Preview
CAUSE NO. 2014-47565
MEGA BUILDERS, INC. d/b/a IN THE DISTRICT COURT OF
MEGA & ASSOCIATES
HARRIS COUNTY, TEXAS
BELL TECH ENTERPRISES, INC.,
AND TRIMCOS, LLC JUDICIAL DISTRICT
DEFENDANT BELL TECH ENTERPRISES, INC.’S OBJECTION AND
REPLY TO MEGA BUILDERS’ RESPONSE TO SUMMARY MOTIONS
Defendant Bell Tech Enterprises, Inc. (“Bell Tech”) hereby objects and replies
to Plaintiff Mega Builders, Inc. (“Mega”) response to its motion for summary
judgment and summary motion to remove an invalid lien:
I. BJECTION
Bell Tech objects to all but the first sentence of paragraph 5 of the
Affidavit of D.J. Mody because it violates the parol evidence rule. See Lassiter v.
Rotogravure Comm., Inc., 727 S.W.2d 8, 9 (Tex. App. Dallas 1986, writ ref d n.r.e.)
(holding that if the instrument is ambiguous . . . so that it is uncertain whether it
is intended to bind the principal or agent, parol evidence of the circumstances
attending its execution is admissible to show the real understanding ). Here, the
extrinsic evidence offered by Mody is inadmissible because the agreement states,
unambiguously, that it is between Trimcos and Mega. See the attached Exhibit 1.
Further, the statements in paragraph 5 are blatantly false and misleading
Depending on the outcome of its motions, Bell Tech may seek redress under Tex. R. Civ. P. 166a(h
against Mega for relying on an affidavit made in bad faith or solely for the purpose of delay. Bell
Tech understands, however, for purposes of these motions that, if the statements are admissible, this
Court must accept them for whatever they are worth.
II. REPLY
A Mega Failed to Substantially Comply With the Notice Requirements
2. The evidence that Mega offered in support of its assertion that it
complied with the notice requirement of section 53.055 of the Texas Property Code
affirmatively shows that Mega failed to comply. Section 53.055(a) states as follows:
A person who files an affidavit must send a copy of the affidavit by registered
or certified mail to the owner or reputed owner at the owner’s last known
business or residence address not later than the fifth day after the date the
affidavit is filed with the county clerk.
Mega’s evidence, a letter from its attorney transmitting the affidavit, shows that
Mega did not send the notice within the 5-day window. See the attached Exhibit 2.
3. Although Mega will undoubtedly claim that it substantially complied
with section 53.055(a), the courts are clear that substantial compliance means
compliance within the statutory deadlines. In Raymond v. Rahme, 78 S.W.3d 552,
560 (Tex. App.—Austin 2002, no pet.), for example, the court required timely notice
to the property owner in order for substantial compliance to make the lien valid.
Simply stated: “Liberal construction cannot read the timing requirements out of the
statute.” Wesco Distrib. v. Westport Group, Inc., 150 S.W.3d 553, 558 (Tex. App.—
Austin 2004, Austin 2004, no pet.).
4. The notice requirement in section 53.055 applies to original contractors
and sub-contractors. Even if Mega is somehow able to convince the Court that it
was an original contractor under Chapter 53 of the Texas Property Code, it must
still, as an original contractor, timely comply with the notice requirement. Because
it failed to do so, this Court should remove its lien against Bell Tech’s property.
2
B. Mega Was Not an Original Contractor
5. In its response, Mega did not argue or offer any proof that it complied
with any of the statutory requirements imposed on sub-contractors. If Mega is not
an original contractor, as defined in Chapter 53 of the Texas Property Code—and it
is not—Mega is not entitled to a statutory or constitutional lien. Bell Tech asks the
Court to measure the lien affidavit (Exhibit 2) against Chapter 53’s requirements.
