On March 19, 2024 a
Motion,Ex Parte
was filed
involving a dispute between
and
for SWORN ACCOUNT
in the District Court of Harris County.
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©
23-07-21 898-08
E-Fited for Record
BI20/2024 5:20 PM
w
Robertson County District Clerk , TX
By: Liss Hutto
2024-17907 / Court: 151
CAUSE NO. 23-07-21698-CV
LOFTIN MECHARICAL SERVICES, 8 IN THE DISTRICT COURT
LLC
Â¥E.
8 GF ROBERTSON COUNTY, TEXAS
§
AMERICAN WESTERN
STEEL, LLC 82ND JUDICIAL DISTRICT
DEFENDANT AMERICAN WESTERN STEEL, LLCS ORIGINAL ANSWER AND
MOTION TO ABATE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW AMERICAN WESTERN STEEL, LLC, Defendant herein, and files this
its Original Answer and Motion to Abate in response io Plaintiffs Original Petition, and would
show the Court the following:
L_ GENERAL DENIAL
i Defendant American Western Steel, LLC denies generally every allegation contained in
Plaintiff's Original and demands strict proof by a preponderance af credible evidence.
Uf, AFFIRMATIVE DEFENSES
3 Defendant asserts the affirmative defense of fraud on the part of Plaintiff.
4 Defendant asseris that its is not Hable to Plaintiff because Plaintiff’s own acts or omissions
proximately caused and/or contriluted to Plaintifi’s alleged damages.
5 Defendant asserts the affirmative defense of statute of frauds.
6. Defernlant asserts the affirrnative defense of Plaintiff's contritutory negligence.
op
Defendant asserts the affirmative defense that Plainti eS hands are unclean,
Defendant asserts the affirmative defense that Plaintiff bas failed to mitigate its damages.
Defendant asserts the affirmative defense of accord and satisfaction.
10 Defendant asserts the affirmative defense of promissory estoppel.
TU, MOTION TO ABATE
i. Defendant moves that this suit be abated.
IZ, Pursuant to Section 17.505 of the Texas Business and Commerce Cods, notice nnist be
given by the claimant at least 60 days prior to the filing of a suit seeking relief under Section 17.50
of the Texas Business and Commerce Code. In addition, the notice, when and if given, must in
reasonable detail state the consumer’s specific complaint, the amount of economic damages,
expenses inchiding attorney's fees.
13. Plaintiff has failed to provide the required DTPA notice that provided reasonable detail,
speciffied Plaintiff's specific complaint ar the amount of economic damages. Accordingly, proper
notice under 17.5 S of the Texas Business Cornmerce Code has not heen given. Accordingly,
Plaintiff's suit is premature and must be abated as a matter of Jaw until Plaintiff has complied with
said Section 17.505.
id. In addition, Section 17.505 of the Texas Business and Co: erce Code provides that a
respondent fo such a claim, may, within that 60-day period of time, r est fo inspect in a
reasonable manner and at a reasonable time and place tp inspect. Defendant has not yet been
accorded that right to its detriment. Therefore, Flaintiff’'s sult again is premature and must be
abated as a matter of law until the parties have agr eeae dito and an inspection completed within a
reasonable time period.
TY. PRAYER
WHEREFORE, Defendant American Western Steel, LLC asks the Court to render a take-
nothing Aadgment against Plaintiff, assess costs against Plaintiff, award Defendant American
Western Steel, LLC its attorney fees on Plaintif’s causes of a ‘on for breach of contract and
violations of the DTPA, and award American Western Steel, LUC any and all other relief to which
it may be entitled.
Respectfidly submitted,
Yau Gerper Law Firs, BC.
és? Yonutan 2. Gerber
Yonatan Z. Gerber |
SBN: 24055544
@2 IY
West Loop South, $ te 200
Bellaire, Texas 77401
Tel: 832-767-1068
Fax: §32-767-1686
ATTORNEY FOR DEFENDANT
CERTIFICATE GF SERVICE
Lcertify that a trae copy of the above was served on parties listed below in accordance with
the Texas Rules of Civil Procedure on this the 36th day of August, 2023.
Travis Qwens
Conner Tichota
Grant Neal
Onvens Law Group
P.O. Box 8605
The Woodlands, Texas 77387
Vie E-Mail: favis@owsns-lawereus.cont
comer @owens-laweraun
com
grani@o
is! Yi
&. Gers
38F
@
GS
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 sull provide a
certificate of service that complies with all applicable rules.
