Preview
Electronically Submitted
9/11/2023 11:41 AM
Hidalgo County Clerk
Accepted by: Alexis Medina
NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA.
No. CL-18-5173 -J
EDUARDO SILVA § IN THE COUNTY COURT
Plaintiff §
§
V. § AT LAW NUMBER TEN (10)
§
SONIA RODRIGUEZ and §
JUAN RODRIGUEZ §
Defendants § HIDALGO COUNTY, TEXAS
PLAINTIFF’S SECOND AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES EDUARDO SILVA, Plaintiff herein, complaining of and about SONIA
RODRIGUEZ and JUAN RODRIGUEZ, Defendants herein, and for cause of action shows unto
the Court the following:
DISCOVERY CONTROL PLAN LEVEL
1. Plaintiff intends that discovery be conducted under Discovery Level 2.
PARTIES AND SERVICE
2. Plaintiff, EDUARDO SILVA, is an individual residing in Collin County, Texas.
3. Defendant, SONIA RODRIGUEZ, is an individual residing in Hidalgo County,
Texas who has appeared and answered herein, and therefore no service of process is necessary.
4. Defendant, JUAN RODRIGUEZ, is an individual residing in Hidalgo County,
Texas who has appeared and answered herein, and therefore no service of process is necessary.
JURISDICTION AND VENUE
5. This Court possesses jurisdiction because the amount in controversy lies within the
jurisdictional limits of this Court.
_____________________________________________________________________________________________
Silva vs. Rodriguez; Case #: CL-18-5173-J
Plaintiff’s Second Amended Petition Page 1 of 5
Electronically Submitted
9/11/2023 11:41 AM
Hidalgo County Clerk
Accepted by: Alexis Medina
6. Venue is proper in Hidalgo County because all or a substantial part of the events
and omissions giving rise to these claims occurred in Hidalgo County and because Defendants are
residents of Hidalgo County.
FACTUAL ALLEGATIONS
7. In 2003, EDUARDO SILVA (hereinafter referred to as “SILVA”) loaned
$19,000.00 to SONIA RODRIGUEZ and JUAN RODRIGUEZ, her husband, (hereinafter
collectively referred to as “RODRIGUEZ”) in exchange for their promise to pay it back (the
“Agreement”). This loan was made for the purpose of RODRIGUEZ paying off the debt they owed
to REYES SILVA, brother of EDUARDO SILVA, for constructing RODRIGUEZ’s home.
EDUARDO SILVA provided other loans to his family members around the time the Agreement
was entered into. This is because EDUARDO SILVA’S business was flourishing and he wanted
to help out his family.
8. SONIA RODRIGUEZ is EDUARDO SILVA’S sister. As such, the terms of the
loan to RODRIGUEZ were lax. RODRIGUEZ were to repay the loan as their financial condition
permitted. No interest rate was agreed upon.
9. RODRIGUEZ utilized Plaintiff’s $19.000.00 to pay off their house.
10. Around 2017 and 2018, RODRIGUEZ’s financial condition improved.
Consequently, SILVA demanded that the monies be repaid to him. However, despite improvement
of their circumstances, RODRIGUEZ never attempted to repay the $19,000.00, despite repeated
demands. Accordingly, it was only at that time that SILVA discovered RODRIGUEZ’s
misconduct.
_____________________________________________________________________________________________
Silva vs. Rodriguez; Case #: CL-18-5173-J
Plaintiff’s Second Amended Petition Page 2 of 5
Electronically Submitted
9/11/2023 11:41 AM
Hidalgo County Clerk
Accepted by: Alexis Medina
CAUSES OF ACTION
11. The above and foregoing constitutes money had and received. Defendants possess
monies which, in good conscious, belong to Plaintiff. As a result, Plaintiff should be permitted
such funds.
12. The above and foregoing constitutes fraud. When Defendants took the money from
Plaintiff, they represented that they would pay the money back. Such representation was false.
Plaintiff relied upon such representation to his detriment. As a result of such reliance, Plaintiff has
been damaged.
13. The above and foregoing constitutes breach of contract. Plaintiff and Defendants
entered into a contract, whereby Plaintiff agreed to loan Defendants money, and Defendants agreed
to pay Plaintiff back when they were able. Although eventually Defendants were able to pay
Plaintiff back, they failed to do so. As a result, Plaintiff has been damaged.
