Preview
nS
oO ® e
ORIGINAL hy
CAUSE NO. DC-10-16833-A M tp &p
64 /
DARRELL W. COOK, P.C. D/B/A § INTHEDISTR URTY 5,
DARRELL W. COOK & § Son, G9
ASSOCIATES, A PROFESSIONAL §
CORPORATION § 4
Plaintiff, NQ
ainti: 5 Loy,
v. § 14".4 JUDICIAL DISTRICT
§
THOMAS J. LEKSAN, §
Defendant. § DALLAS COUNTY, TEXAS
PLAINTIFF’S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY
JUDGMENT.
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, DARRELL W. COOK, P.C. D/B/A DARRELL W. COOK &
ASSOCIATES, A PROFESSIONAL CORPORATION, Plaintiff, and files this its
Motion for Traditional and Partial Summary Judgment under Texas Rule of Civil
Procedure 166a and moves for summary judgment against Defendant THOMAS J.
LEKSAN and in support of the motion would respectfully show this Court as follows:
I.
PRELIMINARY STATEMENT
The Court should grant this Motion for Traditional and Partial Summary
Judgment because there is no genuine issue of material fact regarding the debt owed by
Defendant, and because there is no evidence supporting any defensive theory advanced
by Defendant.
PLAINTIFF'S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT.
PAGE 10F 10IL.
INTRODUCTION
1. This cause was filed based upon the breach of the personal guaranty executed by
Defendant THOMAS J. LEKSAN (hereinafter “Defendant” or “LEKSAN”),
guaranteeing the payment of any and all professional services provided to Ron
Tripodo [hereinafter “Tripodo”) by Plaintiff DARRELL W. COOK, P.C. D/B/A
DARRELL W. COOK & ASSOCIATES, A PROFESSIONAL CORPORATION
(hereinafter “Plaintiff” or “DWCA”). LEKSAN was served with a demand letter
on September 9, 2010, to which LEKSAN never responded. See Demand Letter
dated September 9, 2010 attached hereto and incorporated herein by reference as
Exhibit 7. LEKSAN was served with citation and a copy of Plaintiff's Original
Petition on January 17, 2011, and he filed Defendant's Original Answer on or
about February 7, 2011 generally denying all claims asserted by Plaintiff. The
summary judgment evidence supports a finding that LEKSAN owes Plaintiff the
debt that forms the basis of this lawsuit, and that there are no genuine issues of
material fact for each and every element of Plaintiff's claims against LEKSAN.
Therefore, summary judgment should be GRANTED as a matter of law.
Ml.
SUMMARY JUDGMENT EVIDENCE
2. Pursuant to Tex. R. Civ. Proc. 166a(d), the summary judgment evidence upon
which this Motion relies is attached hereto and fully incorporated herein by
reference. The exhibits are as follows:
a. Exhibit 1: Fee Agreement dated February 12, 2010
PLAINTIFF’S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT
PAGE 20F 10b. Exhibit 2: Excel Spreadsheet Breakdown of Tripodo Account
c. Exhibit 3: Copies of All Outstanding Invoices
d. Exhibit 4: Copy of Personal Guarantee dated February 12, 2010
e. Exhibit 5: Affidavit of Darrell W. Cook
f. Exhibit 6: Atiorney’s Fees Affidavit of Darrell W. Cook
g. Exhibit 7: Demand Letter dated September 9, 2010
Iv.
ARGUMENTS & AUTHORITIES FOR SUMMARY JUDGMENT
AS TO PLAINTIFF’S CAUSES OF ACTION
3. The purpose of the summmary-judgment procedure is to permit the trial to promptly
dispose of cases that involved unmeritorious claims or untenable defenses. See
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n.5 (Tex.
1979).
4. Plaintiffs Motion embraces Plaintiff's cause of action for breach of contract
stated in the pleadings against LEKSAN. There is no genuine issue as to any
material fact regarding each and every element of the Plaintiff's cause of action,
and DWCA is entitled to a judgment as a matter of law.
5. Pursuant to Texas Rule of Civil Procedure 166a(c), a motion for summary
judgment shall be granted if the pleadings and summary judgment evidence show
that there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Tex. R. Civ. Proc. 166a(c); Black v. Victoria Lloyds
Ins, Co., 797 §.W.2d 20, 23 (Tex. 1990). If a movant’s motion and summary
judgment proof facially establish a right to judgment as a matter of law, the
burden shifts to the non-movant to raise a material fact issue sufficient to defeat
PLAINTIFF'S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT
PAGE 30F 10fa)
summary judgment. HBO, A Div. of Time Earner Entertainment Co., L.P. vy.
Harrison, 983 S.W.2d 31, 35 (Tex. App—Houston tia" Dist.] 1998, no pet.). In
the absence of establishing a fact issue, the movant is entitled to summary
judgment as a matter of law.
Vv.
Breach of Personal Guaranty
DWCA is entitled to summary judgment because DWCA can prove each element
of its claim for breach of contract as a matter of law. To carry its burden, Plaintiff
must prove ail elements of its cause of action for breach of contract, which are as
follows:
a. there is a valid enforceable contract;
b. the Plaintiff has standing to sue for breach of contract;
c. the Plaintiff performed, tendered performance, or was excused
from performing its contractual obligations;
d. the Defendant breached the contract; and
e. the Defendants’ breach caused the Plaintiff injury.
See McLaughlin, Inc, v. Northstar Drilling Techs., 138 S.W.3d 24, 27 (Tex.
App—San Antonio 2004, no pet.); Zuniga v. Wooster Ladder Co., 119 S.W.3d
856, 862 (Tex. App.—San Antonio2003, no pet.).
There is a valid enforceable contract.
. There is a valid enforceable contract between DWCA and LEKSAN, whereby
LEKSAN “contract{ed] and guarante[ed] to DARRELL W. COOK &
ASSOCIATES, the faithful payment, when due, of all accounts of said Client
PLAINTIFF'S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT
Pace 40F 10(©)
[RON TRIPODO, TRICON/TOWERWERKS, INC. AND ROPA PROPERTIES,
LLC] See Exhibit 4. The guarantee specifically provided that LEKSAN “waives
all notice of acceptance of this guarantee, notice of extension of credit to Client
[Tripodo], presentment, and demand for payment on Client [Tripodo], protest and
notice to undersigned guarantor of default or dishonor by Client [Tripodo],
extension of time of payment to applicant, acceptance of partial payment or
partial compromise, and all other notices to which the undersigned guarantor
might otherwise be entitled and demand for payment under this guarantee.” /d.
The contract further provided that DWCA relied upon and “would not accept the
representation that is the subject of this fee contract but for the guarantee” /d.
(b) The Plaintiff has standing to sue for breach of contract.
8. DWCA has standing to sue for breach of contract because it is an orginal party to
the contract beween Tripodo and DWCA, under which payment for legal services
was guaranteed by LEKSAN under an executed personal guaranty. See Exhibit |:
See also Exhibit 4; see also Exhibit 5, § 8. LEKSAN executed the contract
individually, and faxed a copy of the executed guarantee to DWCA on February
15, 2010. See Exhibit 4.
The Plaintiff performed, tendered performance, or was excused from
performing its contractual obligations.
9. DWCA performed its contractual obligations by providing the professional
services described in the invoices attached hereto and incorporated herein by
reference as Exhibit 3. See also Exhibit 5,9. The professional services that
DWCA provided in accordance with the fee agreement attached hereto as Exhibit
PLAINTIFF’S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT
PAGE SOF 10(d)
(e)
I include, but are not limited to “professional services related to the cause of
action filed in the 95"" Judicial District Court against Clients [Tripodo].” See
Exhibit 1; see also Exhibit 3; see also Exhibit 5, | 9. DWCA performed these
actions in full satisfaction of the terms of the Fee Agreement contract, and
presented invoices to Tripodo. See Exhibit 3; see also Exhibit 5, 9.
LEKSAN’S breach of the Personal Guaranty.
. Despite repeated requests, Tripodo failed to remit payment for professional
services rendered in accordance with the terms of the Fee Agreement he entered
into with DWCA. DWCA sent demand for payment on the Tripodo account to
LEKSAN in accordance with the terms of the personal guarantee to which
LEKSAN agreed. See Exhibit 4; see also Exhibit 5, {10 - { 12; see also Exhibit
7. Despite repeated requests, LEKSAN has refused and continues to refuse to
remit payment to DWCA for the debts and obligations that are rightfully owed to
DWCA under the terms of the fee agreement and personal guaranty. See Exhibit
5,4 12.
LEKSAN’S breach caused DWCA injury.
. LEKSAN’s breach of the personal guaranty caused DWCA damages totaling
thirteen thousand two hundred twenty-nine dollars and eighty-six cents
($13,229.86). See Exhibit 2; see also Exhibit 3; see also Exhibit 5, 11. The
total amount of money due DWCA for professional services rendered and under
the terms of the fee agreement is thirteen thousand two hundred twenty-nine
dollars and eighty-six cents ($13,229.86). See Exhibit 2: see also Exhibit 3; see
also Exhibit 5, 4] 11.
PLAINTIFE’S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT
PAGE 6 OF 1012. Because DWCA offered undisputed summary judgment proof on each of the five
elements necessary to establish a claim for breach of contract, there is no genuine
issue as to any material fact and Plaintiff is entitled to summary judgment as a
matter of law.
Vi.
ALTERNATIVE PARTIAL SUMMARY JUDGMENT
13. 1f summary judgment for Plaintiff is not rendered on the entire cause or for all
relief requested, and if a trial is necessary on some of the issues in this cause,
Plaintiff requests the court, after examining the pleadings and summary judgment
evidence before it and after interrogating counsel to ascertain those material facts
that are in good faith actually controverted, to make and/or specify those facts that
appear to be without substantial controversy and directing such further
proceedings in the action as are just.
Vil.
Attorney’s Fees
14. As shown by Plaintiff's Original Petition on file in this cause, Plaintiff has plead
for attorney’s fees in a reasonable amount as provided by § 38.001 Tex. Civ.
Prac. & REM. CODE. Plaintiff presented its claims asserted in this suit to the
Defendant and payment for the just amount was not tendered. See Exhibit 6.
Plaintiff was required to engage the services of counsel to represent his interests
in the above-styled case and has agreed to pay reasonable and necessary
attorney’s fees in that regard. See Exhibit 5, { 13. A reasonable fee for the
attorney’s services rendered and to be rendered is at least two thousand five
PLAINTIFE’S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT
PAGE 70F 10hundred dollars ($2,500.00). See Exhibit 6, § 5. There is no genuine issue of
material fact about the basis for recovery of attorneys’ fees in this cause or about
the amount thereof. As a matter of law, Movant is entitled to recover attorney's
fees as alleged in Plaintiffs Original Petition on file and as evidenced by the
Affidavit of Jeffrey W. Martin attached hereto as Exhibit 6.
VIL.
PRAYER
WHEREFORE, Plaintiff DARRELL W. COOK, P.C. D/B/A DARRELL W.
COOK & ASSOCIATES, A PROFESSIONAL CORPORATION requests that this
matter be set for hearing, with notice to Defendant THOMAS J. LEKSAN, and that on
the completion of the hearing the Court grant Plaintiff's Motion for Traditional and
Partial Summary Judgment, and that Plaintiff DARRELL W. COOK, P.C. D/B/A
DARRELL W. COOK & ASSOCIATES, PROFESSIONAL CORPORATION be
entitled to the following:
1.
we
The amount of thirteen thousand two hundred twenty-nine dollars and
eighty-six cents ($13,229.86) as the principal amount due on Plaintiff's
theory of breach of personal guaranty;
Pre-judgment interest of 6.00% per annum;
Post-judgment interest at the rate per annum as published by the Texas
Office of Consumer Credit Commission at the time of Judgment;
Reasonable attorney's fee totaling three thousand five hundred
($3,500.00);
All costs of court;
PLAINTIFFS MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT
PAGE 8 OF 106. Five thousand dollars ($5,000.00) as attorney's fees in the event this
judgment is appealed to the Texas Court of Appeals;
7. Five thousand dollars ($5,000.00) as attorney's fees in the event a writ of
error is filed with the Texas Supreme Court in this case;
8. Five thousand dollars ($5,000.00) as attorney's fees in the event writ of
error is granted by the Texas Supreme Court in this case; and
9. Such other and further relief, special or general, legal or equitable, as
Plaintiff may be shown to be justly entitled to receive.
Respectfully Submitted,
DARRELL W. COOK & ASSOCIATES,
A PROFESSIONAL CORPO
f(ARRELL W, COOK.
