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Filed: 2/27/2020 11:19 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 41202872
By: Lisa Kelly
2/27/2020 11:42 AM
CAUSE NO. 19-CV-2191
SHARON DAVIS., INDIVIDUALLY and as IN THE DISTRICT COURT OF
ASSIGNEE OF THE CITY OF GALVESTON
Plaintiff
v.
QUALITY WORKS CONSTRUCTION, INC. GALVESTON COUNTY, TEXAS
, and
INSURORS INDEMNITY COMPANY 56TH JUDICIAL DISTRICT
Defendants
PLAINTIFF’S FIRST AMENDED PETITION
COMES NOW, SHARON DAVIS, (“DAVIS”), Plaintiff, and files this her First
Amended Petition and Request for Specific Performance against Quality Works Construction, Inc.
(“Quality”), and Insurors Indemnity Company, (collectively “Defendants”) and shows the Court
the following:
A. Parties
SHARON DAVIS, is an individual residing in the City of Galveston, Galveston
County Texas.
Defendant QUALITY WORKS CONSTRUCTION, INC. is a corporation which
has apparently reinstated its authority to work in Texas and has answered herein.
Defendant INSURORS INDEMNITY COMPANY, is a Texas corporation doing
insurance business in Texas which has answered herein.
B. Discovery
This is a level 2 discovery case but Plaintiff will request the Court enter a scheduling order
with expedited dates for discovery and other matters and an expedited trial date.
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C. Venue
Venue is mandatory in Galveston County because the suit involves damages to real
property located in Galveston County.
Venue is proper in Galveston, Galveston County, Texas because all or a substantial part of
the events giving rise to this claim occurred in Galveston County. Venue is proper pursuant to
15.001, et seq. Texas Civil Practice and Remedies Code.
D. Facts
On February 23rd of 2017, DAVIS entered into an agreement with Quality Works
Construction with Defendants, a company qualified by and through the City of Galveston to
renovate the historic home owned by Davis in order to bring it up to code. The Property consists
of a single-family home. The address is 1715 Winnie, Galveston, TX.
An additional agreement on April 28 of 2017 required DAVIS to move out of the Property
for a time period of sixty (60) days only. She was verbally assured the maximum time frame
would not be more than ninety days. It was January 19th of 2018 when she was notified by the
City that construction was finally complete (as represented by Defendant, Quality.) Davis was
allowed to move back into the Property the end of November, 2018 if she could accept the property
on an “as is” basis which she did. DAVIS had to make alternate living arrangements at her own
expense during the construction.
DAVIS agreed to the scope of work and moved out according to the contract. DAVIS
agreed to purchase the alternate living arrangements for the sixty (60) days required. Defendant,
Quality, at the site and noted that the beams which were to have been replaced in the “L” at the rear
of the house had not been done and that they were being painted over. Afterwards, as required, she
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notified the City Grant Office. Returning a few days later, the back porch and steps had been
installed and bolted into the damaged beams which were still not replaced. Again, she noted to
Defendant, Quality, of the issue and again notified the City Grant Office because of Defendants
actions of ignoring the beams and trying to cover up the problem.
On July 14th of 2017, Davis met several City Grant representatives and Defendant, Quality
at the site. Because this issue had been ignored and Defendant was told he had to remedy this
situation regarding the beams as they were on his scope of work, Defendant, Quality, demanded
that DAVIS not be allowed on the site in the future and threatened immediate termination of the
Construction. DAVIS was in reasonable fear for the well-being of her property and notified a
nominal party to the Construction Agreement, the CITY OF GALVESTON.
