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CAUSE NO.
JOVI DRYWALL IN THE DISTRICT COURT OF
laintiff,
vs. MONTGOMERY COUNTY, TEXAS
GREG S. CHARNEY
efendant TH JUDICIAL DISTRICT
JOVI DRYWALL Motion to Dismiss Defendant’s
Counterclaim as a Baseless Cause of Action GREG CHARNEY
Texas law prescribes that a cause of action has no basis in law and fact if: (1) the allegations, taken
as true, together with inferences reasonably drawn from them do not entitle the claimant to the reli
sought; and (2) if no reasonably person could believe the facts pleaded; respectively. TEX. R.
CIV. PRO § 91a.1. The Court must decide the motion based solely on the pleading of the cause of
Under Texas Rules of Civil Procedure Rule 91a, a party may move to dismiss a cause of action on
the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations,
taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to
the relief sought. A cause of action has no basis in fact if no reasonable person could believe
Tex. R. Civ. P. 91a.
Id.
Id.
The Fourteenth Court of Appeals, under Wooley v. Schaffer, has held that:
Rule 91a has unique language allowing dismissal of causes of action with no basis in law or fact.
However, Federal Rule of Civil Procedure 12(b)(6) similarly allows dismissal if a plaintiff fails “to
state a claim upon which relief can be granted”; therefore, we find case law interpreting Rule
12(b)(6) instructive.
For a complaint to survive a Federal Rule 12(b)(6) motion to dismiss, it must contain “enough fac
to state a claim to relief that is plausible on its face.” Facial plausibility requires facts that allow the
court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Essentially, under the federal rules, the complaint is liberally construed in favor of the plaintiff, and
all well pleaded facts are taken as true. But “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Likewise, in determining whether
the trial court erred in denying a defendant's motion to dismiss, federal courts take all of the plaintiff's
allegations as true. Federal Rule 12(b)(6) dismissal is appropriate if the court determines beyond
doubt that the plaintiff can prove no set of facts to support a claim that would entitle him to relief.
Breach of Contract
Jovi performed under the parties’ contract, and, therefore, did not breach Charney claims that Jovi
“materially breached the terms of the Contract by demanding payment in excess of the agreed upon
amount, and by f iling to complete the Drywall Repair work in a good and workmanlike manner
which necessitated costly repairs . . . .” Charney’s arguments are completely at odds with the law.
Wooley v. Schaffer, 447 S.W.3d 71, 75 76 (Tex. App. Houston [14th Dist.] 2014, pet. denied) (Internal quotes omitted).
See id., see also GoDaddy.com, Toups, 429 S.W.3d 752, 754 (Tex.App. Beaumont 2014, pet. filed) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
See id., see also GoDaddy.com, 550 U.S. 570 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009)
See id., see also GoDaddy.com, 550 U.S. 570 (citing Ashcroft, 556 U.S. at 678 79, 129 S.Ct. 1937 and Erickson v. Pardus
551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)).
See id., see also GoDaddy.com, 550 U.S. 570 (citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
See id., see also GoDaddy.com, citing Scanlan v. Tex. A & M Univ., 343 F.3d 533, 536 (5th Cir.2003
Charney Original Counterclaim Subject to Motion to Transfer Venue, Attach., Ex. A.
Demanding More Payment After Performance is Not a Breach of the Contract.
Jovi did not breach the Contract and Charney’s argument has failed to provide sufficient fac that
are plausible on their face to support its breach of contract claim The elements of a breach of contract
claim under Texas law are: “(1) the existence of a valid contract; (2) performance or tendered
performance by the plaintiff; (3) breach of a contract by the defendant; and (4) damages sustained
by the plaintiff as a result of the breach.” A party breaches a contract by failing to perform when
that party's performance is due. Under the parties’ Contract, Charney agreed to pay Jovi for drywall
services. Jovi agreed to perform drywall services for a sum. The parties’ consideration under the
agreement was money and services, respectively. Charney does not argue that Jovi didn’t perform
its services when due, they argue that Jovi demanded more payment after Jovi had finished providing
its services Arguing that failing to accept payment after that parties’ performance constitutes a
material breach would turn contract principles their head. For any person disputing payment
amount on a contract would have to either: (1) accept payment to avoid breach and risk ratification
accord and satisfaction be deemed to have materially breached the agreement as Charney
argues) when having the originating argument for breach against the party tendering payment.
Jovi did not Breach any Implied Warranty of Good and Workmanlike Services
did not breach any implied warranty of good and workmanlike services any such implied
warranty is inapplicable and unnecessary, and Charney fails to provide sufficient fac that are
plausible on their face to support this claim To prove a breach of an implied warranty of good and
Atrium Med. Ctr., LP v. Houston Red C LLC, 546 S.W.3d 305, 311 (Tex. App. Houston [14th Dist.] 2017), aff'd, 595 S.W.3d 188 (Tex.
2020).
Trelltex, Inc. v. Intecx, L.L.C., 494 S.W.3d 781, 786 (Tex. App. Houston [14th Dist.] 2016, no pet.).
See id. at 3 ¶ 9 (Indeed, Jovi’s performance completion is evidenced by Charney statement that “at some point after the
February 11, 2022 attempted payment, [Jovi] attempted to have the drywall repaired by [Jovi] painted.”).
Cleveland Reg'l Med. Ctr., L.P. Celtic Properties, L.C. 323 S.W.3d 322, 355 (Tex. App. Beaumont 2010, pet. denied)
Justice Gaultney, Dissenting “Ratification occurs when party recognizes the validity contract acting
performing affirmatively acknowledging (Citing Zieben Platt, S.W.2d (Tex.App.