State Bar No. 00787279
JEFFREY W. MARTIN
State Bar No. 24052274
One Meadows Building
5005 Greenville Ave., Suite 200
Dallas, TX 75206
(214) 368-4686
(214) 363-9979 Telecopy
ATTORNEYS FOR PLAINTIFF
PLAINTIFF’S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT
PAGE 9OFIOCERTIFICATE OF SERVICE
I herby certify that on the 20" day of April, 2011 all parties of record were served
with the foregoing in accordance with the Texas Rules of Civil Procedure.
Vid CERTIFIED MAIL NO. 7010 1870 0002 1653 9367
RETURN RECEIPT REQUESTED
ViA First CLASS MAIL
AND VIA FACSIMILE (214) 749-6100
HERMES SARGENT BATES, LLP
Daniel D. Tostrud
Angela M. Hough
901 Main Street, Suite 5200
Dallas, TX 75202
JEF ART!
PLAINTIFFS MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT
PAGE 100F 10EXHIBIT 1
EXHIBIT 1Darrel. W. COOK
KELLY E. BRYAN
STEPHEN W. Davis.
CATHERINE A. KEITH
TOM MELTON
OF COUNSEL,
DARRELL W. COOK & ASSOCIATES
A PROFESSIONAL CORPORATION
SOO5 GREENVILLE AVENUE, Suite 200
DALLAS, TEXAS 75206
TELEPHONE: (214) 368-4686.
TELECOPY: (214) 363-9979
WWW. ATIORNEYCOOK.COM
February 12, 2010
Ron Tripodo
c/o Thomas D, Sherman
Locke Lord
1900 The Proscenium
1170 Peachtree Street NE
Atlanta, GA 30309
Re: Fee Agreement for professional services related to cause of action
filed in 95" Judicial District Court against Clients.
Client: Ron Tripodo, Tricon/Towerwerks, Inc. and ROPA Properties,
LLC.
Gentlemen:
[am writing to confirm that the above-referenced parties (hereinafter referred to
as “You” or “Client”) have retained this law firm for representation in regard to the
above-referenced matter. This letter confirms that the only attorney-client relationship is
between the Firm and You, and that there are no third-party beneficiaries to this
contrucl or to the attorney-client relationship. You further confirm that neither You nor
any of your agents are acting as a fiduciary in connection with any portion of the
engagement of this Firm.
We will at all times act on your behalf to the best of our ability. Any
expressions on our part concerning the outcome of your legal matters are expressions of
our best professional judgment, but are not guarantees. These opinions are necessarily
limited by our knowledge of the facts and are based solely on the state of the law at the
time they are expressed,
Our evaluations are necessarily based upon the facts as told to us. However, in
any matter you can expect the unexpected, By way of example and not as an exhaustive
list, the following events frequently occur during our representation of clients like You:
Witnesses may testify differently than in previous depositions or statements, recall may
become hazy, witmesses may choose to lie rather than tell the truth, important evidence
may be concesled, witnesses may tell the truth in such a way that it appears to be a lie,
the decision maker may choose to believe a witness for a variety of reasons that defy
logical explanation, and the decision maker may decide against you for reasons that doRon Tripodo
c/o Thomas D. Sherman
February 12, 2010
Page 2
hot relate to the law or the facts but which never become public to the point of being
able to do anything about them.
In addition to these risks, our analysis of the law may not be accepted by the
administrative decision maker or the court; and the court may permit testimony or give
instructions to the jury that we think now wil not be permitted. These legal decisions
may be decided against you in an administrative procedure, in the trial court or on
appeal; and it is also possible that an appellate court, although agreeing with our
position, would decline to overrule an erroneous trial court judgment because it feels we
did not object hard enough or long enough or with the right words.
In addition to all these hazards, a trial will cost you considerable attorneys’ fees.
Our fee arrangement for legal services in this case will be based on hourly rates in effect
for each lawyer and legal assistant at the time the services are rendered. The current
hourly rate for the attorneys in our firm range between $195.00 and $315.00 per hour.
Hourly rates are reviewed periodically and you will be advised of any adjustment before
it is adopted. We also require a retainer to be deposited into our trust account and to be
withdrawn and applied against fees and expenses as they are incurred. Additional
expenses and fees will probably be incurred if the case progresses beyond the initial
filing stages and additional deposits will be required.
Further, you are required to maintain a retainer balance of $5,000.00 each month
and to replenish the retainer each month as necessary.
We have agreed that you will deposit a retainer of $10,000.00 on the following
schedule:
$1,500.00 on February 12, 2010.
$3,500.00 on February 26, 2010.
$5,000.00 on April 12, 2010.
Additonally, Mr. Tom Leksan has agreed to act as guarantor of all sums due
under this contract and but for such guaranty, the Firm would not enter into this
agreement.
You are further informed that while your retainer may collect some interest
while a deposit, the Texas Supreme Court has ordered that such interest is forfeited to
the Equal Access to Justice Foundation. If you have any questions about this process, or
object to your interest being used for this purpose, please let me know and I will attempt
to address your concerns.
InitialsRon Tripodo
c/o Thomas D. Sherman
February 12, 2010
Page 3
In the event we are attempting to secure a recovery of damages on your behalf,
be advised that we will attempt to secure a recovery sufficient to include your damages
and attorney fees. But you are advised that the Client routinely must pay his own
attomey, even when the law permits the prevailing claimant to recover attorney fees
incurred by the client. Of course, even were we to successfully secure a judgment in
your favor, that is no guarantee that you will actually collect any of the damages or
other sums, and unless the Defendants have insurance or assets subject to execution and
sale by the Sheriff, the judgment will not be collectible.
You will also be responsible for the payment of expenses as they are incurred.
Expenses you can expect in a case of this type include filing fees, sheriff fees; witness
fees and deposition costs, if any are needed. It is our usual practice to send to our clients
for direct payment the invoices we receive from third parties such as court reporters,
expert witnesses, and reproduction services. You will be expected to, pay such invoices
promptly upon receipt. We will invoice you on a monthly basis for all expenses and fees
incurred by us on your behalf.
If you believe the expenses are mounting too rapidly, please contact us
immediately so we can assist you in evaluating how they might be curtailed in the
future. When we do not hear from you, we assume that you approve of the overall! level
of activity on our part in this case on your behalf.
Frequently, clients request that we provide them estimates as to fees and
expenses. It must be understood that such estimates are just that, and that the fees and
expenses required are ultimately a function of many conditions over which we have little
or no control, particularly the extent to which the opposition files pretrial motions and
engages in its own discovery.
Our hourly rates do not include any interest factor for slow payment. Because of
this and the additional fact that we do not include a service charge for late payments, we
must insist that our clients pay their bills promptly. If we become insecure in our belief
that you can meet your financial obligations to the Firm, we will typically discuss that
concern with You but you are hereby advised that the Firm will withdraw from this
representation if you cannot provide acceptable assurances, most likely in the form of
ongoing retainers, for us to continue.
We reserve the right to request an additional retainer in the event significant
events in the life of this representation are scheduled. For instance, if trial is scheduled or
a significant amount of discovery must be conducted, you can expect that we will request
an additional retainer before we expend significant effort on your behalf.Ron Tripoda
c/o Thomas D, Sherman
February 12, 2010
Page 4
Nothing in this agreement shall be construed to require the Firm to act as Your
appellate counsel in this matter and we reserve the right to withdraw if the matter is
appealed.
While we anticipate an amicable and productive working relationship, we support
the rules of professional conduct promulgated by the State Bar of Texas which seck to
inform every citizen of their rights to complain of attorney misconduct, and of the
procedures to follow in filing such a complaint. The State Bar of Texas investigates and
prosecutes attomeys for professional misconduct, Although not every complaint against
or dispute with a lawyer involves professional conduct, the State Bar of General Counsel
will assist citizens in providing information about the filing of complaints. Their toll free
number is 1-800-932-1900,
All client-supplied materials and all attorney end product (collectively “client
materials”) are the property of the Client. Examples of attorney end product are
documents filed with the court or served on any party or correspondence of any type.
Everything else is attorney work product.
Attorney work product is the property of the Firm. Examples include photocopies
of client materials, as well as drafts, notes, interna! memoranda, administration materials
and any other type of attorney work product.
Client has an affirmative duty to retrieve those client materials not previously
forwarded to Client during the course of this representation or to direct the Firm to
forward the client materials at Client’s expense. The Firm may retain copies of all such
documents as well as all other material.
lf Client fails to retrieve the client materials or request the Firm to forward them,
this failure shall be regarded as Client’s authorization for the Firm to destroy the client
materials without further notice to the Client,
The Firm may destroy any of Client’s files at any time with Client’s written
authorization and in any event, after five years from the conclusion of the representation.
During that five year period, the Firm shall make such files available to the Client for
copying. No further notice to Client wil! be required prior to destruction.
Further, in the event the Client has not paid its account in full, Client hereby
agrees that it has no right to access those documents that are attorney work product.
At all times the Client is to keep the Firm apprised of its current address, relevant
phone numbers, and email addresses. The Client is responsible for communicating with
the Firm and responding to inquiries from the Firm in a timely manner. Failure to do so
may place the ends of the representation in jeopardy and lead to the Firm’s withdrawal.
ss
InitialsRon Tripodo
«fo Thomas D. Sherman
February 12, 2010
Page 5
The billing sent by the Firm to the Client is normally a detailed accounting of
time spent on the Client's behalf by the Firm and contains a significant amount of
information that is protected by the attorney-client privilege, Therefore, bills sent by the
Firm to the Client must not be shown to non-Client third parties without the consent of
the Firm, as such disclosure might be considered a waiver of the attorney-client privilege
and may lead to severe consequences to both the Client and the Firm.
The attorney-client relationship will be considered ended upon the Firm’s
completion of the specific seryices that you have retained us to perform.
Any controversy or claim between the parties arising out of or relating to this
Contract, any provision of it, or any breach or alleged breach of it that cannot be resolved
by the parties through negotiation will be settled by arbitration according to the rules of
the American Arbitration Association, and judgment on the award rendered by the
arbitrators may be entered in any court having jurisdiction of the award.
In the event that we withdraw as your attorney or if the matter concludes and a fee
is due and unpaid, Client hereby grants Darrell W. Cook & Associates a lien on this cause
of action, and a lien on any proceeds and any judgments recovered in connection with
this cause of action as security for the payment of attorney's fees and expenses as
contracted herein.
In the event you decide to pay any portion of the fees due in this matter with a
credit card, you agree to pay the costs of the credit card transaction charged by your
eredit card, which is approximately 3% of the gross amount of the transaction.
Finally, you agree to be truthful with the Firm in all matters.
Please contact me if you have any questions as to our working arrangement as
reflected by this letter. If after reading this letter you understand and agree with its
provisions, please indicate your approval by placing your signature on the line provided
below on both the original and the copy. You may retain the copy for your reference.
Please return the original to our office with your check for the deposit.
——
InitialsRon Tripodo
c/o Thomas D. Sherman
February 12, 2010
Page 6
Uniil such time as the Firm receives both this signed Fee Agreement AND the
_ vequested retainer, no representation of you on this matter has commenced.
Sincerely,
DARRELL W. COOK & ASSOCIATES,
A PROFESSIONAL CORPORATION
/s} DWCook
DARRELL W. COOK
dweook@attomeycook.com
DWC/we
APPROVED, AGREED, AND ACCEPTED:
Se
Ron Tripod, Individually and on behalf of Tricon/Towerwerks, Inc. and ROPA
Properties, LLC.
Se
InitialsRon Tripods
c/o Thomas D. Shennan
February 12, 2010
Page 7
PERSONAL GUARANTEE OF THOMAS LEKSAN
In consideration of credit being extended by DARRELL W. COOK & ASSOCIATES to
RON TRIPODO, TRICON/TOWERWERKS, INC. AND ROPA PROPERTIES, LLC
(aggregately known as “Ctient”) for Legal Services and expenses to be supplied,
THOMAS LEKSAN, the undersigned guarantor, hereby contracts and guarantees to
DARRELL W. COOK & ASSOCIATES the faithful payment, when due, of all accounts
of said Client The undersigned expressly waives all notice of acceptance of this
guarantee, notice of extension of credit to Client, presentment, and demand for payment
on Client, protest and notice to undersigned guarantor of dishonor or default by Client,
extension of time of payment to applicant, acceptance of partial payment or partial
compromise, all other notices to which the undersigned guarantor might otherwise be
entitled and demand for payment under this guarantee. Any revocation of this guarantee
shall be in writing and delivered to DARRELL W. COOK & ASSOCIATES. THOMAS
LEKSAN hereby acknowledges that DARRELL W. COOK & ASSOCIATES would not
accept the representation that is the subject of this fee contract but for his guaranty.
