Legal Document: TAMMY THOMAN vs. JOSHUA ROGERS, et al

On March 29, 2024 a PLAINITFFS ORIGINAL PETITION - ORIGINAL PETITION was filed involving a dispute between Thoman, Tammy, and 2415 Enterprises, Llc, Joshua Home 2415, Llc, Joshua Homes, Inc., Rogers, Joshua, for OTHER (CIVIL) in the District Court of Dallas County.

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FILED
3/29/2024 2:26 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
4 CIT/ ES Gay Lane DEPUTY
DC-24-04777
CAUSE NO. ____________________ 95th

TAMMY THOMAN, § IN THE ____ DISTRICT COURT
§
Plaintiff, § DALLAS COUNTY, TEXAS
§
v. §
§
JOSHUA ROGERS, 2415 ENTERPRISES, LLC §
D/B/A JOSHUA HOMES, JOSHUA HOMES, INC., §
AND JOSHUA HOMES 2415, LLC, §
§
Defendants. §

ORIGINAL PETITION

Plaintiff complains of Defendants and would respectfully show as follows:

Summary

This action stems from Defendants negligence, mismanagement, and fraud in building

Plaintiff’s new residence located at 3256 Koscher Drive, Grand Prairie, Texas 75104. Under

Defendants’ supervision as general contractor, the Project was plagued with problems, including,

but not limited to, construction errors and defects, poor workmanship, and significant,

unauthorized, and highly suspicious cost overruns that Defendants refused to explain. Despite

demand, Defendants never cured extensive damage and workmanship errors, and Plaintiff has

incurred significant damages cleaning up the mess Defendants caused.

ORIGINAL PETITION p. 1
Discovery Control Plan

1. Discovery should be conducted under Discovery Control Plan Level 2.

Rule 47 Statement

2. Plaintiff seeks monetary relief over $250,000, but not more than $1,000,000.

Parties, Jurisdiction and Venue

3. Plaintiff is an individual resident of Dallas County, Texas.

4. Defendant Joshua Rogers (“Rogers”) is an individual resident of Dallas County,

Texas and may be served with process at his usual place of business at 100 Lake Ridge Parkway,

Cedar Hill, Texas 75104, his usual place of abode 6015 Wall Street, Arlington, Texas 76018, or

wherever he may be found.

5. Defendant 2415 Enterprises, LLC d/b/a Joshua Homes (“2415 Enterprises”) is a

Texas limited liability company doing business in Dallas County, Texas and may be served

through its registered agent, Rodney Rogers at its registered office, 2305 South Pleasant Forest

Street, Arlington, Texas 76015, their usual place of business at 100 Lake Ridge Parkway, Cedar

Hill, Texas 75104, or wherever they may be found.

6. Defendant Joshua Homes 2415, LLC (“JH 2415”) is a Texas limited liability

company doing business in Dallas County, Texas and may be served through its registered agent,

2415 Enterprises, LLC, at its registered office, 100 Lake Ridge Parkway, Cedar Hill, Texas 75104.

7. Defendant Joshua Homes, Inc. (“Joshua Homes”) is a Texas corporation with a

principal place of business in Dallas County and may be served through its registered agent,

Anderson Registered Agents, at its registered office, 440 Louisiana, Suite 952, Houston, Texas

77002.

ORIGINAL PETITION p. 2
8. This Court has subject matter jurisdiction over this cause because the amount at

issue exceeds the minimal jurisdictional limit of the Court.

9. Venue is proper in Dallas County because (1) all or a substantial part of the acts or

omissions giving rise to the claims occurred in Dallas County and (2) Defendants’ principal place

of business are in Dallas County, Texas.

Factual Background

10. Plaintiff owns the real estate located at 3256 Koscher Drive, Grand Prairie, Texas

75104 (the “Property”).

11. Plaintiff hired Defendants for the construction of her residence on the Property (the

“Project”).

A. The Construction Contract

12. On or about December 28, 2020, Plaintiff, as owner of the Property, and one or

more of the Defendants, as the general contractor, executed that certain Residential Construction

Contract (the “Construction Contract”).

