Preview
FILED
DALLAS COUNTY
5/8/2018 9:56 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE
CAUSE NO.
NO. DC-18-00505
DC-18-00505
WILLIE
WILLIE F.
F. HUGHES,
HUGHES, JR. JR. d/b/a
d/b/a §
§ IN THE DISTRICT COURT
THE DISTRICT COURT
HMC ASPHALT
HMC ASPHALT & CONCRETE
CONCRETE §
§
Plaintiff
Plaintiff §
§
§
§
v.
v. §
§ DALLAS
DALLAS COUNTY,
COUNTY, TEXAS
TEXAS
§
§
§
§
H5R,
H5R, L.L.c..,
L.L.C., §
§
Defendant
Defendant §
§ 68th
68th JUDICIAL
JUDICIAL DISTRICT
DISTRICT
COUNTER-DEFENDANT'S
COUNTER-DEFENDANT'S TRIAL BRIEF
TRIAL BRIEF IN SUPPORT 0F
SUPPORT OF COUNTER-
COUNTER-
DEFENDANT‘S
DEFENDANT'S SPECIAL EXCEPTIONS
SPECIAL EXCEPTIONS FILED
FILED IN ITS
ITS
ORIGINAL ANSWER
ORIGINAL ANSWER TO
TO COUNTER-CLAIM
COUNTER-CLAIM
T0 THE
TO HONORABLE
THE HONORABLE JUDGE
JUDGE OF SAID
OF SAID COURT:
COURT:
NOW
NOW COMES
COMES Plaintiff,
Plaintiff, Willie
Willie F.F. Hughes,
Hughes, Jr.,
Jr., a named
a named Counter-Defendant,
Counter-Defendant, filing
filing
herewith
herewith his
his "Trial
"Trial Brief
Brief in
in Support
Support of of Special
Special Exceptions"
Exceptions" filed
filed in
in Counter-Defendant's
Counter-Defendant‘s
Original
Original Answer
Answer in this
in this case.
case.
INTRODUCTION
INTRODUCTION
1.
1. Plaintiff instituted
Plaintiff instituted this
this suit
suit on January
January 12,
12, 2018 seeking
seeking to
to recover
recover for
for substantial
substantial
concrete
concrete work ("work")
work ("work") performed
performed on real
real property
property owned
owned by by Defendant,
Defendant, aa Texas
Texas limited
limited
liability company,
liability company, under an oral
under an oral agreement
agreement with
with Defendant.
Defendant Defendant
Defendant filed
filed anan Answer
Answer
and Counter—Claim
and Counter-Claim on February
February 24,2018.
24, 2018.
2.
2‘ The work
work at
at issue
issue started
started in
in July,
July, 2017
2017 and
and was completed
completed on or or about
about November
November 17,
l7,
2017.
2017,
3.
3‘ The total
total contract
contract price
price agreed
agreed upon
upon was $48,419.25.
$48,419.25.
4.
4, Defendant
Defendant was in the
in the business,
business, among
among other
other activities,
activities, of purchasing
ofpurchasing real
real properties
properties on
speculation
speculation and refurbishing
and refurbishing them
them to
to resell.
resell‘
DEFENDANT'S
DEFENDANT'S SPECIAL
SPECIAL EXCEPTIONS
EXCEPTIONS FILED
FILED IN ITS ORIGINAL
ORIGINAL ANSWER
ANSWER
TO COUNTER-CLAIM,
COUNTER-CLAJl\1, PAGEPAGE 1 l
5.
5. Plaintiff performed
Plaintiff had performed other
other concrete
concrete work
work for
for Defendant
Defendant prior
prior to
t0 the
the one at issue.
at issue.
6.
6. Defendant
Defendant requested
requested a a bid for the
bid for the work at issue
work at issue for which
for which Plaintiff provided
Plaintiff provided aa turnkey
turnkey
bid
bid of$48,419.25
of $48,419.25 as
as shown
shown on Exhibit
0n Exhibit "A"
"A" of "Plaintiffs
of"Plaintiff‘s First Amended
First Amended Original
Original
Petition."
Petition"
7.
