Preview
Filed
09 December 23 A9:53
Amalia Rodriguez-Mendoza
District Clerk
Travis District
NO. _D-1-GN-09-004373
WHEELER COATINGS ASPHALT, LP § IN THE DISTRICT COURT OF
§
vs. §
§ TRAVIS COUNTY, TEXAS
§
MIKE WEYNAND dba § seist
WEYNAND BUILDERS § JUDICIAL DISTRICT
PLAINTIFF'S ORIGINAL PETITION
WHEELER COATINGS ASPHALT, LP, Plaintiff, complains of WEYNAND BUILDERS,
Defendant, and would show the Court as follows:
I
Discovery
Pursuant to the Texas Rules of Civil Procedure, discovery is intended to be conducted under
Level 1
IL
Parties
Plaintiff is a Texas corporation, having its principal place of business at 3099 North IH 35,
Round Rock, Texas, 78664.
Defendant, Mike Weynand dba Weynand Builders (“Weynand”), may be served at 2201
North Lamar, Suite 220, Austin, Texas 78705, or 3423 Bee Cave Road, Bldg. B, Austin, Texas
78746.
Ii.
Sworn Account
In the usual course of business, Plaintiff sold to Weynand one or more items of goods,
merchandise, or services, as shown on the attached Statement of Account. In this Petition, these
goods, merchandise, and services will be referred to as the “Items.” Weynand accepted the Items
and became bound to pay the invoiced amount, which are reasonable, usual, and customary prices
Plaintiff's Original Petition Page 1for the Items. These accounts represent a transaction or a series of transactions on which a
systematic record has been kept.
IV.
Debt
Plaintiff has fully performed its part of the parties’ agreements. Weynand has defaulted in
making the required payments on its accounts. The principal balance due to Plaintiff by Weynand
on its account is $1,466.50, after all just and lawful offsets, credits, and payments have been
allowed. Plaintiff has demanded payment of the amount owed and Defendant has failed and refused
to pay. All conditions precedent has been performed or have been incurred necessary to maintain
this action to collect these damages.
V.
Quantum Meruit
In addition to, or in the alternative, Plaintiff has provided the Items to Defendant. Asa direct
result of those items, a benefit was conferred upon the Defendant, and Defendant received the items.
Defendant has accepted these benefits, and Plaintiff reasonably expected payment for it. The
reasonable value of such items, after all just and lawful offsets, credits, and payments have been
allowed is $1,466.50. Plaintiff has presented a claim for that amount to the Defendant, and
Defendant has failed and refused to pay the claim. Defendant will be unjustly enriched if allowed to
retain the benefit without paying for these items.
VI
Breach of Contract
In addition to, or in the alternative, Plaintiff seeks damages for breach of contract. Plaintiff
has fully performed its contractual obligations under the parties’ agreements. In consideration of
Plaintiff performing such work and providing services and materials, Weynand agreed to timely and
fully pay Plaintiff for such items. However, Weynand has failed and refused, and continues to fail
Plaintiff's Original Petition Page 2and refuses to pay the amount owed to Plaintiff. Because of Weynand’s breach of contract, Plaintiff
has suffered the above damages which Defendant is liable, plus prejudgment and postjudgment
interest at the rate of 18% per annum or at the highest rate allowed by law.
VIL
Failure to Promptly Pay
In addition to, or in the alternative, Defendant has committed an inexcusable violation of
Chapter 28 of the Texas Property Code by failing to make prompt payment to Plaintiff regarding
improvements to real property covered by the parties’ agreements. As a result of Defendant’s
statutory violations, Plaintiff has incurred, and will continue to incur, costs and expenses, and has
suffered and will continue to suffer, direct and consequential damages in an amount currently
unknown to Plaintiff, but which damages include interest on the overdue payments at the rate of
1%% per month as allowed by Section 28.004 of the Texas Property Code.
Vill
Texas Construction Trust Fund Act
In addition to, or in the alternative, based on information and belief, Plaintiff alleges that
Defendant has committed an inexcusable violation of Chapter 162 of the Texas Property Code,
known as the Texas Construction Trust Fund Act, by fraudulently and tortiously misapplying trust
funds. Based on information and belief, Defendant is the trustee of these funds in the form of money
received for the purpose of improving the real property which was the subject of the parties’
agreements. Based on information and belief, Plaintiff alleges that Defendant breached its fiduciary
duty as trustee by intentionally, knowingly, and with intent to defraud, retain such funds without
fully paying all current and past due obligations incurred by Defendant to Plaintiff, a beneficiary of
those trust funds as a result of the work performed under the parties’ agreements. Consequently,
Plaintiff seeks to recover from Defendant actual, exemplary, and statutory damages as allowed by
Plaintiff's Original Petition Page 3law for such violations.
