not order specific performance related to Glen Willow-Palermo, Aliana Cypress, and Beacon Condos, because those entities were not parties to the settlement agreement or the lawsuit. Supp. CR 220. This was an argument they had never raised before and that appeared nowhere in their Rule 194 disclosures. RR-7, p. 173. Even so, at least a scintilla of evidence established that Mike Mizrachi controlled all three

entities. RR-7, p. 92-93. It also established that Doron had no active involvement running the businesses, whereas Mike and Ofer i) together managed the properties and ii) collectively owned a majority interest. RR-5, p. 93 (the brothers each owned 1/3, except for Aliana which the four siblings owned ¼ apiece). Finally, in stark contrast to the Mizrachis’ protestations of powerlessness, when Doron asked Mike on March 2, 2016, whether he had “put the houses, Palermo and the land on the market”, Mike quickly responded by describing all the steps he was taking to do so. PX02, p. 5-6.

Appellees’ eleventh-hour argument was ultimately misplaced because the record showed that all the LLCs’ owners executed (or, in the case of Zila and Aliana Cypress, assented to) the settlement agreement and, thus, participated in forming the agreement at issue here. It is well-established that “all shareholders acting in agreement, being all the beneficial owners of corporate property, may themselves deal with the property, so long as the rights of creditors are not prejudiced.” Martin v. Martin, Martin & Richards, Inc., 12 S.W.3d 120, 124 (Tex.App. – Dallas 1999, no pet.); Newman v. Toy, 926 S.W.2d 629, 631 (Tex.App. – Austin 1996, pet. denied). Mike and Doron therefore cannot now complain that the beneficial owners’ agreement to sell the properties should not be enforced, or that the trial court lacked power to enforce those promises.

This situation is similar to In re Estate of Trevino, 195 S.W.3d 223 (Tex.App.

– San Antonio 2006, no pet.) (en banc). There, Mary Cadena was Trevino’s sole beneficiary and executrix of his estate. Trevino owned 100% of a bar called Logan’s. Bond claimed Trevino sold him the bar under a handwritten agreement. Cadena hired Hailey to represent the estate to recover the bar, executing a court-approved 40% contingency-fee agreement. After substantial litigation, Bond relinquished Logan’s to Cadena. She and Hailey then began feuding, leading Hailey to claim breach of their agreement. Following trial, the probate court determined that Hailey owned 40% of Logan’s.

Hailey then claimed Cadena was mismanaging the business and demanded a receiver. The probate court appointed one and Cadena appealed. Among other things, Cadena argued that appointment of a receiver was improper because the company’s assets were held by Logan’s Bar, Inc., which was not a party to the proceeding. She also contended that since the corporation owned the business’ assets, Hailey had no interest in them and the receiver could not convey them. The

en banc court, relying on Martin, 12 S.W.3d at 124, rejected these arguments. In re Estate of Trevino, 195 S.W.3d at 230. Importantly, “[t]he corporation was not required to be a party to the bill of review proceeding because [it] was an action to construe the validity and effect of the contingency fee contract between Cadena, as independent executrix, and Hailey.” Id. at 231. This case, similarly, is an action to

enforce a contract between three individuals, who between them owned the relevant businesses. Just as the probate court in Trevino could appoint a receiver over Logan’s so, too, could the trial court here exercise its authority to compel the Mizrachis’ compliance with their contractual promises.

Below, Appellees’ lawyer rhetorically asked: “So how can one require [these LLC’s] to specifically perform when they are not a party to this lawsuit and they are not a party to the Rule 11 Agreement?”. RR-7, p. 138. The answer, quite simply, is that Doron has never asked this Court to require the LLCs to act. He asked below for specific performance, meaning the “exact performance of a contract in the specific form in which it was made.” Levetz v. Sutton, 404 S.W.3d 798, 805 (Tex.App. – Dallas 2013, no pet.). He wants his brothers to comply with the promises they made. In this case, specific performance would include an order requiring the sale of the referenced properties. As to Aliana Cypress, the promise to pay $127,000 or to sell the properties was made by Mike and Ofer, not any entity; certainly nothing restrains them from paying him the $127,000. As to the LLCs, there is more than a scintilla of evidence that 100% of the LLCs’ beneficial owners agreed that the properties should be sold, thus vesting this Court with all necessary authority over the parties to accomplish these promises. If the Mizrachis intransigently refuse to act, specific performance may compel whatever acts are impliedly required to bring compliance about. After all, the Supreme Court in

Danciger Oil, 154 S.W.2d at 635, explained that implied covenants will be inferred from the presumed intentions expressed in the contract and must appear so clearly within the parties’ contemplation that they deemed it unnecessary to express it, or it must appear necessary to infer such a covenant to effectuate the full purpose of the contract. All beneficial owners of the LLCs having agreed that the properties would be sold and the proceeds split, this must imply an obligation that Mike and Ofer (and Doron, if necessary) would take whatever further steps – whether in an individual or corporate capacity – were necessary to bring that about. Otherwise the parties’ agreements about properties their businesses owned would be nonsense.

