Motion,Ex Parte: Remedy Roofing, Inc. VS. Javier Perez

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Preview
                                Electronically Filed
                                                                                   9/11/2023 12:00 AM
                                                                                   Hidalgo County District Clerks
                                                                                   Reviewed By: Dana Cavazos




 REMEDY ROOFING, INC.                                §   IN THE DISTRICT COURT
 Plaintiff,                                          §
                                                     §
 V.                                                  §   92ND JUDICIAL DISTRICT
                                                     §
 JAVIER PEREZ                                        §
 Defendant.                                          §   OF HIDALGO COUNTY, TEXAS


      DEFENDANT PEREZ’ MOTION FOR NO EVIDENCE SUMMARY JUDGMENT
                        UNDER TEX. R. CIV. P. 166a(i)

______________________________________________________________________________

         TO THE HONORABLE COURT:

         NOW COMES JAVIER PEREZ, Defendant, and files this instrument, showing the

Court as follows:

      1. Defendant Perez moves for no-evidence summary judgment as to certain affirmative

Defenses raised by Remedy in response to Defendant’s Counter-claims. A reasonable time for

discovery has occurred as the discovery period is imminently coming to a close.

ACCORD & SATISFACTION

      2. Remedy asserts that there has been an accord and satisfaction of Perez’ claims against it.

Accord and satisfaction requires that the parties have entered into a new contract that resolves

or disposes of a prior contract or controversy. There is no evidence of any such agreement or

any such resolution. Furthermore, the new agreement must be accepted and performed

(satisfied). There is no evidence of satisfaction.

FAILURE TO MITIGATE DAMAGES

      3. Remedy asserts that Perez failed to mitigate his damages. There is no evidence as

To what conduct Perez should have engaged in to reduce his damages, nor would there be

Given that Perez contests both the fraudulently inflated contract price and the propriety of
                                                                                     Electronically Filed
                                                                                     9/11/2023 12:00 AM
                                                                                     Hidalgo County District Clerks
                                                                                     Reviewed By: Dana Cavazos




the work by Remedy. Additionally, there is no evidence as to the amount by which

Perez’ conduct should have mitigated damages.

CONCLUSION

       Perez requests that this Court require Plaintiff to adduce evidence in support

of these affirmative defenses and, failing same, they they be dismissed under the

no-evidence summary judgment standard.




                                                       Respectfully Submitted,

                                                       LARRY MORENO P.C.
                                                       P.O. BOX 839
                                                       HELOTES TEXAS 78023
                                                       210-265-7216
                                                       AtorneyMoreno@protonmail.com

                                                       BY:/s/LARRY MORENO
                                                       LARRY MORENO
                                                       TBN 00790086

                                                       Atorney for Defendant


                                       CERTIFICATE OF SERVICE

      I hereby cer�fy that a true and correct copy of the foregoing instrument was this 9th day
September, 2023, served on Plain�ff’s counsel via e-mail transmission.

                                                               /s/LARRY MORENO
                         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.

Hilario Moreno
Bar No. 00790086
attorneymoreno@protonmail.com
Envelope ID: 79380722
Filing Code Description: Motion (No Fee)
Filing Description: Defendant Perez' No Evidence Motion for Partial
Summary Judgment
Status as of 9/11/2023 9:10 AM CST

Associated Case Party: Remedy Roofing, Inc.

Name                 BarNumber Email                      TimestampSubmitted       Status

Joshua Mermis                  jmermis@westmermis.com     9/9/2023 5:18:28 PM      SENT

Lynette Samolinski             efiling@westmermis.com     9/9/2023 5:18:28 PM      SENT

Sydney Koby                    skoby@westmermis.com       9/9/2023 5:18:28 PM      SENT

Victoria Martinez              vmartinez@westmermis.com 9/9/2023 5:18:28 PM        SENT



Associated Case Party: Javier Perez

Name            BarNumber Email                          TimestampSubmitted       Status

Larry Moreno               AttorneyMoreno@protonmail.com 9/9/2023 5:18:28 PM      SENT



Case Contacts

Name                      BarNumber Email                                      TimestampSubmitted Status

CYNTHIA DELBOSQUES                     CYNTHIA.DELBOSQUELAW@LIVE.COM 9/9/2023 5:18:28 PM             SENT

JAVIER PEREZ                           JV1276@AOL.COM                          9/9/2023 5:18:28 PM   ERROR