Preview
FILED
10/26/2020 4:58 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Rosa Delacerda DEPUTY
DC-19-16750
§
HIATUS DALLAS 2, LLC, HIATUS FORT § IN THE DISTRICT COURT
WORTH, LLC, and HIATUS FRISCO, §
LLC, §
§
Plaintiffs, §
14th JUDICIAL DISTRICT
§
v. §
§
WESLEY DAVID AKERS and AKERS § DALLAS COUNTY, TEXAS
LLC, §
§
Defendants. §
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Plaintiffs Hiatus Dallas 2, LLC (“Hiatus Dallas”), Hiatus Fort Worth, LLC (“Hiatus Fort
Worth”) and Hiatus Frisco, LLC (“Hiatus Frisco”) (collectively, “Plaintiffs”) respectfully file this
Motion for Traditional Summary Judgment (“Motion”) against defendants Wesley David Akers
(“Akers”) and Akers LLC (“Akers LLC”) (collectively, “Defendants”).1
1
Neither of Defendants are presently represented by legal counsel, as their prior attorneys
withdrew based upon Defendants’ non-responsiveness. A
corporate entity such as defendant
Akers LLC must be represented by licensed legal counsel to proceed in a lawsuit. Any action
undertaken Without legal counsel deemed void and 0f n0 legal
is effect. Kunstoplast ofAm. v.
Formosa Plastics Corp. USA, 937 S.W.2d 455, 456 (Tex. 1996).
Additionally, the Texas Secretary of State has previously forfeited the corporate charter of Akers
LLC. Exh. I.
Because Plaintiffs possess all 0f the evidence to fully establish this Motion, Plaintiffs proceed With
this Motion rather than move for a default judgment against Akers LLC. This Motion, if granted,
would largely, and more likely entirely, resolve this case.
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 1
I.
SUMMARY OF MOTION
Akers used his wholly-owned company, Akers LLC, as a vehicle to commit extensive fraud
and theft against Plaintiffs (who were Akers LLC’s customers) as well as a group of construction
companies who performed work and provided materials to Akers LLC (who were Akers LLC’s
subcontractors). While perpetrating this wrongdoing, Akers LLC also breached its contracts With
Plaintiffs.
Akers induced Plaintiffs to hire Akers LLC by promising that Defendants could execute
three quality construction projects by very specific deadlines. Akers LLC grossly failed to adhere
t0 those deadlines to complete construction — dragging the construction out for many, many months
beyond the applicable deadlines (and this was pre-Covid 19) and even then did not complete the
projects. Akers LLC also breached its contracts With Plaintiffs by grossly exceeding the agreed
construction price on each proj ect.
But, more egregiously, as a general contractor, Akers LLC billed Plaintiffs for construction
services; Plaintiffs paid for those services; but then Akers stole the money and failed to pay the
subcontractors Who performed the work — to the tune ofhundreds 0fthousands ofdollars. This
was a third breach of the subject contracts. This theft, in turn, caused a wave of these unpaid
subcontractors t0 assert liens against Plaintiffs and their landlords. Plaintiffs were forced t0 pay a
great deal of money t0 resolve the liens.
Additionally, in a blatant act of criminal theft, Akers caused Akers LLC t0 bill Hiatus
Dallas for certain air conditioning equipment; Hiatus Dallas paid for that equipment; but then
Akers simply stole the money. When confronted, Akers lied and stated that he had the equipment
in storage.
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 2
After terminating Akers LLC for multiple breaches of contract 7 including failure to
complete the work by the agreed deadlines, failure to pay his subcontractors, exceeding the
contract prices, and theft -- Plaintiffs were forced to spend hundreds 0f thousands 0f dollars t0
repair and then complete the work that Defendants had initiated but not completed.
Akers has caused tremendous economic harm t0 Plaintiffs, which is why Plaintiffs brought
this lawsuit.
II.
SUMMARY JUDGMENT EVIDENCE
In support 0f this Motion, Plaintiffs proffer the following summary judgment evidence,
which is attached and hereby incorporated by reference:
o Exhibit A, sworn declaration of Sheila M. Garrison, owner of Plaintiffs, with attached
Exhibits A-1 (Hiatus Fort Worth construction contract), A-2 (Hiatus Dallas construction
contract), and A-3 (Hiatus Frisco construction contract), A—4 (Frisco landlord
disqualification 0f Akers LLC as a general contractor); A-5 (Plaintiffs’ demand to cure
Akers LLC’s failure to pay subcontractors); A-6 (Plaintiffs’ notice of termination 0f Akers
LLC); A-7 (Hiatus Frisco’s demand A-8 (Akers LLC invoice t0
for return 0f deposit);
Hiatus Dallas for HVAC equipment); A-9 (Hiatus Dallas’ payment for said HVAC
equipment); and A-10 (Hiatus Dallas’ demand for return of the stolen monies).
o Exhibit B, Akers LLC’s responses to Hiatus Fort Worth’s requests for admissions, dated
February 7, 2020;
o Exhibit C, Akers LLC’s responses to Hiatus Dallas’ requests for admissions, dated
February 7, 2020;
o Exhibit D, Akers LLC’s deemed admissions to Hiatus Fort Worth’s requests for
admissions dated July 1, 2020.2
2 As established in Exhibit G, the sworn declaration of Plaintiffs’ legal counsel, Defendants did
not respond t0 multiple sets 0f requests for admissions. Consequently, under Texas law, each of
these requests “is considered admitted without the necessity of a court order. Tex. R. CiV. P.
198.2(c). Where a party admits a fact in response to a request for admission, as here, that fact is
“conclusively established” for all judicial purposes. Tex. R. Civ. P. 198.3. The party making the
judicial admission may not introduce any evidence in conflict with the admission. Marshall v.
Vise, 767 S.W.2d 699, 700 (Tex. 1989); Buetel v. Dallas C0. Flood Control District, 916 S.W.2d
685, 694 (Tex.App.—Waco 1996, writ denied); Bay Area Thoracic & Cardiovascular Surgical
Assn. v. Nathanson, 908 S.W.2d 10, 11 (Tex.App.—H0uston 1995, no writ).
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 3
o Exhibit E, Akers LLC’s deemed admissions to Hiatus Dallas’ requests for admissions
dated July 1, 2020.
o Exhibit F, Akers LLC’s deemed admissions to Hiatus Frisco’s requests for admissions
dated July 1, 2020.
o Exhibit G, sworn declaration of William J. Garrison, legal counsel for Plaintiffs,
establishing the authenticity 0f Exhibits B through F and I, and the fact of Akers LLC’s
non-response to Exhibits D through F such that these requests are deemed admitted under
Texas law. Tex. R. Civ. P. 198.2(0).
o Exhibit H, sworn declaration of Jennifer Hemingson, controller and representative for
summarized in Exhibits H-l (Fort Worth Project) and H-
Plaintiffs, establishing the data
2 (Dallas Project) and thus specifying Plaintiffs’ economic damages.
o Exhibit I, Texas Secretary 0f State forfeiture of Akers LLC’s charter dated February 28,
2020.
III.
BACKGROUND AND UNDISPUTED MATERIAL FACTS
1. The Parties. Plaintiffs own and operate day spas, “Hiatus Spa + Retreat”
(“Hiatus”) locations, throughout the State of Texas.3 Three long-time friends created the business
in 2007 and initiated the first location in Dallas’ Inwood Village that same year.4
2. Akers is a general contractor.5
3. Akers owns and solely controls Akers LLC, a limited liability company through
which Akers operates his general contractor business.6
4. Plaintiffs Hired Al_(ers LLC. Beginning in 2018, several commercial landlords
reached out to Plaintiffs regarding opportunities to build and operate day spas in Fort Worth, Dallas
and Frisco.7 Each 0f these Opportunities involved the chance for Hiatus to work with premier
3
Exh. A, para. 2.
4 Exh. A, para. 2.
5
Exh. B, Response No. 2.
6 Exh. C, Response Nos. 1 and 2.
7
Exh. A, para. 3.
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 4
brands in excellent locations, including “Crockett Row” in Fort Worth, “The Hill” in Dallas, and
“The Star” in Frisco.8
5. As Plaintiffs considered potential general contractors to execute these projects --
proj ects that would likely occur concurrently, or at least in close order to each other -- Hiatus was
introduced t0 Akers LLC.9
6. Akers held himself out as a skilled and experienced general contractor, engaged in
the business of managing and providing quality construction services on substantial proj ects.”