14. The above and foregoing constitutes promissory estoppel. If Defendants were
loaned money by Plaintiff, Defendants promised to repay Plaintiff when they were able. Based on
this promise, Plaintiff loaned money to Defendants. However, Defendants failed to repay monies
when they were able. As a result, Plaintiff have been harmed.
DAMAGES AND OTHER RELIEF
15. Plaintiff is entitled to the face amount of the monies received by Defendants, the
$19.000.00.
16. Plaintiff is entitled to mental anguish in the past.
17. Plaintiff is entitled reasonable and necessary attorney’s fees.
18. Plaintiff is entitled to pre-judgment and post-judgment at the maximum rate as
provided by law.
_____________________________________________________________________________________________
Silva vs. Rodriguez; Case #: CL-18-5173-J
Plaintiff’s Second Amended Petition Page 3 of 5
Electronically Submitted
9/11/2023 11:41 AM
Hidalgo County Clerk
Accepted by: Alexis Medina
19. Plaintiff is entitled to all costs of court.
20. Because of Defendants use of the monies, Plaintiff is entitled to a constructive trust
being placed on Defendants’ property. Upon entry of the judgment, Plaintiff requests that such
property be foreclosed upon by judicial foreclosure. After the sale of Defendants’ property,
Plaintiff requests that any resulting judgment be satisfied.
AFFIRMATIVE PLEA
21. All conditions precedent have been satisfied and/or excused.
22. Plaintiff invokes the discovery rule.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff, EDUARDO SILVA,
respectfully prays that after trial on the merits, that he recovers his actual damages, reasonable and
necessary attorney’s fees, pre-judgment and post-judgment interest at the maximum rate provided
by law, all costs of court, and for all other and further relief, either at law or in equity, to which
SILVA shows himself justly entitled.
Respectfully submitted,
THE LAW OFFICE OF DAMIAN C. OROZCO, P.C.
1138 East Expressway 83, Suite C.
Pharr, Texas 78577
Tel: (956) 782-5447
Fax: (956) 782-5448
By: /s/ Damian C. Orozco
Damian C. Orozco
State Bar No. 24008756
E-Mail: dorozco@orozco-law.com
Attorney for Plaintiff
_____________________________________________________________________________________________
Silva vs. Rodriguez; Case #: CL-18-5173-J
Plaintiff’s Second Amended Petition Page 4 of 5
Electronically Submitted
9/11/2023 11:41 AM
Hidalgo County Clerk
Accepted by: Alexis Medina
CERTIFICATE OF SERVICE
I certify that on September 11, 2023, a true and correct copy of the forgoing instrument
was served on each attorney of record or party listed below by electronic mail.
Via E-Service:
Scott Walsh, Attorney
WALSH, MCGURK, CORDOVA, NIXON, PLLC
4900-B N. 10th Street
McAllen, Texas 78504
Tel: (956) 632-5013
Fax: (956) 630-5050
Email: swalsh@wmcnlaw.com
Email: fcabrera@wmcnlaw.com
By: /s/ Damian C. Orozco
Damian C. Orozco
Attorney for Plaintiff
_____________________________________________________________________________________________
Silva vs. Rodriguez; Case #: CL-18-5173-J
Plaintiff’s Second Amended Petition Page 5 of 5
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Cristal Gonzalez on behalf of Damian Orozco
Bar No. 24008756
cgonzalez@orozco-law.com
Envelope ID: 79401498
Filing Code Description: Amended Filing
Filing Description: Plaintiff's Second Amended Petition
Status as of 9/11/2023 1:57 PM CST
Associated Case Party: EDUARDO SILVA
Name BarNumber Email TimestampSubmitted Status
Damian C Orozco dorozco@orozco-law.com 9/11/2023 11:41:54 AM SENT
The Law Office of Damian COrozco cgonzalez@orozco-law.com 9/11/2023 11:41:54 AM SENT
The Law Office of Damian COrozco jgarcia@orozco-law.com 9/11/2023 11:41:54 AM SENT
Associated Case Party: SONIA RODRIGUEZ
Name BarNumber Email TimestampSubmitted Status
Scott AWalsh swalsh@ktattorneys.com 9/11/2023 11:41:54 AM SENT
Associated Case Party: JUAN RODRIGUEZ
Name BarNumber Email TimestampSubmitted Status
Scott AWalsh swalsh@ktattorneys.com 9/11/2023 11:41:54 AM SENT
Scott A.Walsh swalsh@wmcnlaw.com 9/11/2023 11:41:54 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Weldon GNixon bnixon@wmcnlaw.com 9/11/2023 11:41:54 AM SENT
Velma Torres vtorres@wmcnlaw.com 9/11/2023 11:41:54 AM SENT