13. The Construction Contract is ambiguous as to which of the Defendants signed as

general contractor. Section 1 of the Contract states that “Joshua Homes” is the party to the

Construction Contract but does not specify whether that is an alias or business name of a registered

entity. On the signature page, Joshua Rogers signed as the “Contractor” without any reference to

any legal entity. This ambiguity was only magnified during the course of the Project because

budgets, invoices, and project documents were never consistent. Most of these documents merely

referenced, “Joshua Homes,” but others would reference, “Joshua Homes 24:15,” or some similar

combination. Upon information and belief, Defendants intentionally left that ambiguity in the

Construction Contract either: (1) to allow them to obtain construction permits and manage the

ORIGINAL PETITION p. 3
Project through the various entities owned or controlled by Rogers, or (2) as part of their broader

scheme to defraud Plaintiff.

14. Before executing the Construction Contract, Plaintiff had several discussions with

Rogers and ultimately decided to proceed with him and his company(ies), i.e., Defendants, as their

general contractor based on repeated promises and assurances from Rogers that he would be

completely transparent throughout the construction process and the costs of the Project. The latter

was essential considering the parties contemplated, and ultimately agreed, that Plaintiff would be

responsible for all construction costs.

15. The Construction Contract incorporated this expectation and requirement of

transparency. Pursuant to Section 2(1) of the Construction Contract, Defendants were

contractually obligated to provide all invoices for labor, materials, supplies, and expenses to

Plaintiff upon request. That same section further provided that Plaintiff, or her lender, would pay

subcontractors and suppliers directly upon request and receipt. That same section provided an

estimated total cost for the Project and included a fixed management fee, or “builders’ fee,” of

$84,000.

16. Section 9 of the Contract also required transparency of Defendants. Pursuant to

Section 9, Defendants had to provide notice of all changes to plans, specifications, and selection

sheets to Plaintiff for approval. Defendants had to provide notice even for minor changes and had

to obtain pre-approval before making any change that increased the contract price.

17. Pursuant to Section 14 of the Construction Contract, Defendants expressly

warranted that all work on the Project would be in a workman like manner and of a high-quality

standard for professionals in the industry for dwellings of similar cost. Defendants further

ORIGINAL PETITION p. 4
expressly warranted that they would only hire skilled and knowledgeable subcontractors and

would oversee all warrantable work.

18. Among other provisions in the Construction Contract, the parties also agreed that:

a. Defendants would use their best abilities to complete the construction of the

Project within 270-365 days.

b. Defendants would obtain and maintain builders’ risk insurance naming

Plaintiff as an additional named insured.

c. Defendants would use all new materials in accordance with the Project’s

plans and specifications.

d. Defendants could not deviate from the plans, specifications, and selection

sheets without first notifying and obtaining Plaintiff’s approval.

B. The Lien Contract

19. On or about January 14, 2021, Plaintiff and 2415 Enterprises signed that certain

Mechanic’s Lien Contract (the “Lien Contract”) in connection with Plaintiff obtaining construction

financing.

20. Under the Lien Contract:

a. 2415 Enterprises expressly represented and warranted that all work would

be in accordance with the Project plans and specifications, applicable

building codes and requirements, the Construction Contract, and the Home

of Texas Limited Warranty.

b. 2415 Enterprises was obligated to insure all work and materials against loss

or damage by fire and perils and 2415 Enterprises would bear any loss if

such insurance was not procured.

ORIGINAL PETITION p. 5
c. 2415 Enterprises could not make any change or alterations called for in the

Project’s plans and specifications without Plaintiff and her lender agreeing

in writing.

d. 2415 Enterprises had to furnish Plaintiff with all receipts and releases for

labor, material, and subcontractor costs.

e. 2415 Enterprises had to provide Plaintiff with a list of all subcontractors

and suppliers it used in the Project.

C. Defendants mismanaged the construction budget and made unilateral changes
to the plans and material selections.

21. Contemporaneously with the parties’ Construction Contract, the parties negotiated

and agreed upon a budget for the Project. Plaintiff relied on Defendants’ represented experience

and expertise when they agreed to hire and sign off on the budget. As Defendants know, this

budget was also submitted by the parties to Plaintiff’s bank and relied on to underwrite the

construction financing for the Project.

