IN THE COURT OF APPEALS IN THE MATTER OF FELIX UGWONALI. DIRECT APPEAL FROM DALLAS COUNTY COURT AT LAW No. 1

Transcription

1 Case # CV IN THE COURT OF APPEALS 5 th DISTRICT OF TEXAS at DALLAS IN THE MATTER OF FELIX UGWONALI DIRECT APPEAL FROM DALLAS COUNTY COURT AT LAW No. 1 OF DALLAS COUNTY, TEXAS HONORABLE D METRIA BENSON, JUDGE PRESIDING. RULING IN THE CASE # CC A BRIEF OF APPELLANT, FELIX UGWONAL Felix C. Ugwonali, Ph.D Glengreen Drive, Dallas, Texas Telephone Cell phone Not an Attorney, Representing himself. i

2 IN THE 5 th SUPREME JUDICIAL DISTRICT OF TEXAS COURT OF APPEALS FOR THE STATE OF TEXAS IN THE MATTER FELIX UGWONALI DIRECT APPEAL FROM THE FINAL DECISION OF JUDGE D METRIA BENSON REGARDING HIS LAWSUIT AGAINST EUNICE AGBOR AND Me OKERE BRIEF OF APPELLANT FELIX UGWONALI TO THE HONORABLE JUSTICES THIS IS A DIRECT APPEAL PURSUANT TO TEXAS RULES OF APPELLATE PROCEDURE IN A MATTER OF LEGAL CONTRACT WHERE FELIX UGWONALI APPEALS THE FINAL DECISION OF JUDGE D METRIA BENSON WHO MADE FINAL DECISION ON 04/07/2010 IN THE CASE OF APPELLANT, FELIX UGWONALI VS Me OKERE, THAT THERE IS INSUFFICIENT EVIDENCE TO ESTABLISH THE EXISTENCE OF A DEBT DUE AND OWING BETWEEN PLAINTIFF, FELIX UGWONALI AND DEFENDANT Me OKERE. IN PLAINTIFF, FELIX UGWONALI VS EUNICE AGBOR, JUDGE D Metria BENSON RULING, STATED THAT THERE IS INSUFFICIENT EVIDENCE TO SUPPORT PLAINTIFF S ALLEGATIONS THAT DEFENDANT, AGBOR, HAS OUTSTANDING DEBT DUE AND OWING TO PLAINTIFF. ORDER IN CASE # CC A, SIGNED ON 04/07/2010 ON, IN Appendix A. REFERENCE WILL BE TO THE COURT CLERK S RECORD AND Appendix. ii

3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ii TABLE OF CONTENTS iii INDEX OF AUTHORITIES iv JURISDICTION STATEMENT OF THE CASE ISSUE PRESENTED STATEMENT OF FACTS SUMMARY OF THE ARGUMENT ARGUMENT CONCLUSION PRAYER CERTIFICATE OF SERVICE APPENDIX TAB iii

4 INDEX OF AUTHORITIES TEXAS RULES OF APPELLATE PROCEDURE RULES TEX. R. P (a) ii TEX. R. APP (b) iii TEX. R. APP. 38.1( c ) iv TEX. R. APP. P (d) ,2 TEX. R. APP. 38.1(f) ,6,7,8 TEX. R. APP. P. 38.1(h) TEX. R. APP P. 38.1(h) ,3,5,6,7,8,11,13. iv

