Preview
Electronically Filed
12/14/2016 2:14:39 PM
Lois Rogers, Smith County District Clerk
Reviewed By: Mary Pyle
CAUSE NO. _16-2498-C
DOUG JENSEN and CINDY JENSEN, IN THE DISTRICT COURT
Plaintiffs
VS. JUDICIAL DISTRICT
TRENT WILLIAMS CONSTRUCTION
MANAGEMENT, LLC,
Defendant SMITH COUNTY, TEXAS
DOUG AND CINDY JENSEN’S APPLICATION TO
CONFIRM ARBITRATION AWARD
INTRODUCTION
COME NOW Doug Jensen and Cindy Jensen, Plaintiffs herein, ask the Court to confirm
an arbitration award against Trent Williams Construction Management, LLC, Defendant herein,
which was rendered on or about May 2, 2016. Defendant failed to adhere to the terms of the
arbitrator’s decision, prompting the filing this applications.
Plaintiffs, Doug Jensen and Cindy Jensen, are residents of Smith County, Texas. The last
three digits of Doug Jensen’s Social Security number are XXX-XX-X364. The last three digits
of his Texas Driver’s License No. are XXXXX405. The last three digits of Cindy Jensen’s
Social Security number are XXX-XX-X831. The last three digits of her Texas Driver’s License
No, are XXXXX351.
Defendant, Trent Williams Construction Management, LLC is a business with its
principal place of business located in Tyler, Smith County, Texas and may be served through its
Registered Agent, Trent Williams, by certified mail, return receipt requested, at 713 WSW Loop
323, Suite 136, Tyler, Texas 75701-9460.
Discovery in this case shall be conducted under Level 1 of Rule 190, T.R.C.P.
JURISDICTION AND VENUE
The court has jurisdiction to hear this application pursuant to Chapter 171 of the Texas Civil
Practice and Remedies Code.
Venue is appropriate in Smith County pursuant to Section 17.096 of the Texas Civil Practice and
Remedies Code, sub-part (a)(1) because the defendant maintains a place a of business in Smith
County, Texas, and sub-part (c} because the underlying arbitration took place in Smith County,
‘Texas,
SUPPORTING EVIDENCE
A true and correct copy of the BBB “Agreement to Arbitrate” signed by defendant’s
representative, Trent Williams attached hereto as Exhibit A and incorporated by reference;
A true and correct copy of the BBB “Complaint Activity Report” indicating the parties’
agreement to arbitrate attached hereto as Exhibit B and incorporated by reference;
A true and correct copy of the Arbitrator’s Decision and Reasons for Decision executed on May
2, 2016 attached hereto as Exhibit C and incorporated by reference.
The proposed Order Confirming Arbitration Award is attached hereto as Exhibit D and
incorporated by reference.
BACKGROUND FACTS
Plaintiffs made an initial complaint to the Tyler Better Business Bureau (“BBB”) on December
21, 2015. Exhibit B. Defendant responded to the initial complaint on January 8, 2016. Exhibit B.
After various party rebuttals to complaints and responses were made by the parties, the BBB
recommended that the parties submit their claims and defenses to binding arbitration on February
17, 2016. Exhibit B. Both parties accepted the BBB’s proposal to arbitrate. Exhibit A; Exhibit B.
9. An arbitrator was assigned on April 11, 2016, and an arbitration hearing held on April 25, 2016.
Exhibit B; Exhibit C.
10 The arbitrator’s award was made on April 29, 2016, and the parties were notified on or about
May 5, 2016. Exhibit C."
1 The arbitrator’s award featured several findings in favor of the plaintiffs, requiring defendant to
either make repairs or perform additional work pursuant to an incomplete punch list. Exhibit C.
All of the repairs and work were to be completed by June 24, 2016. Exhibit C.
12 The defendant failed to adhere to the arbitrator’s deadline to complete contained within the
award. Additionally, after several overtures by the plaintiff to avoid seeking court enforcement
of the arbitrator’s award, the defendant has continually refused to perform those repairs that he is
obligated to perform pursuant to that award.
