_____________________________________________________________________________________________

DEFENDANTS MOTION FOR SUMMARY JUDGMENT Page 1

CAUSE NO. 11-05188
INAYATALI RAJANI and IN THE DISTRICT COURT
THE RAJANI GROUP,

Plaintiffs,

vs. 193
RD
JUDICIAL DISTRICT

GQ ENTERPRISES CORPORATION,
CHIRAG PATEL, Individually, and
POPAT M. PATEL, Individually,

Defendants. DALLAS COUNTY, TEXAS

DEFENDANTS MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Defendant GQ ENTERPRISES CORPORATION (herein GQ or
Defendant), and moves for summary judgment against Plaintiffs INAYATALI RAJANI and
THE RAJANI GROUP (herein Rajani or Plaintiffs) on their causes of action, and in support
of the motion shows the following:
A. PROCEDURAL BACKGROUND
On April 25, 2011, Plaintiffs filed their petition alleging that Defendants breached their
contract with Plaintiffs by failing to pay commissions Plaintiffs believed were owed under two
real property contracts, namely a Commercial Contract-Improved Property and a Commercial
Real Estate listing Agreement Exclusive Right to Sell (together Purchase Contracts).
Defendants, CHIRAG PATEL and POPAT PATEL were non-suited and the action continued
against GQ exclusively. On February 9, 2012, this Court granted a no-answer default judgment
against GQ. Defendant subsequently filed a restricted appeal. The Court of Appeals agreed with
GQ that there was error apparent on the record and Plaintiffs evidence, primarily the contracts
themselves, were insufficient to create liability. On May 22, 2014, the Court of Appeals rendered
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DEFENDANTS MOTION FOR SUMMARY JUDGMENT Page 2
its opinion reversing and remanding for further proceedings.
B. OVERVIEW OF MOTION
As the Court of Appeals noted in their opinion, the Purchase Contracts do not support
Rajanis breach of contract claim. Rajani simply cannot establish a breach of contract claim
resulting in liability against GQ. Moreover, assuming for arguendo they could establish a breach,
Rajani executed a full and final release of such claims with GQ.
1
To proceed with such claims after
signing a release is frivolous and only intended to harass and fraudulently extort monies from GQ.
GQ has been forced to spend thousands of dollars in order to defend and protect their assets as a
result of Rajanis willful and intentional filing of a frivolous claim with no basis in fact or law.
GQ now seeks summary judgment and asks this Court to dismiss Rajanis causes of action
with prejudice and grant GQs summary judgment and request for reasonable and necessary
attorneys fees. GQ will show that they are entitled to summary judgment and the relief requested
as a matter of law.
C. FACTS OF THE CASE
The parties entered into the Purchase Contracts for the sale of commercial real estate
located at 8015 and 8017 Glenview Dr., North Richland Hills, Texas 76180. However, the buyer,
Saleem Rajani and Rajani Holdings, Ltd. (together herein Rajani Holdings), backed out of the
sale before closing. GQ then agreed to return the buyers earnest money and Rajani, GQ, and the
alleged buyer-Rajani Holdings executed a full and final release (herein Release) between the
parties.
D. PLEADINGS AND OTHER DOCUMENTS INCORPORATED BY REFERENCE
IN SUPPORT OF MOTION
In support of this Motion, GQ asks the Court to take judicial notice of the pleadings on file
1
See Release attached as Exhibit 1.
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DEFENDANTS MOTION FOR SUMMARY JUDGMENT Page 3
with the Court and the Exhibits attached thereto, and in support further directs the Court to the
following summary judgment evidence, which is attached in support of GQs Motion for Summary
Judgment.
1. Release executed by the parties;
2. Court of Appeals Opinion;
3. Affidavit of William J. Brotherton;
4. Commercial Contract-Improved Property; and
5. Commercial Real Estate listing Agreement Exclusive Right to Sell.
The Defendant includes the summary judgment evidence in an appendix filed with this
Motion and incorporates the evidence into this Motion by reference.
E. RULE 166a(c) SUMMARY JUDGMENT STANDARD
In a motion for summary judgment, the Movant must meet its summary judgment burden
by establishing that no genuine issue of material fact exists and that the Movant is entitled to
judgment as a matter of law.
2
The burden of proof is on the Movant, and all doubts about the
existence of a genuine issue of material fact are resolved against the Movant.
3
The court must
view the evidence and its reasonable inferences in the light most favorable to the non-movant.
4
A
matter is conclusively established if reasonable people could not differ as to the conclusion to be
drawn from the evidence.
5
F. DEFENDANT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW
2
TEX. R. CIV. P. 166a(c); S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215, 45 Tex. Sup. Ct. J. 502 (Tex. 2002);