5 JURISDICTION 1 A CITIZEN HAS THE RIGHT TO APPEAL A RULING FROM DALLAS COUNTY COURT OF LAW TO COURT OF APPEALS FOR THE 5 th DISTRICT OF TEXAS at DALLAS IN A TIMELY MANNER AS APPELLANT DID ON THE 2 nd OF MAY 2010 IN THIS CASE. STATEMENT OF THE CASE # CC A Appellant, Felix Ugwonali and Defendant, Eunice Agbor had a written agreement whereby Defendant, Eunice Agbor borrowed the sum of $8000 at 10% interest from Appellant Ugwonali in May 5, Defendant issued Appellant a check for $8000 post/dated June 29, In addition, Defendant gave Appellant title to her vehicle as collateral for this loan. Instead of refunding this loan, Defendant gave Appellant extension promissory note on May 30, The extension appeared on page CR The one for June 30, 2006 appears on page of CR. Each extension was to pay the original loan and the accrued interest. Appellant filed lawsuit on June 18, 2008 to get Defendant Agbor pay this debt. Judge D Metria Bension heard this case on June 12, 2009 but made Final Decision in April 7, 2010, and said, There was insufficient evidence to support Plaintiff s allegations that Defendant Agbor has outstanding debt due and owing to Plaintiff. In the case of Appellant s lawsuit against Me Okere, Judge Benson gave Final Decision that, There is insufficient evidence to establish the existence of a debt due

6 2 and owing between Plaintiff, Felix Ugwonali and Defendant, Me Okere. See Appendix A for Judge Benson s Final Ruling in this case. Judge Benson s rulings were unacceptable to Appellant, thus, this my Appeal to Supreme Court of Texas to look into my case and help me find justice. ISSUE PRESENTED DURING HEARING ON CASE # CC A On June 12, 2009 Judge Benson swore the Appellant and the Defendants in, to begin hearing this case. Plaintiff and Defendant, Me Okere were first heard because Okere filed Motion For Summary Judgment and Motion For Sanction against Appellant and his attorney Pamela Ibe. Judge Benson refused to sanction Appellant or his attorney but heard my complaint against Okere first. This is why Judge Benson gave ruling on Okere s case first before the first Defendant, Eunice Agbor. Before hearing my case against Agbor, Judge Benson told me that the burden of proof that I have not been paid lay with me. When Judge Benson asked me to tell why I sued Agbor, I told Judge Benson that Defendant Agbor borrowed $8000 from me and promised to pay10% interest on the principal. An agreement was executed for this. Judge Benson brought out the promissory note and gave it to Agbor to examine if that was signed by her. She took the agreement from the Judge and examined it and told Judge that she signed it. The judge brought the $8000 check and gave it Defendant to see if that was the check she issued Appellant. Defendant Agbor took the check, examined it and gave it back to Judge and said it is her check. Judge Benson brought out title to her auto that Defendant gave Plaintiff as collateral and gave it to Defendant. Defendant Agbor said, yes. Judge Benson asked Agbor if this auto title she gave Appellant was worth

7 3 $8000 when she used it as collateral for this loan. Defendant, Eunice Agbor said it was worth more than that. Both promissory note, check for $8000 and title for Defendant auto that Defendant used as collateral are in pages to of CR. Suddenly, Judge Benson brought out a check that had a signature resembling mine and asked me if that was my signature. I took the check form Judge Benson and looked at the check and told Judge Benson that that was not my signature. Judge Benson called my wife to come forward to the Bench. When my wife approached the Bench, Judge Benson gave the same check she showed to me, to my wife and asked her if the signature on that check was my signature. She told the Judge that that was not my husband s signature. It seemed, as if, the signature on that check was mine, Judge Benson would have said, yes, she paid you with this check even though Defendant had never said that she paid me with a check. Defendant, Eunice Agbor when the check she issued was shown to her, she never exclaimed, Appellant, you said you lost this check or you altered the date on this check! Defendant never said any of that. Before we were asked to produce our witnesses, Defendant, claimed to have given my wife $2000 of this loan she claimed to have paid me completely in June 29, Judge Benson summoned my wife to come forward to the Bench. When my wife arrived, Judge Benson asked my wife if Eunice Agbor gave her $2000 of this loan? My wife answered no, and told Judge Benson, Eunice is a liar. Agbor s daughter works in the bank, she may have tried to forge my signature so that they can say I was paid with check. We were asked to produce our witness or witnesses. Defendant said her younger brother, Odili Madubuokwu was her only witness. When Judge Benson asked

