Preview
Filed: 6/7/2022 5:56 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 65224137
By: Lisa Kelly
6/8/2022 8:37 AM
CAUSE NO. 19-CV-0340
ROBERT WELCH AND § IN THE DISTRICT COURT OF
JENNIFER WELCH §
Plaintiffs, §
§ GALVESTON COUNTY, TEXAS
vs. §
§
GREENECO BUILDERS, L.L.C. § 122ND JUDICIAL DISTRICT
Defendant
PLAINTIFFS’ RESPONSE TO DEFENDANT’S
MOTION FOR PARTIAL SUMMARY JUDGMENT ON SEC. 27.0042(C)(2) OF
THE TEXAS PROPERTY CODE AND
REQUEST TO NARROW THE ISSUES AT TRIAL
COMES NOW, Robert Welch and Jennifer Welch (“Plaintiffs”), and files this
Response to Defendant’s Motion for Partial Summary Judgment on Sec. 27.0042(c)(2) of
the Texas Property Code and Request to Narrow the Issues at Trial, and would respectfully
show the Court the following:
Preliminary Statement
1. Genuine issues of material fact concerning Plaintiffs’ claims for
reimbursement for permanent improvements and reasonable costs to move from the
residence prohibit summary judgment. Moreover, this Court does not have jurisdiction to
expedite Plaintiffs’ sale of the home because it is only one aspect of Plaintiffs’ lawsuit and
cannot be compelled until all Plaintiffs’ claims have been resolved.
Argument
I. A fact issue exists on Plaintiffs’ permanent home improvements claim.
2. Plaintiffs are entitled to reimbursement for wood floor and HVAC
improvements to their home. Defendant attacks Plaintiffs’ home improvement claims on
the purported basis that 1) the improvements were not made and 2) they were done poorly.
The Residential Construction Liability Act (“RCLA”) requires a homebuilder to pay
“reimbursement for permanent improvements the owner made to the residence after the
date the owner purchased the residence from the builder” when it elects to purchase the
home “as an alternative” to repair damages. Tex. Prop. Code §27.0042(a), (c)(2)(A). The
statute’s only requirements are that the improvements be “permanent” and be “made to the
residence after the date” of purchase. Id. at §27.0042(c)(2)(A). It is undisputed that the
improvements for which Plaintiffs seek reimbursement are permanent and were made after
they purchased the home.
3. Defendant failed to cite to this Court Plaintiff Jennifer Welch’s deposition
testimony in which she confirmed that the wood floor and HVAC improvements were
actually performed as reflected in Defendant’s Exhibits D and E1, respectively.1 Because
the improvements were made after Plaintiffs purchased the home and they are, in fact,
permanent, §27.0042 requires Defendant to reimburse Plaintiffs for the cost they incurred
in making them.
4. Defendant goes to great lengths attacking the HVAC improvements made by
Daryl’s AC & Heating, LLC. But whether the improvements were done correctly or were
even necessary is not part of the statutory standard. Accordingly, this Court should give
Defendant’s argument no weight. Still, Defendant’s positions regarding the Daryl’s work
is questionable as much of Defendant’s positions do not even apply to the improvements
Daryl’s made. The Daryl’s invoice plainly states that it installed a “horizontal variable
1
See Exhibit A, Deposition of Jennifer Welch at 154:03-23 (testimony that the work in Defendant’s Exhibit D was
performed by Empire Today); 144:01-20; 145:18-24 (testifying that the work set out in Defendant’s Exhibit E1 was
performed by Daryl’s AC & Heating, LLC).
2
speed gas furnace, horizontal coil with TXV, adjusted several ducts, shut down fresh air
damper 90%, Warranty: 10 years parts/2 years labor”. Defendant’s motion does not prove
dispositively that this work was done poorly or was unnecessary – assuming either
condition is relevant under the RCLA. At best, a fact issue still needs to be tried on those
allegations. Defendant appears to have backed off of its summary judgment ground
concerning Plaintiffs’ wood floor improvements, but that matter also involves a fact
question.
II. A fact issue exists on Plaintiffs’ claim for reasonable moving costs.
5. The summary judgment record undisputedly establishes that cleaning or
replacing, if necessary, mold contaminated contents is part of the reasonable costs to move
from a mold contaminated residence.2 Plaintiffs’ mold assessment expert, Linda Lauver,
opines that the contents in Plaintiffs’ home must be cleaned or replaced and that doing so
is customarily part of relocating contents from a mold affected home to a clean home.3
Defendant provides no contradicting evidence. Instead, Defendant misrepresents Mrs.
Welch’s testimony as to whether contents cleaning is necessary and misrepresents the
RCLA statute by arguing it does not contemplate remedying homeowners for damaged
contents.
6. First, whether Mrs. Welch believes her contents need to be cleaned or
replaced is not competent evidence on that question. Whether contents in a mold affected
home need to remediated is a matter of expert opinion. Still, Mrs. Welch definitely testified
2
See Exhibit B, Affidavit of Linda Lauver.
3
Id.
3
that she was not involved in determining whether contents needed to be cleaned or replaced
due to mold.4 Plaintiffs’ mold assessment expert, Lauver, has concluded that Plaintiffs’
contents do need to be cleaned or replaced depending on the level of contamination or the
type of content.5 Lauver explains that it is industry standard to clean or replace mold
affected items as part of the relocation process.6 Cleaning is required as part of the moving
process in order to protect movers packing and manipulating contents and to prevent cross
contamination to the new, clean residence.7 The only summary judgment evidence on this
issue establishes that cleaning and replacing contents affected by mold is very much part
of the reasonable cost to move from a mold affected residence. This Court should deny
Defendant’s motion for this reason.
7. Defendant’s position that damage contents are not contemplated by the
RCLA, is simply false. Defendant focuses its argument on the RCLA’s applicability
provision, §27.002. But Defendant altogether ignores (and fails to cite to this Court)
§27.004(g)(2), which expressly allows homeowners to recover “the reasonable and
necessary cost for the replacement or repair of any damaged goods in the residence.” This
provision completely undermines Defendant’s argument that damaged goods in the
residence are not contemplated by the RCLA. The fact is, there is very little law
interpreting the RCLA and no law interpreting §27.0042’s mandate that homebuilders pay
reasonable moving cost. Because the RCLA expressly allows for repairing or replacing
4
See Exhibit A at 207:17-208:25.
5
See Exhibit B.
6
Id.
7
Id.
4
damaged contents and because doing so is part of the reasonable costs required to move
contents from a mold contaminated home, Defendant’s motion for summary judgment
should be denied on this ground, as well.
III. The RCLA statute does not support Defendant’s request to prematurely
compel the home sale.
8. Finally, without any support from the RCLA statute or otherwise, Defendant
request that this Court compel Plaintiffs’ sale of the home on an interlocutory basis. This
Court, in fact, does not have jurisdiction to prematurely force the sale because Plaintiffs’
claims have not been fully resolved. Section 27.0042 only allows a homebuilder to
purchase a home back as an alternative to the “reasonable costs of repairs necessary to
repair a construction defect.” §27.0042(a). Accordingly, Defendant’s election to purchase
the home is simply an alternative to Plaintiffs’ repair costs, which cannot be enforced prior
to final judgment any more than Plaintiffs can force Defendant to pay their remaining
claims prior to judgment.
9. It is also important to contemplate the injustice of Defendant’s request to
force Plaintiffs to sell their home on an interlocutory basis. Importantly, the statute allows
Defendant to purchase the home for the same amount Plaintiffs paid. In other words,
Plaintiffs will only receive what they paid for the home EIGHT YEARS AGO, without any
consideration for market value appreciation. Because Plaintiffs could only hire counsel on
a contingency fee basis, forcing them to sell their home now without also being
compensated for the damages addressed above as well as their expert and attorney’s fees
would necessarily leave them well short of the funds necessary to purchase a new home.
5
As unjust as this portion of the RCLA is, it does not contemplate or allow the absurd result
requested by Defendant. This Court should, therefore, reject this summary judgment
ground, as well.
Prayer
10. For the foregoing reasons, Plaintiffs respectfully request that this Court deny
Defendant’s motion for summary judgment in whole.