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678, 23 Tex. Sup. Ct. J. 7 (Tex. 1979).
3
S.W. Elec. Power Co., 73 S.W.3d at 215; Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223, 42 Tex. Sup. Ct. J. 927
(Tex. 1999); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47, 8 Tex. Sup. Ct. J.
374 (Tex. 1965).
4
Great Am., 391 S.W.2d at 47.
5
City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005)
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DEFENDANTS MOTION FOR SUMMARY JUDGMENT Page 4
GQ hereby asserts the affirmative defense of release.
6
Even if every fact pled by Rajani is
taken as true, GQ is entitled to summary judgment as a matter of law. Rajani released GQ from
any and all liability, regarding or relating to, the sale of the property at 8015 and 8017 Glenview
Dr., North Richland Hills, Texas 76180, and the Purchase Contracts associated therewith.
The Release is a contractual surrender by Rajani of their causes of action against GQ and
extinguishes any Rajani claims or causes of action the same way a judgment would.
7
The Release
executed by Rajani and GQ is a valid release between the parties supported by consideration. The
Release states, [t]he undersigned, Buyer and Seller releases each other, any broker, title company,
and escrow agent from any and all liability under the aforementioned contract. By executing the
Release, Rajani extinguished any causes of action that they may have had against GQ.
G. ATTORNEYS FEES
GQ is contractually entitled to recover all its attorneys fees related to the defense of this
lawsuit. Under Section 17 of the Commercial Contract-Improved Property it states the following:
ATTORNEYS FEES: If Buyer, Seller, any broker or escrow agent is a
prevailing party in any legal proceeding under or with relation to this contract or
this transaction, such party is entitled to recover from the non-prevailing parties all
cost of such proceeding and reasonable attorneys fees. This paragraph 17 survives
the termination of this contract.
8
Rajani and GQ are clearly parties to this contract and Rajanis lawsuit has been brought under or
is related to the contract. Therefore, should GQ prevail on this summary judgment, they are
contractually entitled to all their costs and reasonable and necessary attorneys fees, from the date
Rajani filed their Original Petition, including any and all costs and reasonable and necessary
attorneys fees associated with their successful appeal.
6
Release is specifically listed as a valid affirmative defense in Texas Rules of Civil Procedure 94.
7
See Dresser Indus. V. Page Pet., Inc., 853 S.W.2d 505, 508 (Tex.1993); Derr Constr. Co. v. City of Houston, 846
S.W.2d 854, 858 (Tex.App.Houston [14
th
Dist.] 1992, no writ).
8
See Purchase Contract attached as Exhibit 4.
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DEFENDANTS MOTION FOR SUMMARY JUDGMENT Page 5
GQ has incurred significant costs and legal fees in their defense of this suit and their appeal.
The affidavit of GQs attorney, attached as GQs Exhibit 3 establishes the following:
a. GQ incurred attorney fees regarding this suit that were reasonable and necessary;
b. GQ is entitled to attorney fees and expenses incurred regarding this suit in the
amount of $118,756.02;
c. If this case is appealed to the court of appeals, GQ is entitled to the additional
amount of $15,000.00; and
d. If this case is appealed to the Texas Supreme Court, GQ is entitled to the additional
amount of $7,500.00.
H. CONCLUSION
GQ seeks summary judgment and asks this Court to dismiss Rajanis causes of action with
prejudice and grant GQs summary judgment. GQ is contractually entitled to reimbursement of its
costs and reasonable and necessary attorneys fees associated with the defense of Rajanis claims.
Rajani entered into a valid Release with GQ. The Release extinguished any and all of GQs liability
to Rajani, perceived or otherwise, GQ may or may not have had regarding the sale of the
commercial property at 8015 and 8017 Glenview Dr., North Richland Hills, Texas 76180, and the
contracts related thereto. As such, GQ is entitled to summary judgment as a matter of law and the
relief requested herein.
I. PRAYER
WHEREFORE, Defendant requests that this matter be set for hearing, with notice to the
Plaintiffs, and that on the completion of the hearing, that the Court grant Defendants Motion for
Summary Judgment, and that GQ have the following:
1. Dismissal of all of Plaintiffs causes of action with prejudice.
2. Any and all reasonable and necessary attorneys fees associated with the defense of
Plaintiffs claims from the date of the original filing.
3. Any and all reasonable and necessary attorneys fees associated with Defendants
successful appeal.
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DEFENDANTS MOTION FOR SUMMARY JUDGMENT Page 6
4. Prejudgment interest as provided by law.
5. Postjudgment interest as provided by law.
6. Costs of suit.