7. Akers repeatedly assured Plaintiffs that Akers LLC possessed the necessary
resources t0 build the multiple day spas required by Plaintiffs in a timely manner.“
8. Plaintiffs thus hired Akers LLC to build day spas in Fort Worth, Dallas and Frisco,
entering into separate contracts for each location.”
9. For each of the three projects, Plaintiffs provided Akers LLC With a $50,000.00
deposit or ”mobilization fee” to facilitate Akers LLC beginning the work without delay.”
10. Akers LLC Breached its Commitment to Complete the Proiects bv the
Specified Deadlines. The contracts between Plaintiffs and Akers LLC regarding each 0fthe three
projects are substantially identical. Each required Akers LLC to complete construction of the
subject project within 120 days 0f initiation 0f the work, subject t0 some defined permissible
8
Exh. A, para. 3.
9
Exh. A, para. 4.
1° Exh. A, para. 5; Exh. B, Response Nos. 1-2; and Exh. C, Response Nos. 4-5.
11
Exh. A, para. 6.
12 A-l (Fort Worth), A-2 (Dallas) and A-3 (Frisco).
Exh. A, para. 8: see attached Exhs.
13
Exh. A, para. 8; Exh. A-l, Section 2.2; Exh. A-2, Section 2.2; and Exh. A-3, Section 2.2.
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 5
incidents of delay, i.e., delay not caused by Akers LLC, not applicable here.” The projects were
thus t0 be completed by the following dateszls
O Hiatus Fort Worth = April 5, 2019
0 Hiatus Dallas = July 23, 2019
o Hiatus Frisco = (Not applicable as Akers LLC never undertook the project, which
is discussed below.)
11. Hiatus Fort Worth and Hiatus Dallas would learn that Akers LLC had grossly
misrepresented its abilities and resources. Akers would shift Akers LLC’s inadequately-numbered
personnel between the Fort Worth and Dallas proj ects, causing both proj ects to fall terribly behind
schedule.” And frequently no one from Akers LLC could be found working at either project.”
12. Akers LLC breached the contractual deadlines for completion 0f the Projects by
many months. When Hiatus Fort Worth terminated Akers LLC, as described below, Akers LLC
had already spent over nine months (five months beyond the deadline) working 0n the proj ect and
the project was still incomplete.” When Hiatus Dallas terminated Akers LLC, Akers LLC had
already been working on that project for six months (two months beyond the deadline), and the
project was not even half done.” Defendants admit they missed the contractual deadlines 0n both
projects.”
13. Akers LLC’s breaches of its contractually-agreed project deadlines alone caused
Hiatus Fort Worth and Hiatus Dallas t0 suffer extensive monetary harm, including in the form of
14
Exh. A-l, Section 4; Exh. A-2, Section 4; Exh. A-3, Section 4; Exh. B, Response N0. 6; and
Exh. C, Response No. 9.
15 Exh.
A, para. 9.
16 Exh. A, para. 10.
17 Exh. A, para. 10.
18
Exh. A, para. 11.
19 Exh. A, para. 11.
2° Exh. B, Response Nos. 7 and and Exh. Response Nos. 10 and 11.
8; C,
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 6
Plaintiffs’ payment of rent to landlords and salaries to personnel while the businesses remained
unopened.”
14. Mel‘s LLC Did Not Pav Its Subcontractors Because Its Owner. Al_(ers. Stole
the Monies that Should Have Been Paid t0 the Subcontractors. Despite Akers LLC failing
miserably to complete the work on schedule, Plaintiffs continued working With the company in
hopes of avoiding the additional time, difficulty and expense of hiring replacement general
contractors for the proj cots.” That was until Plaintiffs discovered that Akers was stealing monies
from Akers LLC’s subcontractors.
15. In late August 2019, a subcontractor named TDI Refrigeration, LLC (“TDI”)23,
who had been working on the Fort Worth project, reached out t0 Hiatus Fort Worth.“ TDI
established that Akers LLC had failed to pay it $164,977.89 for heating, ventilation and air
conditioning (“HVAC”) work.”
16. Shortly thereafter, beginning in September 2019, a steady stream of Akers LLC’s
subcontractors, parties who had been hired by Akers LLC to work on the Fort Worth and Dallas
projects, began contacting Plaintiffs to complain that they were not being paid by Akers LLC.26
They told stories of Akers either telling them that payment had somehow not made it to them (“the
check is in the mail”) or an even more blatant lie that Plaintiffs were withholding payment from
Akers LLC and that was why Akers LLC had not paid the subcontractors.”
21 EXh. A, para. 12.
22 Exh. A, para. 13.
23
TDI is now an intervening plaintiff in this case.
24 Exh. A, para. 14.
25
Exh. A, para. 14; and Exh. B, Response N0. 53.
26 Exh. A, para. 15.
27
Exh. A, para. 15.
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 7
17. It became increasingly apparent to Plaintiffs that Akers was defrauding one
subcontractor after another.” The scheme was simple yet hard to detect in a timely manner
especially given that Plaintiffs had not hired, and had no ongoing communications, With the
subcontractors.”
18. Using Akers LLC, Akers would bill Plaintiffs for work. Plaintiffs would then pay
for that work.” But then, rather than pay Akers LLC’s subcontractors for that same work, Akers
would instead keep the monies for himself.“
19. Using this fraudulent scheme, Akers pocketed over $350,000.00 of monies that
Akers LLC had received from Hiatus Fort Worth and Hiatus Dallas monies that should have
been used to pay Akers LLC’s subcontractors.”
20. For the Fort Worth Proj ect, Exhibit H-l details the key information: a) the contract
price agreed between Hiatus Fort Worth and Akers LLC; b) the amount that Hiatus Fort Worth
paid to Akers LLC; c) the amount (at minimum) that Akers LLC appropriated from its
subcontractors; and d) the cost t0 complete the project after Hiatus Fort Worth terminated Akers
LLC for breaching the subject contracts, as detailed below. The information is summarized as
followsz33
28 Exh. A, para. 16.
29
Exh. A, para. 16.
3° Exh. A, para. 17.
31
Exh. A, para. 17.
32 Exh. A, para. 18; and Exh. H including Exhs. H-l and H-2.
33 Exh. H, paras. 3-5; Exh. H—l; and Exh. D, Non-response Nos. 13-16.
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 8
CONTRACT PRICE AMOUNT THAT AMOUNT THAT AMOUNT THAT
(including all change HIATUS FORT AKERS DIVERTED HIATUS FORT
orders) WORTH PAID TO FROM AKERS LLC’S WORTH PAID T0
AKERS LLC SUBCONTRACTORS COMPLETE PROJECT
(reported by (including payments
subcontractors) to unpaid
subcontractors and
removal of their
liens)
$549,516.00 $509,318.00 $267,000.00 plus $140,880.95
21. For the Dallas Project, Exhibit H-2 details the same information, Which is
summarized as followsz34
CONTRACT PRICE AMOUNT THAT AMOUNT THAT AMOUNT THAT
(including all change HIATUS FORT AKERS DIVERTED HIATUS FORT
orders) WORTH PAID TO FROM AKERS LLC’S WORTH PAID TO
AKERS LLC SUBCONTRACTORS COMPLETE PROJECT
(reported by (including payment
subcontractors) to unpaid
subcontractors and
removal of liens)
$456,670.00 $389,650.00 $111,800.00 plus $614,876.57
22. The Frisco Proiect Owner/Landlord Disqualified Akers LLC from Working
0n That Project. Hiatus Frisco’s lease with its landlord at The Star, Blue Star Frisco Retail, LLC
(“Blue Star”), required that Akers LLC remain qualified in the sole discretion of Blue Star in order
t0 perform as a general contractor at The Star.”