Russell Mackert on behalf of Yonatan Gerber
Bar No. 24055544
rmackert@thegerberlawfirm.com
Envelope 1D: 79090853
Filing Code Description: Answer/Response
Filing Description: Plaintiff's Original Answer and Motion to Abate
Status as of 8/91/2023 8:05 AM CST
Associated Case Party: Loftin Mechanical Services, LLG
Name BarNumber | Email TimastampSubmitted Status
Conner Tichota conner@owensfawgraup.cam 8/30/2023 8:20:26 PM SENT
Travis Owens travis@owens-lawgraup.cam. 8/30/2023 S:20:26 PM SENT
Grant Neal grant@iowens-lawgroup.con 8/30/2023 5:20:26 PM SENT
Associated Case Party: American Western Stee!, LLC
Name BarNumber | Email TimestampSubmitted | Status
Yonatan 2Gerber yoerber@thegerberlawfirm.cam 1303 (2023 §:20:26 PM | SENT
Russell Mackert rmackert@thegerberlawfirm.com | 8/30/21 26 PM | SENT
Document Filed Date
March 19, 2024
Case Filing Date
March 19, 2024
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© 23-07-21 898-08 E-Fited for Record BI20/2024 5:20 PM w Robertson County District Clerk , TX By: Liss Hutto 2024-17907 / Court: 151 CAUSE NO. 23-07-21698-CV LOFTIN MECHARICAL SERVICES, 8 IN THE DISTRICT COURT LLC ¥E. 8 GF ROBERTSON COUNTY, TEXAS § AMERICAN WESTERN STEEL, LLC 82ND JUDICIAL DISTRICT DEFENDANT AMERICAN WESTERN STEEL, LLCS ORIGINAL ANSWER AND MOTION TO ABATE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW AMERICAN WESTERN STEEL, LLC, Defendant herein, and files this its Original Answer and Motion to Abate in response io Plaintiffs Original Petition, and would show the Court the following: L_ GENERAL DENIAL i Defendant American Western Steel, LLC denies generally every allegation contained in Plaintiff's Original and demands strict proof by a preponderance af credible evidence. Uf, AFFIRMATIVE DEFENSES 3 Defendant asserts the affirmative defense of fraud on the part of Plaintiff. 4 Defendant asseris that its is not Hable to Plaintiff because Plaintiff’s own acts or omissions proximately caused and/or contriluted to Plaintifi’s alleged damages. 5 Defendant asserts the affirmative defense of statute of frauds. 6. Defernlant asserts the affirrnative defense of Plaintiff's contritutory negligence. op Defendant asserts the affirmative defense that Plainti eS hands are unclean, Defendant asserts the affirmative defense that Plaintiff bas failed to mitigate its damages. Defendant asserts the affirmative defense of accord and satisfaction. 10 Defendant asserts the affirmative defense of promissory estoppel. TU, MOTION TO ABATE i. Defendant moves that this suit be abated. IZ, Pursuant to Section 17.505 of the Texas Business and Commerce Cods, notice nnist be given by the claimant at least 60 days prior to the filing of a suit seeking relief under Section 17.50 of the Texas Business and Commerce Code. In addition, the notice, when and if given, must in reasonable detail state the consumer’s specific complaint, the amount of economic damages, expenses inchiding attorney's fees. 13. Plaintiff has failed to provide the required DTPA notice that provided reasonable detail, speciffied Plaintiff's specific complaint ar the amount of economic damages. Accordingly, proper notice under 17.5 S of the Texas Business Cornmerce Code has not heen given. Accordingly, Plaintiff's suit is premature and must be abated as a matter of Jaw until Plaintiff has complied with said Section 17.505. id. In addition, Section 17.505 of the Texas Business and Co: erce Code provides that a respondent fo such a claim, may, within that 60-day period of time, r est fo inspect in a reasonable manner and at a reasonable time and place tp inspect. Defendant has not yet been accorded that right to its detriment. Therefore, Flaintiff’'s sult again is premature and must be abated as a matter of law until the parties have agr eeae dito and an inspection completed within a reasonable time period. TY. PRAYER WHEREFORE, Defendant American Western Steel, LLC asks the Court to render a take- nothing Aadgment against Plaintiff, assess costs against Plaintiff, award Defendant American Western Steel, LLC its attorney fees on Plaintif’s causes of a ‘on for breach of contract and violations of the DTPA, and award American Western Steel, LUC any and all other relief to which it may be entitled. Respectfidly submitted, Yau Gerper Law Firs, BC. és? Yonutan 2. Gerber Yonatan Z. Gerber | SBN: 24055544 @2 IY West Loop South, $ te 200 Bellaire, Texas 77401 Tel: 832-767-1068 Fax: §32-767-1686 ATTORNEY FOR DEFENDANT CERTIFICATE GF SERVICE Lcertify that a trae copy of the above was served on parties listed below in accordance with the Texas Rules of Civil Procedure on this the 36th day of August, 2023. Travis Qwens Conner Tichota Grant Neal Onvens Law Group P.O. Box 8605 The Woodlands, Texas 77387 Vie E-Mail: favis@owsns-lawereus.cont comer @owens-laweraun com grani@o is! Yi &. Gers 38F @ GS 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 sull provide a certificate of service that complies with all applicable rules. Russell Mackert on behalf of Yonatan Gerber Bar No. 24055544 rmackert@thegerberlawfirm.com Envelope 1D: 79090853 Filing Code Description: Answer/Response Filing Description: Plaintiff's Original Answer and Motion to Abate Status as of 8/91/2023 8:05 AM CST Associated Case Party: Loftin Mechanical Services, LLG Name BarNumber | Email TimastampSubmitted Status Conner Tichota conner@owensfawgraup.cam 8/30/2023 8:20:26 PM SENT Travis Owens travis@owens-lawgraup.cam. 8/30/2023 S:20:26 PM SENT Grant Neal grant@iowens-lawgroup.con 8/30/2023 5:20:26 PM SENT Associated Case Party: American Western Stee!, LLC Name BarNumber | Email TimestampSubmitted | Status Yonatan 2Gerber yoerber@thegerberlawfirm.cam 1303 (2023 §:20:26 PM | SENT Russell Mackert rmackert@thegerberlawfirm.com | 8/30/21 26 PM | SENT