Petition For Writ of Mandamus, 01-17-00910-CV

No.
In the First or Fourteenth Court of Appeals

Houston, Texas
IN RE
YAKOV ALBAZ and

AA TOP SUCCESS LLC D/B/A CROSSLAND VAN LINES AND STORAGE
Relators
Original Proceeding from the Harris County Civil Court at Law No. 2
Cause Nos. 1080464 and 1080464-101
Hon. Theresa Chang, Presiding
PETITION FOR WRIT OF MANDAMUS
Danny M. Sheena, P.E. Saif A. Siddiqui

Hung Michael Nguyen Chris Ayres
THE SHEENA LAW FIRM SIDDIQUI AYRES
2500 West Loop South, Ste. 518 700 Louisiana Street, Suite 3950
Houston, Texas 77027-4508 Houston, Texas 77002
(713) 224-6508 (voice) (832) 927-2775 (voice)
(713) 225-1560 (facsimile) (832) 787-1284 (facsimile)
service@sheenalawfirm.com siddiqui@siddiquiayres.com
ATTORNEYS FOR RELATOR ATTORNEYS FOR RELATOR
YAKOV ALBAZ AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES AND
STORAGE
ORAL ARGUMENT REQUESTED

Identities of Parties and Counsel
Pursuant to Texas Rule of Appellate Procedure (Rule) 52.3(a), the
following is a complete list of the real parties in interest and parties whose interest
will be directly affected by the proceeding:
Relators and Counsel
Yakov Albaz Danny M. Sheena, P.E.

Defendant and CrossPlaintiff Hung Michael Nguyen
below THE SHEENA LAW FIRM
2500 West Loop South, Suite 518
Houston, Texas 77018
(713) 224-6508 (voice)
(713) 225-1560 (facsimile)
service@sheenalawfirm.com
AA Top Success, LLC D/B/A Saif A. Siddiqui

Crossland Van Lines & Storage siddiqui@siddiquiayres.com
Intervenor and CrossDefendant Chris Ayres
below ayers@siddiquiayers.com
SIDDIQUI AYRES
700 Louisiana Street, Suite 3950
(832) 927-2775 (voice)
(832) 787-1284 (facsimile)
PETITION FOR WRIT OF MANDAMUS Page i

Respondent
The Honorable Theresa W. Chang

Harris County Civil Courthouse
201 Caroline, Suite 740
(713) 274-1349
Real Parties in Interest
Raam Abbou HsienTe J. Koong

Plaintiff and Defendantin john@koonglaw.com
Intervention below Eric S. Yu
eric.yu@koonglaw.com
KOONG LAW GROUP, PLLC
405 Main Street, Suite 801
(346) 808-0529 (voice)
(713) 491-2874 (facsimile)
Prosperity Bancshares, Inc. William P. Huttenbach

Defendant below phuttenbach@hirschwest.com
Joseph R. Anderson
janderson@hirschwest.com
HIRSCH & WESTHEIMER, P.C.
1415 Louisiana Street, 36th Floor
(713) 223-5181 (voice)
(713) 223-9319 (facsimile)
PETITION FOR WRIT OF MANDAMUS Page ii

Table of Contents
Identities of Parties and Counsel................................................................................ i
Index to the Appendix ................................................................................................v
Index to the Mandamus Record .................................................................................v
Index of Authorities ............................................................................................... viii
Statement of the Case.............................................................................................. xii
A. Nature of underlying proceedings ................................................................ xii
B. Identity of Respondent.................................................................................. xii
C. Action from which relief is sought ............................................................... xii
Statement of Jurisdiction........................................................................................ xiv
Issues Presented .......................................................................................................xv
II. Statement of Facts .................................................................................................1
A. Factual background ..........................................................................................1
B. Procedural background below .........................................................................3
III. Argument .............................................................................................................8
A. Summary of the argument ...............................................................................8
B. Standard of review for mandamus relief .......................................................10
C. Abbous claim on the Note in the Severed Cause is arbitrable .....................11
1. Arbitration is favored under Texas law, and doubts about the scope of
arbitration are resolved in favor of arbitration .........................................11
2. A broad arbitration clause in a contract can encompass claims not

specifically pertaining to a contract itself ................................................12
PETITION FOR WRIT OF MANDAMUS Page iii

3. The Note and Agreement are part of the same transaction, and are to
be read and construed together .................................................................14
4. Thus, under the broad language of the arbitration provision in the

Agreement, Abbous claim on the Note is arbitrable ...............................15
5. The August 8, 2017 and October 25, 2017 orders denying arbitration
of this claim were thus an abuse of discretion .........................................17
D. Because Abbous claim on the Note was arbitrable, its severance into a
separate cause was an abuse of discretion .....................................................18
1. Severance is only warranted when it avoids prejudice, does justice,

and increases convenience........................................................................18
2. Mandamus relief is the proper remedy for improper severance ..............19
3. For the same reason that Abbous claim on the Note is arbitrable, its
severance was an abuse of discretion with no adequate remedy on
appeal ........................................................................................................20
E. If the claims in the Remaining Cause were found to be arbitrable, it was

an abuse of discretion not to order arbitration and stay the proceedings as
mandated by Texas Civil Practices and Remedies Code 171.021(c) .........21
1. Once a claim is found to be arbitrable, a stay of litigation is mandatory.21
2. Once a claim is found to be arbitrable, ordering discovery on the

merits is an abuse of discretion ................................................................22
3. Respondents October 25, 2017 Order was an abuse of discretion with

no adequate remedy on appeal because it did not immediately order
arbitration and stay the proceedings .........................................................23
F. All the claims below are arbitrable and the Court should order
Respondent grant the relief requested ...........................................................24
IV. Prayer .................................................................................................................25
Certification Pursuant to Rule 52.3(j) ......................................................................27
Certificate of Compliance with Rule 9.4(i)(3) .........................................................27
PETITION FOR WRIT OF MANDAMUS Page iv

Certificate of Service ...............................................................................................28
Index to the Appendix
Tab Description Date
Order on Defendant and Intervenors Motion to

A Compel Arbitration & Stay Proceedings, in Cause August 8, 2017
No. 1080464-101
Amended Order on Plaintiffs Motion to Sever, in

B October 16, 2017
Cause No. 1080464-101
C Order, in Cause No. 1080464-101 October 25, 2017
D Order, in Cause No. 1080464 October 25, 2017
Index to the Mandamus Record
E Verification of Mandamus Record November 27, 2017
F Plaintiffs Original Petition July 21, 2016
Defendant Yakov Albaz Original Answer and

G August 29, 2016
Request for Disclosures
PETITION FOR WRIT OF MANDAMUS Page v

AA Top Success, LLCs D/B/A Crossland Van

H Lines Plea in Intervention and Requests for November 18, 2016
Disclosure
Defendant Yakov Albazs and Intervenor AA Top

I July 25, 2017
Success, LLCs Motion to Compel Arbitration
J Reporters record of August 8, 2017 hearing August 8, 2017
K Plaintiffs Second Amended Petition August 22, 2017
L Plaintiffs Motion to Sever September 5, 2017
Defendant Yakov Albazs Request for Oral

Hearing, Motion for Leave to File Response Out
M September 14, 2017
of Time, and Response in Opposition to Plaintiffs
Motion to Sever
Defendant Yakov Albazs First Original Cross

N September 14, 2017
Claim
AA Top Success, LLCs D/B/A Crossland Van

O Lines First Amended Plea in Intervention and September 14, 2017
Requests for Disclosure
P Plaintiffs Fourth Amended Petition September 15, 2017
PETITION FOR WRIT OF MANDAMUS Page vi

Intervenor AA Top Success, LLCs Motion to

Q Reconsider Order Denying Motion to Compel September 19, 2017
Arbitration
Defendant Yakov Albazs Response Supporting

R Motion to Reconsider Order Denying Motion to September 22, 2017
Compel Arbitration
Defendant Yakov Albazs First Amended Answer

S October 5, 2017
and Requests for Disclosure
T Reporters record of October 10, 2017 hearing October 10, 2017
U Notice of Refusal to Mediate October 18, 2017
V Notice of Interlocutory Appeal October 18, 2017
W Amended Notice of Interlocutory Appeal October 27, 2017
PETITION FOR WRIT OF MANDAMUS Page vii

Index of Authorities
Cases
AutoNation USA Corp. v. Leroy (In re AutoNation USA), 105 S.W.3d 190 (Tex.
App.Houston [14th Dist.] 2003, orig. proceeding) .........................................14
Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943 (Tex. 1996) ...................... 11, 12
Cash Biz, LP v. Henry, No. 04-15-00469-CV, 2016 Tex. App. LEXIS 7921 (Tex.
App.San Antonio July 27, 2016, pet. abated) .................................................13
CMH Homes, Inc. v. Perez, 340 S.W.3d 444 (Tex. 2011) ......................................22
Cotton Commercial USA, Inc. v. Clear Creek ISD, 387 S.W.3d 99 (Tex. App.
Houston [14th Dist.] 2012, no pet.) ....................................................................13
Emerald Tex., Inc. v. Peel, 920 S.W.2d 398 (Tex. App.Houston [1st Dist.] 1996,
no pet.) ................................................................................................................12
F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680 (Tex. 2007) ...... 18, 19
FD Frontier Drilling (Cyprus), Ltd. v. Didmon, 438 S.W.3d 688 (Tex. App.
Houston [1st Dist.] 2014, pet. denied) ................................................................14
Forrest Oil Corp. v. McAllen, 268 S.W.3d 51 (Tex. 2008) ........................ 21, 22, 23
Garg v. Pham, 485 S.W.3d 91 (Tex. App.Houston [14th Dist.] 2015, no pet.) ..12
Hous. Progressive Radiology Assocs., PLLC v. Lee (In re Hous. Progressive
Radiology Assocs.), 474 S.W.3d 435 (Tex. App.Houston [1st Dist.] 2015,
orig. proceeding) .................................................................................................16
PETITION FOR WRIT OF MANDAMUS Page viii

HouScape, Inc. v. Lloyd, 945 S.W.2d 202 (Tex. App.Houston [1st Dist.] 1997,
no writ) ......................................................................................................... 12, 13
In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379 (Tex. 2005) (orig.
proceeding) .........................................................................................................10
In re Conseco Fin. Servicing Corp., 19 S.W.3d 562 (Tex. App.Waco 2000, orig.
proceeding) .........................................................................................................12
In re CSX Corp., 124 S.W.3d 149 (Tex. 2003) (orig. proceeding) .........................10
In re D. Wilson Constr. Co., 196 S.W.3d 774 (Tex. 2006) (orig. proceeding) 17, 23
In re Energy Res. Tech. GOM, Inc., No. 14-12-00835-CV, 2012 Tex. App. LEXIS
8359 (Tex. App.Houston [14th Dist.] Oct. 4, 2012, orig. proceeding) ..........19
In re FirstMerit Bank, N.A., 52 S.W.3d 749 (Tex. 2001) (orig. proceeding) ..........21
In re Houston Pipe Line Co., 311 S.W.3d 449 (Tex. 2009) (orig. proceeding) ......22
In re J.D. Edwards World Solutions Co., 87 S.W.3d 546 (Tex. 2002) (orig.
proceeding, per curiam) ......................................................................................21
In re Masonite Corp., 997 S.W.2d 194 (Tex. 1999) ................................................19
In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (orig. proceeding)10,
11, 19
In re ReadyOne Indus., 400 S.W.3d 164, 169 (Tex. App.El Paso 2013, orig.
proceeding) .................................................................................................. 22, 23
In re Reynolds, 369 S.W.3d 638 (Tex. App.Tyler 2012, orig. proceeding) ........19
PETITION FOR WRIT OF MANDAMUS Page ix

In re State, 355 S.W.3d 611 (Tex. 2011) (orig. proceeding) ................ 10, 11, 18, 20
In re Susan Newell Custom Home Builders, Inc., 420 S.W.3d 459 (Tex. App.
Dallas 2014, orig. proceeding)............................................................................22
In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (orig. proceeding) .............10
In re VNA, Inc., 403 S.W.3d 483 (Tex. App.El Paso 2013, orig. proceeding)....22
In re Wilkerson, No. 14-08-00376-CV, 2008 Tex. App. LEXIS 9779, 2008 WL
2777418 (Tex. App.Houston [14th Dist.] June 6, 2008, orig. proceeding)
(mem. op.) ...........................................................................................................19
Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266 (Tex. 1992) (orig. proceeding). 17, 23
Kirby Highland Lakes Surgery Ctr., L.L.P. v. Kirby, 183 S.W.3d 891 (Tex. App.
Dallas 2006, orig. proceeding)............................................................................16
Meyer v. WMCO-GP, LLC, 211 S.W.3d 302 (Tex. 2006) ......................................17
Moses H. Cone Memorial Hosp. v. Mercury Contr. Corp., 460 U.S. 1, 103 S. Ct.
927 (1983) ...........................................................................................................11
Pennzoil Co. v. Arnold Oil Co. (In re Pennzoil Co.), 30 S.W.3d 494, 498 (Tex.
App.San Antonio 2000, orig. proceeding) ......................................................13
Pers. Sec. & Safety Sys. Inc. v. Motorola Inc., 297 F.3d 388 (5th Cir. 2002) .........16
Prudential Sec., Inc. v. Marshall, 909 S.W.2d 896 (Tex. 1995) ...................... 11, 12
Senter Invs., L.L.C. v. Veerjee, 358 S.W.3d 841 (Tex. App.Dallas 2012, no pet.)
.............................................................................................................................22
PETITION FOR WRIT OF MANDAMUS Page x

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ......................................................23
Williams v. State, 406 S.W.3d 273 (Tex. App.San Antonio 2013, pet. denied) 18,
19
Statutes
TEX. CIV. PRAC. & REM. CODE 171.021................................................................21
TEX. CIV. PRAC. & REM. CODE 171.025................................................................21
TEX. GOVT CODE 22.221.................................................................................... xiv
Rules
TEX. R. APP. P. 52.3 ............................................................................................. i, 27
TEX. R. APP. P. 9.4 ...................................................................................................27
TEX. R. APP. P. 9.5 ...................................................................................................28
PETITION FOR WRIT OF MANDAMUS Page xi

Statement of the Case
A. Nature of underlying proceedings

The case below started out as a suit on a Promissory Note (the Note), but
has expanded to include additional claims, claimsinintervention and crossclaims
related to the sale of the membership interests in a limited liability company, for
which the Note was given as partial consideration. Respondent denied a motion to
compel arbitration, severed the claim to enforce the Note into a separate cause,
Cause No. 1080464-101 (the Severed Cause), and found that the remaining
claims in Cause No. 1080464 (the Remaining Cause) were arbitrable but
declined to compel arbitration and stay proceedings.
B. Identity of Respondent
The Honorable Theresa W. Chang, Presiding Judge of the County Civil
Court at Law Number 2 of Harris County, Texas
C. Action from which relief is sought

Relator Albaz seeks relief from the following orders entered by Respondent:
1) Order on Defendant and Intervenors Motion to Compel Arbitration

& Stay Proceedings, in Cause No. 1080464-101 (denying motion to
compel arbitration) 1
2) Amended Order on Plaintiffs Motion to Sever, in Cause No.
1080464-101, entered October 16, 2017 (severing plaintiffs claims on
the Note into separate Cause No. 1080464-101)2
1
Appendix (Appx.) Tab A.
2
Appx. Tab B.
PETITION FOR WRIT OF MANDAMUS Page xii

3) Order, in Cause No. 1080464-101, entered October 25, 2017 (denying
motion to reconsider October 8, 2017 order denying motion to compel
arbitration as to the claims severed into this cause)3
Additionally, Relators Albaz and Crossland seek relief from the following
order entered by Respondent:
4) Order, in Cause No. 1080464, entered October 25, 2017 (setting aside
October 8, 2017 order denying motion to compel arbitration and
finding case arbitrable but not staying the case pending arbitration) 4
3
Appx. Tab C.
4
Appx. Tab D.
PETITION FOR WRIT OF MANDAMUS Page xiii

Statement of Jurisdiction
The Court has jurisdiction pursuant to Texas Government Code
22.221(b)(1), providing that courts of appeal may issue writs of mandamus against
judges of district or county courts in that court of appeals district.
PETITION FOR WRIT OF MANDAMUS Page xiv

Issues Presented
Issue 1: Was denial of a motion to compel arbitration on Real Party in Interest
Abbous claim on the Note an abuse of discretion for which there is
no adequate remedy on appeal, when that claim arose directly or
indirectly out of the Membership Transfer Agreement (Agreement),
which provided for arbitration of such claims?
Issue 2: Was severance of Real Party in Interest Abbous claim on the Note
into the Severed Cause an abuse of discretion for which there is no
adequate remedy on appeal, when that claim not only arbitrable under
the Agreement but was also so interwoven with the other claims in the
Remaining Cause that they involved the same facts and issues?
Issue 3: Having determined that the claims in the Remaining Cause were
arbitrable, was it an abuse of discretion for which there is no adequate
remedy on appeal to decline to order arbitration on those claims and
stay proceedings, as mandated by Texas Civil Practices and Remedies
Code 171.021?
Issue 4: Is the failure to order arbitration of the claims in both the Severed
Cause and the Remaining Cause and to stay those proceedings an
abuse of discretion for which there is no adequate remedy on appeal?
PETITION FOR WRIT OF MANDAMUS Page xv

No.

In re IN THE

YAKOV ALBAZ and AA TOP COURT OF APPEALS
SUCCESS, LLC D/B/A CROSSLAND
VAN LINES & STORAGE HOUSTON, TEXAS
Relators

PETITION FOR WRIT OF MANDAMUS
To the Honorable First or Fourteenth Court of Appeals:
Pursuant to Texas Rule of Appellate Procedure (Rule) 52.1, Relators
Yakov Albaz (Albaz) and AA Top Success, LLC D/B/A Crossland Van Lines &
Storage (Crossland) hereby file their Petition for Writ of Mandamus (Petition),
and would respectfully show the Court the following:
II. Statement of Facts
A. Factual background
On May 18, 2016, Real Party in Interest Raam Abbou (Abbou) sold his
interest in Crossland to a nonparty pursuant to a written agreement. This written
agreement contained an arbitration clause that encompassed any claim that
directly or indirectly arose out of that agreement. Abbou admitted that Albaz
gave him a promissory note for $22,500.00 in partial consideration for Abbous
membership interest in Crossland, and that the note was part of the agreement and
the transaction memorialized thereby.
PETITION FOR WRIT OF MANDAMUS Page 1 of 28

Specifically, on or about May 18, 2016, Abbou executed that certain
Membership Transfer Agreement (Agreement).5
Paragraph 4 of the Agreement provided that Abbou was to receive
$22,500.00 on May 18, 2016, and another $22,500.00 on July 5, 2016.6
Paragraph 6(h) of the Agreement provided that Abbou would indemnify
Crossland for all claims that arose on or before May 18, 2016, with an exception
not relevant here:
Paragraph 13 of Agreement provided that any claim or controversy arising
directly or indirectly out of this agreement shall be submitted to binding arbitration
... in accordance with the commercial rules of the American Arbitration
Association:7
5
Mandamus Record (Rec.) Tab I at 8.
6
Id.
7
Id. at 11 (emphasis added).

Per the Agreement, Abbou was to be paid $22,500.00 on or before July 5,
2016. On May 18, 2016, Albaz executed a Promissory Note (Note) maturing on
July 5, 2016 and having the principal amount of $22,500.00. 8 This was not a
coincidencein his deposition, Abbou testified that the Note was related to the
Agreement, and was in fact given as consideration for that Agreement. 9
On August 24, 2017, pursuant to Paragraph 6(h) of the Agreement,
Crossland sought indemnification from Abbou of demands made by Albaz against
Crossland for repayment of funds advanced to Crossland by Albaz.10
B. Procedural background below

On July 21, 2016, Abbou filed suit in the Civil Court at Law Number 2 of
Harris County, Texas under Cause Number 1080464 (the Remaining Cause),
asserting single claim against Albaz for an amount due of $22,500.00 under the
8
Rec. Tab F, at 4.
9
Rec. Tab M, at 18-19.
10
Rec. Tab O, at 19.

Note.11 Respondent the Honorable Theresa W. Chang (Judge Chang) is the
presiding judge of that court.
On August 29, 2016, Albaz filed his answer, asserting several affirmative
defenses in addition to making a general denial.12
On November 18, 2016, Crossland intervened and asserted claims against
Abbou.13 Crossland alleged that prior to May 2016, when it was still owned by
Abbou, he misappropriated approximately $19,000 in customer funds that
rightfully belonged to the company. 14 It asserted claims against Abbou for fraud,
breach of fiduciary duty, conversion, and money had and received. 15
On July 19, 2017, Abbou was deposed and admitted that the Note was
related to the Agreement, and was given in consideration of the Agreement. 16
On July 25, 2017, Albaz and Crossland moved to compel arbitration. 17
On August 8, 2017, Judge Chang held a hearing on the motion to compel
arbitration 18 and signed an order denying Albazs and Crosslands motion to
compel arbitration.19
11
Plaintiffs Original Petition, Rec. Tab F.
12
Defendant Yakov Albaz Original Answer and Request for Disclosures, Rec. Tab G.
13
AA Top Success, LLCs D/B/A Crossland Van Lines Plea in Intervention and Requests for
Disclosure, Rec. Tab H.
14
Id. at 2.
15
Id. at 3-4.
16
Rec. Tab M, at 18.
17
Defendant Yakov Albazs and Intervenor AA Top Success, LLCs Motion to Compel
Arbitration, Rec. Tab I.
18
Reporters record of August 8, 2017 hearing, Rec. Tab J.

On August 22, 2017, Abbou amended his petition. 20 This petition omitted
the claim against Albaz on the promissory note, but asserted other claims (in his
individual capacity) related to Albazs business relationship with Crossland when
the company was owned by Abbou. 21
On September 5, 2017, Abbou filed a motion to sever his (now dismissed)
claim against Albaz into a separate cause. 22 Albaz filed a response on September
14, 2017, noting that the Note was related to and given in consideration for the
Agreement. 23
On September 14, 2017, Albaz filed a crossclaim against Crossland, for
repayment of funds advanced to Crossland since March 2015. 24
On September 14, 2017, Crossland amended its plea in intervention, adding
a claim against Abbou for failure to indemnify Crossland, pursuant to Paragraph
6(h) of the Agreement, for the portion of Albazs crossclaim that arose before
May 18, 2016 (the effective date of the Agreement). 25
19
Appx. Tab A.
20
Plaintiffs Second Amended Petition, Rec. Tab K.
21
Id. at 7-14.
22
Plaintiffs Motion to Sever, Rec. Tab L.
23
Defendant Yakov Albazs Request for Oral Hearing, Motion for Leave to File Response Out of
Time, and Response in Opposition to Plaintiffs Motion to Sever, Rec. Tab M.
24
Defendant Yakov Albazs First Original Cross Claim, Rec. Tab N.
25
AA Top Success, LLCs D/B/A Crossland Van Lines First Amended Plea in Intervention and
Requests for Disclosure, Rec. Tab O, at 3-4.

On September 15, 2017, Abbou amended his petition and once again
asserted a claim on the Note against Albaz, in addition to the claims previously
added.26
On September 19, 2017, Crossland moved Respondent to reconsider her
August 8, 2017 order denying the motion to compel arbitration, noting that the
multitude of claims in the case below were all related to the Agreement, and were
thus arbitrable.27 On September 22, 2017, Albaz joined in support of Crosslands
motion for reconsideration. 28
On October 5, 2017, Albaz amended his answer.29
On October 10, 2017, Respondent conducted an oral hearing on both
Abbous motion to sever and Crosslands motion for reconsideration of the order
denying the motion to compel arbitration.30
On October 16, 2017, Respondent entered an order granting Abbous motion
to sever (the Severance Order).31 Abbous claims on the Note against Albaz were
severed into a separate cause, numbered 1080464-101 (the Severed Cause).
26
Plaintiffs Fourth Amended Petition, Rec. Tab P.
27
Intervenor AA Top Success, LLCs Motion to Reconsider Order Denying Motion to Compel
Arbitration, Rec. Tab Q.
28
Defendant Yakov Albazs Response Supporting Motion to Reconsider Order Denying Motion
to Compel Arbitration, Rec. Tab R.
29
Defendant Yakov Albazs First Amended Answer and Requests for Disclosure, Rec. Tab S.
30
Reporters record of October 10, 2017 hearing, Rec. Tab T.
31
Appx. Tab B.

On October 18, 2017, Albaz and Crossland filed a notice in the Remaining
Cause that Abbou refused to mediate the dispute between the parties pursuant to
the Agreement.32
In addition to this petition, on October 18, 2017, Albaz and Crossland had
also filed a notice of interlocutory appeal of the trial courts August 8, 2017 order
in the Remaining Cause, which was assigned to the First Court of Appeals under
case number 01-17-00804-CV. 33
On October 25, 2017, Respondent entered two additional orders, one in the
Remaining Cause and one in the Severed Cause.
In the Severed Cause, Respondent entered an order denying, with respect to
the severed claims, the motion to reconsider the August 8, 2017 order denying the
motion to compel arbitration.34
In the Remaining Cause, Respondent entered an order setting aside the
August 8, 2017 order denying the motion to compel arbitration. The order further
found that the claims in the Remaining Cause were arbitrable, but did not
immediately stay the case pending the outcome of arbitration. 35
32
Notice of Refusal to Mediate, Rec. Tab U.
33
Rec. Tab V.
34
Appx. Tab C.
35
Appx. Tab D.

On October 27, 2017, Albaz and Crossland filed an amended notice of
interlocutory appeal in the Remaining Cause because the August 8, 2017 order had
been set aside and superseded by the October 25, 2017 order. 36
III. Argument
A. Summary of the argument

The scope of the arbitration provision in the Agreement is broad. It covers
all claims or controversies arising directly or indirectly out of the [Agreement]. 37
Every claim by or against every party against every other party in the causes below
(that is, the claims in both the Remaining Cause and the Severed Cause) is
arbitrable because they are all claims or controversies arising directly or indirectly
out of the [Agreement].
Despite the foregoing, Respondent initially denied Relators motion to
compel arbitration.38
Later, Respondent severed out a single claim on the Note into the Severed
Cause and reaffirmed her denial of arbitration on that claim. 39 In the Remaining
Cause, Respondent found that all the claims in that cause were arbitrable, but
36
Rec. Tab W.
37
Rec. Tab I at 11.
38
Appx. Tab A.
39
Appx. Tabs B, C.

ordered additional discovery instead of immediately ordering arbitration and
staying the case pending the outcome of that arbitration. 40
Because all the claims in question, both in the Severed Cause and in the
Remaining Cause, are all arbitrable under the Agreement, it was an abuse of
discretion for Respondent to first sever out the single claim on the Note into the
Severed Cause, and then, having found that all the other claims in the Remaining
Cause were arbitrable, declining to compel arbitration and staying the proceedings.
Relators would have no adequate remedy at law, because they would first be
forced to litigate many of the same intertwined facts and issues twice (once in the
Severed Cause and once in the Remaining Cause), and furthermore, though all the
claims in this case are arbitrable, they would be denied the benefits of arbitration if
they are forced to partially or fully litigate this matter in court before they proceed
to arbitration.
Relators Abbou and Crossland therefore respectfully request that the Court
cause a writ to issue ordering Respondent to first vacate her August 8, October 16,
and October 25, 2017 orders, and then, once all the outstanding claims between the
parties are consolidated back into the Remaining Cause, to enter an order
compelling arbitration and staying all proceedings pending the outcome of that
arbitration.
40
Appx. Tab D.

B. Standard of review for mandamus relief
Generally, mandamus relief is appropriate only when (1) there has been a
clear abuse of discretion by the trial court, and (2) there is no adequate remedy on
appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004)
(orig. proceeding). The relator has the burden of establishing both prerequisites to
mandamus relief. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig.
proceeding).
A trial court abuses its discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law, or if it clearly
fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164
S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). A trial court has no discretion in
applying the law to the facts or determining what the law is. In re Prudential Ins.
Co. of Am., 148 S.W.3d at 135. The Court should assess the adequacy of an
appellate remedy by balancing the benefits of mandamus review against the
detriments. In re State, 355 S.W.3d 611, 614-15 (Tex. 2011) (orig. proceeding); In
re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). In
performing this balancing, the Court should look at a number of factors, including
whether mandamus review will spare litigants and the public the time and money
utterly wasted enduring eventual reversal of improperly conducted proceedings.