34 Exh. H, paras. 3-5; Exhibit H-2; and Exh. E, Non-response Nos. 22-25.
35 Exh. A, para. 19; and Exh. A—4.
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 9
23. On September 19, 2019, after Blue Star learned that Akers was engaged in a
fraudulent scheme 0f not paying subcontractors -- Which was resulting in subcontractors filing
liens against multiple landlord’s and tenant’s real property interests -- Blue Star disqualified Akers
LLC from serving as Hiatus Frisco’s general contractor at The Star.“
24. Plaintiffs Terminated Akers LLC. Plaintiffs’ contracts with Akers LLC required
Akers LLC to, among other things, complete the projects by the specific deadlines and, more
importantly, pay those subcontractors with whom Akers LLC had contracted to perform the
work.” As detailed above, Akers LLC breached the agreements on all counts.
25. Consequently, on September 24, 2019, Hiatus Fort Worth and Hiatus Dallas sent
notices to Akers LLC demanding that the company immediately pay the many subcontractors that
it had failed t0 pay.” Neither Akers nor Akers LLC responded t0 either demand.
26. As a result, 0n October 2, 2019, Plaintiffs terminated their contracts With Akers
LLC and again demanded that Akers LLC pay the subcontractors that it had hired.”
27. Hiatus Fort Worth and Hiatus Dallas Paid t0 Complete the Fort Worth and
Dallas Proiects. Respectivelv. After terminating Akers LLC for its various breaches 0f contract
and associated fraud/grift, Plaintiffs were compelled to complete the Fort Worth and Dallas
Proj ects for which they were already paying rent t0 the landlords. As detailed above and set forth
in Exhibit H, Hiatus Fort Worth incurred $100,682.95 to complete the Fort Worth Project and
Hiatus Dallas incurred $614,876.57 to complete the Dallas Project (which was not remotely near
completion despite being many months beyond the completion deadline)“
36 Exh. A, para. 20; and Exh. A-4 (Blue Star disqualification of Akers LLC).
37 Exhs A-l, Sections 1.2 and 2.6; A-2, Sections 1.2 and 2.6; and A-3, Sections 1.2 and 2.6.
38 Exh.
A, para. 21; and Exh. A—5 (notice and demand).
39 Exh.
A, para. 22; and Exh. A-6 (termination).
4°
Exh. A, para. 23; and Exh. H With attached Exhs. H—1 and H—2.
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 10
28. Akers LLC Wrongfullv Retained Hiatus Frisco’s Deposit. After Blue Star
disqualified Akers LLC from working at The Star such that it was then impossible for Akers LLC
t0 serve as a general contractor there, Hiatus Frisco demanded that Akers LLC return the
$50,000.00 deposit that it had placed with Akers LLC for future work at The Star.“ Defendants
admit that they were not able t0 proceed With the work under the Hiatus Frisco agreement, and that
they never did perform any work on the Frisco Project.“
29. Akers LLC failed to return Hiatus Frisco’s money.“ Again, no response was
received from Akers or Akers LLC.
30. Mel's Blatantlv Stole $35,650.00 from Hiatus Dallas. After terminating Akers
LLC, Plaintiffs undertook to assess the degree of progress that Akers LLC had actually made at
the Fort Worth and Dallas projects.“ During the course of this assessment, Hiatus Dallas
discovered that Akers had stolen a very large amount of money from Hiatus Dallas.
3 1. On May 28, 2019, Akers LLC invoiced Hiatus Dallas $35,650.00 for three HVAC
units.“
32. On July 1, 2019, Hiatus Dallas paid Akers LLC $35,650.00 for the HVAC units.“
33. On October 1, 2019, Hiatus Dallas learned that the HVAC units for which it had
were not located at the project. S0 Hiatus Dallas asked Akers the direct question 0f where the
HVAC units were located, “Where are the HVAC units that Hiatus paid you for?”47
41 EXh. A, para. 24: and Exh. A-7 (demand for return of deposit).
42 Exh.F, Response Nos. 1-7.
43
Exh, A, para. 25; and Exh. F, Response Nos. 10-12.
44
Exh, A, para. 26.
45
Exh, A, para. 27; and Exh. A-8 (invoice).
46 Exh. A, para. 28; and Exh. A-9 (check).
47
Exh. A, para. 29; Exh. A-lO, p. 2.
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
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34. In response, Akers stated, “We have them stored” “[i]n storage at our office?“
35. On October 8, 2019, Hiatus Dallas demanded that Akers return Hiatus Dallas’
money, but Akers did not respond to the demand.” Neither Akers nor his attorney denied that
Akers stole the monies.
36. In this case, Akers LLC has admitted that it never purchased the HVAC equipment
and that Akers lied when he asserted otherwise.”
IV.
LEGAL STANDARD
The Court is quite knowledgeable regarding the applicable legal standard. The purpose of
a summary judgment proceeding is to provide an efficient means to dispose of a claim in the case
that does not present a material controversy of fact. New Jersey Bank (N.A.) v. Knuckley, 637
S.W.2d 920, 921 (Tex. 1982); Diversicare General Partner, Inc. v. Rubia, 185 S.W.3d 842, 846
(Tex. 2005). A plaintiff proving a claim through evidence is “entitled t0 judgment as a matter of
law.” Tex. R. CiV. P. 166a(c).
V.
BREACH OF CONTRACT CLAIMS
PLAINTIFFS’
ARE ESTABLISHED BY THE UNDISPUTED EVIDENCE
Plaintiffs’ claims that are most plainly decided by the undisputed facts are those for breach
of contract.“
To state what is well known to the Court, a breach of contract is established where there is
a valid contract between the plaintiff and the defendant; the plaintiff performed the contract; the
48
Exh. A-lO, p. 1.
49
Exh, A, para. 30.
50 Exh. E, Non-response Nos. 1-9.
51 Plaintiffs’ Original Petition, Cause No. 4.
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 12
defendant breached the contract; and the plaintiff suffered damages as a result. Marquis
Acquisitions, Inc. v. Steadfast Ins., 409 S.W.3d 808, 813-14 (Tex.App.—Dallas 2013, n0 writ).
As detailed and evidenced in Section III, Akers LLC breached its contractual obligations
three different and independent ways: 1) Akers LLC failed to meet the stated deadlines for
completion of the Projects; 2) Akers LLC failed to pay the subcontractors that it hired t0 perform
the work; and 3) Akers LLC grossly exceeded the agreed construction prices.52
The subj ect contracts required Akers LLC to complete the Fort Worth Proj ect by April 5,
2019 and the Dallas Proj ect by July 23, 2019. When Plaintiffs terminated Akers LLC 0n October
2, 2019 — almost five months after the first deadline had passed, and more than two months after
the second deadline had passed i Akers LLC still had not completed either project. The Dallas
Proj ect was not even half—way completed.
Defendants appropriated, and thus did not pay, over $350,000.00 owed t0 the
subcontractors that Akers LLC had hired. Plaintiffs made repeated demands to Defendants to
correct this wrongdoing, but Defendants never did pay the subcontractors.53
The contract price for the Fort Worth Project was $549,5 16.00. Setting aside the costs of
the delay (rent, salaries, etc.), and the efforts to address unpaid subcontractors, the completed
project construction cost was $610,000.95.“ The contract price for the Dallas Project was
$456,700. Setting aside the costs 0fthe delay (rent, salaries, etc.), and the efforts to address unpaid
subcontractors, the completed proj ect construction cost was $1,004,526.57.”
52Fact Nos. 10-12 (failure to meet contractual deadline), 14-21 (failure t0 pay subcontractors), and
20 and 28 excerpting Exhibits H-l and H—2 (exceeding agreed contract price).
53
The sad reality is that Defendants’ cheating one subcontractor to go completely
caused at least
out of business. And the remainder, with the exception 0f TDI, simply could not afford to
prosecute a lawsuit against parties such as Defendants.
54
Exh. H-l.
55 Exh. H—2.
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 13
PLAINTIFFS’ COMMOYVLLAW FRAUD CLAIMS
ARE ESTABLISHED BY THE UNDISPUTED EVIDENCE
Plaintiffs assert claims for common law fraud against Defendants.56
Common law fraud exists where a defendant makes a material misrepresentation of fact to
a plaintiff, knowing the represented fact t0 be false, and the plaintiff suffers monetary damages
after relying upon plaintiff’s misrepresentation. Zorrillo v. Aypco Constr. II, LLC, 469 S.W.3d
143, 153 (Tex. 2015).