22. Defendants substantially deviated from this budget and incurred costs above the

budget and without any discussion with Plaintiff. While pandemic-related supply pressures and

inflation may have affected the construction budget somewhat, Defendants did not have carte

blanche to unilaterally increase the construction budget at their whim. On multiple occasions,

Plaintiff requested in writing to receive prior warnings of any changes to bids from subcontractors

or known increases to the construction budget. Without being alerted to price increases,

Defendants denied Plaintiff the ability to have any input or control over the construction budget

and the ability to look for alternative options, vendors, or suppliers.

23. These overages were not minor deviations in the budget and include the following

examples:

ORIGINAL PETITION p. 6
a. the original bid for the foundation was $47,614.65; without prior notice of
any kind, the final amount for this work was $72,056.08
b. the original bid for the piers was $25,000.00; without prior notice of any
kind, the final amount for this work was $32,729.00
c. the original bid for the retaining wall was $50,000.00; without prior notice
of any kind, Defendants approved an additional $35,000.00 of work
($110,000.00 for an incomplete and collapsed wall); additionally,
Defendants’ subcontractor that submitted the $50,000.00 bid was not
present on site after this amount was paid.

24. Another example is the roof. Defendants approved an increase of $15,165.00 (or a

25% increase) without informing Plaintiff of this expected increase. Plaintiff first became aware

of this significant overage when the roof had already been half complete and the remaining

installation had been at a standstill for three weeks.

D. Defendants conceal and refuse to furnish construction costs.

25. Despite Defendants’ representations and contractual requirements, they refused on

multiple occasions to provide invoices and supporting documents for labor, materials, supplies,

and expenses. For example, Defendants submitted two cancelled checks requesting

reimbursement before the commencement of construction. Other than the cancelled checks having

“Koscher” in the memo line, Defendants refused Plaintiff’s request for information concerning

these alleged costs. Similar events occurred many times, including at least four other requests for

payment that only referenced “Koscher” in the check’s memo line. To date and despite request,

Plaintiff has no idea what work these payments related to. Plaintiff also suspects that these

expenses actually relate to another project that Defendants were working on nearby at

3111 Koscher Drive.

26. Defendants also refused to answer billing questions. This is true even though the

Construction Contract and Lien Contract require transparency and after Plaintiff discovered and

pointed out significant billing errors.

ORIGINAL PETITION p. 7
27. Defendants’ failure to provide requested documents exacerbated the significant

overages in the construction budget – overages that Defendants unilaterally incurred without first

providing any notice to Plaintiff, let alone any consent.

28. Defendants’ failure to provide transparency and unilateral cost overages were

suspicious on their own. More troubling, however, are repeated instances where Defendants:

a. Made draw requests for work that has already been paid.

b. Included both an estimate and an invoice for the same work in the same

draw request, i.e., double billing.

c. Failed to provide credit, or otherwise account for payments.

d. Submitted invoices and draw requests that include work completed on other

homes that Plaintiff has had to point out.

29. Still other times, Plaintiff has learned that the “invoices” sent by Defendants for

work came from subcontractors that did not perform the work reflected on the submitted invoices.

For example, Defendants submitted an invoice for foundation work, but the foundation company

on a particular invoice has stated they did not pour the foundation. Accordingly, Defendants likely

submitted estimates at higher rates and then performed the work at a lower rate so they could

pocket the difference.

30. On several occasions, Defendants asked Plaintiff to provide Defendants their own

budget documents to assist them with accounting and to help them locate where “money may have

been moved from1.” These issues seriously call into question whether Defendants mismanaged

construction funds, if not directly implicated them for fraud and theft.

1
Comments such as this further support the intertwined nature of all Defendants and their connection to the Project.

ORIGINAL PETITION p. 8
E. The Project was best by construction errors and damage under Defendants’
supervision.

31. Defendants work on the Project was substandard, violated the representations and

warranties in the Construction Contract and Lien Contract, significantly deviated from the

construction plans and specifications, were riddled with construction errors, and caused damage.

32. Unfortunately, Plaintiff did not learn or uncover the extent of these problems until

well after they fired Defendants, through her diligent efforts to finish the Project that Defendants

left in shambles.

i. A large retaining wall collapsed due to Defendants’ negligence.