In re State, 355 S.W.3d at 615 (quoting In re Prudential Ins. Co. of Am., 148
S.W.3d at 136).
Issue 1 restated: Was denial of a motion to compel arbitration on Real

Party in Interest Abbous claim on the Note an abuse of
discretion for which there is no adequate remedy on
appeal, when that claim arose directly or indirectly out of
the Agreement which provided for arbitration of such
claims?
C. Abbous claim on the Note in the Severed Cause is arbitrable

The Severed Cause contains a single claim, that for enforcement of the Note
against Albaz. This claim is arbitrable because it is related directly or indirectly
to the Agreement. Because it is arbitrable, refusal to compel arbitration of this
claim and then its severance into a separate cause, was an abuse of discretion for
which mandamus is warranted.
1. Arbitration is favored under Texas law, and doubts about the

scope of arbitration are resolved in favor of arbitration
Under both Texas and federal law, in determining whether a particular claim
falls within the scope of an arbitration agreement, courts employ a strong
presumption in favor of arbitration. Cantella & Co., Inc. v. Goodwin, 924 S.W.2d
943, 944 (Tex. 1996) (citing Moses H. Cone Memorial Hosp. v. Mercury Contr.
Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927 (1983); Prudential Sec., Inc. v. Marshall,
909 S.W.2d 896, 898 (Tex. 1995)). Courts must resolve any doubts about an
agreement to arbitrate in favor of arbitration. Id. (citing Marshall, 909 S.W.2d at
899); Emerald Tex., Inc. v. Peel, 920 S.W.2d 398, 402 (Tex. App.Houston [1st

Dist.] 1996, no pet.) (Texas law favors arbitration; thus, doubts regarding the
scope of an arbitration agreement are resolved in favor of arbitration.). A party
opposing an arbitration agreement bears the burden of defeating it. Id. (citing
Marshall, 909 S.W.2d at 900). A court should not deny arbitration unless the court
can say with positive assurance that an arbitration clause is not susceptible of an
interpretation that would cover the claims at issue. Garg v. Pham, 485 S.W.3d 91,
102 (Tex. App.Houston [14th Dist.] 2015, no pet.).
2. A broad arbitration clause in a contract can encompass claims not

specifically pertaining to a contract itself
Under a broad arbitration clause, arbitration can be compelled even though a
particular dispute that arises between the parties does not specifically pertain to
formation of, or obligations created by, the originating contract. In re Conseco Fin.
Servicing Corp., 19 S.W.3d 562, 570 (Tex. App.Waco 2000, orig. proceeding)
(holding broad arbitration provision encompassed statutory and tort claims not
based on the formation, negotiation, terms, or performance of contract).
Phrases such as arising out of or relating to have been held to be very
broad language favoring arbitration. HouScape, Inc. v. Lloyd, 945 S.W.2d 202,
205-06 (Tex. App.Houston [1st Dist.] 1997, no writ). Under those broad
arbitration clauses, if the facts alleged touch matters, have a significant
relationship to, are inextricably enmeshed with, or are factually intertwined
with the contract that is subject to the arbitration agreement, the claim will be

arbitrable. Id.; Cotton Commercial USA, Inc. v. Clear Creek ISD, 387 S.W.3d 99,
108 (Tex. App.Houston [14th Dist.] 2012, no pet.).
For example, courts have found that:
1) Tortious interference claims against a nonparty to an agreement was
found to be arbitrable when that agreement had an arbitration clause
which provided that [a]ny controversy or claim arising out of or
relating to [the agreement] be arbitrated. Pennzoil Co. v. Arnold Oil
Co. (In re Pennzoil Co.), 30 S.W.3d 494, 498-99 (Tex. App.San
Antonio 2000, orig. proceeding).
2) A claim against a payday lender for wrongful use of the criminal
justice system was found to be arbitrable under the loan agreement,
which provided for arbitration of claims arising from or relating
directly or indirectly to [the agreement]. Cash Biz, LP v. Henry, No.
04-15-00469-CV, 2016 Tex. App. LEXIS 7921, at *12-15 (Tex.
App.San Antonio July 27, 2016, pet. abated).
3) Where purchaser of used car signed both (i) a Purchase Agreement
containing a clause providing for arbitration of [a]ny controversy or
claim arising out of or relating to this Purchase Agreement or the
breach thereof and (ii) a Retail Installment Contract without an
arbitration provision, a claim for breach of the Retail Installment

Contract was arbitrable because that claim touched upon matters
covered by the Purchase Agreement. AutoNation USA Corp. v.
Leroy (In re AutoNation USA), 105 S.W.3d 190, 193 (Tex. App.
Houston [14th Dist.] 2003, orig. proceeding).
4) Personal injuries sustained during employment arbitrable when
employee signed employment agreement providing for arbitration of
[a]ny dispute arising out of or in connection with [the employment
agreement]. FD Frontier Drilling (Cyprus), Ltd. v. Didmon, 438
S.W.3d 688. 608 (Tex. App.Houston [1st Dist.] 2014, pet. denied).
3. The Note and Agreement are part of the same transaction, and
are to be read and construed together
The general rule is that separate instruments or contracts executed at the
same time, for the same purpose, and in the course of the same transaction are to
be considered as one instrument, and are to be read and construed together. Jones
v. Kelley, 614 S.W.2d 95, 98 (Tex. 1981); see also Harris v. Rowe, 593 S.W.2d
303, 306 (Tex. 1979) (Separate instruments contemporaneously executed as a part
of the same transaction and relating to the same subject matter may be construed
together as a single instrument).
In his July 19, 2017 deposition, Abbou testified that the Note was related to
the Agreement, and was in fact given as consideration for that Agreement:

Q. Theres a Promissory Note that was signed.
Is that correct?
A. Yes. As far as I remember, yes.
Q. And the Promissory Note amount is 22,500.
You see that?
. . .
A. Okay.
Q. Okay. And the payable on July 5, 2016, do
you see that right there, right there
(indicating)?
. . .
A. Yeah.
Q. If you look at Exhibit No. 6, Section 4, see
where it says 22,500, payable on July 5,
2016?
A. Okay. 22,500 to be paid by July. Yeah.
Q. Okay. So this Promissory Note relates to the
Membership Transfer Agreement of Exhibit No.
6. Is that correct?
A. If I understand you correctly, that's saying
that he promised to pay the remaining 22,500
by July 15, 2016.
Q. And thats part of the Membership Transfer
Agreement, Exhibit No. 6. Is that correct?
A. Yes.
Q. Okay. So the Promissory Note was part of the
transaction that was included in the
Membership Transfer Agreement, Exhibit No.
6; right?
A. Yes. 41
4. Thus, under the broad language of the arbitration provision in the

Agreement, Abbous claim on the Note is arbitrable
[W]here the parties include a broad arbitration provision in an agreement
that is essential to the overall transaction, [courts] presume that they intended the
[arbitration] clause to reach all aspects of the transactionincluding those aspects
41
Rec. Tab M, at 18-19.

governed by other contemporaneously executed agreements that are part of the
same transaction. Hous. Progressive Radiology Assocs., PLLC v. Lee (In re
Hous. Progressive Radiology Assocs.), 474 S.W.3d 435, 443 (Tex. App.Houston
[1st Dist.] 2015, orig. proceeding) (quoting Pers. Sec. & Safety Sys. Inc. v.
Motorola Inc., 297 F.3d 388, 394-95 (5th Cir. 2002)); see also Kirby Highland
Lakes Surgery Ctr., L.L.P. v. Kirby, 183 S.W.3d 891, 900-01 (Tex. App.Dallas
2006, orig. proceeding) (citing same).
Like the cases cited in Section III.C.2, the arbitration provision in the
Agreement is extremely broad. Paragraph 13 of Agreement provided that any
claim or controversy arising directly or indirectly out of this agreement shall be
submitted to binding arbitration ... in accordance with the commercial rules of the
American Arbitration Association.42
Abbou agreed that the Note was related to, and given in partial consideration
for, the Agreement. As such, his claim on the Note arises directly out of the
Agreement.
Abbous claim on the Note against Albaz is intertwined with the other
claims at issue, and which Respondent has already ruled are arbitrable: they all
touch on the Agreement to sell Abbous interest in Crossland. Without the
Agreement, there would have been no Notethey are clearly related. The Texas
42
Rec. Tab I at 11 (emphasis added).

Supreme Court has held that when claims are intertwined, a nonparties to an
arbitration agreement can compel arbitration (and vice versa). Meyer v. WMCO-
GP, LLC, 211 S.W.3d 302, 307 (Tex. 2006).
Given the foregoing, the conclusion must be that Abbous claim on the Note
was arbitrable under the Agreement, and thus it never should have been severed
into the Severed Cause.
5. The August 8, 2017 and October 25, 2017 orders denying

arbitration of this claim were thus an abuse of discretion
Mandamus is proper when a party is denied its right to arbitrate a dispute. In
re D. Wilson Constr. Co., 196 S.W.3d 774, 780 (Tex. 2006) (orig. proceeding);
Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272-73 (Tex. 1992) (orig.
proceeding) (absent mandamus relief, party would be deprived of the benefits of
the arbitration, and the purpose of providing a rapid, inexpensive alternative to
traditional litigation would be defeated).
Abbous claim against Albaz on the Note is clearly arbitrable. It was an
abuse of discretion to deny arbitration of this claim, and moreover for the reasons
discussed in the following section, to then sever it into a separate cause. Albaz has
no adequate remedy on appeal, because not only is he denied the benefits of
arbitration but would in fact be forced to engage in parallel litigation of two causes
with interwoven claims that involve the same facts and issues.

Issue 2 restated: Was severance of Real Party in Interest Abbous claim
on the Note into the Severed Cause an abuse of discretion
for which there is no adequate remedy on appeal, when
that claim not only arbitrable under the Agreement but
was also so interwoven with the other claims in the
Remaining Cause that they involved the same facts and
issues?
D. Because Abbous claim on the Note was arbitrable, its severance into a
separate cause was an abuse of discretion
Not only is Abbous claim on the Note arbitrable, but it was also interwoven
with, and involved the same facts and issues as, the other claims in the Remaining
Cause, and thus should not have been severed. In the cases below, severance
achived the opposite of avoiding prejudice, doing justice, and increasing
convenience.
1. Severance is only warranted when it avoids prejudice, does

justice, and increases convenience
To establish that severance is appropriate, a party must first show that: (1)
the dispute involves multiple causes of action; (2) the claims sought to be severed
would be proper subjects of independently filed lawsuits; and (3) the claims are not
so interwoven with each other that they involve the same facts and issues. In re
State, 355 S.W.3d at 614. Severance should only be granted to avoid prejudice, do
justice, and increase convenience. Id. at 613; F.F.P. Operating Partners, L.P. v.
Duenez, 237 S.W.3d 680, 693 (Tex. 2007). However, just because a claim may be
severed does not mean that it must be. Williams v. State, 406 S.W.3d 273, 280
(Tex. App.San Antonio 2013, pet. denied) (quoting In re Wilkerson, No. 14-08-

00376-CV, 2008 Tex. App. LEXIS 9779, 2008 WL 2777418, at *1 (Tex. App.
Houston [14th Dist.] June 6, 2008, orig. proceeding) (mem. op.)). A trial court has
a duty to sever only if all of the facts and circumstances unquestionably require
separate trials to prevent manifest injustice, if there are no facts or circumstances
tending to support a contrary conclusion, and if the parties legal rights will not be
prejudiced by severance. Id. (quoting In re Reynolds, 369 S.W.3d 638, 650 (Tex.
App.Tyler 2012, orig. proceeding)).
2. Mandamus relief is the proper remedy for improper severance

Improper severance is reversible error. F.F.P. Operating Partners, 237
S.W.3d at 694. Allowing an improper severance order to stand would therefore be
a waste of public and judicial resources. In re Energy Res. Tech. GOM, Inc., No.
14-12-00835-CV, 2012 Tex. App. LEXIS 8359, at *4 (Tex. App.Houston [14th
Dist.] Oct. 4, 2012, orig. proceeding). Appeal is no remedy at all for the
irreversible waste of judicial and public resources. In re Masonite Corp., 997
S.W.2d 194, 198 (Tex. 1999). Mandamus review of a severance order is thus
proper to spare private parties and the public the time and money utterly wasted
enduring eventual reversal of improperly conducted proceedings. In re Energy
Res. Tech. GOM, Inc., 2012 Tex. App. LEXIS 8359, at *4-5 (quoting In re
Prudential, 148 S.W.3d at 136).

3. For the same reason that Abbous claim on the Note is arbitrable,
its severance was an abuse of discretion with no adequate remedy
on appeal
As noted above in Section C.3, this claim is arbitrable. Abbou conceded that
the Note was related to the Agreement, and actually given as consideration for the
Agreement. Thus, litigating this claim on the Note in the Severed Cause
necessarily concern the same facts and issues as the other claims in the Remaining
Cause.
Moreover, even aside from the question of arbitrability, Albaz asserts
numerous defenses, such as misrepresentation, fraud, offset, and failure of
consideration.43 All of these defenses (and Abbous likely responses to these
defenses) necessarily concern the facts and circumstances surround the sale of
Crossland by Abbou under the Agreement.
Litigating these issues twice and in parallel does nothing to avoid prejudice,
do justice, and increase convenience. In re State, 355 S.W.3d at 613 (granting
mandamus relief when condemnation action by State of Texas severed in to eight
separate causes by landowners).
Issue 3 restated: Having determined that the claims in the Remaining

Cause were arbitrable, was it an abuse of discretion for
which there is no adequate remedy on appeal to decline
to order arbitration on those claims and stay proceedings,
as mandated by Texas Civil Practices and Remedies
Code 171.021?
43
Rec. Tab S, at 2.

E. If the claims in the Remaining Cause were found to be arbitrable, it was
an abuse of discretion not to order arbitration and stay the proceedings
as mandated by Texas Civil Practices and Remedies Code 171.021(c)
1. Once a claim is found to be arbitrable, a stay of litigation is

mandatory
Texas Civil Practices and Remedies Code (CPRC) 171.021(c) provides
that [a]n order compelling arbitration must include a stay of any proceeding
subject to Section 171.025. TEX. CIV. PRAC. & REM. CODE 171.021(c).
In turn, CPRC 171.025(a) provides that a trial court shall stay a
proceeding that involves an issue subject to arbitration if an order for arbitration or
an application for that order is made under this subchapter. TEX. CIV. PRAC. &
REM. CODE 171.025(a).
Accordingly, the Texas Supreme Court has held that when a claim falls
within the scope of a valid arbitration agreement and there are no defenses to its
enforcement, a court has no discretion but to compel arbitration and stay its own
proceedings. Forrest Oil Corp. v. McAllen, 268 S.W.3d 51, 56 (Tex. 2008)
(quoting In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753-54 (Tex. 2001) (orig.
proceeding)); see also In re J.D. Edwards World Solutions Co., 87 S.W.3d 546,
549 (Tex. 2002) (orig. proceeding, per curiam).
Once a court determines that claims are arbitrable, a stay is generally the
only appropriate order for a state court with jurisdiction of all issues. Senter Invs.,

L.L.C. v. Veerjee, 358 S.W.3d 841, 845 (Tex. App.Dallas 2012, no pet.) (quoting
CMH Homes, Inc. v. Perez, 340 S.W.3d 444, 450 n.4 (Tex. 2011)).
Under those circumstances, failing to enter an order both (a) compelling
arbitration and (b) staying pending litigation constitutes an abuse of discretion for
which there is no adequate remedy on appeal. Forrest Oil Corp., 268 S.W.3d at 56.
2. Once a claim is found to be arbitrable, ordering discovery on the

merits is an abuse of discretion
A trial court may order prearbitration discovery when it cannot fairly and
properly make its decision on the motion to compel because it lacks sufficient
information regarding the scope of the arbitration provision or other issues of
arbitrability. In re Houston Pipe Line Co., 311 S.W.3d 449, 451 (Tex. 2009) (orig.
proceeding). Motions to compel arbitration and any reasonably needed discovery
[as to arbitrability] should be resolved without delay. Id.
However, the scope of prearbitration discovery may not extend to the
merits of the underlying controversy. Id.; see also In re VNA, Inc., 403 S.W.3d
483, 487-88 (Tex. App.El Paso 2013, orig. proceeding) (abuse of discretion to
order prearbitration discovery on defense of fraudulent inducement of arbitration
agreement); In re ReadyOne Indus., 400 S.W.3d 164, 169 (Tex. App.El Paso
2013, orig. proceeding) (same); In re Susan Newell Custom Home Builders, Inc.,
420 S.W.3d 459, 462-63 (Tex. App.Dallas 2014, orig. proceeding) (defense of
unclean hands).

3. Respondents October 25, 2017 Order was an abuse of discretion
with no adequate remedy on appeal because it did not
immediately order arbitration and stay the proceedings
Respondents October 25, 2017 Order provided, in part, that:
The Court FINDS that all the claims in [the Remaining Cause] are
subject to arbitration following adequate discovery, including but not
limited to the deposition of Yakov Albaz and unsuccessfully
mediation.44
Mandamus is proper when a party is denied its right to arbitrate a dispute. In
re D. Wilson Constr. Co., 196 S.W.3d 774, 780 (Tex. 2006) (orig. proceeding);
Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272-73 (Tex. 1992) (orig.
proceeding) (absent mandamus relief, party would be deprived of the benefits of
the arbitration, and the purpose of providing a rapid, inexpensive alternative to
traditional litigation would be defeated).
More specifically, a party has no adequate remedy on appeal for an
erroneous prearbitration discovery order, and mandamus is the proper remedy. In
re ReadyOne Indus., 400 S.W.3d at 169 (citing Walker v. Packer, 827 S.W.2d 833,
843 (Tex. 1992)).
Once Respondent determined that the claims in the Remaining Cause are
arbitrable, she had no discretion but to order arbitration and stay the proceedings.
Forrest Oil Corp., 268 S.W.3d at 56. If Relators were forced to litigate this matter
44
Appx. Tab D at 1.

further before arbitration, it would deprive them of the benefits of the arbitration
process; any appeal could not cure this deprivation.
Issue 4 restated: Is the failure to order arbitration of the claims in both the
Severed Cause and the Remaining Cause and to stay
those proceedings an abuse of discretion for which there
is no adequate remedy on appeal?
F. All the claims below are arbitrable and the Court should order
Respondent grant the relief requested
The arbitration provision in the Agreement is broad, covering any claim or
controversy arising directly or indirectly out of this agreement shall be submitted
to binding arbitration. 45 There is no dispute as to the validity of this provision.
There is no dispute that the claims in the Remaining Cause are arbitrable.
The only dispute as to arbitrability is the claim on the Note in the Severed Cause.
As shown above, this claim is also arbitrable. In his deposition, Abbou admitted
that the Note was related to the Agreement, and in fact was given as partial
consideration for the sale of his membership interest in Crossland.
Thus, all the claims in the Severed Cause and the Remaining Cause are
arbitrable. That being the case, Respondent had no discretion but to have ordered
arbitration and stay the proceedings. Thus, (i) the October 16, 2017 order severing
the claim on the Note into the Severed Cause, (ii) the August 8, 2017 and October
25, 2017 order denying arbitration, and the (iii) October 25, 2017 order in the
45
Appx. Tab I at 11 (emphasis added).

Remaining Cause all constituted an abuse of discretion for which there is no
adequate remedy on appeal.
The Court should therefore cause a writ of mandamus to issue ordering
Respondent to vacate those orders, and enter an order to arbitrate all the claims
(now reconsolidated into a single cause) and to stay proceedings pending the
outcome of arbitration.
IV. Prayer
WHEREFORE, PREMISES CONSIDERED, Relators respectfully prays
that this Court of Appeals:
1) Grant oral argument;
2) Grant this Petition for Writ of Mandamus;
3) Order Respondent to vacate the October 16, 2017 Severance Order,
vacate the August 8, 2017 and October 25, 2017 orders in the Severed
Cause, and vacate in part the October 25, 2017 order in the Remaining
Cause;
4) Order Respondent to enter an order that all the claims in the cases
below (once reconsolidated into a single cause) be arbitrated and stay
all proceedings below pending the outcome of the arbitration, and
5) Grant all other relief to which Relators are entitled.

Respectfully submitted,
THE SHEENA LAW FIRM
By: /s/ Hung Michael Nguyen

DANNY M. SHEENA, P.E.
State Bar No. 00792830
S.D. Texas Attorney No. 19110
HUNG MICHAEL NGUYEN
S.D. Tex. Atty. No. 711423
Houston, Texas 77027-4508
(713) 224-6508
(713) 225-1560 Facsimile
ATTORNEYS FOR RELATOR
YAKOV ALBAZ
SIDDIQUI AYRES
By: /s/ Saif A. Siddiqui

SAIF A. SIDDIQUI
(832) 927-2775
(832) 787-1284 Facsimile
siddiqui@siddiquiayres.com
ATTORNEY FOR RELATOR
AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES AND STORAGE

Certification Pursuant to Rule 52.3(j)
I HEREBY CERTIFY that pursuant to TEX. R. APP. P. 52.3(j), I have read

the foregoing Petition for Writ of Mandamus and that every factual statement
therein is supported by competent evidence in the Appendix or record.
/s/ Hung Michael Nguyen

Hung Michael Nguyen
Certificate of Compliance with Rule 9.4(i)(3)
I HEREBY CERTIFY pursuant to TEX. R. APP. P. 9.4(i)(3) that the

foregoing Petition for Writ of Mandamus complies with the typevolume
limitation of TEX. R. APP. P. 9.4(i)(2)(B) because it contains 5,382 words,
excluding the parts of the petition exempted by TEX. R. APP. P. 9.4(i)(1). In making
this certification, I relied on the word count feature of Microsoft Word 2016, the
computer program used to prepare the document, on a copy of the document with
the parts exempted by TEX. R. APP. P. 9.4(i)(1) removed.

Hung Michael Nguyen

Certificate of Service
I HEREBY CERTIFY pursuant to TEX. R. APP. P. 9.5(d) that a true and

correct copy of the foregoing Petition for Writ of Mandamus was electronically
filed pursuant to Local Rule 4 of this Court, and served on the following parties on
the 28th day of November 2017 pursuant to pursuant to TEX. R. APP. P. 9.5(a)-(b).
VIA ELECTRONIC FILING EMAIL:
HsienTe J. Koong William P. Huttenback

john@koonglaw.com phuttenbach@hirschwest.com
Eric S. Yu Joseph R. Anderson
eric.yu@koonglaw.com janderson@hirschwest.com
KOONG LAW GROUP, PLLC HIRSCH & WESTHEIMER, P.C.
405 Main Street, Suite 801 1415 Louisiana Street, 36th Floor
Houston, Texas 77002 Houston, Texas 77002
(346) 808-0529 (voice) (713) 223-5181 (voice)
(713) 491-2874 (facsimile) (713) 223-9319 (facsimile)
ATTORNEYS FOR REAL PARTY IN ATTORNEYS FOR REAL PARTY IN
INTEREST RAAM ABBOU INTEREST PROSPERITY
BANCSHARES, INC.
VIA HAND DELIVERY:
Honorable Theresa Chang

Harris County Civil Courthouse
201 Caroline, 5th Floor
RESPONDENT

Hung Michael Nguyen

Appendix
Tab A
Tab B
Tab C
Tab D
Mandamus Record
Tab E
Tab F
Tab G
FILED
8/29/2016 7:12:43 PM
Stan Stanart
County Clerk
Harris County
CAUSE NO. 1080464
RAAM ABBOU IN THE COUNTY CIVIL COURT

VS. AT LAW NO. 2

YAKOV ALBAZ HARRIS COUNTY, TEXAS
DEFENDANT YAKOV ALBAZ ORIGINAL ANSWER AND

REQUEST FOR DISCLOSURES
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES, YAKOV ALBAZ, Defendant herein, by and through its undersigned
counsel, and files this Defendant Yakov Albaz Original Answer and Request for Disclosures and
in support thereof would respectfully show the Court the following:
I.
GENERAL DENIAL
1. Defendant, YAKOV ALBAZ, denies each and every allegation of Plaintiffs
lawsuit and demands strict proof thereof in accordance with Rule 92 of the Texas Rules of Civil
Procedure and the Constitution of the State of Texas.
II.
AFFIRMATIVE DEFENSES
2. Defendant affirmatively pleads that Plaintiffs claims are barred, in whole or in
part, by the doctrine of unclean hands.
part, by the doctrines of waiver, laches, offset, ratification, and/or estoppel.
part, to the extent that Plaintiff has failed to mitigate, minimize, avoid, or abate any damages
allegedly sustained, and any recovery against Defendant must be reduced by that amount.
5. Plaintiffs claims are barred by payment.
Page 1 of 3
6. Plaintiffs claims are barred because Plaintiff breached its agreement with
Defendant.
part, by the statute of frauds.
8. Defendant asserts the affirmative defense of failure of consideration in whole or
in part.
9. Defendant asserts that Plaintiffs claim is barred because of fraud and/or
misrepresentation of Plaintiff.
10. Defendant asserts the affirmative defense of justification or excuse.
11. Defendant asserts that Plaintiffs claim is barred because of conversion on the part
of Plaintiff.
III.
REQUEST FOR DISCLOSURE
Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendant requests that
Plaintiff disclose, within thirty (30) days of service of this request, the information and/or
material described in Rule 194.2.
WHEREFORE, Defendant prays that this honorable court dismiss Plaintiffs claim with
prejudice and award Defendant his cost of court and attorney fees, and for such other and further
relief to which Defendant may be justly entitled.
THE SHEENA LAW FIRM
By: /s/ Danny M. Sheena

Danny@Sheenalawfirm.com
JASON P. SCOFIELD
Page 2 of 3
Jason@Sheenalawfirm.com
(713) 224-6508
(713) 225-1560 Facsimile
ATTORNEYS FOR DEFENDANT
Yakov Albaz
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing instrument was sent
via first class mail and/or facsimile and/or certified mail, return receipt requested and/or hand
delivery and/or electronic mail, and/or electronically through the electronic filing manager to the
below listed counsel of record on this the 29th day of August, 2016.

Danny M. Sheena
Hsien-Te J. Koong
Koong Law Group, PLLC
(346) 808-0529
(713) 491-2874 Facsimile
john@koonglaw.com
ATTORNEY FOR PLAINTIFF
Raam Abbou
Page 3 of 3
Tab H
11/18/2016 2:46:27 PM
Stan Stanart
County Clerk
Harris County
CAUSE NO.1080464

Plaintiff,

v.

YAKOV ALBAZ
AT LAW NO. 2
Defendant,

v.

CROSSLAND VAN LINES &
STORAGE

Intervenor. HARRIS COUNTY ,TEXAS
AA TOP SUCCESS, LLC D/B/A CROSSLAND VAN LINES PLEA IN

INTERVENTION AND REQUESTS FOR DISCLOSURE
COMES NOW, Intervenor AA Top Success, LLC d/b/a Crossland Van Lines &
Storage (Intervenor) and files this Plea in Intervention complaining of Raam Abbou,
and would show the Court the following:
I.
DISCOVERY CONTROL PLAN AND STATEMENT OF RELIEF
1. Intervenor affirmatively pleads this matter as an expedited action under
Texas Rule of Civil Procedure 169. Accordingly, pursuant to Rule 190.2 of the Texas
Rules of Civil Procedure, discovery in this case shall be conducted under Level 1.
2. Intervenor seeks monetary relief over $100,000 or less, including damages
of any kind, penalties, costs, expenses, interest and attorneys fees.

II.
PARTIES
3. Intervenor AA Top Success, LLC d/b/a Crossland Van Lines & Storage is
a limited liability company with its principal place of business in Harris County Texas.
4. Plaintiff Raam Abbou is an individual residing in Harris County, Texas,
who has already appeared in this case and no service is necessary.
5. Defendant Yakov Albaz is an individual residing in Harris County, Texas,
who has already appeared in this case and no service is necessary
III.
JURISDICTION AND VENUE
6. The Court has jurisdiction because the amount in controversy exceeds this
Courts minimum jurisdictional requirements. Venue of this suit is proper in Harris
County, Texas pursuant to Section 15.002 of the Texas Civil Practice and Remedies Code
because all parties are residents of Harris County, Texas.
IV.
FACTUAL BACKGROUND
7. Intervenor is a moving and storage company that specializes in both local
and long distance moves. Plaintiff is the former managing member and owner of
Intervenor. In May of 2016, Plaintiff sold the ownership and assets of Intervenor to
Hanya Vaknin.
8. However, during the process of, and the time directly after the sale,
Plaintiff wrongfully obtained over $19,000 in funds from customers of Intervenor. This
money belongs to Intervenor, not Plaintiff.
9. However, instead of giving the money to Intervenor, based upon
2
information and belief, Plaintiff set up a separate account that was substantially similar to
Intervenors name, where he deposited his ill gotten gains.
V.
CAUSES OF ACTION
A. Fraud
10. Intervenor re-alleges and incorporates by reference the preceding
paragraphs for all purposes as if set forth herein.
11. Plaintiff made numerous failed to disclose material facts to Intervenor
when he had to duty to disclose information to Intervenor including, but, not limited, to:
a. Concealing and failing to disclose the he had money belonging to
Intervenor; and
b. Concealing and failing to Plaintiff opened a bank account in which he
was depositing money belonging to Intervenor.
12. Plaintiff knew that Intervenor was ignorant of the facts and Intervenor did
not have an equal opportunity to discover the facts
13. Plaintiff was deliberately silent when it had a duty to speak. By failing to
disclose the facts, Plaintiff intended to induce Intervenor to take some action or refrain
from acting. Intervenor relied on the Plaintiffs nondisclosure.
14. As a result, Intervenor has been injured.
B. Breach of Fiduciary Duty
16. Plaintiff was the managing member of Intervenor. Accordingly, Plaintiff
3
owed Intervenor fiduciary duties as a member/officer of the company. Plaintiff breached
that duty by intentionally and knowingly diverging funds from Intervenor, and pocketing
those ill-gotten gains for his own benefit.
C. Conversion
18. Intervenor was entitled to receive the money Plaintiff received.
19. Plaintiff unlawfully and without authorization knowingly and
intrntnationally assumed and exercised control over the money to the exclusion of, or
inconsistent with Intervenors rights as an owner by depositing the funds in his own bank
account. Intervenor demanded return of the money and Plainitff has refused to return the
money.
D. Money Had and Received
21. As a result of Plaintiffs unlawful conduct, he has obtained and hold
money from Intervenor that in equity and good conscience belongs to Intervenor.
VI.
DAMAGES
paragraphs for all purposes as if set forth fully herein. Intervenor seeks the following
damages as result of Plaintiffs misconduct:
a. Actual damages, including the direct, foreseeable and consequential
4
damages of Plaintiffs wrongful actions;
b. Disgorgement of all profits and benefits obtained by the Defendants
wrongful acts;
c. Exemplary and punitive damages because Plaintiffs conduct was done
knowingly, intentionally, willfully and maliciously;
d. Pursuant to Section 41.008 of the Texas Civil Practice and Remedies
Code, the amount of exemplary damages awarded to Intervenor should
not be limited because the Defendants acted intentionally and
knowingly in violation of TEX. PENAL CODE 31.03 and/ or TEX.
PENAL CODE 32.45;
e. Pre-judgment and post-judgment interest at the maximum non-
usurious rate;
f. Court costs; and
g. Such other relief to which Plaintiff may be entitled in law or equity.
VII.
JURY DEMAND
23. Plaintiff hereby demands a jury trial
VIII.
CONDITIONS PRECEDENT
24. All conditions precedent have been performed or have occurred.
5
IX.
REQUEST FOR DISCLOSURES
25. Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Intervenor
requests that Plaintiff disclose, in thirty (30) days or less after service, the information
and materials described in Rule 194.2.
26. Further, pursuant to Rule 190.2 of the Texas Rules of Civil Procedure
Plaintiff is requested to disclose all documents, electronic information and tangible items
that the disclosing party has in its possession, custody or control, and may use to support
its claims or defenses.
XI
PRAYER
WHEREFORE, PREMISES CONSIDERED, Intervenor prays that the Court
enter Judgment in for of Intervenor AA Top Success, LLC d/b/a Crossland Van Lines &
Storage against Raam Abbou for actual damages, exemplary damages, for costs of Court,
for prejudgment and post judgment interest, as allowed by law, and for such any further
relief to which Intervenor may be entitled.
THE SHEENA LAW FIRM

JASON P. SCOFIELD
BLAKE A. ASTON
2500 W. Loop South, Suite 518
6
(713) 224-6508
(713) 225-1560 Facsimile
Danny@Sheenalawfirm.com
Jason@Sheenalawfirm.com
Blake@ Sheenalawfirm.com
Service@Sheenalawfirm.com
ATTORNEYS FOR INTERVENOR

AA Top Success, LLC d/b/a
Crossland Van Lines & Storage
I HEREBY CERTIFY that a true and correct copy of the foregoing instrument
was sent via electronic service and/or hand delivery and/or facsimile and/or certified
mail, return receipt requested, to all counsel of record on the 18th day of November 2016.
Hsien-Te J. Koong
(346) 808-0529
(713) 491-2874 Facsimile
john@koonglaw.com
ATTORNEY FOR PLAINTIFF

Raam Abbou
/s/ Danny M. Sheena

Danny M. Sheena
7
Tab I
1080464
7/25/2017 2:27 PM
Harris County - County Civil Court at Law No. 2 Stan Stanart
County Clerk
Harris County
CAUSE NO. 1080464
RAAM ABBOU,
Plaintiff

vs.
IN THE COUNTY CIVIL COURT
YAKOV ALBAZ,
Defendant
AT LAW NO. 2

CROSSLAND VAN LINES & STORAGE.
Intervenor HARRIS COUNTY, TEXAS

vs.