As detailed above, Defendants (Akers and his Wholly-owned and unchartered LLC)
committed an egregious act 0f common law fraud against Hiatus Dallas. Defendants indicated
that Akers LLC had purchased $36,650.00 of HVAC equipment; caused Hiatus Dallas to pay
Akers LLC $36,650.00 for the equipment; but then just pocketed the money never having
purchased the HVAC equipment in the first place.” To further the fraud, Akers lied that Akers
LLC had purchased the equipment and placed it “in storage at our office.”58
More broadly, Defendants tricked Plaintiffs into hiring them in the first place by falsely
representing their construction abilities and honesty. Defendants represented that they could
prosecute three construction projects to completion in a specified timeframe. Defendants
represented that they would timely pay their subcontractors and protect Plaintiffs from any liens
and legal actions. In reality, Defendants Wholly lacked the personnel t0 perform as promised, a
fact well known to Defendants from the beginning. Defendants knew that the Projects would
56 Plaintiffs’ Original Petition, Count 1.
57 Fact Nos. 3 1 -39.
58 Fact Nos. 36-39.
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 14
provide them a means to steal monies from others -- a means to an end 7 which is exactly what
they did.”
VII.
PLAINTIFFS’ DTPA CLAIMS
ARE ESTABLISHED BY THE UNDISPUTED EVIDENCE
Plaintiffs assert claims for Violation 0f the Texas Deceptive Trade Practices Act (“DTPA”)
against Defendants.“
Each of Plaintiffs is a “consumer” in its dealings with Defendants, as that term is defined
in the Texas Business and Commerce Code’s codification of the Texas Deceptive Trade Practices
Act (“DTPA”).61
Defendants are proper defendants under the DTPA.62
As detailed above, Akers LLC, Which serves as an “alter ego” 0f Akers in light of its use
as a conduit t0 commit fraud, violated the DTPA by, among other things, committing false,
misleading or deceptive acts as defined in the DTPA; committing unconscionable acts; and/or
otherwise engaging in deceptive trade practices.63
Defendants engaged in a fraudulent scheme t0 steal monies from Plaintiffs and from third-
party subcontractors.“ Defendants’ unlawful conduct certainly constitutes a Violation of the
DTPA.
59 Fact Nos. 6-8, 10-12, and 14-19.
60 Plaintiffs’ Original Petition, Count 2.
61 Tex. Bus. & Com. Code, Section 17.45(4).
62 Tex. Bus. & Com. Code, Sections 17.45(3) and 17.50(a)(1).
63 Tex. Bus. & Com. Code, Sections 17.46(b)(7), 17.46(b)(9), 17.46(b)(22), 17.46(b)(24) and
17.50(a)(3).
64 Fact Nos. 14-21, Exhs. H—1 and H-2.
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 15
HIATUS DALLAS’ CLAIM FOR VIOIYE’II‘iON OF THE THEFT LIABILTY ACT
IS ESTABLISHED BY THE UNDISPUTED EVIDENCE
Hiatus Dallas asserts a claim for Violation of the Theft Liability Act found in the Texas
Civil Practice and Remedies Code, Sections 134.001-134.005.65
As detailed above, Defendants brazenly stole $35,650.00 from Hiatus Dallas by means of
lying about purchasing certain HVAC equipment and instead pocketing the m0nies.66
Defendants actions are a clear Violation of the Texas Penal Code, Section 31.01(5)(c)
[“personal property” under the Penal Code includes money] and 31.03 [criminal offense 0f theft
described] and thus the Theft Liability Act.
IX.
HIATUS FRISCO’S CLAIMS FOR FRAUDULENT INDUCEMENT AND RESCISSION
ARE ESTABLISHED BY THE UNDISPUTED EVIDENCE
Hiatus Frisco asserts claims for fraudulent inducement and rescission arising from
Defendants’ solicitation of, and gaining of, a $50,000.00 deposit from Hiatus Frisco for the Frisco
Project.“
As detailed above, Defendants tricked Hiatus Frisco into signing a contract and providing
the $50,000.00 deposit.“
65 Plaintiffs’ Original Petition, Count 3.
66
Fact Nos. 30-38.
67
Plaintiffs’ Original Petition, Count S.
68 Fact Nos. 6-9 and 14-20; and Exhs. H—l and H—2.
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 16
Additionally, when property owner The Star declared Akers LLC disqualified as a potential
general contractor for the Frisco Proj ect, it became impossible that Akers LLC could perform the
contract.” The contract must be rescinded and Akers LLC must return Hiatus Frisco’s deposit.
X.
CONCLUSION AND REQUSTED RELIEF
Plaintiffs respectfully requests the Court grant their Motion by granting summaryjudgment
of their claims for breach of contract, common law fraud, Violation 0f the DTPA, Violation 0f the
Theft Liability Act, and fraudulent inducement/rescission.
69 Fact Nos. 22-23; and Exh. A-4 (disqualification). See Centex Corp.
v. Dalton, 840 S.W.2d 952,
954 (TeX. 1992) (corporation precluded from contract performance by supervening impossibility
arising from newfound prohibition against performance originally contemplated).
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 17
DATED: October 26, 2020
Respectfully submitted,
SCHEEF & STONE, LLP
By: /s/Kellv M. Crawford
Kelly M. Crawford
State Bar No. 05030700
kellv.crawford@ solidcounsel.com
500 N. Akard Street, Suite 2700
Dallas, Texas 75201
Phone: (214) 706-4200
BROWN FOX PLLC
By: /s/Eric C. Wood
Eric C. Wood
State Bar No. 24037737
eric@br0wnfox1aw.corn
81 11 Preston Road, Suite 300
Dallas, Texas 75225
Phone: (214) 327-5000
GARRISON, PC
By: /s/William J. Garrison
William J. Garrison
Texas State Bar No. 24043411
4514 Cole Avenue, Suite 600
Dallas, Texas 75205
Telephone (214) 295-3332
E-mail: bill@garrisonpc.com
ATTORNEYS FOR PLAINTIFFS
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 18
CERTIFICATE OF SERVICE
The undersigned hereby certifies that 0n October 26, 2020, I served the foregoing
document upon all existing counsel of record and defendant Wesley Akers in accordance with the
Texas Rules of Civil Procedure.
/S/ William I. Garrison
William ]. Garrison
PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT
Page 19
DC-19-16750
§
HIATUS DALLAS 2, LLC, HIATUS FORT § IN THE DISTRICT COURT
WORTH, LLC, and HIATUS FRISCO, §
LLC, §
§
Plaintiffs, §
14*“ JUDICIAL DISTRICT
§
v. §
§
WESLEY DAVID AKERS and AKERS § DALLAS COUNTY, TEXAS
LLC, §
§
Defendants.
§
DECLARATION OF SHEILA M. GARRISON
1. My name is Sheila M. Garrison. My date of birth is September 19, 1969. My
address is 4514 Cole Avenue, Suite 600, Dallas, Texas 75205. I have personal knowledge 0f all
facts set forth herein. I have read this sworn declaration and have personal knowledge of all facts
set forth herein, which are true and correct.
2. I am an owner and operator 0f eight day spas, “Hiatus Spa + Retreat” (“Hiatus”)
locations, throughout the State of Texas. Three long-time friends, including myself, created the
business in 2007 and initiated the first location in Dallas” Inwood Village that same year. I am a
managing partner 0f Hiatus Fort Worth, LLC (“Hiatus Fort Worth”), Hiatus Dallas 2, LLC
(“Hiatus Dallas”) and Hiatus Frisco, LLC (“Hiatus Frisco”), the plaintiffs in this case
(collectively, “Plaintiffs”). Additionally, I have overseen the construction 0f all eight locations
such thatI am familiar With the required progress of work.
3. Beginning in 201 8, several commercial landlords reached out t0 Plaintiffs regarding
opportunities to build and operate day spas in Fort Worth, Dallas and Frisco. Each of these
EXHIBIT
DECLARATION 0F SHEILA M. GARRISON / \ PAGE 1
opportunities
opportunities involved
involved the
the chance for
for Hiatus to
t0 work with premier brands in
in excellent
excellent locations,
locations,
including
including "Crockett Row” in
“Crockett Row" in Fort
Fort Worth, "The
“The Hill"
Hill” in
in Dallas,
Dallas, and "The
“The Star"
Star” in
in Frisco.