THOMAS LEKSAN, Guarantor
InitialsEXHIBIT 2 |
EXHIBIT 2Tripodo
Property Inv Date Invoice # Inv amt
American Communications 07/01/10 30669 $10,174.00
American Communications 08/01/10 30891 $2,922.50
American Communications 09/01/10 31091 $133.36
Total Balance Owed $13,229.86
TotalEXHIBIT 3DARRELL W. CooK & ASSOCIATES
A PROFESSIONAL CORPORATION - FEIN: 75-2906482
ONE MEADOWS BUILDING
5005 GREENVILLE AVE., SUITE 200
DALLAS, TX 75206
TELEPHONE: 214-368-4686
FACSIMILE: 214-363-9979
Ron Tripodo
Tricon/Towerworks Inc. & Properties, LLC
1171 Bridgemill Ave
Canton GA 30114
July 04, 2010
Invoice #: 30669
in Reference To: American Communications LLC
Professional Services
Hrs/Rate Amount
6/1/2010 KEB Continue drafting response to application for temporary 1.50 382.50
restraining order. 255.00/hr
DWC 0.10 31.50
315,00/hr
KG Scan and save Application for Temporary Restraining Order and 0.10 3.00
Temporary Injunction. 30.00/nr
pwe eee 0.40 126.00
315,00/hr
6/2/2010 DWC 0.90 283.50
315,00/hr
KEB i 1.20 306.00
. 255.00/hr
KEB Continue drafting response to application for temporary injunction. 4.50 1,147.50
Fl _—
owe 0.60 189.00
315,00/hrRon Tripodo
Tricon/Towerworks Inc. & Properties, LLC
6/2/2010 D'
‘—
DWC Telephone call from Daran Burns -- voice mail -- returning a call
from his email earlier today.
owc
6/3/2010 SEM Scan and save the Temporary Restraining Order issued to
Tricon/Towerworks, Inc. Scan and save the Notice of Show
Cause Order issued to Tricon/Towerworks, Inc. Scan and save
the Temporary Restraining Order issued to ROPA Properties,
LLC. Scan and save the Notice of Show Cause Order issued to
ROPA Properties, LLC. Scan and save the Temporary
Restraining Order issued to Ron Tripodo. Scan and save the
Notice of Show Cause Order issued to Ron Tripodo.
Page 2
HrsfRate _ Amount
0,50 157,50
315.00/hr
0.10 NOCHARGE
315.00/hr
3.80 1,197.00
315.00/nr
0.10 NO CHARGE
315.00/hr
0.50 32.50
65.00/nr
4.50 1,147.50
255.00/hr
0.40 126.00
315.00/hr
0.50 15.00
30.00/hr
0 aR
oP® @
Ron Tripodo.
Tricon/Towerworks Inc. & Properties, LLC
Page 3
—His/Rate ____Amount
6/7/2010 KEB Telephone cali to 95th District Court ~- spoke -- Rescheduled “0.40 25.50
hearing for June 17, 2010. 255.00/hr
KEB Telephone call to 95th District Court — spoke — Moved hearing to 0.20 51.00
9 a.m, on June 23, 255.00/nr
DWC 0.30 NO CHARGE
315.00/hr
pwc ; 0.30 NO CHARGE
315.00/hr
KEB Draft order extending tempcrary restraining order. Send via email 0.50 127.50
to opposing counsel. 255.00/hr
KEB Review revisions to Order Extending TRO from opposing counsel. 0.30 76.50
255.00/nr
Mail to Opposing COUNSer.
KEB Draft email to Sherman, Burns and Archer regarding new date for 0.10 25.50
appeal of dismissal of motion for enforcement. 255.00/hr
SEM Process fax from Mr. Jeffrey Lowenstein containing the Piaintiffs 0.20 13.00
Motion for Partial Summary Judgment on Plaintiffs’ Breach of 65.00/nr
Settlement Agreement Claim. Scan and save Correspondence
and pleadings.
SEM Process fax from Mr. David Grant Crooks containing the proposed 0.20 43.00
Order for Turnover Relief. Scan and save correspondence and 65.00/hr
pleadings.
KEB 4.00 255.00
255.00/hr
6/8/2010 SEM Process fax from Mr. Jeffrey Lowenstein containing the Agreed 0.20 13.00
Order Extending Temporary Restraining Order which was signed 65.00/hr
by all parties. Scan and save correspondence and pleadings.
1.80 459.00
285.00/hr
8/10/2010 KEB 1.50 382.50
255.00/hr
KEB Finish drafting discovery in support of special appearance. 3.40 867.00
Prepare for service on Defendant. 255.00/hr
SEM Calendar the deadline to respond to the Plaintiffs Motion Enforce 0.50 32.50
Settlement Agreement and corresponding events. 65.00/hr® _ @
Ron Tripodo
Tricon/Towerworks inc. & Properties, LLC _
6/10/2010 SEM Process fax from Mr. Jeffrey Lowenstein containing the Notice of
Hearing on Motion for Partial Summary Judgment on Plaintiffs’
Breach of Settlement Agreement Claim. Scan and save
correspondence and pleadings. Calendar hearing date and
corresponding events,
6/11/2010 SEM Telephone call to Barry Gumm — Spoke with Alan to set up a
hand delivery to Mr. Jeffrey Lowenstein. The delivery package
included the following: (1) enclosure letter to Mr. Lowenstein; (2)
Defendant ROPA Properties, LLC's First Set Interrogatories, First
Requests for Production and First Requests for Admissions to
Plaintiff American Communications, LLC; and (3) Defendant
ROPA Properties, LLC's First Set of Interrogatories, First
Requests for Production and First Requests for Admissions to
Plaintiff Tricon/Towerworks, LLC,
SEM _ Draft enclosure letter to Mr. Jeffrey Lowenstein via hand delivery.
Copy and prepare documents. Process and prepare enclosure
letter along with Defendant ROPA Properties, LLC's First Set of
Interrogatories, First Requests for Production, and First Requests
for Admissions to Plaintiff American Communications and the
Defendant ROPA Properties, LLC's First Set of interrogatories,
First Requests for Production, and First Request for Admissions
fo Plaintiff Tricon/Towerworks, LLC to Mr. Lowenstein for hand
delivery by On-Time Couriers. Scan and save correspondence
and discovery pleadings.
SEM Calendar deadiine for the Plaintiffs Response to Defendant
ROPA Properties, LLC's First Set of Interrogatories, First
Requests for Production, and First Request for Admissions to
Plaintiff American Communications, LLC and Plaintiff
Tricon/Towerworks, LLC.
6/14/2010 KES Ss,
DWC
Telephone call from Jeffrey S Lowenstein -- spoke -- discuss his
motion for contempt. He also discusses options for settlement.
He seems very interested in a meeting to discuss settiement.
Hrs/Rate
0.50
65.00/hr
0.10
65.00/nr
0.80
65.00/hr
0.10
65.00/hr
0.50
255.00/hr
0.60
315.00/hr
0.50
315.00/hr
0.50
315.00/hr
Page 4
Amount
32.50
6.50
52.00
6.50
127.50
189.00
187.50
187.50@ @
Ron Tripado
Tricon/Towerworks Inc. & Properties, LLC
6/14/2010 DWC
SEM Process fax from Mr. Jeffrey Lowenstein containing the Plaintiff's
Motion for Contempt Against ROPA Properties, LLC. Scan and
save correspondence and pleadings.
6/18/2010 LGC Update client file with opposing attorney's assistant's contact
information.
DWC Telephone call to Jeffrey S Lowenstein ~ spoke - The court has
ordered a new hearing on the Temporary Injunction. Provide
preliminary dates we are available,
62010 Wc Carrs
6/17/2010 LGC Fax, scan and save Second Agreed Order to Rebecca Hicks for
Dwc.
6/18/2010 LGC Draft DWC vacation letter and mail to court. Fax same to client
and opposing attorneys.
6/21/2010 LGC Scan DWC vacation letter to update client file.
6/23/2010 KEB_ Telephone call to Jeffrey S Lowenstein -- spoke -- He won't agree
fo the continuance on the hearing for the MSJ. Wants to schedule
mediation.
KEB ee: motion for continuance of Plaintiffs’ hearing on
r summary judgment. Prepare for filing.
6/24/2010 PJS Scan & save file-marked Defendant ROPA Properties, LLC's
Emergency Motion for Continuance of Hearing on Plaintiffs’
Motion for Partial Summary Judgment on Plaintiffs’ Breach of
Settlement Agreement Claim and Fiat setting hearing on same;
email to DWC.
SEM Draft enclosure letter to Mr. Jefirey Lowenstein via facsimile only.
Draft fax cover sheet to Mr. Lowenstein. Process and fax
enciosure ietter along with the file-stamped Defendant ROPA
Properties, LLC's Emergency Motion for Continuance of Hearing
on Plaintiffs Motion for Partial Summary Judgment on Plaintiff's
Page 5
0.10 31.50
345.00/hr
0.20 13.00
65,00/hr
0.10 7.50
75.00/nr
90.30 94.50
315.00/hr
0.10 31.50
315.00/hr
0.10 7.50
75.00/nr
0.30 NO CHARGE
75.00/hr
0.10 NO CHARGE
75.00/nr
0.20 51.00
255.00/hr
2.00 510.00
255,00/hr
0.10 7.50
75.00/nr
0.50 32.50
65.00/nrRon Tripodo
Tricon/Towerworks Inc. & Properties, LLC
Page 6
Hrs/Rate Amount
Breach of Settlement Claim to Mr. Lowenstein for his records.
Scan and save correspondence.
6/24/2010 SEM Draft Hearing Notice for the Defendant ROPA Properties, LLC's 0.50 32.50
Emergency Motion for Continuance of Hearing on Plaintiffs 65.00/nr
Motion for Partial Summary Judgment on Plaintiffs Breach of
Settlement Agreement Claim to Mr. Jeffrey Lowenstein via
facsimile only and copy the Dallas County District Clerk via first
class mail. Draft fax cover sheet to Mr. Lowenstein. Copy and
prepare documents. Fax and mail the Hearing Notice along with
the FIAT to Mr. Lowenstein for his records and copy the court for
filing purposes. Scan and save correspondence,
6/28/2010 SEM Receipt of hand delivered enclosure letter from Mr. Jeffrey 0.30 19.50
Lowenstein including the Plaintiffs Response to Defendant ROPA 65.00/hr .
Properties, LLC Emergency Motion for Continuance. Scan and
save correspondence and pleadings.
KEB 0.20 51.00
255.00/nr
6/29/2010 KEB 2.00 510.00
255. 00/nr
0+; a, 19031500
. 315.00/hr
LGC bo rrrcci SIRE Scan and print docs for trial 0.50 37.50
and update client file with same. 75.00/hr
6/30/2010 LGC Scan file stamped copy of DWC vacation letter to update client file. 0.10 NO CHARGE
75.00/hr
DWC Trip to Courthouse for motion for continuance. Wait on judge to 2.20 693.00
call case. Argue motion. Judge grants continuance of the Partial 315.00/hr
Motion for Summary Judgment. Meet with Lowenstein after the
hearing to discuss scheduling. Lowenstein also discusses
mediation. Retum to office. Draft email to client and lawyers.
updating current information and regarding Lowenstein's desire to
mediate.
For professional services rendered 44.80 $10,659.50
* Additional Charges :
6/11/2010 DWC 14.50
Courier Fee. Paid to On Time Couriers Ck No 5824.e e
Ron Tripedo
Tricon/Towerworks Inc. & Properties, LLC
Page 7
Total costs $14.50
Total amount of this bill $10,674.00
Previous balance $7,063.86
6/8/2010 Payment - Thank You. Check No. 1407 ($2,749.36)
7/6/2010 Payment - Thank You. Check No. 1353 ($3,000.00)
Total payments and adjustments ($5,749.36)
Please replenish Client funds with $5,000.00
Balance due $16,988.50
Prior balances are due immediately. Current charges are due on or before 06/30/2010. Thank you.DARRELL W. Cook & ASSOCIATES
A PROFESSIONAL CORPORATION - FEIN: 75-2906482
ONE MEADOWS BUILDING
5005 GREENVILLE AVE., SUITE 200
DALLAS, TX 75206
TELEPHONE: 214.368-4686
FACSIMILE: 214-363-9979
Ron Tripoda
Tricon/Towerworks Inc. & Properties, LLC
1171 Bridgemill Ave
Canton GA 30114
August 01, 2010
Invoice #: 30891
In Reference To:American Communications LLC
Professional Services
_—HrsiRate _ Amount
7/1/2010 KEB Continue drafting First Amended Special Appearance. 2.50 637.50
255.00/hr
7/2/2010 DWC. Telephone call to Jeffrey S Lowenstein -- spoke -- Called to confer 0.10 31.50
on our motion to continue the summary judgment setting. He 315.00/hr
said that they would move it and will get back to us. Told him any
day on the 6th or later would be fine.
