Preview
Electronically Filed
4/29/2024 10:41 AM
Hidalgo County District Clerks
Reviewed By: Juan Galvan
C-1971-24-G
CAUSE NO. _______________
PHILOMENA KOZAK § IN THE DISTRICT COURT
§
VS. § _____JUDICIAL DISTRICT
§
GUSTAVO ELIZONDO § HIDALGO COUNTY, TEXAS
PLAINTIFF'S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Plaintiff, Philomena Kozak, complaining of Defendant Gustavo Elizondo,
and for cause of action would show the Court the following:
Discovery Control Plan
1. As provided in Rule 190, Texas Rules of Civil Procedure, Plaintiff intends to conduct
discovery under Level 2.
Plaintiff
2. Plaintiff, Philomena Kozak, is an individual domiciled in the State of Texas and a
resident of Hidalgo County. The plaintiff’s address is 307 Pelican Ave, McAllen, Texas 78504.
Defendant
3. Defendant, Gustavo Elizondo, is an individual who may be served with process at
Defendant's residence by personal delivery at 201 E. Quamasia, McAllen, Texas 78501.
4. This Court has jurisdiction over Gustavo Elizondo because said Defendant is a
resident of Texas.
Venue
5. Venue is proper in this county in that the events giving rise to this cause of action
occurred within Hidalgo County.
Jurisdiction
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Electronically Filed
4/29/2024 10:41 AM
Hidalgo County District Clerks
Reviewed By: Juan Galvan
C-1971-24-G
6. The damages sought in this suit are within the jurisdictional limits of the Court. As
required by Rule 47, Texas Rules of Civil Procedure, Plaintiff seeks monetary relief over
$1,400,000.00.
Notice of Claim
7. Plaintiff delivered written notice of this claim to Gustavo Elizondo through his
attorney on June 5, 2023, advising Gustavo Elizondo in reasonable detail of the specific
complaint made the subject of this action and the amount and nature of the damages and
expenses sought.
Facts
8. On June 10, 2022, Philomena Kozak and Gustavo Elizondo entered into a written
contract (“the contract” herein). A copy of said contract is marked “Exhibit A” and incorporated
herein for all purposes.
9. The contract provided for the construction of a pool house project for use by Plaintiff
at 307 Pelican Ave., McAllen, Texas 78504.
10. Plaintiff has fully performed all obligations under the contract. She has provided
payments and funds to the defendant for labor and materials.
11. Defendant on several occasions ordered materials that were not presented to Plaintiff
for approval. Additionally, Defendant instead inflated the prices and costs of materials for the
pool house, and the defendant did not use the funds for the purposes of the project. Defendant
would then threaten to walk off the project if Plaintiff did not comply.
12. On April 12, 2023, Defendant walked off the project with no explanation to Plaintiff.
Breach of Contract
13. Plaintiff had a valid and enforceable contract with the Defendant. The defendant
breached this contract. The elements of a breach of this contact are:
1) The existence of a valid contract between the parties was formed on June 10,
2022, between Philomena Kozak and Gustavo Elizondo.
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Electronically Filed
4/29/2024 10:41 AM
Hidalgo County District Clerks
Reviewed By: Juan Galvan
C-1971-24-G
2) Plaintiff’s performance or tendered performance according to the terms of the
contract. She has provided payments and funds to the defendant for labor and
materials.
3) Material breach by the Defendant. The breach occurred on April 12, 2023, when
the defendant walked off the project with no explanation to Plaintiff.
4) Plaintiff sustained damages, including loss of value of the home, loss of use and
enjoyment of the home, cost of repair, cost of substitute housing during future
repairs, pain and suffering, mental anguish, consulting fees, and attorney’s fees.
14. Plaintiff honored its end of the bargain and tendered performance according to the
terms of the contract. On the other hand, the refusal and/or continued failure by the defendant to
finish the construction of the pool house as contracted. The defendant failed to fulfill his end of
the bargain. Thus, constituting a material breach of contract.
Fraudulent Inducement
In addition to all other facts stated herein, Plaintiff would show the Court the following:
15. Plaintiff discovered that Defendant had been defrauding her by making promises and
commitments to get the payments that he knew were false and that he had no intention of
fulfilling.