ARGUMENT AND AUTHORITIES
13 A court’s review of the arbitration process is severely limited. United Paperworkers Int'l Union
vy, Misca, Inc., 484 U.S. 29, 36-37 (1987); see CVN Grp., Inc. v. Delgado, 95 S.W.3d 234, 238
(Tex. 2002). A court should indulge all reasonable presumptions in favor of the arbitration
award. CVN Grp., 95 S.W.3d at 238.
14 The arbitration award must be confirmed unless there are grounds for modifying, correcting, or
vacating the award. Tex. Civ. Prac. & Rem. Code § 171.087; Nafta Traders, Inc. vy. Quinn, 339
S.W.3d 84, 89-90 (Tex. 2011).
15 There are no grounds for modifying, correcting, or vacating the award in this case, and the
arbitrator’s decision and award are correct. Tex. Civ. Prac. & Rem. Code § 171.087. The
deadline to modify or correct an arbitration award is 90 days after the award is delivered to the
* The award expressly carved out from the arbitration plaintiff's claim regarding improper roofing and use of an
inferior product on plaintiffs’ roof. This will be the subject of an original proceeding in a different cause.
3
parties. Tex. Civ. Prac. & Rem. Code § 171.091(b). The award in this case was presented to the
parties on May 5, 2016, Exhibit B; Exhibit C. Well over 90 days have passed from the date of the
award to the date of the filing of this application.
16 Because this application, proposed order, and proper attachments have been filed and because
there are no grounds for modifying correcting, or vacating the award, the court must confirm the
arbitration award in this case, Tex. Civ, Prac, & Rem, Code § 171,087.
CONCLUSION
The plaintiffs obtained a favorable award in a party-agreed arbitration through the BBB
in April, 2016. That award was provided to the parties to the arbitration on May 5, 2016.
Defendant refused to adhere to the tenants of the arbitration award by the deadline provided by
the arbitrator of June 24, 2016. Plaintiffs now seek confirmation of the arbitration award in order
to enforce the award.
PRAYER
For these reasons, plaintiffs ask the court to confirm the arbitration award and enter
judgment in accordance with the award.
Respectfully submitted,
WHITESHAVER
205 W. Locust
Tyler, Texas 75702
Telephone: 903/533-9447
Telefax: 903/595-3766
By _ ee a —_— _
ADAM B. ALLEN
Bar No. 24038738
aallen@whiteshaverlaw.com
ATTORNEY FOR PLAINTIFFS
Trent Williams Construction
From: Better Business Bureau
tant: Monday, February 22, 2016 2:02 PM
Mr Trent Williams
Subject: BBB Complaint Case# 28019450 (Ref#78-15000935-28019450-20-31130)
Our initial effort to reach a voluntary settlement on the above-mentioned complaint was not successful. Sometimes,
despite best efforts, issues remaining unresolved can result in a joss of customer goodwill and possibly lead to legal
actions.
In an effort to support our BBB Accredited Businesses in maintaining that goodwill, BBB offers one last form of
dispute resolution called arbitration. As a BBB Accredited Business, you have consented to using this form of dispute
resolution when recommended by BBB.
This process provides for an impartial third party arbitrator to hear and decide your case. The hearing is informal, so
you can present your own case without a lawyer; however, you have every right to be represented by a lawyer if you
prefer, The decision is final and binding, meaning both parties are legally bound to abide by the decision. Detailed
information about this process may be obtained by calling our office, (903)581-5704 to request the booklet: Rules of
Binding Arbitration.
Both parties must sign an agreement to arbitrate this matter before we can proceed. The consumer has accepted this
opportunity to resolve the dispute. If you do not contact BBB within 10 days of your willingness to participate in
diation/arbitration as recommended the case will be closed as unresolved. I encourage you to contact me if you have
auy questions or concerns.
accept. I decline.
Signature
A summary of this complaint case can be viewed online at the following address:
{ \b https://www.bbb.or; } Please use the following to log in: Case ID: { \b 28019450
} Password: { \b fy3uu7}
Para asistencia en Espanol, favor de llamar al 903-581-5704.
Sincerely, B=
Tabitha Ingraham
Resolutions Consultant
= wl
2
3 @
No virus found in this message, EXHIBIT
Checked by AVG - www.avge.com
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1
COMPLAINT ACTIVITY REPORT Case # 28019450 Better Business Bureau Serving Central East Texas.