Respectfully submitted,
THE FAUBUS FIRM
By: /s/ Dax O. Faubus
Dax O. Faubus
State Bar No. 24010019
1001 Texas Avenue, 11th Floor
Houston, Texas 77002
Telephone: (713) 222-6400
Facsimile: (713) 222-7240
dax-notice@faubusfirm.com
Attorneys for Plaintiffs
6
CERTIFICATE OF SERVICE
I hereby certify that on this 7th day of June, 2022, a true and correct copy of the
foregoing pleading was served upon the following counsel of record pursuant to Rule 21
of the Texas Rules of Civil Procedure:
Via E-Mail:
Melinda M. Riseden
Crain, Caton & James
1401 McKinney Street, 17th Floor
Houston, Texas 77010
mriseden@craincaton.com
Counsel for Defendant
/s/ Dax O. Faubus
Dax O. Faubus
7
EXHIBIT A
1 IN THE DISTRICT COURT OF GALVESTON COUNTY, TEXAS
2 122ND JUDICIAL DISTRICT
3 ________________________________
4 ROBERT WELCH and JENNIFER WELCH,
5 Plaintiffs,
6 v. Cause No.
7 GREENECO BUILDERS, LLC, 19-CV-0340
8 Defendant.
9 ________________________________
10 VIDEOTAPED VIDEOCONFERENCE DEPOSITION OF
11 JENNIFER WELCH
12 DATE: Thursday, April 15, 2021
13 TIME: 10:34 a.m.
14 LOCATION: Remote Proceeding
15 16418 Tracy Court
16 Conroe, Texas 77306
17 REPORTED BY: Kyla Benson, Notary Public
18 JOB No.: 4539955
19
20
21
22
23
24
25
Page 1
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1 APPEARANCES 1 E X H I B I T S (Cont'd.)
2 ON BEHALF OF PLAINTIFFS ROBERT WELCH AND JENNIFER 2 NO. DESCRIPTION PAGE
3 WELCH: 3 Exhibit 9 Airtron warranty service invoice
4 DAX FAUBUS, ESQUIRE (by videoconference) 4 dated 10/22/2014, 4 pages 91
5 The Faubus Firm, LLP 5 Exhibit 10 Email dated 1/15/2015 re: repairs,
6 1001 Texas Avenue, Floor 11 6 1 page 102
7 Houston, Texas 77002 7 Exhibit 11 Email dated 6/22/2015 re: repairs,
8 dax@faubusfirm.com 8 1 page 108
9 (713) 222-6400 9 Exhibit 12 Email dated 7/8/2015 re: warranty,
10 10 1 page 112
11 ON BEHALF OF DEFENDANT GREENECO BUILDERS, LLC: 11 Exhibit 13 Email dated 6/16/2016 re: mold
12 MELINDA RISEDEN, ESQUIRE (by videoconference) 12 again, 1 page 120
13 Crain Caton & James 13 Exhibit 14 Weeks Service Company repair
14 1401 McKinney Street, Suite 1700 14 quote dated 8/31/2016, 2 pages 134
15 Houston, Texas 77010 15 Exhibit 15 Daryl's A/C & Heating, LLC invoice
16 mriseden@craincaton.com 16 dated 4/28/2017, 1 page 142
17 (713) 658-2323 17 Exhibit 16 Empire Today contract payment
18 18 details, page 5 of 17 153
19 ALSO PRESENT: 19 Exhibit 17 A.Q. Testing Services, LLC mold
20 Robert Welch, Plaintiff (by videoconference) 20 remediation protocol documents,
21 Joe Acosta, Videographer (by videoconference) 21 SEEML Labs report, and photographs,
22 Ross Colby, Tech Concierge (by videoconference) 22 69 pages 163
23 23 Exhibit 18 The Faubus Firm engagement
24 24 letter dated 10/20/2018,
25 25 3 pages 165
Page 2 Page 4
1 INDEX 1 E X H I B I T S (Cont'd.)
2 EXAMINATION: PAGE 2 NO. DESCRIPTION PAGE
3 By Ms. Riseden 9 3 Exhibit 19 Plaintiffs' Response to
4 EXHIBITS 4 Defendant's Rule 194 Request
5 NO. DESCRIPTION PAGE 5 for Disclosure, 13 pages 203
6 Exhibit 1 Greeneco Builders, LLC new 6 Exhibit 20 Excel spreadsheet itemizing
7 home sales contract dated 7 Interior property damages
8 12/8/2013, 20 pages 20 8 and repair/replacement costs 207
9 Exhibit 2 Letters dated 6/15/2020 and 9 Exhibit 21 A.Q. Testing Services, LLC
10 invoices, 4 pages 212
10 6/22/2020 re: repurchase of
11 Exhibit 22 A.Q. Testing Services, LLC
11 Welch property, 10 pages 31
12 letter re: habitability of
12 Exhibit 3 Bonded Builders Warranty Group
13 residence dated 12/30/2020,
13 application and letter of
14 1 page
14 acceptance dated 6/2014, 3 pages 38
215
15 Exhibit 4 Bonded Builders Warranty Group
15
16 Documents, 35 pages 42 16 (Exhibits attached.)
17 Exhibit 5 Email and Greeneco Customer Service 17
18 Request re: mold, both dated 18 QUESTIONS INSTRUCTED NOT TO ANSWER
19 8/12/2014, 2 pages 63 19 PAGE LINE
20 Exhibit 6 Email dated 8/18/2014 re: mold, 20 23 6
21 dated 8/18/2014 67 21 23 9
22 Exhibit 7 Airtron warranty service invoice 22 23 25
23 Dated 9/17/2014, 3 pages 74 23 32 14
24 Exhibit 8 Airtron warranty service invoice 24 34 21
25 dated 10/8/2014, 3 pages 81 25 37 18
Page 3 Page 5
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1 QUESTIONS INSTRUCTED NOT TO ANSWER (Cont'd.) 1 PROCEEDINGS
2 PAGE LINE 2 VIDEOGRAPHER: Today's date is April
3 52 20 3 15, 2021. We're on the record at 10:34 a.m. This is
4 52 22 4 the videotaped deposition of Jennifer Welch in the
5 85 4 5 matter of Robert Welch and Jennifer Welch vs. Greeneco
6 85 5 6 Builders, LLC filed in the 122nd Judicial District,
7 89 22 7 Galveston County, Texas. Counsel will now state their
8 89 23 8 appearance and affiliation for the record.
9 102 17 9 MR. FAUBUS: Dax Faubus for the
10 104 24 10 plaintiffs.
11 105 4 11 MS. RISEDEN: Mindy Riseden
12 105 12 12 representing the defendant, Greeneco Builders.
13 105 17 13 VIDEOGRAPHER: Will the court reporter
14 110 10 14 please swear in the witness and we may proceed.
15 122 21 15 REPORTER: Absent an objection on the
16 125 24 16 record before the witness is sworn, all parties and
17 127 2 17 the witness understand and agree that any certified
18 127 6 18 transcript produced from the recording of this
19 127 10 19 proceeding:
20 128 13 20 - is intended for all uses permitted
21 129 4 21 under applicable procedural and
22 147 20 22 evidentiary rules and laws in the same
23 147 25 23 manner as a deposition recorded by
24 149 14 24 stenographic means; and
25 149 20 25 - shall constitute written stipulation
Page 6 Page 8
1 QUESTIONS INSTRUCTED NOT TO ANSWER (Cont'd.) 1 of such.
2 PAGE LINE 2 At this time I will swear in the
3 151 4 3 witness. Ms. Welch, please raise your right hand.
4 151 12 4 WHEREUPON,
5 159 11 5 JENNIFER WELCH,
6 159 19 6 called as a witness, and having been first duly sworn
7 159 21 7 to tell the truth, the whole truth and nothing but the
8 159 24 8 truth, was examined and testified as follows:
9 160 7 9 EXAMINATION
10 160 11 10 BY MS. RISEDEN:
11 160 17 11 Q Good morning, Mrs. Welch. How are you?
12 160 18 12 A I'm doing great.
13 164 18 13 Q I'm Mindy Riseden, and as I just stated on
14 171 13 14 the record I represent the defendant, Greeneco. And
15 171 22 15 we haven't met before today, correct?
16 172 24 16 A Correct.
17 176 12 17 Q And will you please state your full name for
18 176 13 18 the record?
19 179 3 19 A Jennifer Shalaine Welch.
20 179 4 20 Q And I understand that you're here testifying
21 180 13 21 today about claims that you and your husband brought
22 180 18 22 in a lawsuit against Greeneco Builders. Is that
23 182 3 23 correct?
24 220 16 24 A Yes.
25 25 Q And our court reporter is very good, but I
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1 imagine that she can't take down both of us at the 1 or Pearland?
2 same time. She probably hasn't figured out how to do 2 A Dickinson.
3 that, like everyone else. So you and I need to work 3 Q What's the name of the high school?
4 really hard not to talk over each other. Fair enough? 4 A Dickinson High School.