KES QRS eens 2.60 637.50
255.00/hr
7/6/2010 SEM Process fax from Mr. Jeffrey S. Lowenstein containing the 0.20 13.00
Plaintiff's First Notice of Reset of Hearing on the Plaintiffs Motion 65.00/hr
for Partial Summary Judgment on Plaintiffs Breach of Settlement
Agreement Claim. Scan and save correspondence and pleadings.
SEM Process fax from Mr. Jeffrey S. Lowenstein containing the 0.20 43.00
Plaintiffs Second Notice of Reset of Hearing on the Plaintiff's 65.00/hr
Motion for Partial Summary Judgment on Plaintiffs Breach of
Settlement Claim. Scan and save correspondence and pleadings.
7/712010 DWC. ‘Telephone call from Jeffrey S Lowenstein - spoke ~ Discuss 0.70 220.50
scheduling. Conclusion: He will move the TI hearing to a later 315.00/nr
date and we will go first with our Special Appearance. Discuss
mediation. Agree that July 26 might work. We will both talk to our
clients to decide. Determine to use Chris Nolland, if he is
available.Ron Tripodo.
Tricon/Towerworks Inc. & Properties, LLC
7/12/2010 KEB
7113/2010 KEB
7/14/2010 KEB
KEB
7/18/2010 DWC
7/49/2010 DWC
7122/2010 LGC
7/23/2010 DWC
7/27/2010 LGC
ona eer Draft email to Jeff
owenstein about aining documents.
Review email from Jeff Lowenstein regarding scheduling issues
and chsinn proc.
Telcon with Jeffrey Crouch. He has been retained to represent
the Defendants. Discuss history of the case. He is going to file a
designation of lead counsel and notice of appearance.
Discuss with Tree getting the file ready for pick up by new
counsel's office.
Telephone call from Mr. Jeffrey L. Crouch ~ spoke — Extensive
conversation regarding the case.
Telephone call from Mr. Jeffrey L. Crouch - spoke -- Long
discussion involving the case and the strategy we have employed.
Scan and save accounting documents
Telephone call to Mr. Jeffrey L. Crouch -- spoke -- Discuss
forwarding emails. Work on segregating emails into a format in
which I can send them to Jeff Crouch.
Calendar scheduling order.
For professional services rendered
Previous balance
7/1412010 Payment - Thank You. Check No. 1459
Total payments and adjustments
Balance due
Prior balances are due immediately. Current charges are due on or before 08/31/2010.
Hrs/Rate
0.10
315,00/hr
0.80
255.00/nr
0.20
255.00/hr
0.50
255.00/hr
0.20
255.00/hr
0.60
315.00/hr
4.10
315.00/hr
9.10
75.00/hr
4.20
345,00/hr
0.30
75.00/hr
411.30
. Thank you.
Page 2
Amount
NO CHARGE
204.00
54.00
~ 127.50
51.00
189.00
346.50
NO CHARGE
378.00
22.50
~~ $2,922.50
$11,988.50
($1,314.50)
($1,314.50)
$13,596.50Ron Tripodo
Tricon/T ‘owerworks Inc. & Properties, LLC
Page 3DARRELL W. Cook & ASSOCIATES
A PROFESSIONAL CORPORATION - FEIN: 75-2906482
ONE MEADOWS BUILDING
5005 GREENVILLE AVE., SUITE 200
DALLAS, TX 75205
TELEPHONE: 214-368-4686
FACSIMILE: 214-363-9979
Ron Tripedo
Tricon/Towerworks Inc. & Properties, LLC
1171 Bridgemill Ave
Canton GA 30114
September 01, 2010
Invoice #: 31094
in Reference To:American Communications LLC
Professional Services
Hrs/Rate Amount
8/3/2010 TLB Draft enclosure letter and fax cover sheet to Mr. Lowenstein and Mr. 0.20 15.00
Crouch; process and fax enclosure letter along with Motion to 75.00/hr
Withdraw to Mr. Lowenstein and Mr. Grouch for their records. Scan
and save correspondence and pleadings.
KEB Prepare motion to withdraw for filing. Upload to court. . 0.40 102.00
285.00/hr
For professional services rendered 0.60 $117.00
Additional Charges :
8/3/2010 DWC 18.36
e-Filing Fee for Motion for Withdrawal. CaseFile
Total costs $16.36
Totat amount of this bill $133.36
Previous balance $13,596.50
Balance due $13,729.86
Prior balances are due immediately. Current charges are due on or before 09/30/2010. Thank you.® ®
Ron Tripodo
Tricon/Towerworks Inc. & Properties, LLCEXHIBIT 4
EXHIBIT 4~ -*eg/15/2018 14:48 §134219444 ATTORNEYS AT LAW PAGE 1/82
THOMAS J. LEKSAN CO,, LP.A.
A LEGAL PROFESSIONAL ASSOCIATION
1000 TRISTATE BUILDING
432 WALNUT STREET
CINCINNATI OHIO 45202
OHIO, KENTUCKY 513-665-9400 .
AND UNITED STATES . : FACSIMILE:
FEDERAL COURTS tleksan@leksanlaw com. 513-421-9444
PLEASE DELIVER THIS FACSIMILE TRANSMISSION TO:
Name:_(@ARatc U2 Cogp Date: 2-4 fos
Firm/Company
Facsimile number, 2/4 — G63 - 997% Pages (including cover page): 2_
Re_Q2-/a-/o fee Seremen? ~ TR ifoe2
Instractions:
No original documents will follow.
Original documents will follow by regular U.S. mail,
This message is intended for use only by the individual or entity to which it is
addressed and may contain information that is privileged, confidential, and exempt
from disclosure under applicable law. If the reader of this message is not the intended
recipient, or the employee or agent responsible for delivering the message to the
intended recipient, you are hereby notified that any dissemination, distribution or
copying of this communication is strictly prohibited. If you have received this
-comununication in error, please notify us immediately by telephone, and return the
original facsimile to us at the above address.
IF YOU DO NOT RECEIVE A COMPLETE TRANSMISSION, PLEASE CALL (512) 665-9400.= -*702715/2818 14:48 5134219444 ATTORNEYS AT LAW PAGE 82/82
Ren Tripodo
elo Thomas D. Sherman
February 12, 2010
Page 7
PERSONAL GUARANTEE OF THOMAS LEKSAN
In consideration of credit being extended by DARRELL W. COOK & ASSOCIATES to
RON TRIPODO, TRICON/TOWER WERKS, INC. AND ROPA PROPERTIES, LLC
{aggregately known as “Client") for Legal Services and cxpenses to be supplied.
THOMAS LEKSAN, the undersigned guarantor, hereby contracts and guarantees to
DARRELL W. COOK & ASSOCIATES the faithful payment, when due. of all accounts
of said Client The undersigned expressly waives all notice of acceptance of this
guarantee, notice of extension of credit to Client, presentment, and demand for payment
on Client, protest and notice to undersigned guarantor of dishonor or default by Cileat,
extension of time of payment to spplicant, acceptance of partial payment or partial
compromise. all other notices to which the undersigned guarantor might otherwise be
entitied and demand for payment under this guarantee. Any revocation of this guaranice
shall be in writing and delivered to DARRELL W. COOK & ASSOCIATES. THOMAS
“initials”EXHIBIT 5
EXHIBIT 5DARRELL W. COOK, P.C. D/B/A
DARRELL W. COOK &
ASSOCIATES, A PROFESSIONAL
CORPORATION
Plaintiff,
v.
THOMAS J. LEKSAN,
Defendant.
CAUSE NO. DC-10-16833-A
IN THE DISTRICT COURT
§
§
§
§
;
§ 14"-A JUDICIAL DISTRICT
§
§
§
DALLAS COUNTY, TEXAS
STATE OF TEXAS §
§
DALLAS COUNTY §
AFFIDAVIT OF DARRELL W. COOK
BEFORE ME, the undersigned authority, personally appeared, who, being duly
sworn, deposed as follows:
“My name is DARRELL W. COOK. | am over 18 years of age, of sound mind,
and capable of making this affidavit. The facts stated in this affidavit are within
my personal knowledge and are true and correct.
“Tam the president of DARRELL W. COOK, P.C. D/B/A DARRELL W.
COOK & ASSOCIATES, A PROFESSIONAL CORPORATION
(hereinafter “Plaintiff” or “DWCA”), Plaintiff; and [ have or a person under my
supervision has care, custody, and control of all records concerning the account of
RON TRIPODO, TRICON/TOWERWERKS, INC. AND ROPA
PROPERTIES (hereinafter “Tripodo”), and THOMAS J. LEKSAN
(hereinafter “LEKSAN”), Defendant,
“Attached hereto as Exhibits 1, 2, 3, 4, and 7, are 35 pages of records, which are
kept by DWCA in the regular course of business of DWCA, and it was in the
regular course of business for an employee or representative of DWCA, with
knowledge of the acts, events, conditions, opinions, or diagnoses that were
recorded, to make these records or to transmit the information to be included in
these records. These records were made at or near the time or reasonably soon
after the act, event, condition, opinion, or diagnosis that was recorded. The
records attached hereto are the originals or exact duplicates of the originals.
AFFIDAVIT OF DARRELL W. COOK PAGE L OF34. “These records show that a principal balance of thirteen thousand two hundred
twenty-nine dollars and eighty-six cents ($13,229.86), exclusive of interest, is due
and payable by LEKSAN to DWCA.
5. “This action is based upon a written contract and personal guarantee on which a
systematic record was kept.
6. “The Fee Agreement, marked as ‘Exhibit 1° and attached hereto, is within my
knowledge to be a true and accurate copy of the original. The breakdown of
Defendants’ account, marked ‘Exhibit 2' and attached hereto, is within my
knowledge to be a true and accurate copy of the original, and a just and true
accounting of the sums owed in accordance with the terms of the contract. The
invoices that form that basis of this suit, marked ‘Exhibit 3° and attached hereto, are
within my knowledge to be a true and accurate copies of the originals. and
constitute a just and true accounting of the professional services rendered. The
personal guaranty marked ‘Exhibit 4° and attached hereto, is within my knowledge
to be a true and accurate copy of the original. The demand letter marked ‘Exhibit 7”
and attached hereto, is within my knowledge to be a true and correct copy of the
original.
7. “Demand for payment of the just amount owing DWCA by LEKSAN has been
made on LEKSAN and payment for the just amount owing has not been tendered.
8. “DWCA has standing to sue for breach of contract because DWCA was an
orginal party to the contract and personal guaranty between DWCA and
LEKSAN.
9. “DWCA performed its contractual obligations by providing the professional
services contracted for and requested by Tripodo, and for which payment was
personally guaranteed by LEKSAN. Such legal services were reasonable and
necessary, and were provided at the express direction of Tripodo.
10. “LEKSAN breached the contract and personal guaranty he entered into with
DWCA. Under the terms of the personal guaranty, LEKSAN ‘guarantee[d] the
faithful payment, when due, of all accounts or said Client [Tripodo].’ Despite
repeated requests, Tripodo never remitted payments on his account with DWCA.
DWCA then demanded payment from LEKSAN, in accordance with the terms of
the personal guaranty. Despite repeated requests, LEKSAN never remitted
payment on the Tripodo account.
11. “LEKSAN’s breach of its contract with caused DWCA damages totaling thirteen
thousand two hundred twenty-nine dollars and eighty-six cents ($13,229.86).
12. “DWCA presented the claims it asserted in this suit to LEKSAN and payment for
the just amount was not tendered.
AFFIDAVIT OF DARRELL W. COOK PAGE 2 OF 313. “DWCA was required to engage the services of counsel to represent its interests
in the above-styled case and has agreed to pay reasonable and necessary
attorney’s fees in that regard.”
Further Affiant Sayeth Not.
