Preview
Electronically Filed
Electronically Filed
EXHIBIT 3/23/2022 3:40
3/23/2022 3:40 PM
PM
Hidalgo County
Hidalgo County District
District Clerks
Clerks
A Reviewed By:
Reviewed By: Armando
Armando CantuCantu
C-1052-22-A
C-1052-22-A
NO.
NO. _______________
REMEDY ROOFING,
REMEDY ROOFING, INC.
INC. §§ IN THE
IN THE DISTRICT
DISTRICT COURT
COURT
Plaintiff
Plaintiff §§
§§
Vv.v. §§ HIDALGO COUNTY,
HIDALGO COUNTY, TEXAS
TEXAS
§§
JAVIER PEREZ
JAVIER PEREZ §§
Defendant
Defendant §§ ___th JUDICIAL
___" JUDICIAL DISTRICT
DISTRICT
Plaintiff’s
Plaintiff’s Original
Original Petition
Petition
TO THE
TO THE HONORABLE
HONORABLE JUDGE
JUDGE OF
OF SAID
SAID COURT:
COURT:
COMES NOW,
COMES Plaintiff Remedy
NOW, Plaintiff Remedy Roofing,
Roofing, Inc.
Inc. complaining
complaining of
of Defendant
Defendant Javier
Javier Perez
Perez
(“Defendant”) and
(“Defendant”) and for
for cause
cause of
of action
action would
would respectfully
respectfully show
show the
the Court
Court as
as follows:
follows:
I.
I.
DISCOVERY
DISCOVERY LEVEL
LEVEL
1.
1. Pursuant
Pursuant to
to Tex.
Tex. R.
R. Civ.
Civ. P.
P. 190.2,
190.2, discovery
discovery in
in this
this case
case is
is intended
intended to be conducted
to be conducted
under Level 11 of
under Level of the
the Texas
Texas Rules
Rules of
of Civil
Civil Procedure.
Procedure. This
This suit
suit is
is brought
brought under
under Texas
Texas Rule
Rule Civil
Civil
Procedure
Procedure 169
169 as
as an
an Expedited
Expedited Action.
Action.
IL.
II.
PARTIES
PARTIES
2.
2. Plaintiff
Plaintiff Remedy
Remedy Roofing,
Roofing, Inc.,
Inc., (“Remedy”)
(“Remedy”) is
is aa Texas
Texas corporation
corporation doing business
doing business
in
in Harris
Harris County,
County, Texas.
Texas.
3.
3. Defendant
Defendant Javier
Javier Perez
Perez is
is an
an individual
individual residing
residing in
in Hidalgo
Hidalgo County,
County, Texas
Texas and
and may
may
be served with
be served with process at 405
process at 405 South
South Woodland
Woodland Drive,
Drive, Pharr,
Pharr, Texas
Texas 78577
78577 or
or wherever he may
wherever he may be
be
found.
found.
III.
III.
JURISDICTION
JURISDICTION and
and VENUE
VENUE
4.
4. This Court
This Court has
has personal
personal jurisdiction over Defendant
jurisdiction over Defendant and
and subject
subject matter
matter jurisdiction
jurisdiction
as the
as the amount
amount in
in controversy
controversy exceeds
exceeds the
the minimum
minimum jurisdictional limits of
jurisdictional limits of this
this Court.
Electronically Filed
Electronically Filed
3/23/2022 3:40
3/23/2022 3:40 PM
PM
Hidalgo County
Hidalgo County District
District Clerks
Clerks
Reviewed By:By: Armando
Armando CantuCantu
C-1052-22-A
C-1052-22-A
Reviewed
y
5.
5. In
In order
order to
to comply
comply with
with Rule
Rule 47,
47, Remedy
Remedy seeks
seeks monetary
monetary relief
relief less
less than
than $250,000
$250,000
not
not including pre-judgement interest,
including pre-judgement interest, costs
costs and
and attorney
attorney fees.
fees.
6.
6. Venue
Venue is
is proper
proper in
in Hidalgo
Hidalgo County,
County, Texas
Texas because
because all
all or
or aa substantial
substantial part
part of
of the
the
events
events or
or omissions
omissions giving
giving rise
rise to
to the
the claims
claims herein
herein occurred
occurred in
in Hidalgo
Hidalgo County,
County, Texas.