Ffisco.
4.
4. As Plaintiffs
Plaintiffs considered potential
potential general
general contractors
contractors to
to execute
execute these
these projects
projects --
~-
projects
projects that
that would likely
likely occur
occur concurrently,
concurrently, or
0r at
at least
least in
in close
close order
order to
t0 each other
other -~— we were
were
introduced
introduced to
t0 Akers LLC.
5.
5. Akers held
held himself
himself out
out as
as a
a skilled
Preview
FILED 10/26/2020 4:58 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Rosa Delacerda DEPUTY DC-19-16750 § HIATUS DALLAS 2, LLC, HIATUS FORT § IN THE DISTRICT COURT WORTH, LLC, and HIATUS FRISCO, § LLC, § § Plaintiffs, § 14th JUDICIAL DISTRICT § v. § § WESLEY DAVID AKERS and AKERS § DALLAS COUNTY, TEXAS LLC, § § Defendants. § PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Plaintiffs Hiatus Dallas 2, LLC (“Hiatus Dallas”), Hiatus Fort Worth, LLC (“Hiatus Fort Worth”) and Hiatus Frisco, LLC (“Hiatus Frisco”) (collectively, “Plaintiffs”) respectfully file this Motion for Traditional Summary Judgment (“Motion”) against defendants Wesley David Akers (“Akers”) and Akers LLC (“Akers LLC”) (collectively, “Defendants”).1 1 Neither of Defendants are presently represented by legal counsel, as their prior attorneys withdrew based upon Defendants’ non-responsiveness. A corporate entity such as defendant Akers LLC must be represented by licensed legal counsel to proceed in a lawsuit. Any action undertaken Without legal counsel deemed void and 0f n0 legal is effect. Kunstoplast ofAm. v. Formosa Plastics Corp. USA, 937 S.W.2d 455, 456 (Tex. 1996). Additionally, the Texas Secretary of State has previously forfeited the corporate charter of Akers LLC. Exh. I. Because Plaintiffs possess all 0f the evidence to fully establish this Motion, Plaintiffs proceed With this Motion rather than move for a default judgment against Akers LLC. This Motion, if granted, would largely, and more likely entirely, resolve this case. PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 1 I. SUMMARY OF MOTION Akers used his wholly-owned company, Akers LLC, as a vehicle to commit extensive fraud and theft against Plaintiffs (who were Akers LLC’s customers) as well as a group of construction companies who performed work and provided materials to Akers LLC (who were Akers LLC’s subcontractors). While perpetrating this wrongdoing, Akers LLC also breached its contracts With Plaintiffs. Akers induced Plaintiffs to hire Akers LLC by promising that Defendants could execute three quality construction projects by very specific deadlines. Akers LLC grossly failed to adhere t0 those deadlines to complete construction — dragging the construction out for many, many months beyond the applicable deadlines (and this was pre-Covid 19) and even then did not complete the projects. Akers LLC also breached its contracts With Plaintiffs by grossly exceeding the agreed construction price on each proj ect. But, more egregiously, as a general contractor, Akers LLC billed Plaintiffs for construction services; Plaintiffs paid for those services; but then Akers stole the money and failed to pay the subcontractors Who performed the work — to the tune ofhundreds 0fthousands ofdollars. This was a third breach of the subject contracts. This theft, in turn, caused a wave of these unpaid subcontractors t0 assert liens against Plaintiffs and their landlords. Plaintiffs were forced t0 pay a great deal of money t0 resolve the liens. Additionally, in a blatant act of criminal theft, Akers caused Akers LLC t0 bill Hiatus Dallas for certain air conditioning equipment; Hiatus Dallas paid for that equipment; but then Akers simply stole the money. When confronted, Akers lied and stated that he had the equipment in storage. PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 2 After terminating Akers LLC for multiple breaches of contract 7 including failure to complete the work by the agreed deadlines, failure to pay his subcontractors, exceeding the contract prices, and theft -- Plaintiffs were forced to spend hundreds 0f thousands 0f dollars t0 repair and then complete the work that Defendants had initiated but not completed. Akers has caused tremendous economic harm t0 Plaintiffs, which is why Plaintiffs brought this lawsuit. II. SUMMARY JUDGMENT EVIDENCE In support 0f this Motion, Plaintiffs proffer the following summary judgment evidence, which is attached and hereby incorporated by reference: o Exhibit A, sworn declaration of Sheila M. Garrison, owner of Plaintiffs, with attached Exhibits A-1 (Hiatus Fort Worth construction contract), A-2 (Hiatus Dallas construction contract), and A-3 (Hiatus Frisco construction contract), A—4 (Frisco landlord disqualification 0f Akers LLC as a general contractor); A-5 (Plaintiffs’ demand to cure Akers LLC’s failure to pay subcontractors); A-6 (Plaintiffs’ notice of termination 0f Akers LLC); A-7 (Hiatus Frisco’s demand A-8 (Akers LLC invoice t0 for return 0f deposit); Hiatus Dallas for HVAC equipment); A-9 (Hiatus Dallas’ payment for said HVAC equipment); and A-10 (Hiatus Dallas’ demand for return of the stolen monies). o Exhibit B, Akers LLC’s responses to Hiatus Fort Worth’s requests for admissions, dated February 7, 2020; o Exhibit C, Akers LLC’s responses to Hiatus Dallas’ requests for admissions, dated February 7, 2020; o Exhibit D, Akers LLC’s deemed admissions to Hiatus Fort Worth’s requests for admissions dated July 1, 2020.2 2 As established in Exhibit G, the sworn declaration of Plaintiffs’ legal counsel, Defendants did not respond t0 multiple sets 0f requests for admissions. Consequently, under Texas law, each of these requests “is considered admitted without the necessity of a court order. Tex. R. CiV. P. 198.2(c). Where a party admits a fact in response to a request for admission, as here, that fact is “conclusively established” for all judicial purposes. Tex. R. Civ. P. 198.3. The party making the judicial admission may not introduce any evidence in conflict with the admission. Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989); Buetel v. Dallas C0. Flood Control District, 916 S.W.2d 685, 694 (Tex.App.—Waco 1996, writ denied); Bay Area Thoracic & Cardiovascular Surgical Assn. v. Nathanson, 908 S.W.2d 10, 11 (Tex.App.—H0uston 1995, no writ). PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 3 o Exhibit E, Akers LLC’s deemed admissions to Hiatus Dallas’ requests for admissions dated July 1, 2020. o Exhibit F, Akers LLC’s deemed admissions to Hiatus Frisco’s requests for admissions dated July 1, 2020. o Exhibit G, sworn declaration of William J. Garrison, legal counsel for Plaintiffs, establishing the authenticity 0f Exhibits B through F and I, and the fact of Akers LLC’s non-response to Exhibits D through F such that these requests are deemed admitted under Texas law. Tex. R. Civ. P. 198.2(0). o Exhibit H, sworn declaration of Jennifer Hemingson, controller and representative for summarized in Exhibits H-l (Fort Worth Project) and H- Plaintiffs, establishing the data 2 (Dallas Project) and thus specifying Plaintiffs’ economic damages. o Exhibit I, Texas Secretary 0f State forfeiture of Akers LLC’s charter dated February 28, 2020. III. BACKGROUND AND UNDISPUTED MATERIAL FACTS 1. The Parties. Plaintiffs own and operate day spas, “Hiatus Spa + Retreat” (“Hiatus”) locations, throughout the State of Texas.3 Three long-time friends created the business in 2007 and initiated the first location in Dallas’ Inwood Village that same year.4 2. Akers is a general contractor.5 3. Akers owns and solely controls Akers LLC, a limited liability company through which Akers operates his general contractor business.6 4. Plaintiffs Hired Al_(ers LLC. Beginning in 2018, several commercial landlords reached out to Plaintiffs regarding opportunities to build and operate day spas in Fort Worth, Dallas and Frisco.7 Each 0f these Opportunities involved the chance for Hiatus to work with premier 3 Exh. A, para. 2. 4 Exh. A, para. 2. 5 Exh. B, Response No. 2. 