Houston [14th Dist.] writ)).
ccord satisfaction rests contract express implied, in which the parties agree to the discharge of
existing obligation means lesser payment tendered accepted Lopez Munoz, Hockema Reed, L.L.P.,
S.W.3d 857, 863 (Tex.2000)
workmanlike construction of residential property, one must prove, among other things, that the
defendant is a “builder.” Indeed, a builder is defined as “[o]ne whose occupation is the building or
erection of structures, the controlling and directing of construction, or the planning, constructing,
remodeling and adapting to particular uses buildings and other structures.” A subcontractor is not
a builder under this implied warranty. Jovi was Charney subcontracto not for erecting
structure the structures, the controlling and directing of construction, or the planning, constructing,
remodeling and adapting to particular uses buildings and other structures but for drywall repair
installation Also, “[a]n implied warranty will not be imposed unless there is a demonstrated,
compelling need for it” and that “[i]t is not necessary to impose an implied warranty as a matter of
public policy if the plaintiff has other adequate remedies to redress the alleged wrongs committed
by the defendant.” Here, if Charney claims that Jovi service was severely defective, at a
minimum, Charney has an adequate remedy in a negligence claim, and, as such, a claim for implied
warranty of good and workmanlike services is inappropriate and has no basis in law or fact
Consequential Damages
Charney does not provide a shred of evidence suggesting that the parties contemplated recovery of
consequential damages as a result of a parties’ breach Charney claims several incurred expenses to
due to Jovi’s allegedly defective service, including: (1) $28,216 in paint; (2) $22,000 for
plaster/repair, to remedy Jovi’s ‘defective work’. And, that Charney had to rent an apartment for
$27,500 due to the needed repairs arising from Jovi’s work. However, while Charney claims that
Jovi’s work was “so severely defective he also states that such defects only became “visible during
Humber v. Morton, 426 S.W.2d 554, 555 (Tex.1968)
Wiggins v. Overstreet, 962 S.W.2d 198, 20 (Tex.App. Houston [14th Dist.] 1998, pet. denied)
See, e.g., Codner v. Arellano, 40 S.W.3d 666, 674 (Tex.App. Austin 2001, no pet.) we find no case that implies a warranty of good
workmanlike performance from a builder's subcontractor directly to the homeowner.”).
Charney Original Counterclaim Subject to Motion to Transfer Venue, Attach., Ex. A harney stipulates to Jovi s subcontractor
classification under Subsection on Page 5).
Rocky Mountain Helicopters, Inc. v. Lubbock County Hosp. Dist., 987 S.W.2d 50, 53 (Tex.1998) see also Trans Gulf Corp. v. Performance
Aircraft Servs., Inc., 82 S.W.3d 691, 696 97 (Tex.App. Eastland 2002, no pet.) (stating that public policy does not justify imposing an implied
warranty for service transactions in the absence of a demonstrated, compelling need
Charney Original Counterclaim Subject to Motion to Transfer Venue, Attach., Ex. A.
See id. at 3 4 ¶ 10
the painting process.” Consequential damages are not recoverable unless the parties contemplated,
at the time of contract formation, that such damages would be a probable result of the breach.
Consequential damages, result naturally, but not necessarily, from the defendant s wrongful acts.
Charney fails to provide any fact to suggest that the parties’ Contract contains any contemplation
that a party would be entitled to expenses in repairing any defects or rent during such repairs And
the damages are too remote, too uncertain, purely conjectural they cannot be recovered. And
Charney s claim for consequential damages for paint, plaster/repair, or rent, is indeed, purely
conjectural and conclusory nd fails to rovide sufficient fac that are plausible on their face to
support that Charney incurred expenses resulted from defendant wrong
Promissory Estoppel
Charney can either plead promissory estoppel by claiming that Jovi s alleged promise th the work
would be of the high quality/level 5 covered under the parties contract or be precluded
from pleading promissory estoppel not th. Indeed, plaintiff cannot recover under promissory
estoppel if a valid contract exists between the parties and covers the alleged promise. Rather, if a
valid contract exists, the injured party must seek damages under the contract. Charney states that
s alleged representation that the drywall repair services would be performed such that the
finished product would be level 5/of the highest qualit . . . was part of the basis of the bargain . . .
and [Charney] would not have entered into the agreement for services without this representati
See id. at 3 ¶ 9.
Basic Capital Mgmt., Inc. v. Dynex Commercial, Inc., 348 S.W.3d 894, 901 (Tex. 2011); Jatex Oil & Gas Expl. L.P. v. Nadel
& Gussman Permian, L.L.C., 629 S.W.3d 397, 414 (Tex. App. Eastland 2020, no pet.).
Arthur Andersen Co. Perry Equip. Corp , 945 S.W.2d 812, 816 (Tex. 1997)
Charney Original Counterclaim Subject to Motion to Transfer Venue, Attach., Ex. A.
Arthur Andersen 945 S.W.2d 812, 816 (Tex. 1997) (Emphasis added).
onjecture, Merriam bster, https://www.merriam webster.com/dictionary/conjecture (last visited Oct. 21, 2022) ( inference formed
without proof or sufficient evidence a conclusion deduced by surmise or guesswork
Charney Original Counterclaim Subject to Motion to Transfer Venue, Attach., Ex. A. Page 5 6).
Stewart Title Guar. Co. v. Stewart Title Latin Am., Inc., No. 4:12 03269, 2017 WL 1078759, at *9 (S.D. Tex. Mar. 21, 2017) Harris
Const. Co. v. GGP Bridgeland, LP, 698 F. Supp. 2d 723, 726 (S.D. Tex. 2010) (citing Fertic v. Spencer, 247 S.W.3d 242, 250 (Tex.
App. El Paso 2007, pet. denied); El Paso Healthcare Sys. Ltd. v. Piping Rock Corp., 939 S.W.2d 695, 699 (Tex. App. El Paso 1997,
writ denied)).
Id. citing El Paso Healthcare, 939 S.W.2d at 699).
Charney Original Counterclaim Subject to Motion to Transfer Venue, Attach., Ex. A. Page
Therefore, since Charney claims that a valid oral contract existed where allegedly promised
the highest level of quality, described by the parties as Level 5 Charney promissory estoppel
has no basis in law or fact failing to state a claim f relief that is plausible on its face
ATTORNEY’S FEES
Jovi further pleads that has been required retain attorneys bring the aforementionedactions, and,
therefore, Jovi seeks recovery attorney’s fees under as prescribed under Texas Rules of Civil
Procedure Section 91a.7 Jovi respectfully requests the Court to grant it, $ , in reasonable
attorney’s fees incurred with respect to the challenged cause of action See id.
PRAYER
FOR THESE REASONS, Jovi prays that Charney be cited to appear, answer, and upon final hearing
of this cause, a judgment be entered against Charney and in favor, awarding Jovi damages
provided under Texas Jovi additionally prays such other and further relief, legal
equitable, which show justly entitled.
Respectfully submitted,
Bernardo Villarreal Aguirre
Bernardo Villarreal AguirreBar No. 24118578
Attorney Plaintiff/Counter Defendant Jovi
Of Counsel to The Izaguirre Law Firm, PLLC
Airline Dr.