After DAVIS was prevented, due to Quality’s demands from returning to the Property,
Defendant began again to procrastinate on the unfinished work. Defendant, Quality, did not
complete the project and further delays occurred which prevented Plaintiff, DAVIS, from moving
back into the property. Defendant, QUALITY failed to complete the project and alleged that the
project was complete. In fact, after moving back into the property during the month of
December of 2018, Plaintiff, DAVIS discovered work specifically called for the by the work order
was made to appear to be finished, which in fact, had not been finished (i.e., replacement of a
structural beam). Defendant received payments under the contract to Defendant Quality’s profit
as to the work made to appear was done which in fact was still uncompleted. Other work was
done in a substandard fashion which required outlays by Plaintiff for remedying the deficiencies in
Quality’s work.
Plaintiff discovered work specifically called for by the work that was made to appear to
be finished, which in fact had not been finished (i.e., replacement of a structural beam, supposed
3
repairs to the roof). Defendants received payments under the contract to Defendant Quality’s profit
as to the work it made to appear was done which in fact was uncompleted. The work which was in
fact done was done in a substandard fashion which have required or will require outlays by
Plaintiff for remedying the deficiencies in Quality’s work.
DAVIS has recently discovered substandard work to the roof which means the roof is not
windstorm certifiable as represented by Defendants.
On Feb. 20, 2020, DAVIS entered into a fully enforceable assignment agreement assigning
all rights of the CITY OF GALVESTON concerning the Defendants and the transactions made the
basis of this suit to her.
1. The Construction Agreement
Section 5 of the Construction Agreement relates to "Contractor/Responsibilities". “The
Contractor shall in all Instances conform to the conditions set forth by the Texas Historical
Commission (THC) for projects that are applicable under Section 106 Review of the National
Historical Preservation Act of 1966. (A copy of such correspondence from THC Is attached and
incorporated for all purposes.)". Section 5 goes on to say "the Contractor shall be responsible for
all construction means, methods, techniques, sequences, and procedures and for coordinating all
portions of the work under this Rehabilitation Agreement. The Contractor shall provide and pay
for all labor, materials, equipment, tools, construction equipment and machinery, transportation,
and other facilities and services necessary for the proper execution and completion of the work,
whether temporary or permanent and whether or not incorporated or to be incorporated into the
work. The Contractor warrants that all materials and equipment incorporated or to be incorporated
into the work will be new unless otherwise specified, and that all work will be completed in the
highest quality and workmanship possible."
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Section 6 is entitled "Liquidated Damages" and states "Depending on the duration of the
job, liquidated damages may be assessed should the job exceed the amount of time Indicated in
Section 2 of this document {Time of Commencement and Completion). The Liquidated Damages
are assessed at a rate of $250.00 per day exceeding the date of completion for each day that the
project extends past the date of completion.” The time allotted in Section 2 was through June 28,
2017. Defendant Quality was granted one extension by the City of Galveston, which extension
was opposed by Plaintiff and which is not covered by the contract.
"Remedies" for breach of this contract include all common law and statutory remedies. In
this case, Defendant Quality did breach the contract.
2. The Bond
Under the terms of the agreements entered into by the parties - including the Construction
Agreement DAVIS was provided a bond issued by INDEMNITY. The bond authorized the
underwriter to complete the Work to the Property with other businesses and to make good on the
warranty. DAVIS has placed the bonding company on notice of her claim under the Bond. (Exhibit
A, bond attached as Exhibit A and incorporated by reference.
Defendant INDEMNITY still has not remedied the unfinished Work.
CAUSES OF ACTION
E. Count 1 - Breach of Contract
DAVIS entered into the Construction Agreement with Defendants. Defendants breached
these agreements by failing to comply with the terms of the agreements as set forth above.
Defendants’ breaches of these agreements caused Plaintiff’s damages.
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G. Count 2 - Fraud
Defendants made representations to DAVIS regarding the Construction Agreement and
their work on the Property. These representations were material and false and when Defendants
made these representations they knew they were false. Defendants made these representations so
DAVIS would act on them by accepting the work, paying for the work, and in reliance on the
Construction Agreement, urging the City of Galveston to expedite the work. DAVIS acted on
these representations, relied on these representations, and they caused Plaintiff’s damages.