8 4 Defendant s witness to approach the Bench, he came. Judge Benson asked him what he knew about this loan that Appellant gave Defendant Agbor. Immediately he started to murmur, quickly Defendant made a 300 degree turn backing Judge Benson to advise the brother on what to say. Judge Benson warned Defendant to stop doing that. Defendant turned and faced Judge Benson. Defendant s witness told Judge Benson that he and his sister gave Appellant $6000 in cash in a gas station in Mesquite, Texas. Judge Benson asked witness what was the name of the gas station. Defendant s witness said he did not know. Judge Benson asked the witness what was the address of the gas station, Defendant s witness said he did not know. Judge Benson never asked defendant any of these important questions: 1. Defendant, why did you not ask for receipt when you paid Appellant in cash? 2. Why is Appellant still holding all these instruments you offered Appellant to compensent him for the loan, if you really paid him back his loan to you? 3. Judge Benson never asked Defendant why she never answered certified letters Appellant sent to her demanding to be paid back the loan he made to you? I told Judge Benson that Defendant s witness for whom she borrowed this loan to send to him in Nigeria, has never come to America in June Witness never refuted my statement. May Appellate Justices summon Defendant s witness to bring his 1997 passport he used to come to America for the first time. This shall help find truth. Also, I told Judge Benson that Defendant came to my house, accompanied by one Philomena Okandu to ask me to withdraw this case so that she can come and settle

9 me later. I refused. Defendant never challenge this my statement. 5 Towards the end of this hearing, Me Okere came back to the Bench while I was packing my papers from witness bench, pointing at me, Okere said, This man has been asking for this his money, he has not been paid. Judge Benson nodded her head forward in affirmation and thanked Okere. This was how the hearing in my case went. If Judge Benson had allowed Court Reporter, there is no way Judge Benson could have ruled against me. In fact, Judge Benson was hostile to me throughout the hearing. When Court Reporter invited me to Court for this my appeal to know which Court Report was present during this hearing. I told her none. She said, But I was just upstairs there. All Judge Benson could have done was to ask me to come down and be present during this hearing. STATEMENT OF FACTS OF CASE # CC A In May 5, 1997 Defendant, Eunice Agbor took a loan of $8000 from Appellant, Felix Ugwonali and executed and delivered to Appellant, a promissory note bearing the principal amount of $8000 on such date and year and thereby promised to pay the Appellant, or his order, the principal sum of $8000 plus accrued interest on Demand, a post/dated check for $8000 and title to her auto as collateral for this loan. All these papers that Defendant gave Appellant as consideration for this loan are on pages to of CR. Her extended promissory note dated June 30, 2005 is on CR and another on June 30, 2006 is on CR Defendant never denied in Court that any of the extended promissory notes was hers.

10 On the bottom of page of CR and on the top of page of CR, 6 Defendan Agbor stated, Because of all these things he demanded that Eunice pay him only cash money. Defendant Eunice Agbor went her bank and bought a chasier check gave it to him, but he still demanded cash Eunice Cashed that check and paid him cash. (page of CR) bottom part. Felix Ugwonali did not return the or title, but told the defendant that the check was lost and stated she will not present the check to the bank since the loan was paid, Eunice trusted him. (top of page of CR). Appellant sent Defendant first certified letter to come and pay Appellant in June 4, 2002 and second certified letter in June 18, 2005 to come and pay him the $8000 and the accrued interest. See Appendix B. Defendant accepted these two letters but never sent any reply to Appellant. There is a copy of the letter Appellant sent to Defendant before she came and signed the extended promissory note on page and of CR. When Defendant asked Appellant to put the check in his bank account and he did, only to find out that Defendant s account has been closed, if Defendant did not ask Appellant to put the check in his bank account, why did Defendant refuse to accept the certified mail Appellant sent her letting her know that he could not cash the $8000 check she issued to Appellant on May 5, 1997 but pos/dated June 29, 1997 and updated the date in 2007 on of CR? See the copy of the letter sent to Defendant that her account in her bank has been closed, on page of CR. Again, Eunice Agbor claimed to have paid Plaintiff $8000 on June 29, 1997and claimed in Court to have paid Appellant $6000 and Appellant s wife $2000 at no