DARRELL W. COOK, P.C, D/B/A
DARRELL W. COOK & ASSOCIATES
A PROFESSIONAL CORPORATION
Plaintiff,
BY: Bw—
DARRELL W. COOK, Affiant
SIGNED AND SWORN to before me by DARRELL W. COOK on April 27,
Sin Ae boven
UNDA GERETTE COONS: Notary Public, State of Texas
MY COMMISSION EXPIRES
My Commission Expires: 13h
hee January 13, 2013
AFFIDAVIT OF DARRELL W. COOK PAGE3 OF3EXHIBIT 6—
EXHIBIT 6DARRELL W. COOK, P.C. D/B/A
DARRELL W. COOK &
ASSOCIATES, A PROFESSIONAL
CORPORATION
Plaintiff,
v.
THOMAS J. LEKSAN,
Defendant.
STATE OF TEXAS
CAUSE NO. DC-10-16833-A
: IN THE DISTRICT COURT
§
§
§
§ 14".4 JUDICIAL DISTRICT
§
§
§
§ DALLAS COUNTY, TEXAS
§
§
COUNTY OF DALLAS §
BEFORE ME, the undersigned authority, on this day personally appeared
DARRELL W.
Preview
nS oO ® e ORIGINAL hy CAUSE NO. DC-10-16833-A M tp &p 64 / DARRELL W. COOK, P.C. D/B/A § INTHEDISTR URTY 5, DARRELL W. COOK & § Son, G9 ASSOCIATES, A PROFESSIONAL § CORPORATION § 4 Plaintiff, NQ ainti: 5 Loy, v. § 14".4 JUDICIAL DISTRICT § THOMAS J. LEKSAN, § Defendant. § DALLAS COUNTY, TEXAS PLAINTIFF’S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT. TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, DARRELL W. COOK, P.C. D/B/A DARRELL W. COOK & ASSOCIATES, A PROFESSIONAL CORPORATION, Plaintiff, and files this its Motion for Traditional and Partial Summary Judgment under Texas Rule of Civil Procedure 166a and moves for summary judgment against Defendant THOMAS J. LEKSAN and in support of the motion would respectfully show this Court as follows: I. PRELIMINARY STATEMENT The Court should grant this Motion for Traditional and Partial Summary Judgment because there is no genuine issue of material fact regarding the debt owed by Defendant, and because there is no evidence supporting any defensive theory advanced by Defendant. PLAINTIFF'S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT. PAGE 10F 10IL. INTRODUCTION 1. This cause was filed based upon the breach of the personal guaranty executed by Defendant THOMAS J. LEKSAN (hereinafter “Defendant” or “LEKSAN”), guaranteeing the payment of any and all professional services provided to Ron Tripodo [hereinafter “Tripodo”) by Plaintiff DARRELL W. COOK, P.C. D/B/A DARRELL W. COOK & ASSOCIATES, A PROFESSIONAL CORPORATION (hereinafter “Plaintiff” or “DWCA”). LEKSAN was served with a demand letter on September 9, 2010, to which LEKSAN never responded. See Demand Letter dated September 9, 2010 attached hereto and incorporated herein by reference as Exhibit 7. LEKSAN was served with citation and a copy of Plaintiff's Original Petition on January 17, 2011, and he filed Defendant's Original Answer on or about February 7, 2011 generally denying all claims asserted by Plaintiff. The summary judgment evidence supports a finding that LEKSAN owes Plaintiff the debt that forms the basis of this lawsuit, and that there are no genuine issues of material fact for each and every element of Plaintiff's claims against LEKSAN. Therefore, summary judgment should be GRANTED as a matter of law. Ml. SUMMARY JUDGMENT EVIDENCE 2. Pursuant to Tex. R. Civ. Proc. 166a(d), the summary judgment evidence upon which this Motion relies is attached hereto and fully incorporated herein by reference. The exhibits are as follows: a. Exhibit 1: Fee Agreement dated February 12, 2010 PLAINTIFF’S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT PAGE 20F 10b. Exhibit 2: Excel Spreadsheet Breakdown of Tripodo Account c. Exhibit 3: Copies of All Outstanding Invoices d. Exhibit 4: Copy of Personal Guarantee dated February 12, 2010 e. Exhibit 5: Affidavit of Darrell W. Cook f. Exhibit 6: Atiorney’s Fees Affidavit of Darrell W. Cook g. Exhibit 7: Demand Letter dated September 9, 2010 Iv. ARGUMENTS & AUTHORITIES FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S CAUSES OF ACTION 3. The purpose of the summmary-judgment procedure is to permit the trial to promptly dispose of cases that involved unmeritorious claims or untenable defenses. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n.5 (Tex. 1979). 4. Plaintiffs Motion embraces Plaintiff's cause of action for breach of contract stated in the pleadings against LEKSAN. There is no genuine issue as to any material fact regarding each and every element of the Plaintiff's cause of action, and DWCA is entitled to a judgment as a matter of law. 5. Pursuant to Texas Rule of Civil Procedure 166a(c), a motion for summary judgment shall be granted if the pleadings and summary judgment evidence show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Tex. R. Civ. Proc. 166a(c); Black v. Victoria Lloyds Ins, Co., 797 §.W.2d 20, 23 (Tex. 1990). If a movant’s motion and summary judgment proof facially establish a right to judgment as a matter of law, the burden shifts to the non-movant to raise a material fact issue sufficient to defeat PLAINTIFF'S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT PAGE 30F 10fa) summary judgment. HBO, A Div. of Time Earner Entertainment Co., L.P. vy. Harrison, 983 S.W.2d 31, 35 (Tex. App—Houston tia" Dist.] 1998, no pet.). In the absence of establishing a fact issue, the movant is entitled to summary judgment as a matter of law. Vv. Breach of Personal Guaranty DWCA is entitled to summary judgment because DWCA can prove each element of its claim for breach of contract as a matter of law. To carry its burden, Plaintiff must prove ail elements of its cause of action for breach of contract, which are as follows: a. there is a valid enforceable contract; b. the Plaintiff has standing to sue for breach of contract; c. the Plaintiff performed, tendered performance, or was excused from performing its contractual obligations; d. the Defendant breached the contract; and e. the Defendants’ breach caused the Plaintiff injury. See McLaughlin, Inc, v. Northstar Drilling Techs., 138 S.W.3d 24, 27 (Tex. App—San Antonio 2004, no pet.); Zuniga v. Wooster Ladder Co., 119 S.W.3d 856, 862 (Tex. App.—San Antonio2003, no pet.). There is a valid enforceable contract. . There is a valid enforceable contract between DWCA and LEKSAN, whereby LEKSAN “contract{ed] and guarante[ed] to DARRELL W. COOK & ASSOCIATES, the faithful payment, when due, of all accounts of said Client PLAINTIFF'S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT Pace 40F 10(©) [RON TRIPODO, TRICON/TOWERWERKS, INC. AND ROPA PROPERTIES, LLC] See Exhibit 4. The guarantee specifically provided that LEKSAN “waives all notice of acceptance of this guarantee, notice of extension of credit to Client [Tripodo], presentment, and demand for payment on Client [Tripodo], protest and notice to undersigned guarantor of default or dishonor by Client [Tripodo], extension of time of payment to applicant, acceptance of partial payment or partial compromise, and all other notices to which the undersigned guarantor might otherwise be entitled and demand for payment under this guarantee.” /d. The contract further provided that DWCA relied upon and “would not accept the representation that is the subject of this fee contract but for the guarantee” /d. (b) The Plaintiff has standing to sue for breach of contract. 8. DWCA has standing to sue for breach of contract because it is an orginal party to the contract beween Tripodo and DWCA, under which payment for legal services was guaranteed by LEKSAN under an executed personal guaranty. See Exhibit |: See also Exhibit 4; see also Exhibit 5, § 8. LEKSAN executed the contract individually, and faxed a copy of the executed guarantee to DWCA on February 15, 2010. See Exhibit 4. The Plaintiff performed, tendered performance, or was excused from performing its contractual obligations. 9. DWCA performed its contractual obligations by providing the professional services described in the invoices attached hereto and incorporated herein by reference as Exhibit 3. See also Exhibit 5,9. The professional services that DWCA provided in accordance with the fee agreement attached hereto as Exhibit PLAINTIFF’S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT PAGE SOF 10(d) (e) I include, but are not limited to “professional services related to the cause of action filed in the 95"" Judicial District Court against Clients [Tripodo].” See Exhibit 1; see also Exhibit 3; see also Exhibit 5, | 9. DWCA performed these actions in full satisfaction of the terms of the Fee Agreement contract, and presented invoices to Tripodo. See Exhibit 3; see also Exhibit 5, 9. LEKSAN’S breach of the Personal Guaranty. . Despite repeated requests, Tripodo failed to remit payment for professional services rendered in accordance with the terms of the Fee Agreement he entered into with DWCA. DWCA sent demand for payment on the Tripodo account to LEKSAN in accordance with the terms of the personal guarantee to which LEKSAN agreed. See Exhibit 4; see also Exhibit 5, {10 - { 12; see also Exhibit 7. Despite repeated requests, LEKSAN has refused and continues to refuse to remit payment to DWCA for the debts and obligations that are rightfully owed to DWCA under the terms of the fee agreement and personal guaranty. See Exhibit 5,4 12. LEKSAN’S breach caused DWCA injury. . LEKSAN’s breach of the personal guaranty caused DWCA damages totaling thirteen thousand two hundred twenty-nine dollars and eighty-six cents ($13,229.86). See Exhibit 2; see also Exhibit 3; see also Exhibit 5, 11. The total amount of money due DWCA for professional services rendered and under the terms of the fee agreement is thirteen thousand two hundred twenty-nine dollars and eighty-six cents ($13,229.86). See Exhibit 2: see also Exhibit 3; see also Exhibit 5, 4] 11. PLAINTIFE’S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT PAGE 6 OF 1012. Because DWCA offered undisputed summary judgment proof on each of the five elements necessary to establish a claim for breach of contract, there is no genuine issue as to any material fact and Plaintiff is entitled to summary judgment as a matter of law. Vi. ALTERNATIVE PARTIAL SUMMARY JUDGMENT 13. 1f summary judgment for Plaintiff is not rendered on the entire cause or for all relief requested, and if a trial is necessary on some of the issues in this cause, Plaintiff requests the court, after examining the pleadings and summary judgment evidence before it and after interrogating counsel to ascertain those material facts that are in good faith actually controverted, to make and/or specify those facts that appear to be without substantial controversy and directing such further proceedings in the action as are just. Vil. Attorney’s Fees 14. As shown by Plaintiff's Original Petition on file in this cause, Plaintiff has plead for attorney’s fees in a reasonable amount as provided by § 38.001 Tex. Civ. Prac. & REM. CODE. Plaintiff presented its claims asserted in this suit to the Defendant and payment for the just amount was not tendered. See Exhibit 6. Plaintiff was required to engage the services of counsel to represent his interests in the above-styled case and has agreed to pay reasonable and necessary attorney’s fees in that regard. See Exhibit 5, { 13. A reasonable fee for the attorney’s services rendered and to be rendered is at least two thousand five PLAINTIFE’S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT PAGE 70F 10hundred dollars ($2,500.00). See Exhibit 6, § 5. There is no genuine issue of material fact about the basis for recovery of attorneys’ fees in this cause or about the amount thereof. As a matter of law, Movant is entitled to recover attorney's fees as alleged in Plaintiffs Original Petition on file and as evidenced by the Affidavit of Jeffrey W. Martin attached hereto as Exhibit 6. VIL. PRAYER WHEREFORE, Plaintiff DARRELL W. COOK, P.C. D/B/A DARRELL W. COOK & ASSOCIATES, A PROFESSIONAL CORPORATION requests that this matter be set for hearing, with notice to Defendant THOMAS J. LEKSAN, and that on the completion of the hearing the Court grant Plaintiff's Motion for Traditional and Partial Summary Judgment, and that Plaintiff DARRELL W. COOK, P.C. D/B/A DARRELL W. COOK & ASSOCIATES, PROFESSIONAL CORPORATION be entitled to the following: 1. we The amount of thirteen thousand two hundred twenty-nine dollars and eighty-six cents ($13,229.86) as the principal amount due on Plaintiff's theory of breach of personal guaranty; Pre-judgment interest of 6.00% per annum; Post-judgment interest at the rate per annum as published by the Texas Office of Consumer Credit Commission at the time of Judgment; Reasonable attorney's fee