6 Exh. C, Response Nos. 1 and 2. 7 Exh. A, para. 3. PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 4 brands in excellent locations, including “Crockett Row” in Fort Worth, “The Hill” in Dallas, and “The Star” in Frisco.8 5. As Plaintiffs considered potential general contractors to execute these projects -- proj ects that would likely occur concurrently, or at least in close order to each other -- Hiatus was introduced t0 Akers LLC.9 6. Akers held himself out as a skilled and experienced general contractor, engaged in the business of managing and providing quality construction services on substantial proj ects.” 7. Akers repeatedly assured Plaintiffs that Akers LLC possessed the necessary resources t0 build the multiple day spas required by Plaintiffs in a timely manner.“ 8. Plaintiffs thus hired Akers LLC to build day spas in Fort Worth, Dallas and Frisco, entering into separate contracts for each location.” 9. For each of the three projects, Plaintiffs provided Akers LLC With a $50,000.00 deposit or ”mobilization fee” to facilitate Akers LLC beginning the work without delay.” 10. Akers LLC Breached its Commitment to Complete the Proiects bv the Specified Deadlines. The contracts between Plaintiffs and Akers LLC regarding each 0fthe three projects are substantially identical. Each required Akers LLC to complete construction of the subject project within 120 days 0f initiation 0f the work, subject t0 some defined permissible 8 Exh. A, para. 3. 9 Exh. A, para. 4. 1° Exh. A, para. 5; Exh. B, Response Nos. 1-2; and Exh. C, Response Nos. 4-5. 11 Exh. A, para. 6. 12 A-l (Fort Worth), A-2 (Dallas) and A-3 (Frisco). Exh. A, para. 8: see attached Exhs. 13 Exh. A, para. 8; Exh. A-l, Section 2.2; Exh. A-2, Section 2.2; and Exh. A-3, Section 2.2. PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 5 incidents of delay, i.e., delay not caused by Akers LLC, not applicable here.” The projects were thus t0 be completed by the following dateszls O Hiatus Fort Worth = April 5, 2019 0 Hiatus Dallas = July 23, 2019 o Hiatus Frisco = (Not applicable as Akers LLC never undertook the project, which is discussed below.) 11. Hiatus Fort Worth and Hiatus Dallas would learn that Akers LLC had grossly misrepresented its abilities and resources. Akers would shift Akers LLC’s inadequately-numbered personnel between the Fort Worth and Dallas proj ects, causing both proj ects to fall terribly behind schedule.” And frequently no one from Akers LLC could be found working at either project.” 12. Akers LLC breached the contractual deadlines for completion 0f the Projects by many months. When Hiatus Fort Worth terminated Akers LLC, as described below, Akers LLC had already spent over nine months (five months beyond the deadline) working 0n the proj ect and the project was still incomplete.” When Hiatus Dallas terminated Akers LLC, Akers LLC had already been working on that project for six months (two months beyond the deadline), and the project was not even half done.” Defendants admit they missed the contractual deadlines 0n both projects.” 13. Akers LLC’s breaches of its contractually-agreed project deadlines alone caused Hiatus Fort Worth and Hiatus Dallas t0 suffer extensive monetary harm, including in the form of 14 Exh. A-l, Section 4; Exh. A-2, Section 4; Exh. A-3, Section 4; Exh. B, Response N0. 6; and Exh. C, Response No. 9. 15 Exh. A, para. 9. 16 Exh. A, para. 10. 17 Exh. A, para. 10. 18 Exh. A, para. 11. 19 Exh. A, para. 11. 2° Exh. B, Response Nos. 7 and and Exh. Response Nos. 10 and 11. 8; C, PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 6 Plaintiffs’ payment of rent to landlords and salaries to personnel while the businesses remained unopened.” 14. Mel‘s LLC Did Not Pav Its Subcontractors Because Its Owner. Al_(ers. Stole the Monies that Should Have Been Paid t0 the Subcontractors. Despite Akers LLC failing miserably to complete the work on schedule, Plaintiffs continued working With the company in hopes of avoiding the additional time, difficulty and expense of hiring replacement general contractors for the proj cots.” That was until Plaintiffs discovered that Akers was stealing monies from Akers LLC’s subcontractors. 15. In late August 2019, a subcontractor named TDI Refrigeration, LLC (“TDI”)23, who had been working on the Fort Worth project, reached out t0 Hiatus Fort Worth.“ TDI established that Akers LLC had failed to pay it $164,977.89 for heating, ventilation and air conditioning (“HVAC”) work.” 16. Shortly thereafter, beginning in September 2019, a steady stream of Akers LLC’s subcontractors, parties who had been hired by Akers LLC to work on the Fort Worth and Dallas projects, began contacting Plaintiffs to complain that they were not being paid by Akers LLC.26 They told stories of Akers either telling them that payment had somehow not made it to them (“the check is in the mail”) or an even more blatant lie that Plaintiffs were withholding payment from Akers LLC and that was why Akers LLC had not paid the subcontractors.” 21 EXh. A, para. 12. 22 Exh. A, para. 13. 23 TDI is now an intervening plaintiff in this case. 24 Exh. A, para. 14. 25 Exh. A, para. 14; and Exh. B, Response N0. 53. 26 Exh. A, para. 15. 27 Exh. A, para. 15. PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 7 17. It became increasingly apparent to Plaintiffs that Akers was defrauding one subcontractor after another.” The scheme was simple yet hard to detect in a timely manner especially given that Plaintiffs had not hired, and had no ongoing communications, With the subcontractors.” 18. Using Akers LLC, Akers would bill Plaintiffs for work. Plaintiffs would then pay for that work.” But then, rather than pay Akers LLC’s subcontractors for that same work, Akers would instead keep the monies for himself.“ 19. Using this fraudulent scheme, Akers pocketed over $350,000.00 of monies that Akers LLC had received from Hiatus Fort Worth and Hiatus Dallas monies that should have been used to pay Akers LLC’s subcontractors.” 20. For the Fort Worth Proj ect, Exhibit H-l details the key information: a) the contract price agreed between Hiatus Fort Worth and Akers LLC; b) the amount that Hiatus Fort Worth paid to Akers LLC; c) the amount (at minimum) that Akers LLC appropriated from its subcontractors; and d) the cost t0 complete the project after Hiatus Fort Worth terminated Akers LLC for breaching the subject contracts, as detailed below. The information is summarized as followsz33 28 Exh. A, para. 16. 29 Exh. A, para. 16. 3° Exh. A, para. 17. 31 Exh. A, para. 17. 32 Exh. A, para. 18; and Exh. H including Exhs. H-l and H-2. 33 Exh. H, paras. 3-5; Exh. H—l; and Exh. D, Non-response Nos. 13-16. PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 8 CONTRACT PRICE AMOUNT THAT AMOUNT THAT AMOUNT THAT (including all change HIATUS FORT AKERS DIVERTED HIATUS FORT orders) WORTH PAID TO FROM AKERS LLC’S WORTH PAID T0 AKERS LLC SUBCONTRACTORS COMPLETE PROJECT (reported by (including payments subcontractors) to unpaid subcontractors and removal of their liens) $549,516.00 $509,318.00 $267,000.00 plus $140,880.95 21. For the Dallas Project, Exhibit H-2 details the same information, Which is summarized as followsz34 CONTRACT PRICE AMOUNT THAT AMOUNT THAT AMOUNT THAT (including all change HIATUS FORT AKERS DIVERTED HIATUS FORT orders) WORTH PAID TO FROM AKERS LLC’S WORTH PAID TO AKERS LLC SUBCONTRACTORS COMPLETE PROJECT (reported by (including payment subcontractors) to unpaid subcontractors and removal of liens) $456,670.00 $389,650.00 $111,800.00 plus $614,876.57 22. The Frisco Proiect Owner/Landlord Disqualified Akers LLC from Working 0n That Project. Hiatus Frisco’s lease with its landlord at The Star, Blue Star Frisco Retail, LLC (“Blue Star”), required that Akers LLC remain qualified in the sole discretion of Blue Star in order t0 perform as a general contractor at The Star.” 34 Exh. H, paras. 3-5; Exhibit H-2; and Exh. E, Non-response Nos. 22-25. 