Texas. See
See Tex.
Tex.
Civ.
Civ. Prac.
Prac. &
& Rem.
Rem. Code
Code §15.002(a)(1).
§15.002(a)(1).
IV.
IV.
FACTS
FACTS
7.
7. On
On October
October 27,
27, 2021,
2021, Remedy
Remedy entered
entered into
into aa contract
contract with
with Defendant
Defendant wherein
wherein
Remedy was
Remedy was to
to repair
repair Defendant’s
Defendant’s roof
roof and
and perform
perform work on his
work on his home
home located
located at
at 405
405 South
South
Woodland
Woodland Drive,
Drive, Pharr,
Pharr, Texas
Texas 78577
78577 (the
(the “Project”).
“Project”). Defendant
Defendant agreed
agreed to
to compensate
compensate Remedy
Remedy for
for
the
the repair
repair services.
services. See
See Exhibit
Exhibit A.
A.
8.
8. On
On December
December 27,
27, 2021,
2021, Remedy
Remedy invoiced
invoiced Defendant
Defendant for
for services
services and
and materials.
materials.
Defendant was
Defendant to pay
was to Remedy $74,117.83.
pay Remedy $74,117.83. See
See Exhibit
Exhibit B.
B. Remedy
Remedy performed
performed under the contract.
under the contract.
However,
However, Defendant
Defendant failed
failed to
to tender
tender full payment. To
full payment. To date,
date, $74,117.83
$74,117.83 is
is outstanding
outstanding and
and owing
owing
to
to Remedy
Remedy on
on the
the account.
account. See
See Exhibit
Exhibit B.
B.
9.
9. Remedy
Remedy sent
sent aa presentment
presentment of
of claim
claim and
and demand
demand for payment on
for payment on February
February 22,
22,
2022.
2022. Defendant
Defendant failed
failed to
to tender payment. See
tender payment. See Exhibit
Exhibit C.
C.
10.
10. Remedy filed
Remedy filed and
and recorded
recorded aa lien
lien on
on the
the Project
Project on
on March
March 10,
10, 2022.
2022. See
See Exhibit
Exhibit
D.
D.
V.
V.
CAUSES OF
CAUSES OF ACTION
ACTION
A.
A. Breach of
Breach of Contract
Contract
11.
11. Defendant breached
Defendant his contract
breached his contract with
with Remedy.
Remedy. The
The essential
essential elements
elements of
of aa breach
breach of
of
contract
contract include:
include: (1)
(1) there
there is
is aa valid
valid contract;
contract; (2)
(2) the plaintiff performed
the plaintiff performed or
or tendered
tendered performance
Electronically Filed
Electronically Filed
3/23/2022 3:40
3/23/2022 3:40 PM
PM
Hidalgo County
Hidalgo County District
District Clerks
Clerks
Reviewed By:
Reviewed By: Armando
Armando CantuCantu
C-1052-22-A
C-1052-22-A
according
according to
to the
the terms
terms of
of the
the contract;
contract; (3)
(3) the
the defendant breached the
defendant breached the contract;
contract; and
and (4)
(4) the
the plaintiff
plaintiff
sustained
sustained damages
damages as
as aa result
result of
of the
the breach.
breach.
12.
12. Defendant
Defendant entered
entered into
into aa contract
contract with
with Remedy
Remedy under
under which
which he
he agreed
agreed to
to compensate
compensate
Remedy
Remedy for
for the
the repair
repair of
of roof.
roof. Remedy
Remedy performed under the
performed under the contract.
contract. Defendant breached the
Defendant breached the contract
contract
by failing
by failing to
to tender
tender payment.
payment. Remedy
Remedy sustained
sustained damages
damages as
as aa result
result of
of Defendant’s
Defendant’s breach.
breach.
B.
B. Quantum
Quantum Meruit
Meruit
13.