7. The entire job
entire job was performed
was performed in
in sections.
sections. After
Afier an
an initial
initialsection
section 0fof concrete
concrete work
work
was completed,
completed, Plaintiff requested
Plaintiff requested aa draw
draw toto which Defendant
which Defendant stated his
stated his lender
lender wanted
wanted
more
more work
work completed
completed to
to issue
issue the
the draw.
draw, Thus,
Thus, the job
the job proceeded
proceeded without
without Defendant
Defendant
making
making initial
an initial payment,
payment, leaving
leaving Plaintiff
Plaintifftoto continue
continue with the
with the work
work while
while continuing
continuing toto
request
request aa draw,
draw, over a period
a period ofof 4 months,
months, all of
all of which
which work Defendant
work Defendant observed
observed and
approved.
approved.
8.
8. In
1n point of fact,
point of fact, Defendant
Defendant even asked
asked Plaintiff to
Plaintiff to perform
perform additional
additional concrete
concrete
work
work notnot covered
covered under
under the
the original bid,
original bid, which
which Plaintiff
Plaintiff completed
completed without
without
requesting
requesting additional
additional compensation.
compensation.
9.
9. After
Afier Plaintiff
Plaintiff finished
finished thethe work,
work, Defendant
Defendant then wanted
then wanted to
to "negotiate the
"negotiate the price"
price"
which
which had been previously
been previously agreed
agreed upon.
upon.
10.
10. date,
To date, Defendant
Defendant has
has neither
neither paid
paid nor
nor tendered
tendered any money
any money for the
for the work
work performed
performed
and never
never atat any
any time told Plaintiff
told Plaintifftoto stop work;
stop work; indeed
indeed asas stated,
stated, Defendant
Defendant even
even asked
asked
for
for additional
additional work
work toto be
be done
done which
which Plaintiff performed.
Plaintiff performed.
11.
11. Plaintiffs
Plaintiff‘s suit has
suit has been
been brought
brought to recover
t0 damages
recover damages for
for breach
breach of an oral
of an oral contract
contract for
for
providing
providing labor and
labor and materials
materials with
with the
the owner
owner 0fof real
real property and
property and has
has asserted
assefled both
both
constitutional
constitutional and statutory
statutory liens
liens for
for non-payment.
non-payment. Alternatively,
Alternatively, Plaintiff
Plaintiff seeks
seeks to
to
recover
recover his
his $48,419.
$48,419 25 under
25 under Quantum
Quantum Meriut.
Meriut.
DEFENDANT'S SPECIAL
DEFENDANT'S SPECIAL EXCEPTIONS
EXCEPTIONS FILED
FILED IN ITS ORIGINAL ANSWER
ORIGINAL ANSWER
T0
TO COUNTER-CLAIM,
COUNTER-CLAHVL PAGE PAGE 22
MAIN
MAIN ISSUE
ISSUE PRESENTED
PRESENTED
12.
12. Defendant
Defendant as Counter-Plaintiff
as Counter-Plaintiff alleges
alleges that
that Plaintiffs
Plaintiff‘s suit
suit is groundless
is groundless and brought
and brought
in bad
in bad faith
faith (see
(see paragraph
paragraph II).
ll).
13.
13. Thence,
Thence, Defendant
Defendant alleges
alleges that
that the
the Statutory
Statutory Lien filed
Lien filed was fraudulent
fraudulent in that
in that it
it
allegedly
allegedly "is not
"is not supported
supported by
by contract
contract or
0r other
other document
document that
that contains
contains the
the
Defendant's signature"
Defendant's signature“ (see
(see paragraph
paragraph IV).
IV).
14.
14. As shown above,
above, Defendant
Defendant contends
contends that there
that there must
must be aa contract
be contract in writing
in writing
containing
containing the
the owner's
owner's signature
signature to be
to be able
able to
to claim
claim a Statutory
a Statutory Lien
Lien under
under the
the
Mechanic's
Mechanic's Lien
Lien (Article
Law (Article 53, Texas
53, Texas Property
Property Code).
Code).
15.
15. As is shown
is shown below,
below, that
that is not
is not the
the law in Texas
in Texas for either
for either a Statutory
a Statutory Lien
Lien or for
or for a
a
Constitutional
Constitutional Lien which
which is also
is also pled by
pled by Plaintiff in asserting
Plaintiff in asserting his Mechanic's
his Mechanic's Lien
Lien rights.
rights.