33. The retaining wall that failed on April 2, 2022, is likely the most egregious and

obvious example of the workmanship problems that plagued this Project. While the lower

retaining wall was completed to the engineer’s satisfaction and built by a professional

subcontractor, Defendants, upon information and belief, chose to use day laborers to complete the

upper retaining wall. It appears that Defendants used these day laborers in attempt to save costs

and, most likely, to skim off the top. Exacerbating Defendants’ failure to use qualified personnel

or adequately supervise their work (as contractually required), Defendants also failed to have the

upper retaining wall inspected by the engineer for six months during its construction. The retaining

wall would not have failed had Defendants built it according to engineer’s plans and specifications.

34. This example is egregious not only because of the scope of the damage, but because

Defendants brushed off Plaintiff’s concerns about the retaining wall before its collapse. In

December 2021, Plaintiff expressed concern with the retaining wall and sent photos documenting

these concerns. In February and March 2022, Plaintiff again alerted Defendants of her concerns

with the wall, including observations of poor work quality, changes and cracks in the wall, changes

in mortar color, and what appeared to be cut stone covered with concrete. Assuming Defendants

ORIGINAL PETITION p. 9
were supervising the construction, it would have also seen these open and obvious issues. At a

minimum, Plaintiff’s concerns should have given Defendants an opportunity to inspect and prevent

this damage. Regardless, Defendants were on notice of workmanship issues but chose to ignore

them.

35. The retaining wall is also missing stairs that were part of the original plans and

drawings. The surveyor had even staked off the location of these stairs, which was ignored by

Defendants’ laborers.

36. Plaintiff had to incur additional costs to tear down the damaged retaining wall, haul

off the wreckage, and construction costs to rebuild, which costs had increased over time.

37. The additional time it took to repair the retaining wall also delayed other work, such

as for the pool, landscaping, and irrigation. These costs also increased by the time this work could

proceed, and these additional costs were the natural and foreseeable result of Defendants’ failure

on the retaining wall.

ii. Defendants’ gross mismanagement and negligence are further
illustrated by the foundation, framing, and other examples.

38. Another example of these problems is the foundation that was not poured according

to plan. After the foundation was poured in July 2021, Plaintiff discovered a section of her home,

as approved and intended in the plans, was missing. Only after they made this discovery did

Defendants confess that their architect had incorrectly drawn the house on the site plan. Until

confronted with this information, Defendants made no attempt to inform Plaintiff of this issue,

despite it being made aware of this in April 2021. Instead, Defendants unilaterally decided to set

forms and continue to do piers, injections, rough in plumbing, and foundation without contacting

or notifying Plaintiff of the mistake. Presumably, Defendants concealed this information because

it did not want to incur the costs to fix and repair this mistake. Defendants’ unilateral “solution”

ORIGINAL PETITION p. 10
to this problem was to pour the remaining slab after the city had completed the final inspection

and “cantilever” a roof that would extend over the build line. This “solution” would not leave

Plaintiff with her desired floor plan, covered patio, or elevation. Defendants’ concealment and

delay in addressing this issue, however, left Plaintiff with limited options.

39. Defendants’ concealment of this mistake deprived Plaintiff of having her home

built according to their original, desired plans. The delay in providing this information to Plaintiff

made it to where she was unable to have the house moved into a correct location or settle on

alternative solutions. As a direct result, the plans had to be redrawn – thus losing 88 sq ft from the

plan and the option and space needed for a second bathtub in the home (a tub which had already

been ordered.) This unapproved, unilateral alteration and diversion from the plan resulted in

having an exterior porch slab at the same level as the house slab. Because of the shared elevations,

additional costs were incurred to fix the height to avoid interior water leaks and flooding.

40. There are still other issues with framing work. Again, Defendants failed to properly

supervise their subcontractors and provided their framers with the wrong plans for the house.

Plaintiff found multiple printouts onsite of framing plans that were dated from October 2020. The

correct and changed plans (due to foundation error) were from 31 July 2021.

41. Armed with the wrong plans, it is not surprising that the framers deviated from the

correct plans and made many mistakes, including a wall that was placed incorrectly and not per

the plan. Plaintiff informed Defendants of this error with the wall in writing several times but this

information was never communicated to the framers. When Defendants finally notified their

framers of the mistake, however, it was too late to correct because the roof had already been placed

on the structure. Due to Defendants’ negligence in supervising and directing the work and delay

ORIGINAL PETITION p. 11
in identifying the mistake, Plaintiff was not able to complete the Project in line with her desired

aesthetic and what had been agreed upon.