16. The above-described statements and representations were material and were made
knowing that they were false, or they were made recklessly without regard for their truth.
17. The above-described statements and representations were made with the intent that
Plaintiff rely on them, and Plaintiff did rely on them when entering into the contract.
18. As a result of Defendant's fraud, Plaintiff has suffered damages, for which Plaintiff
requests judgment.
Violation of Deceptive Trade Practices Consumer Protection Act
19. Defendant's conduct constituted violations under the Texas Deceptive Trade Practices
Consumer Protection Act (Texas Business and Commerce Code, Chapter 17.41, et seq.)(“the
Act”). Defendant is liable to Plaintiff under Sec 17.50, Texas Business and Commerce code
because Defendant's conduct constituted a producing cause of economic damages and damages
for mental anguish sustained by Plaintiff through the following means:
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Electronically Filed
4/29/2024 10:41 AM
Hidalgo County District Clerks
Reviewed By: Juan Galvan
C-1971-24-G
20. Defendant used or employed false, misleading, or deceptive acts or practices that are
specifically enumerated in Section 17.46(b) of the Act and that were relied on by Plaintiff to
Plaintiff's detriment. Defendant's conduct violated the following specifically enumerated acts or
practices listed in that section, all in violation of Section 17.50(a)(2) of the Act:
(1) causing confusion or misunderstanding as to the source, sponsorship,
approval, or certification of goods or services;
(2) causing confusion or misunderstanding as to affiliation, connection, or
association with, or certification by, another;
(3) representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities which they do not have or
that a person has a sponsorship, approval, status, affiliation, or connection which
the person does not;
(4) representing that goods are original or new if they are deteriorated,
reconditioned, reclaimed, used, or secondhand;
(5) 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;
(6) disparaging the goods, services, or business of another by false or misleading
representation of facts;
(7) advertising goods or services with intent not to sell them as advertised;
(8) advertising goods or services with intent not to supply a reasonable
expectable public demand, unless the advertisements disclosed a limitation of
quantity;
(9) making false or misleading statements of fact concerning the reasons for,
existence of, or amount of price reductions;
(10) representing that an agreement confers or involves rights, remedies, or
obligations which it does not have or involve, or which are prohibited by law;
(11) knowingly making false or misleading statements of fact concerning the
need for parts, replacement, or repair service;
(12) misrepresenting the authority of a salesman, representative or agent to
negotiate the final terms of a consumer transaction;
(13) basing a charge for the repair of any item in whole or in part on a guaranty
or warranty instead of on the value of the actual repairs made or work to be
performed on the item without stating separately the charges for the work and the
charge for the warranty or guaranty, if any;
(14) representing that a guaranty or warranty confers or involves rights or
remedies which it does not have or involve, provided, however, that nothing in
this subchapter shall be construed to expand the implied warranty of
merchantability as defined in Sections 2.314 through 2.318 and Sections 2A.212
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Electronically Filed
4/29/2024 10:41 AM
Hidalgo County District Clerks
Reviewed By: Juan Galvan
C-1971-24-G
through 2A.216 to involve obligations in excess of those which are appropriate to
the goods;
(15) 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;
(16) filing suit founded upon a written contractual obligation of and signed by the
defendant to pay money arising out of or based on a consumer transaction for
goods, services, loans, or extensions of credit intended primarily for personal,
family, household, or agricultural use in any county other than in the county in
which the defendant resides at the time of the commencement of the action or in
the county in which the defendant in fact signed the contract; provided, however,
that a violation of this subsection shall not occur where it is shown by the person
filing such suit that the person neither knew or had reason to know that the county
in which such suit was filed was neither the county in which the defendant resides
at the commencement of the suit nor the county in which the defendant in fact
signed the contract;
(17) failing to disclose information concerning goods or services which was
known at the time of the transaction if such failure to disclose such information
was intended to induce the consumer into a transaction into which the consumer
would not have entered had the information been disclosed;
(18) subject to Section 17.4625, taking advantage of a disaster declared by the
governor under Chapter 418, Government Code, or by the president of the United
States by:
(a) selling or leasing fuel, food, medicine, lodging, building materials,
construction tools, or another necessity at an exorbitant or excessive price;
or
(b) demanding an exorbitant or excessive price in connection with the sale
or lease of fuel, food, medicine, lodging, building materials, construction
tools, or another necessity;
(c)(1) It is the intent of the legislature that in construing Subsection (a) of this
section in suits brought under Section 17.47 of this subchapter the courts to the
extent possible will be guided by Subsection (b) of this section and the
interpretations given by the Federal Trade Commission and federal courts to
Section 5(a)(1) of the Federal Trade Commission Act [15 U.S.C.A. Sec. 45(a)(1)].