RAAM ABBOU,
Defendant in Intervention

DEFENDANT YAKOV ALBAZS AND INTERVENOR AA

TOP SUCCESS, LLCS MOTION TO COMPEL
ARBITRATION
COMES NOW, Defendant YAKOV ALBAZ (Albaz) and AA TOP SUCCESS, LLC
D/B/A CROSSLAND VAN LINES & STORAGE (Crossland), by and through their
undersigned counsel, and files this Defendant Yakov Albazs and Intervenor AA Top Success,
LLCs Motion to Compel Arbitration (Motion), and in support thereof would respectfully show
the Court the following:
I. Summary
1. Defendant Albaz and Intervenor Crossland hereby move that Court to enter an order
compelling to parties to arbitrate their dispute, and to abate this case, including pending
discovery, pursuant to the attached valid, binding arbitration agreement entered into by Plaintiff
RAAM ABBOUs (Abbou).

II. Factual Background
2. Abbou sued Albaz on a promissory note. This was part of a transaction wherein Abbou
sold his membership interests in Crossland to Yosef pursuant to that certain Membership
Transfer Agreement (Agreement) dated May 18, 2016, attached hereto as Exhibit A. In
consideration, Albaz paid Abbou $20,000.00 in cash and executed a promissory note for
$22,500.00.
3. As seller, Abbou made certain representations about the value of Crossland, and
represented that Crossland was entitled to certain receivables and other funds. Specifically, he
represented that at the closing of the sale, Crossland would have at least $20,000.00 in
receivables, and the sale of Abbous interests in Crossland was premised on such representations.
Albaz and Yosef relied on those representations. If he had known those representations were
untrue, Albaz would not have paid the consideration or made the note, and Yosef would not have
purchased Abbous membership interest in Crossland.
4. As it turns out, Abbou misappropriated $24,259.26 in funds that rightfully belonged to
Crossland. Crossland also discovered that Abbou had opened a separate bank account into which
he deposited these misappropriated gains. Crossland does not have access or control over these
accounts. Finally, Crossland likely diverted customers that rightly belonged to Crossland for his
own direct personal benefit.
III. Arguments and Authorities
A. If a valid arbitration agreement exists, and the matter is arbitrable, state and
federal law strongly favors arbitration, and the Court must compel such arbitration
and abate the case pending the arbitration
5. A party seeking to compel arbitration must show (1) the existence of a valid, enforceable
arbitration agreement and (2) that the claims asserted are arbitrable, i.e. they fall within the scope
of that agreement. In re FirstMerit Bank, 52 S.W.3d 749, 753 (Tex. 2001); Valero Energy Corp.
DEFENDANT YAKOV ALBAZS AND INTERVENOR AA TOP SUCCESS, LLCS

MOTION TO COMPEL ARBITRATION Page 2 of 6
v. Teco Pipeline Co., 2 S.W.3d 576, 581 (Tex.App.Houston [14th Dist.] 1999, no pet.). If
these two showings are made, the burden shifts to the party opposing the arbitration to present a
valid defense to the arbitration agreement. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227-
28 (Tex.2003).
6. Federal and state law strongly favors arbitration. In re FirstMerit Bank, 52 S.W.3d at
753. Doubts regarding an agreements scope are resolved in favor of arbitration because there is
a presumption favoring agreements to arbitrate. Id.; Cantella & Co. v. Goodwin, 924 S.W.2d
943, 944 (Tex.1996).
7. Once a party seeking to compel arbitration establishes that there is a valid agreement to
arbitrate and that the claims raised are within the agreements scope, the Court must compel
arbitration. See 9 U.S.C. 2, 4 (Federal Arbitration Act/FAA); TEX. CIV. PRAC. & REM. CODE
171.001, 171.002, 171.021 (Texas Arbitration Act/TAA); In re D. Wilson Constr. Co., 196
S.W.3d 774, 781 (Tex. 2006); In re Dillard Dept Stores, Inc., 186 S.W.3d 514, 515 (Tex. 2006);
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003).
8. When a court orders the parties to arbitration, it must abate the proceedings pending the
outcome of the arbitration. 9 U.S.C. 3; TEX. CIV. PRAC. & REM. CODE 171.025.
B. A valid arbitration agreement exists
9. Paragraph 13 of the Agreement contained an arbitration provision:

C. The matter is arbitrable
10. A written agreement to submit any existing controversy to arbitration or a provision in a
written contract to submit to arbitration any controversy thereafter arising between the parties is
valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the
revocation of any contract. Phillips v. ACS Mun. Brokers, Inc., 888 S.W.2d 872, 875 (Tex. App
Dallas 1994, no writ).
11. As noted above, the Agreement provides that any claim or controversy arising directly
or indirectly out of this Agreement shall be resolved by binding arbitration. The claims and
controversies in this case all arise from the Agreement and the transaction which it embodied.
Abbou seeks to enforce payment of a promissory note made in consideration of the transaction
detailed in the Agreement, and which he admitted in deposition was part of the Agreement. See
email attached as Exhibit B. Defendant Albazs defenses are premised on the Agreement.
Intervenor Crosslands claims also arise from the agreement.
12. It is clear the the claims and controversies in this case arise directly or indirectly out of
this agreement.
D. Conclusion
13. Because a valid arbitration agreement exists, and the dispute is arbitrable, under the
relevant statutes the Court must compel arbitration and abate this suit pending the outcome of the
arbitration.
IV. Prayer
WHEREFORE, PREMISES CONSIDERED, Defendant Albaz and Intervenor Crossland pray
that the Court grant this Motion, enter an order compelling the parties to arbitrate their dispute, to
abate this case pending the outcome of the arbitration, and for all other relief to which they may
be justly entitled.

THE SHEENA LAW FIRM

JASON P. SCOFIELD
BLAKE A. ASTON
(713) 224-6508
(713) 225-1560 Facsimile
ATTORNEYS FOR YAKOV ALBAZ AND AA
TOP SUCCESS, LLC D/B/A CROSSLAND VAN
LINES AND STORAGE

CERTIFICATE OF CONFERENCE
I HEREBY CERTIFY that on or about July 19, 2017, during the deposition of Plaintiff
Raam Abbou, I conferred with HsienTe J. Koong, his counsel regarding arbitrating this matter.
I followed up by email on July 21, 2017, attached hereto as Exhibit B, but no response has been
received as of the date the above Motion was filed, so it is presumed that Plaintiff is opposed.
/s/ Danny M. Sheena

Danny M. Sheena
I HEREBY CERTIFY that a true and correct copy of the foregoing Defendant Yakov
Albazs and Intervenor AA Top Success, LLCs Motion to Compel Arbitration was sent via
electronic service and/or hand delivery and/or facsimile and/or certified mail, return receipt
requested, to all counsel of record on the 25th day of July 2017.
HsienTe J. Koong
3302 Canal St., Suite 50
(281) 895-1688
(281) 895-1356 Facsimile
john@koonglaw.com
ATTORNEY FOR RAAM ABBOU
/s/ Danny M. Sheena

Danny M. Sheena

Exhibit A
Exhibit B
The Sheena Law Firm Mail - Abbou v. Alvaz - Arbitration 7/25/17, 12(56 PM
Danny Sheena <danny@sheenalawfirm.com>
Abbou v. Alvaz - Arbitration

1 message
Danny Sheena <danny@sheenalawfirm.com> Fri, Jul 21, 2017 at 4:27 PM

To: john@koonglaw.com
Cc: Hung Nguyen <mike@sheenalawfirm.com>
John:
I still did not hear back from you on your position on Arbitration.
As you know, the agreement between the parties contains a clear arbitration agreement.
Mr. Abbou admitted during his deposition that the Note was part of the Agreement.
I need to know if you are opposed or not to my Motion to Compel Arbitration.
Thanks.
Danny M. Sheena
The Sheena Law Firm
(713) 224-6508
(713) 225-1560 Facsimile
E-mail: Danny@Sheenalawfirm.com
Web: www.Sheenalawfirm.com
NOTICE OF CONFIDENTIALITY
The information contained in this e-mail message and any attachments hereto is privileged and confidential, and is intended only for the use of the intended recipient and others who have been specifically
authorized to receive it. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, disclosure, use or copying of this communication, or the making or retention of a copy of
this communication, is strictly prohibited. If you have received this communication in error, please contact the sender by return e-mail and delete this message. If this e-mail message has any filed attached to it,
they should be virus-checked before they are opened. Thank you for your cooperation.
https://mail.google.com/mail/u/3/?ui=2&ik=5cc144cffb&jsver=HFKfDpt&q=abb&search=query&th=15d6710674a6ad43&siml=15d6710674a6ad43 Page 1 of 1
Tab J
1
Motion to Compel Arbitration August 8, 2017

1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME
2 TRIAL COURT CAUSE NO. 1080464
FILED IN
3 RAAM ABBOU ) IN THE COUNTY CIVIL COURT
1st COURT OF APPEALS
) HOUSTON, TEXAS
4 vs. ) AT LAW NUMBER TWO11/6/2017
(2) 2:48:47 PM
) CHRISTOPHER A. PRINE
5 YAKOV ALBAZ ) HARRIS COUNTY, TEXAS Clerk
7 MOTION TO COMPEL ARBITRATION
10 On the 8th day of August, 2017, the following
11 proceedings came on to be held in the above-entitled
12 and numbered cause before the Honorable Theresa W.
13 Chang, Judge Presiding, held in Harris County, Texas.
14 Proceedings reported by computerized stenotype
15 machine.
16
17
18
19
20
21
22
23
24
25
KAREN S. BERNHARDT, C.S.R.

(713) 962-2530
2

1 APPEARANCES
2 HSIEN-TE J KOONG
SBOT NO. 24097951
3 AND ERIC YU
4 3302 Canal, Suite 72
5 Telephone: 281.895.1688
Fax: 281.895.1356
6 E-mail: ask@koonglaw.com
Attorney for Plaintiff, Raam Abbou
7
DANNY M. SHEENA
8 SBOT NO. 00792830
The Sheena Law Firm
9 2500 West Loop South, Suite 518
10 Telephone: 713.224.6508
Fax: 713.225.1560
11 E-mail: service@Sheenalawfirm.com
Attorney for Defendant, Yakov Albaz and Intervenor,
12 AA Top Success, LLC
13
14
15
16
17
18
19
20
21
22
23
24
25

(713) 962-2530
3

1
2 CHRONOLOGICAL INDEX
4 Adjournment ...................................23 1
6 Reporter's Certificate .........................24 1
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

(713) 962-2530
4

1 THE COURT: Cause number 1080464, Raam
2 Abbou vs. Yakov Albaz, AA Top Success, LLC, d/b/a
3 Crossland Van Lines and Storage vs. Raam Abbou.
4 Counsel, please announce your name for
5 the record.
6 MR. SHEENA: I'm Danny Sheena for
7 Yakov Albaz and AA Top Success.
8 MR. KOONG: I'm Hsien-Te Koong for
9 plaintiffs.
10 MR. YU: Eric Yu for plaintiffs.
11 THE COURT: So this is defendant
12 Intervenor AA Top Success's Motion to Compel
13 Arbitration?
14 MR. SHEENA: Yes, Your Honor.
15 THE COURT: Okay.
16 MR. SHEENA: May I proceed?
17 THE COURT: Yes.
18 MR. SHEENA: Okay. So on May 18th,
19 2016, parties entered into agreement to sell
20 100 percent shares of a company called AA Top
21 Success, LLC. The seller --
22 THE COURT: Mr. Sheena, it's important
23 for you to talk about which parties because we have
24 three parties here in this case.

(713) 962-2530
5

1 THE COURT: We have Raam Abbou. We
2 have Yakov Albaz. Then we have AA Top Success.
4 THE COURT: Which parties entered into
5 the agreement?
6 MR. SHEENA: I'm handing you what's
7 been marked before Exhibit No. 6 to a deposition.
8 This is the agreement. Abbou entered into that
9 agreement with AA Top Success. Okay? And in that
10 agreement Raam Abbou is the seller. AA Top Success
11 is the company.
12 And in there there's a promissory note
13 that's $22,000 payable by buyer to seller on or about
14 July 5th, 2016. And that's the promissory note
15 that we're here about today.
16 THE COURT: Okay.
17 MR. SHEENA: Okay. So we have an
18 agreement and there is a promise --
19 THE COURT: Just a second. The
20 agreement is the buyer, is Jack Yosef?
21 MR. SHEENA: Right. Jack Yosef.
22 THE COURT: Who is not a party of this
23 case?
24 MR. SHEENA: He's not party of this
25 case.
(713) 962-2530
6

1 THE COURT: Just a second. I just
2 want to get everybody clear. Myself clear too.
3 MR. SHEENA: Of course.
4 THE COURT: Jack Yosef is the buyer
5 for the membership transfer agreement. Raam Abbou
6 and Yosef is not a party for this case?
7 MR. SHEENA: That's correct.
8 THE COURT: Just a second. Raam Abbou
9 is the seller of the membership transfer agreement
10 and Abbou is the plaintiff in this case. Got that.
11 And what they're selling and buying
12 are -- is that the membership?
13 MR. SHEENA: Correct.
14 THE COURT: In the AA Top Success,
15 LLC?
16 MR. SHEENA: Correct, Your Honor.
17 THE COURT: Okay. So that's like
18 considerations.
19 MR. SHEENA: Yes.
20 THE COURT: Then the AA Top Success is
21 intervenor in this case?
22 MR. SHEENA: Yes.
23 THE COURT: All right. Let me make
24 sure. So, today's motion is AA Top Success's Motion
25 to Compel Arbitration?
(713) 962-2530
7

2 THE COURT: Okay. So there is in
3 paragraph four saying, Consideration of $45,000 and
4 other valuable consideration with $22,500 payable by
5 buyer to seller on May 18, 2016, in $22,500 payable
6 by buyer to seller on or before July 5, 2016.
8 THE COURT: And seller hereby sells,
9 assigns, transfers and delivers to buyer the subject
10 shares. Okay?
12 THE COURT: So we talk about the
13 consideration about the amount of money being
14 transferred for the buyer to get the shares from the
15 seller. All right? So the seller is the plaintiff.
16 Okay?
17 MR. SHEENA: Okay.
18 THE COURT: Buyer is not in this case.
19 MR. SHEENA: Right. So if you look at
20 paragraph four of the agreement, it talks about
21 22,500.
22 THE COURT: Right. There are two
23 places talk about 22,500. One is payable by
24 May 18th, 2016. The other one payable by July 5,
25 2016.
(713) 962-2530
8

1 MR. SHEENA: So the May 18, 2016, has
2 been paid. No dispute about that. The dispute is
3 the July 5th, 2016, which is this promissory note.
4 The promissory note is signed by Yakov Albaz. Yakov
5 Albaz is not a party to that agreement, but he
6 executed part of this promissory note.
7 And here's a transcript from the
8 plaintiff deposition that says basically that this
9 promissory note is part of this agreement
10 (indicating).
11 Basically it says:
12 "And that's part of the membership
13 transfer agreement, Exhibit 6; is that correct?
14 "Yes.
15 "So the promissory note was part of
16 the transaction that was included in the membership
17 transfer agreement, Exhibit 6. Right?
18 "Yes".
19 Okay? So we all agree that the
20 promissory note is part of the membership transfer
21 agreement. So if you look also --
22 THE COURT: Who was the transcript
23 between what? Between who and who?
24 MR. SHEENA: The transcript -- I was
25 asking the questions in the deposition of Mr. Abbou,

(713) 962-2530
9

1 and Mr. Koong was representing him in that
2 deposition. Mr. Abbou, the plaintiff --
3 THE COURT: The seller?
4 MR. SHEENA: Exactly, the seller. So
5 the seller agrees that the promissory note that's
6 part of this lawsuit is part of the membership
7 transfer agreement. Okay? So then --
8 THE COURT: The promissory note is --
9 borrower is Yakov Albaz is the defendant in this
10 case.
11 MR. SHEENA: Exactly.
12 THE COURT: And lender is Raam
13 Abbou --
14 MR. SHEENA: To the plaintiff.
15 THE COURT: -- is the seller of the
16 membership transfer agreement and plaintiff in this
17 case?
19 THE COURT: All right.
20 MR. SHEENA: Okay? So then, if I can
21 have you look on the membership transfer agreement,
22 Section 13, there's the provision, Mediation and
23 Arbitration Provision. Okay? It says, Any claim or
24 controversy arising directly or indirectly out of
25 this agreement that cannot be resolved by direct

(713) 962-2530
10

1 negotiation will -- it doesn't say shall -- will be
2 mediated in Harris County, Texas, as provided in
3 Chapter 154 of the Texas Civil Practice & Remedies
4 Code. Then arbitration provision, Any claim or
5 controversy arising directly or indirectly, which
6 means directly, or anything affecting this agreement,
7 that was not been resolved in mediation shall be
8 submitted to binding arbitration in Harris County in
9 accordance with the commercial rules of the American
10 Arbitration Association.
11 Okay? So to me as -- when somebody
12 wants to ask for arbitration, I got to show you the
13 existence of the value agreement, and I think that's
14 the transfer agreement right there. And basically
15 show that the claims fall within the agreement.
16 Those are the two things I must show.
17 Once I show that, then the burden
18 shifts on the defendant -- somebody opposing this
19 motion, to show why it should not be. Otherwise the
20 Court must compel arbitration.
21 So also if you look at section of the
22 agreement, Section No. 6H, it says on there, Seller
23 shall be responsible for all lawsuits, collectively
24 claims that may arise out of conduct occurring prior
25 to the effective date. And seller shall indemnify

(713) 962-2530
11

1 and hold the company nand buyer harmless, from any
2 and all claims regarding such prior conduct, which
3 means May 18th, 2016, was our transfer agreement.
4 Any conduct occurring before that date is the
5 obligation of the seller. Okay? That's what it
6 says.
7 So any conduct --
8 THE COURT: Which section?
9 MR. SHEENA: It's Section 6H. That's
10 it.
11 THE COURT: This is talking about
12 buyer. The buyer is not party in this case.
13 MR. SHEENA: No. It says, Seller
14 shall be responsible.
15 THE COURT: I know, but this is a
16 contract between the seller and the buyer. This is
17 talking about the seller shall be responsible in all
18 lawsuits arising out of conduct occurring prior to
19 this effective date, and seller shall indemnify and
20 hold the company and buyer harmless.
21 MR. SHEENA: Company and buyer. Okay?
22 So let me tell you what happened. Right? So this
23 provision says that any conduct occurring before the
24 sale is the responsibility of seller, Abbou. Okay?
25 The arbitration agreement says that anything relating

(713) 962-2530
12

1 to this agreement directly or indirectly. Right? So
2 any conduct that is indirectly relating to this
3 agreement would be any claims that are arising out of
4 this. Okay?
5 And so let's look at the defendants --
6 THE COURT: What's your cause of
7 action against Raam Abbou? The company? What's the
8 company's cause of action against Raam Abbou?
9 MR. SHEENA: I think it's undisputed,
10 right before the sale, Raam Abbou opened a separate
11 bank account --
12 THE COURT: Tell me the cause of
13 action. I don't need to know the facts.
14 MR. SHEENA: Fraud, breach of
15 contract, conversion.
16 THE COURT: From Top Success?
17 MR. SHEENA: AA Top Success against
18 Raam Abbou.
19 THE COURT: Yeah. You have fraud?
20 MR. SHEENA: Yes. Fraud,
21 misrepresentation, conversion.
22 THE COURT: What else?
23 MR. SHEENA: Breach of contract. I
24 don't have the petition in front of me, but I think
25 those are all the causes of action.

(713) 962-2530
13

1 THE COURT: All right. Anything else?
2 MR. SHEENA: Yes, Your Honor. So the
3 defendants in the response to the motion allege three
4 things. Okay? They said, No agreement to arbitrate.
5 Okay? And I showed you the agreement to arbitrate.
6 And it says, directly or indirectly that encompasses
7 basically the subclaims arising out of the agreement
8 because anything before the sale is a responsibility
9 of seller.
10 Also they're saying the agreement is
11 unconscionable. Costs, they're saying it's too
12 burdensome for them to pay you know, the fees to
13 arbitrate. I think the agreement says the cost of
14 arbitration is 50/50, and Mr. Koong represented him
15 at the time that the transfer agreement was done. So
16 there is no basis for that.
17 And then the third thing they're
18 complaining of is that the arbitration agreement says
19 that you will mediate before arbitration. Doesn't
20 say shall mediate. Will mediate. But then it says
21 shall arbitrate. Those are the three questions that
22 they complain about. And I think I showed you that,
23 based on the agreement itself, the language, that
24 those three things should be denied.
25 I think there is a valid arbitration

(713) 962-2530
14

1 agreement the parties agreed to, and I think the
2 Court should compel arbitration.
3 Thank you, Your Honor.
4 THE COURT: Your response?
5 MR. KOONG: Your Honor, we do not
6 believe that a valid agreement to arbitrate exists,
7 number one. Number one, the promissory note doesn't
8 mention the membership transfer agreement at all. So
9 there is no mention by reference. And I think it's
10 the same with the membership transfer agreement.
11 There's no mention of the note -- I mean, the amount
12 is the same. But it doesn't incorporate the note by
13 reference.
14 So there is no valid agreement to
15 arbitrate. And like Mr. Sheena mentioned earlier,
16 Mr. Albaz is not a party to the membership transfer
17 agreement. He's only a maker of the promissory note.
18 It's our position that it's a completely separate
19 agreement to pay and it's outside -- I think that the
20 Supreme Court will agree with our position. I have a
21 case here.
22 THE COURT: Mr. Koong, just hand me
23 the case law. Is G.T. Leach Builders, LLC vs.
24 Sapphire VP, Supreme Court, Texas, 2014. What's the
25 cite? I don't see the cite. The cite is 458 S.W.3d

(713) 962-2530
15

1 502.
2 So what is it saying?
3 MR. KOONG: Okay. So basically the
4 facts in the case are pretty similar to ours. They
5 have a developer and a general contractor. And
6 between their agreement, there was an arbitration
7 clause.
8 What happened was the subcontractors
9 tried to invoke the arbitration clause even though
10 they were not signatories to the agreement. And
11 basically, if you look at page 523 on the report, it
12 lays out the requirement for an agreement to
13 arbitrate. And on five -- page 527 it says, Merely
14 related transactions. It will not give rise to an
15 agreement to arbitrate.
16 THE COURT: So I think this case maybe
17 talk about, from what Mr. Koong says, that the
18 contract between the general contractor and developer
19 has arbitration clause. But general contractors and
20 subcontractor's agreement between general contractor
21 and subcontractor has no arbitration clause; is that
22 what happened?
23 MR. KOONG: Right. So they were
24 subcontracts. And what they were trying to do is
25 they were trying to relate to it to the main general

(713) 962-2530
16

1 contract.
2 THE COURT: Right. So the Supreme
3 Court ruling says, contract between general
4 contractor and subcontractor do not require developer
5 to arbitrate claims against subcontractors.
6 So anything else you want to add?
7 MR. SHEENA: May I respond, Your
8 Honor?
9 THE COURT: Briefly, please. Hurry.
10 Anything else?
11 MR. KOONG: Yes. Also the deposition,
12 we haven't had a chance to clarify it or make
13 corrections. Also that's impermissible parole
14 evidence relating to the membership agreement.
15 MR. SHEENA: So, Judge, I'm an
16 engineer. I do a lot of construction cases. The
17 arbitration provision, construction cases relates to
18 the contract between the parties. I don't know
19 specifically about this case, but generally a
20 contractor is between an owner and general contractor
21 would have a specific language.
22 Another contract with the sub and the
23 general contractor would have a different language.
24 Unless you include the directly or indirectly
25 language like before you today, they're right. It's

(713) 962-2530
17

1 not going to work. It's a contract. Right?
2 In this case we have the directly and
3 indirectly contract, and we have the plaintiff
4 testifying saying that promissory note is directly
5 related to the contract. That's absolute admission
6 by the plaintiff. Those two issues are directly
7 interlinked by the plaintiff's own testimony and by
8 the written agreement that says directly or
9 indirectly. And the note that we're talking about is
10 exactly the note that they're sued on today.
11 THE COURT: Okay.
12 MR. SHEENA: One more thing, Your
13 Honor? I'm sorry. Just quickly.
14 They just amended their lawsuit and
15 included now a bank, Prosperity Bank, in the lawsuit.
16 And they pled that now their claims are seeking
17 between 200,000 and over a million dollars. That's
18 their claims. Okay? So either way I'm not sure
19 about jurisdiction in this court, but I understood
20 jurisdiction to be at 200,000.
21 THE COURT: I do have jurisdiction
22 limit of 200,000. So if you pled above my
23 jurisdiction limit, I may lose my subject matter
24 jurisdiction. I haven't seen your amended petition.
25 So you have to look at that.

(713) 962-2530
18

1 MR. KOONG: Right. I mean, we had
2 just came into some facts. We weren't really sure
3 because we still need time to conduct --
4 THE COURT: But if you pled the
5 maximum recovery is over $200,000, you have to get
6 out of my court -- actually all the county civil
7 courts -- and go to district courts. You can do
8 that.
9 MR. KOONG: We can amend.
10 THE COURT: The contract claims four
11 years' statute of limitation.
12 Let's talk about the Motion to Compel
13 Arbitration. As both counsel know that the rules
14 of -- what's that? The way that the Court to
15 interpolate the contracts, we use the four-corner
16 rules. So whatever amount in the four corners of the
17 contract, that's what we look at.
18 Mr. Koong is correct that parole
19 evidence is generally not allowed to interpret --
20 interpolate the contracts we had just looked the
21 right because the contracts need to be in writing.
22 Anything --
23 Well, anyway. Let's look at the four
24 corners of the contract. So I have two contracts in
25 front of me. One is membership transfer agreement.

(713) 962-2530
19

1 That is the one that Mr. Sheena has brought to the
2 Court's attention has arbitration clause. And that
3 contract is between Abbou, who -- that's seller -- as
4 a seller, and as plaintiff in this case, and Jack
5 Yosef, as a buyer. But Mr. Yosef is not party of
6 this case. And it's a transfer of membership of the
7 company called AA Top Success, LLC, who Top Success
8 is the party, who is intervenor of the case.
9 So if you had -- if it is arbitration
10 applies, clause applies, you apply to the parties in
11 this contract would be Yosef, Abbou and AA Top
12 Success.
13 Looks like there is claims between AA
14 Top Success and Raam Abbou. That's the cause of
15 action filed by intervenor against Mr. Abbou.
16 So that -- those claims can be subject
17 to arbitration. The original lawsuit arises from the
18 promissory note between Raam Abbou, who is the lender
19 in this promissory note, and against Albaz, who is a
20 borrower of the promissory note.
21 And in that promissory note there is
22 nothing talking about arbitration, although I know
23 Mr. Sheena wants the Court to see the connections and
24 maybe they executed a contract at the same time.
25 Maybe there is some connections with these two

(713) 962-2530
20

1 contracts between a membership transfer agreement and
2 promissory note because the numbers, that $22,500, is
3 the same.
4 MR. SHEENA: And the dates are the
5 same.
6 THE COURT: Just a second. The dates
7 are not same.
8 MR. SHEENA: They are the same. I'm
9 sorry, Judge.
10 THE COURT: When they execute the
11 contract, dates are the same. Those two contracts
12 execute the same date on May 18, 2016. But there is
13 no way for the Court to know that $22,500 payable by
14 buyer to seller -- like I said, buyer is Yosef.
15 Seller is Abbou -- in this membership transfer
16 agreement that said on or before July 5, 2016.
17 The only things is the same in the
18 promissory note is the amount, $22,500. But it's not
19 between the buyer and seller in the membership
20 transfer agreement. It's between the seller and the
21 third party. I mean, if you look at the two
22 contracts, it's third party to the membership
23 transfer agreement; but the third party is Yakov
24 Albaz, who is defendant in this case.
25 What I'm saying is, I cannot see the

(713) 962-2530
21

1 right because talk about promissory note. Nothing
2 mentioned about Mr. Albaz would be responsible for
3 this $22,500. That's supposed to be responsible by
4 buyer who is Yosef.
5 The other thing I want to say is
6 that -- so your motion -- if you compare arbitration
7 for the whole case, that's denied.
8 MR. SHEENA: Okay.
9 THE COURT: But what I want to say is
10 I really see, although these two claims may be
11 connected, but they're really different because
12 they're based on two different contracts.
13 So I really like to sever the case.
14 Maybe one case should be resolved before the other
15 one, but these two cases need to be severed because
16 they are two different causes of actions, involve
17 different parties and involve different cause of
18 action, involve different claims.
19 Another thing is Top Success have a
20 claim against Mr. Abbou. Mr. Abbou has claim against
21 Albaz. Albaz is not part of the membership
22 agreement.
23 So anyway I'm going to ask the party
24 to talk to each other so you can give me something to
25 look at to sever these two cause of actions or two

(713) 962-2530
22

1 sub cases because I think we need to do that.
2 Otherwise, is this a jury trial? Or
3 bench trial?
4 MR. SHEENA: Jury trial, Your Honor.
5 THE COURT: Jury trial?
7 THE COURT: They'll be totally
8 confused.
9 Do you have an order?
10 MR. KOONG: Yeah. I did. It was in
11 the -- it was filed.
12 THE COURT: Next time you need to
13 bring another order.
14 MR. KOONG: Yes, Your Honor. I
15 apologize.
16 THE COURT: No problem.
17 Deny the motions.
18 MR. SHEENA: I'm sorry. Are you
19 denying the Motion to Compel or Arbitration?
20 THE COURT: Arbitration.
22 THE COURT: If one day you sever the
23 claims, you ask for arbitration for just the claims
24 from that Top -- AA Top Success against Raam Abbou
25 for the claim arising from the membership agreement,

(713) 962-2530
23
Motion to Compel Arbitration

August 8, 2017
1 I will reconsider it because I think you're right.
2 There is, but you probably should go through
3 mediation first. All right?
4 Thank you so much.
5 MR. KOONG: I have a quick question.
6 We had a pending motion for summary judgment that
7 there was a continuance on.
8 THE COURT: You have to set it. I'm
9 glad you asked me.
10 Off the record.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

(713) 962-2530
24
Motion to Compel Arbitration

August 8, 2017
1 STATE OF TEXAS
2 COUNTY OF Harris
3 I, Karen S. Bernhardt, Deputy Court Reporter in
4 and for the County Civil Court at Law No. 2 of
5 Harris, State of Texas, do hereby certify that the
6 above and foregoing contains a true and correct
7 transcription of all portions of evidence and other
8 proceedings requested in writing by counsel for the
9 parties to be included in this volume of the
10 Reporter's Record in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, admitted, tendered in an offer of
16 proof or offered into evidence.
17 I further certify that the total cost for the
18 preparation of this Reporter's Record is $156.00 and
19 was paid by Defendant .
20 WITNESS MY OFFICIAL HAND this the 6th day of
21 November, 2017.
22
/s/Karen S. Bernhardt
23 Karen S. Bernhardt, CSR 1601
Expiration Date: 12/31/18
24 Deputy Court Reporter, County Civil Court at Law No. 2
Harris County, Texas
25 3901 29th Street No.
Texas City, Texas 77590 Telephone: 713.962.2530
(713) 962-2530
Tab K
1080464
8/22/2017 11:36 AM
County Clerk
Harris County
CAUSE NO. 1080464

Plaintiff,

VS.