Ix
Rule 193.7 Notice
Pursuant to Rule 193.7 of the Texas Rules of civil Procedure, Plaintiff hereby gives actual
notice to all Parties that any and all documents produced may be used against any Party producing
the document at any pretrial proceeding and/or at the trial of this matter without the necessity of
authenticating the documents.
Xx.
Attorney’s Fees
Defendant’s acts and omissions have resulted in damages described herein. Additionally, as a
result of Defendant’s conduct, Plaintiff was required to retain the undersigned law firm. Plaintiff
seeks to recover its reasonable and necessary attorney's fees and costs as allowed by law. All
prerequisite demands for recovery of attorney’s fees and costs have been made. Therefore, Plaintiff
seeks to recover from Defendant its reasonable and necessary attorney’s fees and costs through the
trial of this lawsuit, and a further and conditional award of attorney's fees and costs for any appeal
that may be taken.
PRAYER
Plaintiff prays that Defendant be cited to appear and answer herein, and that Plaintiffrecover
from Defendant as follows:
1, The principal amount owed and consequential damages;
2. Prejudgment and postjudgment interest allowed by law;
3 Exemplary and statutory damages as allowed by law;
4 Costs of Court; and
5 Such other and further relief, equitable or legal, to which Plaintiff may be justly
entitled
Respectfully submitted,
Plaintiff's Original Petition Page 4GOSSETT, HARRISON, MILLICAN,
STIPANOVIC & DEADMAN, P.C.
P.O. Drawer 911
San Angelo, TX 76902
(325) 653-3291/Telecopier No. (325) 655-6838
By: __\s\ Paul D. Stipanovic
Paul D. Stipanovic
State Bar No. 00795669
ATTORNEYS FOR PLAINTIFF
Plaintiff's Original Petition Page 5NO.
WHEELER COATINGS ASPHALT, LP ' IN THE DISTRICT COURT OF
vs, '
' TRAVIS COUNTY, TEXAS
MIKE WEYNAND dba '
WEYNAND BUILDERS ' JUDICIAL DISTRICT
= «Ay
STATE OF TEXAS '
COUNTY OF WILLIAMSON '
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared the
undersigned Affiant, who swore on his oath that the following facts are true and correct:
1, Mynameis Jack Wheeler, Lam the President of J. W. Coatings Management, L.L.C,
the General Partner of Wheeler Coatings Asphalt, LP, As President, I have care,
custody, and control of the records concerning the account of Mike Weynand dba
‘Weynand Builders (“Weynand”), Defendant in this lawsuit.
2, The records reflect that the principal amount owed by Weynand is $1,466.50,
excluding interest and attorneys fees, that is due and payable to Plaintiff.
3. The account attached to my Affidavit is within my personal knowledge ands trueand
correct. The account reflects the principal amount owed by Woynand. after all just
and lawful offsets, credits, and payments have been allowed,
4. Payment for this amount is owed and has not been tendered,
Further Affiant saith not.
WHEELER COATINGS ASPHALT, LP
by its General Partner, J.W, Coatings
Management,
By:
JAGK WHEELER, President
Page tSWORN TO AND SUBSCRIBED BEFORE ME, under my official hand and seal of office
this A{_ day of December, 2009, by JACK WHEELER, as President,
Qua
Ce My Commission Expires
i FEBRUARY 01, 2043.
Page 2YoY i oO
paysles KW14251T.0.
Whaler Coatings Asphalt, L.P. . Ff e/t7/2007 2
3099 NIH 3 Rage 11
ROU KTX 78664-2407
Bill To: Ship To:
WEYNAND BUILDERS WEYNAND BUILDERS:
2201 NORTH LAMAR 2201 NORTH LAMAR
SUITE 220 SUITE 220
AUSTIN TX 78705 AUSTIN TX 78705
Purchase Order No. J cdstonierio 2] Shipaing mathad | Payment Terns ~~ [Useation =
PEARL STREET AT Wel WEYNOOT UPSG DUE UPON REGEIPT|2209 PEARL
item Number ‘Dasenplion Gow —“Buaniity [Une Price [en Puce
HANDICAP SIGNS | HANDICAP SIGNS EACH 100 | ssao00] $40.00
DELIVER AND INSTALL 6 HANDICAP
SIGNS WALL MOUNTED
STENCILS, STENCILS EACH 1.00 | 528000} $2,960.00
94-12 NUMBERED STENCILS
CONCRETE WHEEL STO CONCRETE WHEEL STOPS: EACH 4.00 $380.00] $350.00
DELIVER AND INSTALL 10 CONCRETE
WHEEL STOPS
NEW LAY-OUT STRIPING] NEW LAY-OUT STRIPING EACH 1.00 $1,050.00 $1,050.00
STRIPING IS BASED ON 1 MOB, EACH
ADDITIONAL IS $360.00 PER TRIP, WE
ARE NOT RESPONSIBLE FOR CLEANING
OF SURFACE. STRIPING INCLUDES THE
FOLLOWING: STRIPES, HANDICAP
‘SYMBOLS, AND HASHOUTS.