H. Count 3 - Wrongful Delays in Prosecution of the Work
Under the Construction Agreement, the work was to be done on or about June 28, 2017.
Plaintiff could not reasonably occupy the home until she returned. Under the construction
agreement, the Defendant Quality fails to comply in any respect with the move-in provisions
Construction agreement, is liable to the Plaintiff for liquidate damages resulting from the failure.
As outlined in Section D above, Defendants failed to comply with the Construction
Agreement and as such Defendants are liable to DAVIS for their failure to comply and wrongful
failure to timely prosecute the work.
Additionally, Defendants misrepresented their ability to finish Work on time. Plaintiff has
a valid and enforceable Construction Agreement and Defendants should be liable for the alternate
living expense cost under the Construction Agreement and/or pursuant to the Deceptive Trade
Practices Act. (Exh. B, incorporated by reference).
I. Count 4 - Defendants Acted Knowingly or Maliciously
Because DAVIS, has pled a cause of action for wrongful representations and fraud against
Defendant QUALITY, they are entitled to punitive/exemplary damages upon a showing that
Defendants acted knowingly or maliciously. It is clear from their actions that Defendants acted
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both knowingly and maliciously when they covered up the structural beam that both the City of
Galveston and its architect agreed needed to be replaced under the scope of work agreed to by
Quality, with facing, intended to prevent DAVIS and the City, from knowing the true status of the
work on the Property. The representation that the roof was completed according to windstorm
requirements was knowingly false.
J. Count 5 – Deceptive Trade Practices Act
There was also a consumer relationship between DAVIS and Defendant Quality.
Defendant Quality is liable for the following under the Act:
1.(b)(5) representing that goods or services have sponsorship, approval, characteristics,
ingredients, uses, benefits or qualities which they do not have;
2.(2) -- causing confusion or misunderstanding as to the source, sponsorship,approval or
certification of goods or services; that a person has a sponsorship, approval, status,
affiliation or connection which he does not;
3.(14) -- misrepresenting the authority of a salesman, representative or agent to negotiate the
final terms of a consumer transaction; and
4.(19) -- representing that a guarantee or warranty confirms or involves rights or remedies
which it does not have or involve...
Plaintiff has complied with the notice requirement of the Texas Deceptive Trade Practices
Act (Exhibit B).
. K. Count 6 – SPECIFIC PERFORMANCE AND ESTOPPEL
Defendant Indemnity Insurors and its underwriters are liable for specific performance
under the terms of the bond: NO. CNB-22608-00. Defendant Indemnity Insurors and its
underwriters are liable for warrantied items (see Facts at D. 1) under the terms of the bond: NO.
CNB-22608-00. Exhibit A, incorporated by reference. All conditions precedent to Plaintiff
making demand on behalf of bondholder City of Galveston have been met.
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With respect to Defendant Indemnity’s claim in its original Answer that SHARON DAVIS
is without standing to assert these causes of action for action upon the bond, Plaintiff shows that
Defendant should be estopped to assert such defense based upon position to the contrary asserted
Jan. 15, 2019 (Exhibit “C”).
L. COUNT 7. RELIEF FOR BREACH OF EXPRESS AND IMPLIED WARRANTIES
AND ATTORNEY’S FEES
Plaintiff shows that the Defendant Quality is Liable for Breach of Warranties and has
liability under Texas Civil Practices & Remedies Cd. Chapter 38:
(1) the Defendant Quality sold the services.
(2) Defendant Quality made representations about the nature and quality of the
services; the warranties made and implied were a part of the bargain.
(3) Defendant Quality breached the warranties and has received notice of
presentment and has failed to remedy the Work within the scope required.
(4) Defendant Quality’s breach has resulted in damages set out below and in attorney’s
fees reasonably incurred by Plaintiff under Tex. Civ. Prac. & Rem. Code Ann.
Chap. 38.
M. Count 8 – Wrongful Delays in Prosecution of the Work
Under the Construction Agreement, the work was to be done on or before June 28, 2017.