Preview
Electronically Submitted 9/11/2023 11:41 AM Hidalgo County Clerk Accepted by: Alexis Medina NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA. No. CL-18-5173 -J EDUARDO SILVA § IN THE COUNTY COURT Plaintiff § § V. § AT LAW NUMBER TEN (10) § SONIA RODRIGUEZ and § JUAN RODRIGUEZ § Defendants § HIDALGO COUNTY, TEXAS PLAINTIFF’S SECOND AMENDED PETITION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES EDUARDO SILVA, Plaintiff herein, complaining of and about SONIA RODRIGUEZ and JUAN RODRIGUEZ, Defendants herein, and for cause of action shows unto the Court the following: DISCOVERY CONTROL PLAN LEVEL 1. Plaintiff intends that discovery be conducted under Discovery Level 2. PARTIES AND SERVICE 2. Plaintiff, EDUARDO SILVA, is an individual residing in Collin County, Texas. 3. Defendant, SONIA RODRIGUEZ, is an individual residing in Hidalgo County, Texas who has appeared and answered herein, and therefore no service of process is necessary. 4. Defendant, JUAN RODRIGUEZ, is an individual residing in Hidalgo County, Texas who has appeared and answered herein, and therefore no service of process is necessary. JURISDICTION AND VENUE 5. This Court possesses jurisdiction because the amount in controversy lies within the jurisdictional limits of this Court. _____________________________________________________________________________________________ Silva vs. Rodriguez; Case #: CL-18-5173-J Plaintiff’s Second Amended Petition Page 1 of 5 Electronically Submitted 9/11/2023 11:41 AM Hidalgo County Clerk Accepted by: Alexis Medina 6. Venue is proper in Hidalgo County because all or a substantial part of the events and omissions giving rise to these claims occurred in Hidalgo County and because Defendants are residents of Hidalgo County. FACTUAL ALLEGATIONS 7. In 2003, EDUARDO SILVA (hereinafter referred to as “SILVA”) loaned $19,000.00 to SONIA RODRIGUEZ and JUAN RODRIGUEZ, her husband, (hereinafter collectively referred to as “RODRIGUEZ”) in exchange for their promise to pay it back (the “Agreement”). This loan was made for the purpose of RODRIGUEZ paying off the debt they owed to REYES SILVA, brother of EDUARDO SILVA, for constructing RODRIGUEZ’s home. EDUARDO SILVA provided other loans to his family members around the time the Agreement was entered into. This is because EDUARDO SILVA’S business was flourishing and he wanted to help out his family. 8. SONIA RODRIGUEZ is EDUARDO SILVA’S sister. As such, the terms of the loan to RODRIGUEZ were lax. RODRIGUEZ were to repay the loan as their financial condition permitted. No interest rate was agreed upon. 9. RODRIGUEZ utilized Plaintiff’s $19.000.00 to pay off their house. 10. Around 2017 and 2018, RODRIGUEZ’s financial condition improved. Consequently, SILVA demanded that the monies be repaid to him. However, despite improvement of their circumstances, RODRIGUEZ never attempted to repay the $19,000.00, despite repeated demands. Accordingly, it was only at that time that SILVA discovered RODRIGUEZ’s misconduct. _____________________________________________________________________________________________ Silva vs. Rodriguez; Case #: CL-18-5173-J Plaintiff’s Second Amended Petition Page 2 of 5 Electronically Submitted 9/11/2023 11:41 AM Hidalgo County Clerk Accepted by: Alexis Medina CAUSES OF ACTION 11. The above and foregoing constitutes money had and received. Defendants possess monies which, in good conscious, belong to Plaintiff. As a result, Plaintiff should be permitted such funds. 12. The above and foregoing constitutes fraud. When Defendants took the money from Plaintiff, they represented that they would pay the money back. Such representation was false. Plaintiff relied upon such representation to his detriment. As a result of such reliance, Plaintiff has been damaged. 13. The above and foregoing constitutes breach of contract. Plaintiff and Defendants entered into a contract, whereby Plaintiff agreed to loan Defendants money, and Defendants agreed to pay Plaintiff back when they were able. Although eventually Defendants were able to pay Plaintiff back, they failed to do so. As a result, Plaintiff has been damaged. 