Consumer Info: Jensen, Douglas Business Info: Trent Williams Construction Management.
1227 Rainmaker
Tyler, TX 75703
= 605 695-9616 903 581-6161
dj_prostreet@yahoo.com
Location Involved: (Same as above)
Consumer's Original Complaint:
Trent Williams Construction Management did not meet their contractual agreements with homeowner.
‘Trent Williams Construction Management (hereafter also referred to as TWC) neglected their responsibility to provide qualified construction
management oversight during the construction process. TWC was sending out administrative personal to oversee the subcontractors and was not
Providing a qualified foreman as siated in the contract which has resulted in the items not being fixed correctly and the administrative personal marking
off items as complete when they are not. Homeowner found that TWC wasn't paying close attention to detail so the homeowner created punch- lists
during the framing stage, rough finish stage, financial meetings, and finish punch-list, The homeowner had to complete numerous items that were listed
on the punch-list because TWC was moving forward and starting to cover up problems without fixing them. Several occasions during the construction
process the homeowner had to engage representatives for the material manufactures to prove to TWC that they were incorrectly installing materials
which were voiding the manufactures warranties.
During financial meetings homeowner brought up concerns about several areas being extremely over budget and TWC management wasn't able to
explain. The Homeowner conducted an audit to find the reasons for the over expenditures by TWC which TWC’'s management wasn't ableto justify.
During the audit of the construction account for the bookkeeping / bill paying done by TWC the homeowner found that TWC had overpaid their
subcontractors for services along with paying their subcontractors to come back and fix damage and installation errors done by the subcontractors.
Homeowner also found during the audit that TWC was paying for materials to fix damage and installation errors that was caused by their subcontracts
out of the construction account and not holding their subcontractor's
financially responsible for fixing their errors.
On October 27th 2014 a 6 month construction contract was signed between TWC and homeowner to allow construction to begin immediately after
contract was signed. On August 14th 2015 at month 10 of construction TWC once again failed to meet the closing date requirements to compiete the:
items listed on the punch list so the homeowner gave TWC another 2 weeks to finish and as of this date the punch-list still hasn't been completed. The
homeowner has repeatedly met with TWC management at the house and gone over the items to which TWC management agreed that the items weren't
completed and still need io be addressed. One item TWC has tried to use for not meeting the 6 month contract was due to rain, but our house was.
framed and sealed up prior to all the major rains which aiiowed for interior construction to continue but didn't.
Consumer's Desired Resolution:
Com tion of the entire punch-list and supply qualified foreman to oversee the work. Reimbursement for materials and labor for repairing damage and
incorrect installation done by their subcontractors as previously agreed upon by TWC and homeowner during financial meetings.Reimburse 4 months of
additional out of pocket expenses to the homeowner (rent, storage, and utilities for the second house) that were incurred due to TWC failing to meet
contractual agreement of 6 month construction completion.
BBB Processing
12/24/2015 BBB Case Received BBB
12/22/2015 BEB PHONE CALL TO BUSINESS : LM w/ Michelle and confirmed email to send complaint.
12/22/2015 BEB Case Reviewed by BBB -
1212212015 Otto EMAIL
Send Acknowledgement to Consumer
12/22/2015 Otto
EMAIL Notify Susiness of Dispute - AB
01/08/2016 WEB BEB RECEIVED BUSINESS RESPONSE : As with all homes built by TWC Trent Williams monitors all areas of
construction.
TWC normal construction practices have proven successful on 300+ homes. TWC employs a seasoned staff with the superintendent on
this job having over 5 yrs. experience and 45 custom homes, As verified by reputation and client referrals TWC is well qualified. On several occasions
homeowner sought information on Youtube and through Google search engine to substantiate his personal construction preferences. The items
discussed by homeowner related to installation alternatives. Incorporating suggestions to increase effectiveness the changes were made and all related
costs were paid by TWC.