35 Exh. A, para. 19; and Exh. A—4. PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 9 23. On September 19, 2019, after Blue Star learned that Akers was engaged in a fraudulent scheme 0f not paying subcontractors -- Which was resulting in subcontractors filing liens against multiple landlord’s and tenant’s real property interests -- Blue Star disqualified Akers LLC from serving as Hiatus Frisco’s general contractor at The Star.“ 24. Plaintiffs Terminated Akers LLC. Plaintiffs’ contracts with Akers LLC required Akers LLC to, among other things, complete the projects by the specific deadlines and, more importantly, pay those subcontractors with whom Akers LLC had contracted to perform the work.” As detailed above, Akers LLC breached the agreements on all counts. 25. Consequently, on September 24, 2019, Hiatus Fort Worth and Hiatus Dallas sent notices to Akers LLC demanding that the company immediately pay the many subcontractors that it had failed t0 pay.” Neither Akers nor Akers LLC responded t0 either demand. 26. As a result, 0n October 2, 2019, Plaintiffs terminated their contracts With Akers LLC and again demanded that Akers LLC pay the subcontractors that it had hired.” 27. Hiatus Fort Worth and Hiatus Dallas Paid t0 Complete the Fort Worth and Dallas Proiects. Respectivelv. After terminating Akers LLC for its various breaches 0f contract and associated fraud/grift, Plaintiffs were compelled to complete the Fort Worth and Dallas Proj ects for which they were already paying rent t0 the landlords. As detailed above and set forth in Exhibit H, Hiatus Fort Worth incurred $100,682.95 to complete the Fort Worth Project and Hiatus Dallas incurred $614,876.57 to complete the Dallas Project (which was not remotely near completion despite being many months beyond the completion deadline)“ 36 Exh. A, para. 20; and Exh. A-4 (Blue Star disqualification of Akers LLC). 37 Exhs A-l, Sections 1.2 and 2.6; A-2, Sections 1.2 and 2.6; and A-3, Sections 1.2 and 2.6. 38 Exh. A, para. 21; and Exh. A—5 (notice and demand). 39 Exh. A, para. 22; and Exh. A-6 (termination). 4° Exh. A, para. 23; and Exh. H With attached Exhs. H—1 and H—2. PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 10 28. Akers LLC Wrongfullv Retained Hiatus Frisco’s Deposit. After Blue Star disqualified Akers LLC from working at The Star such that it was then impossible for Akers LLC t0 serve as a general contractor there, Hiatus Frisco demanded that Akers LLC return the $50,000.00 deposit that it had placed with Akers LLC for future work at The Star.“ Defendants admit that they were not able t0 proceed With the work under the Hiatus Frisco agreement, and that they never did perform any work on the Frisco Project.“ 29. Akers LLC failed to return Hiatus Frisco’s money.“ Again, no response was received from Akers or Akers LLC. 30. Mel's Blatantlv Stole $35,650.00 from Hiatus Dallas. After terminating Akers LLC, Plaintiffs undertook to assess the degree of progress that Akers LLC had actually made at the Fort Worth and Dallas projects.“ During the course of this assessment, Hiatus Dallas discovered that Akers had stolen a very large amount of money from Hiatus Dallas. 3 1. On May 28, 2019, Akers LLC invoiced Hiatus Dallas $35,650.00 for three HVAC units.“ 32. On July 1, 2019, Hiatus Dallas paid Akers LLC $35,650.00 for the HVAC units.“ 33. On October 1, 2019, Hiatus Dallas learned that the HVAC units for which it had were not located at the project. S0 Hiatus Dallas asked Akers the direct question 0f where the HVAC units were located, “Where are the HVAC units that Hiatus paid you for?”47 41 EXh. A, para. 24: and Exh. A-7 (demand for return of deposit). 42 Exh.F, Response Nos. 1-7. 43 Exh, A, para. 25; and Exh. F, Response Nos. 10-12. 44 Exh, A, para. 26. 45 Exh, A, para. 27; and Exh. A-8 (invoice). 46 Exh. A, para. 28; and Exh. A-9 (check). 47 Exh. A, para. 29; Exh. A-lO, p. 2. PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 11 34. In response, Akers stated, “We have them stored” “[i]n storage at our office?“ 35. On October 8, 2019, Hiatus Dallas demanded that Akers return Hiatus Dallas’ money, but Akers did not respond to the demand.” Neither Akers nor his attorney denied that Akers stole the monies. 36. In this case, Akers LLC has admitted that it never purchased the HVAC equipment and that Akers lied when he asserted otherwise.” IV. LEGAL STANDARD The Court is quite knowledgeable regarding the applicable legal standard. The purpose of a summary judgment proceeding is to provide an efficient means to dispose of a claim in the case that does not present a material controversy of fact. New Jersey Bank (N.A.) v. Knuckley, 637 S.W.2d 920, 921 (Tex. 1982); Diversicare General Partner, Inc. v. Rubia, 185 S.W.3d 842, 846 (Tex. 2005). A plaintiff proving a claim through evidence is “entitled t0 judgment as a matter of law.” Tex. R. CiV. P. 166a(c). V. BREACH OF CONTRACT CLAIMS PLAINTIFFS’ ARE ESTABLISHED BY THE UNDISPUTED EVIDENCE Plaintiffs’ claims that are most plainly decided by the undisputed facts are those for breach of contract.“ To state what is well known to the Court, a breach of contract is established where there is a valid contract between the plaintiff and the defendant; the plaintiff performed the contract; the 48 Exh. A-lO, p. 1. 49 Exh, A, para. 30. 50 Exh. E, Non-response Nos. 1-9. 51 Plaintiffs’ Original Petition, Cause No. 4. PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 12 defendant breached the contract; and the plaintiff suffered damages as a result. Marquis Acquisitions, Inc. v. Steadfast Ins., 409 S.W.3d 808, 813-14 (Tex.App.—Dallas 2013, n0 writ). As detailed and evidenced in Section III, Akers LLC breached its contractual obligations three different and independent ways: 1) Akers LLC failed to meet the stated deadlines for completion of the Projects; 2) Akers LLC failed to pay the subcontractors that it hired t0 perform the work; and 3) Akers LLC grossly exceeded the agreed construction prices.52 The subj ect contracts required Akers LLC to complete the Fort Worth Proj ect by April 5, 2019 and the Dallas Proj ect by July 23, 2019. When Plaintiffs terminated Akers LLC 0n October 2, 2019 — almost five months after the first deadline had passed, and more than two months after the second deadline had passed i Akers LLC still had not completed either project. The Dallas Proj ect was not even half—way completed. Defendants appropriated, and thus did not pay, over $350,000.00 owed t0 the subcontractors that Akers LLC had hired. Plaintiffs made repeated demands to Defendants to correct this wrongdoing, but Defendants never did pay the subcontractors.53 The contract price for the Fort Worth Project was $549,5 16.00. Setting aside the costs of the delay (rent, salaries, etc.), and the efforts to address unpaid subcontractors, the completed project construction cost was $610,000.95.“ The contract price for the Dallas Project was $456,700. Setting aside the costs 0fthe delay (rent, salaries, etc.), and the efforts to address unpaid subcontractors, the completed proj ect construction cost was $1,004,526.57.” 52Fact Nos. 10-12 (failure to meet contractual deadline), 14-21 (failure t0 pay subcontractors), and 20 and 28 excerpting Exhibits H-l and H—2 (exceeding agreed contract price). 53 The sad reality is that Defendants’ cheating one subcontractor to go completely caused at least out of business. And the remainder, with the exception 0f TDI, simply could not afford to prosecute a lawsuit against parties such as Defendants. 