7. Such other and further relief to which Defendant may justly be entitled.
Respectfully submitted,
BROTHERTON LAW FIRM
By:____________________________________
WILLIAMJ. BROTHERTON
STATE BAR NO. 00789989
WILLIAM@BROTHERTONLAW.COM
HEIDI S. WHITAKER
STATE BAR NO. 24045051
HEIDI@BROTHERTONLAW.COM
SHAWN M. BROTHERTON
STATE BAR NO. 24064956
SHAWN@BROTHERTONLAW.COM
STEVEN J. MANDERFELD
STATE BAR NO. 24057565
STEVE@BROTHERTONLAW.COM
2340 FM407, SUITE 200
HIGHLAND VILLAGE, TX75077
972-317-8700; FAX 972-317-0189
ATTORNEYS FOR DEFENDANT GQ
ORDER SETTING HEARING DATE
IT IS ORDERED that the hearing on Defendants Motion for Summary Judgment is set for
the _____ day ________________, 2014, at ___________ a.m. in the Courtroom of 193
rd
District Court in Dallas, Texas.
SIGNED ___ day of _________________, 2014.
_______________________________________
JUDGE PRESIDING
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DEFENDANTS MOTION FOR SUMMARY JUDGMENT Page 7
CERTIFICATE OF CONFERENCE
I hereby certify that have attempted to contact opposing counsel on numerous occasions to
discuss this suit and the potential to avoid unnecessary and costly court intervention. As of today,
opposing counsel has failed to respond or even return a phone call. Therefore this matter has been
placed before the Court.
____________________________________
William J. Brotherton
CERTIFICATE OF SERVICE
This is to certify that on this 28
th
day of August, 2014, a true and correct copy of
Defendants Motion for Summary Judgment was forwarded pursuant to the Texas Rules of Civil
Procedure to James Suggs, Suggs Law Firm, 800 West Airport Freeway, Suite 600, Irving, Texas
75062, Attorneys for Plaintiffs.
____________________________________
William J. Brotherton
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DEFENDANTS MOTION FOR SUMMARY JUDGMENT Page 8
PLAINTIFFS APPENDIX
LIST OF DOCUMENTS
Release Executed by the Parties......Exhibit 1
Court of Appeals Opinion ...Exhibit 2
Affidavit of William J. Brotherton ..Exhibit 3
Commercial Contract-Improved Property....Exhibit 4
Commercial Real Estate listing Agreement Exclusive Right to SellExhibit 5
56
EXHIBIT 1
AFFIRM in Part, REVERSE in Part, and REMAND; Opinion Filed May 22, 2014.
S
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01353-CV
GQ ENTERPRISES CORPORATION, Appellant
V.
INAYATALI RAJANI AND THE RAJANI GROUP, Appellees
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 11-05188
MEMORANDUM OPI NI ON
Before J ustices Bridges, ONeill, and Brown
Opinion by J ustice ONeill
This is an appeal from the trial courts order granting appellees Inayatali Rajanis and
Rajani Groups motion to strike appellant GQ Enterprises Corporations answer and
subsequently granting appellees motion for default judgment. On appeal, appellant argues
default judgment was improper because there was no evidence to support it, the evidence
attached to the default judgment motion established the invalidity of the breach of contract claim,
and a hearing on unliquidated damages was mandatory. Appellant also challenges the striking of
its answer because the trial courts action amounted to a death penalty sanction without any
explanation, and the striking of the answer violated its due process rights. We affirm in part and
reverse and remand for further proceedings.
EXHIBIT 2
2
Background
On April 25, 2011, Appellees filed a breach of contract suit against appellant based on an
underlying agreement between the parties in which appellees would render the usual services of
a real estate broker in finding a suitable real estate site for appellant to purchase.
1
Appellees
argued they fully performed the promised services; however, appellant refused to pay under the
contract.
Chirag Patel, individually and on behalf of appellant, answered the lawsuit on J uly 1,
2011. The trial court entered an order on J uly 7, 2011 giving notice of intent to strike pleading
for failure of attorney to represent corporation if appellant corporation failed to file a proper
answer within thirty days. Appellant did not file an answer.
On J anuary 27, 2012, appellees filed a motion for default judgment based on appellants
failure to file an answer. The trial court denied the motion because the pro se corporate
answer, though procedurally defective, was sufficient to prevent a default judgment.
On February 1, 2012, appellees filed a motion to strike appellants answer. Shortly
thereafter, appellees filed an amended motion for default judgment. On February 9, 2012, in a
single order, the trial court first struck appellants answer and then granted appellees default
judgment motion. The court awarded appellees $78,000 in actual damages and $10,558.18 in
attorneys fees.
The following day, appellant filed its first amended answer with affirmative defenses. It
also filed a statement in opposition to the motion to strike its pro se answer and a
statement in opposition to appellees motion for default judgment. The record does not