Plaintiff could not reasonably occupy the home until November 30th, 2018. Under the
construction agreement, the Defendant, Quality, failed to comply in any respect with the move-in
provisions in the Construction Agreement, and is liable to the Plaintiff for liquidated damages
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resulting from this failure.
DAVIS agreed to the scope of work and moved out according to the contract. DAVIS
agreed to purchase the alternate living arrangements required.
Said alternate living arrangements are also assigned as damages.
N. Plaintiff’s Damages
Plaintiff is entitled to past and future: actual damages due to breach of written contract and
written warranty, treble damages for knowing violation of the DTPA or for fraud, expectancy
damages, reliance damages, restitution damages, loss of value damages, benefit-of-the-bargain
damages, loss of credit, loss of goodwill, out-of-pocket damages, and economic damages.
Additionally, Plaintiff is seeking punitive damages, exemplary damages, and attorney’s fees.
O. Demand For Jury
Plaintiff demands a jury trial and tender the appropriate fee with this petition.
P. Request for Disclosure
Under Texas Rule of Civil Procedure 194, Plaintiff requests that Defendants disclose,
within 50 days of the service of this request, the information or material described in Rule
194.2(a-k).
Q. Prayer
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants be cited to
appear and answer and that Plaintiff have judgment against Defendants, costs of court and all such
other and further relief to which she is justly entitled.
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Respectfully submitted,
CALDWELL FLETCHER, P.C.
_/s/ Caldwell Fletcher__________
CALDWELL FLETCHER
State Bar No. 07141710
3401 Allen Parkway, Suite 100
Houston, Texas 77019
(713) 284-1624
(713) 583-9883 (Facsimile)
caldwell@caldwellfletcherpc.com
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served on the
following recipients on this 27th day of Feb., 2020:
Mr. Dan N. MacLemore
BEARD KULTGEN BROPHY
BOSTWICK & DICKSON, PLLC
220 South Fourth Street
Waco, Texas 76701
Byron K. Barclay
The Barclay Law Firm
705 Chelsea Boulevard
Houston, Texas 77006-6205
/s/Caldwell Fletcher
______
CALDWELL FLETCHER
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EXHIBIT "A"
EXHIBIT "C"
Preview
Filed: 2/27/2020 11:19 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 41202872 By: Lisa Kelly 2/27/2020 11:42 AM CAUSE NO. 19-CV-2191 SHARON DAVIS., INDIVIDUALLY and as IN THE DISTRICT COURT OF ASSIGNEE OF THE CITY OF GALVESTON Plaintiff v. QUALITY WORKS CONSTRUCTION, INC. GALVESTON COUNTY, TEXAS , and INSURORS INDEMNITY COMPANY 56TH JUDICIAL DISTRICT Defendants PLAINTIFF’S FIRST AMENDED PETITION COMES NOW, SHARON DAVIS, (“DAVIS”), Plaintiff, and files this her First Amended Petition and Request for Specific Performance against Quality Works Construction, Inc. (“Quality”), and Insurors Indemnity Company, (collectively “Defendants”) and shows the Court the following: A. Parties SHARON DAVIS, is an individual residing in the City of Galveston, Galveston County Texas. Defendant QUALITY WORKS CONSTRUCTION, INC. is a corporation which has apparently reinstated its authority to work in Texas and has answered herein. Defendant INSURORS INDEMNITY COMPANY, is a Texas corporation doing insurance business in Texas which has answered herein. B. Discovery This is a level 2 discovery case but Plaintiff will request the Court enter a scheduling order with expedited dates for discovery and other matters and an expedited trial date. 1 C. Venue Venue is mandatory in Galveston County because the suit involves damages to real property located in Galveston County. Venue is proper in Galveston, Galveston County, Texas because all or a substantial part of the events giving rise to this claim occurred in Galveston County. Venue is proper pursuant to 15.001, et seq. Texas Civil Practice and Remedies Code. D. Facts On February 23rd of 2017, DAVIS entered into an agreement with Quality Works Construction with Defendants, a company qualified by and through the City of Galveston to renovate the historic home owned by Davis in order to bring it up to code. The Property consists of a single-family home. The address is 1715 Winnie, Galveston, TX. An additional agreement on April 28 of 2017 required DAVIS to move out of the Property for a time period of sixty (60) days