14. The above and foregoing constitutes promissory estoppel. If Defendants were loaned money by Plaintiff, Defendants promised to repay Plaintiff when they were able. Based on this promise, Plaintiff loaned money to Defendants. However, Defendants failed to repay monies when they were able. As a result, Plaintiff have been harmed. DAMAGES AND OTHER RELIEF 15. Plaintiff is entitled to the face amount of the monies received by Defendants, the $19.000.00. 16. Plaintiff is entitled to mental anguish in the past. 17. Plaintiff is entitled reasonable and necessary attorney’s fees. 18. Plaintiff is entitled to pre-judgment and post-judgment at the maximum rate as provided by law. _____________________________________________________________________________________________ Silva vs. Rodriguez; Case #: CL-18-5173-J Plaintiff’s Second Amended Petition Page 3 of 5 Electronically Submitted 9/11/2023 11:41 AM Hidalgo County Clerk Accepted by: Alexis Medina 19. Plaintiff is entitled to all costs of court. 20. Because of Defendants use of the monies, Plaintiff is entitled to a constructive trust being placed on Defendants’ property. Upon entry of the judgment, Plaintiff requests that such property be foreclosed upon by judicial foreclosure. After the sale of Defendants’ property, Plaintiff requests that any resulting judgment be satisfied. AFFIRMATIVE PLEA 21. All conditions precedent have been satisfied and/or excused. 22. Plaintiff invokes the discovery rule. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff, EDUARDO SILVA, respectfully prays that after trial on the merits, that he recovers his actual damages, reasonable and necessary attorney’s fees, pre-judgment and post-judgment interest at the maximum rate provided by law, all costs of court, and for all other and further relief, either at law or in equity, to which SILVA shows himself justly entitled. Respectfully submitted, THE LAW OFFICE OF DAMIAN C. OROZCO, P.C. 1138 East Expressway 83, Suite C. Pharr, Texas 78577 Tel: (956) 782-5447 Fax: (956) 782-5448 By: /s/ Damian C. Orozco Damian C. Orozco State Bar No. 24008756 E-Mail: dorozco@orozco-law.com Attorney for Plaintiff _____________________________________________________________________________________________ Silva vs. Rodriguez; Case #: CL-18-5173-J Plaintiff’s Second Amended Petition Page 4 of 5 Electronically Submitted 9/11/2023 11:41 AM Hidalgo County Clerk Accepted by: Alexis Medina CERTIFICATE OF SERVICE I certify that on September 11, 2023, a true and correct copy of the forgoing instrument was served on each attorney of record or party listed below by electronic mail. Via E-Service: Scott Walsh, Attorney WALSH, MCGURK, CORDOVA, NIXON, PLLC 4900-B N. 10th Street McAllen, Texas 78504 Tel: (956) 632-5013 Fax: (956) 630-5050 Email: swalsh@wmcnlaw.com Email: fcabrera@wmcnlaw.com By: /s/ Damian C. Orozco Damian C. Orozco Attorney for Plaintiff _____________________________________________________________________________________________ Silva vs. Rodriguez; Case #: CL-18-5173-J Plaintiff’s Second Amended Petition Page 5 of 5 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Cristal Gonzalez on behalf of Damian Orozco Bar No. 24008756 cgonzalez@orozco-law.com Envelope ID: 79401498 Filing Code Description: Amended Filing Filing Description: Plaintiff's Second Amended Petition Status as of 9/11/2023 1:57 PM CST Associated Case Party: EDUARDO SILVA Name BarNumber Email TimestampSubmitted Status Damian C Orozco dorozco@orozco-law.com 9/11/2023 11:41:54 AM SENT The Law Office of Damian COrozco cgonzalez@orozco-law.com 9/11/2023 11:41:54 AM SENT The Law Office of Damian COrozco jgarcia@orozco-law.com 9/11/2023 11:41:54 AM SENT Associated Case Party: SONIA RODRIGUEZ Name BarNumber Email TimestampSubmitted Status Scott AWalsh swalsh@ktattorneys.com 9/11/2023 11:41:54 AM SENT Associated Case Party: JUAN RODRIGUEZ Name BarNumber Email TimestampSubmitted Status Scott AWalsh swalsh@ktattorneys.com 9/11/2023 11:41:54 AM SENT Scott A.Walsh swalsh@wmcnlaw.com 9/11/2023 11:41:54 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Weldon GNixon bnixon@wmcnlaw.com 9/11/2023 11:41:54 AM SENT Velma Torres vtorres@wmcnlaw.com 9/11/2023 11:41:54 AM SENT