Houston, Texas
8999 Phone
fax
civil@izalaw.com
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing was served upon all parties to this
case on ober 21
Kenna M. S
SBN: 13944250
2700 Research Forest Drive, Suite 100
The Woodlands, Texas 77381
7791 Fax
kseiler@theseilerlawfirm.com
orney for Defendant/Counter Plaintiffs
Respectfully submitted,
/s/ Bernardo Villarreal Aguirre
Bernardo Villarreal Aguirre
NO. 2022-29729
JOVI DRYWALL IN THE DISTRICT COURT OF
RISCOUNTY, TEXAS
EG S. CHARNEY JUDICIAL DISTRICT
DEFENDANT ORIGINAL COUNTERCLAIM SUBJECT TO MOTION TO
TRANSFER VENUE
O THE HONORABLE JUDGE OF SAID COURT:
OMES NOW Defendant, Greg S. Charney files this Original Counterclaim against
Plaintiff/Counter Defendant Jovi Drywall. These counterclaims are filed subject to, and without
waiving, Counter Plaintiff’s Motion to Transfer Venue which was filed with the Court on July 25,
2022 and respectfully shows as follows:
ARTIES
1. Defendant/Counter- laintiff Greg S. Charney (“Counter-Plaintiff”) has appeared
herein.
Plaintiff/Counter Defendant Jovi drywall (“Counter-Defendant”) has entered an
appearance in this matter by initiating this litigation and may be served with this counterclaim
pursuant to Rule 21a of the Texas Rules of Civil Procedure through their counsel of record.
JURISDICTION AND VENU
his Court has jurisdiction over the controversy because Counter Defendant ha
directly and proximately caused damages to Counter Plaintiff in excess of the minimal
jurisdictional limits of this Court.
Venue is proper in Montgomery County, Texas, pursuant to Section 15.002(1)
because all or a substantial part of the events giving rise to the claim occurred in Montgomery
County.
III. DISCOVERY CONTROL PLAN
5. Counter-Plaintiff intends to conduct discovery under the existing Level II discovery
plan.
IV. CLAIM FOR RELIEF
6. Counter-Plaintiff seeks only monetary relief of $,000.00 or less, including
damages of any kind, penalties, court costs, expenses, prejudgment interest, and attorney fees.
V. FACTUAL BACKGROUND
7. Counter-Defendant is a drywall installation company that services multiple cities
in the surrounding Houston metropolitan area, including The Woodlands. Counter Plaintiff hired
SVRC Pro as his general contractor to help renovate his residence located at 34 Jetty Point Dr.,
The Woodlands, Texas 77380 (“Residence”). Counter Defendant was then contracted by SVRC
Pro to complete Counter Plaintiff’s drywall repairs (the “Drywall Repair Work”). At some point
in or about December 2021, Count Plaintiff became dissatisfied with SVRC Pro and made the
decision to fire SVRC Pro, but decided to retain Counter Defendant to complete the Drywall
Repair Work which Counter-Defendant had already begun under its contract with SVRC Pro.
8. On or about December 27, 2021, Counter Plaintiff and Counter Defendant entered
into an oral contract (“the Contract”) under which Counter Defendant agreed to complete the
Drywall Repair Work, and Counter Plaintiff agreed to pay Counter Defendant $8,000.00 for the
portion of the Drywall Repair Work Counter Defendant had already completed, plus $6,500.00
for the remainder of the Drywall Repair Work, for a grand total of $14,500.00. This agreement
was confirmed again in a written text message exchange on January 14, 2022, in which Counter
Plaintiff asked Counter Defendant to confirm that the $14,500.00 was inclusive of the entirety of
the Drywall Repair Work and Counter Defendant confirmed same. On February 11, 2022,
Counter Plaintiff attempted to make payment according to the Contract by sending a check for the
agreed upon amount of $14,500.00 and a Lien Release Waiver to Counter Defendant, and Counter
Defendant refused to accept, and instead demanded payment in excess of the agreed upon amount.
Additionally, at some point after the February 11, 2022 attempted payment,
Counter Plaintiff attempted to have the drywall repaired by Counter Defendant painted, but that
paint job was never actually completed because the lack of quality of work done by Counter
Defendant became clearly visible during the painting process. Counter Defendant had promised
the highest level of quality, described by the parties as “level 5,” in its finished product and
Counter Plaintiff expected same. The partial paint job that revealed the defects in Counter
Defendant’s work had cost a total of $18,000.00, $12,000.00 for labor and $6,000.00 for the paint,
at the point at which it had to be abandoned. Ultimately that entire amount was wasted as the
painting had to be redone following repairs to Counter Defendant’s defective work. Counter
Plaintiff then hired American General Contractors (“AGC”) to repair Counter Defendant’s
defective drywall installation and re paint. Counter Defendant’s work was so severely defective
that the walls had to be plastered to cover the defects sufficiently to allow for proper paint and
finish. Counter Plaintiff had to pay AGC a total of $48,216.00, $22,000.00 for the plaster/repair
work, and $28,216.00 for paint.
Additionally, while the renovations, of which Counter Defendant’s work was a
part, were being completed, Counter Plaintiff and his family could not occupy the Property and
were forced to rent an apartment at a cost of $5,000.00 a month. The original paint job took one
and one half months necessitating an expense of $7,500.00 in rent, and the need to repair the
defects in Counter-Defendant’s work caused Counter-Plaintiff to remain in the rental property for
an additional four months at a cost of $20,000.00.
In the end, Counter Defendant’s defective work cost Counter-Plaintiff a total of
$42, 716.00 in repair costs and excess rent. Therefor, once Counter Defendant is given credit for
the $14,500.00 owed to Counter Defendant under the Contract, Counter Plaintiff has incurred
$28,216.00 in damages.
VI. COUNTERCLAIM
A. Counterclaim for Breach of Contract
12. Paragraphs 7 through 11 are hereby incorporated by reference into this section as if
fully set forth herein. Counter-Plaintiff entered into a contract (the Contract ) with Counter
Defendant on or about December 27, 2021, when the parties agreed that Counter Defendant would
provide labor and materials to complete the Drywall Repair Work, and that Counter Plaintiff
would pay Counter Defendant $14,500.00 as full and final payment for both the portion of Drywall
Repair Work which had previously been completed and the portion of the Drywall Repair Work
yet to be completed.
13. Counter-Plaintiff fully performed his obligations under the Contract by tendering
payment according to the contract on February 11, 2022, but Counter Defendant rejected that
payment.