(2) In construing this subchapter the court shall not be prohibited from
considering relevant and pertinent decisions of courts in other
jurisdictions.
(d) For the purposes of the relief authorized in Subdivision (1) of Subsection (a)
of Section 17.50 of this subchapter, the term "false, misleading, or deceptive acts
or practices" is limited to the acts enumerated in specific subdivisions of
Subsection (b) of this section.
Page 5 of 6
Electronically Filed
4/29/2024 10:41 AM
Hidalgo County District Clerks
Reviewed By: Juan Galvan
C-1971-24-G
Compensatory Damages
21. As a result of Defendant's conduct, Plaintiff suffered economic and noneconomic
damages as defined in Section 41.001, Texas Civil Practice and Remedies Code, for which
Plaintiff requests judgment. Economic damages compensate a claimant for actual economic or
pecuniary loss, and noneconomic damages compensate the claimant for physical pain and
suffering, mental or emotional pain or anguish.
Attorney's Fees and Costs
22. Plaintiff requests judgment for reasonable attorney’s fees and costs under Sections
37.009 and Chapter 38, Texas Civil Practice and Remedies Code.
Jury Demand
23. Plaintiff hereby requests a jury trial.
Required Initial Disclosures
24. As provided in Rule 194, Texas Rules of Civil Procedure, required Initial
Disclosures of all items listed in Rule 194.2 must be made at or within 30 days after the filing of
the first answer unless a different time is set by the parties’ agreement or court order.
25. Plaintiff asks the Court to keep the requirement of Initial Disclosures to be made
within 30 days.
Prayer
Plaintiff prays that citation be issued commanding Defendant to appear and answer herein
and that Plaintiff be awarded judgment against Defendant for the relief requested herein and for
all other relief to which Plaintiff is entitled both in equity and at law.
Respectfully submitted,
/s/ Jesus Contreras
Jesus “Jesse” Contreras
Texas Bar No. 00793142
Jesse Contreras Law Firm
5400 S. Jackson Rd
Edinburg, TX 78539
Ph.: (956) 502-5777
Fax: (956) 307-5058
Email: office@jessecontreras.law
Page 6 of 6
Preview
Electronically Filed 4/29/2024 10:41 AM Hidalgo County District Clerks Reviewed By: Juan Galvan C-1971-24-G CAUSE NO. _______________ PHILOMENA KOZAK § IN THE DISTRICT COURT § VS. § _____JUDICIAL DISTRICT § GUSTAVO ELIZONDO § HIDALGO COUNTY, TEXAS PLAINTIFF'S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Plaintiff, Philomena Kozak, complaining of Defendant Gustavo Elizondo, and for cause of action would show the Court the following: Discovery Control Plan 1. As provided in Rule 190, Texas Rules of Civil Procedure, Plaintiff intends to conduct discovery under Level 2. Plaintiff 2. Plaintiff, Philomena Kozak, is an individual domiciled in the State of Texas and a resident of Hidalgo County. The plaintiff’s address is 307 Pelican Ave, McAllen, Texas 78504. Defendant 3. Defendant, Gustavo Elizondo, is an individual who may be served with process at Defendant's residence by personal delivery at 201 E. Quamasia, McAllen, Texas 78501. 4. This Court has jurisdiction over Gustavo Elizondo because said Defendant is a resident of Texas. Venue 5. Venue is proper in this county in that the events giving rise to this cause of action occurred within Hidalgo County. Jurisdiction Page 1 of 6 Electronically Filed 4/29/2024 10:41 AM Hidalgo County District Clerks Reviewed By: Juan Galvan C-1971-24-G 6. The damages sought in this suit are within the jurisdictional limits of the Court. As required by Rule 47, Texas Rules of Civil Procedure, Plaintiff seeks monetary relief over $1,400,000.00. Notice of Claim 7. Plaintiff delivered written notice of this claim to Gustavo Elizondo through his attorney on June 5, 2023, advising Gustavo Elizondo in reasonable detail of the specific complaint made the subject of this action and the amount and nature of the damages and expenses sought. Facts 8. On June 10, 2022, Philomena Kozak and Gustavo Elizondo entered into a written contract (“the contract” herein). A copy of said contract is marked “Exhibit A” and incorporated herein for all purposes. 9. The contract provided for the construction of a pool house project for use by Plaintiff at 307 Pelican Ave., McAllen, Texas 78504. 10. Plaintiff has fully performed all obligations under the contract. She has provided payments and funds to the defendant for labor and materials. 11. Defendant on several occasions ordered materials that were not presented to Plaintiff for approval. Additionally, Defendant instead inflated the prices and costs of materials for the pool house, and the defendant did not use the funds for the purposes of the project. Defendant would then threaten to walk off the project if Plaintiff did not comply. 