5 A Yes. 5 Q And did you obtain any post-high school
6 Q And so what I'm going to do is I'm going to 6 degrees or education?
7 do my best not to cut you off and let you finish your 7 A My San Jac and then I'm about to graduate
8 answer. But if I do cut you off, I would really 8 from Lamar University.
9 appreciate it if you would tell me, please stop. I 9 Q Over in Beaumont?
10 want to finish my answer. Will you do that? 10 A Yes, ma'am.
11 A Yes, ma'am. 11 Q Congratulations.
12 Q And then will you give me the same courtesy 12 A Thank you.
13 that if I'm asking a question even if you're ready to 13 Q What degrees did you obtain from San Jac?
14 answer you'll let me finish my questions before you 14 A San Jac, just the general education -- I
15 start your answer? 15 mean, general degree, associate's.
16 A Absolutely. Yes. 16 Q And what degree are you about to receive
17 Q Thank you. And if I ask any question today 17 from Lamar?
18 that is unclear or confusing to you, if you could 18 A My BAAS, bachelor of arts and applied
19 please just ask me to rephrase it and I'm happy to do 19 science. My bachelor's degree. My bachelor's degree.
20 that. 20 My BAAS.
21 A Okay. 21 Q And what do you intend to do with it?
22 Q Now I see that your -- it appears that 22 A Going to teach. To be a teacher.
23 you're in a house. And I know before the depo started 23 Q Wonderful. Thank you for doing that.
24 you stated that you were at 16418 Tracy Court in 24 A You're welcome.
25 Conroe, Texas. 25 Q And have you ever been deposed before?
Page 10 Page 12
1 A Yes, ma'am. 1 A No.
2 Q And that's the house that you currently 2 Q Well, welcome to the club. This is your
3 reside in, right? 3 first deposition. Again, if you have any questions or
4 A Yes, ma'am. 4 need me to repeat something, let me know. And do you
5 Q And your husband is sitting to your left? 5 work outside the home?
6 A Yes, ma'am. 6 A Yes.
7 Q And what is his full name? 7 Q And what do you do?
8 A Robert Douglas Welch. 8 A I'm a teacher aide.
9 Q And is there anyone else in the house? 9 Q And for what age group?
10 A No, ma'am. 10 A For elementary age.
11 Q Is there anyone on a speakerphone or anyone 11 Q And where do you work?
12 else that can hear this deposition? 12 A I'm working at Tarkington ISD.
13 A No, ma'am. 13 Q Where is that located?
14 Q And you understand that even though your 14 A In the country close to Cleveland, Texas.
15 husband is sitting to your left that this is your 15 Q So up on the north side?
16 deposition where you're providing your sworn answers 16 A Yes.
17 to my questions? 17 Q So kind of North 59 and Patton?
18 A Yes, ma'am. 18 A Yeah, 59 --
19 Q What city were you born in, Ms. Welch? 19 Q Okay. Patton --
20 A Houston, Texas. 20 A Yes.
21 Q Great. There's not many of us native 21 Q Past Kingwood North, right?
22 Houstonians around anymore, so I'm glad to see another 22 A Right. Yes.
23 one. Did you grow up in Houston as well? 23 Q How long have you worked there?
24 A I grew up in Pearland and Dickinson. 24 A This is my first year.
25 Q And did you attend high school in Dickinson 25 Q So does that mean you started at the
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1 beginning of the school year? 1 A In June of 2014 we moved in.
2 A Yes, ma'am. In August 2 Q And when did you move out of your home?
3 Q August 2020? 3 Because by your testimony you're not there right now,
4 A Yes. 4 correct?
5 Q And did you have to apply for this job? 5 A Correct. We moved out this summer.
6 A Yes. 6 Q Summer of 2020?
7 Q When did you apply? 7 A Yes.
8 A August. 8 Q And do you know exactly when, like which
9 Q And where does your husband work? 9 month?
10 A My husband? Deep Down. Juma Properties. 10 A It was sometime in June or July. I don't
11 He works in Cleveland. 11 remember exactly what month.
12 Q And what does he do? You said it's called 12 Q And where did you move to when you moved out
13 Juno Properties? 13 of 303 Sea Breeze in June or July of 2020?
14 A Juma, J-U-M-A. 14 A At the 16418 Tracy Court.
15 Q And what does he do at Juma Properties? 15 Q So you went directly to the Tracy Court
16 A I'm not sure. 16 address? Nowhere in between, right?
17 Q But you know he goes every day and works. 17 A We were living at his boss's ranch
18 A And paychecks come in every two weeks. 18 house -- .
19 Q That's the best part. How long has he been 19 Q You were living where? I couldn't hear you.
20 working at Juma Properties in Cleveland? 20 A At his boss's ranch house.
21 A I'm not sure. I think about two years. 21 Q And is that a boss from Juma Properties?
22 Q So if we're sitting here today April 2021, 22 A Correct.
23 perhaps since April 2019, roughly? 23 Q Where is the ranch house located?
24 A Roughly. Yes. I don't remember the exact 24 A In Cleveland.
25 dates. 25 Q And how long were you at the boss's ranch
Page 14 Page 16
1 Q And are you and Mr. Welch married? 1 house before you moved into the Tracy Court address?
2 A Yes. 2 A Maybe like three or four months.
3 Q And do you all have any children? 3 Q So in June or July of 2020 you left 303 Sea
4 A Yes. 4 Breeze, moved to a ranch house in Cleveland for three
5 Q And do they live in the home with you? 5 or four months, and then moved to the Tracy Court
6 A Yes. 6 address in Conroe. Is that correct?
7 Q How old are they? 7 A Yes.
8 A She's eight. 8 Q So no other residences for the last -- since
9 Q One child? 9 2014 other than the ones I just listed?
10 A Yes, ma'am. 10 A No.
11 Q And prior to starting work at Tarkington 11 Q Did you have to pay rent when you were at
12 ISD, where did you work before? 12 the boss's ranch house?
13 A Dickinson ISD. 13 A We paid things. Yes. Utilities and rent.
14 Q And were you also a teacher aide there? 14 Q How much was your rent?
15 A Yes, ma'am. 15 A 1,000.
16 Q Now let's jump to 303 Sea Breeze Drive. 16 Q Is that 1,000 a month?
17 A Okay. 17 A Yes, ma'am.
18 Q That's a home that you and your husband 18 Q And what's the name of the boss who owned
19 purchased, correct? 19 the ranch house?
20 A Yes, ma'am. 20 A Vaughn Smith.
21 Q And you all purchased it in June of 2014, 21 Q So I'm going to put a document in exhibit
22 right? 22 share. I'll tell you when I do it. I'm working on it
23 A Correct. 23 right now. Let's see. Okay. So if you go to your
24 Q And you moved in shortly after you purchased 24 exhibit share it should be there.
25 it. Is that right? 25 A Which one is it?
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1 Q I'm sorry? It should be Exhibit 1. 1 MR. FAUBUS: Go ahead. Go ahead,
2 MR. FAUBUS: I don't show any documents 2 Mindy.
3 in the exhibit share. 3 MS. RISEDEN: I'm trying. Dax, you'll
4 THE WITNESS: I don't see anything, 4 see it's Exhibit 1, the contract. If you have a
5 either. 5 question about it, let me know. But otherwise, you
6 CONCIERGE TECH: You have to refresh. 6 should be able to access exhibit share just like we've
7 MR. FAUBUS: I did. It's refreshed. 7 done for prior depositions.
8 CONCIERGE TECH: I see it. I've got it 8 MR. FAUBUS: Yeah. Go ahead. I have
9 here. 9 not accessed it for prior depos, Mindy. I've already
10 MR. FAUBUS: I don't. 10 told you that.
11 MS. RISEDEN: How about I'm going to 11 MS. RISEDEN: Well, I can't help that
12 share my screen but I'm going to make sure, Mrs. 12 because I've noticed them that way.
13 Welch, that you can access it in exhibit share to the 13 BY MS. RISEDEN:
14 extent you want to look at the document. 14 Q Now Mrs. Welch, do you see what I've marked
15 MR. FAUBUS: Mrs. Welch, do you see it? 15 as Exhibit 1 to your deposition?
16 THE WITNESS: Yes, sir. 16 (Exhibit 1 was marked for
17 MR. FAUBUS: No, do you see it in 17 identification.)
18 exhibit share? 18 A Yes.