42. Plaintiff later discovered that framing work was substantially incomplete, shoddy,

not done according to plans, in violation of applicable codes, and structurally unsound.

43. There were still other issues with the sewer line even though Plaintiff notified

Defendants in October 2021 that its plumbing contractor had placed the sewer line across the

property line and was provided aerial shots and details of the incorrect placement. Defendants’

“solution” was to have Plaintiff contact the plumber directly, despite the plumber being a

subcontractor selected and under the control and direction of Defendants. This subcontractor

ignored Plaintiff, and Defendants never offered to repair this incorrect work or discuss any other

solution despite being reminded of this issue several times.

44. These are not the only errors in workmanship or deviations from the construction

plans but are significant examples of issues that Defendants were made aware of and failed to cure

despite ample notice and opportunity. Other issues include the damage to Pella-branded doors and

theft of materials that occurred under Defendants’ supervision.

iii. Defendants failed to follow city requirements and ordinances.

45. Defendants’ gross mismanagement and negligence can also be seen by their failure

to obtain the proper and necessary permits or inspections.

46. Defendants failed to secure the necessary permits for this Project. While

Defendants applied for the permit for the retaining wall, they failed to pay for this permit and a

permit was never issued by the City of Grand Prairie. Additionally, the building permit for the

residence was allowed to expire on January 4, 2022, and was not renewed by Defendants.

ORIGINAL PETITION p. 12
47. Defendants further failed to have the foundation inspected by the City of Grand

Prairie. Plaintiff incurred additional costs as a result of this failure.

48. Defendants also did not have the City of Grand Prairie inspect the sewer line as

required before it was covered up.

F. Defendants failed to cure these problems and damaged Plaintiff.

49. Despite demand, Defendants failed to repair, correct, or replace the failed retaining

wall or any of the other problems brought to their attention. Despite demand, Defendants also

refused to honor its transparency obligations and provide details of construction costs.

50. Consequently, Plaintiff via counsel terminated the contracts on April 14, 2022.

Plaintiff did not reach this decision lightly, but Defendants’ mismanagement, negligence,

deception, and decision to withhold information left her no other option to avoid further harm.

51. After this termination, Plaintiff diligently completed the Project.

52. During the subsequent work on the Project, Plaintiff discovered additional defects

and errors in workmanship, nonconforming work, and other damage. The extent and nature of the

problems could not have been fully appreciated at the time Plaintiff fired Defendants from the

Project.

53. Defendants’ gross mismanagement of the Project caused substantial additional time

for the Project to be completed. Instead of completing the Project within a year as contemplated

in the Construction Contract, Plaintiff only recently completed the Project. This additional

construction time directly caused Plaintiff to incur additional, temporary living expenses, and a

substantial increase in her final mortgage rate. These losses were directly and reasonably

foreseeable given Defendants’ gross negligence and the state of the Project under Defendants’

supervision.

ORIGINAL PETITION p. 13
Claims

Count 1: Negligence and Gross Negligence

54. Defendants owed Plaintiff a duty to perform their work with care and skill.

Defendants further owed Plaintiff a duty to construct the Project in accordance with accepted

industry practice and in conformance with the plans and specifications.

55. Defendants breached this duty to Plaintiff through shoddy workmanship, e.g., when

the retaining wall exhibited obvious workmanship issues before it ultimately collapsed. Other

examples include (1) the foundation that was not poured according to plan; (2) the framers deviated

from the correct plans and made many mistakes; (3) the sewer line was improperly placed across

the property line; (4) and the damage to Pella-branded doors and theft of materials that occurred

under Defendants’ supervision, but those issues remain and need to be resolved.

56. In addition, Defendants failed to secure the necessary permits for this Project and

did not have the City of Grand Prairie inspect the sewer line as required before it was covered up.

57. Defendants’ negligence directly and proximately caused Plaintiff to suffer actual,

incidental, and consequential damages for which she now sues.