13. Defendant
Defendant has
has not paid Remedy
not paid Remedy for
for the
the reasonable
reasonable value
value of
of its
its repair
repair services.
services. The
The
essential
essential elements
elements of
of quantum
quantum meruit
meruit include:
include: (1)
(1) the plaintiff provided
the plaintiff provided valuable
valuable services
services or
or
materials;
materials; (2)
(2) the
the services
services or
or materials
materials were provided for
were provided for the
the defendant;
defendant; (3)
(3) the
the defendant
defendant accepted
accepted
the
the services
services or
or materials;
materials; and
and (4)
(4) the
the defendant
defendant had
had reasonable
reasonable notice
notice that
that the
the plaintiff
plaintiff expected
expected
compensation
compensation for
for the
the services
services or
or materials.
materials.
14.
14. Remedy
Remedy provided
provided valuable
valuable services
services and
and materials
materials to
to Defendant,
Defendant, who
who accepted
accepted the
the
services
services and
and materials.
materials. Defendant
Defendant has
has reasonable
reasonable notice
notice that
that Remedy
Remedy expected
expected compensation
compensation for
for
these services
these services and
and materials.
materials. A
A balance
balance of
of $74,117.83
$74,117.83 remains
remains outstanding
outstanding and
and owing
owing on
on the
the
account.
account.
C.
C. Unjust Enrichment
Unjust Enrichment
15.
15. Defendant has
Defendant has been
been unjustly
unjustly enriched
enriched by
by receiving
receiving labor
labor and
and materials
materials from
from
Remedy
Remedy without
without paying
paying Remedy
Remedy for
for that
that labor
labor and
and materials.
materials. Further,
Further, Defendant
Defendant benefitted
benefitted from
from
the services
the services performed
performed by
by Remedy.
Remedy.
16.
16. Remedy completed
Remedy completed its
its work
work and
and provided
provided materials
materials and
and labor
labor for
for that
that work,
work,
including work
including work and
and materials
materials contained
contained in
in the
the contract.
contract. Defendant
Defendant accepted
accepted those
those materials
materials and
and
the work.
the work. Defendant
Defendant has
has failed
failed to
to pay
pay Remedy
Remedy for
for the
the work
work performed,
performed, and
and materials
materials provided.
provided.
Electronically Filed
Electronically Filed
3/23/2022 3:40
3/23/2022 3:40 PM
PM
Hidalgo County
Hidalgo County District
District Clerks
Clerks
Reviewed By:
Reviewed By: Armando
Armando CantuCantu
C-1052-22-A
C-1052-22-A
D.
D. Violation
Violation of
of the
the Prompt
Prompt Pay
Pay Act
Act Under
Under Chapter
Chapter 28
28 of
of the
the Texas
Texas Property
Property Code
Code
17.
17. The
The Texas
Texas Property
Property Code provides an
Code provides an owner
owner shall pay the
shall pay the contractor
contractor for
for work
work
performed not
performed not later
later than
than 35
35 days
days after
after owner
owner receives
receives the
the request
request for
for payment
payment from
from the
the contractor.
contractor.
18.
18. Remedy
Remedy completed
completed its
its work
work at
at the
the Property
Property and provided materials
and provided materials and
and labor
labor for
for
that work. More
that work. More than
than 35
35 days
days have passed since
have passed since Remedy
Remedy submitted
submitted its
its request
request for
for payment,
payment, and
and
Defendant
Defendant has
has refused payment.
refused payment.
19.
19. Defendant’s
Defendant’s failure
failure to
to pay
pay entitles
entitles Remedy
Remedy to
to damages
damages including,
including, but
but not
not limited
limited
to, statutory
to, statutory interest
interest of
of 1.5%
1.5% interest
interest each
each month
month of
of no
no payment.
payment.
E.
E. Foreclosure
Foreclosure on
on Lien
Lien
20.
20. Remedy provided
Remedy provided labor
labor and/or
and/or materials
materials to
to the
the Project
Project for
for which
which it
it has
has not
not been
been
paid for. As
paid for. As aa result
result of
of non-payment,
non-payment, Remedy
Remedy recorded
recorded aa Mechanic’s
Mechanic’s and
and Materialman’s
Materialman’s Lien
Lien
against the
against the Project
Project pursuant
pursuant to
to Chapter
Chapter 53
53 of
of the
the Texas
Texas Property
Property Code
Code and
and Texas
Texas Constitution
Constitution in
in
the
the amount
amount of
of $74,117.83
$74,117.83 (the
(the “Lien”).