19 THE WITNESS: Yes. Now I see it. 19 Q And you recognize it as the new home sales
20 MS. RISEDEN: Okay. 20 contract between you and your husband and Greeneco
21 MR. FAUBUS: Hold on. You do or don't? 21 dated December 8, 2013?
22 THE WITNESS: I see it. 22 A Correct.
23 MR. FAUBUS: Okay. I do not see it. 23 Q And then you see that the total purchase
24 CONCIERGE TECH: So on the right side 24 price listed in the contract is approximately 150,000,
25 of your screen -- are you sure you're in the right 25 just shy of 151,000?
Page 18 Page 20
1 deposition? 1 A Correct.
2 MR. FAUBUS: I'm in Veritext exhibit 2 Q And if you look at the bottom page of the
3 share. 3 first page, do you see those initial blocks in the
4 CONCIERGE TECH: Okay. On the left 4 right-hand corner --
5 side of the screen do you see the case name -- 5 A Correct.
6 MR. FAUBUS: No. 6 Q -- where it says buyer?
7 CONCIERGE TECH: -- and below that 7 A Yes.
8 deposition? 8 Q And do you agree that those are yours or
9 MR. FAUBUS: No. No. 9 your husband's initials in the bottom right-hand
10 CONCIERGE TECH: Okay. Then you're not 10 corner?
11 in exhibit share. 11 A Yes.
12 MR. FAUBUS: Well, this is the same 12 Q And if you flip through the entire document
13 link that was for the logging into the Zoom. 13 that you have in front of you, let me know if you
14 CONCIERGE TECH: Okay. So if you open 14 dispute if any of the initials in the bottom
15 a browser in Chrome -- 15 right-hand corner are yours and your husband's.
16 MR. FAUBUS: I don't use Chrome. 16 A No.
17 CONCIERGE TECH: Well, okay. You can 17 Q So I'm going to take you to section 14. And
18 try another browser. Chrome works best, but ... 18 if you're following on exhibit share, that's a
19 MR. FAUBUS: So I'm clicking on launch 19 document that's a page that's Bates-labeled at the
20 exhibit share for the Welch link and it's not there. 20 bottom is Greeneco Welch 242. And you'll see it says
21 CONCIERGE TECH: Okay. I can direct 21 section 14, limited warranty. Do you see where I am?
22 you another way if you'd like. 22 MR. FAUBUS: You need to blow it up.
23 MR. FAUBUS: Let's just go -- as long 23 BY MS. RISEDEN:
24 as she puts it up on screen share, I'm fine with that. 24 Q Mrs. Welch, do you see where I am?
25 MS. RISEDEN: Dax, you'll see -- 25 A Yes.
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1 Q So if you look at the part that's underlined 1 question.
2 in all caps where it starts with "Except as expressly 2 BY MS. RISEDEN:
3 provided herein" -- sorry. Let me start over. 3 Q Are you going to refuse to answer my
4 "Except as expressly provided in the TRCC standards, 4 question on your attorney's advice?
5 we make no warranties, either express or implied, 5 A Yes.
6 whether arising under state law or the Magnuson-Moss 6 Q Are you not aware that you purchased the
7 Warranty Act, including but not limited to implied 7 property as-is and where-is with all faults?
8 warranties of fitness, merchantability, habitability, 8 A I don't understand.
9 or workmanship." Do you see where I am? 9 Q Well, I'm just trying to figure out when you
10 A Correct. Yes. 10 purchased this property in June of 2014, if you knew
11 Q And you see that it goes on to say that "You 11 you were buying it as-is and where-is?
12 specifically acknowledge and agree to our disclaimer 12 A It was a new house. It should be -- a brand
13 or implied warranties and you waive any warranties not 13 new house shouldn't have any problems with it.
14 expressly stated in the TRCC standards. Except as 14 Q And are you aware that you purchased a
15 expressly stated in the TRCC standards, you're 15 warranty with the house?
16 purchasing the property as-is, where-is, and with all 16 A There was a warranty on it, so anything
17 faults." Do you see where I read? 17 should be fixed.
18 A Correct. 18 Q Now, you did not have a broker or real
19 Q And then do you see at the bottom of that 19 estate agent represent you in this transaction,
20 page, again, those are yours and your husband's 20 correct?
21 initials right underneath that, correct? 21 A No.
22 A Yes. 22 Q Now, we're going to jump forward to section
23 Q So after just reading these sentences 23 25. And it's on a page that is Bates-labeled Greeneco
24 talking about that you're waiving these warranties of 24 Welch 247, if you want to scroll through it.
25 habitability and good workmanship, are you aware that 25 A What page is it?
Page 22 Page 24
1 you and your husband are suing Greeneco for breach of 1 Q It's page 12 of the document, but it's noted
2 these exact warranties that you have waived here by 2 as Greeneco Welch 247 and it's paragraph 25.
3 signing this contract? 3 A Okay.
4 MR. FAUBUS: You're not going to tell 4 Q So this section is called environmental
5 them that state law says that you can't waive those 5 risk/mold, and I'm looking at the last sentence that
6 things? Don't answer the question. 6 says "Upon assuming possession of the improvements,
7 MS. RISEDEN: Dax, you can object to 7 you are responsible for implementing an inspection and
8 form. 8 maintenance program for the identification and
9 MR. FAUBUS: Don't answer the question. 9 elimination of moisture in the improvements that could
10 It's a harassing question. It's calling for a legal 10 give rise to the growth of mold or other conditions
11 conclusion that Mrs. Welch cannot testify to. 11 detrimental to functioning of the improvements or the
12 BY MS. RISEDEN: 12 health of its occupants." Do you see what I just read
13 Q Mrs. Welch, are you going to listen to your 13 in section 25?
14 attorney's advice and refuse to answer my question? 14 A I see it.
15 A I'm listening to my attorney's advice. 15 Q And you initialed at the bottom of that
16 Q Are you aware that in your lawsuit against 16 page, correct, on 247?
17 Greeneco you are suing based on implied warranties of 17 A Correct.
18 habitability and good workmanship? Are you aware of 18 Q And do you recall whether you ever fulfilled
19 that? 19 this responsibility in implementing an inspection and
20 A Yes. 20 maintenance program for any moisture or -- yeah, the
21 Q And are you aware by what I just read and 21 elimination of moisture that could give rise to mold
22 looking at the contract that you signed and initialed, 22 in the home?
23 that you and your husband purchased this property as- 23 MR. FAUBUS: Objection. Form. You can
24 is, where-is, and with all faults? 24 answer.
25 MR. FAUBUS: Don't answer that 25 //
Page 23 Page 25
7 (Pages 22 - 25)
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346-293-7000
1 BY MS. RISEDEN: 1 right. Are you aware of that?
2 Q You can answer. 2 MR. FAUBUS: Objection. Form.
3 A Okay. Repeat it again. I'm sorry. 3 THE WITNESS: They -- I don't
4 Q Sure. Do you recall if you ever fulfilled 4 understand the question.
5 this responsibility and implemented an inspection or 5 BY MS. RISEDEN:
6 maintenance program to eliminate moisture in the home 6 Q Okay. So section 39 that we just talked
7 that could give rise to mold? 7 about gives Greeneco the sole right to make a decision
8 MR. FAUBUS: Objection. Form. 8 whether they want to buy your property back under the
9 THE WITNESS: As of -- 9 statute listed. And Greeneco sent a letter and wanted
10 MR. FAUBUS: If you don't know the 10 to exercise its sole right to do that. And what I
11 answer to the question, it's fine to say you don't 11 want to know is if you're aware that Greeneco letter
12 know. 12 demanding its sole right to exercise the right
13 MS. RISEDEN: Please stop coaching the 13 repurchase your property.
14 witness, Dax. 14 MR. FAUBUS: Objection. Form.
15 MR. FAUBUS: I'm not. You're asking an 15 THE WITNESS: What do you mean, by
16 impossible question once again. 16 sending a letter before we hired Dax or after?
17 THE WITNESS: Yeah. I mean, I don't 17 BY MS. RISEDEN:
18 know about this. We were just -- yeah. Go ahead. 18 Q After you hired Mr. Faubus.