14. Counter-Defendant materially breached the terms of the Contract by demanding
payment in excess of the agreed upon amount, and by failing to complete the Drywall Repair work
in a good and workmanlike manner which necessitated costly repairs on the part of the Counter
Plaintiff.
Counter Plaintiff has been damaged by Counter Defendant’s breach of contract and
is entitled to actual damages.
Counter Plaintiff seeks damages including interest, costs, and attorney fees, which
are within the jurisdictional limits of this Court.
A plaintiff may recover damages for its expectation interest in a contract under
Texas law. Sharifi v. Steen Auto., 370 S.W.3d 126, 148 (Tex. App.Dallas 2012, no pet.). Such
expectation damages give a plaintiff the benefit of its bargain by placing the plaintiff in the same
economic position it would have been in if the contract had been performed as intended. Id.
Counter Plaintiff is entitled to benefit the argain damages in this case.
Counter Plaintiff currently seeks damages in the amount of $28,216.00, plus interest, costs, and
attorney fees, for both the expenses incurred by Counter Plaintiff up to the Counter Defendants’
breach
B. Counterclaim for Promissory Estoppel
Paragraphs through are hereby incorporated by reference into this section as if
fully set forth herein.
In the alternative, and without waiving any of the forgoing counterclaims or
defenses, Counter Defendant promised Counter Plaintiff that Counter Defendant would complete
the Drywall Repair Work begun by Counter Defendant while working as a subcontractor for
SVRC Pro, that the work would be of the highest quality/level 5, and that the cost to Counter
Plaintiff would not exceed $14,500.00.
Counter Defendant knew, or reasonably should have known, that Counter Plaintiff
would rely on Counter Defendant’s promises.
Injustice to Counter Plaintiff can only be avoided if Counter Defendants promises
are enforced.
Counter Plaintiff’s reliance on Counter Defendant’s promises resulted in injury to
Counter Plaintiff. Counter Plaintiff currently seeks actual damages in the amount of $28,216.00,
plus attorney’s fees, prejudgment and postjudgment interest, and court costs.
C. Counterclaim for Breach of Express Warranty
Paragraphs through are hereby incorporated by reference into this section as if
fully set forth herein.
Counter Defendant provided drywall repair services to the Counter Plaintif
Counter Defendant represented to Counter Plaintiff that the drywall repair services
would be performed such that the finished product would be level 5/of the highest quality.
Counter Defendant’s representation was part of the basis of the bargain in that
Counter Plaintiff was relying on the requested quality in order to proceed to the next stages of his
model, and would not have entered into the agreement for services without this representation.
The service provided by Counter Defendant did not comply with Counter
Defendant’s representation, which was a breach of Counter Defendant’s express warranty, in that,
when Counter Defendant’s finished work was painted over it revealed that the Drywall Repair
Work had not been completed to the level 5/highest quality as promised.
Counter Defendant’s breach of warranty directly and proximately caused injury to
Counter Plaintiff which resulted in real damages. Specifically, Counter Plaintiff had to pay
$48,216.00 to repair and re paint to Counte Defendant’s work product to bring it up to the agreed
upon level 5/highest quality finish and incurred excess rent of $20,000.00 while the defects were
being repaired. Once such damages are offset against the $18,000.00 paid for the original paint job
d $7,500.00 in rent incurred during that time period, Counter Plaintiff incurred a total of
$42,716.00 in damages. After allowing an additional offset of $14,500.00 for the amount Counter
Plaintiff owes Counter Defendant under the Contract, Counter Plaintiff currently seeks
$28,216.00 in real damages, plus attorney’s fees, prejudgment and postjudgment interest, and court
costs.
D. Counterclaim for Breach of Implied Warranty
Paragraphs through are hereby incorporated by reference into this section as if
fully set forth herein.
In the alternative, and without waiving any of the foregoing counterclaims or
defenses, Counter Defendant provided drywall repair services to the Counter Plaintiff.
Counter Defendant’s services involved making repairs to drywall at Counter
Plaintiff’s Residence.
Counter Defendant did not perform the services in a good and workmanlike
manner, which was a breach of the implied warranty of good and workmanlike repair. Specifically,
when Counter Defendant’s finished work was painted over it revealed that the Drywall Repair
Work had not been completed in such a manner as to allow other tradesman to adequately perform
their work which followed and built upon Counte Defendant’s work.
Counter Defendant’s breach of warranty directly and proximately caused injury to
Counter Plaintiff which resulted in real damages. Specifically, Counter Plaintiff had to pay
$48,216.00 to repair and re paint to Counter Defendant’s work product to bring it up to the agreed
upon level 5/highest quality finish and incurred excess rent of $20,000.00 while the defects were
being repaired. Once such damages are offset against the $18,000.00 paid for the original paint job
and $7,500.00 in rent incurred during that time period, Counter Plaintiff incurred a total of
$42,716.00 in damages. After allowing an additional offset of $14,500.00 for the amount Counter
Plaintiff owes Counter Defendant under the Contract, Counter Plaintiff currently seeks
$28,216.00 in real damages, plus attorney’s fees, prejudgment and postjudgment interest, and court
costs.
ATTORNEY’S FEES
35. Counter-Plaintiff is entitled to recover reasonable attorney fees under Texas Civil
Practice & Remedies Code chapter 38 because this suit is for breach of a written contract. Counter
Plaintiff retained counsel, who presented Counter Plaintiff’s claims to Counter-Defendant.
Counter-Defendant failed to make the final payment per the contract.
CONDITIONS PRECEDENT
36. All conditions precedent to bringing this suit have occurred and proper notices have
been sent.
PRAYER FOR RELIEF
For these reasons, Counter Plaintiff respectfully requests that the Counter
Defendant be cited to appear herein and Counter Plaintiff have judgment for the relief requested
herein and for such other and further relief to which the Counter Plaintiff may be justly entitled,
including:
Actual damages within the jurisdictional limits of the Court;
b. Costs of suit, including reasonable and necessary attorney’s fees;
Pre- and post-judgment interest, and
d. All other relief to which Counter-Plaintiff may be entitled by law.
Respectfully submitted,
SEILER, PLLC
/s/ Kenna M. Seiler
Kenna M. Seiler
State Bar No. 13944250
kseiler@theseilerlawfirm.com
2700 Research Forest Drive, Suite 100
The Woodlands, Texas 77381
(281) 419-7770
(281) 419-7791 - Telecopier
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
Pursuant to Rules 21. and 21a. of the Texas Rules of Civil Procedure, I hereby certify that
the original of Defendant/Counter-Plaintiff’s Original Counterclaim has been filed with the clerk
of the court in writing, and a true and correct copy has been delivered to all interested parties on
August 24, 2022.