YAKOV ALBAZ
Defendant,

VS. AT LAW NO. 2

PROSPERITY BANCSHARES INC.
Defendant,

VS.

CROSSLAND VAN LINES & STORAGE
Intervenor. HARRIS COUNTY, TEXAS
PLAINTIFFS SECOND AMENDED PETITION

TO THE HONORABLE JUDE OF SAID COURT:
COMES NOW, RAAM ABBOU (hereinafter sometimes referred to as Plaintiff), and
files this First Amended Petition against Defendants, Yakov Albaz (hereinafter sometimes referred
to as Defendant), and Prosperity Bancshares Inc. (hereinafter sometimes referred to as
Prosperity or Defendant) in support thereof would respectfully show the Court as follows:
DISCOVERY-CONTROL PLAN
1) Plaintiff intends to conduct discovery under Level 2 of Texas Rule of Civil Procedure and
affirmatively pleads that this suit is not governed by the expedited-actions process in Texas Rule of
Civil Procedure 169 because of the complexity of the legal and factual issues, and the number of
parties and witnesses involved in the new factual allegations. Furthermore, based on what we know
now total damages sought will likely exceed $100,000.
Plaintiffs First Amended Petition 1

CLAIM FOR RELIEF
2) Plaintiff seeks only monetary relief of up to $200,000.
PARTIES
3) Plaintiff, Raam Abbou, is an individual, residing in Houston, Harris County, Texas at 5906
Yarwell Drive, Houston, Texas 77096.
4) The last three digits of Plaintiff Raam Abbous drivers license number are 852.
5) The last four digits of Plaintiff Raam Abbous Social Security number are 3526.
6) Defendant, Yakov Albaz is an individual, residing in Houston, Harris County, Texas at 5929
Queensloch Dr., Apartment No. 131, Houston, Texas 77096. Defendant may be served with process
in person or by certified mail at his place of residence.
7) Defendant, Prosperity Bancshares Inc., a Texas Corporation whose registered office is
located in Harris County at 4295 San Felipe Houston, Texas 77027, may be served with process by
serving its registered agent for service of process, Charlotte M Rasche, in Fort Bend County at 80
Sugar Creek Center Blvd Sugar Land, Texas 77478.
8) Intervenor, AA Top Success, LLC d/b/a Crossland Van Lines & Storage is a limited liability
company with its principal place of business in Harris County Texas.
JURISDICTION AND VENUE
9) This Court has jurisdiction over the subject matter of this case because the amount in
controversy exceeds this Courts minimum jurisdictional requirements.
10) This Court has personal jurisdiction over the Defendants and Intervenor because they have
conducted business in Harris County, Texas.
11) Venue is proper in Harris County, Texas pursuant to Tex. Civ. Prac. & Rem. Code 15.002
(a) (1) in that all or a substantial part of the acts and omissions giving rise to the claims in this suit
occurred in Harris County, Texas.
FACTS
12) Plaintiff, Raam Abbou (Raam), is a seasoned commercial vehicle driver and mover with
substantial know-how in the field of local and long-distance transportation and storage. Plaintiff is
also the former managing member and owner of Intervenor, AA Top Success D/B/A Crossland Van
Lines (Crossland).
13) Defendant, Yakov Albaz (Yakov), is a successful business man investing and owning
multiple business ventures and real estate.
14) Defendant, Prosperity Bank (Prosperity) is a Houston, Texas based regional financial holding
company with an established relationship and extensive dealings with Yakov Albaz, where Yakov
holds accounts for his other businesses and is considered a prominent banking client.
15) On or about January 2015, Yakov and Raam discussed the possibility of being partners in a
local and long-distance transportation and storage business. In these discussions, Yakov informed
Raam that he owns a warehouse that their business could use free of charge. Furthermore, Yakov
assured Raam that Raam could move his personal storage unit containing Raams personal property
including but not limited fine jewelry, two Rolex watches, Mont Blanc pen set, art memorabilia, an
antique rug, washer and dryer, dining room set, patio furniture, and other personal items to Yakovs
warehouse for storage free of charge.
16) On or about March 2015, Yakov and Raam entered into a partnership and formed Crossland,
to provide storage as well as local and long-distance moving services. In addition to making a
contribution to fund the partnership, Yakov Albazs role in Crossland was to pay Raam Abbou a fixed
salary of $10,000 per month in exchange for Raam Abbou acting as manager in maintaining

Crosslands daily operations and performing local and nationwide moves. Plaintiff Raam Abbou was
the sole managing member of Crossland1.
17) The relationship between Yakov and Prosperity is notable. Yakovs existing relationship with
Prosperity include; Yakov owning multiple business banking accounts at Prosperity for various
businesses he owns in and around Houston, Texas; and the relationship Yakov formed with Prosperity
after years of gifting fine jewelry and watches to Prosperity employees for taking care of his banking
needs. For these reasons, Yakov insisted that Raam open Crosslands bank accounts with Prosperity
Bank at the location Yakov frequently visited.
18) On or about March 2015, Raam Abbou, alone, opened the partnerships business accounts at
the Prosperity Bank location Yakov Albazs requested. Raam was the sole signatory for the accounts
at Prosperity.
19) While operating Crossland and as his managerial duty, Raam was often outside of Texas
driving commercial trucks around the clock for clients of the partnership. As a result, Raam had
difficulty monitoring the daily banking activities. Yakov insisted to Raam that certain individuals
Yakov trusted should be placed into managerial roles in order to help Raam with the daily operations.
As a business partner, Raam trusted Yakov and agreed to Yakovs course(s) of action.
20) On or about April 2015, without Raams knowledge, cash withdrawals of $18,000 were made
from the Crossland bank accounts with Prosperity Bank for unknown purposes.
21) On or about July 2015, Raam Abbou noticed unauthorized withdrawals of substantial sums
from the partnerships bank account in the form of cash, checks, and wire transfers on multiple
occasions. Upon learning of the unusual withdraws, Raam Abbou made inquiries to Albazs
employees for an explanation. However, instead of receiving an explanation to his questions, Albazs
1Raam Abbou sold his membership rights of Crossland on May 18, 2016. See Exhibit B.
employees repeatedly deflected and delayed the issue.
22) On or about July 2015, Yakovs employee notified Raam of a lease agreement between
Yakovs warehouse and Crossland, and that Raam had allegedly signed the lease. After learning about
the existence of the alleged lease, Raam dug further into the issue and discovered bank statements
showing unauthorized withdraws of $14,000 in May and July of 2015.
23) Raam, to the best of his knowledge, never signed a warehouse lease agreement and only knew
what Yakov represented in January 2015; that Yakov is the warehouse owner, Yakov and Raams
company could use Yakovs warehouse for business purposes free of charge, and Raam could use the
warehouse to store his storage unit free of charge.
24) On or about August 2015, Raam brought his concerns regarding the unauthorized withdrawals
directly to Yakov. Yakov explained to Raam that he jointly purchased the warehouse building where
Crosslands warehouse was located. It is further alleged that Yakov told Raam that the withdrawals
were for warehouse rent and that the warehouse was no longer free of charge. Further, Yakov
explained that he needed to show the joint owner that the warehouse was profitable, but the amount
of the withdrawals would be returned immediately. On or about September 2015, a final withdrawal
of $14,000 was made, to Raams knowledge.
25) After Yakovs employee brought the lease and Yakovs withdrawals to Raams attention,
Raam became worried and felt uneasy of the explanations Yakov provided. On or about January 2016,
Raam attempted to gain an understanding of the issues regarding the unauthorized withdrawals with
a Prosperity Bank branch manager. The manager acknowledged that the withdrawals from
Crosslands account was in fact completed without authorization and then the manager provided a list
of remedies available to Raam.
26) The manager at Prosperity assured Raam that the bank could temporarily reimburse Crossland
by making a deposit of an amount equal to the unauthorized withdrawals back into Crosslands

account and then begin formal investigations. However, Raam waived the investigation after the
managers firm persistence to purposefully dissuade Raam from seeking an investigation.
27) On or about February 2016, a withdrawal of approximately $100,000 from Crosslands bank
account was made without authorization.
28) On or about May 2016, Raam grew frustrated with his business partner and unsatisfied with
Yakovs explanations regarding the lease and unauthorized withdrawals, Raam decided to shut down
Crossland.
29) On or about May 16, 2016, Yakov persuaded Raam to sell Raams interest in Crossland to Jak
Yosef instead of closing the company.
30) On or about May 16, 2016, Yakov assured Raam that Raams personal storage unit held at
Yakovs warehouse would be returned to Raam, and that Yakov would transport it to Raams
residence free of charge.
31) On May 18, 2016, Raam Abbou, seller, sold and transferred his ownership interest in
Crossland to Jak Yosef, buyer2.
32) On May 18, 2016, Yakov Albaz, for valuable consideration, executed and delivered to Raam
Abbou a promissory note promising to pay Raam the sum of $22,500.00 on or before July 5, 20163.
On or about May 2017, Raam contacted Yakovs employee for the return of Raams storage unit. The
employee told Raam that Yakov would not allow the return of his storage unit unless Raam paid
$2,000. As of the filing of this petition, Raam does not have possession of items he stored in Yakovs
warehouse, in addition, Raam does not know the location of his storage unit, or whether it still exists.
CAUSES OF ACTION
2See Exhibit B
3See Exhibit A
Count 1- Civil Conspiracy to Commit Fraud (Warehouse Lease)
33) Raam Abbou incorporates by reference the factual allegations contained in the preceding
paragraphs.
34) A civil conspiracy consists of a combination by two or more persons to accomplish an
unlawful purpose or a lawful purpose by unlawful means. Firestone Steel Prods. Co. v. Barajas, 927
S.W.2d 608, 614 (Tex. 1996).
35) The elements of civil conspiracy are (1) two or more persons; (2) an object to be accomplished;
(3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5)
damages as the proximate result. Chon Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005); Boales v.
Brighton Builders, Inc., 29 S.W.3d 159, 164 (Tex. App.Houston [14th Dist.] 2000, pet. denied);
Henkel v. Emjo Invs., 480 S.W.3d 1, 7 (Tex. App.Houston [1st Dist.] 2015 no pet.).
36) As set forth above, Raam discovered bank statements showing unauthorized withdraws of
$14,000 in May and July of 2015. Yakovs employee then notified Raam of a lease agreement between
Yakovs warehouse and Crossland, and that Raams signature was on the lease. Raam, to the best of
his knowledge, never signed a warehouse lease agreement. After learning about the existence of the
alleged lease, Raam confronted Yakov for an explanation. Yakov told Raam that the withdrawals were
for warehouse rent and that the warehouse was no longer free of charge. Further, Yakov explained
that he needed to show the joint owner of the warehouse that the warehouse was profitable, but the
amount of the withdrawals would be returned immediately. On or about September 2015, a final
withdrawal of $14,000 was made, to Raams knowledge. The identity of the employees and potential
liable parties are still under investigation.
37) The conspiracy on the lease caused injury to Raam and Crossland which resulted in damages
of approximately $42,000.
38) Plaintiff seeks damages within the jurisdictional limits of this Court.

Count 2- Civil Conspiracy to Commit Fraud (Unauthorized Withdrawals)
paragraphs.
40) A civil conspiracy consists of a combination by two or more persons to accomplish an
unlawful purpose or a lawful purpose by unlawful means. Firestone Steel Prods. Co. v. Barajas, 927
S.W.2d 608, 614 (Tex. 1996).
(3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5)
damages as the proximate result. Chon Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005); Boales v.
Brighton Builders, Inc., 29 S.W.3d 159, 164 (Tex. App.Houston [14th Dist.] 2000, pet. denied);
Henkel v. Emjo Invs., 480 S.W.3d 1, 7 (Tex. App.Houston [1st Dist.] 2015 no pet.).
42) As set forth above, Prosperity honored the unauthorized withdrawals of checks, cash, and wire
transfers between April 2015 and February 2016. Prosperity Bank branch manager acknowledged that
the withdrawals from Crosslands account was in fact completed without authorization. Raam was the
sole signatory on the Crossland account. Raam waived the investigation after the managers firm
persistence to purposefully dissuade Raam from seeking an investigation. The identity of the
employees and potential liable parties are still under investigation.
43) The unauthorized withdrawals of funds caused Raam and Crossland injury. The amount of
damages caused to Raam and Crossland is at least $118,000 but the exact amount is still under
investigation.
Count 3- Theft of Property

paragraphs.
46) Plaintiff brings an action under the Texas Theft Liability Act (TLA) for an unlawful
appropriation of property under Texas Penal Code section 31.03.
47) The elements of a cause of action for theft of property under the TLA are (1) plaintiff had a
possessory right to the property; (2) the defendant unlawfully appropriated the property by taking it
without the plaintiffs effective consent; (3) the defendant appropriated the property with the intent to
deprive the plaintiff of the property; and (4) the plaintiff sustained damages as a result of the theft.
Tex. Civ. Prac. & Rem. Code 134.003(a); Tex. Pen. Code 31.03(a), (b); Statewide Hydraulics, Inc.
v. EZ Mgmt. GP, LLC, No. 14-13-01049-CV (Tex. App.Houston [14th Dist.] 2015, no pet.) (memo
op.; 1-13-15).
48) As set forth above, Yakov brought about the transfer of Raams storage unit to be held at his
warehouse in their discussions on or about January 2015. On or about May 2016, Yakov reassured
Raam he would deliver his storage unit to Raams residence free of charge. When Raam asked for his
storage unit returned on May 2017, Yakovs employee told Plaintiff that Yakov would not allow it
unless Raam paid $2,000.
49) Yakovs wrongful conduct caused injury to plaintiff, which resulted in the following damages;
all personal belongings of Raam in the storage container including but not limited to fine jewelry, two
Rolex time pieces, Mont Blanc pen set, art memorabilia, an antique rug, washer and dryer, dining
room set, and patio furniture worth at least $20,000.
Count 4- Common-Law Fraud
paragraphs.

52) The Plaintiff brings an action of common-law fraud.
53) The elements of a cause of action for common-law fraud are (1) the defendant made a
representation to the plaintiff; (2) the representation was material; (3) the representation was false; (4)
when the defendant made the representation, the defendant knew the representation was false, or made
the representation recklessly, as a positive assertion, and without knowledge of tis truth; (5) the
defendant made the representation with the intent that the plaintiff act on it; (6) the plaintiff relied on
the representation; and (7) the representation caused the plaintiff injury. Zorrilla v. Aypco Constr. II,
LLC, 469 S.W.3d 143, 153 (Tex. 2015); Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194,
217 (Tex. 2011); Italian Cowboy Partners v. Prudential Ins., 341 S.W.3d 323, 337 (Tex. 2011).
54) Yakov represented to Raam that he owned a warehouse that Crossland could use for operations
free of charge.
55) Yakovs representation to plaintiff was material because there was in fact a lease agreement
for the warehouse being used for Crossland, and Raams alleged signature was on the lease agreement.
To the best of his knowledge, Raam never signed a warehouse lease agreement. The cost of renting a
storage warehouse was material in the operation of a moving and storage company. Furthermore, the
representation by Yakov was important to Raam in his decision to enter into business operations with
Yakov.
56) Yakovs representation to Raam was a false statement of fact. On or about August 2015, Raam
brought concerns of unauthorized withdrawals from Crossland bank accounts to Yakov. Defendant
explained that the withdrawals were for the cost of rent of the warehouse. This contradicts Yakovs
initial representation that the use of the warehouse would be free. More alarming is the fact that
Raams alleged signature was found on the warehouse lease agreement that to the best of Raams
knowledge, never signed.
57) Defendant made the false representation knowing it was false. On or about August 2015, Raam

brought his concerns of a series of unauthorized withdrawals from Crossland bank accounts to Yakov.
Yakov explained to Raam that he jointly purchased the warehouse building where Crosslands
warehouse was located. Further, Yakov explained that he needed to show the joint owner that the
warehouse was profitable, but the amount of the withdrawals would be returned immediately.
58) Yakov had reason to expect Raam would act in reliance on the false representation. The cost
for a storage warehouse was imperative in Raams decision to enter into a business operation of a
moving and storage company. Furthermore, the representation by Yakov was important to Raam in
his decision to enter into business operations with Yakov.
59) Raam justifiably relied on Yakovs false representation when Raam entered into business with
Yakov and began operations using the warehouse owned by Yakov.
60) Yakovs false representation directly and proximately caused injury to Raam, which resulted
in three separate withdrawals from Crossland bank accounts of approximately $14,000 on or about
May 2015, July 2015, and September 2015 totaling approximately $42,000 in damages.
Count 5- Breach of Fiduciary Duty
paragraphs.
63) The Plaintiff brings an action of breach of fiduciary duty.
64) The elements of a cause of action for breach of fiduciary duty are (1) the plaintiff and
defendant had a fiduciary relationship; (2) the defendant breached its fiduciary duty to the plaintiff;
(3) the defendants breach resulted in injury to the plaintiff, or benefit to the defendant. Burrow v.
Arce, 997 S.W.2d 229, 237 (Tex. 1999); Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d
509, 513-14 (Tex. 1942); Heritage Gulf Coast Props. Ltd. V. Sandalwood Apts. Inc., 416 S.W.3d 642,

650 (Tex. App.Houston [14 Dist.] 2013, no pet.).
65) Plaintiff had a fiduciary relationship with defendant. Raam Abbou and Yakov Albaz were
partners in the business venture Crossland.
66) As set forth above, Yakov did not disclose to Raam pertinent information regarding the
existence of a warehouse lease that Raams signature was somehow affixed to. More importantly, to
the best of his knowledge, Raam never signed the warehouse lease and never knew about the lease
until Raam made further inquiries into unauthorized withdrawals from Crossland bank accounts.
67) Yakovs breach of fiduciary duty injured Raam by causing damages in Crossland arising from
approximately $42,000 for warehouse lease payments that Yakov did not disclose to Raam.
Count 6- Conversion
paragraphs.
70) Plaintiff brings a cause of action for conversion.
71) The elements of a cause of action for conversion are (1) the plaintiff owned, possessed, or had
the right to immediate possession of property; (2) the property was personal property; (3) the
defendant wrongfully exercised dominion or control over the property; and (4) the plaintiff suffered
injury. Green Intl v. Solis, 951 S.W.2d 384, 391 (Tex. 1997); United Mobile Networks, L.P. v.
Deaton, 939 S.W.2d 146, 147 (Tex. 1997); Burns v. Rochon, 190 S.W.3d 263, 267-68 (Tex. App.
Houston [1st Dist.] 2006, no pet.).
72) Raam owned the storage unit containing his belongings including fine jewelry, two Rolex time
pieces, Mont Blanc pen set, art memorabilia, an antique rug, washer and dryer, dining room set, and
patio furniture.

73) As set forth above, Yakov refused to return the property on Raams demand. Yakov brought
about the transfer of Raams storage unit to be held at his warehouse on or about January 2015. On or
about May 2016, Yakov reassured Raam he would deliver his storage unit to Raams residence free
of charge. On or about May 2017, Raam asked Yakovs employee to retrieve his storage unit. Yakovs
employee told Raam that Yakov would not allow it returned unless Raam Abbou paid $2,000.
74) Yakovs wrongful conduct caused injury to Raam, which resulted in the following damages;
all personal belongings of Raam in the storage container including but not limited to fine jewelry, two
Rolex time pieces, Mont Blanc pen set, art memorabilia, an antique rug, washer and dryer, dining
room set, and patio furniture worth at least $20,000.
Count 7- Promissory Estoppel
paragraphs.
77) Raam brings a cause of action for promissory estoppel.
78) The elements of an action for promissory estoppel are (1) the defendant made a promise to the
plaintiff; (2) the plaintiff reasonably and substantially relied on the promise to its detriment; (3) the
plaintiffs reliance was foreseeable by the defendant; (4) injustice can be avoided only by enforcing
the defendants promise. Collins v. Walker, 341 S.W.3d 570, 573-74 (Tex. App.Houston [14th Dist.]
2011, no pet.).
79) Yakov, promised Raam that Raam could store his storage unit at Yakovs warehouse and
would allow Raam to retrieve his storage unit stored on Yakovs warehouse on two occasions. First,
on or about January 2015 and secondly, on or about May 2016.
80) Raam relied on Yakovs promise by storing his storage unit at the warehouse. Because the

nature of the promise, plaintiffs reliance was both reasonable and substantial. Raam relied on
Yakovs promise in January 2015 as a factor for consideration for entering into a partnership with
Yakov, and again in May 2016 as a factor for consideration for selling his membership interest in
Crossland to Jak Yosef.
81) Yakov knew, or reasonably should have known, that Raam would rely on Yakovs promise
because Raams actions were directly affected by his promise to allow Raam to store his storage unit
on the warehouse premises.
82) Injustice to Raam can be avoided only if Yakovs promise is enforced.
JURY DEMAND
84) Plaintiff demands a jury trial and tenders the appropriate fee with this petition.
85) Under Texas Rule of Civil Procedure 194, plaintiff requests that defendant disclose, within 50
days of the service of this request, the information or material described in Rule 194.2
EQUITABLE RELIEF
86) Plaintiff seeks to be reimbursed for money that was wrongfully and frequently taken from the
company prior to the sale and all equitable relief.
PRAYER
87) For these reasons, Plaintiff requests that Defendant be cited to appear and answer herein, and
that Plaintiff have judgment against the Defendants for the following:
i) Upon proof of actual damages, plaintiff is entitled to additional statutory damages up to

$1,000 from defendant under Texas Civil Practice & Remedies Code section 134.005(b)
Action Towing, Inc. v. Mint Leasing, Inc. 451 S.W.3d 525, 531 (Tex. App.Houston [1st
Dist.] 2014, no pet.);
ii) Exemplary damages. Plaintiffs injury resulted from defendants malice, gross
negligence, or actual fraud, which entitles plaintiff to exemplary damages under Texas
Civil Practice & Remedies Code section 41.003(a) and 41.008(c)(8); McCullough v.
Scarbrough, Medlin & Assocs., 435 S.W.3d 871, 913 (Tex. App.Dallas 2014, pet.
denied);
iii) Attorneys fees;
iv) Prejudgment and post-judgment interest;
v) Court costs; and,
vi) All other relief to which Plaintiff is entitled.
By: /s/ Eric S. Yu

Eric S. Yu
Texas Bar No. 24103997
Attorney for Plaintiff
3302 Canal Street, Suite 72
Tel: (281) 895-1688 x103
Fax: (281) 858-1356
Eric.Yu@koonglaw.com

The undersigned hereby certifies that this Document has been served to all parties
shown below on August 2, 2017 in accordance with Rule 21 and 21a of the Texas Rules of
Civil Procedure.
Mr. Danny Sheena VIA Facsimile: 713-225-1560

2500 W. Loop South, Suite 518 and E-Mail: Danny@sheenalawfirm.com
HOUSTON, TX 77027
Attorney for Defendant and Intervenor,

Yakov Albaz and AA Top Success, LLC
Mr. Jason Scofield VIA Facsimile: 713-225-1560

2500 W. Loop South, Suite 518 and E-Mail: Jason@sheenalawfirm.com
HOUSTON, TX 77027

/s/ Eric S. Yu

EXHIBIT A
Exhibit B
Tab L
1080464
9/5/2017 2:29 PM
County Clerk
Harris County
CAUSE NO. 1080464

Plaintiff,

VS.

YAKOV ALBAZ
Defendant,

VS. AT LAW NO. 2

Defendant,

VS.

PLAINTIFFS MOTION TO SEVER
Plaintiff, Raam Abbou, asks the Court to sever this case into separate proceedings.
INTRODUCTION
1. Defendant, Yakov Albaz, defaulted in his payment on a promissory note by failing to make
payment on or before July 5, 2016. On July 21, 2016, Plaintiff, Raam Abbou, sued Defendant,
Yakov Albaz, for breach and enforcement of promissory note.
2. On November 18, 2016, Intervenor, AA Top Success, LLC d/b/a Crossland Van Lines and
Storage (Crossland) brought claims against Plaintiff for fraud, breach of fiduciary duty and
conversion. On July 25, 2017, Intervenor and Defendant filed a Motion to Compel Arbitration
and Stay Proceeding to arbitrate Plaintiffs claims for the enforcement of promissory note,
Intervenors claim for fraud, breach of fiduciary duty, and conversion. On August 8, 2017, the
Court denied Intervenor and Defendants Motion to Compel Arbitration and Stay Proceedings.
3. The discovery period will end on November 24, 2017.
4. This case was set for trial on September 4, 2017, however a 120 day continuance was
granted on August 25, 2017.
BACKGROUND
5. Plaintiffs claims against Defendant, Yakov Albaz, for breach and enforcement of the
promissory note is an independent contract between Plaintiff and Defendant. Claims brought by
Intervenor against Plaintiff arise out of a Membership Transfer Agreement, a separate
independent contract between Plaintiff and Intervenor. On July 25, 2017, Defendant and
Intervenor filed for a Motion to Compel Arbitration concerning all claims mentioned above. On
August 8, 2017, Defendant and Intervenors Motion to Compel Arbitration and Stay Proceedings
were denied by this Court. See Exhibit A. On August 21, 2017, Plaintiff filed his amended
petition on August 21, 2017. See Exhibit B.
ARGUMENT & AUTHORITIES
6. Plaintiff asks the Court to sever enforcement of promissory note from the rest of this suit
and assign it a new cause number.
7. A court may sever part of a case before the case is submitted to the trier of fact. Tex. R.
Civ. P. 41; State Dept of Highways & Pub. Transp. v. Cotner, 845 S.W.2d 818, 819 (Tex.
1993); Christopher Columbus St. Mkt. LLC v. Zoning Bd. of Adjustments, 302 S.W.3d 408, 414
(Tex. App.Houston [14th Dist.] 2009, no pet.). This case has not been submitted to the trier of
fact.
2
8. A lawsuit may be severed into two suits (1) if it involves more than one distinct and
separate cause of action, (2) the severed cause could have been independently asserted in a
separate lawsuit, and (3) the severed cause is not so interwoven with the remaining action that
they involve the same facts and issues. In re State, 355 S.W.3d 611, 614 (Tex. 2011); F.F.P.
Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex. 2007); Liberty Natl Fire Ins.
Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996). When considering whether a cause of action
should be severed, the courts discretion is guided by the following controlling reasons: to do
justice, avoid prejudice, and further the convenience of the parties and the court. In re State, 355
S.W.3d at 613; F.F.P. Operating Partners, 237 S.W.3d at 693; Guar. Fed. Sav. Bank v.
Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990); Owens v. Owens, 228 S.W.3d 721,
726 (Tex. App.Houston [14th Dist.] 2006, pet. dismd).
9. This case involves the following distinct and separate causes of action: Plaintiffs claims
against Defendant for enforcement of a promissory note; Intervenors claims against Plaintiff
arising out of a Membership Transfer Agreement for fraud, breach of fiduciary duty and
conversion; Plaintiffs claims against Defendant unrelated to the promissory note or
Membership Transfer Agreement for civil conspiracies to commit fraud; theft of property; fraud;
breach of fiduciary duty; conversion; and promissory estoppel.
10. This case can be severed because the enforcement of a promissory note could have been
independently asserted. The enforcement of the promissory note is unrelated to Intervenors
claims against Plaintiff for fraud, breach of fiduciary duty and conversion arising from a
Membership Transfer Agreement, an independent agreement between Plaintiff and Intervenor.
In addition, Plaintiffs amended petition include independent issues unrelated to
Plaintiffs enforcement of the promissory note which include additional claims against
Defendant for civil conspiracy, theft of property, conversion, fraud, breach of fiduciary duty, and
promissory estoppel.
11. This case can be severed because the cause of action to be severed is not so interwoven
with the remaining action that they involve the same facts and issues. Here, Plaintiffs claims for
breach of promissory note and enforcement of promissory note is an issue based solely on
Defendants promise to pay Plaintiff. The Intervenor is not a party to the promissory note, and
the promissory note is not mentioned in the Membership Transfer Agreement, a separate
contract between Plaintiff and Intervenor. Ultimately, the severance of the enforcement of the
promissory note will serve to eliminate confusion for the fact finder.
12. The Court should grant a severance in this case because the severance would work to
avoid prejudice, do justice, and further the convenience of the parties and the Court. Plaintiff
agrees with the Courts order denying Defendant and Intervenors Motion to Compel Arbitration
and Stay Proceedings on Plaintiffs claim for breach of contract on promissory note and
enforcement of promissory note. Furthermore, because there are multiple parties and complex
claims involved in the cause of action, severing the enforcement of the promissory note will
serve to reduce factual confusion to the fact finder. The severance of these claims would work to
avoid prejudice, avoid material confusion for the fact finder, do justice, and further the
convenience of the parties and the Court.
MOTION FOR SEPARATE TRIALS
13. In the alternative, if the Court denies this motion to sever, Plaintiff asks the Court to order
separate trials for breach of contract on promissory note and enforcement of promissory note. A
court may order a separate trial of any claim, cross-claim, counterclaim, third-party claim, or
issue to further convenience or to avoid prejudice. Tex. R. Civ. P. 174(b).