11 specified date and place 7 In all Defendant s Answers, and in Court, Defendant has never stated that she asked Appellant for a receipt from Appellant but Appellant refused to give it to her if she claimed to have paid Appellant. On the bottom of page to line 8 of CR, Agbor stated, I will have to show the Judge my receipts that I paid him-him. Eunice Agbor never had any receipt from Appellant and never showed any receipt to the Presiding Judge, Judge Benson during the hearing on June 12, Defendant never wrote to Plaintiff any time since 1997 to ask Appellant to sign her promissory note or return or tear the promissory note, or return the check she gave Appellant nor return title to her vehicle she used as collateral.. Judge D Metria Benson on 04/16/2009 forced Appellant and Defendants to meet with Judge s chosen mediators. The two mediators separated the Appellant from the Defendants. After visiting with each group, the mediators told Appellant that what Eunice Agbor owes him then was over $23,000 and that she will not be able to pay him and asked Appellant if he was willing to receive only a part of what Defendant owes him. Appellant refused. On page of CR, in her handwritten Answers, Agbor said, I am to explain what happened between me and Dr. Felix Ugwonali and myself went to him and borrowed the of $8000 around May but the money was returned to him on June 20 th 1997 I mean the last payment I made was $2000.oo which I withdrew prior to the June 20 th that I gave the remaining $6000 to his hand.

12 Three important things have emerged from these handwritten Answers of 8 Defendant. She now claimed that she gave Appellant $2000 before giving Appellant $6000 on June 20 th and not $8000 she claimed to have paid Appellant on June 29, in her First Amended Answers on page of CR. There was no mention that she gave Appellant s wife $2000 at any time except in the Court. Defendant never stated when and where she gave either Appellant or his wife, this $2000. Appellant sent Agbor first certified letter in June 4, 2002 and second Certified letter on 06/18/2005. Post Office marks for these are in the Appendix B and H. In February 2006, defendant Agbor asked Appellant to send all papers relevant to this $8000 loan to Defendant Me Okere to see if Okere could pay off this loan for her. Appellant agreed and sent copies of these papers to Okere via his fax provided to Appellant by Agbor, but Okere refused to pay off this loan for Agbor. This is Me Okere who approached Judge Benson at the end of the hearing while Plaintiff was packing his papers off Judge Benson s Bench where witnesses place their papers when hearing was going on, and pointing at Appellant, Okere said, This man has been asking for this his money, he has not been paid. Judge Benson nodded her head forward in affirmation and thanked Me Okere. In spite of all these overwhelming evidence presented in Judge Benson s Court during the hearing, that Defendant has not paid Appellant, Judge Benson ruled, after over ten months of hearing this case and after Appellant reminded the Judge in writing, of the old adage which says, Justice delayed is justice denied, that Judge

13 Benson, eventualy made her Final ruling in this case. 9 SUMMARY OF THE ARGUMENT IN CASE # CC A Felix Ugwonali, the Appellant entered into a simple agreement whereby Defendant Agbor borrowed the sum of $8000 from Appellant on May 5, 1997 in Dallas in Dallas County, in Appellant s home at 9452 Glengreen Drive Dallas, Texas. The Defendant Eunice Agbor signed a promissory note that stipulated that the loan carried a 10% annual interest until fully refunded. Defendant gave a post-dated check that should be cashed on demand by the lender, Felix Ugwonali. Eunice Agbor gave title of her vehicle as collateral for this loan. But after many years of promises, orally and in writing confirming in her last written promise, she stated that she will refund this loan in 2007 when two of her two sons enter any institutions of higher learning, when she will withdraw $100,000 insurance death benefit of her late husband, that is when she will pay off this loan. The year 2007 came, Appellant called Defendant to come and pay him but Defendant did not come to pay. In June 18, 2008, Appellant filed lawsuit to get the Court help him to get Defendant, Eunice Agbor pay him an estimated sum of $23,000 that resulted from the $8000 loan Plaintiff gave the Defendant in May 5, 1997, which Defendant has refused to refund since then. If defendant has paid Appellant, Me Okere would not have advised Judge D Metria Benson during trial that Appellant has not been paid. Defendant would not have been going to Appellant s house asking him to withdraw this case for her to settle Appellant later. Judge Benson was told this in