19 BY MS. RISEDEN: 19 A No.
20 Q So you did not bring in -- implement an 20 Q You're not aware?
21 inspection or maintenance program, correct? 21 A Just what -- you know, everything was
22 MR. FAUBUS: Objection. Form. 22 through the lawyers, so I'm not answering.
23 THE WITNESS: It was a new build and we 23 Q And this letter was sent in 2020. And are
24 were told everything was final and inspected as a new 24 you aware that you and your husband refused Greeneco's
25 build home. 25 sole right to repurchase the property under this
Preview
Filed: 6/7/2022 5:56 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 65224137 By: Lisa Kelly 6/8/2022 8:37 AM CAUSE NO. 19-CV-0340 ROBERT WELCH AND § IN THE DISTRICT COURT OF JENNIFER WELCH § Plaintiffs, § § GALVESTON COUNTY, TEXAS vs. § § GREENECO BUILDERS, L.L.C. § 122ND JUDICIAL DISTRICT Defendant PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON SEC. 27.0042(C)(2) OF THE TEXAS PROPERTY CODE AND REQUEST TO NARROW THE ISSUES AT TRIAL COMES NOW, Robert Welch and Jennifer Welch (“Plaintiffs”), and files this Response to Defendant’s Motion for Partial Summary Judgment on Sec. 27.0042(c)(2) of the Texas Property Code and Request to Narrow the Issues at Trial, and would respectfully show the Court the following: Preliminary Statement 1. Genuine issues of material fact concerning Plaintiffs’ claims for reimbursement for permanent improvements and reasonable costs to move from the residence prohibit summary judgment. Moreover, this Court does not have jurisdiction to expedite Plaintiffs’ sale of the home because it is only one aspect of Plaintiffs’ lawsuit and cannot be compelled until all Plaintiffs’ claims have been resolved. Argument I. A fact issue exists on Plaintiffs’ permanent home improvements claim. 2. Plaintiffs are entitled to reimbursement for wood floor and HVAC improvements to their home. Defendant attacks Plaintiffs’ home improvement claims on the purported basis that 1) the improvements were not made and 2) they were done poorly. The Residential Construction Liability Act (“RCLA”) requires a homebuilder to pay “reimbursement for permanent improvements the owner made to the residence after the date the owner purchased the residence from the builder” when it elects to purchase the home “as an alternative” to repair damages. Tex. Prop. Code §27.0042(a), (c)(2)(A). The statute’s only requirements are that the improvements be “permanent” and be “made to the residence after the date” of purchase. Id. at §27.0042(c)(2)(A). It is undisputed that the improvements for which Plaintiffs seek reimbursement are permanent and were made after they purchased the home. 3. Defendant failed to cite to this Court Plaintiff Jennifer Welch’s deposition testimony in which she confirmed that the wood floor and HVAC improvements were actually performed as reflected in Defendant’s Exhibits D and E1, respectively.1 Because the improvements were made after Plaintiffs purchased the home and they are, in fact, permanent, §27.0042 requires Defendant to reimburse Plaintiffs for the cost they incurred in making them. 4. Defendant goes to great lengths attacking the HVAC improvements made by Daryl’s AC & Heating, LLC. But whether the improvements were done correctly or were even necessary is not part of the statutory standard. Accordingly, this Court should give Defendant’s argument no weight. Still, Defendant’s positions regarding the Daryl’s work is questionable as much of Defendant’s positions do not even apply to the improvements Daryl’s made. The Daryl’s invoice plainly states that it installed a “horizontal variable 1 See Exhibit A, Deposition of Jennifer Welch at 154:03-23 (testimony that the work in Defendant’s Exhibit D was performed by Empire Today); 144:01-20; 145:18-24 (testifying that the work set out in Defendant’s Exhibit E1 was performed by Daryl’s AC & Heating, LLC). 2 speed gas furnace, horizontal coil with TXV, adjusted several ducts, shut down fresh air damper 90%, Warranty: 10 years parts/2 years labor”. Defendant’s motion does not prove dispositively that this work was done poorly or was unnecessary – assuming either condition is relevant under the RCLA. At best, a fact issue still needs to be tried on those allegations. Defendant appears to have backed off of its summary judgment ground concerning Plaintiffs’ wood floor improvements, but that matter also involves a fact question. II. A fact issue exists on Plaintiffs’ claim for reasonable moving costs. 5. The summary judgment record undisputedly establishes that cleaning or replacing, if necessary, mold contaminated contents is part of the reasonable costs to move from a mold contaminated residence.2 Plaintiffs’ mold assessment expert, Linda Lauver, opines that the contents in Plaintiffs’ home must be cleaned or replaced and that doing so is customarily part of relocating contents from a mold affected home to a clean home.3 Defendant provides no contradicting evidence. Instead, Defendant misrepresents Mrs. Welch’s testimony as to whether contents cleaning is necessary and misrepresents the RCLA statute by arguing it does not contemplate remedying homeowners for damaged contents. 6. First, whether Mrs. Welch believes her contents need to be cleaned or replaced is not competent evidence on that question. Whether contents in a mold affected home need to remediated is a matter of expert opinion. Still, Mrs. Welch definitely testified 2 See Exhibit B, Affidavit of Linda Lauver. 3 Id. 3 that she was not involved in determining whether contents needed to be cleaned or replaced due to mold.4 Plaintiffs’ mold assessment expert, Lauver, has concluded that Plaintiffs’ contents do need to be cleaned or replaced depending on the level of contamination or the type of content.5 Lauver explains that it is industry standard to clean or replace mold affected items as part of the relocation process.6 Cleaning is required as part of the moving process in order to protect movers packing and manipulating contents and to prevent cross contamination to the new, clean residence.7 The only summary judgment evidence on this issue establishes that cleaning and replacing contents affected by mold is very much part of the reasonable cost to move from a mold affected residence. This Court should deny Defendant’s motion for this reason. 7. Defendant’s position that damage contents are not contemplated by the RCLA, is simply false. Defendant focuses its argument on the RCLA’s applicability provision, §27.002. But Defendant altogether ignores (and fails to cite to this Court) §27.004(g)(2), which expressly allows homeowners to recover “the reasonable and necessary cost for the replacement or repair of any damaged goods in the residence.” This provision completely undermines Defendant’s argument that damaged goods in the residence are not contemplated by the RCLA. The fact is, there is very little law interpreting the RCLA and no law interpreting §27.0042’s mandate that homebuilders pay reasonable moving cost. Because the RCLA expressly allows for repairing or replacing 4 See Exhibit A at 207:17-208:25. 5 See Exhibit B. 6 Id. 7 Id. 4 damaged contents and because doing so is part of the reasonable costs required to move contents from a mold contaminated home, Defendant’s motion for summary judgment should be denied on this ground, as well. III. The RCLA statute does not support Defendant’s request to prematurely compel the home sale. 8. Finally, without any support from the RCLA statute or otherwise, Defendant request that this Court compel Plaintiffs’ sale of the home on an interlocutory basis. This Court, in fact, does not have jurisdiction to prematurely force the sale because Plaintiffs’ claims have not been fully resolved. Section 27.0042 only allows a homebuilder to purchase a home back as an alternative to the “reasonable costs of repairs necessary to repair a construction defect.” §27.0042(a). Accordingly, Defendant’s election to purchase the home is simply an alternative to Plaintiffs’ repair costs, which cannot be enforced prior to final judgment any more than Plaintiffs can force Defendant to pay their remaining claims prior to judgment. 