4
14. The Court should grant Plaintiffs motion for separate trials because trying the claims or
issues arising from a promissory note between Plaintiff and Defendant together with
Intervenors claims against Plaintiff for fraud, breach of fiduciary duty and conversion related to
a separate Membership Transfer Agreement would result in risk of prejudice and create material
confusion for the fact finder.
CONCLUSION
15. Plaintiff, Raam Abbou, asks the Court to sever this case into separate proceedings and assign
it a new cause number. Plaintiffs cause against Defendant for breach of promissory note and
enforcement of promissory note should be severed from the case because the case involves more
than one distinct and separate cause of action, the severed cause could have been independently
asserted in a separate lawsuit, and the severed cause is not so interwoven with the remaining action
that they involve the same facts and issues.
PRAYER
16. For these reasons, Plaintiff asks the Court to sever the claims for breach and enforcement
of promissory note from the other causes of action in this case and order the clerk of the Court to
assign a new number to the severed cause. In the alternative, Plaintiff asks the Court to grant his
motion for separate trials.
By: /s/ Eric S. Yu

Eric S. Yu
Tel: (281) 895-1688 x103
Fax: (281) 858-1356
The undersigned hereby certifies that this Document has been served to all parties shown
below on September 5, 2017 in accordance with Rule 21 and 21a of the Texas Rules of Civil
Procedure.
Mr. Danny Sheena VIA Facsimile: 713-225-1560

2500 W. Loop South, Suite 518 and E-Mail: Danny@sheenalawfirm.com
HOUSTON, TX 77027

Mr. Jason Scofield VIA Facsimile: 713-225-1560

2500 W. Loop South, Suite 518 and E-Mail: Jason@sheenalawfirm.com
HOUSTON, TX 77027

6
Page 55
Page 56
Tab M
1080464
9/14/2017 3:51 PM
County Clerk
Harris County
CAUSE NO. 1080464
RAAM ABBOU,
Plaintiff

vs.
YAKOV ALBAZ,
Defendant
AT LAW NO. 2


vs.

RAAM ABBOU,

DEFENDANT YAKOV ALBAZS REQUEST FOR ORAL

HEARING, MOTION FOR LEAVE TO FILE RESPONSE
OUT OF TIME, AND RESPONSE IN OPPOSITION TO
PLAINTIFFS MOTION TO SEVER
COMES NOW, Defendant and CrossPlaintiff YAKOV ALBAZ (Albaz), by and
through his undersigned counsel, and files this Defendant Yakov Albazs Request for Oral Hearing,
Motion for Leave to File Response Out of Time, and Response in Opposition to Plaintiffs Motion
to Sever (Response), and in support thereof would respectfully show the Court the following:
I. Request for Oral Hearing
1. Pursuant to the Courts procedures, Albaz hereby requests an oral hearing. The undersigned
believes the issues are sufficiently complex that the Court will be aided by argument from counsel.
II. Motion for Leave
2. Pursuant to the August 28, 2017 order of the Supreme Court of Texas, misc. docket no. 17-
9091, Albaz hereby seeks leave to file his response out of time. The office of the undersigned only
recently reopened and with reduced staff, and several of the attorneys and staff are still dealing
with the aftermath of Hurricane Harvey.
III. Response in Opposition
3. The Court should deny the Plaintiffs Motion to Sever (Motion) filed by Plaintiff RAAM
ABBOU (Abbou). All of the parties various claims related to Abbous sale of his interest in
Intervenor AA TOP SUCCESS, LLC D/B/A CROSSLAND VAN LINES & STORAGE
(Crossland) because the claims that Abbou wishes to sever (that is, those against Albaz) are so
interwoven with the remaining claims (Albazs claims against Crossland and Crosslands claims
against Abbou), that they involve the same facts and issues (that is, they all implicate the
relationship between Abbou, Albaz, and Crossland before Abbou sold his membership interest in
Crossland on May 18, 2016).
4. Specifically:
a) Originally, Abbou sued Albaz on a promissory note.1 This note was partial
consideration for Abbous sale of his membership interests in Crossland;
b) The sale was pursuant to a Membership Transfer Agreement dated May 18, 2016
(Agreement), and attached hereto as Defendants Exhibit A.
c) In deposition, Abbou agreed that the promissory note in question was part of the
transaction that was included in the [Agreement];2
1
Plaintiffs Original Petition filed July 21, 2016.
2
Oral Deposition of Raam Abbou dated July 19, 2017, vol. 2 of 2 (Abbou Dep.), attached hereto as Defendants
Exhibit B, at 158:24-159:11.
DEFENDANT YAKOV ALBAZS REQUEST FOR ORAL HEARING,
MOTION FOR LEAVE TO FILE RESPONSE OUT OF TIME, AND
RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION TO SEVER Page 2 of 6
d) Crossland intervened, asserting claims against Abbou for breach of fiduciary and
misappropriation of certain funds belonging to Crossland while he was managing
member of Crossland;3
e) Abbou amended his petition to dismiss his claim related to the promissory note, and
add other claims that seem to really belong to Crossland against Albaz:4 these claims
related to business dealings Albaz had with Crossland and not Abbou in his individual
capacity. For example, he alleged claims relating to a warehouse lease, where
Crossland was the tenant, not Abbou.5 Likewise, he alleged that Albaz misappropriated
funds that belonged to Crossland. Because he sold all his interests in Crossland
pursuant to the Agreement, these claims belong to Crossland;
f) Beginning in March 2015, Albaz loaned Crossland a total of $540,836.76 to cover
startup costs and general business expenses. Albaz was repaid $80,000, leaving an
amount of 460,836.76 still owing. Albaz now asserts a crossclaim against Crossland;6
g) Similarly, in the Agreement, Abbou agreed to indemnify Crossland for all claims
against it arising from conduct prior to May 18, 2016 (the day Abbou sold his interest
in Crossland). Crossland apparently requested that Abbou indemnify it for Albazs
3
AA Top Success, LLC d/b/a Crossland Van Lines Plea in Intervention and Requests for Disclosure filed
November 18, 2016.
4
Abbou filed two amended petitions titled Plaintiffs Second Amended Petition. The first was filed on August 8,
2017 and is not at issued here. On August 21, 2017, Abbou filed his Plaintiffs Third Amended Petition. One day
later, on August 22, 2017, Abbou filed another petition confusingly titled Plaintiffs Second Amended Petition. This
August 22, 2017 petition did not contain a claim to enforce payment of a promissory note, and must be considered
the live petition. TEX. R. CIV. P. 65 (amended pleading supplants earlier pleadings); see also Bennett v. Wood
County, 200 S.W.3d 239, 241 (Tex. App.Tyler 2006, no pet.) (same); FKM Partnership v. Board of Regents of the
Univ. of Houston System, 255 S.W.3d 619, 633 (Tex. 2008) (causes of action not contained in later amended
pleading effectively dismissed).
5
See August 22, 2017 Plaintiffs Second Amended Petition at 7.
6
Defendant Yakov Albazs First Original CrossClaim filed September 14, 2017.
claims, which Abbou has failed to do. Consequently, Crossland is now likely to assert
a claim against Abbou for breach of contract.
5. Severance will lead to unnecessary costs and delay, by either the duplication of litigation
efforts, or unnecessary disputes about issue and claim preclusion. There would be lower discovery
costs for all parties. Separate trials of these cases could result in the inconsistent adjudication of
common factual and legal issues. Thus judicial economy would be served by the Court declining
to sever the claims or to have separate trials.
6. Furthermore, though the Court previously denied a motion to compel arbitration filed by
Albaz and Crossland, given the multiplicity of claims asserted which are all realted to the
Agreement, Albaz will shortly file a motion for reconsideration of the Courts order denying
arbitration.
WHEREFORE, PREMISES CONSIDERED, Albaz prays that the Court deny Abbous Motion,
and for all other relief to which he may be justly entitled.
THE SHEENA LAW FIRM

JASON P. SCOFIELD
BLAKE A. ASTON
(713) 224-6508
(713) 225-1560 Facsimile
ATTORNEYS FOR YAKOV ALBAZ

Albazs Request for Oral Hearing, Motion for Leave to File Response Out of Time, and Response
in Opposition to Plaintiffs Motion to Sever was sent via electronic service and/or hand delivery
and/or facsimile and/or certified mail, return receipt requested, to all counsel of record on the 14th
day of September 2017.
HsienTe J. Koong
Eric S. Yu
(281) 895-1688
(281) 895-1356 Facsimile
john@koonglaw.com
Saif A. Siddiqui
SIDDIQUI AYRES
(832) 927-2775
(832) 787-1284 Facsimile
ATTORNEY FOR AA TOP SUCCESS, LLC D/B/A
/s/ Danny M. Sheena

Danny M. Sheena

Harris County - County Civil Court at Law No. 2
CASE NO. 1080464
Defendants
Exhibit A
CASE NO. 1080464
Defendants
Exhibit B
Raam Abbou
1
CAUSE NO. 1080464
RAAM ABBOU : IN THE COUNTY CIVIL COURT
:
Plaintiff, :
:
VS. :
:
YAKOV ALBAZ :
:
Defendant, :
:
:
VS. :
:
AA TOP SUCCESS, LLC D/B/A :
CROSSLAND VAN LINES & :
STORAGE :
:
Intervenor. : HARRIS COUNTY, TEXAS
*************************************
ORAL DEPOSITION OF
RAAM ABBOU
JULY 19, 2017
VOLUME 2 OF 2
PAGES 1 THROUGH 188
*************************************
ORAL DEPOSITION OF RAAM ABBOU, produced as a

witness at the instance of the Defendant, Yakov Albaz,
and Intervenor, AA Top Success, LLC d/b/a Crossland Van
Lines & Storage, and duly sworn, was taken in the
above-styled and -numbered cause on the 19th day of
July, 2017, from 2:05 p.m. to 6:55 p.m., before Kim
Johnsen Rosas, CSR in and for the State of Texas,
reported by stenographic means, at the offices of Mr.
Hsien-Te J. Koong, Koong Law Group, PLLC, 3302 Canal
Street, in the Bullpen Conference Room, Houston, Texas
77003, pursuant to notice, the Texas Rules of Civil
Procedure and the provisions stated on the record or
attached hereto.
Southwest Reporting & Video Service, Inc. Registration #189

713-650-1800 swreptproduction@swreporting.com
Raam Abbou
158
1 correct?
2 A. Yes.
3 (Exhibit 10 was marked.)
4 Q. (BY MR. SHEENA) Let me show you Exhibit No.
5 10.
6 There's a Promissory Note that was signed.
7 Is that correct?
8 A. Yes. As far as I remember, yes.
9 Q. And the Promissory Note amount is 22,500. You
10 see that?
11 A. Where do you see that?
12 Q. Right there (indicating).
13 A. See, I'm not sure what these words say.
14 Q. 22,500. It says, Principal amount.
15 A. Principal. Okay.
16 Q. Okay. And the payable on July 5, 2016, do you
17 see that right there, right there (indicating)?
18 A. (No verbal response.)
19 Q. See that?
20 A. Yeah.
21 Q. If you look at Exhibit No. 6, Section 4, see
22 where it says 22,500, payable on July 5, 2016?
23 A. Okay. 22,500 to be paid by July. Yeah.
24 Q. Okay. So this Promissory Note relates to the
25 Membership Transfer Agreement of Exhibit No. 6. Is that

Raam Abbou
159
1 correct?
2 A. If I understand you correctly, that's saying
3 that he promised to pay the remaining 22,500 by July 15,
4 2016.
5 Q. And that's part of the Membership Transfer
6 Agreement, Exhibit No. 6. Is that correct?
7 A. Yes.
8 Q. Okay. So the Promissory Note was part of the
9 transaction that was included in the Membership Transfer
10 Agreement, Exhibit No. 6; right?
11 A. Yes.
12 Q. Okay. Remember a customer named Ahren Lehnert?
13 Does that ring a bell to you?
14 A. A customer?
15 Q. Yes.
16 A. No.
18 Q. (BY MR. SHEENA) Show you Exhibit No. 11. Ever
19 seen a document like this?
20 A. If I see one like that?
21 Q. Yes.
22 A. I guess so, but not this one.
23 Q. Is this a job that you did?
24 A. How can I know?
25 Q. Well, it originated in Houston, Texas and was

Tab N
1080464
9/14/2017 3:45 PM
County Clerk
Harris County
CAUSE NO. 1080464
RAAM ABBOU,
Plaintiff

vs.
YAKOV ALBAZ,
Defendant
AT LAW NO. 2


vs.

RAAM ABBOU,

DEFENDANT YAKOV ALBAZS FIRST ORIGNAL

CROSSCLAIM
through his undersigned counsel, and for cause of action would respectfully show the Court the
following:
I. Discovery Control Plan
1. Discovery is intended to be conducted under Texas Rule of Civil Procedure (Rule) 190.3
(level 2).
II. Parties
2. CrossPlaintiff YAKOV ALBAZ (Albaz) is an individual residing in Harris County,
Texas.
3. CrossDefendant AA TOP SUCCESS, LLC D/B/A CROSSLAND VAN LINES &
STORAGE (Crossland) is a limited liability company with its principal place of business in
Harris County, Texas who has already appeared in this case, and therefore no additional service is
necessary.
III. Jurisdiction and Venue
4. The Court has jurisdiction over these crossclaims pursuant to Rule 97(e). They are within
the jurisdictional limits of this Court, not filed elsewhere, mature, and arise from the same
transaction or occurrences as Plaintiffs claims.
5. Venue of this suit is proper in Harris County, Texas pursuant to Texas Civil Practice and
Remedies Code 15.062 because the venue of the main action is in Harris County, Texas.
IV. Facts
6. Plaintiff RAAM ABBOU (Abbou) formed Crossland as a moving business. Beginning
in March 2015, Albaz loaned Crossland a total of $540,836.76 to cover startup costs and general
business expenses. Albaz was repaid $80,000, leaving an amount of 460,836.76 still owing. Albaz
has demanded the balance due from Crossland, but Crossland has failed to pay him back.
V. Causes of Action
A. Breach of Contract
7. Crossland is liable to Albaz for breach of contract. Albaz agreed to lend Crossland funds,
and Crossland agreed to pay those amounts back. Albaz performed his obligations by loaning
Crossland a total of $540,836.76. Though Crossland paid Albaz back $80,000, it breached the
agreement by failing to pay back $460,836.76, and Albaz thus suffered damages in at least that
amount.
B. Unjust Enrichment
8. Additionally, and in the alternate, Crossland is liable to Albaz for unjust enrichment. The
facts stated above show that Crossland was unjustly enrichment by the loan proceeds it received
DEFENDANT YAKOV ALBAZS

FIRST ORIGINAL CROSSCLAIM Page 2 of 5
from Albaz when it failed to pay him back. It would be unconscionable for Crossland to retain the
benefit of the funds loaned by Albaz with no intention of paying it back.
C. Fraud and Fraud in the Inducement
9. Additionally, and in the alternate, Crossland is liable to Albaz for fraud. Crossland needed
funds and sought to borrow them from Albaz. It represented to Albaz that it was and would be able
to pay back the money it sought to borrow from Albaz. At the time Crossland made that
representation, it knew it to be false, and it knew that it would never be able to repay Albaz.
Nonetheless, Crossland made these representations to induce Albaz into loaning it money. Relying
on these representations, Albaz loaned Crossland a total of $540,836.76, of which $460,836.76 is
still owing.
VI. Attorneys Fees
10. Albaz is entitled to recover reasonable and necessary attorneys fees, as well as a
reasonable fee for any and all appeals to other courts under Texas Civil Practices and Remedies
Code 38.001(a).
VII. Request for Disclosure
11. Pursuant to Rule 194, Albaz requests that Crossland disclose, within the time prescribed
therein, the information or material described in Rule 194.2.
VIII. Prayer
WHEREFORE, PREMISES CONSIDERED, Albaz prays that the Court, upon final hearing,
enter judgment against Crossland, for prejudgment and postjudgment, for costs of court, and for
all other relief to which he may be justly entitled.
THE SHEENA LAW FIRM

JASON P. SCOFIELD
BLAKE A. ASTON
(713) 224-6508
(713) 225-1560 Facsimile

Albazs First Original CrossClaim was sent via electronic service and/or hand delivery and/or
facsimile and/or certified mail, return receipt requested, to all counsel of record on the 14th day of
September 2017.
HsienTe J. Koong
Eric S. Yu
(281) 895-1688
(281) 895-1356 Facsimile
john@koonglaw.com
Saif A. Siddiqui
SIDDIQUI AYRES
(832) 927-2775
(832) 787-1284 Facsimile
/s/ Danny M. Sheena

Danny M. Sheena

Tab O
1080464
9/14/2017 3:08 PM
County Clerk
Harris County
CAUSE NO. 1080464
RAAM ABBOU,
Plaintiff

vs.
YAKOV ALBAZ,
Defendant
AT LAW NO. 2


vs.

RAAM ABBOU,

AA TOP SUCCESS, LLC D/B/A CROSSLAND VAN LINES

& STORAGE FIRST AMENDED PLEA IN INTERVENTION
AND REQUEST FOR DISCLOSURE
COMES NOW, Intervenor AA TOP SUCCESS, LLC D/B/A CROSSLAND VAN LINES
& STORAGE (Crossland), by and through its undersigned counsel, and for cause of action
would respectfully show the Court the following:
I.
DISCOVERY LEVEL
1. Intervenor Crossland affirmatively pleads this matter is no longer an expedited action under
Texas Rule of Civil Procedure (Rule) 169(c)(1)(B) and (c)(2). Accordingly, discovery is
intended to be conducted under Rule 190.3 (level 2).

II.
PARTIES AND SERVICE
2. Intervenor AA TOP SUCCESS, LLC D/B/A CROSSLAND VAN LINES & STORAGE
(Crossland) is a limited liability company with its principal place of business in Harris County,
Texas.
3. Defendant in Intervention RAAM ABBOU (Abbou) is an individual residing in Harris
County, Texas who has already appeared in this case, and therefore no additional service is
necessary.
III.
JURISDICTION & VENUE
4. The Court has jurisdiction because the amount in controversy exceeds this Courts
minimum jurisdictional requirements. Venue of this suit is proper in Harris County, Texas pursuant
to Texas Civil Practice and Remedies Code sections 15.002 and 15.003 because all parties are
residents of Harris County, Texas, and because all or a substantial part of the events or omissions
giving rise to the Intervenors claims occurred in Harris County, Texas.
IV.
FACTUAL BACKGROUND
5. Abbou was the original owner of Crossland. On or about May 18, 2016, Abbou sold his
membership interest in Crossland to Yakov Albaz (Albaz) pursuant to the Membership Transfer
Agreement (Agreement), attached hereto as Exhibit A. In consideration, Abbou was paid
$22,500.00 in cash and given a promissory note for $22,500.00.
6. Paragraph 6(h) of the Agreement provided that Abbou would indemnify Crossland for all
claims that arose on or before May 18, 2016:
Page 2 of 8
7. Prior to the sale, Abbou misappropriated $24,259.26 in funds that rightfully belonged to
Crossland. Crossland also discovered that Abbou had opened a separate bank account into which
he deposited the misappropriated funds. Crossland does not have access or control over these
accounts. Finally, through information and belief, it is likely that Abbou diverted customers that
rightly belonged to Crossland for his direct personal benefit.
8. Furthermore, prior to May 18, 2016, Albaz had provided funds to Crossland to support its
operations, of which $353,086.76 apparently remains outstanding. Albaz made a demand on
Crossland for those and other amounts owed. As a result, Crosslands prior counsel withdrew and
the undersigned was designated as its new counsel by court order dated September 7, 2017.
9. On August 24, 2017, Crossland requested in writing that Abbou indemnify Crossland
pursuant to Paragraph 6(h) of the Agreement. A copy of the letter is attached as Exhibit B. As of
the date of this pleading, no response has been received from Abbou.
VI.
CAUSES OF ACTION
A. BREACH OF CONTRACT
10. Crossland realleges and incorporates by reference the preceding paragraphs for all purposes
as if set forth herein.
11. Abbou entered into the Agreement with Crossland, who has fully performed its obligations
thereunder. Under the Agreement, Abbou promised to indemnify Crossland for any claims arising
Page 3 of 8
prior to May 18, 2016. Albaz asserted a claim that arose prior to May 18, 2016 against Crossland
in the amount $353,086.76. Crossland requested that Abbou indemnify them, and Abbou breached
the Agreement by failing to do so. As a result of Abbous breach, Crossland suffered damages.
B. FRAUD
13. Abbou knowingly made numerous misrepresentations and failed to disclose material facts
to Crossland including, but not limited, to:
a) The concealment of funds belonging to Crossland, and;
b) The failure to disclose that he opened a separate bank account into which he was
depositing money that belonged to Crossland.
14. Abbou knew that Crossland was ignorant of those facts and did not have an equal
opportunity to discover them.
15. Abbou intentionally concealed these material facts to induce Crossland into taking a course
of action it would otherwise not have. Crossland relied on these misrepresentations when entering
into the Agreement, which was a proximate cause of its injuries.
C. BREACH OF FIDUCIARY DUTY
17. Prior to May 18, 2016, Abbou was the managing member of Crossland, and therefore owed
it the customary fiduciary duties of a member/officer of the company. Abbou breached that duty
when he intentionally and knowingly diverted and concealed funds belonging to Crossland for his
own benefit.
Page 4 of 8
18. Abbous breach was the proximate cause of the injuries sustained by Crossland.
D. CONVERSION
20. Crossland was legally entitled to possess the funds misappropriated by Abbou.
21. Abbou unlawfully and without authorization knowingly and intentionally assumed and
exercised dominion and control over said funds to the exclusion of, or inconsistent with,
Crosslands ownership rights as an owner.
22. Even though Crossland has demanded the return of the misappropriated funds, Abbou has
steadfastly refused to do so.
E. MONEY HAD AND RECEIVED
24. Abbou holds money belonging to Crossland that, in equity and good conscience, must be
returned to prevent his unjust enrichment from the unlawful conduct described herein.
F. DAMAGES AND ATTORNEYS FEES
26. As a direct result of Abbous misconduct, Crossland is entitled to recover the following
damages:
a) Actual damages;
b) Disgorgement of all profits and benefits enjoyed by Abbou as a result of his wrongful
acts;
Page 5 of 8
c) Exemplary and punitive damages because Abbous wrongful acts were done
knowingly, intentionally, willfully and maliciously;
d) Pursuant to Texas Civil Practice and Remedies Code 41.008, the amount of
exemplary damages awarded to Crossland should not be limited because Abbou acted
intentionally and knowingly in violation of Texas Penal Code sections 31.03 and 32.45;
e) Reasonable and necessary attorneys fees for the prosecution of its claim for breach of
contract, as well as a reasonable fee for any and all appeals to other courts under Texas
Civil Practices and Remedies Code 38.001(a);
f) Preand postjudgment interest at the rate allowed by law; and
g) Costs of court.
VII.
CONDITIONS PRESEDENT
27. All conditions precedent have been performed or have occurred.
VIII.
28. Pursuant to Rule 194, Crossland requests that Abbou disclose, within the time prescribed
therein, the information or material described in Rule 194.2.
IX.
REQUEST FOR JURY TRIAL
29. Crossland requests a jury trial in this case pursuant to Rule 216.
X.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Crossland prays that the Court, upon final
hearing, enter judgment against Abbou in favor of Crossland and grant the relief requested above,
Page 6 of 8
costs of court, pre and postjudgment interest as allowed by law, and for all other relief to which
it may be justly entitled.
___/s/ Saif A. Siddiqui___
Saif A. Siddiqui
SIDDIQUI & AYRES
(832) 927-2775
(832) 787-1284 Facsimile
ATTORNEY FOR AA TOP SUCCESS, LLC
D/B/A CROSSLAND VAN LINES AND
STORAGE
Page 7 of 8
I HEREBY CERTIFY that a true and correct copy of the foregoing AA Top Success, LLCs
d/b/a Crossland Van Lines First Amended Plea in Intervention and Requests for Disclosure was
sent via electronic service and/or hand delivery and/or facsimile and/or certified mail, return
receipt requested, to all counsel of record on the 14th day of September 2017.
HsienTe J. Koong
Eric S. Yu
(281) 895-1688
(281) 895-1356 Facsimile
john@koonglaw.com
Danny M. Sheena
THE SHEENA LAW FIRM
(713) 224-6508 (voice)
(713) 225-1560 (facsimile)
ATTORNEY FOR YAKOV ALBAZ
___/s/ Saif A. Siddiqui___
Saif A. Siddiqui
Page 8 of 8
CASE NO. 1080464
Exhibit A
CASE NO. 1080464
Exhibit B
SAIF SIDDIQUI
700 Louisiana Street
Suite 3950
Houston, TX 77002
Mobile: (713) 927-2775
Office: (832) 390-2692

August 24, 2017
Mr. Hsien-Te J. Koong

Mr. Eric S. Yu
Re: Abbou v. Albaz, Cause No. 1080464 in the Civil Court at Law No. 2 of Harris County,
Texas demand for indemnification
Mr. Koong:
I represent AA TOP SUCCESS, LLC d/b/a CROSSLAND VAN LINES & STORAGE
(Crossland) in this matter. As you may be aware, a motion to substitute counsel has been filed
by Crossland and set for submission with the Court.
Yakov Albaz (Albaz) has asserted a claim against Crossland in the amount of $353,086.76 as of
May 18, 2016. It is anticipated that Mr. Albaz will plead crossclaims against Crossland in the
abovereferenced lawsuit. Thus, it has been necessary for Crossland to retain new legal counsel.
Pursuant to paragraph 6(h) of the Membership Transfer Agreement (Agreement) dated May 18,
2016 and executed by your client, Mr. Raam Abbou (Abbou), Jak Yosef (Yosef) and
Crossland, demand is hereby made that Mr. Abbou indemnify Crossland for Mr. Albazs claims
against Crossland.
I look forward to hearing from you within two (2) business days regarding this matter.
Sincerely,
Saif A. Siddiqui

Tab P
1080464
9/15/2017 2:29 PM
County Clerk
Harris County
CAUSE NO. 1080464

Plaintiff,

VS.

YAKOV ALBAZ
Defendant,

VS. AT LAW NO. 2

Defendant,

VS.