14 Court. Defendant did not deny this statement. 10 Because Appellant s transaction with Agbor was a legal agreement between two mature adults, each party to this agreement has to perform according to the terms of this agreement. Appellant gave a loan-a consideration to Defendant as she demanded, she accepted the loan and she has the capacity to do this transaction, but has refused to refund the loan she borrowed from Appellant to compensent him. All the key elements of a contract such as (i) Agreement, (ii) Consideration (the loan), (iii) Capacity or free consent, were met in this transaction between Appellant and Agbor. The Defendant has failed to discharge her duty in this contract. Appellant has the right to seek redress. This is why Appellant filed this Appeal seeking the help of High Court to ask Defendant to pay Appellant.. When the STATEMENT OF FACTS of this case are carefully reviewed, Judge D Metria Benson s insufficient evidence to support Appellant s allegations that Defendant Agbor has outstanding debt due and owing to Appellant cannot stand the test of common sense and legal principles for written contract. Eunice Agbor should pay the Appelant the over $ she now owes him. Judge D Metria Benson s Final Decision against Appellant, that there is insufficient evidence to support Appellant s allegations that Defendant Agbor has outstanding debt due and owing to Appellant is wrong and should be reversed and rendered. ARGUMENT Judge D Metria Benson violated the simple rule of preponderance of evidence in non criminal matter like this one by ruling against the Defendant, Felix Ugwonali

15 11 after Appellant fulfilled the Judge s mandate that the burden of proof lay with the Appellant to show that Appellant has not been paid. In this case between Appellant, Felix Ugwonali and the Defendant, Eunice Agbor, Appellant fulfilled his own end of the legal contract but the Defendant, Eunice Agbor did not and has fulfill her own end of the agreement. Both the Defendant s written First Amended Answers to Appellant s lawsuit on page of CR and her testimony in Court, and her witness, her junior brother, Odili Madubuokwu who was still in Nigeria in June 1997 but still testified falsely in Court under oath, that he accompanied her sister to a gas station to pay Appellant had nothing to show that they have been truthful in every matter relating to this loan that Defendant Eunice Agbor took from Appellant. Why Defendant should go to a gas station to pay Appellant $6000 for the $8000 she borrowed in Appellant s home, is very strange, irrational and demonstrated that Defendant entered into this agreement without a genuine intention to fulfill the terms of this agreement but showed a planned attempt to deprive Appellant his hard earned money. Appellant made this money driving taxi from 1980 to This is in spite of the fact that Appellant has BS from UTD and both MBA and Ph.D. from UNT. These degrees were destroyed when Dr. John Eddy of UNT plagiarized my Dissertation book and made sure that I never got a professional job, so that I will be frustrated and return to Nigeria so that he would be printing this book as his. This is in spite of the fact that I am a US citizen with five children to take care of. This is why these two Defendants described me as a professional taxi cab driver in Answeres to my lawsuit.

16 12 Defendant Agbor in her undated and partially copied handwritten Answers on page of CR stated, I am to explain what happened between Dr Felix Ugwonali and myself went to him and borrowed the of $8000 around May but the money was refunded to him on June 20 th 1997 I mean the last payment was $2000 which I withdrew prior to the June 20 th that I gave the remaining $6000 to his hand but I do not ask him for the title I gave him, I got but did not worry because the car I gave to my employee to drive and he got in the wreck and it was empounded not have it any more. Appellant, Defendant, Eunice Agbor and Me Okere always made sure lender signs the promissory note as their standard practice when we lend or borrow money from each other. See Appendix E and F. Defendant claimed to have paid Appellant $6000 in June 20, 1997, and paid him $8000 in June 29, 1997, which payment does she want us to believe to be true? If Appellant told Defendant that her check was missing when she claimed to have paid Appellant, Defendant would have insisted that Appellant gave her receipt to protect herself. Defendant knows that she never paid Appellant back the loan she took from Appellant. Appellant does do not know where Defendant got the money to pay Appellant when she said that she saved the $100,000 insurance death benefit of her late husband, Harrison Agbor, for their children s education. From the statements of payments to Appellant, it is not hard to find out that the Defendant was telling a big lie about paying Appellant, his wife or both of them. It is not hard to see why Defendant will not pay Appellant because Defendant is a habitual debtor, self-centered, callous. and uncaring person