9. It is also important to contemplate the injustice of Defendant’s request to force Plaintiffs to sell their home on an interlocutory basis. Importantly, the statute allows Defendant to purchase the home for the same amount Plaintiffs paid. In other words, Plaintiffs will only receive what they paid for the home EIGHT YEARS AGO, without any consideration for market value appreciation. Because Plaintiffs could only hire counsel on a contingency fee basis, forcing them to sell their home now without also being compensated for the damages addressed above as well as their expert and attorney’s fees would necessarily leave them well short of the funds necessary to purchase a new home. 5 As unjust as this portion of the RCLA is, it does not contemplate or allow the absurd result requested by Defendant. This Court should, therefore, reject this summary judgment ground, as well. Prayer 10. For the foregoing reasons, Plaintiffs respectfully request that this Court deny Defendant’s motion for summary judgment in whole. Respectfully submitted, THE FAUBUS FIRM By: /s/ Dax O. Faubus Dax O. Faubus State Bar No. 24010019 1001 Texas Avenue, 11th Floor Houston, Texas 77002 Telephone: (713) 222-6400 Facsimile: (713) 222-7240 dax-notice@faubusfirm.com Attorneys for Plaintiffs 6 CERTIFICATE OF SERVICE I hereby certify that on this 7th day of June, 2022, a true and correct copy of the foregoing pleading was served upon the following counsel of record pursuant to Rule 21 of the Texas Rules of Civil Procedure: Via E-Mail: Melinda M. Riseden Crain, Caton & James 1401 McKinney Street, 17th Floor Houston, Texas 77010 mriseden@craincaton.com Counsel for Defendant /s/ Dax O. Faubus Dax O. Faubus 7 EXHIBIT A 1 IN THE DISTRICT COURT OF GALVESTON COUNTY, TEXAS 2 122ND JUDICIAL DISTRICT 3 ________________________________ 4 ROBERT WELCH and JENNIFER WELCH, 5 Plaintiffs, 6 v. Cause No. 7 GREENECO BUILDERS, LLC, 19-CV-0340 8 Defendant. 9 ________________________________ 10 VIDEOTAPED VIDEOCONFERENCE DEPOSITION OF 11 JENNIFER WELCH 12 DATE: Thursday, April 15, 2021 13 TIME: 10:34 a.m. 14 LOCATION: Remote Proceeding 15 16418 Tracy Court 16 Conroe, Texas 77306 17 REPORTED BY: Kyla Benson, Notary Public 18 JOB No.: 4539955 19 20 21 22 23 24 25 Page 1 Veritext Legal Solutions 346-293-7000 1 APPEARANCES 1 E X H I B I T S (Cont'd.) 2 ON BEHALF OF PLAINTIFFS ROBERT WELCH AND JENNIFER 2 NO. DESCRIPTION PAGE 3 WELCH: 3 Exhibit 9 Airtron warranty service invoice 4 DAX FAUBUS, ESQUIRE (by videoconference) 4 dated 10/22/2014, 4 pages 91 5 The Faubus Firm, LLP 5 Exhibit 10 Email dated 1/15/2015 re: repairs, 6 1001 Texas Avenue, Floor 11 6 1 page 102 7 Houston, Texas 77002 7 Exhibit 11 Email dated 6/22/2015 re: repairs, 8 dax@faubusfirm.com 8 1 page 108 9 (713) 222-6400 9 Exhibit 12 Email dated 7/8/2015 re: warranty, 10 10 1 page 112 11 ON BEHALF OF DEFENDANT GREENECO BUILDERS, LLC: 11 Exhibit 13 Email dated 6/16/2016 re: mold 12 MELINDA RISEDEN, ESQUIRE (by videoconference) 12 again, 1 page 120 13 Crain Caton & James 13 Exhibit 14 Weeks Service Company repair 14 1401 McKinney Street, Suite 1700 14 quote dated 8/31/2016, 2 pages 134 15 Houston, Texas 77010 15 Exhibit 15 Daryl's A/C & Heating, LLC invoice 16 mriseden@craincaton.com 16 dated 4/28/2017, 1 page 142 17 (713) 658-2323 17 Exhibit 16 Empire Today contract payment 18 18 details, page 5 of 17 153 19 ALSO PRESENT: 19 Exhibit 17 A.Q. Testing Services, LLC mold 20 Robert Welch, Plaintiff (by videoconference) 20 remediation protocol documents, 21 Joe Acosta, Videographer (by videoconference) 21 SEEML Labs report, and photographs, 22 Ross Colby, Tech Concierge (by videoconference) 22 69 pages 163 23 23 Exhibit 18 The Faubus Firm engagement 24 24 letter dated 10/20/2018, 25 25 3 pages 165 Page 2 Page 4 1 INDEX 1 E X H I B I T S (Cont'd.) 2 EXAMINATION: PAGE 2 NO. DESCRIPTION PAGE 3 By Ms. Riseden 9 3 Exhibit 19 Plaintiffs' Response to 4 EXHIBITS 4 Defendant's Rule 194 Request 5 NO. DESCRIPTION PAGE 5 for Disclosure, 13 pages 203 6 Exhibit 1 Greeneco Builders, LLC new 6 Exhibit 20 Excel spreadsheet itemizing 7 home sales contract dated 7 Interior property damages 8 12/8/2013, 20 pages 20 8 and repair/replacement costs 207 9 Exhibit 2 Letters dated 6/15/2020 and 9 Exhibit 21 A.Q. Testing Services, LLC 10 invoices, 4 pages 212 10 6/22/2020 re: repurchase of 11 Exhibit 22 A.Q. Testing Services, LLC 11 Welch property, 10 pages 31 12 letter re: habitability of 12 Exhibit 3 Bonded Builders Warranty Group 13 residence dated 12/30/2020, 13 application and letter of 14 1 page 14 acceptance dated 6/2014, 3 pages 38 215 15 Exhibit 4 Bonded Builders Warranty Group 15 16 Documents, 35 pages 42 16 (Exhibits attached.) 17 Exhibit 5 Email and Greeneco Customer Service 17 18 Request re: mold, both dated 18 QUESTIONS INSTRUCTED NOT TO ANSWER 19 8/12/2014, 2 pages 63 19 PAGE LINE 20 Exhibit 6 Email dated 8/18/2014 re: mold, 20 23 6 21 dated 8/18/2014 67 21 23 9 22 Exhibit 7 Airtron warranty service invoice 22 23 25 23 Dated 9/17/2014, 3 pages 74 23 32 14 24 Exhibit 8 Airtron warranty service invoice 24 34 21 25 dated 10/8/2014, 3 pages 81 25 37 18 Page 3 Page 5 2 (Pages 2 - 5) Veritext Legal Solutions 346-293-7000 1 QUESTIONS INSTRUCTED NOT TO ANSWER (Cont'd.) 1 PROCEEDINGS 2 PAGE LINE 2 VIDEOGRAPHER: Today's date is April 3 52 20 3 15, 2021. We're on the record at 10:34 a.m. This is 4 52 22 4 the videotaped deposition of Jennifer Welch in the 5 85 4 5 matter of Robert Welch and Jennifer Welch vs. Greeneco 6 85 5 6 Builders, LLC filed in the 122nd Judicial District, 7 89 22 7 Galveston County, Texas. Counsel will now state their 8 89 23 8 appearance and affiliation for the record. 9 102 17 9 MR. FAUBUS: Dax Faubus for the 10 104 24 10 plaintiffs. 11 105 4 11 MS. RISEDEN: Mindy Riseden 12 105 12 12 representing the defendant, Greeneco Builders. 13 105 17 13 VIDEOGRAPHER: Will the court reporter 14 110 10 14 please swear in the witness and we may proceed. 15 122 21 15 REPORTER: Absent an objection on the 16 125 24 16 record before the witness is sworn, all parties and 17 127 2 17 the witness understand and agree that any certified 18 127 6 18 transcript produced from the recording of this 19 127 10 19 proceeding: 20 128 13 20 - is intended for all uses permitted 21 129 4 21 under applicable procedural and 22 147 20 22 evidentiary rules and laws in the same 23 147 25 23 manner as a deposition recorded by 24 149 14 24 stenographic means; and 25 149 20 25 - shall constitute written stipulation Page 6 Page 8 1 QUESTIONS INSTRUCTED NOT TO ANSWER (Cont'd.) 1 of such. 2 PAGE LINE 2 At this time I will swear in the 3 151 4 3 witness. Ms. Welch, please raise your right hand. 4 151 12 4 WHEREUPON, 5 159 11 5 JENNIFER WELCH, 6 159 19 6 called as a witness, and having been first duly sworn 7 159 21 7 to tell the truth, the whole truth and nothing but the 8 159 24 8 truth, was examined and testified as follows: 9 160 7 9 EXAMINATION 10 160 11 10 BY MS. RISEDEN: 11 160 17 11 Q Good morning, Mrs. Welch. How are you? 12 160 18 12 A I'm doing great. 13 164 18 13 Q I'm Mindy Riseden, and as I just stated on 14 171 13 14 the record I represent the defendant, Greeneco. And 15 171 22 15 we haven't met before today, correct? 16 172 24 16 A Correct. 17 176 12 17 Q And will you please state your full name for 18 176 13 18 the record? 19 179 3 19 A Jennifer Shalaine Welch. 20 179 4 20 Q And I understand that you're here testifying 21 180 13 21 today about claims that you and your husband brought 22 180 18 22 in a lawsuit against Greeneco Builders. Is that 23 182 3 23 correct? 24 220 16 24 A Yes. 25 25 Q And our court reporter is very good, but I Page 7 Page 9 3 (Pages 6 - 9) Veritext Legal Solutions 346-293-7000 1 imagine that she can't take down both of us at the 1 or Pearland? 2 same time. She probably hasn't figured out how to do 2 A Dickinson. 3 that, like everyone else. So you and I need to work 3 Q What's the name of the high school? 4 really hard not to talk over each other. Fair enough? 4 A Dickinson High School. 