Bernardo Villarreal Aguirre
Law Office of Bernardo Villarreal, PLLC
610 N. Loop 366 E, Suite # 113
Conroe, Texas 77301
Contact@Villarreal Lawfirm.com
/s/ Kenna M. Seiler
Kenna M. Seiler
Preview
CAUSE NO. JOVI DRYWALL IN THE DISTRICT COURT OF laintiff, vs. MONTGOMERY COUNTY, TEXAS GREG S. CHARNEY efendant TH JUDICIAL DISTRICT JOVI DRYWALL Motion to Dismiss Defendant’s Counterclaim as a Baseless Cause of Action GREG CHARNEY Texas law prescribes that a cause of action has no basis in law and fact if: (1) the allegations, taken as true, together with inferences reasonably drawn from them do not entitle the claimant to the reli sought; and (2) if no reasonably person could believe the facts pleaded; respectively. TEX. R. CIV. PRO § 91a.1. The Court must decide the motion based solely on the pleading of the cause of Under Texas Rules of Civil Procedure Rule 91a, a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe Tex. R. Civ. P. 91a. Id. Id. The Fourteenth Court of Appeals, under Wooley v. Schaffer, has held that: Rule 91a has unique language allowing dismissal of causes of action with no basis in law or fact. However, Federal Rule of Civil Procedure 12(b)(6) similarly allows dismissal if a plaintiff fails “to state a claim upon which relief can be granted”; therefore, we find case law interpreting Rule 12(b)(6) instructive. For a complaint to survive a Federal Rule 12(b)(6) motion to dismiss, it must contain “enough fac to state a claim to relief that is plausible on its face.” Facial plausibility requires facts that allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Essentially, under the federal rules, the complaint is liberally construed in favor of the plaintiff, and all well pleaded facts are taken as true. But “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Likewise, in determining whether the trial court erred in denying a defendant's motion to dismiss, federal courts take all of the plaintiff's allegations as true. Federal Rule 12(b)(6) dismissal is appropriate if the court determines beyond doubt that the plaintiff can prove no set of facts to support a claim that would entitle him to relief. Breach of Contract Jovi performed under the parties’ contract, and, therefore, did not breach Charney claims that Jovi “materially breached the terms of the Contract by demanding payment in excess of the agreed upon amount, and by f iling to complete the Drywall Repair work in a good and workmanlike manner which necessitated costly repairs . . . .” Charney’s arguments are completely at odds with the law. Wooley v. Schaffer, 447 S.W.3d 71, 75 76 (Tex. App. Houston [14th Dist.] 2014, pet. denied) (Internal quotes omitted). See id., see also GoDaddy.com, Toups, 429 S.W.3d 752, 754 (Tex.App. Beaumont 2014, pet. filed) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). See id., see also GoDaddy.com, 550 U.S. 570 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) See id., see also GoDaddy.com, 550 U.S. 570 (citing Ashcroft, 556 U.S. at 678 79, 129 S.Ct. 1937 and Erickson v. Pardus 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)). See id., see also GoDaddy.com, 550 U.S. 570 (citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955). See id., see also GoDaddy.com, citing Scanlan v. Tex. A & M Univ., 343 F.3d 533, 536 (5th Cir.2003 Charney Original Counterclaim Subject to Motion to Transfer Venue, Attach., Ex. A. Demanding More Payment After Performance is Not a Breach of the Contract. Jovi did not breach the Contract and Charney’s argument has failed to provide sufficient fac that are plausible on their face to support its breach of contract claim The elements of a breach of contract claim under Texas law are: “(1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of a contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach.” A party breaches a contract by failing to perform when that party's performance is due. Under the parties’ Contract, Charney agreed to pay Jovi for drywall services. Jovi agreed to perform drywall services for a sum. The parties’ consideration under the agreement was money and services, respectively. Charney does not argue that Jovi didn’t perform its services when due, they argue that Jovi demanded more payment after Jovi had finished providing its services Arguing that failing to accept payment after that parties’ performance constitutes a material breach would turn contract principles their head. For any person disputing payment amount on a contract would have to either: (1) accept payment to avoid breach and risk ratification accord and satisfaction be deemed to have materially breached the agreement as Charney argues) when having the originating argument for breach against the party tendering payment. Jovi did not Breach any Implied Warranty of Good and Workmanlike Services did not breach any implied warranty of good and workmanlike services any such implied warranty is inapplicable and unnecessary, and Charney fails to provide sufficient fac that are plausible on their face to support this claim To prove a breach of an implied warranty of good and Atrium Med. Ctr., LP v. Houston Red C LLC, 546 S.W.3d 305, 311 (Tex. App. Houston [14th Dist.] 2017), aff'd, 595 S.W.3d 188 (Tex. 2020). Trelltex, Inc. v. Intecx, L.L.C., 494 S.W.3d 781, 786 (Tex. App. Houston [14th Dist.] 2016, no pet.). See id. at 3 ¶ 9 (Indeed, Jovi’s performance completion is evidenced by Charney statement that “at some point after the February 11, 2022 attempted payment, [Jovi] attempted to have the drywall repaired by [Jovi] painted.”). Cleveland Reg'l Med. Ctr., L.P. Celtic Properties, L.C. 323 S.W.3d 322, 355 (Tex. App. Beaumont 2010, pet. denied) Justice Gaultney, Dissenting “Ratification occurs when party recognizes the validity contract acting performing affirmatively acknowledging (Citing Zieben Platt, S.W.2d (Tex.App. Houston [14th Dist.] writ)). ccord satisfaction rests contract express implied, in which the parties agree to the discharge of existing obligation means lesser payment tendered accepted Lopez Munoz, Hockema Reed, L.L.P., S.W.3d 857, 863 (Tex.2000) workmanlike construction of residential property, one must prove, among other things, that the defendant is a “builder.” Indeed, a builder is defined as “[o]ne whose occupation is the building or erection of structures, the controlling and directing of construction, or the planning, constructing, remodeling and adapting to particular uses buildings and other structures.” A subcontractor is not a builder under this implied warranty. Jovi was Charney subcontracto not for erecting structure the structures, the controlling and directing of construction, or the planning, constructing, remodeling and adapting to particular uses buildings and other structures but for drywall repair installation Also, “[a]n