“Lien”). The
The Lien
Lien was
was recorded
recorded with
with the
the Real
Real Property
Property Records
Records of
of
Hidalgo
Hidalgo County,
County, Texas
Texas on
on March
March 11,
11, 2022,
2022, and
and filed
filed under
under Clerk’s
Clerk’s Doc Number 3319542.
Doc Number 3319542. Exhibit
Exhibit
D.
D.
21.
21. Remedy
Remedy seeks
seeks to
to foreclose
foreclose on
on its
its lien
lien and
and seek
seek the
the recovery
recovery on
on its
its attorney’s
attorney’s fees
fees
for same.
for same.
VI.
VI.
ATTORNEY’S
ATTORNEY'S FEES
FEES
22.
22. Pursuant
Pursuant to
to Chapter
Chapter 38
38 of
of the
Preview
Electronically Filed Electronically Filed EXHIBIT 3/23/2022 3:40 3/23/2022 3:40 PM PM Hidalgo County Hidalgo County District District Clerks Clerks A Reviewed By: Reviewed By: Armando Armando CantuCantu C-1052-22-A C-1052-22-A NO. NO. _______________ REMEDY ROOFING, REMEDY ROOFING, INC. INC. §§ IN THE IN THE DISTRICT DISTRICT COURT COURT Plaintiff Plaintiff §§ §§ Vv.v. §§ HIDALGO COUNTY, HIDALGO COUNTY, TEXAS TEXAS §§ JAVIER PEREZ JAVIER PEREZ §§ Defendant Defendant §§ ___th JUDICIAL ___" JUDICIAL DISTRICT DISTRICT Plaintiff’s Plaintiff’s Original Original Petition Petition TO THE TO THE HONORABLE HONORABLE JUDGE JUDGE OF OF SAID SAID COURT: COURT: COMES NOW, COMES Plaintiff Remedy NOW, Plaintiff Remedy Roofing, Roofing, Inc. Inc. complaining complaining of of Defendant Defendant Javier Javier Perez Perez (“Defendant”) and (“Defendant”) and for for cause cause of of action action would would respectfully respectfully show show the the Court Court as as follows: follows: I. I. DISCOVERY DISCOVERY LEVEL LEVEL 1. 1. Pursuant Pursuant to to Tex. Tex. R. R. Civ. Civ. P. P. 190.2, 190.2, discovery discovery in in this this case case is is intended intended to be conducted to be conducted under Level 11 of under Level of the the Texas Texas Rules Rules of of Civil Civil Procedure. Procedure. This This suit suit is is brought brought under under Texas Texas Rule Rule Civil Civil Procedure Procedure 169 169 as as an an Expedited Expedited Action. Action. IL. II. PARTIES PARTIES 2. 2. Plaintiff Plaintiff Remedy Remedy Roofing, Roofing, Inc., Inc., (“Remedy”) (“Remedy”) is is aa Texas Texas corporation corporation doing business doing business in in Harris Harris County, County, Texas. Texas. 3. 3. Defendant Defendant Javier Javier Perez Perez is is an an individual individual residing residing in in Hidalgo Hidalgo County, County, Texas Texas and and may may be served with be served with process at 405 process at 405 South South Woodland Woodland Drive, Drive, Pharr, Pharr, Texas Texas 78577 78577 or or wherever he may wherever he may be be found. found. III. III. JURISDICTION JURISDICTION and and VENUE VENUE 4. 4. This Court This Court has has personal personal jurisdiction over Defendant jurisdiction over Defendant and and subject subject matter matter jurisdiction jurisdiction as the as the amount amount in in controversy controversy exceeds exceeds the the minimum minimum jurisdictional limits of jurisdictional limits of this this Court. Electronically Filed Electronically Filed 3/23/2022 3:40 3/23/2022 3:40 PM PM Hidalgo County Hidalgo County District District Clerks Clerks Reviewed By:By: Armando Armando CantuCantu C-1052-22-A C-1052-22-A Reviewed y 5. 5. In In order order to to comply comply with with Rule Rule 47, 47, Remedy Remedy seeks seeks monetary monetary relief relief less less than than $250,000 $250,000 not not including pre-judgement interest, including pre-judgement interest, costs costs and and attorney attorney fees. fees. 6. 6. Venue Venue is is proper proper in in Hidalgo Hidalgo County, County, Texas Texas because because all all or or aa substantial substantial part part of of the the events events or or omissions omissions giving giving rise rise to to the the claims claims herein herein occurred occurred in in Hidalgo Hidalgo County, County, Texas. Texas. See See Tex. Tex. Civ. Civ. Prac. Prac. & & Rem. Rem. Code Code §15.002(a)(1). §15.002(a)(1). IV. IV. FACTS FACTS 7. 