totaling three thousand five hundred ($3,500.00); All costs of court; PLAINTIFFS MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT PAGE 8 OF 106. Five thousand dollars ($5,000.00) as attorney's fees in the event this judgment is appealed to the Texas Court of Appeals; 7. Five thousand dollars ($5,000.00) as attorney's fees in the event a writ of error is filed with the Texas Supreme Court in this case; 8. Five thousand dollars ($5,000.00) as attorney's fees in the event writ of error is granted by the Texas Supreme Court in this case; and 9. Such other and further relief, special or general, legal or equitable, as Plaintiff may be shown to be justly entitled to receive. Respectfully Submitted, DARRELL W. COOK & ASSOCIATES, A PROFESSIONAL CORPO f(ARRELL W, COOK. State Bar No. 00787279 JEFFREY W. MARTIN State Bar No. 24052274 One Meadows Building 5005 Greenville Ave., Suite 200 Dallas, TX 75206 (214) 368-4686 (214) 363-9979 Telecopy ATTORNEYS FOR PLAINTIFF PLAINTIFF’S MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT PAGE 9OFIOCERTIFICATE OF SERVICE I herby certify that on the 20" day of April, 2011 all parties of record were served with the foregoing in accordance with the Texas Rules of Civil Procedure. Vid CERTIFIED MAIL NO. 7010 1870 0002 1653 9367 RETURN RECEIPT REQUESTED ViA First CLASS MAIL AND VIA FACSIMILE (214) 749-6100 HERMES SARGENT BATES, LLP Daniel D. Tostrud Angela M. Hough 901 Main Street, Suite 5200 Dallas, TX 75202 JEF ART! PLAINTIFFS MOTION FOR TRADITIONAL AND PARTIAL SUMMARY JUDGMENT PAGE 100F 10EXHIBIT 1 EXHIBIT 1Darrel. W. COOK KELLY E. BRYAN STEPHEN W. Davis. CATHERINE A. KEITH TOM MELTON OF COUNSEL, DARRELL W. COOK & ASSOCIATES A PROFESSIONAL CORPORATION SOO5 GREENVILLE AVENUE, Suite 200 DALLAS, TEXAS 75206 TELEPHONE: (214) 368-4686. TELECOPY: (214) 363-9979 WWW. ATIORNEYCOOK.COM February 12, 2010 Ron Tripodo c/o Thomas D, Sherman Locke Lord 1900 The Proscenium 1170 Peachtree Street NE Atlanta, GA 30309 Re: Fee Agreement for professional services related to cause of action filed in 95" Judicial District Court against Clients. Client: Ron Tripodo, Tricon/Towerwerks, Inc. and ROPA Properties, LLC. Gentlemen: [am writing to confirm that the above-referenced parties (hereinafter referred to as “You” or “Client”) have retained this law firm for representation in regard to the above-referenced matter. This letter confirms that the only attorney-client relationship is between the Firm and You, and that there are no third-party beneficiaries to this contrucl or to the attorney-client relationship. You further confirm that neither You nor any of your agents are acting as a fiduciary in connection with any portion of the engagement of this Firm. We will at all times act on your behalf to the best of our ability. Any expressions on our part concerning the outcome of your legal matters are expressions of our best professional judgment, but are not guarantees. These opinions are necessarily limited by our knowledge of the facts and are based solely on the state of the law at the time they are expressed, Our evaluations are necessarily based upon the facts as told to us. However, in any matter you can expect the unexpected, By way of example and not as an exhaustive list, the following events frequently occur during our representation of clients like You: Witnesses may testify differently than in previous depositions or statements, recall may become hazy, witmesses may choose to lie rather than tell the truth, important evidence may be concesled, witnesses may tell the truth in such a way that it appears to be a lie, the decision maker may choose to believe a witness for a variety of reasons that defy logical explanation, and the decision maker may decide against you for reasons that doRon Tripodo c/o Thomas D. Sherman February 12, 2010 Page 2 hot relate to the law or the facts but which never become public to the point of being able to do anything about them. In addition to these risks, our analysis of the law may not be accepted by the administrative decision maker or the court; and the court may permit testimony or give instructions to the jury that we think now wil not be permitted. These legal decisions may be decided against you in an administrative procedure, in the trial court or on appeal; and it is also possible that an appellate court, although agreeing with our position, would decline to overrule an erroneous trial court judgment because it feels we did not object hard enough or long enough or with the right words. In addition to all these hazards, a trial will cost you considerable attorneys’ fees. Our fee arrangement for legal services in this case will be based on hourly rates in effect for each lawyer and legal assistant at the time the services are rendered. The current hourly rate for the attorneys in our firm range between $195.00 and $315.00 per hour. Hourly rates are reviewed periodically and you will be advised of any adjustment before it is adopted. We also require a retainer to be deposited into our trust account and to be withdrawn and applied against fees and expenses as they are incurred. Additional expenses and fees will probably be incurred if the case progresses beyond the initial filing stages and additional deposits will be required. Further, you are required to maintain a retainer balance of $5,000.00 each month and to replenish the retainer each month as necessary. We have agreed that you will deposit a retainer of $10,000.00 on the following schedule: $1,500.00 on February 12, 2010. $3,500.00 on February 26, 2010. $5,000.00 on April 12, 2010. Additonally, Mr. Tom Leksan has agreed to act as guarantor of all sums due under this contract and but for such guaranty, the Firm would not enter into this agreement. You are further informed that while your retainer may collect some interest while a deposit, the Texas Supreme Court has ordered that such interest is forfeited to the Equal Access to Justice Foundation. If you have any questions about this process, or object to your interest being used for this purpose, please let me know and I will attempt to address your concerns. InitialsRon Tripodo c/o Thomas D. Sherman February 12, 2010 Page 3 In the event we are attempting to secure a recovery of damages on your behalf, be advised that we will attempt to secure a recovery sufficient to include your damages and attorney fees. But you are advised that the Client routinely must pay his own attomey, even when the law permits the prevailing claimant to recover attorney fees incurred by the client. Of course, even were we to successfully secure a judgment in your favor, that is no guarantee that you will actually collect any of the damages or other sums, and unless the Defendants have insurance or assets subject to execution and sale by the Sheriff, the judgment will not be collectible. You will also be responsible for the payment of expenses as they are incurred. Expenses you can expect in a case of this type include filing fees, sheriff fees; witness fees and deposition costs, if any are needed. It is our usual practice to send to our clients for direct payment the invoices we receive from third parties such as court reporters, expert witnesses, and reproduction services. You will be expected to, pay such invoices promptly upon receipt. We will invoice you on a monthly basis for all expenses and fees incurred by us on your behalf. If you believe the expenses are mounting too rapidly, please contact us immediately so we can assist you in evaluating how they might be curtailed in the future. When we do not hear from you, we assume that you approve of the overall! level of activity on our part in this case on your behalf. Frequently, clients request that we provide them estimates as to fees and expenses. It must be understood that such estimates are just that, and that the fees and expenses required are ultimately a function of many conditions over which we have little or no control, particularly the extent to which the opposition files pretrial motions and engages in its own discovery. Our hourly rates do not include any interest factor for slow payment. Because of this and the additional fact that we do not include a service charge for late payments, we must insist that our clients pay their bills promptly. If we become insecure in our belief that you can meet your financial obligations to the Firm, we will typically discuss that concern with You but you are hereby advised that the Firm will withdraw from this representation if you cannot provide acceptable assurances, most likely in the form of ongoing retainers, for us to continue. We reserve the right to request an additional retainer in the event significant events in the life of this representation are scheduled. For instance, if trial is scheduled or a significant amount of discovery must be conducted, you can expect that we will request an additional retainer before we expend significant effort on your behalf.Ron Tripoda c/o Thomas D, Sherman February 12, 2010 Page 4 Nothing in this agreement shall be construed to require the Firm to act as Your appellate counsel in this matter and we reserve the right to withdraw if the matter is appealed. While we anticipate an amicable and productive working relationship, we support the rules of professional conduct promulgated by the State Bar of Texas which seck to inform every citizen of their rights to complain of attorney misconduct, and of the procedures to follow in filing such a complaint. The State Bar of Texas investigates and prosecutes attomeys for professional misconduct, Although not every complaint against or dispute with a lawyer involves professional conduct, the State Bar of General Counsel will assist citizens in providing information about the filing of complaints. Their toll free number is 1-800-932-1900, All client-supplied materials and all attorney end product (collectively “client materials”) are the property of the Client. Examples of attorney end product are documents filed with the court or served on any party or correspondence of any type. Everything else is attorney work product. Attorney work product is the property of the Firm. Examples include photocopies of client materials, as well as drafts, notes, interna! memoranda, administration materials and any other type of attorney work product. Client has an affirmative duty to retrieve those client materials not previously forwarded to Client during the course of this representation or to direct the Firm to forward the client materials at Client’s expense. The Firm may retain copies of all such documents as well as all other material. lf Client fails to retrieve the client materials or request the Firm to forward them, this failure shall be regarded as Client’s authorization for the Firm to destroy the client materials without further notice to the Client, The Firm may destroy any of Client’s files at any time with Client’s written authorization and in any event, after five years from the conclusion of the representation. During that five year period, the Firm shall make such files available to the Client for copying. No further notice to Client wil! be required prior to destruction. Further, in the event the Client has not paid its account in full, Client hereby agrees that it has no right to access those documents that are attorney work product. At all times the Client is to keep the Firm apprised of its current address, relevant phone numbers, and email addresses. The Client is responsible for communicating with the Firm and responding to inquiries from the Firm in a timely manner. Failure to do so may place the ends of the representation in jeopardy and lead to the Firm’s withdrawal. ss InitialsRon Tripodo «fo Thomas D. Sherman February 12, 2010 Page 5 The billing sent by the Firm to the Client is normally a detailed accounting of time spent on the Client's behalf by the Firm and contains a significant amount of information that is protected by the attorney-client privilege, Therefore, bills sent by the Firm to the Client must not be shown to non-Client third parties without the consent of the Firm, as such disclosure might be considered a waiver of the attorney-client privilege and may lead to severe consequences to both the Client and the Firm. The attorney-client relationship will be considered ended upon the Firm’s completion of the specific seryices that you have retained us to perform. Any