only. She was verbally assured the maximum time frame would not be more than ninety days. It was January 19th of 2018 when she was notified by the City that construction was finally complete (as represented by Defendant, Quality.) Davis was allowed to move back into the Property the end of November, 2018 if she could accept the property on an “as is” basis which she did. DAVIS had to make alternate living arrangements at her own expense during the construction. DAVIS agreed to the scope of work and moved out according to the contract. DAVIS agreed to purchase the alternate living arrangements for the sixty (60) days required. Defendant, Quality, at the site and noted that the beams which were to have been replaced in the “L” at the rear of the house had not been done and that they were being painted over. Afterwards, as required, she 2 notified the City Grant Office. Returning a few days later, the back porch and steps had been installed and bolted into the damaged beams which were still not replaced. Again, she noted to Defendant, Quality, of the issue and again notified the City Grant Office because of Defendants actions of ignoring the beams and trying to cover up the problem. On July 14th of 2017, Davis met several City Grant representatives and Defendant, Quality at the site. Because this issue had been ignored and Defendant was told he had to remedy this situation regarding the beams as they were on his scope of work, Defendant, Quality, demanded that DAVIS not be allowed on the site in the future and threatened immediate termination of the Construction. DAVIS was in reasonable fear for the well-being of her property and notified a nominal party to the Construction Agreement, the CITY OF GALVESTON. After DAVIS was prevented, due to Quality’s demands from returning to the Property, Defendant began again to procrastinate on the unfinished work. Defendant, Quality, did not complete the project and further delays occurred which prevented Plaintiff, DAVIS, from moving back into the property. Defendant, QUALITY failed to complete the project and alleged that the project was complete. In fact, after moving back into the property during the month of December of 2018, Plaintiff, DAVIS discovered work specifically called for the by the work order was made to appear to be finished, which in fact, had not been finished (i.e., replacement of a structural beam). Defendant received payments under the contract to Defendant Quality’s profit as to the work made to appear was done which in fact was still uncompleted. Other work was done in a substandard fashion which required outlays by Plaintiff for remedying the deficiencies in Quality’s work. Plaintiff discovered work specifically called for by the work that was made to appear to be finished, which in fact had not been finished (i.e., replacement of a structural beam, supposed 3 repairs to the roof). Defendants received payments under the contract to Defendant Quality’s profit as to the work it made to appear was done which in fact was uncompleted. The work which was in fact done was done in a substandard fashion which have required or will require outlays by Plaintiff for remedying the deficiencies in Quality’s work. DAVIS has recently discovered substandard work to the roof which means the roof is not windstorm certifiable as represented by Defendants. On Feb. 20, 2020, DAVIS entered into a fully enforceable assignment agreement assigning all rights of the CITY OF GALVESTON concerning the Defendants and the transactions made the basis of this suit to her. 1. The Construction Agreement Section 5 of the Construction Agreement relates to "Contractor/Responsibilities". “The Contractor shall in all Instances conform to the conditions set forth by the Texas Historical Commission (THC) for projects that are applicable under Section 106 Review of the National Historical Preservation Act of 1966. (A copy of such correspondence from THC Is attached and incorporated for all purposes.)". Section 5 goes on to say "the Contractor shall be responsible for all construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the work under this Rehabilitation Agreement. The Contractor shall provide and pay for all labor, materials, equipment, tools, construction equipment and machinery, transportation, and other facilities and services necessary for the proper execution and completion of the work, whether temporary or permanent and whether or not incorporated or to be incorporated into the work. The Contractor warrants that all materials and equipment incorporated or to be incorporated into the work will be new unless otherwise specified, and that all work will be completed in the highest quality and workmanship possible." 