6. In its response, Mega tacitly acknowledges that its only hope is to
prove privity of contract with Bell Tech. As discussed above, the parol evidence rule
prevents Mega from inserting Bell Tech into its contract with Trimcos at this late
date. Further, it’s clear from the evidence that Mega presented that Trimcos
intended to perform its contract with Bell Tech. Mega’s contract—which specifically
identifies it as a subcontractor—provides that all of Mega’s work is to be done under
Trimcos’ guidelines and Mega will be paid by Trimcos. See the attached Exhibit 1.
7. For these reasons, and those stated in Bell Tech’s motions, the Court
should not only remove the invalid lien, but it should also grant summary judgment
in Bell Tech’s favor on all causes of action that Mega asserted against it.
C. Judgment for Bell Tech is Also a Fair Result
8. Judgment for Bell Tech is not only the legally correct result, it is a fair
result. Other than allowing a storage container to remain on the premises, Mega
admits that it did not supply any materials or perform any services during calendar
year 2014. Shortly after Mega quit working, the project appeared as shown in the
attached Exhibit 3, which fairly and accurately depicts the project in March 2014.
Exhibit 4 fairly and accurately depicts the project in February 2015.
3
9. When Mega stopped working, the project was level with ground. Now,
there is a nearly completed building. It is unfair and unjust for Mega to now claim
in this lawsuit that it was the contractor responsible for completing this project.
III. PRAYER
10. Wherefore, Bell Tech respectfully prays that this Court order the lien
removed and enter summary judgment in its favor on all claims and causes of action
asserted against it by Mega.
Respectfully submitted,
/s/ J. Chris Juravich
John Chris Juravich
Attorney at Law
Bar No. 11058700
9801 Westheimer, Suite 302
Houston, Texas 77042
Telephone: (713) 917-6810
Facsimile: (713) 588-8442
Email: jcjuravich@aol.com
ATTORNEY FOR DEFENDANT
BELL TECH ENTERPRISES, INC.
CERTIFICATE OF SERVICE
I hereby certify that a true copy of this document is being forwarded to all counsel of
record on the 26 th day of February 2015 as indicated below.
/s/ J. Chris Juravich
John Chris Juravich
Via facsimile (713-981-3881) and/or Texas E-Service
Barry A. Brown
Suite 1100, The Arena Tower
7322 Southwest Freeway
Houston, Texas 77074
4
Preview
CAUSE NO. 2014-47565 MEGA BUILDERS, INC. d/b/a IN THE DISTRICT COURT OF MEGA & ASSOCIATES HARRIS COUNTY, TEXAS BELL TECH ENTERPRISES, INC., AND TRIMCOS, LLC JUDICIAL DISTRICT DEFENDANT BELL TECH ENTERPRISES, INC.’S OBJECTION AND REPLY TO MEGA BUILDERS’ RESPONSE TO SUMMARY MOTIONS Defendant Bell Tech Enterprises, Inc. (“Bell Tech”) hereby objects and replies to Plaintiff Mega Builders, Inc. (“Mega”) response to its motion for summary judgment and summary motion to remove an invalid lien: I. BJECTION Bell Tech objects to all but the first sentence of paragraph 5 of the Affidavit of D.J. Mody because it violates the parol evidence rule. See Lassiter v. Rotogravure Comm., Inc., 727 S.W.2d 8, 9 (Tex. App. Dallas 1986, writ ref d n.r.e.) (holding that if the instrument is ambiguous . . . so that it is uncertain whether it is intended to bind the principal or agent, parol evidence of the circumstances attending its execution is admissible to show the real understanding ). Here, the extrinsic evidence offered by Mody is inadmissible because the agreement states, unambiguously, that it is between Trimcos and Mega. See the attached Exhibit 1. Further, the statements in paragraph 5 are blatantly false and misleading Depending on the outcome of its motions, Bell Tech may seek redress under Tex. R. Civ. P. 166a(h against Mega for relying on an affidavit made in bad faith or solely for the purpose of delay. Bell Tech understands, however, for purposes of these motions that, if the statements are admissible, this Court must accept them for whatever they are worth. II. REPLY A Mega Failed to Substantially Comply With the Notice Requirements 2. The evidence that Mega offered in support of its assertion that it complied with the notice requirement of section 53.055 of the Texas Property Code affirmatively shows that Mega failed to comply. Section 53.055(a) states as follows: A person who files an affidavit must send a copy of the affidavit by registered or certified mail to the owner or reputed owner at the owner’s last known business or residence address not later than the fifth day after the date the affidavit is filed with the county clerk. Mega’s evidence, a letter from its attorney transmitting the affidavit, shows that Mega did not send the notice within the 5-day window. See the attached Exhibit 2. 