54 Exh. H-l. 55 Exh. H—2. PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 13 PLAINTIFFS’ COMMOYVLLAW FRAUD CLAIMS ARE ESTABLISHED BY THE UNDISPUTED EVIDENCE Plaintiffs assert claims for common law fraud against Defendants.56 Common law fraud exists where a defendant makes a material misrepresentation of fact to a plaintiff, knowing the represented fact t0 be false, and the plaintiff suffers monetary damages after relying upon plaintiff’s misrepresentation. Zorrillo v. Aypco Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015). As detailed above, Defendants (Akers and his Wholly-owned and unchartered LLC) committed an egregious act 0f common law fraud against Hiatus Dallas. Defendants indicated that Akers LLC had purchased $36,650.00 of HVAC equipment; caused Hiatus Dallas to pay Akers LLC $36,650.00 for the equipment; but then just pocketed the money never having purchased the HVAC equipment in the first place.” To further the fraud, Akers lied that Akers LLC had purchased the equipment and placed it “in storage at our office.”58 More broadly, Defendants tricked Plaintiffs into hiring them in the first place by falsely representing their construction abilities and honesty. Defendants represented that they could prosecute three construction projects to completion in a specified timeframe. Defendants represented that they would timely pay their subcontractors and protect Plaintiffs from any liens and legal actions. In reality, Defendants Wholly lacked the personnel t0 perform as promised, a fact well known to Defendants from the beginning. Defendants knew that the Projects would 56 Plaintiffs’ Original Petition, Count 1. 57 Fact Nos. 3 1 -39. 58 Fact Nos. 36-39. PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 14 provide them a means to steal monies from others -- a means to an end 7 which is exactly what they did.” VII. PLAINTIFFS’ DTPA CLAIMS ARE ESTABLISHED BY THE UNDISPUTED EVIDENCE Plaintiffs assert claims for Violation 0f the Texas Deceptive Trade Practices Act (“DTPA”) against Defendants.“ Each of Plaintiffs is a “consumer” in its dealings with Defendants, as that term is defined in the Texas Business and Commerce Code’s codification of the Texas Deceptive Trade Practices Act (“DTPA”).61 Defendants are proper defendants under the DTPA.62 As detailed above, Akers LLC, Which serves as an “alter ego” 0f Akers in light of its use as a conduit t0 commit fraud, violated the DTPA by, among other things, committing false, misleading or deceptive acts as defined in the DTPA; committing unconscionable acts; and/or otherwise engaging in deceptive trade practices.63 Defendants engaged in a fraudulent scheme t0 steal monies from Plaintiffs and from third- party subcontractors.“ Defendants’ unlawful conduct certainly constitutes a Violation of the DTPA. 59 Fact Nos. 6-8, 10-12, and 14-19. 60 Plaintiffs’ Original Petition, Count 2. 61 Tex. Bus. & Com. Code, Section 17.45(4). 62 Tex. Bus. & Com. Code, Sections 17.45(3) and 17.50(a)(1). 63 Tex. Bus. & Com. Code, Sections 17.46(b)(7), 17.46(b)(9), 17.46(b)(22), 17.46(b)(24) and 17.50(a)(3). 64 Fact Nos. 14-21, Exhs. H—1 and H-2. PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 15 HIATUS DALLAS’ CLAIM FOR VIOIYE’II‘iON OF THE THEFT LIABILTY ACT IS ESTABLISHED BY THE UNDISPUTED EVIDENCE Hiatus Dallas asserts a claim for Violation of the Theft Liability Act found in the Texas Civil Practice and Remedies Code, Sections 134.001-134.005.65 As detailed above, Defendants brazenly stole $35,650.00 from Hiatus Dallas by means of lying about purchasing certain HVAC equipment and instead pocketing the m0nies.66 Defendants actions are a clear Violation of the Texas Penal Code, Section 31.01(5)(c) [“personal property” under the Penal Code includes money] and 31.03 [criminal offense 0f theft described] and thus the Theft Liability Act. IX. HIATUS FRISCO’S CLAIMS FOR FRAUDULENT INDUCEMENT AND RESCISSION ARE ESTABLISHED BY THE UNDISPUTED EVIDENCE Hiatus Frisco asserts claims for fraudulent inducement and rescission arising from Defendants’ solicitation of, and gaining of, a $50,000.00 deposit from Hiatus Frisco for the Frisco Project.“ As detailed above, Defendants tricked Hiatus Frisco into signing a contract and providing the $50,000.00 deposit.“ 65 Plaintiffs’ Original Petition, Count 3. 66 Fact Nos. 30-38. 67 Plaintiffs’ Original Petition, Count S. 68 Fact Nos. 6-9 and 14-20; and Exhs. H—l and H—2. PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 16 Additionally, when property owner The Star declared Akers LLC disqualified as a potential general contractor for the Frisco Proj ect, it became impossible that Akers LLC could perform the contract.” The contract must be rescinded and Akers LLC must return Hiatus Frisco’s deposit. X. CONCLUSION AND REQUSTED RELIEF Plaintiffs respectfully requests the Court grant their Motion by granting summaryjudgment of their claims for breach of contract, common law fraud, Violation 0f the DTPA, Violation 0f the Theft Liability Act, and fraudulent inducement/rescission. 69 Fact Nos. 22-23; and Exh. A-4 (disqualification). See Centex Corp. v. Dalton, 840 S.W.2d 952, 954 (TeX. 1992) (corporation precluded from contract performance by supervening impossibility arising from newfound prohibition against performance originally contemplated). PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 17 DATED: October 26, 2020 Respectfully submitted, SCHEEF & STONE, LLP By: /s/Kellv M. Crawford Kelly M. Crawford State Bar No. 05030700 kellv.crawford@ solidcounsel.com 500 N. Akard Street, Suite 2700 Dallas, Texas 75201 Phone: (214) 706-4200 BROWN FOX PLLC By: /s/Eric C. Wood Eric C. Wood State Bar No. 24037737 eric@br0wnfox1aw.corn 81 11 Preston Road, Suite 300 Dallas, Texas 75225 Phone: (214) 327-5000 GARRISON, PC By: /s/William J. Garrison William J. Garrison Texas State Bar No. 24043411 4514 Cole Avenue, Suite 600 Dallas, Texas 75205 Telephone (214) 295-3332 E-mail: bill@garrisonpc.com ATTORNEYS FOR PLAINTIFFS PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 18 CERTIFICATE OF SERVICE The undersigned hereby certifies that 0n October 26, 2020, I served the foregoing document upon all existing counsel of record and defendant Wesley Akers in accordance with the Texas Rules of Civil Procedure. /S/ William I. Garrison William ]. Garrison PLAINTIFFS’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT Page 19 DC-19-16750 § HIATUS DALLAS 2, LLC, HIATUS FORT § IN THE DISTRICT COURT WORTH, LLC, and HIATUS FRISCO, § LLC, § § Plaintiffs, § 14*“ JUDICIAL DISTRICT § v. § § WESLEY DAVID AKERS and AKERS § DALLAS COUNTY, TEXAS LLC, § § Defendants. § DECLARATION OF SHEILA M. GARRISON 1. My name is Sheila M. Garrison. My date of birth is September 19, 1969. My address is 4514 Cole Avenue, Suite 600, Dallas, Texas 75205. I have personal knowledge 0f all facts set forth herein. I have read this sworn declaration and have personal knowledge of all facts set forth herein, which are true and correct. 2. I am an owner and operator 0f eight day spas, “Hiatus Spa + Retreat” (“Hiatus”) locations, throughout the State of Texas. Three long-time friends, including myself, created the business in 2007 and initiated the first location in Dallas” Inwood Village that same year. I am a managing partner 0f Hiatus Fort Worth, LLC (“Hiatus Fort Worth”), Hiatus Dallas 2, LLC (“Hiatus Dallas”) and Hiatus Frisco, LLC (“Hiatus Frisco”), the plaintiffs in this case (collectively, “Plaintiffs”). Additionally, I have overseen the construction 0f all eight locations such thatI am familiar With the required progress of work. 3. Beginning in 201 8, several commercial landlords reached out t0 Plaintiffs regarding opportunities to build and operate day spas in Fort Worth, Dallas and Frisco. Each of these EXHIBIT DECLARATION 0F SHEILA M. GARRISON / \ PAGE 1 opportunities opportunities involved involved the the chance for for Hiatus to t0 work with premier brands in in excellent excellent locations, locations, including including "Crockett Row” in “Crockett Row" in Fort Fort Worth, "The “The Hill" Hill” in in Dallas, Dallas, and "The “The Star" Star” in in Frisco. Ffisco. 4. 4. As Plaintiffs Plaintiffs considered potential potential general general contractors contractors to to execute execute these these projects projects -- ~- projects projects that that would likely likely occur occur concurrently, concurrently, or 0r at at least least in in close close order order to t0 each other other -~— we were were introduced introduced to t0 Akers LLC. 5. 5. Akers held held himself himself out out as as a a skilled