Ail budgetary items discussed by homeowner were reiated to costs incurred by homeowner selections and plan changes. At all
times during construction the homeowner had full access to their interim construction checking account and ail original invoices were delivered to
homeowner af the periodic meetings. TWC has always had a full disclosure policy. The homeowner currently owes TWC $5782. As a gesture of goodwill
‘TWC did reframe and restone the interior fireplace and has offered to subtract $2749.76 leaving a balance of $3032.24 due to TWC. The homeowner
informed TWC this balance would be paid at the completion of a reasonable punch list. Homeowner has not met thelr financial obligation at this time.
TWC and client signed a contract on 10/27/14 after which the homeowner revised the plans, Final plans were not received until
12/12/14, On 12/15/14 plans were submitted to the city for permitting. Having purchased 2 lots and situating house on both lots the city required a replat
and resurvey. This took approximately 2 wks, Final permit was received from the city on 1/2/15, This 8 week delay did not allow for foundation to be
poured until 1/15/15. Once foundation was poured TWC moved efficiently to frame the house and had it dried in by 2/5/15. Due to excessive amounts of
tain in Jan, Feb and Mar and the fact that the house is on the side of a hill we were experiencing excessive amounts of groundwater. This impeded
access to the house for materials such as sheetrock, trim material and cabinetry to be delivered, The interior finish out
process generally take
‘TWC 6 weeks to complete. Given the inability to get on the jobsite this process took 12 weeks. According to the Weather Station
Historical Data Tyler received 38.5 inches of rain as of 8/30/15. Average rainfall during this time is 23.76. This excessive amount of rain affected ail
builders regardiess of their stage of construction. According to the Tyler Area Builders Assoc. 9 homes were withdrawn for the 2015 Parade of Homes:
due to the inability to complete construction because of excessive rain.
TWC is very proud of their product and prior to the BBB letter felt confident that the homeowner contractor relationship was intact.
01/11/2016 ti EMAIL Fonward Business response to Consumer,
EXHIBIT
8B
8
01/44/2016 WEB BBB BBB REVIEWS CONSUMER REBUTTAL TO BUSINESS RESPONSE : (The consumer indicated he/she DID
NOT accept the response from the business.)
en TWC didn't install the windows correctly the homeowner looked up the manufactures installation instructions and provided
them to TWC. TWC didn’t engage the manufacture as requested so the homeowner contacted a Certified Tyvek Specialist and asked him to attend a
meeting with the homeowner, TWC and the framing contractor. At the meeting the Tyvek Specialist did inform TWC and the framer that the way they
had installed the windows was not correct and did void Tyveks warranty. TWC agreed to pay for the materials to correct installation and the framer
agreed to supply the labor. The homeowner found that TWC had paid for some of the window repair materials out of the construction account and were
not paid
for by TWC as agreed.
The over-budget and full discloser of payments statement made by TWC is incorrect, lets discuss the fact that TWC had
intentionally not listed a payment for $3,000 on the financial spreadsheet for painting to hide the fact the painting was over-budget by $5,664 and not
$2,664 over-budget as disclosed to the homeowner. The homeowner found the additional payment made by TWC by reviewing the bank statements,
When the homeowner confronted TWC about the undisclosed payment TWC informed the homeowner they were correct and that TWC would reimburse
the $3,000. We can also tatk about over-budget items associated to TWC not holding their subcontractors responsible repairing and replacing damage
that was caused by their subcontractors for which they have insurance to cover those expenses and not push those costs to the homeowner as was.
found on numerous occasions which added up to the $2749.76 which TWC is not correctly disclosing on their statement.
The reason TWC was held responsible for the fireplace repair costs was they repeatedly over 4 times incorrectly installed the
fireplace per the manufacture installation instructions and city codes even after TWC had informed the homeowner that they had reviewed the
instalation manual and met with the distributor of the fireplace. In TWC's statement they are leading you to belleve that $2749.76 was agreed upon to
be reimbursed solely for the fireplace repairs, which is not true. That amount was a combination of numerous items found by the homeowner that were
paid out of the construction account that should not have been paid for by the homeowner to cover materials and labor to fix installation errors and
damage caused by the subcontractors and TWC agreed to reimburse those costs.