3. Although Mega will undoubtedly claim that it substantially complied with section 53.055(a), the courts are clear that substantial compliance means compliance within the statutory deadlines. In Raymond v. Rahme, 78 S.W.3d 552, 560 (Tex. App.—Austin 2002, no pet.), for example, the court required timely notice to the property owner in order for substantial compliance to make the lien valid. Simply stated: “Liberal construction cannot read the timing requirements out of the statute.” Wesco Distrib. v. Westport Group, Inc., 150 S.W.3d 553, 558 (Tex. App.— Austin 2004, Austin 2004, no pet.). 4. The notice requirement in section 53.055 applies to original contractors and sub-contractors. Even if Mega is somehow able to convince the Court that it was an original contractor under Chapter 53 of the Texas Property Code, it must still, as an original contractor, timely comply with the notice requirement. Because it failed to do so, this Court should remove its lien against Bell Tech’s property. 2 B. Mega Was Not an Original Contractor 5. In its response, Mega did not argue or offer any proof that it complied with any of the statutory requirements imposed on sub-contractors. If Mega is not an original contractor, as defined in Chapter 53 of the Texas Property Code—and it is not—Mega is not entitled to a statutory or constitutional lien. Bell Tech asks the Court to measure the lien affidavit (Exhibit 2) against Chapter 53’s requirements. 6. In its response, Mega tacitly acknowledges that its only hope is to prove privity of contract with Bell Tech. As discussed above, the parol evidence rule prevents Mega from inserting Bell Tech into its contract with Trimcos at this late date. Further, it’s clear from the evidence that Mega presented that Trimcos intended to perform its contract with Bell Tech. Mega’s contract—which specifically identifies it as a subcontractor—provides that all of Mega’s work is to be done under Trimcos’ guidelines and Mega will be paid by Trimcos. See the attached Exhibit 1. 7. For these reasons, and those stated in Bell Tech’s motions, the Court should not only remove the invalid lien, but it should also grant summary judgment in Bell Tech’s favor on all causes of action that Mega asserted against it. C. Judgment for Bell Tech is Also a Fair Result 8. Judgment for Bell Tech is not only the legally correct result, it is a fair result. Other than allowing a storage container to remain on the premises, Mega admits that it did not supply any materials or perform any services during calendar year 2014. Shortly after Mega quit working, the project appeared as shown in the attached Exhibit 3, which fairly and accurately depicts the project in March 2014. Exhibit 4 fairly and accurately depicts the project in February 2015. 3 9. When Mega stopped working, the project was level with ground. Now, there is a nearly completed building. It is unfair and unjust for Mega to now claim in this lawsuit that it was the contractor responsible for completing this project. III. PRAYER 10. Wherefore, Bell Tech respectfully prays that this Court order the lien removed and enter summary judgment in its favor on all claims and causes of action asserted against it by Mega. Respectfully submitted, /s/ J. Chris Juravich John Chris Juravich Attorney at Law Bar No. 11058700 9801 Westheimer, Suite 302 Houston, Texas 77042 Telephone: (713) 917-6810 Facsimile: (713) 588-8442 Email: jcjuravich@aol.com ATTORNEY FOR DEFENDANT BELL TECH ENTERPRISES, INC. CERTIFICATE OF SERVICE I hereby certify that a true copy of this document is being forwarded to all counsel of record on the 26 th day of February 2015 as indicated below. /s/ J. Chris Juravich John Chris Juravich Via facsimile (713-981-3881) and/or Texas E-Service Barry A. Brown Suite 1100, The Arena Tower 7322 Southwest Freeway Houston, Texas 77074 4