1
Appellees original petition included claims against two individual defendants; however, those claims were nonsuited and not at issue on
appeal. Appellees also filed a first amended petition on June 3, 2011.
3
contain an order on these pleadings. Appellant filed its notice of restricted appeal on August 13,
2012.
Restricted Appeal
A restricted appeal is available for the limited purpose of providing a party who did not
participate at trial with the opportunity to correct an erroneous judgment. TEX. R. APP. P. 30.
The elements necessary to directly attack a judgment by restricted appeal are: (1) the appeal must
be brought within six months after the trial court signed the judgment; (2) by a party to the
lawsuit; (3) who did not participate in the hearing that resulted in the judgment complained of;
(4) who did not file a postjugment motion, request findings of fact and conclusions of law, or file
a notice of appeal; and (5) the error complained of showing the invalidity of the judgment must
be apparent from the face of the record. Id.; see also Norman Commcn, v. Tex. Eastman Co.,
955 S.W.2d 269, 270 (Tex. 1997). The face of the record, for purposes of review, consists of all
the papers on file in the appeal. Norman Commcn, 955 S.W.2d at 270. It is undisputed
appellant meets the first three requirements for review. The issue to resolve is whether appellant
established error on the face of the record.
Death Penalty Sanctions
In its third issue, appellant argues the trial court abused its discretion by striking its
answer, which amounted to a death penalty sanction, because the record does not indicate
appellant flagrantly abused the judicial process and a lesser sanction would not promote its
compliance with court rules.
A trial court has the authority to impose sanctions for the failure to comply with a pretrial
order. Koslows v. Mackie, 796 S.W.2d 700, 703 (Tex. 1990) (holding trial court did not abuse
its discretion by striking pleadings and rendering default judgment as sanction for violation of
pretrial order); Esty v. Beal Bank, S.S.B., 298 S.W.3d 280, 295 (Tex. App.Dallas 2009, no
4
pet.). In reviewing sanctions, we determine whether the trial court abused its discretion.
Koslows, 796 S.W.2d at 704. In determining whether the trial court abused its discretion, we
view the evidence in the light most favorable to the ruling and indulge every legal presumption
in favor of the ruling. Id. A trial court abuses its discretion in imposing sanctions when it acts
without reference to any guiding rules or principles. Id.
Appellant argues the trial court abused its discretion because the striking of its answer
was harsh under these facts, and there is an absence of any reasoning by the trial court. The
record reflects the trial court provided appellant with notice that Defendant GQ Enterprises
Corporations pro se Answer will be subject to being stricken, and Defendant GQ Enterprises
Corporation being subject to a Default J udgment, upon proper Motion by Plaintiff if it did not
file a proper answer within thirty days.
The trial courts reasoning for striking the answer is clear. After receiving notice,
appellant failed to file a proper answer within thirty days. Appellees waited over six months
before filing a motion to strike the answer, during which time appellant still could have filed a
proper answer but did not.
In Koslows, the Supreme Court of Texas upheld the trial courts order striking pleadings
and rendering a default judgment when a party failed to engage in an ordered attorney/party
conference and failed to submit a joint pretrial status report. 796 S.W.2d at 704. The court noted
other instances in which it approved striking of pleadings based on conduct such as (1) filing late
and incomplete discovery responses; (2) failing to attend depositions rescheduled by agreement;
and (3) failing to produce deponents, designate experts and produce documents as ordered by the
court. Id. (citing Vasquez v. Chem. Exch. Indus. Inc., 721 S.W.2d 284 (Tex. 1987); Plano Sav. &