implied warranty will not be imposed unless there is a demonstrated, compelling need for it” and that “[i]t is not necessary to impose an implied warranty as a matter of public policy if the plaintiff has other adequate remedies to redress the alleged wrongs committed by the defendant.” Here, if Charney claims that Jovi service was severely defective, at a minimum, Charney has an adequate remedy in a negligence claim, and, as such, a claim for implied warranty of good and workmanlike services is inappropriate and has no basis in law or fact Consequential Damages Charney does not provide a shred of evidence suggesting that the parties contemplated recovery of consequential damages as a result of a parties’ breach Charney claims several incurred expenses to due to Jovi’s allegedly defective service, including: (1) $28,216 in paint; (2) $22,000 for plaster/repair, to remedy Jovi’s ‘defective work’. And, that Charney had to rent an apartment for $27,500 due to the needed repairs arising from Jovi’s work. However, while Charney claims that Jovi’s work was “so severely defective he also states that such defects only became “visible during Humber v. Morton, 426 S.W.2d 554, 555 (Tex.1968) Wiggins v. Overstreet, 962 S.W.2d 198, 20 (Tex.App. Houston [14th Dist.] 1998, pet. denied) See, e.g., Codner v. Arellano, 40 S.W.3d 666, 674 (Tex.App. Austin 2001, no pet.) we find no case that implies a warranty of good workmanlike performance from a builder's subcontractor directly to the homeowner.”). Charney Original Counterclaim Subject to Motion to Transfer Venue, Attach., Ex. A harney stipulates to Jovi s subcontractor classification under Subsection on Page 5). Rocky Mountain Helicopters, Inc. v. Lubbock County Hosp. Dist., 987 S.W.2d 50, 53 (Tex.1998) see also Trans Gulf Corp. v. Performance Aircraft Servs., Inc., 82 S.W.3d 691, 696 97 (Tex.App. Eastland 2002, no pet.) (stating that public policy does not justify imposing an implied warranty for service transactions in the absence of a demonstrated, compelling need Charney Original Counterclaim Subject to Motion to Transfer Venue, Attach., Ex. A. See id. at 3 4 ¶ 10 the painting process.” Consequential damages are not recoverable unless the parties contemplated, at the time of contract formation, that such damages would be a probable result of the breach. Consequential damages, result naturally, but not necessarily, from the defendant s wrongful acts. Charney fails to provide any fact to suggest that the parties’ Contract contains any contemplation that a party would be entitled to expenses in repairing any defects or rent during such repairs And the damages are too remote, too uncertain, purely conjectural they cannot be recovered. And Charney s claim for consequential damages for paint, plaster/repair, or rent, is indeed, purely conjectural and conclusory nd fails to rovide sufficient fac that are plausible on their face to support that Charney incurred expenses resulted from defendant wrong Promissory Estoppel Charney can either plead promissory estoppel by claiming that Jovi s alleged promise th the work would be of the high quality/level 5 covered under the parties contract or be precluded from pleading promissory estoppel not th. Indeed, plaintiff cannot recover under promissory estoppel if a valid contract exists between the parties and covers the alleged promise. Rather, if a valid contract exists, the injured party must seek damages under the contract. Charney states that s alleged representation that the drywall repair services would be performed such that the finished product would be level 5/of the highest qualit . . . was part of the basis of the bargain . . . and [Charney] would not have entered into the agreement for services without this representati See id. at 3 ¶ 9. Basic Capital Mgmt., Inc. v. Dynex Commercial, Inc., 348 S.W.3d 894, 901 (Tex. 2011); Jatex Oil & Gas Expl. L.P. v. Nadel & Gussman Permian, L.L.C., 629 S.W.3d 397, 414 (Tex. App. Eastland 2020, no pet.). Arthur Andersen Co. Perry Equip. Corp , 945 S.W.2d 812, 816 (Tex. 1997) Charney Original Counterclaim Subject to Motion to Transfer Venue, Attach., Ex. A. Arthur Andersen 945 S.W.2d 812, 816 (Tex. 1997) (Emphasis added). onjecture, Merriam bster, https://www.merriam webster.com/dictionary/conjecture (last visited Oct. 21, 2022) ( inference formed without proof or sufficient evidence a conclusion deduced by surmise or guesswork Charney Original Counterclaim Subject to Motion to Transfer Venue, Attach., Ex. A. Page 5 6). Stewart Title Guar. Co. v. Stewart Title Latin Am., Inc., No. 4:12 03269, 2017 WL 1078759, at *9 (S.D. Tex. Mar. 21, 2017) Harris Const. Co. v. GGP Bridgeland, LP, 698 F. Supp. 2d 723, 726 (S.D. Tex. 2010) (citing Fertic v. Spencer, 247 S.W.3d 242, 250 (Tex. App. El Paso 2007, pet. denied); El Paso Healthcare Sys. Ltd. v. Piping Rock Corp., 939 S.W.2d 695, 699 (Tex. App. El Paso 1997, writ denied)). Id. citing El Paso Healthcare, 939 S.W.2d at 699). Charney Original Counterclaim Subject to Motion to Transfer Venue, Attach., Ex. A. Page Therefore, since Charney claims that a valid oral contract existed where allegedly promised the highest level of quality, described by the parties as Level 5 Charney promissory estoppel has no basis in law or fact failing to state a claim f relief that is plausible on its face ATTORNEY’S FEES Jovi further pleads that has been required retain attorneys bring the aforementionedactions, and, therefore, Jovi seeks recovery attorney’s fees under as prescribed under Texas Rules of Civil Procedure Section 91a.7 Jovi respectfully requests the Court to grant it, $ , in reasonable attorney’s fees incurred with respect to the challenged cause of action See id. PRAYER FOR THESE REASONS, Jovi prays that Charney be cited to appear, answer, and upon final hearing of this cause, a judgment be entered against Charney and in favor, awarding Jovi damages provided under Texas Jovi additionally prays such other and further relief, legal equitable, which show justly entitled. Respectfully submitted, Bernardo Villarreal Aguirre Bernardo Villarreal AguirreBar No. 24118578 Attorney Plaintiff/Counter Defendant Jovi Of Counsel to The Izaguirre Law Firm, PLLC Airline Dr. Houston, Texas 8999 Phone fax civil@izalaw.com CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing was served upon all parties to this case on ober 21 Kenna M. S SBN: 13944250 2700 Research Forest Drive, Suite 100 The Woodlands, Texas 77381 7791 Fax kseiler@theseilerlawfirm.com orney for Defendant/Counter Plaintiffs Respectfully submitted, /s/ Bernardo Villarreal Aguirre Bernardo Villarreal Aguirre NO. 2022-29729 JOVI DRYWALL IN THE DISTRICT COURT OF RISCOUNTY, TEXAS EG S. CHARNEY JUDICIAL DISTRICT DEFENDANT ORIGINAL COUNTERCLAIM SUBJECT TO MOTION TO TRANSFER