5 A Yes. 5 Q And did you obtain any post-high school 6 Q And so what I'm going to do is I'm going to 6 degrees or education? 7 do my best not to cut you off and let you finish your 7 A My San Jac and then I'm about to graduate 8 answer. But if I do cut you off, I would really 8 from Lamar University. 9 appreciate it if you would tell me, please stop. I 9 Q Over in Beaumont? 10 want to finish my answer. Will you do that? 10 A Yes, ma'am. 11 A Yes, ma'am. 11 Q Congratulations. 12 Q And then will you give me the same courtesy 12 A Thank you. 13 that if I'm asking a question even if you're ready to 13 Q What degrees did you obtain from San Jac? 14 answer you'll let me finish my questions before you 14 A San Jac, just the general education -- I 15 start your answer? 15 mean, general degree, associate's. 16 A Absolutely. Yes. 16 Q And what degree are you about to receive 17 Q Thank you. And if I ask any question today 17 from Lamar? 18 that is unclear or confusing to you, if you could 18 A My BAAS, bachelor of arts and applied 19 please just ask me to rephrase it and I'm happy to do 19 science. My bachelor's degree. My bachelor's degree. 20 that. 20 My BAAS. 21 A Okay. 21 Q And what do you intend to do with it? 22 Q Now I see that your -- it appears that 22 A Going to teach. To be a teacher. 23 you're in a house. And I know before the depo started 23 Q Wonderful. Thank you for doing that. 24 you stated that you were at 16418 Tracy Court in 24 A You're welcome. 25 Conroe, Texas. 25 Q And have you ever been deposed before? Page 10 Page 12 1 A Yes, ma'am. 1 A No. 2 Q And that's the house that you currently 2 Q Well, welcome to the club. This is your 3 reside in, right? 3 first deposition. Again, if you have any questions or 4 A Yes, ma'am. 4 need me to repeat something, let me know. And do you 5 Q And your husband is sitting to your left? 5 work outside the home? 6 A Yes, ma'am. 6 A Yes. 7 Q And what is his full name? 7 Q And what do you do? 8 A Robert Douglas Welch. 8 A I'm a teacher aide. 9 Q And is there anyone else in the house? 9 Q And for what age group? 10 A No, ma'am. 10 A For elementary age. 11 Q Is there anyone on a speakerphone or anyone 11 Q And where do you work? 12 else that can hear this deposition? 12 A I'm working at Tarkington ISD. 13 A No, ma'am. 13 Q Where is that located? 14 Q And you understand that even though your 14 A In the country close to Cleveland, Texas. 15 husband is sitting to your left that this is your 15 Q So up on the north side? 16 deposition where you're providing your sworn answers 16 A Yes. 17 to my questions? 17 Q So kind of North 59 and Patton? 18 A Yes, ma'am. 18 A Yeah, 59 -- 19 Q What city were you born in, Ms. Welch? 19 Q Okay. Patton -- 20 A Houston, Texas. 20 A Yes. 21 Q Great. There's not many of us native 21 Q Past Kingwood North, right? 22 Houstonians around anymore, so I'm glad to see another 22 A Right. Yes. 23 one. Did you grow up in Houston as well? 23 Q How long have you worked there? 24 A I grew up in Pearland and Dickinson. 24 A This is my first year. 25 Q And did you attend high school in Dickinson 25 Q So does that mean you started at the Page 11 Page 13 4 (Pages 10 - 13) Veritext Legal Solutions 346-293-7000 1 beginning of the school year? 1 A In June of 2014 we moved in. 2 A Yes, ma'am. In August 2 Q And when did you move out of your home? 3 Q August 2020? 3 Because by your testimony you're not there right now, 4 A Yes. 4 correct? 5 Q And did you have to apply for this job? 5 A Correct. We moved out this summer. 6 A Yes. 6 Q Summer of 2020? 7 Q When did you apply? 7 A Yes. 8 A August. 8 Q And do you know exactly when, like which 9 Q And where does your husband work? 9 month? 10 A My husband? Deep Down. Juma Properties. 10 A It was sometime in June or July. I don't 11 He works in Cleveland. 11 remember exactly what month. 12 Q And what does he do? You said it's called 12 Q And where did you move to when you moved out 13 Juno Properties? 13 of 303 Sea Breeze in June or July of 2020? 14 A Juma, J-U-M-A. 14 A At the 16418 Tracy Court. 15 Q And what does he do at Juma Properties? 15 Q So you went directly to the Tracy Court 16 A I'm not sure. 16 address? Nowhere in between, right? 17 Q But you know he goes every day and works. 17 A We were living at his boss's ranch 18 A And paychecks come in every two weeks. 18 house -- . 19 Q That's the best part. How long has he been 19 Q You were living where? I couldn't hear you. 20 working at Juma Properties in Cleveland? 20 A At his boss's ranch house. 21 A I'm not sure. I think about two years. 21 Q And is that a boss from Juma Properties? 22 Q So if we're sitting here today April 2021, 22 A Correct. 23 perhaps since April 2019, roughly? 23 Q Where is the ranch house located? 24 A Roughly. Yes. I don't remember the exact 24 A In Cleveland. 25 dates. 25 Q And how long were you at the boss's ranch Page 14 Page 16 1 Q And are you and Mr. Welch married? 1 house before you moved into the Tracy Court address? 2 A Yes. 2 A Maybe like three or four months. 3 Q And do you all have any children? 3 Q So in June or July of 2020 you left 303 Sea 4 A Yes. 4 Breeze, moved to a ranch house in Cleveland for three 5 Q And do they live in the home with you? 5 or four months, and then moved to the Tracy Court 6 A Yes. 6 address in Conroe. Is that correct? 7 Q How old are they? 7 A Yes. 8 A She's eight. 8 Q So no other residences for the last -- since 9 Q One child? 9 2014 other than the ones I just listed? 10 A Yes, ma'am. 10 A No. 11 Q And prior to starting work at Tarkington 11 Q Did you have to pay rent when you were at 12 ISD, where did you work before? 12 the boss's ranch house? 13 A Dickinson ISD. 13 A We paid things. Yes. Utilities and rent. 14 Q And were you also a teacher aide there? 14 Q How much was your rent? 15 A Yes, ma'am. 15 A 1,000. 16 Q Now let's jump to 303 Sea Breeze Drive. 16 Q Is that 1,000 a month? 17 A Okay. 17 A Yes, ma'am. 18 Q That's a home that you and your husband 18 Q And what's the name of the boss who owned 19 purchased, correct? 19 the ranch house? 20 A Yes, ma'am. 20 A Vaughn Smith. 21 Q And you all purchased it in June of 2014, 21 Q So I'm going to put a document in exhibit 22 right? 22 share. I'll tell you when I do it. I'm working on it 23 A Correct. 23 right now. Let's see. Okay. So if you go to your 24 Q And you moved in shortly after you purchased 24 exhibit share it should be there. 25 it. Is that right? 25 A Which one is it? Page 15 Page 17 5 (Pages 14 - 17) Veritext Legal Solutions 346-293-7000 1 Q I'm sorry? It should be Exhibit 1. 1 MR. FAUBUS: Go ahead. Go ahead, 2 MR. FAUBUS: I don't show any documents 2 Mindy. 3 in the exhibit share. 3 MS. RISEDEN: I'm trying. Dax, you'll 4 THE WITNESS: I don't see anything, 4 see it's Exhibit 1, the contract. If you have a 5 either. 5 question about it, let me know. But otherwise, you 6 CONCIERGE TECH: You have to refresh. 6 should be able to access exhibit share just like we've 7 MR. FAUBUS: I did. It's refreshed. 7 done for prior depositions. 8 CONCIERGE TECH: I see it. I've got it 8 MR. FAUBUS: Yeah. Go ahead. I have 9 here. 9 not accessed it for prior depos, Mindy. I've already 10 MR. FAUBUS: I don't. 10 told you that. 11 MS. RISEDEN: How about I'm going to 11 MS. RISEDEN: Well, I can't help that 12 share my screen but I'm going to make sure, Mrs. 12 because I've noticed them that way. 13 Welch, that you can access it in exhibit share to the 13 BY MS. RISEDEN: 14 extent you want to look at the document. 14 Q Now Mrs. Welch, do you see what I've marked 15 MR. FAUBUS: Mrs. Welch, do you see it? 15 as Exhibit 1 to your deposition? 16 THE WITNESS: Yes, sir. 16 (Exhibit 1 was marked for 17 MR. FAUBUS: No, do you see it in 17 identification.) 18 exhibit share? 18 A Yes. 19 THE WITNESS: Yes. Now I see it. 19 Q And you recognize it as the new home sales 20 MS. RISEDEN: Okay. 20 contract between you and your husband and Greeneco 21 MR. FAUBUS: Hold on. You do or don't? 21 dated December 8, 2013? 22 THE WITNESS: I see it. 22 A Correct. 