Loan Assn v. Slavin, 721 S.W.2d 282 (Tex. 1986); Jarrett v. Warhola, 695 S.W.2d 8 (Tex.
App.Houston [14th Dist.] 1985, writ refd)). Thus, we cannot say the trial court acted without
5
reference to any guiding rules or principles when it struck appellants answer after giving notice
of its intent and after six months had passed since its notice.
Moreover, the trial court has inherent power to manage its docket. In re
Hereweareagain, Inc., 383 S.W.3d 703, 709 (Tex. App.Houston [14th Dist.] 2012, orig.
proceeding). Once the thirty-day deadline passed, it was within the courts discretion to manage
its docket, including striking the petition and granting appellees motion for default judgment.
Thus, we overrule appellants third issue.
In reaching this conclusion, we are likewise unpersuaded by appellants due process
argument. Appellant contends that because an answer was on file at the time appellees filed the
default judgment motion, it was entitled to a hearing before the trial court granted the default
judgment. See Bradford v. Bradford, 971 S.W.2d 595, 598 (Tex. App.Dallas 1998, no pet.)
(Once a defendant has made an appearance in a case, he is entitled to notice of a trial setting as
a matter of due process and a default judgment hearing is a trial setting.). However,
appellants argument dismisses the fact that the trial court struck its answer. Once the answer
was struck, the trial court acted within its discretion by granting the default judgment. See
Morris v. Zesati, 162 S.W.3d 669, 672 (Tex. App.El Paso 2005, no pet.) (No advance notice
of a hearing is required for a no-answer default judgment.).
Although appellant argues the trial court should not have struck the answer and granted
the default judgment in the same order, appellant has failed to provide any case law to support its
position. Under these facts, regardless of whether the trial court struck the answer in a separate
order and then granted the default judgment in another order or granted them in the same order,
the outcome was the same. At the time the trial court granted the default judgment, appellant did
not have an answer on file. Thus, it was not entitled to notice of any hearing. Id. Accordingly,
its due process rights were not violated. Appellants fourth issue is overruled.
6
No Answer Default Judgment
In its first, second, and fifth issues, appellant argues the trial court erred in granting
default judgment because of errors apparent on the face of the record. Specifically, appellant
argues (1) there is no evidence to support the default judgment; (2) the evidence attached to the
default judgment establishes the invalidity of appellees breach of contract claim; and (3) a
hearing on unliquidated damages was mandatory.
First, having concluded the trial court did not abuse its discretion by striking appellants
answer, no answer was on file when the trial court considered appellees motion for default
judgment. Accordingly, despite appellants arguments to the contrary, we shall apply the
standard of review for a no-answer default judgment.
A no-answer default judgment operates as an admission of the material facts alleged in
the plaintiffs petition, except for damages. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80,
83 (Tex. 1992). So long as the facts set out in the petition allege a cause of action, then the
default judgment case is conclusively established. Chen v. Johnson, No. 02-12-00428-CV, 2013
WL 2339233, at *1 (Tex. App.Fort Worth May 30, 2013, no pet.) (mem. op.). When the
petition establishes a cause of action, an appellant is precluded from challenging the legal and
factual sufficiency of the evidence supporting liability in a no-answer default judgment. Holt
Atherton Indus., 835 S.W.2d at 83.
However, here, we agree with appellant that even accepting the facts in the pleadings as
true, appellees failed to establish a breach of contract claim against appellant. Appellees
attached as evidence to its first amended petition and motion for default judgment the
Commercial ContractImproved Property and the Commercial Real Estate Listing Agreement