controversy or claim between the parties arising out of or relating to this Contract, any provision of it, or any breach or alleged breach of it that cannot be resolved by the parties through negotiation will be settled by arbitration according to the rules of the American Arbitration Association, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction of the award. In the event that we withdraw as your attorney or if the matter concludes and a fee is due and unpaid, Client hereby grants Darrell W. Cook & Associates a lien on this cause of action, and a lien on any proceeds and any judgments recovered in connection with this cause of action as security for the payment of attorney's fees and expenses as contracted herein. In the event you decide to pay any portion of the fees due in this matter with a credit card, you agree to pay the costs of the credit card transaction charged by your eredit card, which is approximately 3% of the gross amount of the transaction. Finally, you agree to be truthful with the Firm in all matters. Please contact me if you have any questions as to our working arrangement as reflected by this letter. If after reading this letter you understand and agree with its provisions, please indicate your approval by placing your signature on the line provided below on both the original and the copy. You may retain the copy for your reference. Please return the original to our office with your check for the deposit. —— InitialsRon Tripodo c/o Thomas D. Sherman February 12, 2010 Page 6 Uniil such time as the Firm receives both this signed Fee Agreement AND the _ vequested retainer, no representation of you on this matter has commenced. Sincerely, DARRELL W. COOK & ASSOCIATES, A PROFESSIONAL CORPORATION /s} DWCook DARRELL W. COOK dweook@attomeycook.com DWC/we APPROVED, AGREED, AND ACCEPTED: Se Ron Tripod, Individually and on behalf of Tricon/Towerwerks, Inc. and ROPA Properties, LLC. Se InitialsRon Tripods c/o Thomas D. Shennan February 12, 2010 Page 7 PERSONAL GUARANTEE OF THOMAS LEKSAN In consideration of credit being extended by DARRELL W. COOK & ASSOCIATES to RON TRIPODO, TRICON/TOWERWERKS, INC. AND ROPA PROPERTIES, LLC (aggregately known as “Ctient”) for Legal Services and expenses to be supplied, THOMAS LEKSAN, the undersigned guarantor, hereby contracts and guarantees to DARRELL W. COOK & ASSOCIATES the faithful payment, when due, of all accounts of said Client The undersigned expressly waives all notice of acceptance of this guarantee, notice of extension of credit to Client, presentment, and demand for payment on Client, protest and notice to undersigned guarantor of dishonor or default by Client, extension of time of payment to applicant, acceptance of partial payment or partial compromise, all other notices to which the undersigned guarantor might otherwise be entitled and demand for payment under this guarantee. Any revocation of this guarantee shall be in writing and delivered to DARRELL W. COOK & ASSOCIATES. THOMAS LEKSAN hereby acknowledges that DARRELL W. COOK & ASSOCIATES would not accept the representation that is the subject of this fee contract but for his guaranty. THOMAS LEKSAN, Guarantor InitialsEXHIBIT 2 | EXHIBIT 2Tripodo Property Inv Date Invoice # Inv amt American Communications 07/01/10 30669 $10,174.00 American Communications 08/01/10 30891 $2,922.50 American Communications 09/01/10 31091 $133.36 Total Balance Owed $13,229.86 TotalEXHIBIT 3DARRELL W. CooK & ASSOCIATES A PROFESSIONAL CORPORATION - FEIN: 75-2906482 ONE MEADOWS BUILDING 5005 GREENVILLE AVE., SUITE 200 DALLAS, TX 75206 TELEPHONE: 214-368-4686 FACSIMILE: 214-363-9979 Ron Tripodo Tricon/Towerworks Inc. & Properties, LLC 1171 Bridgemill Ave Canton GA 30114 July 04, 2010 Invoice #: 30669 in Reference To: American Communications LLC Professional Services Hrs/Rate Amount 6/1/2010 KEB Continue drafting response to application for temporary 1.50 382.50 restraining order. 255.00/hr DWC 0.10 31.50 315,00/hr KG Scan and save Application for Temporary Restraining Order and 0.10 3.00 Temporary Injunction. 30.00/nr pwe eee 0.40 126.00 315,00/hr 6/2/2010 DWC 0.90 283.50 315,00/hr KEB i 1.20 306.00 . 255.00/hr KEB Continue drafting response to application for temporary injunction. 4.50 1,147.50 Fl _— owe 0.60 189.00 315,00/hrRon Tripodo Tricon/Towerworks Inc. & Properties, LLC 6/2/2010 D' ‘— DWC Telephone call from Daran Burns -- voice mail -- returning a call from his email earlier today. owc 6/3/2010 SEM Scan and save the Temporary Restraining Order issued to Tricon/Towerworks, Inc. Scan and save the Notice of Show Cause Order issued to Tricon/Towerworks, Inc. Scan and save the Temporary Restraining Order issued to ROPA Properties, LLC. Scan and save the Notice of Show Cause Order issued to ROPA Properties, LLC. Scan and save the Temporary Restraining Order issued to Ron Tripodo. Scan and save the Notice of Show Cause Order issued to Ron Tripodo. Page 2 HrsfRate _ Amount 0,50 157,50 315.00/hr 0.10 NOCHARGE 315.00/hr 3.80 1,197.00 315.00/nr 0.10 NO CHARGE 315.00/hr 0.50 32.50 65.00/nr 4.50 1,147.50 255.00/hr 0.40 126.00 315.00/hr 0.50 15.00 30.00/hr 0 aR oP® @ Ron Tripodo. Tricon/Towerworks Inc. & Properties, LLC Page 3 —His/Rate ____Amount 6/7/2010 KEB Telephone cali to 95th District Court ~- spoke -- Rescheduled “0.40 25.50 hearing for June 17, 2010. 255.00/hr KEB Telephone call to 95th District Court — spoke — Moved hearing to 0.20 51.00 9 a.m, on June 23, 255.00/nr DWC 0.30 NO CHARGE 315.00/hr pwc ; 0.30 NO CHARGE 315.00/hr KEB Draft order extending tempcrary restraining order. Send via email 0.50 127.50 to opposing counsel. 255.00/hr KEB Review revisions to Order Extending TRO from opposing counsel. 0.30 76.50 255.00/nr Mail to Opposing COUNSer. KEB Draft email to Sherman, Burns and Archer regarding new date for 0.10 25.50 appeal of dismissal of motion for enforcement. 255.00/hr SEM Process fax from Mr. Jeffrey Lowenstein containing the Piaintiffs 0.20 13.00 Motion for Partial Summary Judgment on Plaintiffs’ Breach of 65.00/nr Settlement Agreement Claim. Scan and save Correspondence and pleadings. SEM Process fax from Mr. David Grant Crooks containing the proposed 0.20 43.00 Order for Turnover Relief. Scan and save correspondence and 65.00/hr pleadings. KEB 4.00 255.00 255.00/hr 6/8/2010 SEM Process fax from Mr. Jeffrey Lowenstein containing the Agreed 0.20 13.00 Order Extending Temporary Restraining Order which was signed 65.00/hr by all parties. Scan and save correspondence and pleadings. 1.80 459.00 285.00/hr 8/10/2010 KEB 1.50 382.50 255.00/hr KEB Finish drafting discovery in support of special appearance. 3.40 867.00 Prepare for service on Defendant. 255.00/hr SEM Calendar the deadline to respond to the Plaintiffs Motion Enforce 0.50 32.50 Settlement Agreement and corresponding events. 65.00/hr® _ @ Ron Tripodo Tricon/Towerworks inc. & Properties, LLC _ 6/10/2010 SEM Process fax from Mr. Jeffrey Lowenstein containing the Notice of Hearing on Motion for Partial Summary Judgment on Plaintiffs’ Breach of Settlement Agreement Claim. Scan and save correspondence and pleadings. Calendar hearing date and corresponding events, 6/11/2010 SEM Telephone call to Barry Gumm — Spoke with Alan to set up a hand delivery to Mr. Jeffrey Lowenstein. The delivery package included the following: (1) enclosure letter to Mr. Lowenstein; (2) Defendant ROPA Properties, LLC's First Set Interrogatories, First Requests for Production and First Requests for Admissions to Plaintiff American Communications, LLC; and (3) Defendant ROPA Properties, LLC's First Set of Interrogatories, First Requests for Production and First Requests for Admissions to Plaintiff Tricon/Towerworks, LLC, SEM _ Draft enclosure letter to Mr. Jeffrey Lowenstein via hand delivery. Copy and prepare documents. Process and prepare enclosure letter along with Defendant ROPA Properties, LLC's First Set of Interrogatories, First Requests for Production, and First Requests for Admissions to Plaintiff American Communications and the Defendant ROPA Properties, LLC's First Set of interrogatories, First Requests for Production, and First Request for Admissions fo Plaintiff Tricon/Towerworks, LLC to Mr. Lowenstein for hand delivery by On-Time Couriers. Scan and save correspondence and discovery pleadings. SEM Calendar deadiine for the Plaintiffs Response to Defendant ROPA Properties, LLC's First Set of Interrogatories, First Requests for Production, and First Request for Admissions to Plaintiff American Communications, LLC and Plaintiff Tricon/Towerworks, LLC. 6/14/2010 KES Ss, DWC Telephone call from Jeffrey S Lowenstein -- spoke -- discuss his motion for contempt. He also discusses options for settlement. He seems very interested in a meeting to discuss settiement. Hrs/Rate 0.50 65.00/hr 0.10 65.00/nr 0.80 65.00/hr 0.10 65.00/hr 0.50 255.00/hr 0.60 315.00/hr 0.50 315.00/hr 0.50 315.00/hr Page 4 Amount 32.50 6.50 52.00 6.50 127.50 189.00 187.50 187.50@ @ Ron Tripado Tricon/Towerworks Inc. & Properties, LLC 6/14/2010 DWC SEM Process fax from Mr. Jeffrey Lowenstein containing the Plaintiff's Motion for Contempt Against ROPA Properties, LLC. Scan and save correspondence and pleadings. 6/18/2010 LGC Update client file with opposing attorney's assistant's contact information. DWC Telephone call to Jeffrey S Lowenstein ~ spoke - The court has ordered a new hearing on the Temporary Injunction. Provide preliminary dates we are available, 62010 Wc Carrs 6/17/2010 LGC Fax, scan and save Second Agreed Order to Rebecca Hicks for Dwc. 6/18/2010 LGC Draft DWC vacation letter and mail to court. Fax same to client and opposing attorneys. 6/21/2010 LGC Scan DWC vacation letter to update client file. 6/23/2010 KEB_ Telephone call to Jeffrey S Lowenstein -- spoke -- He won't agree fo the continuance on the hearing for the MSJ. Wants to schedule mediation. KEB ee: motion for continuance of Plaintiffs’ hearing on r summary judgment. Prepare for filing. 6/24/2010 PJS Scan & save file-marked Defendant ROPA Properties, LLC's Emergency Motion for Continuance of Hearing on Plaintiffs’ Motion for Partial Summary Judgment on Plaintiffs’ Breach of Settlement Agreement Claim and Fiat setting hearing on same; email to DWC. SEM Draft enclosure letter to Mr. Jefirey Lowenstein via facsimile only. Draft fax cover sheet to Mr. Lowenstein. Process and fax enciosure ietter along with the file-stamped Defendant ROPA Properties, LLC's Emergency Motion for Continuance of Hearing on Plaintiffs Motion for Partial Summary Judgment on Plaintiff's Page 5 0.10 31.50 345.00/hr 0.20 13.00 65,00/hr 0.10 7.50 75.00/nr 90.30 94.50 315.00/hr 0.10 31.50 315.00/hr 0.10 7.50 75.00/nr 0.30 NO CHARGE 75.00/hr 0.10 NO CHARGE 75.00/nr 0.20 51.00 255.00/hr 2.00 510.00 255,00/hr 0.10 7.50 75.00/nr 0.50 32.50 65.00/nrRon Tripodo Tricon/Towerworks Inc. & Properties, LLC Page 6 Hrs/Rate Amount Breach of Settlement Claim to Mr. Lowenstein for his records. Scan and save correspondence. 6/24/2010 SEM Draft Hearing Notice for the Defendant ROPA Properties, LLC's 0.50 32.50 Emergency Motion for Continuance of Hearing on Plaintiffs 65.00/nr Motion for Partial Summary Judgment on Plaintiffs Breach of Settlement Agreement Claim to Mr. Jeffrey Lowenstein via facsimile only and copy the Dallas County District Clerk via first class mail. Draft fax cover sheet to Mr. Lowenstein. Copy and prepare documents. Fax and mail the Hearing Notice along with the FIAT to Mr. Lowenstein for his records and copy the court for filing purposes. Scan and save correspondence, 6/28/2010 SEM Receipt of hand delivered enclosure letter from Mr. Jeffrey 0.30 19.50 Lowenstein including the Plaintiffs Response to Defendant ROPA 65.00/hr . Properties, LLC Emergency Motion for Continuance. Scan and save correspondence and pleadings. KEB 0.20 51.00 255.00/nr 6/29/2010 KEB 2.00 510.00 255. 00/nr 0+; a, 19031500 . 