TWC neglected to mention they started construction on 11/21/14 by clearing the lot of trees and completing the initial dirt work and
site grading. TWC also neglected to mention that they had started installing the concrete forms by 12/20/2014. As far as TWC's statement about not
being able to get materials up to the house due to rain that is an incorrect statement because at times the material suppliers used plywood to create a
path to our house during rain storms to deliver materials with their forklifts. TWC confirmed in their statement that the house was sealed up on 2/5/15.
and { can show where we brought in a skid steer to unioad a 1,200 pound air compressor and put it in the shop the 20th of February. A muddy driveway
did nat stop the completion of the inside of our house during the Jan. Feb. and Mar. time fine as TWC is trying to indicate. One of the reasons TWC
wasn't able to work on our house during this time frame was TWC started a spec house for TWC in Hidden Holtows the beginning of Feb, placing it in
front of other existing bulids so it would be finished by end of May to be highlighted in the parade of homes.
‘The foreman that was overseeing our house was released from employment by TWC. TWC didn't want to pull a new job Forman
from their production line to oversee the sub-contractors at our house so TWC sent out administrative personal to our house to oversee the work which
has resulted with work not being completed, but TWC is trying to claim that itis done. The homeowners had to repeatedly call, text, email and at times
go into TWC's office to get TWC to make any effort to work on the punch-list but most times our communications got no response. During our last face
to face meeting with TWC the owner of TWC mentioned to us that he had considered watking away from the construction project and not compiete the
work so when TWC failed to respond to emails and texts requesting TWC to complete the punch-list items the homeowner reached out to BBB for
assistance.
The owner of TWC didn't want to address all the items on the punch-list and kept trying to get the homeowner to give TWC the TOP
5 issues to try and get out of their contractual obligation to get finial payment. The homeowner insisted that TWC complete ail the issues on the punch-
list and never indicated to TWC they were willing to release TWC of their obligation to complete the entire punch-list as stated in the construction
contract supplied and signed by TWC.
01/15/2016 EMAIL REQUEST ADDITIONAL INFO FROM CONSUMER : Please provide a copy of the contract. Also, please
provide an itemized list of everything that needs to be completed or corrected,
01/23/2016 WEB BBB CONSUMER RESPONSE TO BUSINESS REBUTTAL : (The consumer indicated he/she DID NOT accept the
response from the business.)
When TWC didn't install the windows correctly the homeowner looked up the manufactures installation instructions and provided
them to TWC. TWC didn't engage the manufacture as requested so the homeowner contacted a Certified Tyvek Specialist and asked him to attend a
meeting with the homeowner, TWC and the framing contractor. At the meeting the Tyvek Specialist did inform TWC and the framer that the way they
had installed the windows was not correct and did void Tyveks warranty. TWC agreed to pay for the materials to correct installation and the framer
agreed to supply the labor. The homeowner found that TWC had paid for some of the window repair materials out of the construction account and were
not paid for by TWC as agreed.
The over-budget and full discloser of payments statement made by TWC is incorrect, lets discuss the fact that TWC had
intentionally not listed a payment for $3,000 on the financial spreadsheet for painting to hide the fact the painting was over-budget by $5,664 and not
$2,664 over-budget as disclosed to the homeowner. The homeowner found the additional payment made by TWC by reviewing the bank statements.
When the homeowner confronted TWC about the undisclosed payment TWC informed the homeowner they were correct and that TWC would reimburse
the $3,000. We can also talk about over-budget items associated to TWC not holding their subcontractors responsible repairing and replacing damage
that was caused by their subcontractors for which they have insurance to cover those expenses and not push those costs to the homeowner as was
found on numerous occasions which added up to the $2749.76 which TWC is not correctly disclosing on their statement.
The reason TWC was held responsible for the fireplace repair costs was they repeatedly over 4 times incorrectly installed the
fireplace per the manufacture installation instructions and city codes even after TWC had informed the homeowner that they had reviewed the
installation manual and met with the distributor of the fireplace. In TWC's statement they are leading you to believe that $2749.76 was agreed upon to
be reimbursed solely for the fireplace repairs, which is not true. That amount was a combination of numerous items found by the homeowner that were
paid out of the construction account that should not have been paid for by the homeowner fo cover materials and jabor to fix installation errors and
damage caused by the subcontractors and TWC agreed to reimburse those costs.