Exclusive Right to Sell.
7
The exclusive right to sell agreement began on J anuary 29, 2009 and expired on J une 29,
2009. The agreement provides that the broker earns a fee when the broker procures a buyer
ready, willing, and able to buy all or part of the Property at the Listing Price or at any other price
acceptable to Seller. The record does not contain any evidence and there are no pleadings that
appellees, acting as broker, procured a ready, willing, and able buyer while the exclusive right to
sell agreement was in effect. Further, there is no evidence or pleadings that the parties agreed to
extend the agreement beyond J une 29, 2009. Rather, the evidence shows the parties did not enter
into the Commercial ContractImproved Property until October 12, 2009, which was after the
expiration of the exclusive listing agreement. Thus, the exclusive listing agreement is not
relevant to the breach of contract claim, and appellee is left only with the Commercial
ContractImproved Property to support its breach of contract claim.
However, like the exclusive right to sell agreement, the commercial contract does not
support appellees breach of contract claim either. That contract provides, At the closing of the
sale, Seller will pay Principal Broker a total cash fee of: 6.000% of the sales price. The contract
specifies closing of the sale will be on or before October 29, 2009. Although appellees
petition alleges the broker fully performed the promised services, there is no evidence the seller
or buyer performed or failed to perform under the contract. Specifically, there is no evidence or
pleadings that the contract ever closed. As such, the pleadings appellees rely on to support a
breach of contract claim are legally insufficient to create a cause of action resulting in any
liability against appellant. Without any evidence of liability, appellees cannot establish any
entitlement to damages. As such, the pleadings are legally insufficient to support appellees right
to default judgment based on appellants failure to answer. Thus, appellant has established error
on the face of the record. We sustain appellants second issue.
8
Having sustained appellants second issue, we need not consider issues one and five,
which challenge other alleged errors apparent from the face of the record. TEX. R. APP. P. 47.1.
Conclusion
We affirm the trial courts judgment to the extent it struck appellants answer. However,
because the trial court erred in granting appellees no-answer default judgment, we reverse and
remand the cause for further proceedings. See Armstrong v. Benavides, 180 S.W.3d 359, 364
(Tex. App.Dallas 2005, no pet.) (concluding that although an appellate court generally
reverses and renders when sustaining a legal sufficiency challenge, an exception is made in cases
involving default judgments because the facts have not been fully developed).







121353F.P05





/Michael J . O'Neill/
MICHAEL J . ONEILL
J USTICE

9
S
Court of Appeals
Fifth District of Texas at Dallas
J UDGMENT

GQ ENTERPRISES CORPORATION,
Appellant

No. 05-12-01353-CV V.

INAYATALI RAJ ANI AND THE RAJ ANI
GROUP, Appellees

On Appeal from the 193rd J udicial District
Court, Dallas County, Texas
Trial Court Cause No. 11-05188.
Opinion delivered by J ustice ONeill.
J ustices Bridges and Brown participating.

In accordance with this Courts opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial courts
judgment granting appellees Inayatali Rajanis and the Rajani Groups no answer default
judgment. In all other respects, the trial courts judgment is AFFIRMED. We REMAND this
cause to the trial court for further proceedings consistent with this opinion.

It is ORDERED that each party bear its own costs of this appeal.

J udgment entered this 22nd day of May, 2014.




/Michael J . O'Neill/
MICHAEL J . O'NEILL
J USTICE

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EXHIBIT 4
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EXHIBIT 5
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