eh / 11/07
4a9
[Suibtotet $4,200.09,
Thank Youl Tax. ‘30,00
Total $4,290.00Wheeler Coatings Asphalt, L.P.
3099 N 1H 36
ROUND ROCK TX 78664-2407
Bill To: Ship To:
WEYNAND BUILDERS, WEYNAND BUILDERS
‘SUITE 220
2201 NORTH LAMAR
AUSTIN TX 78705
2201 NORTH LAMAR
SUITE 220
AUSTIN TX 78705
Purchase Order No. | Customer io “as [Shipping Method [Payment Torma [Location
701 WEST 20TH STREI| WEYNOO!
PSC DUE UPON RECEIPT} 701 west 25TH STREET
Hem Number
Besetipuon. <
Yorn:
“Buantigy
Unit Price
xi Piice.
STENCILS
NEW LAY-OUT STRIPING|
HANDICAP SIGNS,
CONCRETE WHEEL STO!
STENCILS,
198 12" NUMBERED STENCILS
NEW LAY.OUT STRIPING
NEW LAY OUTIS BASED ON 4
MOBILIZATION. EACH ADDITIONAL
TRIP WILL BE $960.00 PER TRIP.
‘STRIPING INCLUDES THE FOLLOWING:
‘STRIPES, HANDICAP SYMBOLS,
HASHOUTS, COMPACT STENCILS, AND
CROSSWALKS,
HANDICAP SIGNS
DELIVER AND INSTALL 12 HANDICAP
SIGNS WALL MOUNTED
CONCRETE WHEEL STOPS.
DELIVER ANO INSTALL 3 CONCRETE.
WHEEL sToPS
pe tojajo?
"AQe}>
SF
(Ww
EACH
EACH
1.00)
1.00
1.09
$9,476.00,
$1,760.00
$1,080.00
$108.00
$3,475.00
$1,760.00
$1,080.00
‘$105.00
Sut if 8 410.00
Thank Youl an $8410.00
Total $8,440.00Lo Q o
iavolce. * TKWi4244T 0,
Wheoler Coatings Asphalt, L.P, ot Ss feria/2007
3099 N.1H 35 Page [4
ROUND ROCK TX 78664-2407
Se
Bill To: Ship To:
WEYNAND BUILDERS WEYNAND BUILDERS
2201 NORTH LAMAR 2201 NORTH LAMAR
‘SUITE 220 SUITE 220
AUSTIN TX 78705 AUSTIN TX 78705
‘TShippiig Method [payment Terms Location. =
UPSG [DUE UPON RECEIPI|2200 PEARL ST.
Mein Numbor ion Buentiy [unitprce [ext Price
STENCILS STENCILS EACH 400 | $2,000.00] $2,000.00
80 SPACES 12" NUMBERED STENCILS
HANDICAP SIGNS HANDICAP SIONS EACH 100 | ss400a) $540.00
DELIVER AND INSTALL SIX HANDICAP
‘SIGNS WALL MOUNTED
CONCRETE WHEEL STO# CONCRETE WHEEL STOPS EAGH 1.00 | $3600] $360.00
DELIVER ANO INSTALL 10 CONCRETE
WHEEL STOPS,
NEW LAY-OUT STRIPING] NEW LAY-OUT STRIPING EACH 1.00 | $1,075.00] $1,075.00
NEW LAYOUT IS BASED ON ONE,
MOBILIZATION. EACH ADDITIONAL
MOBILIZATION WILL GOST AN EXTRA
{$250.00 PER MOBILIZATION. WE ARE
NOT RESPONSIBLE FOR CLEANING
‘SURFACES PRIOR TO PAINT
APPLICATION.STRIPING INCLUDES THE lok yaa tg?
FOLLOWING: STRIPES, HANDICAP @
‘SYMBOLS, HASH REQ -
Sb a,
Subtotal $3,905,00
Thank Youl Tax $0.00"
Total $9,905.00