ARGUMENTS/AUTHORITIES
ARGUMENTS/AUTHORITIES
16.
16. Counter-Defendant
Counter-Defendant files
files his
his special
special exceptions
exceptions to
to paragraphs
paragraphs II, and V
II, IV and Vofof
Counter-Plaintiffs
Counter—Plaintiffs Counter-Claim
Counter-Claim wherein
wherein it alleges
italleges aa "frivolous
"frivolous lawsuit"
lawsuit" (paragraph
(paragraph III
III
of Counter-Claim)
of Counter-Claim) and aa "Fraudulent
and "Fraudulent Lien"
Lien" (paragraph
(paragraph IV of Counter-Claim)
of Counter-Claim) predicated
predicated
on the
on the misplaced
misplaced notion
notion that
that to
to have a Constitutional
a Constitutional Lien
Lien or
or Statutory
Statutory Lien,
Lien, there
there must
must
be aa written
be written contract
contract signed
signed by
by the owner.
the owner.
17.
17. The Court
Court should
should strike
strike the
the paragraphs
paragraphs contained
contained in Counter-Plaintiff‘s
in Counter-Plaintiffs Counter-
Counter-
Claim
Claim referred
referred to
to in paragraph
in paragraph 16.
16. above
above because
because they
they have
have basis
no basis in law.
in law.
AUTHORITIES
AUTHORITIES
CONSTITUTIONAL
CONSTITUTIONAL LIEN
LIEN LAW
LAW
18.
18. Article
Article 16 Section
16 Section 37 of
37 of the
the Texas
Texas Constitution
Constitution provides
provides for the
for the following:
following:
DEFENDANT'S SPECIAL
DEFENDANT'S SPECIAL EXCEPTIONS FILED
EXCEPTIONS FILED IN ITS ORIGINAL
ORIGINAL ANSWER
TO COUNTER-CLAIM.
COUNTER-CLAIM, PAGE 33
"Mechanics,
"Mechanics, artisans
artisans and
and material
material men,
men, of every
of every class,
class, shall
shall
have
have a
a lien
lien upon
upon the
the buildings
buildings and
and articles
articles made oror repaired
repaired
by them
by for the
for the value
value of their
of their labor
labor done
done thereon,
thereon, or material
or material
furnished
filrnished thereon;
thereon; and the
and the Legislature
Legislature shall provide
shall provide by
by law
law
for the
for the speedy
speedy and efficient
and efficient enforcement
enforcement of said
of said liens."
liensl"
19.
19. Dallas
The Dallas Court
Court made clear
clear that
that under
under Article
Article 16 Section
16 Section 37 ofthe
37 of the Texas
Texas
Constitution,
Constitution, the
the validity
validity and
and enforceability
enforceability of aa Constitutional
of Constitutional Lien
Lien does
does not
not require
require a
a
written
written contract
contract between
between the
the owner
owner and the
and the laborers
Preview
FILED DALLAS COUNTY 5/8/2018 9:56 PM FELICIA PITRE DISTRICT CLERK CAUSE CAUSE NO. NO. DC-18-00505 DC-18-00505 WILLIE WILLIE F. F. HUGHES, HUGHES, JR. JR. d/b/a d/b/a § § IN THE DISTRICT COURT THE DISTRICT COURT HMC ASPHALT HMC ASPHALT & CONCRETE CONCRETE § § Plaintiff Plaintiff § § § § v. v. § § DALLAS DALLAS COUNTY, COUNTY, TEXAS TEXAS § § § § H5R, H5R, L.L.c.., L.L.C., § § Defendant Defendant § § 68th 68th JUDICIAL JUDICIAL DISTRICT DISTRICT COUNTER-DEFENDANT'S COUNTER-DEFENDANT'S TRIAL BRIEF TRIAL BRIEF IN SUPPORT 0F SUPPORT OF COUNTER- COUNTER- DEFENDANT‘S DEFENDANT'S SPECIAL EXCEPTIONS SPECIAL EXCEPTIONS FILED FILED IN ITS ITS ORIGINAL ANSWER ORIGINAL ANSWER TO TO COUNTER-CLAIM COUNTER-CLAIM T0 THE TO HONORABLE THE HONORABLE JUDGE JUDGE OF SAID OF SAID COURT: COURT: NOW NOW COMES COMES Plaintiff, Plaintiff, Willie Willie F.F. Hughes, Hughes, Jr., Jr., a named a named Counter-Defendant, Counter-Defendant, filing filing herewith herewith his his "Trial "Trial Brief Brief in in Support Support of of Special Special Exceptions" Exceptions" filed filed in in Counter-Defendant's Counter-Defendant‘s Original Original Answer Answer in this in this case. case. INTRODUCTION INTRODUCTION 1. 1. Plaintiff instituted Plaintiff instituted this this suit suit on January January 12, 12, 2018 seeking seeking to to recover recover for for substantial substantial concrete concrete work ("work") work ("work") performed performed on real real property property owned owned by by Defendant, Defendant, aa Texas Texas limited limited liability company, liability company, under an oral under an oral agreement agreement with with Defendant. Defendant Defendant Defendant filed filed anan Answer Answer and Counter—Claim and Counter-Claim on February February 24,2018. 