58. Defendants’ negligence demonstrates such an entire want of care as to raise the

belief that one or more said acts was the result of a conscious indifference to the rights or welfare

of Plaintiff. When viewed objectively from Defendants’ standpoint at the time of their negligent

acts, the damages that ensued involved an extreme degree of risk when considering the probability

and magnitude of potential harm to other. Among other things, Defendants were consciously

indifferent about the probability of a structurally unsound house or retaining wall falling down and

harming or killing Plaintiff, her family, or invitees. As a result of Defendants’ gross negligence,

Plaintiff is entitled to recover exemplary damages.

ORIGINAL PETITION p. 14
Count 2: Negligence Hiring, Retention, and Supervision

59. Defendants are further guilty of negligently hiring, retaining, and supervising of

subcontractors and laborers. Defendants’ subcontractors did not have the experience or capability

to complete the Project in accordance with the construction plans and specifications. Defendants

knew or should have known their contractors were not competent.

60. Exacerbating Defendants’ failure to use qualified personnel or adequately supervise

their work, they also had a duty to supervise and retain control over its workers but entirely failed

on this front.

61. Had Defendants either retained experienced workers or supervised their work, the

all-encompassing errors in the work would have been caught. The negligent hiring, retention, and

supervision of workers was a direct and proximate cause of Plaintiff’s injuries and damages.

Count 3: Deceptive Trade Practices

62. Defendants’ acts and omissions as summarized above violated the Texas Deceptive

Trade Practices/Consumer Protection Act. Plaintiff is a “consumer” as defined in the DTPA and

she purchased goods and services from Defendants. The representations, acts, conduct, and

omissions of Defendants as described above and reasonably relied on by Plaintiff to her detriment,

constitute unfair methods of competition and unfair deceptive acts or practices under the DTPA.

Defendants committed the false, misleading, or deceptive acts or practices enumerated in the

following sections of the DTPA:

a. Representing that goods or services have characteristics or benefits
they do not have. See TEX. BUS. & COM. CODE § 17.46(b)(5).

b. Representing that goods or services are of a particular standard,
quality, or grade, or that goods are of a particular style or model, if
they are of another. See id. at § 17.46(b)(7).

ORIGINAL PETITION p. 15
c. Advertising goods or services with intent not to sell them as
advertised. See id. at § 17.46(b)(9).

d. Representing that work or services have been performed on, or parts
replaced in, goods when the work or services were not performed or
the parts replaced. See id. at § 17.46(b)(22).

e. Failing to disclose information about goods or services that was
known at the time of the transaction if failure to disclose was
intended to induce the consumer into a transaction that the consumer
would not have entered into had the information been disclosed. See
id. at § 17.46(b)(24).

63. Defendants are liable to Plaintiff under § 17.50(a)(1) of the DTPA because of their

false, misleading, or deceptive acts. Defendants are also liable under § 17.50(a)(3) because they

engaged in an unconscionable action or course of action.

64. Furthermore, Defendants breached one or more express or implied warranties and

committed an unconscionable action or course of action in relation to Plaintiff’s home.

65. Defendants’ acts and omissions in violation of the DTPA were the producing cause

of economic damages to Plaintiff, for which she now sues.

66. Defendants’ acts and omissions as summarized above were committed knowingly

and intentionally. Plaintiff, therefore, seeks to recover statutory damages in accordance with

Section §17.50(b)(1). Plaintiff further seeks recovery of her reasonable and necessary attorney’s

fees incurred in prosecuting this claim.

Count 4: Breach of Contract

67. The parties entered a valid and enforceable contract whereby Defendants would

construct the Project. Plaintiff fully performed or was prevented from performing. Defendants,

on the other hand, breached their contractual obligations to Plaintiff by, among many issues,

(1) failing to provide information to Plaintiff regarding the Project’s costs and expenses;

(2) unilaterally increasing the construction budget and costs without notice or approval;

ORIGINAL PETITION p. 16
(3) unilaterally changing the construction plans and specifications; (4) failing to properly manage

construction funds; (5) failing to build the Project in accordance with the contracts, plans, and

specifications; (6) failing to supervise the quality of the workmanship; (7) failing to obtain required

permits and follow city requirements and ordinances; (8) failing to pay subcontractors on time; (9)

and failing to honor warranty work; and (10) obtaining, maintaining, or submitting a claim to their

insurance carrier to cover the collapsed retaining wall and other issues brought to Defendants’

attention.