315.00/hr LGC bo rrrcci SIRE Scan and print docs for trial 0.50 37.50 and update client file with same. 75.00/hr 6/30/2010 LGC Scan file stamped copy of DWC vacation letter to update client file. 0.10 NO CHARGE 75.00/hr DWC Trip to Courthouse for motion for continuance. Wait on judge to 2.20 693.00 call case. Argue motion. Judge grants continuance of the Partial 315.00/hr Motion for Summary Judgment. Meet with Lowenstein after the hearing to discuss scheduling. Lowenstein also discusses mediation. Retum to office. Draft email to client and lawyers. updating current information and regarding Lowenstein's desire to mediate. For professional services rendered 44.80 $10,659.50 * Additional Charges : 6/11/2010 DWC 14.50 Courier Fee. Paid to On Time Couriers Ck No 5824.e e Ron Tripedo Tricon/Towerworks Inc. & Properties, LLC Page 7 Total costs $14.50 Total amount of this bill $10,674.00 Previous balance $7,063.86 6/8/2010 Payment - Thank You. Check No. 1407 ($2,749.36) 7/6/2010 Payment - Thank You. Check No. 1353 ($3,000.00) Total payments and adjustments ($5,749.36) Please replenish Client funds with $5,000.00 Balance due $16,988.50 Prior balances are due immediately. Current charges are due on or before 06/30/2010. Thank you.DARRELL W. Cook & ASSOCIATES A PROFESSIONAL CORPORATION - FEIN: 75-2906482 ONE MEADOWS BUILDING 5005 GREENVILLE AVE., SUITE 200 DALLAS, TX 75206 TELEPHONE: 214.368-4686 FACSIMILE: 214-363-9979 Ron Tripoda Tricon/Towerworks Inc. & Properties, LLC 1171 Bridgemill Ave Canton GA 30114 August 01, 2010 Invoice #: 30891 In Reference To:American Communications LLC Professional Services _—HrsiRate _ Amount 7/1/2010 KEB Continue drafting First Amended Special Appearance. 2.50 637.50 255.00/hr 7/2/2010 DWC. Telephone call to Jeffrey S Lowenstein -- spoke -- Called to confer 0.10 31.50 on our motion to continue the summary judgment setting. He 315.00/hr said that they would move it and will get back to us. Told him any day on the 6th or later would be fine. KES QRS eens 2.60 637.50 255.00/hr 7/6/2010 SEM Process fax from Mr. Jeffrey S. Lowenstein containing the 0.20 13.00 Plaintiff's First Notice of Reset of Hearing on the Plaintiffs Motion 65.00/hr for Partial Summary Judgment on Plaintiffs Breach of Settlement Agreement Claim. Scan and save correspondence and pleadings. SEM Process fax from Mr. Jeffrey S. Lowenstein containing the 0.20 43.00 Plaintiffs Second Notice of Reset of Hearing on the Plaintiff's 65.00/hr Motion for Partial Summary Judgment on Plaintiffs Breach of Settlement Claim. Scan and save correspondence and pleadings. 7/712010 DWC. ‘Telephone call from Jeffrey S Lowenstein - spoke ~ Discuss 0.70 220.50 scheduling. Conclusion: He will move the TI hearing to a later 315.00/nr date and we will go first with our Special Appearance. Discuss mediation. Agree that July 26 might work. We will both talk to our clients to decide. Determine to use Chris Nolland, if he is available.Ron Tripodo. Tricon/Towerworks Inc. & Properties, LLC 7/12/2010 KEB 7113/2010 KEB 7/14/2010 KEB KEB 7/18/2010 DWC 7/49/2010 DWC 7122/2010 LGC 7/23/2010 DWC 7/27/2010 LGC ona eer Draft email to Jeff owenstein about aining documents. Review email from Jeff Lowenstein regarding scheduling issues and chsinn proc. Telcon with Jeffrey Crouch. He has been retained to represent the Defendants. Discuss history of the case. He is going to file a designation of lead counsel and notice of appearance. Discuss with Tree getting the file ready for pick up by new counsel's office. Telephone call from Mr. Jeffrey L. Crouch ~ spoke — Extensive conversation regarding the case. Telephone call from Mr. Jeffrey L. Crouch - spoke -- Long discussion involving the case and the strategy we have employed. Scan and save accounting documents Telephone call to Mr. Jeffrey L. Crouch -- spoke -- Discuss forwarding emails. Work on segregating emails into a format in which I can send them to Jeff Crouch. Calendar scheduling order. For professional services rendered Previous balance 7/1412010 Payment - Thank You. Check No. 1459 Total payments and adjustments Balance due Prior balances are due immediately. Current charges are due on or before 08/31/2010. Hrs/Rate 0.10 315,00/hr 0.80 255.00/nr 0.20 255.00/hr 0.50 255.00/hr 0.20 255.00/hr 0.60 315.00/hr 4.10 315.00/hr 9.10 75.00/hr 4.20 345,00/hr 0.30 75.00/hr 411.30 . Thank you. Page 2 Amount NO CHARGE 204.00 54.00 ~ 127.50 51.00 189.00 346.50 NO CHARGE 378.00 22.50 ~~ $2,922.50 $11,988.50 ($1,314.50) ($1,314.50) $13,596.50Ron Tripodo Tricon/T ‘owerworks Inc. & Properties, LLC Page 3DARRELL W. Cook & ASSOCIATES A PROFESSIONAL CORPORATION - FEIN: 75-2906482 ONE MEADOWS BUILDING 5005 GREENVILLE AVE., SUITE 200 DALLAS, TX 75205 TELEPHONE: 214-368-4686 FACSIMILE: 214-363-9979 Ron Tripedo Tricon/Towerworks Inc. & Properties, LLC 1171 Bridgemill Ave Canton GA 30114 September 01, 2010 Invoice #: 31094 in Reference To:American Communications LLC Professional Services Hrs/Rate Amount 8/3/2010 TLB Draft enclosure letter and fax cover sheet to Mr. Lowenstein and Mr. 0.20 15.00 Crouch; process and fax enclosure letter along with Motion to 75.00/hr Withdraw to Mr. Lowenstein and Mr. Grouch for their records. Scan and save correspondence and pleadings. KEB Prepare motion to withdraw for filing. Upload to court. . 0.40 102.00 285.00/hr For professional services rendered 0.60 $117.00 Additional Charges : 8/3/2010 DWC 18.36 e-Filing Fee for Motion for Withdrawal. CaseFile Total costs $16.36 Totat amount of this bill $133.36 Previous balance $13,596.50 Balance due $13,729.86 Prior balances are due immediately. Current charges are due on or before 09/30/2010. Thank you.® ® Ron Tripodo Tricon/Towerworks Inc. & Properties, LLCEXHIBIT 4 EXHIBIT 4~ -*eg/15/2018 14:48 §134219444 ATTORNEYS AT LAW PAGE 1/82 THOMAS J. LEKSAN CO,, LP.A. A LEGAL PROFESSIONAL ASSOCIATION 1000 TRISTATE BUILDING 432 WALNUT STREET CINCINNATI OHIO 45202 OHIO, KENTUCKY 513-665-9400 . AND UNITED STATES . : FACSIMILE: FEDERAL COURTS tleksan@leksanlaw com. 513-421-9444 PLEASE DELIVER THIS FACSIMILE TRANSMISSION TO: Name:_(@ARatc U2 Cogp Date: 2-4 fos Firm/Company Facsimile number, 2/4 — G63 - 997% Pages (including cover page): 2_ Re_Q2-/a-/o fee Seremen? ~ TR ifoe2 Instractions: No original documents will follow. Original documents will follow by regular U.S. mail, This message is intended for use only by the individual or entity to which it is addressed and may contain information that is privileged, confidential, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this -comununication in error, please notify us immediately by telephone, and return the original facsimile to us at the above address. IF YOU DO NOT RECEIVE A COMPLETE TRANSMISSION, PLEASE CALL (512) 665-9400.= -*702715/2818 14:48 5134219444 ATTORNEYS AT LAW PAGE 82/82 Ren Tripodo elo Thomas D. Sherman February 12, 2010 Page 7 PERSONAL GUARANTEE OF THOMAS LEKSAN In consideration of credit being extended by DARRELL W. COOK & ASSOCIATES to RON TRIPODO, TRICON/TOWER WERKS, INC. AND ROPA PROPERTIES, LLC {aggregately known as “Client") for Legal Services and cxpenses to be supplied. THOMAS LEKSAN, the undersigned guarantor, hereby contracts and guarantees to DARRELL W. COOK & ASSOCIATES the faithful payment, when due. of all accounts of said Client The undersigned expressly waives all notice of acceptance of this guarantee, notice of extension of credit to Client, presentment, and demand for payment on Client, protest and notice to undersigned guarantor of dishonor or default by Cileat, extension of time of payment to spplicant, acceptance of partial payment or partial compromise. all other notices to which the undersigned guarantor might otherwise be entitied and demand for payment under this guarantee. Any revocation of this guaranice shall be in writing and delivered to DARRELL W. COOK & ASSOCIATES. THOMAS “initials”EXHIBIT 5 EXHIBIT 5DARRELL W. COOK, P.C. D/B/A DARRELL W. COOK & ASSOCIATES, A PROFESSIONAL CORPORATION Plaintiff, v. THOMAS J. LEKSAN, Defendant. CAUSE NO. DC-10-16833-A IN THE DISTRICT COURT § § § § ; § 14"-A JUDICIAL DISTRICT § § § DALLAS COUNTY, TEXAS STATE OF TEXAS § § DALLAS COUNTY § AFFIDAVIT OF DARRELL W. COOK BEFORE ME, the undersigned authority, personally appeared, who, being duly sworn, deposed as follows: “My name is DARRELL W. COOK. | am over 18 years of age, of sound mind, and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct. “Tam the president of DARRELL W. COOK, P.C. D/B/A DARRELL W. COOK & ASSOCIATES, A PROFESSIONAL CORPORATION (hereinafter “Plaintiff” or “DWCA”), Plaintiff; and [ have or a person under my supervision has care, custody, and control of all records concerning the account of RON TRIPODO, TRICON/TOWERWERKS, INC. AND ROPA PROPERTIES (hereinafter “Tripodo”), and THOMAS J. LEKSAN (hereinafter “LEKSAN”), Defendant, “Attached hereto as Exhibits 1, 2, 3, 4, and 7, are 35 pages of records, which are kept by DWCA in the regular course of business of DWCA, and it was in the regular course of business for an employee or representative of DWCA, with knowledge of the acts, events, conditions, opinions, or diagnoses that were recorded, to make these records or to transmit the information to be included in these records. These records were made at or near the time or reasonably soon after the act, event, condition, opinion, or diagnosis that was recorded. The records attached hereto are the originals or exact duplicates of the originals. AFFIDAVIT OF DARRELL W. COOK PAGE L OF34. “These records show that a principal balance of thirteen thousand two hundred twenty-nine dollars and eighty-six cents ($13,229.86), exclusive of interest, is due and payable by LEKSAN to DWCA. 5. “This action is based upon a written contract and personal guarantee on which a systematic record was kept. 6. “The Fee Agreement, marked as ‘Exhibit 1° and attached hereto, is within my knowledge to be a true and accurate copy of the original. The breakdown of Defendants’ account, marked ‘Exhibit 2' and attached hereto, is within my knowledge to be a true and accurate copy of the original, and a just and true accounting of the sums owed in accordance with the terms of the contract. The invoices that form that basis of this suit, marked ‘Exhibit 3° and attached hereto, are within my knowledge to be a true and accurate copies of the originals. and constitute a just and true accounting of the professional services rendered. The personal guaranty marked ‘Exhibit 4° and attached hereto, is within my knowledge to be a true and accurate copy of the original. The demand letter marked ‘Exhibit 7” and attached hereto, is within my knowledge to be a true and correct copy of the original. 7. “Demand for payment of the just amount owing DWCA by LEKSAN has been made on LEKSAN and payment for the just amount owing has not been tendered. 8. “DWCA has standing to sue for breach of contract because DWCA was an orginal party to the contract and personal guaranty between DWCA and LEKSAN. 9. “DWCA performed its contractual obligations by providing the professional services contracted for and requested by Tripodo, and for which payment was personally guaranteed by LEKSAN. Such legal services were reasonable and necessary, and were provided at the express direction of Tripodo. 10. “LEKSAN breached the contract and personal guaranty he entered into with DWCA. Under the terms of the personal guaranty, LEKSAN ‘guarantee[d] the faithful payment, when due, of all accounts or said Client [Tripodo].’ Despite repeated requests, Tripodo never remitted payments on his account with DWCA. DWCA then demanded payment from LEKSAN, in accordance with the terms of the personal guaranty. Despite repeated requests, LEKSAN never remitted payment on the Tripodo account. 11. “LEKSAN’s breach of its contract with caused DWCA damages totaling thirteen thousand two hundred twenty-nine dollars and eighty-six cents ($13,229.86). 12. “DWCA presented the claims it asserted in this suit to LEKSAN and payment for the just amount was not tendered. AFFIDAVIT OF DARRELL W. COOK PAGE 2 OF 313. “DWCA was required to engage the services of counsel to represent its interests in the above-styled case and has agreed to pay reasonable and necessary attorney’s fees in that regard.” Further Affiant Sayeth Not. DARRELL W. COOK, P.C, D/B/A DARRELL W. COOK & ASSOCIATES A PROFESSIONAL CORPORATION Plaintiff, BY: Bw— DARRELL W. COOK, Affiant SIGNED AND SWORN to before me by DARRELL W. COOK on April 27, Sin Ae boven UNDA GERETTE COONS: Notary Public, State of Texas MY COMMISSION EXPIRES My Commission Expires: 13h hee January 13, 2013 AFFIDAVIT OF DARRELL W. COOK PAGE3 OF3EXHIBIT 6— EXHIBIT 6DARRELL W. COOK, P.C. D/B/A DARRELL W. COOK & ASSOCIATES, A PROFESSIONAL CORPORATION Plaintiff, v. THOMAS J. LEKSAN, Defendant. STATE OF TEXAS CAUSE NO. DC-10-16833-A : IN THE DISTRICT COURT § § § § 14".4 JUDICIAL DISTRICT § § § § DALLAS COUNTY, TEXAS § § COUNTY OF DALLAS § BEFORE ME, the undersigned authority, on this day personally appeared DARRELL W.