24, 2018. 2. 2‘ The work work at at issue issue started started in in July, July, 2017 2017 and and was completed completed on or or about about November November 17, l7, 2017. 2017, 3. 3‘ The total total contract contract price price agreed agreed upon upon was $48,419.25. $48,419.25. 4. 4, Defendant Defendant was in the in the business, business, among among other other activities, activities, of purchasing ofpurchasing real real properties properties on speculation speculation and refurbishing and refurbishing them them to to resell. resell‘ DEFENDANT'S DEFENDANT'S SPECIAL SPECIAL EXCEPTIONS EXCEPTIONS FILED FILED IN ITS ORIGINAL ORIGINAL ANSWER ANSWER TO COUNTER-CLAIM, COUNTER-CLAJl\1, PAGEPAGE 1 l 5. 5. Plaintiff performed Plaintiff had performed other other concrete concrete work work for for Defendant Defendant prior prior to t0 the the one at issue. at issue. 6. 6. Defendant Defendant requested requested a a bid for the bid for the work at issue work at issue for which for which Plaintiff provided Plaintiff provided aa turnkey turnkey bid bid of$48,419.25 of $48,419.25 as as shown shown on Exhibit 0n Exhibit "A" "A" of "Plaintiffs of"Plaintiff‘s First Amended First Amended Original Original Petition." Petition" 7. 7. The entire job entire job was performed was performed in in sections. sections. After Afier an an initial initialsection section 0fof concrete concrete work work was completed, completed, Plaintiff requested Plaintiff requested aa draw draw toto which Defendant which Defendant stated his stated his lender lender wanted wanted more more work work completed completed to to issue issue the the draw. draw, Thus, Thus, the job the job proceeded proceeded without without Defendant Defendant making making initial an initial payment, payment, leaving leaving Plaintiff Plaintifftoto continue continue with the with the work work while while continuing continuing toto request request aa draw, draw, over a period a period ofof 4 months, months, all of all of which which work Defendant work Defendant observed observed and approved. approved. 8. 8. In 1n point of fact, point of fact, Defendant Defendant even asked asked Plaintiff to Plaintiff to perform perform additional additional concrete concrete work work notnot covered covered under under the the original bid, original bid, which which Plaintiff Plaintiff completed completed without without requesting requesting additional additional compensation. compensation. 9. 9. After Afier Plaintiff Plaintiff finished finished thethe work, work, Defendant Defendant then wanted then wanted to to "negotiate the "negotiate the price" price" which which had been previously been previously agreed agreed upon. upon. 10. 10. date, To date, Defendant Defendant has has neither neither paid paid nor nor tendered tendered any money any money for the for the work work performed performed and never never atat any any time told Plaintiff told Plaintifftoto stop work; stop work; indeed indeed asas stated, stated, Defendant Defendant even even asked asked for for additional additional work work toto be be done done which which Plaintiff performed. Plaintiff performed. 11. 11. Plaintiffs Plaintiff‘s suit has suit has been been brought brought to recover t0 damages recover damages for for breach breach of an oral of an oral contract contract for for providing providing labor and labor and materials materials with with the the owner owner 0fof real real property and property and has has asserted assefled both both constitutional constitutional and statutory statutory liens liens for for non-payment. non-payment. Alternatively, Alternatively, Plaintiff Plaintiff seeks seeks to to recover recover his his $48,419. $48,419 25 under 25 under Quantum Quantum Meriut. Meriut. DEFENDANT'S SPECIAL DEFENDANT'S SPECIAL EXCEPTIONS EXCEPTIONS FILED FILED IN ITS ORIGINAL ANSWER ORIGINAL ANSWER T0 TO COUNTER-CLAIM, COUNTER-CLAHVL PAGE PAGE 22 MAIN MAIN ISSUE ISSUE PRESENTED PRESENTED 12. 