PLAINTIFFS FOURTH AMENDED PETITION

TO THE HONORABLE JUDE OF SAID COURT:
COMES NOW, RAAM ABBOU (hereinafter sometimes referred to as Plaintiff), and
files this First Amended Petition against Defendants, Yakov Albaz (hereinafter sometimes referred
to as Defendant), and Prosperity Bancshares Inc. (hereinafter sometimes referred to as
Prosperity or Defendant) in support thereof would respectfully show the Court as follows:
DISCOVERY-CONTROL PLAN
1) Plaintiff intends to conduct discovery under Level 2 of Texas Rule of Civil Procedure and
affirmatively pleads that this suit is not governed by the expedited-actions process in Texas Rule
of Civil Procedure 169 because of the complexity of the legal and factual issues, and the number
of parties and witnesses involved in the new factual allegations. Furthermore, based on what we
know now total damages sought will likely exceed $100,000.
Plaintiffs Fourth Amended Petition 1

a) CLAIM FOR RELIEF
2) Plaintiff seeks only monetary relief of up to $200,000.
a) PARTIES
3) Plaintiff, Raam Abbou, is an individual, residing in Houston, Harris County, Texas at 5906
Yarwell Drive, Houston, Texas 77096.
4) The last three digits of Plaintiff Raam Abbous drivers license number are 852.
5) The last four digits of Plaintiff Raam Abbous Social Security number are 3526.
6) Defendant, Yakov Albaz is an individual, residing in Houston, Harris County, Texas at 5929
Queensloch Dr., Apartment No. 131, Houston, Texas 77096. Defendant may be served with
process in person or by certified mail at his place of residence.
7) Defendant, Prosperity Bancshares Inc., a Texas Corporation whose registered office is located in
Harris County at 4295 San Felipe Houston, Texas 77027, may be served with process by serving
its registered agent for service of process, Charlotte M Rasche, in Fort Bend County at 80 Sugar
Creek Center Blvd Sugar Land, Texas 77478.
8) Intervenor, AA Top Success, LLC d/b/a Crossland Van Lines & Storage is a limited liability
company with its principal place of business in Harris County Texas.
a) JURISDICTION AND VENUE
9) This Court has jurisdiction over the subject matter of this case because the amount in controversy
exceeds this Courts minimum jurisdictional requirements.
10) This Court has personal jurisdiction over the Defendants and Intervenor because they have
conducted business in Harris County, Texas.
11) Venue is proper in Harris County, Texas pursuant to Tex. Civ. Prac. & Rem. Code 15.002 (a) (1)
in that all or a substantial part of the acts and omissions giving rise to the claims in this suit
occurred in Harris County, Texas.
a) FACTS
12) Plaintiff, Raam Abbou (Raam), is a seasoned commercial vehicle driver and mover with
substantial know-how in the field of local and long-distance transportation and storage. Plaintiff
is also the former managing member and owner of Intervenor, AA Top Success D/B/A Crossland
Van Lines (Crossland).
13) Defendant, Yakov Albaz (Yakov), is a successful business man investing and owning multiple
business ventures and real estate.
14) Defendant, Prosperity Bank (Prosperity) is a Houston, Texas based regional financial holding
company with an established relationship and extensive dealings with Yakov Albaz, where Yakov
holds accounts for his other businesses and is considered a prominent banking client.
15) On or about January 2015, Yakov and Raam discussed the possibility of being partners in a local
and long-distance transportation and storage business. In these discussions, Yakov informed Raam
that he owns a warehouse that their business could use free of charge. Furthermore, Yakov assured
Raam that Raam could move his personal storage unit containing Raams personal property
including but not limited fine jewelry, two Rolex watches, Mont Blanc pen set, art memorabilia,
an antique rug, washer and dryer, dining room set, patio furniture, and other personal items to
Yakovs warehouse for storage free of charge.
16) On or about March 2015, Yakov and Raam entered into a partnership and formed Crossland, to
provide storage as well as local and long-distance moving services. In addition to making a
contribution to fund the partnership, Yakov Albazs role in Crossland was to pay Raam Abbou a
fixed salary of $10,000 per month in exchange for Raam Abbou acting as manager in maintaining

Crosslands daily operations and performing local and nationwide moves. Plaintiff Raam Abbou
was the sole managing member of Crossland1.
17) The relationship between Yakov and Prosperity is notable. Yakovs existing relationship with
Prosperity include; Yakov owning multiple business banking accounts at Prosperity for various
businesses he owns in and around Houston, Texas; and the relationship Yakov formed with
Prosperity after years of gifting fine jewelry and watches to Prosperity employees for taking care
of his banking needs. For these reasons, Yakov insisted that Raam open Crosslands bank accounts
with Prosperity Bank at the location Yakov frequently visited.
18) On or about March 2015, Raam Abbou, alone, opened the partnerships business accounts at the
Prosperity Bank location Yakov Albazs requested. Raam was the sole signatory for the accounts
at Prosperity.
19) While operating Crossland and as his managerial duty, Raam was often outside of Texas driving
commercial trucks around the clock for clients of the partnership. As a result, Raam had difficulty
monitoring the daily banking activities. Yakov insisted to Raam that certain individuals Yakov
trusted should be placed into managerial roles in order to help Raam with the daily operations. As
a business partner, Raam trusted Yakov and agreed to Yakovs course(s) of action.
20) On or about April 2015, without Raams knowledge, cash withdrawals of $18,000 were made
from the Crossland bank accounts with Prosperity Bank for unknown purposes.
21) On or about July 2015, Raam Abbou noticed unauthorized withdrawals of substantial sums from
the partnerships bank account in the form of cash, checks, and wire transfers on multiple
occasions. Upon learning of the unusual withdraws, Raam Abbou made inquiries to Albazs
employees for an explanation. However, instead of receiving an explanation to his questions,
1Raam Abbou sold his membership rights of Crossland on May 18, 2016. See Exhibit B.
Albazs employees repeatedly deflected and delayed the issue.
22) On or about July 2015, Yakovs employee notified Raam of a lease agreement between Yakovs
warehouse and Crossland, and that Raam had allegedly signed the lease. After learning about the
existence of the alleged lease, Raam dug further into the issue and discovered bank statements
showing unauthorized withdraws of $14,000 in May and July of 2015.
23) Raam, to the best of his knowledge, never signed a warehouse lease agreement and only knew
what Yakov represented in January 2015; that Yakov is the warehouse owner, Yakov and Raams
company could use Yakovs warehouse for business purposes free of charge, and Raam could use
the warehouse to store his storage unit free of charge.
24) On or about August 2015, Raam brought his concerns regarding the unauthorized withdrawals
directly to Yakov. Yakov explained to Raam that he jointly purchased the warehouse building
where Crosslands warehouse was located. It is further alleged that Yakov told Raam that the
withdrawals were for warehouse rent and that the warehouse was no longer free of charge. Further,
Yakov explained that he needed to show the joint owner that the warehouse was profitable, but
the amount of the withdrawals would be returned immediately. On or about September 2015, a
final withdrawal of $14,000 was made, to Raams knowledge.
25) After Yakovs employee brought the lease and Yakovs withdrawals to Raams attention, Raam
became worried and felt uneasy of the explanations Yakov provided. On or about January 2016,
Raam attempted to gain an understanding of the issues regarding the unauthorized withdrawals
with a Prosperity Bank branch manager. The manager acknowledged that the withdrawals from
Crosslands account was in fact completed without authorization and then the manager provided
a list of remedies available to Raam.
26) The manager at Prosperity assured Raam that the bank could temporarily reimburse Crossland by
making a deposit of an amount equal to the unauthorized withdrawals back into Crosslands

account and then begin formal investigations. However, Raam waived the investigation after the
managers firm persistence to purposefully dissuade Raam from seeking an investigation.
27) On or about February 2016, a withdrawal of approximately $100,000 from Crosslands bank
account was made without authorization.
28) On or about May 2016, Raam grew frustrated with his business partner and unsatisfied with
Yakovs explanations regarding the lease and unauthorized withdrawals, Raam decided to shut
down Crossland.
29) On or about May 16, 2016, Yakov persuaded Raam to sell Raams interest in Crossland to Jak
Yosef instead of closing the company.
30) On or about May 16, 2016, Yakov assured Raam that Raams personal storage unit held at Yakovs
warehouse would be returned to Raam, and that Yakov would transport it to Raams residence
free of charge.
31) On May 18, 2016, Raam Abbou, seller, sold and transferred his ownership interest in Crossland
to Jak Yosef, buyer2.
32) On May 18, 2016, Yakov Albaz, for valuable consideration, executed and delivered to Raam
Abbou a promissory note promising to pay Raam the sum of $22,500.00 on or before July 5,
20163.
33) On or about May 2017, Raam contacted Yakovs employee for the return of Raams storage unit.
The employee told Raam that Yakov would not allow the return of his storage unit unless Raam
paid $2,000. As of the filing of this petition, Raam does not have possession of items he stored in
Yakovs warehouse, in addition, Raam does not know the location of his storage unit, or whether
it still exists.
2See Exhibit B
3See Exhibit A
CAUSES OF ACTION
Count 1- Enforcement of Promissory Note
34) Defendant has defaulted in his payment on the promissory note by failing to make payment on or
before July 5, 2016. He thereby caused damage to Plaintiff in the amount of the balance due on
the principal amount of the promissory note, which is the sum of $22,500.00, together with
attorneys fees to the date of judgment, all of which is provided for in the promissory note.
Count 2- Civil Conspiracy to Commit Fraud (Warehouse Lease)
paragraphs. A civil conspiracy consists of a combination by two or more persons to accomplish
an unlawful purpose or a lawful purpose by unlawful means. Firestone Steel Prods. Co. v. Barajas,
927 S.W.2d 608, 614 (Tex. 1996).
(3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and
(5) damages as the proximate result. Chon Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005); Boales
v. Brighton Builders, Inc., 29 S.W.3d 159, 164 (Tex. App.Houston [14th Dist.] 2000, pet.
denied); Henkel v. Emjo Invs., 480 S.W.3d 1, 7 (Tex. App.Houston [1st Dist.] 2015 no pet.).
37) As set forth above, Raam discovered bank statements showing unauthorized withdraws of $14,000
in May and July of 2015. Yakovs employee then notified Raam of a lease agreement between
Yakovs warehouse and Crossland, and that Raams signature was on the lease. Raam, to the best
of his knowledge, never signed a warehouse lease agreement. After learning about the existence
of the alleged lease, Raam confronted Yakov for an explanation. Yakov told Raam that the
withdrawals were for warehouse rent and that the warehouse was no longer free of charge. Further,

Yakov explained that he needed to show the joint owner of the warehouse that the warehouse was
profitable, but the amount of the withdrawals would be returned immediately. On or about
September 2015, a final withdrawal of $14,000 was made, to Raams knowledge. The identity of
the employees and potential liable parties are still under investigation.
38) The conspiracy on the lease caused injury to Raam and Crossland which resulted in damages of
approximately $42,000.
Count 3- Civil Conspiracy to Commit Fraud (Unauthorized Withdrawals)
paragraphs.
41) A civil conspiracy consists of a combination by two or more persons to accomplish an unlawful
purpose or a lawful purpose by unlawful means. Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d
608, 614 (Tex. 1996).
(3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and
(5) damages as the proximate result. Chon Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005); Boales
v. Brighton Builders, Inc., 29 S.W.3d 159, 164 (Tex. App.Houston [14th Dist.] 2000, pet.
denied); Henkel v. Emjo Invs., 480 S.W.3d 1, 7 (Tex. App.Houston [1st Dist.] 2015 no pet.).
43) As set forth above, Prosperity honored the unauthorized withdrawals of checks, cash, and wire
transfers between April 2015 and February 2016. Prosperity Bank branch manager acknowledged
that the withdrawals from Crosslands account was in fact completed without authorization. Raam
was the sole signatory on the Crossland account. Raam waived the investigation after the
managers firm persistence to purposefully dissuade Raam from seeking an investigation. The

identity of the employees and potential liable parties are still under investigation.
44) The unauthorized withdrawals of funds caused Raam and Crossland injury. The amount of
damages caused to Raam and Crossland is at least $118,000 but the exact amount is still under
investigation.
Count 4- Theft of Property
paragraphs.
47) Plaintiff brings an action under the Texas Theft Liability Act (TLA) for an unlawful appropriation
of property under Texas Penal Code section 31.03.
48) The elements of a cause of action for theft of property under the TLA are (1) plaintiff had a
possessory right to the property; (2) the defendant unlawfully appropriated the property by taking
it without the plaintiffs effective consent; (3) the defendant appropriated the property with the
intent to deprive the plaintiff of the property; and (4) the plaintiff sustained damages as a result of
the theft. Tex. Civ. Prac. & Rem. Code 134.003(a); Tex. Pen. Code 31.03(a), (b); Statewide
Hydraulics, Inc. v. EZ Mgmt. GP, LLC, No. 14-13-01049-CV (Tex. App.Houston [14th Dist.]
2015, no pet.) (memo op.; 1-13-15).
49) As set forth above, Yakov brought about the transfer of Raams storage unit to be held at his
warehouse in their discussions on or about January 2015. On or about May 2016, Yakov reassured
Raam he would deliver his storage unit to Raams residence free of charge. When Raam asked for
his storage unit returned on May 2017, Yakovs employee told Plaintiff that Yakov would not
allow it unless Raam paid $2,000.
50) Yakovs wrongful conduct caused injury to plaintiff, which resulted in the following damages; all
personal belongings of Raam in the storage container including but not limited to fine jewelry,

two Rolex time pieces, Mont Blanc pen set, art memorabilia, an antique rug, washer and dryer,
dining room set, and patio furniture worth at least $20,000.
Count 5- Common-Law Fraud
paragraphs.
53) The Plaintiff brings an action of common-law fraud.
54) The elements of a cause of action for common-law fraud are (1) the defendant made a
representation to the plaintiff; (2) the representation was material; (3) the representation was false;
(4) when the defendant made the representation, the defendant knew the representation was false,
or made the representation recklessly, as a positive assertion, and without knowledge of tis truth;
(5) the defendant made the representation with the intent that the plaintiff act on it; (6) the plaintiff
relied on the representation; and (7) the representation caused the plaintiff injury. Zorrilla v. Aypco
Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015); Exxon Corp. v. Emerald Oil & Gas Co., 348
S.W.3d 194, 217 (Tex. 2011); Italian Cowboy Partners v. Prudential Ins., 341 S.W.3d 323, 337
(Tex. 2011).
55) Yakov represented to Raam that he owned a warehouse that Crossland could use for operations
free of charge.
56) Yakovs representation to plaintiff was material because there was in fact a lease agreement for
the warehouse being used for Crossland, and Raams alleged signature was on the lease
agreement. To the best of his knowledge, Raam never signed a warehouse lease agreement. The
cost of renting a storage warehouse was material in the operation of a moving and storage
company. Furthermore, the representation by Yakov was important to Raam in his decision to

enter into business operations with Yakov.
57) Yakovs representation to Raam was a false statement of fact. On or about August 2015, Raam
brought concerns of unauthorized withdrawals from Crossland bank accounts to Yakov.
Defendant explained that the withdrawals were for the cost of rent of the warehouse. This
contradicts Yakovs initial representation that the use of the warehouse would be free. More
alarming is the fact that Raams alleged signature was found on the warehouse lease agreement
that to the best of Raams knowledge, never signed.
58) Defendant made the false representation knowing it was false. On or about August 2015, Raam
brought his concerns of a series of unauthorized withdrawals from Crossland bank accounts to
Yakov. Yakov explained to Raam that he jointly purchased the warehouse building where
Crosslands warehouse was located. Further, Yakov explained that he needed to show the joint
owner that the warehouse was profitable, but the amount of the withdrawals would be returned
immediately.
59) Yakov had reason to expect Raam would act in reliance on the false representation. The cost for
a storage warehouse was imperative in Raams decision to enter into a business operation of a
moving and storage company. Furthermore, the representation by Yakov was important to Raam
in his decision to enter into business operations with Yakov.
60) Raam justifiably relied on Yakovs false representation when Raam entered into business with
Yakov and began operations using the warehouse owned by Yakov.
61) Yakovs false representation directly and proximately caused injury to Raam, which resulted in
three separate withdrawals from Crossland bank accounts of approximately $14,000 on or about
May 2015, July 2015, and September 2015 totaling approximately $42,000 in damages.

Count 6- Breach of Fiduciary Duty
paragraphs.
64) The Plaintiff brings an action of breach of fiduciary duty.
65) The elements of a cause of action for breach of fiduciary duty are (1) the plaintiff and defendant
had a fiduciary relationship; (2) the defendant breached its fiduciary duty to the plaintiff; (3) the
defendants breach resulted in injury to the plaintiff, or benefit to the defendant. Burrow v. Arce,
997 S.W.2d 229, 237 (Tex. 1999); Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509,
513-14 (Tex. 1942); Heritage Gulf Coast Props. Ltd. V. Sandalwood Apts. Inc., 416 S.W.3d 642,
650 (Tex. App.Houston [14 Dist.] 2013, no pet.).
66) Plaintiff had a fiduciary relationship with defendant. Raam Abbou and Yakov Albaz were partners
in the business venture Crossland.
67) As set forth above, Yakov did not disclose to Raam pertinent information regarding the existence
of a warehouse lease that Raams signature was somehow affixed to. More importantly, to the best
of his knowledge, Raam never signed the warehouse lease and never knew about the lease until
Raam made further inquiries into unauthorized withdrawals from Crossland bank accounts.
68) Yakovs breach of fiduciary duty injured Raam by causing damages in Crossland arising from
approximately $42,000 for warehouse lease payments that Yakov did not disclose to Raam.
Count 7- Conversion
paragraphs.
71) Plaintiff brings a cause of action for conversion.

72) The elements of a cause of action for conversion are (1) the plaintiff owned, possessed, or had the
right to immediate possession of property; (2) the property was personal property; (3) the
defendant wrongfully exercised dominion or control over the property; and (4) the plaintiff
suffered injury. Green Intl v. Solis, 951 S.W.2d 384, 391 (Tex. 1997); United Mobile Networks,
L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex. 1997); Burns v. Rochon, 190 S.W.3d 263, 267-68 (Tex.
App.Houston [1st Dist.] 2006, no pet.).
73) Raam owned the storage unit containing his belongings including fine jewelry, two Rolex time
pieces, Mont Blanc pen set, art memorabilia, an antique rug, washer and dryer, dining room set,
and patio furniture.
74) As set forth above, Yakov refused to return the property on Raams demand. Yakov brought about
the transfer of Raams storage unit to be held at his warehouse on or about January 2015. On or
about May 2016, Yakov reassured Raam he would deliver his storage unit to Raams residence
free of charge. On or about May 2017, Raam asked Yakovs employee to retrieve his storage unit.
Yakovs employee told Raam that Yakov would not allow it returned unless Raam Abbou paid
$2,000.
75) Yakovs wrongful conduct caused injury to Raam, which resulted in the following damages; all
personal belongings of Raam in the storage container including but not limited to fine jewelry,
two Rolex time pieces, Mont Blanc pen set, art memorabilia, an antique rug, washer and dryer,
dining room set, and patio furniture worth at least $20,000.
Count 8- Promissory Estoppel
paragraphs.

78) Raam brings a cause of action for promissory estoppel.
79) The elements of an action for promissory estoppel are (1) the defendant made a promise to the
plaintiff; (2) the plaintiff reasonably and substantially relied on the promise to its detriment; (3)
the plaintiffs reliance was foreseeable by the defendant; (4) injustice can be avoided only by
enforcing the defendants promise. Collins v. Walker, 341 S.W.3d 570, 573-74 (Tex. App.
Houston [14th Dist.] 2011, no pet.).
80) Yakov, promised Raam that Raam could store his storage unit at Yakovs warehouse and would
allow Raam to retrieve his storage unit stored on Yakovs warehouse on two occasions. First, on
or about January 2015 and secondly, on or about May 2016.
81) Raam relied on Yakovs promise by storing his storage unit at the warehouse. Because the nature
of the promise, plaintiffs reliance was both reasonable and substantial. Raam relied on Yakovs
promise in January 2015 as a factor for consideration for entering into a partnership with Yakov,
and again in May 2016 as a factor for consideration for selling his membership interest in
Crossland to Jak Yosef.
82) Yakov knew, or reasonably should have known, that Raam would rely on Yakovs promise
because Raams actions were directly affected by his promise to allow Raam to store his storage
unit on the warehouse premises.
83) Injustice to Raam can be avoided only if Yakovs promise is enforced.
JURY DEMAND
85) Plaintiff demands a jury trial and tenders the appropriate fee with this petition.

86) Under Texas Rule of Civil Procedure 194, plaintiff requests that defendant disclose, within 50
days of the service of this request, the information or material described in Rule 194.2
EQUITABLE RELIEF
87) Plaintiff seeks to be reimbursed for money that was wrongfully and frequently taken from the
company prior to the sale and all equitable relief.
i. PRAYER
88) For these reasons, Plaintiff requests that Defendant be cited to appear and answer herein, and that
Plaintiff have judgment against the Defendants for the following:
i) Upon proof of actual damages, plaintiff is entitled to additional statutory damages up to
$1,000 from defendant under Texas Civil Practice & Remedies Code section 134.005(b)
Action Towing, Inc. v. Mint Leasing, Inc. 451 S.W.3d 525, 531 (Tex. App.Houston [1st
Dist.] 2014, no pet.);
ii) Exemplary damages. Plaintiffs injury resulted from defendants malice, gross
negligence, or actual fraud, which entitles plaintiff to exemplary damages under Texas
Civil Practice & Remedies Code section 41.003(a) and 41.008(c)(8); McCullough v.
Scarbrough, Medlin & Assocs., 435 S.W.3d 871, 913 (Tex. App.Dallas 2014, pet.
denied);
iii) Attorneys fees;
iv) Prejudgment and post-judgment interest;
v) Court costs; and,
vi) All other relief to which Plaintiff is entitled.

By: /s/ Eric S. Yu
Eric S. Yu
Tel: (281) 895-1688 x103
Fax: (281) 858-1356

The undersigned hereby certifies that this Document has been served to all parties
shown below on September 15, 2017 in accordance with Rule 21 and 21a of the Texas Rules of
Civil Procedure.
Mr. Danny Sheena VIA E-mail: Danny@sheenalawfirm.com

2500 W. Loop South, Suite 518 Service@sheenalawfirm.com
Houston, TX 77027
Attorney for Defendant,

Yakov Albaz
Saif Siddiqui VIA E-Mail: ss@siddiquilaw.com

700 Louisiana Street, Suit 3950
Houston, TX 77002
Attorney Intervenor,
AA Top Success, LLC
/s/ Eric S. Yu

EXHIBIT A
Exhibit B
Tab Q
1080464
9/19/2017 3:58 PM
County Clerk
Harris County
CAUSE NO. 1080464
RAAM ABBOU,
Plaintiff

vs.
YAKOV ALBAZ,
Defendant
AT LAW NO. 2


vs.

RAAM ABBOU,

INTERVENOR AA TOP SUCCESS, LLCS MOTION TO

RECONSIDER ORDER DENYING MOTION TO COMPEL
ARBITRATION
COMES NOW, AA Top Success, LLC D/B/A Crossland Van Lines & Storage
(Crossland), asking the Court to reconsider its August 8, 2017 order denying Defendant and
Intervenors Motion to Compel Arbitration & Stay Proceedings, and enter a new order compelling
the parties to arbitration, and in support thereof would respectfully show the Court the following:
I.
BACKGROUND
1. Plaintiff Raam Abbou (Abbou) sued Defendant Yakov Albaz (Albaz) on a promissory
note1. This promissory note was partial consideration for Abbous sale of his membership interest
1
See Plaintiffs Original Petition filed July 21, 2016.
in Crossland. The sale was pursuant to a Membership Transfer Agreement dated May 18, 2016
(Agreement), attached hereto as Exhibit A.
2. Crossland intervened, asserting claims against Abbou for breach of fiduciary duty and
misappropriation of funds belonging to Crossland while he was its managing member.2
3. On July 27,2017, Crossland and Albaz filed Defendant Yakov Albazs and Intervenor AA
Top Success, LLCs Motion to Compel Arbitration (Motion to Compel Arbitration).
4. On August 8, 2017, the Court entered an order denying the Motion to Compel Arbitration.
5. In the meantime, all the parties in this case have amended their pleadings to assert claims
that are all related, directly or indirectly, to the Agreement, and which would subject them to the
arbitration clause contained therein.
6. Crossland hereby moves the Court to vacate its order, and instead enter an order compelling
the parties to arbitration.
II.
ARGUMENTS AND AUTHORITIES
A. G.T. Leach Builders is inapplicable
7. At the hearing on the Motion to Compel Arbitration, counsel for Abbou cited G.T. Leach
Builders, LLC v. Sapphire V.P., L.P., incorrectly arguing that it held that nonparties to an
arbitration agreement cannot compel arbitration.3
8. This is not the case. In fact, G.T Leach Builders only stands for the proposition that non
parties to the arbitration agreement could not compel or be compelled to arbitration if the language
of the arbitration agreement provides only that those claims may be arbitrated.4
2
See AA Top Success, LLC d/b/a Crossland Van Lines Plea in Intervention and Requests for Disclosure filed
November 18, 2016.
3
See G.T. Leach Builders, LLC v. Sapphire V.P., L.P., 458 S.W.3d 502 (Tex. 2015)
4
Id. at 525-26.
Page 2 of 6
9. The holding is inapplicable in this case as the arbitration clause contained in the Agreement
specifically uses the mandatory term shall, and not the permissive term may5:
B. The parties have asserted related claims against each other, all of which are directly
or indirectly related to the Agreement and subject to its arbitration clause
1. Abbous claims against Albaz
10. All the claims against Albaz pertaining to the sale of Crossland, as described in Abbous
live petition, are, by definition, directly or indirectly related to the Agreement and are therefore
subject to its arbitration clause, a fact Abbou himself admitted during his deposition.6
11. Moreover, when Abbou agreed to sell his interest in Crossland to Jak Yosef (Yosef), the
right to pursue said claims on Crosslands behalf were also passed on and remained subject to the
arbitration clause.
2. Albazs crossclaim against Crossland, and Crosslands claims against Abbou,

are also subject to the Agreements arbitration clause.
12. Per the terms of the Agreement, Abbou agreed to indemnify Crossland for all claims arising
prior to May 18, 2016, the date he sold his interest to Yosef.
5
Paragraph 13 of Agreement, provides that any claim or controversy arising directly or indirectly out of this
agreement shall be submitted to binding arbitration ... in accordance with the commercial rules of the American
Arbitration Association
6
See Exhibit B, at 158:24-159:11Abbou states that the promissory note in question was part of the transaction that
was included in the [Agreement].
Page 3 of 6
13. Beginning in March 2015, Albaz loaned Crossland a total of $540,836.76 to cover startup
costs and general business expenses. Albaz was repaid $80,000, leaving $ 460,836.76 outstanding.
Albaz then asserted a crossclaim against Crossland.7
14. Crossland has demanded that Abbou indemnify it against Albazs claims as provide for in
the Agreement, which he has failed to do.8
15. Consequently, Crossland has amended its Plea in Intervention to assert a claim against
Abbou for breach of contract.9
16. Crosslands other claims for fraud, breach of fiduciary duty, conversion, and money had
and received, are all related to wrongful acts by Abbou that occurred prior to May 18, 2016, while
he was the manager of Crossland and before he sold his membership interest Yosef, and are
therefore subject to the terms of the Agreement, including the arbitration clause.
17. For the same reasons, Albazs crossclaim is also related to the Agreement and subject to
the arbitration clause.
III.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Crossland prays that the Court vacate its August
8, 2017 order, grant this Motion, and enter a new order compelling the parties to arbitrate their
disputes. Further, Crossland asks to Court to abate this case pending the outcome of the arbitration,
and for all other relief to which they may be justly entitled.
SIDDIQUI & AYRES
7
See Defendant Yakov Albazs First Original CrossClaim.
8
See letter dated August 24, 2017, attached hereto as Exhibit C.
9
See AA Top Success, LLCs d/b/a Crossland Van Lines First Amended Plea in Intervention and Requests for
Disclosure, filed September 14, 2017.
Page 4 of 6
/s/ Saif A. Siddiqui
Saif A. Siddiqui
SIDDIQUI AYRES
(832) 927-2775
(832) 787-1284 Facsimile
STORAGE
Page 5 of 6
I HEREBY CERTIFY that a true and correct copy of the foregoing Intervenor AA Top
Success, LLCs Motion to Reconsider Order Denying Motion to Compel Arbitration was sent via
electronic service and/or hand delivery and/or facsimile and/or certified mail, return receipt
requested, to all counsel of record on the 19th day of September 2017.
HsienTe J. Koong
Eric S. Yu
(281) 895-1688
(281) 895-1356 Facsimile
john@koonglaw.com
Danny M. Sheena
THE SHEENA LAW FIRM
(713) 224-6508 (voice)
(713) 225-1560 (facsimile)
ATTORNEY FOR YAKOV ALBAZ
/s/ Saif A. Siddiqui

Saif A. Siddiqui
Page 6 of 6
1080464
Exhibit A
1080464
Exhibit B
Raam Abbou
1
CAUSE NO. 1080464
RAAM ABBOU : IN THE COUNTY CIVIL COURT
:
Plaintiff, :
:
VS. :
:
YAKOV ALBAZ :
:
Defendant, :
:
:
VS. :
:
AA TOP SUCCESS, LLC D/B/A :
CROSSLAND VAN LINES & :
STORAGE :
:
Intervenor. : HARRIS COUNTY, TEXAS
*************************************
ORAL DEPOSITION OF
RAAM ABBOU
JULY 19, 2017
VOLUME 2 OF 2
PAGES 1 THROUGH 188
*************************************
ORAL DEPOSITION OF RAAM ABBOU, produced as a

witness at the instance of the Defendant, Yakov Albaz,
and Intervenor, AA Top Success, LLC d/b/a Crossland Van
Lines & Storage, and duly sworn, was taken in the
above-styled and -numbered cause on the 19th day of
July, 2017, from 2:05 p.m. to 6:55 p.m., before Kim
Johnsen Rosas, CSR in and for the State of Texas,
reported by stenographic means, at the offices of Mr.
Hsien-Te J. Koong, Koong Law Group, PLLC, 3302 Canal
Street, in the Bullpen Conference Room, Houston, Texas
77003, pursuant to notice, the Texas Rules of Civil
Procedure and the provisions stated on the record or
attached hereto.

Raam Abbou
158
1 correct?
2 A. Yes.
4 Q. (BY MR. SHEENA) Let me show you Exhibit No.
5 10.
6 There's a Promissory Note that was signed.
7 Is that correct?
8 A. Yes. As far as I remember, yes.
9 Q. And the Promissory Note amount is 22,500. You
10 see that?
11 A. Where do you see that?
12 Q. Right there (indicating).
13 A. See, I'm not sure what these words say.
14 Q. 22,500. It says, Principal amount.
15 A. Principal. Okay.
16 Q. Okay. And the payable on July 5, 2016, do you
17 see that right there, right there (indicating)?
18 A. (No verbal response.)
19 Q. See that?
20 A. Yeah.
21 Q. If you look at Exhibit No. 6, Section 4, see
22 where it says 22,500, payable on July 5, 2016?
23 A. Okay. 22,500 to be paid by July. Yeah.
24 Q. Okay. So this Promissory Note relates to the
25 Membership Transfer Agreement of Exhibit No. 6. Is that

Raam Abbou
159
1 correct?
2 A. If I understand you correctly, that's saying
3 that he promised to pay the remaining 22,500 by July 15,
4 2016.
5 Q. And that's part of the Membership Transfer
6 Agreement, Exhibit No. 6. Is that correct?
7 A. Yes.
8 Q. Okay. So the Promissory Note was part of the
9 transaction that was included in the Membership Transfer
10 Agreement, Exhibit No. 6; right?
11 A. Yes.
12 Q. Okay. Remember a customer named Ahren Lehnert?
13 Does that ring a bell to you?
14 A. A customer?
15 Q. Yes.
16 A. No.
18 Q. (BY MR. SHEENA) Show you Exhibit No. 11. Ever
19 seen a document like this?
20 A. If I see one like that?
21 Q. Yes.
22 A. I guess so, but not this one.
23 Q. Is this a job that you did?
24 A. How can I know?
25 Q. Well, it originated in Houston, Texas and was

SAIF SIDDIQUI
700 Louisiana Street
Suite 3950
Houston, TX 77002
Mobile: (713) 927-2775
Office: (832) 390-2692

August 24, 2017
Mr. Hsien-Te J. Koong

Mr. Eric S. Yu
Re: Abbou v. Albaz, Cause No. 1080464 in the Civil Court at Law No. 2 of Harris County,
Texas demand for indemnification
Mr. Koong:
I represent AA TOP SUCCESS, LLC d/b/a CROSSLAND VAN LINES & STORAGE
(Crossland) in this matter. As you may be aware, a motion to substitute counsel has been filed
by Crossland and set for submission with the Court.
Yakov Albaz (Albaz) has asserted a claim against Crossland in the amount of $353,086.76 as of
May 18, 2016. It is anticipated that Mr. Albaz will plead crossclaims against Crossland in the
abovereferenced lawsuit. Thus, it has been necessary for Crossland to retain new legal counsel.
Pursuant to paragraph 6(h) of the Membership Transfer Agreement (Agreement) dated May 18,
2016 and executed by your client, Mr. Raam Abbou (Abbou), Jak Yosef (Yosef) and
Crossland, demand is hereby made that Mr. Abbou indemnify Crossland for Mr. Albazs claims
against Crossland.
I look forward to hearing from you within two (2) business days regarding this matter.
Sincerely,
Saif A. Siddiqui

Tab R
1080464
9/22/2017 8:45 PM
County Clerk
Harris County
CAUSE NO. 1080464
RAAM ABBOU,
Plaintiff

vs.
YAKOV ALBAZ,
Defendant
AT LAW NO. 2


vs.