TWC neglected to mention they started construction on 11/21/14 by clearing the lot of trees and compieting the initial ditt work and
site grading. TWC aiso neglected to mention that they had started installing the concrete forms by 12/20/2014. As far as TWC's statement about not
being able to get materials up to the house due to rain that is an incorrect statement because at times the material suppliers used plywood to create a
path to our house during rain storms to deliver materials with their forklifts. TWC confirmed in their statement that the house was sealed up on 2/5/15
and 1 can show where we brought in a skid steer to unload a 1,200 pound air compressor and put it in the shop the 20th of February. A muddy driveway
did not stop the completion of the inside of our house during the Jan. Feb. and Mar. time line as TWC is trying to indicate. One of the reasons TWC
wasn't able fo work on our house during this time frame was TWC started a spec house for TWC in Hidden Hollows the beginning of Feb. placing it in
front of other existing builds so it would be finished by end of May to be highlighted in the parade of homes.
The foreman that was overseeing our house was released from employment by TWC. TWC didn't want to pull a new job Forman
trom their production line to oversee the sub-contractors at our house so TWC sent out administrative personal to our house to oversee the work which
has resulted with work nat being completed, but TWC is trying to claim that it is done. The homeowners had to repeatedly cal, text, email and at times
go into TWC's office to get TWC to make any effort to work on the punch-list but most times our communications got no response. During our last face
to face meeting with TWG the owner of TWC mentioned to us that he had considered walking away from the construction project and net complete the
work so when TWC failed to respond to emails and texts requesting TWC to complete the punch-list items the homeowner reached out to BBB for
assistance.
The owner of TWC didn’t want to address ali the items on the punch-list and kept trying to get the homeowner
to give TWC the TOP.
5 issues to try and get out of their contractual obligation to get finial payment. The homeowner insisted that TWC complete all the issues on the punch-
list and never indicated to TWC they were willing to release TWC of their obligation to complete the entire punch-list as stated in the construction
contract supplied and signed by
01/23/20" BBI MORE INFO RECEIVED FROM THE CONSUMER : ***Document Attached"*
01/25/2018 knm EMAIL Forward Consumer Rebuttal to Business
02/15/2016 Otto BBB No Response from Business te: Consumer Rebuttal
02/17/2016 ti BBB Move Complaint Into ADR Offer Phase:
02/17/2016 ti EMAIL Send Offer to Arbitrate to Consumer
02/22/2016 4 BBB Consumer accepts offer to arbitrate
02/22/2016 q EMAIL Send Recommendation to Arbitrate to AB
03/01/2016 nh BBB Business Accepts Offer To Arbitrate
03/01/2016 nh BBB Case Moved into Arbitration phase(Arb Process)
03/11/2016 oh BBB Agreement to Arbitrate to Consumer
03/41/2016 Otto BBB Agreement to Arbitrate to Business
04/11/2016 nh BBB SCHEDULE HEARING DATE/TIME : Hearing is scheduled for Monday 25th April, 2016. Suzanne Mitchell is the
Arbitrator.
04/41/2016 Otto BBB Assign Arbitrator
04/11/2016 Otto BBB Notice of Hearing to Consumer
04/41/2016 Otto BBB Notice of Hearing to Company
04/22/2016 Otto BBB Notice Of Hearing Timeout
04/27/2016 nh BEB SCHEDULE HEARING DATE/TIME : Hearing was held on Monday 25th April. Only updated today due to being
out of office on a family emergency.