VENUE O THE HONORABLE JUDGE OF SAID COURT: OMES NOW Defendant, Greg S. Charney files this Original Counterclaim against Plaintiff/Counter Defendant Jovi Drywall. These counterclaims are filed subject to, and without waiving, Counter Plaintiff’s Motion to Transfer Venue which was filed with the Court on July 25, 2022 and respectfully shows as follows: ARTIES 1. Defendant/Counter- laintiff Greg S. Charney (“Counter-Plaintiff”) has appeared herein. Plaintiff/Counter Defendant Jovi drywall (“Counter-Defendant”) has entered an appearance in this matter by initiating this litigation and may be served with this counterclaim pursuant to Rule 21a of the Texas Rules of Civil Procedure through their counsel of record. JURISDICTION AND VENU his Court has jurisdiction over the controversy because Counter Defendant ha directly and proximately caused damages to Counter Plaintiff in excess of the minimal jurisdictional limits of this Court. Venue is proper in Montgomery County, Texas, pursuant to Section 15.002(1) because all or a substantial part of the events giving rise to the claim occurred in Montgomery County. III. DISCOVERY CONTROL PLAN 5. Counter-Plaintiff intends to conduct discovery under the existing Level II discovery plan. IV. CLAIM FOR RELIEF 6. Counter-Plaintiff seeks only monetary relief of $,000.00 or less, including damages of any kind, penalties, court costs, expenses, prejudgment interest, and attorney fees. V. FACTUAL BACKGROUND 7. Counter-Defendant is a drywall installation company that services multiple cities in the surrounding Houston metropolitan area, including The Woodlands. Counter Plaintiff hired SVRC Pro as his general contractor to help renovate his residence located at 34 Jetty Point Dr., The Woodlands, Texas 77380 (“Residence”). Counter Defendant was then contracted by SVRC Pro to complete Counter Plaintiff’s drywall repairs (the “Drywall Repair Work”). At some point in or about December 2021, Count Plaintiff became dissatisfied with SVRC Pro and made the decision to fire SVRC Pro, but decided to retain Counter Defendant to complete the Drywall Repair Work which Counter-Defendant had already begun under its contract with SVRC Pro. 8. On or about December 27, 2021, Counter Plaintiff and Counter Defendant entered into an oral contract (“the Contract”) under which Counter Defendant agreed to complete the Drywall Repair Work, and Counter Plaintiff agreed to pay Counter Defendant $8,000.00 for the portion of the Drywall Repair Work Counter Defendant had already completed, plus $6,500.00 for the remainder of the Drywall Repair Work, for a grand total of $14,500.00. This agreement was confirmed again in a written text message exchange on January 14, 2022, in which Counter Plaintiff asked Counter Defendant to confirm that the $14,500.00 was inclusive of the entirety of the Drywall Repair Work and Counter Defendant confirmed same. On February 11, 2022, Counter Plaintiff attempted to make payment according to the Contract by sending a check for the agreed upon amount of $14,500.00 and a Lien Release Waiver to Counter Defendant, and Counter Defendant refused to accept, and instead demanded payment in excess of the agreed upon amount. Additionally, at some point after the February 11, 2022 attempted payment, Counter Plaintiff attempted to have the drywall repaired by Counter Defendant painted, but that paint job was never actually completed because the lack of quality of work done by Counter Defendant became clearly visible during the painting process. Counter Defendant had promised the highest level of quality, described by the parties as “level 5,” in its finished product and Counter Plaintiff expected same. The partial paint job that revealed the defects in Counter Defendant’s work had cost a total of $18,000.00, $12,000.00 for labor and $6,000.00 for the paint, at the point at which it had to be abandoned. Ultimately that entire amount was wasted as the painting had to be redone following repairs to Counter Defendant’s defective work. Counter Plaintiff then hired American General Contractors (“AGC”) to repair Counter Defendant’s defective drywall installation and re paint. Counter Defendant’s work was so severely defective that the walls had to be plastered to cover the defects sufficiently to allow for proper paint and finish. Counter Plaintiff had to pay AGC a total of $48,216.00, $22,000.00 for the plaster/repair work, and $28,216.00 for paint. Additionally, while the renovations, of which Counter Defendant’s work was a part, were being completed, Counter Plaintiff and his family could not occupy the Property and were forced to rent an apartment at a cost of $5,000.00 a month. The original paint job took one and one half months necessitating an expense of $7,500.00 in rent, and the need to repair the defects in Counter-Defendant’s work caused Counter-Plaintiff to remain in the rental property for an additional four months at a cost of $20,000.00. In the end, Counter Defendant’s defective work cost Counter-Plaintiff a total of $42, 716.00 in repair costs and excess rent. Therefor, once Counter Defendant is given credit for the $14,500.00 owed to Counter Defendant under the Contract, Counter Plaintiff has incurred $28,216.00 in damages. VI. COUNTERCLAIM A. Counterclaim for Breach of Contract 12. Paragraphs 7 through 11 are hereby incorporated by reference into this section as if fully set forth herein. Counter-Plaintiff entered into a contract (the Contract ) with Counter Defendant on or about December 27, 2021, when the parties agreed that Counter Defendant would provide labor and materials to complete the Drywall Repair Work, and that Counter Plaintiff would pay Counter Defendant $14,500.00 as full and final payment for both the portion of Drywall Repair Work which had previously been completed and the portion of the Drywall Repair Work yet to be completed. 13. Counter-Plaintiff fully performed his obligations under the Contract by tendering payment according to the contract on February 11, 2022, but Counter Defendant rejected that payment. 