4 Section 6 is entitled "Liquidated Damages" and states "Depending on the duration of the job, liquidated damages may be assessed should the job exceed the amount of time Indicated in Section 2 of this document {Time of Commencement and Completion). The Liquidated Damages are assessed at a rate of $250.00 per day exceeding the date of completion for each day that the project extends past the date of completion.” The time allotted in Section 2 was through June 28, 2017. Defendant Quality was granted one extension by the City of Galveston, which extension was opposed by Plaintiff and which is not covered by the contract. "Remedies" for breach of this contract include all common law and statutory remedies. In this case, Defendant Quality did breach the contract. 2. The Bond Under the terms of the agreements entered into by the parties - including the Construction Agreement DAVIS was provided a bond issued by INDEMNITY. The bond authorized the underwriter to complete the Work to the Property with other businesses and to make good on the warranty. DAVIS has placed the bonding company on notice of her claim under the Bond. (Exhibit A, bond attached as Exhibit A and incorporated by reference. Defendant INDEMNITY still has not remedied the unfinished Work. CAUSES OF ACTION E. Count 1 - Breach of Contract DAVIS entered into the Construction Agreement with Defendants. Defendants breached these agreements by failing to comply with the terms of the agreements as set forth above. Defendants’ breaches of these agreements caused Plaintiff’s damages. 5 G. Count 2 - Fraud Defendants made representations to DAVIS regarding the Construction Agreement and their work on the Property. These representations were material and false and when Defendants made these representations they knew they were false. Defendants made these representations so DAVIS would act on them by accepting the work, paying for the work, and in reliance on the Construction Agreement, urging the City of Galveston to expedite the work. DAVIS acted on these representations, relied on these representations, and they caused Plaintiff’s damages. H. Count 3 - Wrongful Delays in Prosecution of the Work Under the Construction Agreement, the work was to be done on or about June 28, 2017. Plaintiff could not reasonably occupy the home until she returned. Under the construction agreement, the Defendant Quality fails to comply in any respect with the move-in provisions Construction agreement, is liable to the Plaintiff for liquidate damages resulting from the failure. As outlined in Section D above, Defendants failed to comply with the Construction Agreement and as such Defendants are liable to DAVIS for their failure to comply and wrongful failure to timely prosecute the work. Additionally, Defendants misrepresented their ability to finish Work on time. Plaintiff has a valid and enforceable Construction Agreement and Defendants should be liable for the alternate living expense cost under the Construction Agreement and/or pursuant to the Deceptive Trade Practices Act. (Exh. B, incorporated by reference). I. Count 4 - Defendants Acted Knowingly or Maliciously Because DAVIS, has pled a cause of action for wrongful representations and fraud against Defendant QUALITY, they are entitled to punitive/exemplary damages upon a showing that Defendants acted knowingly or maliciously. It is clear from their actions that Defendants acted 6 both knowingly and maliciously when they covered up the structural beam that both the City of Galveston and its architect agreed needed to be replaced under the scope of work agreed to by Quality, with facing, intended to prevent DAVIS and the City, from knowing the true status of the work on the Property. The representation that the roof was completed according to windstorm requirements was knowingly false. J. Count 5 – Deceptive Trade Practices Act There was also a consumer relationship between DAVIS and Defendant Quality. Defendant Quality is liable for the following under the Act: 1.(b)(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or qualities which they do not have; 2.