RAAM ABBOU,

DEFENDANT YAKOV ALBAZS REPSONSE

SUPPORTING MOTION TO RECONSIDER ORDER
DENYING MOTION TO COMPEL ARBITRATION
through his undersigned counsel, and files this Defendant Yakov Albazs Response Supporting
Motion to Reconsider Order Denying Motion to Compel Arbitration (Response), and in support
thereof would respectfully show the Court the following:
1. Albaz hereby files this response in support of, and adopts in whole, the Intervenor AA Top
Success, LLCs Motion to Reconsider Order Denying Motion to Compel Arbitration filed by
Intervenor AA TOP SUCCESS, LLC D/B/A CROSSLAND VAN LINES & STORAGE
(Crossland).
2. [S]ometimes a person who is not a party to the agreement can compel arbitration with
one who is, and vice versa. Meyer v. WMCO-GP, LLC, 211 S.W.3d 302, 305 (Tex. 2006). There
are several circumstances in which signatories may compel nonsignatories to arbitrate claims
covered by an arbitration agreement and vice versa: Several rules of law and equity may bind
nonsignatories to a contract. For example, we have held that the principles of equitable estoppel
and agency may bind nonsignatories to an arbitration agreement. In re Labatt Food Serv., L.P.,
279 S.W.3d 640, 644 (Tex. 2009) (orig. proceeding); see also id. at 644-47 (derivative nature of
wrongful death beneficiaries claims generally binds their claims to be arbitrated where decedent
entered into contractual agreement to arbitrate); In re Kellogg Brown & Root, Inc., 166 S.W.3d
732, 739 (Tex. 2005) (orig. proceeding) (noting that nonsignatories may be bound to arbitration
agreement under direct benefits estoppel).
3. As noted by Crossland, Abbou admitted in his deposition that the promissory note that he
sued Albaz to enforce was part of the transaction wherein he sold his interest in Crossland, and
was thus arbitratable.
4. His other claims against Albaz sounding in tort rest on the assumption that he was an agent
of Crossland, acting on behalf of Crossland, or the alter ego of crossland (for example, his breach
of a fiduciary owed to Abbou as a member of Crossland). The Texas Supreme Court has indicated
that agency and alterego can be a basis for a nonparty to enforce an arbitration agreement. See
In re Kellogg Brown & Root, Inc., 166 S.W.3d at 739.
5. His claims against Albaz are intertwined with the claims that are arbitrable: they all concern
the sale of Abbous interest in Crossland, and the rights of the various parties under the Agreement
of sale. Without the sale, there would have been no promissory note. The note and the Agreement
are clearly related. The Texas Supreme Court has held that when claims are intertwined, a non
parties to an arbitration agreement can compel arbitration (and vice versa). Meyer, 211 S.W.3d at
307.
DEFENDANT YAKOV ALBAZS RESPONSE SUPPORTING

MOTION TO RECONSIDER ORDER DENYING MOTION TO COMPEL ARBITRATION Page 2 of 4
6. Furthermore, a nonsignatory such as Albaz who has right under arbitration agreement to
compel arbitration could do so. In re Rubiola, 334 S.W3d 220 (Tex. 2011). The Fifth Circuit has
also held that nonsignatory defendants may compel a signatory plaintiff to arbitration. Grigson
v. Creative Artists Agency, L.L.C., 210 F.3d 524, 526 (5th Cir. 2000).
WHEREFORE, PREMISES CONSIDERED, Albaz prays that the Court (1) grant Crosslands
Motion, (3) vacate its August 8, 2017 Order, (3) enter an order compelling the parties to arbitrate
their dispute and to abate this case pending the outcome of the arbitration, and (4) for all other
relief to which they may be justly entitled.
THE SHEENA LAW FIRM

JASON P. SCOFIELD
BLAKE A. ASTON
(713) 224-6508
(713) 225-1560 Facsimile

Albazs Response Supporting Motion to Reconsider Order Denying Motion to Compel Arbitration
was sent via electronic service and/or hand delivery and/or facsimile and/or certified mail, return
receipt requested, to all counsel of record on the 22nd day of September 2017.
HsienTe J. Koong
Eric S. Yu
(281) 895-1688
(281) 895-1356 Facsimile
john@koonglaw.com
Saif A. Siddiqui
SIDDIQUI AYRES
(832) 927-2775
(832) 787-1284 Facsimile
/s/ Danny M. Sheena

Danny M. Sheena

Tab S
1080464
10/5/2017 12:16 PM
County Clerk
Harris County
CAUSE NO. 1080464
RAAM ABBOU,
Plaintiff

vs.
YAKOV ALBAZ,
Defendant
AT LAW NO. 2


vs.

RAAM ABBOU,

DEFENDANT YAKOV ALBAZS FIRST AMENDED

ANSWER AND REQUESTS FOR DISCLOSURE
through his undersigned counsel, and files this Defendant Yakov Albazs First Amended Answer
and Requests for Disclosure (Answer) subject to the Motion to Compel Arbitration, and in
support thereof would respectfully show the Court the following:
I. General Denial
1. Defendant Albaz generally denies each and every allegation of the Plaintiffs Fourth
Amended Petition (Petition) filed by Plaintiff RAAM ABBOU (Abbou), and any later
amended petition, and demand strict proof thereof in accordance with the Texas Constitution and
Texas Rule of Civil Procedure (Rule) 92.

II. Affirmative Defenses
2. Defendant Albaz asserts the affirmative defense that some or all of Plaintiff Abbous
claims are barred by the doctrine of unclean hands.
claims are barred by misrepresentation and/or fraud on the part of Plaintiff Abbou.
claims are barred by waiver, laches, offset, ratification, and/or estoppel.
claims are barred because Plaintiff Abbou failed to mitigate damages allegedly sustained, and
any recovery against Defendant Albaz must be reduced by that amount.
claims are barred by payment.
claims are barred because he breached his agreement with Defendant Albaz or another party.
claims are barred because of conversion of the property of another by Plaintiff Abbou.
claims are barred by offset, setoff, and/or recoupment.
claims are barred by the Statute of Frauds.
claims are barred by failure of consideration.
claims are barred because Plainitff Abbou lacks standing to assert those claims.

FIRST AMENDED ANSWER AND REQUEST FOR DISCLOSURE Page 2 of 5
claims are barred because they failed to state a claim upon which relief can be granted.
claims are barred because the injuries they alleged in his Petition, if any, were caused by a new
and independent cause, or by the acts of a thirdparty or Plaintiff Abbous own acts, which
constituted a sole proximate cause.
15. Defendant Albaz asserts the affirmative defense of comparative and/or contributory fault
in that, in the unlikely event Plaintiff Abbous arguments are accepted by any trier of fact or law
in this matter, Plaintiff Abbou or a thirdparty were responsible, in whole or in part, for any
damages complained of by Plaintiff Abbou in this litigation.
claims are barred by the business judgment rule.
claims are barred because Defendant Albazs actions were legally justified, privileged, and/or
excused.
18. Defendant Albaz asserts that Plaintiffs claims to punitive damages, if any, should be
capped pursuant to Texas law.
19. Defendant Albaz further reserves the right to assert additional affirmative defenses that
become available or apparent as this litigation proceeds.
III. Request for Disclosure
20. Defendant Albaz requests that Plaintiff Abbou disclose, within the time allowed, the
information or material described in Rule 194.2.

IV. Prayer
WHEREFORE, PREMISES CONSIDERED, Defendant Albaz respectfully asks the Court to
dismiss this suit against him or render judgment that Plaintiff Abbou take nothing by his claims
against Albaz, for costs and attorneys fees, and for all other relief to which he is entitled.
THE SHEENA LAW FIRM

JASON P. SCOFIELD
BLAKE A. ASTON
(713) 224-6508
(713) 225-1560 Facsimile
NOTICE REGARDING SERVICE
NOTICE IS HEREBY GIVEN THAT ALL COMMUNICATIONS REGARDING THIS

CASE, IF SENT BY EMAIL, SHALL BE SENT TO SERVICE@SHEENALAWFIRM.COM
IN ADDITION TO ANY OTHER DEFENDANT ATTORNEY.

Albazs First Amended Answer and Requests for Disclosure was sent via electronic service
and/or hand delivery and/or facsimile and/or certified mail, return receipt requested, to all
counsel of record on the 5th day of October 2017.
HsienTe J. Koong
Eric S. Yu
(281) 895-1688
(281) 895-1356 Facsimile
john@koonglaw.com
Saif A. Siddiqui
SIDDIQUI AYRES
(832) 927-2775
(832) 787-1284 Facsimile
/s/ Danny M. Sheena

Danny M. Sheena

Tab T
1
1 REPORTER'S RECORD
2 (VOLUME 1 OF 2)
FILED IN
3 TRIAL COURT CAUSE NO. 1080464
HOUSTON, TEXAS
10/24/2017 1:36:55 PM
4 FIRST COURT OF APPEALS
CHRISTOPHER A. PRINE
Clerk
5 APPELLATE CAUSE NO. 01-17-00804-CV
7
RAAM ABBOU, ) THE COUNTY CIVIL COURT
8 Plaintiff )
)
9 VS. )
)
10 YAKOV ALBAZ, ) AT LAW NUMBER TWO (2)
Defendant )
11 )
VS. )
12 )
AA TOP SUCCESS, LLC D/B/A )
13 CROSSLAND VAN LINES & )
STORAGE, )
14 Intervenor ) HARRIS COUNTY, TEXAS
15
16 ---------------------------------------------------
17 HEARING MOTION
OCTOBER 10, 2017
18
---------------------------------------------------
19
20 On the 10th day of October, 2017, the following

proceedings came on to be held in the above-titled and
21 numbered cause before the Honorable Theresa Chang, Judge
Presiding, held in Houston, Harris County, Texas.
22 Proceedings reported by computerized stenotype
machine. Reporter's record produced by
23 computer-assisted transcription.
24
25
KEVIN J. BRUZEWSKI, CSR

COUNTY CIVIL COURT AT LAW NO. 2
2
1 A P P E A R A N C E S
2 FOR PLAINTIFF:
3 MR. HSIEN-TE J. KOONG

SBOT: 24097951
4 MR. ERIC S. YU
SBOT: 24103997
5 KOONG LAW GROUP, PLLC
6 Houston, Texas 77003
281.895.1688 x 103
7 281.858.1356 (f)
john@koonglaw.com
8 eric.yu@koonglaw.com
9 FOR DEFENDANT:
10 MR. DANNY SHEENA

SBOT: 00792830
11 MR. HUNG NGUYEN
THE SHEENA LAW FIRM
12 2500 West Loop South, Suite 518
13 713.224.6508
713.225.1560 (f)
14 service@sheenalawfirm.com
15 FOR INTERVENOR:
16 MR. SAIF A. SIDDIQUI

SBOT: 24052305
17 MR. CHRISTOPHER AYERS
SIDDIQUI AYRES
18 700 Louisiana, Suite 3950
19 832.927.2775
832.797.1284 (f)
20 siddiqui@siddiquiayres.com
21
22
23
24
25

3
1 INDEX
Hearing Motion
2
OCTOBER 10, 2017 PAGE VOL.
3
Appearances............................... 2 1
4 Proceedings............................... 4 1
Reporter's Certificate....................34 1
5
6
EXHIBITS
7 PLAINTIFF'S EXHIBITS
8 NO. DESCRIPTION OFFERED ADMITTED VOL
9 1 Promissory note 6 6 1
10 2 Membership Transfer Agree 8 8 1
11
DEFENDANT'S EXHIBITS
12 NO. DESCRIPTION OFFERED ADMITTED VOL
13 1 Membership Transfer Agree 9 9 1
14 2 Promissory Note 10 10 1
15 3 Excerpt from Abbou Depo 12 12 1
16
17
18
19
20
21
22
23
24
25

4
1 PROCEEDINGS
2 (Open Court)
3 THE COURT: Cause No. 1080464; Raam Abbou
4 vs. Yakov Albaz and AA Top Success, LLC d/b/a Crossland
5 Van Lines & Storage as Intervenor.
6 Counselors, please announce your names for
7 the record.
8 MR. SHEENA: I'm Danny Sheena, attorney for
9 Defendant, Yakov Albaz.
10 MR. NGUYEN: I'm Hung Nguyen also here for
11 Yakov Albaz.
12 MR. KOONG: Hsien-Te John Koong here for
13 Raam Abbou.
14 MR. YU: Eric Yu here for Raam Abbou.
15 MR. SIDDIQUI: Saif Siddiqui here for
16 Intervenor, AA Top Success, LLC doing business as
17 Crossland Van Lines & Storage.
18 MR. AYRES: Christopher Ayres also here on
19 behalf of Intervenor.
20 THE COURT: We have two motions we need to
21 discuss today. The first one is Plaintiff's Motion to
22 Sever, so I'm going to have Mr. Koong to argue on that.
23 And then second one is Intervenor's and Defendant's
24 Motion to Reconsider my Order Denying the -- I think
25 it's Defendant Motion to Compel Arbitration. So the

5
1 Plaintiff goes first with the Motion to Sever.
2 MR. KOONG: Mr. Yu will --
3 THE COURT: Mr. Koong, go ahead.
4 MR. YU: I'm going to start.
5 THE COURT: Okay. Mr. Yu.
6 MR. YU: Yes.
7 THE COURT: Okay.
8 MR. YU: This is Plaintiff's Motion to
9 Sever the claim for the breach of the promissory note
10 and enforcement of the promissory note between the
11 Plaintiff and the Defendant, Yakov Albaz. We believe
12 that with the other causes of actions they are separate
13 and independently asserted prior to the amended
14 petitions with the other filings. And we believe that
15 the promissory note is complete within itself and can be
16 enforced and it's not so interwoven with the other
17 facts. This is just a simple defendant did not pay
18 plaintiff for the amount in the promissory note.
19 THE COURT: Okay.
20 MR. YU: And we have the promissory note
21 here. This is in its entirety signed by the Defendant.
22 THE COURT: All right. I think I have it
23 in the file.
24 MR. YU: Right.
25 THE COURT: You want to -- are you offering

6
1 this for the purpose of this hearing --
2 MR. YU: Sure, yes.
3 THE COURT: -- plaintiff Exhibit 1?
4 Plaintiff Exhibit 1. Any objections?
5 MR. SHEENA: No, Judge.
6 THE COURT: Plaintiff Exhibit 1 is admitted
7 for the purpose the hearing. Anything else?
8 MR. YU: And I would also like to submit
9 the Membership Transfer Agreement that the Intervenor
10 and Defendant are claiming that the promissory note is
11 in relation to, I'll have to note that in the Membership
12 Transfer Agreement, it's a own independent contract that
13 does not mention anything of the promissory note and its
14 actually the term and the cause is here.
15 THE COURT: Okay.
16 MR. YU: So there are two distinct
17 contracts, each of them have its own rights and
18 remedies. And I would like to submit that as well. I
19 believe the defendant already has that on file.
20 MR. SHEENA: We do.
21 THE COURT: All right. So the Membership
22 Transfer Agreement --
23 MR. YU: Between the Plaintiff and the
24 Intervenor.
25 THE COURT: Okay.

7
1 -- between Plaintiff and Intervenor and
2 actually is the Plaintiff, Mr. Abbou transfer his -- all
3 his shares to Mr. Yosef; right?
4 MR. YU: That's correct.
5 THE COURT: And the shares is the shares of
6 Crossland?
7 MR. YU: That's correct.
8 THE COURT: Okay. Mr. Yosef is not here?
9 All right.
10 MR. SHEENA: Yeah. He's the owner of
11 Crossland, Jak Yosef. Anyway, I can explain it if
12 you --
13 THE COURT: No, no, no. No problem. I'm
14 just saying --
16 THE COURT: -- Mr. Yosef himself has no
17 representation right now here.
18 MR. SHEENA: He's not a party individually
19 to this case.
20 THE COURT: That's what I'm trying to say.
21 MR. SHEENA: Nobody has -- right. Yeah.
22 THE COURT: Right. Exactly. So he's not a
23 party in front of me yet.
24 MR. SHEENA: Right. Yet.
25 THE COURT: Okay. Not today. All right.

8
1 Very good. Just a second. The Membership Transfer
2 Agreement I'll mark as Plaintiff Exhibit 2. Do you want
3 to offer for the purpose of this hearing?
4 MR. YU: Yes.
5 THE COURT: Okay.
6 MR. SHEENA: No objection, Judge.
7 THE COURT: No objections?
8 MR. SIDDIQUI: No objection, Your Honor.
9 THE COURT: Plaintiff Exhibit 2 is admitted
10 for the purpose of the hearing. And I would like to say
11 to Mr. Yu, I know you're saving papers when you do
12 double sided, but for our Court purpose, we always like
13 one page.
14 MR. YU: Absolutely.
15 THE COURT: One side. One side.
16 MR. YU: I apologize. It looks like --
17 THE COURT: No problem.
18 MR. SHEENA: I happen to have one just for
19 you if you want a one-sided document. Same document.
20 THE COURT: That's all right.
22 THE COURT: This is -- and if you want
23 to --
24 MR. SHEENA: I will.
25 THE COURT: -- submit that, that's fine,

9
1 too. Okay. Anything else?
2 MR. YU: That's all.
3 THE COURT: Okay. All right. Response?
4 MR. SHEENA: Thank you, Judge. So if you
5 look at the Membership Transfer Agreement that this --
6 THE COURT: You want to offer this, too?
7 MR. SHEENA: Sure. Lets call it Defendant
8 Exhibit No. 1.
9 THE COURT: Okay. Defendant offered the
10 membership -- the same Membership Transfer Agreement,
11 but it's one-sided page with some highlights. Defendant
12 Exhibit 1 is admitted for the purpose of this hearing.
13 Any objection?
14 MR. YU: No, Your Honor.
15 THE COURT: Okay. Go ahead.
16 MR. SHEENA: Okay. So on May 18th, Raam
17 Abbou, the Plaintiff, transferred his interest to Jak
18 Yosef of the company AA Top Success, right? So part of
19 the transaction, if you look at the consideration, was
20 $45,000, okay. 45,000 was paid: 22,500 to the buyer
21 immediately on May 18th the day of closing, and 22,500
22 payable by buyer to seller on or before July 5, 2016.
23 THE COURT: Okay.
25 THE COURT: I'm listening.

10
1 MR. SHEENA: Okay. The same day, part of
2 the same transaction, there was a promissory note that
3 you have. Let me call it Defendant's Exhibit No. 2,
4 okay. If you look at the Defendant --
5 THE COURT: Just a second. Defendant
6 Exhibit No. 2, I'm going to -- you offer them, right?
8 THE COURT: I'm going to admit it as
9 Defendant Exhibit No. 2. Any objections?
10 MR. YU: No, Your Honor.
11 MR. SIDDIQUI: No, Your Honor.
12 THE COURT: Okay. Go ahead.
13 MR. SHEENA: So Exhibit No. 2 was executed
14 on May 18, 2016, same day. And if you look at the date
15 the payment is due is July 5th, 2016. And if you look
16 at the Defendant Exhibit No. 1, the due date under the
17 agreement is July 5th, 2016. There is no dispute that
18 the promissory note was part of the Membership Transfer
19 Agreement. And let me offer Exhibit No. 3. This is the
20 testimony of the deposition of Raam Abbou where he
21 himself was asked:
22 So this promissory note relates to the
23 Membership Transfer Agreement of Exhibit No. 6; is that
24 correct? And that's part of the Membership Agreement
25 Exhibit No. 6; is that correct?

11
1 Answer: Yes.
2 Okay. So the promissory note was part of
3 the transaction that was included in the Membership
4 Transfer Agreement, Exhibit No. 6; right?
5 His answer is yes.
6 There's not going to be any dispute that
7 the promissory note is part of the Membership Transfer
8 Agreement. And I'd like to offer Defendant's Exhibit
9 No. 3 into evidence. That's the testimony of the
10 Plaintiff.
11 MR. KOONG: We object.
12 MR. YU: We object to that testimony.
13 Extrinsic parole evidence to prove up the terms of the
14 contract which is already a complete -- the promissory
15 note stands by itself and it has all the material
16 elements and that's just extraneous evidence brought in
17 after the fact to prove up more consideration than what
18 was actually --
19 THE COURT: You can make that legal
20 argument about whether the Court should consider --
21 MR. YU: Yes, ma'am.
22 THE COURT: -- parole evidence. Since this
23 is part of your client's testimony that -- in that
24 deposition that he swore to tell the truth, I'm going to
25 -- Defendant Exhibit 3, your objection is overruled.

12
1 Defendant Exhibit 3 is admitted for the purpose of this
2 hearing.
3 MR. SHEENA: Thank you, Judge.
5 MR. SHEENA: So if you look on the second
6 page of the Membership Transfer Agreement, if you look
7 at Section F, the seller, Abbou, represented that there
8 are no obligations or liabilities of the company to any
9 third party that has not been paid in full before the
10 effective date other than one claim from Texas to
11 Oregon, okay. That's what he represented. Also Section
12 H says seller shall be responsible (1) for all jobs or
13 work performed by the company prior to the effective
14 date; (3) all lawsuits that may arise out of conduct
15 occurring prior to the effective date, and seller shall
16 indemnify and hold the company and buyer harmless from
17 any and all claims regarding such prior conduct. So
18 anything that happened prior to the sale, the seller,
19 Abbou, represented to the company and Jak Yosef that
20 he's responsible for and will indemnify the company and
21 Jak Yosef, okay.
22 So then you look at the arbitration clause
23 which is Section No. 13 of the agreement. And that
24 arbitration clause says any claim or controversy arising
25 directly or indirectly -- that's the key word -- out of

13
1 this agreement that is not been resolved in mediation
2 shall, mandatory, be submitted to binding arbitration in
3 Harris County, Texas in accordance with commercial rules
4 of the American Arbitration Association.
5 So the question really is, is the note
6 directly or indirectly related to the transfer
7 agreement. So I think what the plaintiff is saying it's
8 a separate document. So what's going to happen if they
9 stand by the claim and say it's a separate independent
10 document we're not going to consider the transfer
11 agreement and I move for a summary judgment, lack of
12 consideration. No consideration for the note; right?
13 You said it's independent of this, I'm saying it's
14 undisputed it's part of this 22,500, part of this
15 agreement because that's part of the payment. If I move
16 for summary judgment and they say, Mr. Albaz, what did
17 you get personally to sign off on the note for 22,000.
18 The answer is zero. If they don't look at this
19 agreement, they will produce zero evidence that
20 Mr. Albaz, my client, got any benefit to sign the note.
21 Zero, okay.
22 So lets look further. Now we got claims.
23 So Mr. Abbou, before assigning his interest in May,
24 right, he went and it's undisputed. He opened a
25 separate bank account and he went -- and I took his

14
1 deposition under oath and he testified that he withdrew
2 money in cash from that bank account. And I said,
3 Mr. Abbou, where did that money go. Well, I paid bills.
4 Can you show me receipts of where the money went to?
5 No, I cannot show you any receipts. It's $20,000 or
6 more, Judge. So the company, Mr. Albaz, you know, has a
7 promissory note, but this man owes money to the company
8 that he opened a separate bank account, and I would say
9 stole -- took money without permission. So the company
10 has a claim against the Plaintiff, Raam Abbou, for
11 opening a separate bank account and taking money before
12 closing.
13 THE COURT: Are you talking about
14 Crossland?
15 MR. SHEENA: Crossland, right.
16 THE COURT: Okay.
17 MR. SHEENA: So now what happened is, the
18 Plaintiff, Abbou, says wait a minute here, you're now
19 saying I took money before the closing so I'm going to
20 sue my client, right, Albaz for taking money before the
21 closing, right? That's what he's done. What he's
22 trying to make you do here is say, Judge, you let this
23 promissory note be separate and let all the other claims
24 be separate. So here's how it relates to the
25 arbitration agreement. He says, Mr. Albaz, you took

15
1 money before the closing and you owe me the money. The
2 first thing is Mr. Albaz never took Mr. Abbou's money,
3 right, it's the company's money.
4 THE COURT: Which company?
5 MR. SHEENA: AA Top Success.
6 MR. SIDDIQUI: Intervenor, Your Honor.
7 MR. SHEENA: Intervenor. Remember the
8 company that --
9 THE COURT: So what's the relationship
10 between Albaz and Crossland before this May 18
11 transaction?
12 MR. SHEENA: Mr. Albaz loaned over
13 $500,000, Judge, to this company --
14 THE COURT: To Crossland?
15 MR. SHEENA: To Crossland.
16 MR. Koong: We object to that. That's
17 not --
18 MR. SHEENA: It's part of the claim. It's
19 part of our motion.
20 MR. Koong: We haven't seen anything about
21 a loan or anything.
22 THE COURT: Have not seen evidence, it's
23 just the pleading, okay.
24 MR. SHEENA: We pled, okay. Albaz pled
25 that the company owes them hundreds of thousands of

16
1 dollars. And in this lawsuit, Judge, filed subject to
2 the Motion for Arbitration a cross-claim against
3 Crossland, okay?
4 THE COURT: Okay. Just a second.
5 So when -- how did Mr. Abbou transfer his membership in
6 AA Top Success or like he purchased -- he purchased --
7 let me see who is seller, okay. Mr. Yosef purchased all
8 the membership or the like shareholders shares at AA Top
9 Success LLC from Abbou. How is that related to
10 Crossland and Albaz on May 18th?
11 MR. KOONG: Your Honor --
12 THE COURT: Just a second. Just a second.
13 That misconnection, I know your claim against each
14 other. I kind of got that from the pleadings, but I
15 still don't understand since Mr. Yosef is owner of the
16 Crossland?
17 MR. KOONG: Yes. The current owner, Your
18 Honor.
19 THE COURT: Current owner. But before
20 May 18th --
21 MR. KOONG: Before May 18th, it would be
22 Mr. Raam Abbou.
23 MR. SHEENA: Judge, there is --
24 MR. KOONG: The plaintiff.
25 THE COURT: Okay. So when did AA Top

17
1 Success become Crossland?
2 MR. SIDDIQUI: It's the same company.
3 MR. SHEENA: It's the same company.
4 MR. SIDDIQUI: It's the same company, it
5 just does business as Crossland.
6 THE COURT: It's the same business?
7 MR. SIDDIQUI: Yes, Your Honor.
8 THE COURT: So they have two different
9 names?
10 MR. SIDDIQUI: Yes.
11 THE COURT: So the filing is AA Top Success
12 d/b/a Crossland?
15 THE COURT: Okay. Just a second. So
16 before May 18, Abbou was the owner?
17 MR. SHEENA: Before May 18, Abbou was the
18 owner. There is a question --
19 THE COURT: Just a second.
20 MR. SHEENA: Yes.
21 THE COURT: Okay. After May 18, Yosef is
22 the owner?
24 THE COURT: When did Albaz become the
25 owner?

18
1 MR. SHEENA: Albaz loaned money to the
2 company.
3 THE COURT: Albaz was never an owner. He
4 was just --
5 MR. SHEENA: There's a question as to --
6 THE COURT: Just a second. So Albaz, your
7 claim is Albaz loaned the money to Crossland. That's
8 your claim?
9 MR. SHEENA: Yes. And he had some
10 ownership interest in the company that may be disputed,
11 okay?
12 THE COURT: Okay.
13 MR. SHEENA: But for sure we have documents
14 that Albaz -- this is not cash money, Judge.
15 THE COURT: Okay.
16 MR. SHEENA: These are checks, money went
17 to the company.
18 THE COURT: That's fine. That's fine.
20 THE COURT: Okay. Just a second. Now, so
21 Crossland has a claim against Abbou and -- well, see,
22 you're not Crossland. Crossland has claim against Abbou
23 because they have --
24 MR. SHEENA: Indemnity.
25 MR. SIDDIQUI: Your Honor, there is an

19
1 indemnity clause in the agreement --
2 THE COURT: Indemnity clause.
3 MR. SIDDIQUI: -- so when Albaz --
5 MR. SIDDIQUI: Sorry.
6 THE COURT: Got it. They said before
7 May 18 your client is not hold liable to all the claims.
8 Then he has claim -- Albaz' claim against Crossland
9 because they owe money to -- they claim that Albaz --
10 just a second.
11 MR. SHEENA: Crossland owes money --
13 MR. SHEENA: Yeah.
14 THE COURT: Loan a lot of money to
15 Crossland. Excuse me?
16 MR. SHEENA: Crossland owes money to Albaz.
17 THE COURT: Yeah. You loaned the money
18 to --
19 MR. SHEENA: Oh, loan. Yes. Yes.
20 THE COURT: Or you lend --
21 MR. SHEENA: Lend, yes.
22 THE COURT: Because you said loan.
23 MR. SHEENA: Yes.
24 THE COURT: You lend the money to
25 Crossland. So Crossland owe money to Albaz. That's

20
1 your claim.
2 MR. SHEENA: Yes, Your Honor. Before the
3 closing.
5 Before the closing?
6 MR. SHEENA: Right. And that's the key.
7 THE COURT: Before the closing?
8 MR. SHEENA: Yes. Before the closing Albaz
9 owes -- loans money to the company by checks. And we'll
10 have proof of it, okay. Under the agreement, the seller
11 represented that there are no obligations that the
12 company owes, right? The seller, Abbou, represented in
13 this transfer agreement that there are no claims by
14 third parties, no obligations of the company to anybody.
15 That's what he told them; right? But he owes my client
16 -- the company owes my client hundreds of thousands of
17 dollars.
18 So when we said, no, company, you got to
19 pay us the money, they said wait a minute here, we have
20 an agreement that you signed that says that the company
21 doesn't owe somebody like a third party Albaz any money,
22 right? And you misrepresented that. And under the
23 agreement, you must indemnify us. That's their claims
24 against the plaintiff.
25 So if there is an indemnity provision,

21
1 everything, no matter how you look at it, it's directly
2 or indirectly with the transfer agreement. There is
3 no --
5 MR. SHEENA: Okay.
6 THE COURT: So the money you say that
7 Crossland owed your client is actually occurred before
8 May 18?
9 MR. SHEENA: Yes.
10 THE COURT: This is 2015; right?
11 MR. SHEENA: 2016.
12 THE COURT: 2016?
13 MR. SHEENA: Yes.
14 THE COURT: Let me see. And you said they
15 are still the owner?
16 MR. SIDDIQUI: I believe so, Your Honor.
17 THE COURT: That's your company?
18 MR. SIDDIQUI: Yes.
20 MR. SHEENA: May I add one more thing,
21 Judge?
22 THE COURT: Go ahead.
23 MR. SHEENA: So they asserted outside the
24 promissory note claims -- Abbou did, against my client
25 saying you took money before the closing, right? Before

22
1 the closing, my client --
2 THE COURT: No, no, no. They said your
3 client signed a promissory note on May 18, 2016,
4 regardless before or after, but you never paid. Your
5 client never paid that $22,500.
6 MR. SHEENA: Yes. And we addressed it and
7 showed you why it should be part of the arbitration
8 agreement consideration, the transfer agreement. But
9 they, in the same petition, asserted claims against my
10 client, Abbou, for taking I think -- for Albaz, I'm
11 sorry.
12 Abbou asserted claims in this lawsuit
13 against Albaz, my client, saying that before the
14 closing, okay, Albaz, my client, took like, I don't
15 know, $80,000, okay.
16 THE COURT: From where?
17 MR. SHEENA: From Crossland. That's what
18 the --
19 THE COURT: Oh, when Abbou was the owner of
20 Crossland?
21 MR. SHEENA: Yes.
22 THE COURT: And Albaz took money?
23 MR. SHEENA: Right.
24 THE COURT: All right. Just a second. But
25 that's the claim you are trying to sever; right?