68. Defendants’ breach proximately damaged Plaintiff, for which she now sues.

69. Plaintiff is entitled to recover her reasonable attorney’s fees incurred in the

prosecution of this claim pursuant to Chapter 38 of the Civil Practice and Remedies Code.

Count 5: Breach of Express and Implied Warranties

70. Defendants’ work on the Project violated express warranties contained in the

parties’ contracts, and further breached implied warranties available at law. Specifically,

Defendants’ work breached its express warranties because: (1) the work was not done in a

workman like manner; (2) the work was not “of a high-quality standard for professionals in the

industry for dwellings of similar cost”; (3) Defendants did not hire only skilled and knowledgeable

subcontractors; and (4) Defendants did not oversee all warrantable work.

71. Plaintiff suffered damages as a direct and proximate result thereof, for which she

now sues.

72. Plaintiff is entitled to recover her reasonable attorney’s fees incurred in the

prosecution of this claim pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code.

ORIGINAL PETITION p. 17
Count 6: Fraud and Fraudulent Inducement

73. To induce Plaintiff to hire Defendants for the Project, Defendants committed actual

and constructive fraud on Plaintiff, for which she now sues.

74. At the outset of the Project, Defendants represented it had the experience and

expertise to complete the Project, it further made several representations concerning transparency

since Plaintiff was paying for all construction costs. Defendants never intended to honor its

contractual obligations to disclose constructions costs fully and accurately. Defendants made still

other material representations during its work on the Project concerning the actual costs for work

when Defendants submitted invoices to Plaintiff, as well as passing off invoices related to other

projects as work completed for Plaintiff.

75. Defendants also concealed and failed to disclose information that they had a duty

to inform Plaintiff of and that Plaintiff did not have an equal opportunity to discover. These

material omissions include failing to disclose that the foundation was not poured according to the

Contract and the actual construction costs, as well as unilaterally changing materials and other

aspects of the work.

76. Defendants concealed important facts in an apparent scheme to overcharge and

defraud Plaintiff. Defendants knew they were inflating costs and did so for the obvious purpose of

bilking Plaintiff.

77. Defendants knew their representations were false as evidenced, in part, by their

refusal to furnish receipts and construction costs. Alternatively, Defendants made these numerous

false representations with reckless indifference to the truth.

ORIGINAL PETITION p. 18
78. Defendants’ representations and omissions were material to Plaintiff in that she

would not have hired Defendants and released any funds had they known the falsity of the

representations.

79. Plaintiff justifiably relied on Defendants’ numerous fraudulent representations and

omissions, when they hired Defendants and made payments, and were damaged as a proximate

result thereof.

80. In addition to actual damages, Plaintiff seeks recovery of exemplary damages as a

result of Defendants’ fraud pursuant to Chapter 41 of the Texas Civil Practice and Remedies Code.

Count 7: Negligent Misrepresentations

81. In the alternative to Plaintiff’s fraud claim, Defendants were negligent in making

numerous material misrepresentations to Plaintiff.

82. These representations were made to Plaintiff in the course of Defendants’ business

and in a transaction in which Defendants had an interest.

83. Defendants made these misrepresentations to guide Plaintiff and to induce her into

hiring Defendants for the Project and paying for false construction costs.

84. To the extent Defendants did not commit outright fraud, Defendants did not

exercise reasonable care or competence in obtaining or communicating the false information.

85. Plaintiff justifiably relied on Defendants’ misrepresentations and omissions and

was injured thereby.

Count 8: Misappropriation of Construction Trust Funds

86. Plaintiff made construction payments to Defendants, which payments constitute

trust funds under Chapter 162 of the Texas Property Code.

ORIGINAL PETITION p. 19
87. Plaintiff was the beneficiary of those funds while held in trust by Defendants. The

funds were specific money transferred by Plaintiff to Defendants on the express condition that the

funds were earmarked for specific uses for the Project.

88. Defendants have, on information and belief, misapplied the construction trust funds

at issue by intentionally or knowingly or with intent to defraud, directly or indirectly retaining,

using, disbursing, or otherwise diverting trust funds without first fully paying all subcontractors or

past due obligations incurred by the trustees to the beneficiaries of the trust funds.