12. Defendant Defendant as Counter-Plaintiff as Counter-Plaintiff alleges alleges that that Plaintiffs Plaintiff‘s suit suit is groundless is groundless and brought and brought in bad in bad faith faith (see (see paragraph paragraph II). ll). 13. 13. Thence, Thence, Defendant Defendant alleges alleges that that the the Statutory Statutory Lien filed Lien filed was fraudulent fraudulent in that in that it it allegedly allegedly "is not "is not supported supported by by contract contract or 0r other other document document that that contains contains the the Defendant's signature" Defendant's signature“ (see (see paragraph paragraph IV). IV). 14. 14. As shown above, above, Defendant Defendant contends contends that there that there must must be aa contract be contract in writing in writing containing containing the the owner's owner's signature signature to be to be able able to to claim claim a Statutory a Statutory Lien Lien under under the the Mechanic's Mechanic's Lien Lien (Article Law (Article 53, Texas 53, Texas Property Property Code). Code). 15. 15. As is shown is shown below, below, that that is not is not the the law in Texas in Texas for either for either a Statutory a Statutory Lien Lien or for or for a a Constitutional Constitutional Lien which which is also is also pled by pled by Plaintiff in asserting Plaintiff in asserting his Mechanic's his Mechanic's Lien Lien rights. rights. ARGUMENTS/AUTHORITIES ARGUMENTS/AUTHORITIES 16. 16. Counter-Defendant Counter-Defendant files files his his special special exceptions exceptions to to paragraphs paragraphs II, and V II, IV and Vofof Counter-Plaintiffs Counter—Plaintiffs Counter-Claim Counter-Claim wherein wherein it alleges italleges aa "frivolous "frivolous lawsuit" lawsuit" (paragraph (paragraph III III of Counter-Claim) of Counter-Claim) and aa "Fraudulent and "Fraudulent Lien" Lien" (paragraph (paragraph IV of Counter-Claim) of Counter-Claim) predicated predicated on the on the misplaced misplaced notion notion that that to to have a Constitutional a Constitutional Lien Lien or or Statutory Statutory Lien, Lien, there there must must be aa written be written contract contract signed signed by by the owner. the owner. 17. 17. The Court Court should should strike strike the the paragraphs paragraphs contained contained in Counter-Plaintiff‘s in Counter-Plaintiffs Counter- Counter- Claim Claim referred referred to to in paragraph in paragraph 16. 16. above above because because they they have have basis no basis in law. in law. AUTHORITIES AUTHORITIES CONSTITUTIONAL CONSTITUTIONAL LIEN LIEN LAW LAW 18. 18. Article Article 16 Section 16 Section 37 of 37 of the the Texas Texas Constitution Constitution provides provides for the for the following: following: DEFENDANT'S SPECIAL DEFENDANT'S SPECIAL EXCEPTIONS FILED EXCEPTIONS FILED IN ITS ORIGINAL ORIGINAL ANSWER TO COUNTER-CLAIM. COUNTER-CLAIM, PAGE 33 "Mechanics, "Mechanics, artisans artisans and and material material men, men, of every of every class, class, shall shall have have a a lien lien upon upon the the buildings buildings and and articles articles made oror repaired repaired by them by for the for the value value of their of their labor labor done done thereon, thereon, or material or material furnished filrnished thereon; thereon; and the and the Legislature Legislature shall provide shall provide by by law law for the for the speedy speedy and efficient and efficient enforcement enforcement of said of said liens." liensl" 19. 19. Dallas The Dallas Court Court made clear clear that that under under Article Article 16 Section 16 Section 37 ofthe 37 of the Texas Texas Constitution, Constitution, the the validity validity and and enforceability enforceability of aa Constitutional of Constitutional Lien Lien does does not not require require a a written written contract contract between between the the owner owner and the and the laborers