(2) -- causing confusion or misunderstanding as to the source, sponsorship,approval or certification of goods or services; that a person has a sponsorship, approval, status, affiliation or connection which he does not; 3.(14) -- misrepresenting the authority of a salesman, representative or agent to negotiate the final terms of a consumer transaction; and 4.(19) -- representing that a guarantee or warranty confirms or involves rights or remedies which it does not have or involve... Plaintiff has complied with the notice requirement of the Texas Deceptive Trade Practices Act (Exhibit B). . K. Count 6 – SPECIFIC PERFORMANCE AND ESTOPPEL Defendant Indemnity Insurors and its underwriters are liable for specific performance under the terms of the bond: NO. CNB-22608-00. Defendant Indemnity Insurors and its underwriters are liable for warrantied items (see Facts at D. 1) under the terms of the bond: NO. CNB-22608-00. Exhibit A, incorporated by reference. All conditions precedent to Plaintiff making demand on behalf of bondholder City of Galveston have been met. 7 With respect to Defendant Indemnity’s claim in its original Answer that SHARON DAVIS is without standing to assert these causes of action for action upon the bond, Plaintiff shows that Defendant should be estopped to assert such defense based upon position to the contrary asserted Jan. 15, 2019 (Exhibit “C”). L. COUNT 7. RELIEF FOR BREACH OF EXPRESS AND IMPLIED WARRANTIES AND ATTORNEY’S FEES Plaintiff shows that the Defendant Quality is Liable for Breach of Warranties and has liability under Texas Civil Practices & Remedies Cd. Chapter 38: (1) the Defendant Quality sold the services. (2) Defendant Quality made representations about the nature and quality of the services; the warranties made and implied were a part of the bargain. (3) Defendant Quality breached the warranties and has received notice of presentment and has failed to remedy the Work within the scope required. (4) Defendant Quality’s breach has resulted in damages set out below and in attorney’s fees reasonably incurred by Plaintiff under Tex. Civ. Prac. & Rem. Code Ann. Chap. 38. M. Count 8 – Wrongful Delays in Prosecution of the Work Under the Construction Agreement, the work was to be done on or before June 28, 2017. Plaintiff could not reasonably occupy the home until November 30th, 2018. Under the construction agreement, the Defendant, Quality, failed to comply in any respect with the move-in provisions in the Construction Agreement, and is liable to the Plaintiff for liquidated damages 8 resulting from this failure. DAVIS agreed to the scope of work and moved out according to the contract. DAVIS agreed to purchase the alternate living arrangements required. Said alternate living arrangements are also assigned as damages. N. Plaintiff’s Damages Plaintiff is entitled to past and future: actual damages due to breach of written contract and written warranty, treble damages for knowing violation of the DTPA or for fraud, expectancy damages, reliance damages, restitution damages, loss of value damages, benefit-of-the-bargain damages, loss of credit, loss of goodwill, out-of-pocket damages, and economic damages. Additionally, Plaintiff is seeking punitive damages, exemplary damages, and attorney’s fees. O. Demand For Jury Plaintiff demands a jury trial and tender the appropriate fee with this petition. P. Request for Disclosure Under Texas Rule of Civil Procedure 194, Plaintiff requests that Defendants disclose, within 50 days of the service of this request, the information or material described in Rule 194.2(a-k). Q. Prayer WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants be cited to appear and answer and that Plaintiff have judgment against Defendants, costs of court and all such other and further relief to which she is justly entitled. 9 Respectfully submitted, CALDWELL FLETCHER, P.C. _/s/ Caldwell Fletcher__________ CALDWELL FLETCHER State Bar No. 07141710 3401 Allen Parkway, Suite 100 Houston, Texas 77019 (713) 284-1624 (713) 583-9883 (Facsimile) caldwell@caldwellfletcherpc.com ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served on the following recipients on this 27th day of Feb., 2020: Mr. Dan N. MacLemore BEARD KULTGEN BROPHY BOSTWICK & DICKSON, PLLC 220 South Fourth Street Waco, Texas 76701 Byron K. Barclay The Barclay Law Firm 705 Chelsea Boulevard Houston, Texas 77006-6205 /s/Caldwell Fletcher ______ CALDWELL FLETCHER 10 EXHIBIT "A" EXHIBIT "C"