17 13 The house she and her husband lived before her husband was killed in 1995 was foreclosed for non payment of rent for a whole year. The grocery shop her husband left for her was closed for non payment of rent. Her clothing store in Wynwood Shopping Center was closed for non payment of rent. Her clothing store at the Apparel Market near Stemmons Freeway was closed for non payment of rent. This is when Defendant Eunice claimed to have refunded the $8000 she borrowed from Appellant barely one month after she got this loan. Defendant sold the collateral she gave Appellant but in her handwritten Answers on page and page of CR, she told a lie there. By saying that the man who wrecked the car was her worker Henry Anosike, Defendant s third husband was arrested and ultimately deported to Nigeria because Eunice Agbor told him to ignore Government ban on her grocery shop from accepting Food Stamp. These testimonies about Defendant Agbor s dealings with people that Appellant stated here are valid argument to buttress Appellant s assertion that Defendant never cares about legal contracts or obligations or cares about Government laws. Appellant sued Me Okere because he took over Eunice Agbor s house as his own, a house Eunice Agbor claimed that she should have used the equity in it to pay Appellant the over $ she now owes Appellant. Judge D Metria Benson s ruling against Appellant in this case, by stating that there was insufficient evidence that Agbor has outstanding debt due and owing to the Appellant, Felix Ugwonali, violates the simple contract rule where parties to a Legal contract must try to fulfill the terms of their contract.

18 The Defendant should be found guilty for reneging in her obligation to 14 pay Appellant back the loan he made to her. Since Agbor has failed to live up to her contractual obligation to pay back the loan Appellant made to her, Judge D Metria Benson s Final Decision in this case, should be reversed and rendered. CONCLUSION Appellant, Felix Ugwonali says the Final Decision by Judge D Metria Benson denying him compensation for the $8000 loan he gave Defendant, Eunice Agbor and the accrued interest from the loan is wrong in equity and contract law. This decision is based on wrong assumptions such as that Appellant s lawsuit was based on, allegations which are far from the truth. The Judge s idea that Appellant s claim was insufficient without saying what it lacks is a miscarriage of justice. Appellant s lawsuit against the Defendant, Eunice Agbor to pay him back the over $23,000 as a result of this loan and all evidence shown here by Appellant that he has not been paid back his $8000 and the accrued interest, should be upheld by the Court of Appeals. Judge D Metria Benson s Final Decision should be reversed and rendered. PRAYER Wherefore, Felix Ugwonali requests that the Court of Appeals for the 5 th District of Texas at Dallas, Texas, find that Appellant s lawsuit against Agbor seeking to be paid back the loan of $8000 plus accrued interest that now amounts to over $23,000 should be granted. Judge D Metria Benson s Final Decision is wrong since Defendant, Eunice Agbor is lacking in her contractual responsibility to Appellant and should be made to pay

19 15 Appelllant what she owes him, awarding Appellant, his attorney fees and costs and costs for this appeal and grant Appellant such other relief at law or in equity, to which Appellant may be justly entitled. Respectfully Submitted, Felix Ugwonali, Ph.D Glengreen Drive, Dallas, Texas Tel. Not an Attorney, Representing himself. CERTIFICATE OF SERVICE I certify a true copy of Brief of Felix Ugwonali was sent by certified mail, return receipt requested to Eunice Agbor & Me Okere, Defendants of 402 Appomatox Drive. Mesquite, Texas and 701 Bette Drive, Mesquite, Texas respectively Felix Ugwonali, Ph.D.