12. On April 12, 2023, Defendant walked off the project with no explanation to Plaintiff. Breach of Contract 13. Plaintiff had a valid and enforceable contract with the Defendant. The defendant breached this contract. The elements of a breach of this contact are: 1) The existence of a valid contract between the parties was formed on June 10, 2022, between Philomena Kozak and Gustavo Elizondo. Page 2 of 6 Electronically Filed 4/29/2024 10:41 AM Hidalgo County District Clerks Reviewed By: Juan Galvan C-1971-24-G 2) Plaintiff’s performance or tendered performance according to the terms of the contract. She has provided payments and funds to the defendant for labor and materials. 3) Material breach by the Defendant. The breach occurred on April 12, 2023, when the defendant walked off the project with no explanation to Plaintiff. 4) Plaintiff sustained damages, including loss of value of the home, loss of use and enjoyment of the home, cost of repair, cost of substitute housing during future repairs, pain and suffering, mental anguish, consulting fees, and attorney’s fees. 14. Plaintiff honored its end of the bargain and tendered performance according to the terms of the contract. On the other hand, the refusal and/or continued failure by the defendant to finish the construction of the pool house as contracted. The defendant failed to fulfill his end of the bargain. Thus, constituting a material breach of contract. Fraudulent Inducement In addition to all other facts stated herein, Plaintiff would show the Court the following: 15. Plaintiff discovered that Defendant had been defrauding her by making promises and commitments to get the payments that he knew were false and that he had no intention of fulfilling. 16. The above-described statements and representations were material and were made knowing that they were false, or they were made recklessly without regard for their truth. 17. The above-described statements and representations were made with the intent that Plaintiff rely on them, and Plaintiff did rely on them when entering into the contract. 18. As a result of Defendant's fraud, Plaintiff has suffered damages, for which Plaintiff requests judgment. Violation of Deceptive Trade Practices Consumer Protection Act 19. Defendant's conduct constituted violations under the Texas Deceptive Trade Practices Consumer Protection Act (Texas Business and Commerce Code, Chapter 17.41, et seq.)(“the Act”). Defendant is liable to Plaintiff under Sec 17.50, Texas Business and Commerce code because Defendant's conduct constituted a producing cause of economic damages and damages for mental anguish sustained by Plaintiff through the following means: Page 3 of 6 Electronically Filed 4/29/2024 10:41 AM Hidalgo County District Clerks Reviewed By: Juan Galvan C-1971-24-G 20. Defendant used or employed false, misleading, or deceptive acts or practices that are specifically enumerated in Section 17.46(b) of the Act and that were relied on by Plaintiff to Plaintiff's detriment. Defendant's conduct violated the following specifically enumerated acts or practices listed in that section, all in violation of Section 17.50(a)(2) of the Act: (1) causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services; (2) causing confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another; (3) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which the person does not; (4) representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or secondhand; (5) 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; (6) disparaging the goods, services, or business of another by false or misleading representation of facts; (7) advertising goods or services with intent not to sell them as advertised; (8) advertising goods or services with intent not to supply a reasonable expectable public demand, unless the advertisements disclosed a limitation of quantity; (9) making false or misleading statements of fact concerning the reasons for, existence of, or amount of price reductions; (10) representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law; (11) knowingly making false or misleading statements of fact concerning the need for parts, replacement, or repair service; (12) misrepresenting the authority of a salesman, representative or agent to negotiate the final terms of a consumer transaction; (13) basing a charge for the repair of any item in whole or in part on a guaranty or warranty instead of on