7. On On October October 27, 27, 2021, 2021, Remedy Remedy entered entered into into aa contract contract with with Defendant Defendant wherein wherein Remedy was Remedy was to to repair repair Defendant’s Defendant’s roof roof and and perform perform work on his work on his home home located located at at 405 405 South South Woodland Woodland Drive, Drive, Pharr, Pharr, Texas Texas 78577 78577 (the (the “Project”). “Project”). Defendant Defendant agreed agreed to to compensate compensate Remedy Remedy for for the the repair repair services. services. See See Exhibit Exhibit A. A. 8. 8. On On December December 27, 27, 2021, 2021, Remedy Remedy invoiced invoiced Defendant Defendant for for services services and and materials. materials. Defendant was Defendant to pay was to Remedy $74,117.83. pay Remedy $74,117.83. See See Exhibit Exhibit B. B. Remedy Remedy performed performed under the contract. under the contract. However, However, Defendant Defendant failed failed to to tender tender full payment. To full payment. To date, date, $74,117.83 $74,117.83 is is outstanding outstanding and and owing owing to to Remedy Remedy on on the the account. account. See See Exhibit Exhibit B. B. 9. 9. Remedy Remedy sent sent aa presentment presentment of of claim claim and and demand demand for payment on for payment on February February 22, 22, 2022. 2022. Defendant Defendant failed failed to to tender payment. See tender payment. See Exhibit Exhibit C. C. 10. 10. Remedy filed Remedy filed and and recorded recorded aa lien lien on on the the Project Project on on March March 10, 10, 2022. 2022. See See Exhibit Exhibit D. D. V. V. CAUSES OF CAUSES OF ACTION ACTION A. A. Breach of Breach of Contract Contract 11. 11. Defendant breached Defendant his contract breached his contract with with Remedy. Remedy. The The essential essential elements elements of of aa breach breach of of contract contract include: include: (1) (1) there there is is aa valid valid contract; contract; (2) (2) the plaintiff performed the plaintiff performed or or tendered tendered performance Electronically Filed Electronically Filed 3/23/2022 3:40 3/23/2022 3:40 PM PM Hidalgo County Hidalgo County District District Clerks Clerks Reviewed By: Reviewed By: Armando Armando CantuCantu C-1052-22-A C-1052-22-A according according to to the the terms terms of of the the contract; contract; (3) (3) the the defendant breached the defendant breached the contract; contract; and and (4) (4) the the plaintiff plaintiff sustained sustained damages damages as as aa result result of of the the breach. breach. 12. 12. Defendant Defendant entered entered into into aa contract contract with with Remedy Remedy under under which which he he agreed agreed to to compensate compensate Remedy Remedy for for the the repair repair of of roof. roof. Remedy Remedy performed under the performed under the contract. contract. Defendant breached the Defendant breached the contract contract by failing by failing to to tender tender payment. payment. Remedy Remedy sustained sustained damages damages as as aa result result of of Defendant’s Defendant’s breach. breach. B. B. Quantum Quantum Meruit Meruit 13. 13. Defendant Defendant has has not paid Remedy not paid Remedy for for the the reasonable reasonable value value of of its its repair repair services. services. The The essential essential elements elements of of quantum quantum meruit meruit include: include: (1) (1) the plaintiff provided the plaintiff provided valuable valuable services services or or materials; materials; (2) (2) the the services services or or materials materials were provided for were provided for the the defendant; defendant; (3) (3) the the defendant defendant accepted accepted the the services services or or materials; materials; and and (4) (4) the the defendant defendant had had reasonable reasonable notice notice that that the the plaintiff plaintiff expected expected compensation compensation for for the the services services or or materials. materials. 14. 