89. Defendants’ misapplication of trust funds constitutes a willful and malicious injury

to Plaintiff and has directly and proximately caused damage to Plaintiff for which she now sues.

Count 9: Unjust Enrichment

90. In the alternative, Defendants were unjustly enriched at Plaintiff’s expense. More

specifically, Defendants accepted and benefited from Plaintiff’s payments for construction work

and either did not complete such work, did not pay the subcontractor that actually completed the

work, or charged Plaintiff more than the actual cost of the work. Defendants have accepted and

benefitted from Plaintiff’s over payment.

91. In addition to actual damages, Plaintiff seeks recovery of her reasonable attorneys’

fees pursuant to Chapter 38 of the Civil Practice and Remedies Code.

Joint and Several Liability

92. Defendants are jointly and severally liable for the wrongful conduct complained of

herein and for payment of judgment on the claims asserted above.

93. Although Rogers made several false representations, he did so for his own benefit

and as an agent and representative for one or more of the corporate Defendants.

ORIGINAL PETITION p. 20
94. Upon information and belief, Defendants also commingled construction funds

between themselves in a scheme to conceal their collective fraud on Plaintiff.

95. Accordingly, the Defendants are jointly and severally liable for these actions.

96. Further, Defendants are owned and controlled by Rogers and are, for all intents and

purposes, his alter ego– conduits through which he repeatedly perpetrates fraud and commits

deceptive trade practices against victims. Rogers does not observe or maintain any separateness

between him and his companies and uses the d/b/a “Joshua Homes” precisely so he can hide

between various shell companies. To allow for any separation between the Defendants would lead

to inequitable results in that a shell entity will be conveniently chosen to shield Defendants from

their collective fraud and deceptive trade practices.

Exemplary Damages

97. Plaintiff is entitled to recover exemplary damages against Defendants under

Chapter 41 of the Civil Practice and Remedies Code based on their actionable fraud,

misappropriation, and further for gross negligence.

Attorneys’ Fees

98. Plaintiff seeks recovery of her reasonable attorney’s fees incurred in the prosecution

of this case. TEX. BUS. & COM. CODE § 17.50(d) and TEX. CIV. PRAC. & REM. CODE § 38.001.

Conditions Precedent

99. All conditions precedent to Plaintiff’s recovery have been performed, have

occurred, or have been waived.

Prayer

WHEREFORE, Plaintiff requests that Defendants be cited to appear and answer, and that on

final trial, Plaintiff has judgment against Defendants for:

ORIGINAL PETITION p. 21
1. Actual, statutory, and exemplary damages;
2. Pre- and post-judgment interest at the highest rates allowed by law;
3. Attorney’s fees;
4. Costs of Court; and
5. Such other relief, at law or in equity, to which Plaintiff may be justly entitled.

GIBSON HEROD LAW

By:
David R. Gibson
SBN 07861220
dgibson@gibsonherod.com
Reagan R. Herod
SBN 24068030
rherod@gibsonherod.com
Lauren Upshaw
SBN 24067915
lupshaw@gibsonherod.com

15400 Knoll Trail Dr., Ste. 205
Dallas, Texas 75248
(817) 769-4002
(817) 764-4313 Facsimile

COUNSEL FOR PLAINTIFF

TO DEFENDANTS ONLY: This is a legal document that is extremely time sensitive. You
should IMMEDIATELY forward a copy of this document to your insurance agent or
representative to secure coverage.

ORIGINAL PETITION p. 22
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.

Erica Pedini on behalf of Reagan Herod
Bar No. 24068030
erica.pedini@gibsonlawgroup.com
Envelope ID: 86111687
Filing Code Description: Original Petition
Filing Description:
Status as of 4/3/2024 5:11 PM CST

Associated Case Party: TAMMY THOMAN

Name BarNumber Email TimestampSubmitted Status

Reagan R.Herod rherod@gibsonherod.com 3/29/2024 2:26:47 PM SENT

Natalie Aguilar naguilar@gibsonherod.com 3/29/2024 2:26:47 PM SENT

Erica Pedini erica.pedini@gibsonlawgroup.com 3/29/2024 2:26:47 PM SENT

Case Info

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PURDY, MONICA Track Judge’s New Case

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Document Filed Date

March 29, 2024

Case Filing Date

March 29, 2024

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