14. Counter-Defendant materially breached the terms of the Contract by demanding payment in excess of the agreed upon amount, and by failing to complete the Drywall Repair work in a good and workmanlike manner which necessitated costly repairs on the part of the Counter Plaintiff. Counter Plaintiff has been damaged by Counter Defendant’s breach of contract and is entitled to actual damages. Counter Plaintiff seeks damages including interest, costs, and attorney fees, which are within the jurisdictional limits of this Court. A plaintiff may recover damages for its expectation interest in a contract under Texas law. Sharifi v. Steen Auto., 370 S.W.3d 126, 148 (Tex. App.Dallas 2012, no pet.). Such expectation damages give a plaintiff the benefit of its bargain by placing the plaintiff in the same economic position it would have been in if the contract had been performed as intended. Id. Counter Plaintiff is entitled to benefit the argain damages in this case. Counter Plaintiff currently seeks damages in the amount of $28,216.00, plus interest, costs, and attorney fees, for both the expenses incurred by Counter Plaintiff up to the Counter Defendants’ breach B. Counterclaim for Promissory Estoppel Paragraphs through are hereby incorporated by reference into this section as if fully set forth herein. In the alternative, and without waiving any of the forgoing counterclaims or defenses, Counter Defendant promised Counter Plaintiff that Counter Defendant would complete the Drywall Repair Work begun by Counter Defendant while working as a subcontractor for SVRC Pro, that the work would be of the highest quality/level 5, and that the cost to Counter Plaintiff would not exceed $14,500.00. Counter Defendant knew, or reasonably should have known, that Counter Plaintiff would rely on Counter Defendant’s promises. Injustice to Counter Plaintiff can only be avoided if Counter Defendants promises are enforced. Counter Plaintiff’s reliance on Counter Defendant’s promises resulted in injury to Counter Plaintiff. Counter Plaintiff currently seeks actual damages in the amount of $28,216.00, plus attorney’s fees, prejudgment and postjudgment interest, and court costs. C. Counterclaim for Breach of Express Warranty Paragraphs through are hereby incorporated by reference into this section as if fully set forth herein. Counter Defendant provided drywall repair services to the Counter Plaintif Counter Defendant represented to Counter Plaintiff that the drywall repair services would be performed such that the finished product would be level 5/of the highest quality. Counter Defendant’s representation was part of the basis of the bargain in that Counter Plaintiff was relying on the requested quality in order to proceed to the next stages of his model, and would not have entered into the agreement for services without this representation. The service provided by Counter Defendant did not comply with Counter Defendant’s representation, which was a breach of Counter Defendant’s express warranty, in that, when Counter Defendant’s finished work was painted over it revealed that the Drywall Repair Work had not been completed to the level 5/highest quality as promised. Counter Defendant’s breach of warranty directly and proximately caused injury to Counter Plaintiff which resulted in real damages. Specifically, Counter Plaintiff had to pay $48,216.00 to repair and re paint to Counte Defendant’s work product to bring it up to the agreed upon level 5/highest quality finish and incurred excess rent of $20,000.00 while the defects were being repaired. Once such damages are offset against the $18,000.00 paid for the original paint job d $7,500.00 in rent incurred during that time period, Counter Plaintiff incurred a total of $42,716.00 in damages. After allowing an additional offset of $14,500.00 for the amount Counter Plaintiff owes Counter Defendant under the Contract, Counter Plaintiff currently seeks $28,216.00 in real damages, plus attorney’s fees, prejudgment and postjudgment interest, and court costs. D. Counterclaim for Breach of Implied Warranty Paragraphs through are hereby incorporated by reference into this section as if fully set forth herein. In the alternative, and without waiving any of the foregoing counterclaims or defenses, Counter Defendant provided drywall repair services to the Counter Plaintiff. Counter Defendant’s services involved making repairs to drywall at Counter Plaintiff’s Residence. Counter Defendant did not perform the services in a good and workmanlike manner, which was a breach of the implied warranty of good and workmanlike repair. Specifically, when Counter Defendant’s finished work was painted over it revealed that the Drywall Repair Work had not been completed in such a manner as to allow other tradesman to adequately perform their work which followed and built upon Counte Defendant’s work. Counter Defendant’s breach of warranty directly and proximately caused injury to Counter Plaintiff which resulted in real damages. Specifically, Counter Plaintiff had to pay $48,216.00 to repair and re paint to Counter Defendant’s work product to bring it up to the agreed upon level 5/highest quality finish and incurred excess rent of $20,000.00 while the defects were being repaired. Once such damages are offset against the $18,000.00 paid for the original paint job and $7,500.00 in rent incurred during that time period, Counter Plaintiff incurred a total of $42,716.00 in damages. After allowing an additional offset of $14,500.00 for the amount Counter Plaintiff owes Counter Defendant under the Contract, Counter Plaintiff currently seeks $28,216.00 in real damages, plus attorney’s fees, prejudgment and postjudgment interest, and court costs. ATTORNEY’S FEES 35. Counter-Plaintiff is entitled to recover reasonable attorney fees under Texas Civil Practice & Remedies Code chapter 38 because this suit is for breach of a written contract. Counter Plaintiff retained counsel, who presented Counter Plaintiff’s claims to Counter-Defendant. Counter-Defendant failed to make the final payment per the contract. CONDITIONS PRECEDENT 36. All conditions precedent to bringing this suit have occurred and proper notices have been sent. PRAYER FOR RELIEF For these reasons, Counter Plaintiff respectfully requests that the Counter Defendant be cited to appear herein and Counter Plaintiff have judgment for the relief requested herein and for such other and further relief to which the Counter Plaintiff may be justly entitled, including: Actual damages within the jurisdictional limits of the Court; b. Costs of suit, including reasonable and necessary attorney’s fees; Pre- and post-judgment interest, and d. All other relief to which Counter-Plaintiff may be entitled by law. Respectfully submitted, SEILER, PLLC /s/ Kenna M. Seiler Kenna M. Seiler State Bar No. 13944250 kseiler@theseilerlawfirm.com 2700 Research Forest Drive, Suite 100 The Woodlands, Texas 77381 (281) 419-7770 (281) 419-7791 - Telecopier ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE Pursuant to Rules 21. and 21a. of the Texas Rules of Civil Procedure, I hereby certify that the original of Defendant/Counter-Plaintiff’s Original Counterclaim has been filed with the clerk of the court in writing, and a true and correct copy has been delivered to all interested parties on August 24, 2022. Bernardo Villarreal Aguirre Law Office of Bernardo Villarreal, PLLC 610 N. Loop 366 E, Suite # 113 Conroe, Texas 77301 Contact@Villarreal Lawfirm.com /s/ Kenna M. Seiler Kenna M. Seiler