23 MR. FAUBUS: Okay. I do not see it. 23 Q And then you see that the total purchase 24 CONCIERGE TECH: So on the right side 24 price listed in the contract is approximately 150,000, 25 of your screen -- are you sure you're in the right 25 just shy of 151,000? Page 18 Page 20 1 deposition? 1 A Correct. 2 MR. FAUBUS: I'm in Veritext exhibit 2 Q And if you look at the bottom page of the 3 share. 3 first page, do you see those initial blocks in the 4 CONCIERGE TECH: Okay. On the left 4 right-hand corner -- 5 side of the screen do you see the case name -- 5 A Correct. 6 MR. FAUBUS: No. 6 Q -- where it says buyer? 7 CONCIERGE TECH: -- and below that 7 A Yes. 8 deposition? 8 Q And do you agree that those are yours or 9 MR. FAUBUS: No. No. 9 your husband's initials in the bottom right-hand 10 CONCIERGE TECH: Okay. Then you're not 10 corner? 11 in exhibit share. 11 A Yes. 12 MR. FAUBUS: Well, this is the same 12 Q And if you flip through the entire document 13 link that was for the logging into the Zoom. 13 that you have in front of you, let me know if you 14 CONCIERGE TECH: Okay. So if you open 14 dispute if any of the initials in the bottom 15 a browser in Chrome -- 15 right-hand corner are yours and your husband's. 16 MR. FAUBUS: I don't use Chrome. 16 A No. 17 CONCIERGE TECH: Well, okay. You can 17 Q So I'm going to take you to section 14. And 18 try another browser. Chrome works best, but ... 18 if you're following on exhibit share, that's a 19 MR. FAUBUS: So I'm clicking on launch 19 document that's a page that's Bates-labeled at the 20 exhibit share for the Welch link and it's not there. 20 bottom is Greeneco Welch 242. And you'll see it says 21 CONCIERGE TECH: Okay. I can direct 21 section 14, limited warranty. Do you see where I am? 22 you another way if you'd like. 22 MR. FAUBUS: You need to blow it up. 23 MR. FAUBUS: Let's just go -- as long 23 BY MS. RISEDEN: 24 as she puts it up on screen share, I'm fine with that. 24 Q Mrs. Welch, do you see where I am? 25 MS. RISEDEN: Dax, you'll see -- 25 A Yes. Page 19 Page 21 6 (Pages 18 - 21) Veritext Legal Solutions 346-293-7000 1 Q So if you look at the part that's underlined 1 question. 2 in all caps where it starts with "Except as expressly 2 BY MS. RISEDEN: 3 provided herein" -- sorry. Let me start over. 3 Q Are you going to refuse to answer my 4 "Except as expressly provided in the TRCC standards, 4 question on your attorney's advice? 5 we make no warranties, either express or implied, 5 A Yes. 6 whether arising under state law or the Magnuson-Moss 6 Q Are you not aware that you purchased the 7 Warranty Act, including but not limited to implied 7 property as-is and where-is with all faults? 8 warranties of fitness, merchantability, habitability, 8 A I don't understand. 9 or workmanship." Do you see where I am? 9 Q Well, I'm just trying to figure out when you 10 A Correct. Yes. 10 purchased this property in June of 2014, if you knew 11 Q And you see that it goes on to say that "You 11 you were buying it as-is and where-is? 12 specifically acknowledge and agree to our disclaimer 12 A It was a new house. It should be -- a brand 13 or implied warranties and you waive any warranties not 13 new house shouldn't have any problems with it. 14 expressly stated in the TRCC standards. Except as 14 Q And are you aware that you purchased a 15 expressly stated in the TRCC standards, you're 15 warranty with the house? 16 purchasing the property as-is, where-is, and with all 16 A There was a warranty on it, so anything 17 faults." Do you see where I read? 17 should be fixed. 18 A Correct. 18 Q Now, you did not have a broker or real 19 Q And then do you see at the bottom of that 19 estate agent represent you in this transaction, 20 page, again, those are yours and your husband's 20 correct? 21 initials right underneath that, correct? 21 A No. 22 A Yes. 22 Q Now, we're going to jump forward to section 23 Q So after just reading these sentences 23 25. And it's on a page that is Bates-labeled Greeneco 24 talking about that you're waiving these warranties of 24 Welch 247, if you want to scroll through it. 25 habitability and good workmanship, are you aware that 25 A What page is it? Page 22 Page 24 1 you and your husband are suing Greeneco for breach of 1 Q It's page 12 of the document, but it's noted 2 these exact warranties that you have waived here by 2 as Greeneco Welch 247 and it's paragraph 25. 3 signing this contract? 3 A Okay. 4 MR. FAUBUS: You're not going to tell 4 Q So this section is called environmental 5 them that state law says that you can't waive those 5 risk/mold, and I'm looking at the last sentence that 6 things? Don't answer the question. 6 says "Upon assuming possession of the improvements, 7 MS. RISEDEN: Dax, you can object to 7 you are responsible for implementing an inspection and 8 form. 8 maintenance program for the identification and 9 MR. FAUBUS: Don't answer the question. 9 elimination of moisture in the improvements that could 10 It's a harassing question. It's calling for a legal 10 give rise to the growth of mold or other conditions 11 conclusion that Mrs. Welch cannot testify to. 11 detrimental to functioning of the improvements or the 12 BY MS. RISEDEN: 12 health of its occupants." Do you see what I just read 13 Q Mrs. Welch, are you going to listen to your 13 in section 25? 14 attorney's advice and refuse to answer my question? 14 A I see it. 15 A I'm listening to my attorney's advice. 15 Q And you initialed at the bottom of that 16 Q Are you aware that in your lawsuit against 16 page, correct, on 247? 17 Greeneco you are suing based on implied warranties of 17 A Correct. 18 habitability and good workmanship? Are you aware of 18 Q And do you recall whether you ever fulfilled 19 that? 19 this responsibility in implementing an inspection and 20 A Yes. 20 maintenance program for any moisture or -- yeah, the 21 Q And are you aware by what I just read and 21 elimination of moisture that could give rise to mold 22 looking at the contract that you signed and initialed, 22 in the home? 23 that you and your husband purchased this property as- 23 MR. FAUBUS: Objection. Form. You can 24 is, where-is, and with all faults? 24 answer. 25 MR. FAUBUS: Don't answer that 25 // Page 23 Page 25 7 (Pages 22 - 25) Veritext Legal Solutions 346-293-7000 1 BY MS. RISEDEN: 1 right. Are you aware of that? 2 Q You can answer. 2 MR. FAUBUS: Objection. Form. 3 A Okay. Repeat it again. I'm sorry. 3 THE WITNESS: They -- I don't 4 Q Sure. Do you recall if you ever fulfilled 4 understand the question. 5 this responsibility and implemented an inspection or 5 BY MS. RISEDEN: 6 maintenance program to eliminate moisture in the home 6 Q Okay. So section 39 that we just talked 7 that could give rise to mold? 7 about gives Greeneco the sole right to make a decision 8 MR. FAUBUS: Objection. Form. 8 whether they want to buy your property back under the 9 THE WITNESS: As of -- 9 statute listed. And Greeneco sent a letter and wanted 10 MR. FAUBUS: If you don't know the 10 to exercise its sole right to do that. And what I 11 answer to the question, it's fine to say you don't 11 want to know is if you're aware that Greeneco letter 12 know. 12 demanding its sole right to exercise the right 13 MS. RISEDEN: Please stop coaching the 13 repurchase your property. 14 witness, Dax. 14 MR. FAUBUS: Objection. Form. 15 MR. FAUBUS: I'm not. You're asking an 15 THE WITNESS: What do you mean, by 16 impossible question once again. 16 sending a letter before we hired Dax or after? 17 THE WITNESS: Yeah. I mean, I don't 17 BY MS. RISEDEN: 18 know about this. We were just -- yeah. Go ahead. 18 Q After you hired Mr. Faubus. 19 BY MS. RISEDEN: 19 A No. 20 Q So you did not bring in -- implement an 20 Q You're not aware? 21 inspection or maintenance program, correct? 21 A Just what -- you know, everything was 22 MR. FAUBUS: Objection. Form. 22 through the lawyers, so I'm not answering. 23 THE WITNESS: It was a new build and we 23 Q And this letter was sent in 2020. And are 24 were told everything was final and inspected as a new 24 you aware that you and your husband refused Greeneco's 25 build home. 25 sole right to repurchase the property under this