23
1 MR. SIDDIQUI: Yes, that's correct.
2 MR. KOONG: No. The claim we're trying to
3 sever is just on the promissory note.
4 THE COURT: I know. I know. But the claim
5 against Albaz on whether or not Albaz took money before
6 the closing on the $80,000, in addition to this failure
7 to pay the promissory note, that's a separate claims
8 that you want to sever. The only thing you want to
9 sever out of all the claims among each -- among all
10 three of you is this promissory note?
11 MR. KOONG: Yes.
12 THE COURT: You said this one should be
13 severed out and tried by itself and then all other
14 claims should be --
15 MR. SHEENA: Arbitration.
17 All other claims are separated. Is that what I'm --
18 what are you trying to do?
19 MR. KOONG: We're just trying to sever this
20 from -- correct, the rest of the claims. But our claims
21 is not for taking any money, it's for fraud. So like
22 you mentioned earlier --
23 THE COURT: Fraud on doing what?
24 MR. KOONG: We're not sure what's going on
25 with the intent behind the transfer agreement and

24
1 executing the promissory note because Albaz was present
2 during the negotiations. So I'm not sure what his role
3 is. Like you said, he's not technically an owner, but
4 it seemed like he's asserting control over the LLC. And
5 if you remember, Mr. Sheena brought the Intervenor's
6 claims and then he withdrew.
7 THE COURT: Okay.
8 MR. KOONG: And then now the Intervenor got
9 new counsel and they are suing -- the defendant is suing
10 the LLC based on that indemnity clause.
11 MR. SHEENA: There's a conflict of
12 interest, right --
13 THE COURT: Yes.
14 MR. SHEENA: -- and that's why separate
15 counsel. But I think your question is, is he asking you
16 to sever that promissory note from the rest of the claim
17 and the rest should go to arbitration? I think is what
18 you're asking. I think his answer is yes.
19 THE COURT: Yes. That's what I'm asking
20 the question. But, no, I know you frame my question the
21 way you did, but that's not my question.
23 THE COURT: Because I did ask about whether
24 -- which portion that we're going to sever out that per
25 the plaintiff's request and now I got it clear and I

25
1 think everybody is clear. The plaintiff try to sever
2 this promissory note that that's how the lawsuit start
3 with, the promissory note. Severed out from all other
4 claims among all three parties.
5 So I -- so Abbou has -- if we sever this
6 out. "If" we sever it out then Abbou has fraud claim
7 against Albaz; Albaz has cross-claim against Crossland
8 for the loan balance; and then Crossland has claims
9 against Abbou on the indemnity clause.
10 MR. SIDDIQUI: You got it, Judge.
11 THE COURT: The Membership Transfer
12 Agreement.
13 MR. SHEENA: Yes.
14 MR. KOONG: Yes, Your Honor.
15 THE COURT: So I do believe this would be
16 transferred out since this one involved -- anyway. I
17 think it would be much easier to sever it out because as
18 you can tell, even though I read everything, I make a
19 chart -- I make two charts actually. Make two charts,
20 but still take me a while to really understand the
21 relationship with all the parties. And this is a jury
22 trial, right? Is this a jury trial?
23 MR. KOONG: Yes.
24 MR. YU: Yes.
25 THE COURT: 1080464 and I can assure you

26
1 the jury will be confused if we put this promissory note
2 in the middle. So I'm going to sever this out, but I
3 think all the rest of claims and then your Motion to
4 Compel Arbitration clause will be granted. But first
5 you have to go to mediation, because that's what the
6 agreement says. You are going to mediation first, but
7 you have to go through discovery, though.
8 MR. SHEENA: Judge --
9 THE COURT: I mean, you cannot just don't
10 do discovery and be ready for mediation. But when you
11 -- if you cannot settle in the mediation -- actually
12 that's much better to go to mediation because mediation
13 is much cheaper.
14 MR. SHEENA: Judge, I know that and I've
15 told Mr. Koong, you know, I know what it says. It says
16 "will" not "shall," but you told us the last time to go
17 to mediation and I told him, he wants to go I'm ready to
18 go. I don't want this mediation to be a preclusion to
19 arbitration. I'm all for that.
20 THE COURT: Yeah. That's what the contract
21 says.
22 MR. SHEENA: I understand.
23 THE COURT: You have to go to mediation
24 first and then if mediation is unsuccessful then we
25 shall let you go to arbitration --

27
1 MR. SHEENA: Okay.
2 THE COURT: -- which will be binding, but
3 it's very extensive and very -- take a long time.
4 MR. SHEENA: Okay.
5 THE COURT: So we're going to sever this
6 out. Do you have an order?
7 MR. YU: Yes, Your Honor.
8 THE COURT: On the Motion to Sever, you
9 need to tell the Court which pleadings --
10 MR. YU: Documents --
11 THE COURT: Yes.
12 MR. YU: Yes, it's all done.
13 THE COURT: You all want to see, take a
14 look?
15 MR. SHEENA: Yes, Judge.
16 MR. YU: We filed a copy. It's on the
17 record.
18 THE COURT: That's fine. Let them just
19 take a look. Should we do 101 on the case number?
20 MR. YU: Yeah, the case number.
21 THE COURT: And so all other claim -- do
22 you want to the Court to assign a mediator?
23 MR. SHEENA: Yes, please, Judge.
24 MR. YU: I think one has already been
25 assigned.

28
1 MS. CANTADA: I think we assigned them to
2 Judge Coselli already.
3 MR. SHEENA: Judge Coselli?
4 THE COURT: Coselli? Oh, yeah. You talked
5 about you want to use Coselli.
6 MR. SHEENA: I know Coselli. Coselli's a
7 great Judge. Everybody knows Coselli.
8 THE COURT: Okay.
9 MR. YU: Yes.
10 THE COURT: All other claims --
11 MR. YU: He's a stand-up Judge.
12 THE COURT: -- will go to mediation by
13 Judge Coselli. All right.
14 MR. KOONG: We would like to -- so
15 Mr. Coselli's son used to work at our firm. Just wanted
16 to let you know.
17 THE COURT: At your firm?
18 MR. KOONG: Yeah. He's not here any more.
19 MR. SHEENA: Look, I've known Judge Coselli
20 for many years. Judge Coselli is a good person.
21 MR. KOONG: I just wanted to mention it.
22 MR. SHEENA: I don't think whether his son
23 worked --
24 THE COURT: Well, it's disclosure. Do you
25 have any problem?

29
1 MR. SHEENA: I don't have any problem with
2 it.
3 THE COURT: Do you have an objection?
4 MR. SIDDIQUI: No, Your Honor.
5 THE COURT: Okay. Great. Are you okay
6 with it?
7 MR. SHEENA: Judge, I'd like the severed
8 order to include the motions and the exhibits we have
9 here today.
10 THE COURT: Why don't you add to it. Your
11 Motion to Sever; right?
12 MR. YU: Yeah, can I just refile it with
13 you?
14 MR. SHEENA: Sure.
15 THE COURT: Sure.
16 MR. YU: Okay.
17 THE COURT: When can you refile it?
18 MR. KOONG: Today.
19 MR. YU: Today.
20 THE COURT: Today. Why don't you -- when
21 you file it, just send a copy to Mr. Sheena and a copy
22 to Mr. Siddiqui just in case they have any opinion about
23 what other things should be included.
24 MR. YU: Sure.
25 THE COURT: It will be e-filed today. Very

30
1 good. Thank you so much.
2 MR. SHEENA: I'm sorry. On the Order to
3 Compel Arbitration, I think what you said is the parties
4 shall mediate with Judge Coselli and if not successful,
5 the entire case other than the promissory note is
6 basically sent to arbitration. Is that correct? That's
7 the order?
8 MR. WU: No. Arbitration was already
9 denied to compel arbitration.
10 THE COURT: That's why we want to talk
11 about it now.
12 MR. YU: Okay.
13 MR. SIDDIQUI: Great.
14 THE COURT: So any other claims that you
15 are not -- that are not included in the Membership
16 Transfer Agreement --
17 MR. SHEENA: That's what I thought you
18 said.
19 THE COURT: Yes. Yes. My understanding,
20 but I don't want to pretend I know all the claims in
21 this case because it kind of is like evolving. The case
22 just keep on changing.
23 So now my question to all three parties are
24 once we sever the promissory note out of this case, are
25 all the claims that you have against any party in this

31
1 case are all directly or indirectly related to the
2 Membership Transfer Agreement?
3 MR. KOONG: No, Your Honor.
4 THE COURT: Not yours?
5 MR. KOONG: No. Not our claims against the
6 Defendant. So this was for conduct that has nothing to
7 do with the transfer of the LLC. This was when
8 Mr. Abbou and Mr. Yakov Albaz were doing business but
9 that has nothing to do with him transferring the LLC
10 interest.
11 THE COURT: Lets do this -- lets do this.
12 Lets do this. I think -- have you already completed
13 your discovery?
14 MR. SHEENA: No.
15 MR. KOONG: No. We're trying to get
16 depositions set up.
17 MR. SIDDIQUI: No.
18 THE COURT: But you're not objecting all
19 the claims goes to mediation --
20 MR. KOONG: We agree --
21 THE COURT: -- other than the promissory
22 note?
23 MR. KOONG: Right. So our claims -- our
24 other claims we don't believe they fall within the
25 scope.

32
1 THE COURT: I'm not asking that. I'm
2 asking you whether or not you object that besides the
3 promissory note, all the claims among all parties go to
4 mediation?
5 MR. KOONG: We don't object to mediation.
6 THE COURT: Don't object to that. Okay.
7 Why don't we come back if the mediation is not
8 successful because I am sure at that time when you go to
9 mediation, you have completed your discovery. When you
10 come back, you can argue fully about whether or not the
11 whole case should go to arbitration or not.
12 MR. KOONG: Okay.
13 MR. SHEENA: Just so you understand, the
14 claims they are asserting against Albaz is that he took
15 money from the company prior to the closing. Those are
16 not their claims. If he took money to the company and
17 Abbou sold his interest in the company, that is the
18 company's claim. So it all directly relates to the
19 transfer.
20 THE COURT: I understand your argument.
22 THE COURT: I do, but I just want to see
23 how the argument -- I mean, at that time, maybe things
24 have changed.
25 MR. SHEENA: Of course.

33
1 THE COURT: There are more claims?
2 MR. SHEENA: Okay.
3 THE COURT: Or less claims, whatever.
4 Thank you all so much.
5 MR. SHEENA: Thank you, Your Honor.
6 MR. SIDDIQUI: Thank you, Your Honor.
7 MR. YU: Thank you.
8 MR. KOONG: Thank you. May we be excused?
9 THE COURT: Sure.
10
11 (HEARING CONCLUDED)
12
13
14
15
16
17
18
19
20
21
22
23
24
25

34
1 REPORTER'S CERTIFICATE
2 THE STATE OF TEXAS ]

]
3 COUNTY OF HARRIS ]
4 I, Kevin J. Bruzewski, Official Court Reporter in
5 and for the County Civil Court-at-Law No. 2 of Harris
6 County, State of Texas, do hereby certify that the above
7 and foregoing contains a true and correct transcription
8 of all portions of evidence and other proceedings
9 requested in writing by Defendant's counsel to be
10 included in this volume of the Reporter's Record in the
11 above-styled and numbered cause, all of which occurred
12 in open court or in chambers and were reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, offered by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $269.00 and was
18 paid/will be paid by Defendant's attorney.
19 Witness my official hand this the 20th day of
20 October, 2017.
/s/Kevin J. Bruzewski
21 Kevin J. Bruzewski, CSR
Texas CSR 3727
22 Expiration: 12/31/2017
Official Court Reporter
23 County Civil Court-at-Law No. 2
Harris County, Texas
24 201 Caroline, 5th Floor
25 713.368.6642

FILED IN
HOUSTON, TEXAS
10/24/2017 1:36:55 PM
CHRISTOPHER A. PRINE
Clerk
Tab U
1080464
10/18/2017 10:01 AM
County Clerk
Harris County
CAUSE NO. 1080464
RAAM ABBOU,
Plaintiff

vs.
YAKOV ALBAZ,
Defendant
AT LAW NO. 2


vs.

RAAM ABBOU,

NOTICE OF REFUSAL TO MEDIATE
PLEASE TAKE NOTICE THAT:
1. Defendant YAKOV ALBAZ (Albaz) and Intervenor AA TOP SUCCESS, LLC D/B/A
CROSSLAND VAN LINES & STORAGE (Crossland) have requested that
Plaintiff/DefendantinIntervention RAAM ABBOU (Abbou) mediate their dispute, as
specified in that certain Membership Transfer Agreement dated May 18, 2016 (Agreement),
attached hereto as Exhibit 1.
2. Despite numerous requests, counsel for Abbou has refused to do so at this time. See email
correspondence attached as Exhibit 2.
THE SHEENA LAW FIRM

HUNG MICHAEL NGUYEN
(713) 224-6508
(713) 225-1560 Facsimile
I HEREBY CERTIFY that a true and correct copy of the foregoing Notice of Refusal to
Mediate was sent via electronic service and/or hand delivery and/or facsimile and/or certified
mail, return receipt requested, to all counsel of record on the 18th day of October 2017.
HsienTe J. Koong
(346) 808-0529
(713) 491-2874 Facsimile
john@koonglaw.com
Saif A. Siddiqui
SIDDIQUI AYRES
(832) 927-2775
(832) 787-1284 Facsimile
ss@siddiquilaw.com
/s/ Danny M. Sheena

Danny M. Sheena
NOTICE OF REFUSAL TO MEDIATE Page 2 of 2

1080464
Exhibit 1
1080464
Exhibit 2
The Sheena Law Firm Mail - Re: Mediation - Raam Abbou v. Yakov AlbazSuccess - Cause No. 1080464; In the County Civil Court at Law No. 2 10/18/17, 09)08
Danny Sheena <danny@sheenalawfirm.com>
Re: Mediation - Raam Abbou v. Yakov Albaz v. AA Top Success - Cause No.
1080464; In the County Civil Court at Law No. 2
1 message
John Koong <John@koonglaw.com> Thu, Oct 12, 2017 at 9:18 PM

To: Danny Sheena <danny@sheenalawfirm.com>
Cc: Eric Yu <eric.yu@koonglaw.com>, Hung Nguyen <mike@sheenalawfirm.com>, Sarah Koong
<sarah@koonglaw.com>
Dear Mr. Sheena,
I am sorry to hear that. Although Judge Chang ordered Mediation, that does not abate the lawsuit or put discovery on
hold. I'm not sure if you remember, but your motion to compel arbitration was denied. Yet for reasons unbeknownst to
me and my colleagues, you keep mentioning the AAA and arbitration.
While you believe that Judge Chang wrongfully denied your motion, as you stated in your email to Judge Coselli, the
lawsuit must continue. Either file your motion to quash so you can take your issues to Judge Chang or fulfill your
ethical duty and produce your client for deposition.
If you can definitively confirm that your client is unwilling to appear for a deposition prior to mediation, then I will be
forced to file a motion to compel.
Thank you for your time and consideration in this matter.
P.S. This is the second time you are requesting confirmation regarding mediation even though I already confirmed in
my last email and stated on the record in open court during our last hearing very clearly that we agree to mediation.
Perhaps you should order a transcript of the hearing (just a suggestion).
Get Outlook for iOS
From: Danny Sheena <danny@sheenalawfirm.com>

Sent: Thursday, October 12, 2017 6:10:49 PM
To: John Koong
Cc: Eric Yu; Hung Nguyen
Subject: RE: Mediation - Raam Abbou v. Yakov Albaz v. AA Top Success - Cause No. 1080464; In the
County Civil Court at Law No. 2
Dear Mr. Koong:
Yes, we are opposed to deposition of Mr. Albaz before mediation.
All these matters can be addressed with AAA, including mediation and deposition schedules.
Please confirm that you do not intend to mediate this case before Mr. Albaz deposition.
Thanks.
Danny M. Sheena
https://mail.google.com/mail/u/1/?ui=2&ik=5cc144cffb&jsver=g8gQ0Bu&qs=true&search=query&th=15f1386eac5026f1&siml=15f1386eac5026f1 Page 1 of 4
The Sheena Law Firm

(713) 224-6508
(713) 225-1560 Facsimile
The information contained in this e-mail message and any attachments hereto is privileged and confidential, and is intended only for the use of the intended recipient and others who have been
specifically authorized to receive it. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, disclosure, use or copying of this communication, or the
making or retention of a copy of this communication, is strictly prohibited. If you have received this communication in error, please contact the sender by return e-mail and delete this message.
If this e-mail message has any filed attached to it, they should be virus-checked before they are opened. Thank you for your cooperation.
From: John Koong [mailto:John@koonglaw.com]

Sent: Wednesday, October 11, 2017 11:36 AM
To: Danny Sheena
Cc: Eric Yu; Hung Nguyen
Subject: RE: Mediation - Raam Abbou v. Yakov Albaz v. AA Top Success - Cause No. 1080464; In the County Civil
Court at Law No. 2
Dear Mr. Sheena,
I am not sure what response you are looking for? We all stated on the record at the hearing yesterday in from of
Judge Chang that we were open to mediation. However, I am trying to take the deposition of your client, Yakov
Albaz prior to the mediation as we believe that it would be more beneficial to have at least the deposition taken
prior to the mediation. Is this going to be a problem? You have ignored repeated requests for dates when your
client will be available for deposition and I am starting to feel that you are trying to resist a deposition of your
client. If you do not provide availability dates of your client for deposition, I am going to notice the depo and let
you move to quash.
Best regards,
John Koong
Attorney & Counselor at Law
3302 Canal St. Suite 72
Houston TX 77003
Office : 281-895-1688
Fax : 281-895-1356
Email : john@koonglaw.com
Web : www.koonglaw.com
IMPORTANT/CONFIDENTIAL: This message from the Koong Law Group is intended only for the use of the addressees shown above. This message
contains information that may be privileged, confidential and/or exempt from disclosure under applicable State and/or Federal law. If you are not the
intended recipient of this message, then you are hereby notified that the copying, use, forwarding or other distribution of any information or
materials transmitted in or with, or as an attachment to, this message is strictly prohibited. If you received this message by mistake, please
immediately call us at 281-895-1688 and immediately destroy/delete this message. Thank you.
From: Danny Sheena [mailto:danny@sheenalawfirm.com]

Sent: Tuesday, October 10, 2017 4:47 PM
To: John Koong <John@koonglaw.com>
Cc: Eric Yu <eric.yu@koonglaw.com>; Hung Nguyen <mike@sheenalawfirm.com>
Subject: FW: Mediation - Raam Abbou v. Yakov Albaz v. AA Top Success - Cause No. 1080464; In the County
Civil Court at Law No. 2
Dear Mr. Koong:
As you know, I previously informed you that my client is willing to go to mediation at any time so that there will
not be any issues with arbitration.
I never received a response from you.
Please let me know if you agree to mediate the case at this time or if you are objecting to going to mediation at
this time.
Thanks.
Danny M. Sheena
The Sheena Law Firm
(713) 224-6508
(713) 225-1560 Facsimile
The information contained in this e-mail message and any attachments hereto is privileged and confidential, and is intended only for the use of the intended recipient and others who have been
specifically authorized to receive it. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, disclosure, use or copying of this communication, or the
making or retention of a copy of this communication, is strictly prohibited. If you have received this communication in error, please contact the sender by return e-mail and delete this message.
If this e-mail message has any filed attached to it, they should be virus-checked before they are opened. Thank you for your cooperation.
Tab V
1080464
10/18/2017 10:38 AM
County Clerk
Harris County
CAUSE NO. 1080464
RAAM ABBOU,
Plaintiff

vs.
YAKOV ALBAZ,
Defendant
AT LAW NO. 2


vs.

RAAM ABBOU,

NOTICE OF INTERLOCUTORY APPEAL
COMES NOW Defendant YAKOV ALBAZ (Albaz) and Intervenor AA TOP
SUCCESS, LLC D/B/A CROSSLAND VAN LINES & STORAGE (Crossland), who this Notice
of Interlocutory Appeal (Notice) pursuant to Texas Rule of Appellate Procedure (Rule) 25.1,
and in support thereof would respectfully show the Court the following:
1. Albaz and Crossland desire to appeal from the Order on Defendant and Intervenors
Motion to Compel Arbitration & Stay Proceedings (Order) signed by the Court on August 8,
2017.
2. Albaz and Crossland appeal to either the First or Fourteenth Court of Appeals.
3. The appeal in this case is an interlocutory appeal of an order denying a motion to compel
arbitration and stay proceedings, as authorized by Texas Civil Practices and Remedies Code
(CPRC) 171.098(a)(1), to the extent the arbitration agreement in question is governed by the
Texas Arbitration Act (TAA), or 9 U.S.C. 16(a)(1), as incorporated by CPRC 51.016, to the
extent it is governed by the Federal Arbitration Act (FAA).
4. Pursuant to Texas Rule of Appellate Procedure 28.1(a), this is an accelerated appeal.
5. Pursuant to Local Rule 1.4(a) of both the First and Fourteenth Courts of Appeals, there is
no related appeal or original proceeding previously filed in either Court of Appeals.
THE SHEENA LAW FIRM

HUNG MICHAEL NGUYEN
(713) 224-6508
(713) 225-1560 Facsimile
SIDDIQUI AYRES
By: /s/ Saif A. Siddiqui (by permission)

SAIF A. SIDDIQUI
(832) 927-2775
(832) 787-1284 Facsimile
STORAGE
NOTICE OF INTERLOCUTORY APPEAL Page 2 of 3

I HEREBY CERTIFY that a true and correct copy of the foregoing Notice of
Interlocutory Appeal was sent via electronic service and/or hand delivery and/or facsimile and/or
certified mail, return receipt requested, to all counsel of record on the 18th day of October 2017.
HsienTe J. Koong
(346) 808-0529
(713) 491-2874 Facsimile
john@koonglaw.com
Saif A. Siddiqui
SIDDIQUI AYRES
(832) 927-2775
(832) 787-1284 Facsimile

Hung M. Nguyen
NOTICE OF INTERLOCUTORY APPEAL Page 3 of 3

Tab W
1080464
10/27/2017 3:15 PM
County Clerk
Harris County
CAUSE NO. 1080464
RAAM ABBOU,
Plaintiff

vs.
YAKOV ALBAZ,
Defendant
AT LAW NO. 2


vs.

RAAM ABBOU,

AMENDED NOTICE OF INTERLOCUTORY APPEAL
COMES NOW Defendant YAKOV ALBAZ (Albaz) and Intervenor AA TOP
SUCCESS, LLC D/B/A CROSSLAND VAN LINES & STORAGE (Crossland), who this
Amended Notice of Interlocutory Appeal (Notice) pursuant to Texas Rule of Appellate Procedure
(Rule) 25.1, and in support thereof would respectfully show the Court the following:
1. Albaz and Crossland desire to appeal from the Order (Order) signed by the Court on
October 26, 2017.
2. Albaz and Crossland had previously appealed the Order on Defendant and Intervenors
Motion to Compel Arbitration & Stay Proceedings (Prior Order) signed by the Court on August
8, 2017, but that Prior Order had been set aside by the October 26, 2017 Order.
3. Albaz and Crossland appeal to the First Court of Appeals. This appeal has already been
docketed in the First Court of Appeals under case number 01-17-00804-CV.

4. The appeal in this case is an interlocutory appeal of an order finding that the case
arbitratable but denying a request to stay the proceedings, as authorized by Texas Civil Practices
and Remedies Code (CPRC) 171.098(a)(1), to the extent the arbitration agreement in question
is governed by the Texas Arbitration Act (TAA), or 9 U.S.C. 16(a)(1), as incorporated by
CPRC 51.016, to the extent it is governed by the Federal Arbitration Act (FAA).
5. Pursuant to Texas Rule of Appellate Procedure 28.1(a), this is an accelerated appeal.
6. Pursuant to Local Rule 1.4(a) of the First Courts of Appeals, there is no related appeal or
original proceeding previously filed in either the First or Fourteenth Court of Appeals.
THE SHEENA LAW FIRM

HUNG MICHAEL NGUYEN
(713) 224-6508
(713) 225-1560 Facsimile
SIDDIQUI AYRES
By: /s/ Saif A. Siddiqui (by permission)

SAIF A. SIDDIQUI
(832) 927-2775
(832) 787-1284 Facsimile
AMENDED NOTICE OF INTERLOCUTORY APPEAL Page 2 of 3

STORAGE
I HEREBY CERTIFY that a true and correct copy of the foregoing Amended Notice of
Interlocutory Appeal was sent via electronic service and/or hand delivery and/or facsimile and/or
certified mail, return receipt requested, to all counsel of record on the 27th day of October 2017.
HsienTe J. Koong
(346) 808-0529
(713) 491-2874 Facsimile
john@koonglaw.com

Hung M. Nguyen
AMENDED NOTICE OF INTERLOCUTORY APPEAL Page 3 of 3

Petition For Writ of Mandamus, 01-17-00910-CV

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Petition For Writ of Mandamus, 01-17-00910-CV

Transféré par

Droits d'auteur :

Formats disponibles

No.

In the First or Fourteenth Court of Appeals

YAKOV ALBAZ and

PETITION FOR WRIT OF MANDAMUS

Danny M. Sheena, P.E. Saif A. Siddiqui

ORAL ARGUMENT REQUESTED

Pursuant to Texas Rule of Appellate Procedure (Rule) 52.3(a), the

will be directly affected by the proceeding:

Relators and Counsel

Yakov Albaz Danny M. Sheena, P.E.

AA Top Success, LLC D/B/A Saif A. Siddiqui

PETITION FOR WRIT OF MANDAMUS Page i

The Honorable Theresa W. Chang

Real Parties in Interest

Raam Abbou HsienTe J. Koong

Prosperity Bancshares, Inc. William P. Huttenbach

PETITION FOR WRIT OF MANDAMUS Page ii

Identities of Parties and Counsel................................................................................ i

Index to the Appendix ................................................................................................v

Index to the Mandamus Record .................................................................................v

Index of Authorities ............................................................................................... viii

Statement of the Case.............................................................................................. xii

A. Nature of underlying proceedings ................................................................ xii

B. Identity of Respondent.................................................................................. xii

C. Action from which relief is sought ............................................................... xii

Statement of Jurisdiction........................................................................................ xiv

Issues Presented .......................................................................................................xv

II. Statement of Facts .................................................................................................1

A. Factual background ..........................................................................................1

B. Procedural background below .........................................................................3

III. Argument .............................................................................................................8

A. Summary of the argument ...............................................................................8

B. Standard of review for mandamus relief .......................................................10

C. Abbous claim on the Note in the Severed Cause is arbitrable .....................11

2. A broad arbitration clause in a contract can encompass claims not

PETITION FOR WRIT OF MANDAMUS Page iii

4. Thus, under the broad language of the arbitration provision in the

1. Severance is only warranted when it avoids prejudice, does justice,

2. Mandamus relief is the proper remedy for improper severance ..............19

E. If the claims in the Remaining Cause were found to be arbitrable, it was

1. Once a claim is found to be arbitrable, a stay of litigation is mandatory.21

2. Once a claim is found to be arbitrable, ordering discovery on the

3. Respondents October 25, 2017 Order was an abuse of discretion with

IV. Prayer .................................................................................................................25

Certification Pursuant to Rule 52.3(j) ......................................................................27

Certificate of Compliance with Rule 9.4(i)(3) .........................................................27

PETITION FOR WRIT OF MANDAMUS Page iv

Index to the Appendix

Tab Description Date

Order on Defendant and Intervenors Motion to

Amended Order on Plaintiffs Motion to Sever, in

C Order, in Cause No. 1080464-101 October 25, 2017

D Order, in Cause No. 1080464 October 25, 2017

Index to the Mandamus Record

Tab Description Date

E Verification of Mandamus Record November 27, 2017

F Plaintiffs Original Petition July 21, 2016

Defendant Yakov Albaz Original Answer and

PETITION FOR WRIT OF MANDAMUS Page v

AA Top Success, LLCs D/B/A Crossland Van

Defendant Yakov Albazs and Intervenor AA Top

J Reporters record of August 8, 2017 hearing August 8, 2017

K Plaintiffs Second Amended Petition August 22, 2017