Appellees’ argument is simply a dodge. They had complete control over the businesses, meaning that they could sell the properties whenever they wanted. They understood their obligation to sell and started taking steps towards compliance in March 2016. The trial court should have disregarded Appellees’ feigned protestations of powerlessness and denied their request for a directed verdict.29

29Relatedly, Appellees essentially argue that specific performance is impossible here because the corporate owners of the properties – as distinguished from the two individual litigants who effectively control the corporate owners – are neither parties to the settlement nor this litigation. But in a specific performance case impossibility of performance is not an available defense for a party who, by his own voluntary act, created the impossibility. Stafford v. Southern Vanity Magazine, Inc., 231 S.W.3d 530, 537 (Tex.App. – Dallas 2007, pet. denied). Simply put, the sales here were “impossible” only because Mike and Ofer have refused to act.

C. Judge Palmer Erroneously Denied A Trial Amendment.

After Judge Palmer first indicated she would short-circuit trial by denying a damage remedy, Doron noted that he also sought specific performance. Judge Palmer said the trial would proceed. Appellees then objected that Doron had pleaded specific performance only as to selling the real estate. Doron immediately asked for a trial amendment seeking specific performance as to the other contractual promises. RR-7, p. 165. Judge Palmer said that she was granting a directed verdict as to the promises to sell real estate but allowed leave to amend to demand specific performance as to the promises to acquire Doron’s ownership interests. RR-7, p.

181. Appellees then objected that “[y]ou cannot get specific performance on the payment obligation”. Id. at 182. After a short break, Judge Palmer returned and granted a directed verdict in its entirety, refusing leave to file any amendment. Id.
at 184. This was error.

If this Court affirms the trial court’s conclusion that there was no evidence of damages, then Doron should be permitted the alternative remedy of specific performance, and this Court should reverse the trial court’s refusal to permit a trial amendment allowing Doron to assert a claim of specific performance as to the sale of interests in Glen Willow, Pattaya, and Aliana Cypress.

A trial court lacks discretion to refuse a trial amendment unless 1) the opposing party presents evidence of surprise or prejudice or 2) the amendment is

objected to and asserts a new cause of action or defense and is thus prejudicial on its face. Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76, 91 (Tex.App. – Houston [1st Dist.] 2003, no pet.). An amendment is mandatory, though, if it is merely procedural. Id.

The Mizrachis presented no evidence of surprise or prejudice30, and nor could they have. Doron has all along been suing to enforce the settlement. His proposed trial amendment was merely procedural, seeking an alternative remedy without adding any new claim. Stafford, 231 S.W.3d at 535 (specific performance “is not a separate cause of action, but rather it is an equitable remedy”).

If the Mizrachis contend that specific performance could never compel compliance with a promise to buy stock, they are just wrong. Stafford, 231 S.W.3d at 535-36 (party may seek specific performance to enforce a stock purchase agreement); Miga v. Jensen, 96 S.W.3d 207, 217 (Tex. 2002) (stock purchase agreement could be enforced by specific performance where corporation’s stock had no ascertainable market value); Bendalin v. Delgado, 406 S.W.2d 897 (Tex. 1966) (even where parties did not agree on price, agreement to sell stock could be enforced by specific performance). These cases are particularly resonant given that Doron and Mike went into a room, came up with prices for closely-held LLCs, and even

30The standard requires actual evidence, not just protestations by counsel. Lyon v. Building Galveston, Inc., 2017 WL 4545831, *10 (Tex.App. – Houston [1st Dist.], Oct. 12, 2017, pet. filed).

afterwards Mike claimed (in the March 7 phone call) that he and Ofer were paying $300,000 too much. PX08, p. 3. It does not actually matter what the ownership is worth; Texas courts possess authority to enforce these promises.
Judge Palmer’s refusal to permit an amendment constituted an abuse of discretion and effectively denied Doron any remedy for his brothers’ unambiguous breach of contract. This Court should therefore reverse and remand with instructions to allow Doron to amend his pleadings to seek specific performance compelling the Mizrachi’s to perform all of their obligations under the settlement.

CONCLUSION AND PRAYER

Judge Palmer erred by terminating trial at the close of Doron’s case. The evidence of breach was overwhelming and the damages were largely liquidated: $549,333.33 for Doron’s interest in Glen Willow-Palermo; $1,184,000 for Pattaya; and $127,000 for Aliana Cypress. Based on the law set forth above, Doron was entitled to elect to receive these payments in exchange for the interests he promised his brothers. While that might ultimately not have been an issue for the jury, there was no legal basis to terminate his case.
Accordingly, this Court should reverse and remand for re-trial. Upon remand, the trial court should be given clear instructions about the contract remedies to which Doron is entitled, including instructions confirming the it equitable authority to require the parties to perform the contract. To the extent necessary, the trial court

should be instructed to allow the trial amendment (to compel compliance with the

settlement in full) that it permitted and then denied.

Respectfully submitted,

DOW GOLUB REMELS & GILBREATH,
PLLC

By: /s/ Andrew S. Golub

Andrew S. Golub
State Bar No. 08114950
asgolub@dowgolub.com
Moira Chapman
State Bar No. 24092246
2700 Post Oak Blvd., Suite 1750
Houston, Texas 77056

Telephone: (713) 526-3700
Telecopier: (713) 526-3750

ATTORNEYS FOR APPELLANT
DORON ALMOG

OF COUNSEL:

F. Eric Fryar
State Bar No. 07495770
eric@fryarlawfirm.com
Cristina D. Richardson

State Bar No. 24070495
crichardson@fryarlawfirm.com
The Fryar Law Firm
912 Prairie Street, Suite 100
Houston, Texas 77002
Telephone: (281) 715-6396
Telecopier: (281) 605-1888

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DORON ALMOG VS. GREENTREE APTS, LLC appellants brief