14. Remedy Remedy provided provided valuable valuable services services and and materials materials to to Defendant, Defendant, who who accepted accepted the the services services and and materials. materials. Defendant Defendant has has reasonable reasonable notice notice that that Remedy Remedy expected expected compensation compensation for for these services these services and and materials. materials. A A balance balance of of $74,117.83 $74,117.83 remains remains outstanding outstanding and and owing owing on on the the account. account. C. C. Unjust Enrichment Unjust Enrichment 15. 15. Defendant has Defendant has been been unjustly unjustly enriched enriched by by receiving receiving labor labor and and materials materials from from Remedy Remedy without without paying paying Remedy Remedy for for that that labor labor and and materials. materials. Further, Further, Defendant Defendant benefitted benefitted from from the services the services performed performed by by Remedy. Remedy. 16. 16. Remedy completed Remedy completed its its work work and and provided provided materials materials and and labor labor for for that that work, work, including work including work and and materials materials contained contained in in the the contract. contract. Defendant Defendant accepted accepted those those materials materials and and the work. the work. Defendant Defendant has has failed failed to to pay pay Remedy Remedy for for the the work work performed, performed, and and materials materials provided. provided. Electronically Filed Electronically Filed 3/23/2022 3:40 3/23/2022 3:40 PM PM Hidalgo County Hidalgo County District District Clerks Clerks Reviewed By: Reviewed By: Armando Armando CantuCantu C-1052-22-A C-1052-22-A D. D. Violation Violation of of the the Prompt Prompt Pay Pay Act Act Under Under Chapter Chapter 28 28 of of the the Texas Texas Property Property Code Code 17. 17. The The Texas Texas Property Property Code provides an Code provides an owner owner shall pay the shall pay the contractor contractor for for work work performed not performed not later later than than 35 35 days days after after owner owner receives receives the the request request for for payment payment from from the the contractor. contractor. 18. 18. Remedy Remedy completed completed its its work work at at the the Property Property and provided materials and provided materials and and labor labor for for that work. More that work. More than than 35 35 days days have passed since have passed since Remedy Remedy submitted submitted its its request request for for payment, payment, and and Defendant Defendant has has refused payment. refused payment. 19. 19. Defendant’s Defendant’s failure failure to to pay pay entitles entitles Remedy Remedy to to damages damages including, including, but but not not limited limited to, statutory to, statutory interest interest of of 1.5% 1.5% interest interest each each month month of of no no payment. payment. E. E. Foreclosure Foreclosure on on Lien Lien 20. 20. Remedy provided Remedy provided labor labor and/or and/or materials materials to to the the Project Project for for which which it it has has not not been been paid for. As paid for. As aa result result of of non-payment, non-payment, Remedy Remedy recorded recorded aa Mechanic’s Mechanic’s and and Materialman’s Materialman’s Lien Lien against the against the Project Project pursuant pursuant to to Chapter Chapter 53 53 of of the the Texas Texas Property Property Code Code and and Texas Texas Constitution Constitution in in the the amount amount of of $74,117.83 $74,117.83 (the (the “Lien”). “Lien”). The The Lien Lien was was recorded recorded with with the the Real Real Property Property Records Records of of Hidalgo Hidalgo County, County, Texas Texas on on March March 11, 11, 2022, 2022, and and filed filed under under Clerk’s Clerk’s Doc Number 3319542. Doc Number 3319542. Exhibit Exhibit D. D. 21. 21. Remedy Remedy seeks seeks to to foreclose foreclose on on its its lien lien and and seek seek the the recovery recovery on on its its attorney’s attorney’s fees fees for same. for same. VI. VI. ATTORNEY’S ATTORNEY'S FEES FEES 22. 22. Pursuant Pursuant to to Chapter Chapter 38 38 of of the