the value of the actual repairs made or work to be performed on the item without stating separately the charges for the work and the charge for the warranty or guaranty, if any; (14) representing that a guaranty or warranty confers or involves rights or remedies which it does not have or involve, provided, however, that nothing in this subchapter shall be construed to expand the implied warranty of merchantability as defined in Sections 2.314 through 2.318 and Sections 2A.212 Page 4 of 6 Electronically Filed 4/29/2024 10:41 AM Hidalgo County District Clerks Reviewed By: Juan Galvan C-1971-24-G through 2A.216 to involve obligations in excess of those which are appropriate to the goods; (15) 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; (16) filing suit founded upon a written contractual obligation of and signed by the defendant to pay money arising out of or based on a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household, or agricultural use in any county other than in the county in which the defendant resides at the time of the commencement of the action or in the county in which the defendant in fact signed the contract; provided, however, that a violation of this subsection shall not occur where it is shown by the person filing such suit that the person neither knew or had reason to know that the county in which such suit was filed was neither the county in which the defendant resides at the commencement of the suit nor the county in which the defendant in fact signed the contract; (17) failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed; (18) subject to Section 17.4625, taking advantage of a disaster declared by the governor under Chapter 418, Government Code, or by the president of the United States by: (a) selling or leasing fuel, food, medicine, lodging, building materials, construction tools, or another necessity at an exorbitant or excessive price; or (b) demanding an exorbitant or excessive price in connection with the sale or lease of fuel, food, medicine, lodging, building materials, construction tools, or another necessity; (c)(1) It is the intent of the legislature that in construing Subsection (a) of this section in suits brought under Section 17.47 of this subchapter the courts to the extent possible will be guided by Subsection (b) of this section and the interpretations given by the Federal Trade Commission and federal courts to Section 5(a)(1) of the Federal Trade Commission Act [15 U.S.C.A. Sec. 45(a)(1)]. (2) In construing this subchapter the court shall not be prohibited from considering relevant and pertinent decisions of courts in other jurisdictions. (d) For the purposes of the relief authorized in Subdivision (1) of Subsection (a) of Section 17.50 of this subchapter, the term "false, misleading, or deceptive acts or practices" is limited to the acts enumerated in specific subdivisions of Subsection (b) of this section. Page 5 of 6 Electronically Filed 4/29/2024 10:41 AM Hidalgo County District Clerks Reviewed By: Juan Galvan C-1971-24-G Compensatory Damages 21. As a result of Defendant's conduct, Plaintiff suffered economic and noneconomic damages as defined in Section 41.001, Texas Civil Practice and Remedies Code, for which Plaintiff requests judgment. Economic damages compensate a claimant for actual economic or pecuniary loss, and noneconomic damages compensate the claimant for physical pain and suffering, mental or emotional pain or anguish. Attorney's Fees and Costs 22. Plaintiff requests judgment for reasonable attorney’s fees and costs under Sections 37.009 and Chapter 38, Texas Civil Practice and Remedies Code. Jury Demand 23. Plaintiff hereby requests a jury trial. Required Initial Disclosures 24. As provided in Rule 194, Texas Rules of Civil Procedure, required Initial Disclosures of all items listed in Rule 194.2 must be made at or within 30 days after the filing of the first answer unless a different time is set by the parties’ agreement or court order. 25. Plaintiff asks the Court to keep the requirement of Initial Disclosures to be made within 30 days. Prayer Plaintiff prays that citation be issued commanding Defendant to appear and answer herein and that Plaintiff be awarded judgment against Defendant for the relief requested herein and for all other relief to which Plaintiff is entitled both in equity and at law. Respectfully submitted, /s/ Jesus Contreras Jesus “Jesse” Contreras Texas Bar No. 00793142 Jesse Contreras Law Firm 5400 S. Jackson Rd Edinburg, TX 78539 Ph.: (956) 502-5777 Fax: (956) 307-5058 Email: office@jessecontreras.law Page 6 of 6