04/27/2016 3 Assign Arbitrator
04/27/2016 Otto BBB Notice of Hearing to Consumer
04/27/2016 Otto BBB Notice of Hearing to Company
04/27/2016 nh BBB Waiting for Hearing Date
04/27/2016 oh BBB Hearing reminder Calls
04/27/2016 nh BBB Arbitration Hearing (Held)
05/05/2016 nh BBB DECISION TO CONSUMER : Dacision sent on Friday 29th April 2016
06/05/2016 Otto BBB DECISION TO COMPANY : Decision sent on Friday 29th April 2016
06/27/2016 Onto BBB Decision Time Out
06/30/2016 nh BBB Business Failed to Honor Settlement
06/30/2016 Otto EMAIL Inform Business - Case Closed FAILURE TO HONOR SE
06/30/2016 Otto EMAIL Inform Consumer - Case Closed FAILURE TO HONOR SET
06/30/2016 Otto BBB Case Closed - Failed to Honor Settlement
Decision
BE
ine
eek DECISION AMENDED MAY 12, 2016*****#
44%
Consumer: Douglas Jensen Case Number:28019450
Business(es):Trent Williams Construction Management Date: May 2,2016
Having heard the claims and considered the evidence as it relates to the dispute between
the parties named above, the decision of the undersigned arbitrator(s) is as follows:
Trent Williams Construction Management shall correct or repair these items
on the Jensen’s Punch list:
1) No decision on shingles because of 20 year_warranty ,2) drawer in
kitchen very difficult to open and close-repair or replace, 3) cook-top vent
tubing wrapped with matching silver duct tape or painted, 4) touch up all
small paint areas such as around a/c ceiling vents, 5) re-caulk & clean
various areas discolored by caulking butt seams throughout home, 6) areas
that need a touchup with dark stain on dark wood installation.
7) Paint or caulk cleaned from tile floors, 8) fill tile at kitchen door entry, 9)
fix leak under sink. 10) Adjust and even cabinet door heights, 11) fill
external rock siding with mortar to conform at front door or any other area
found lacking required mortar. 12) replace any loose bricks or those not
harmonizing with existing brick flower bed wall bricks, 13) exterior caulking
to be completed in all areas of exits or windows, 14) the cause of the loose
laundry room door latch is to be checked and corrected, 15) holes in the
outside around drier vent are to be filled.
16) A system to drain off water that stands in front door roof gutter is to be
completed per homeowner’s preference.
17) Final coat painting the unseen of cabinets edge is denied.
Better Business Bureau
RO, Box 6652 Mer, a @ Phone: 903.581.5704 203.534.8644
EXHIBIT
-2-
Decision
BBB
18) The bathroom cabinet door with an area of rippled paint is to be
repainted.
19)Mr. Jensen is denied reimbursement for construction site utilities and
toilet (water, electric, and Porta Potty)which is part of the contract package
as testified to by Trent Construction.
20) Repair to wallboard ceilings denied.
21) Fence repairs denied.
22) Completion of sidewalk denied.
23) Yard sprinkler heads are to be adjusted.
24) Mirror: Replace the Bathroom Mirror with one that does not have a
defect.
25) All Base trim seams re-caulked and properly cleaned/or painted not to
show discoloration.
26) Install soft close hinges in bathrooms at no charge because homeowner
stated he has paid for them per invoice.
27) Front door handle was painted “around” leaving a conspicuous line. Door
handle to be removed, the wood repainted, door handle reinstalled.
28) French Drain for water on drive way: no Builder/work contract for this
Drain was submitted at the arbitration or after so not considered.
Servi
P.O. Box 6652 @ Tyler, Texas 75711 @ Phone: 903.581.5704 @ Fax: 903.534.8644
Decision
BBE
-3-
29) Trent Construction is to supply copies of documents requested by the
homeowner i.e. Receipt for back porch concrete stain, receipts for TWC
management fees, itemized final construction water bill, certificate of
Occupancy, construction checkbook (only documentation pertaining to 1227
Rainmaker), house key
30) Repair (smooth) side walls of cabinets in Stall Garage. Both lower side
ends have identical ridges
31) Door trim next to double oven replacement denied. The mantel above
cooktop assess on right side for gap and repair
32) Gutter brackets need to be screwed to fascia
After the Punch list repairs are made, Mr. Trent is to personally inspect and
confirm Douglas Jensen is satisfied with repairs.
Trent Construction is to be paid by Douglas Jensen within 7 business days
from the date of this decision $3032.24 by personal or certified check. Both
parties agreed this amount was due Trent Construction
Reimbursement to Douglas Jensen by Trent Construction for personal rent
and storage costs is denied
***Trent Construction is to complete repairs listed by June 24
2016
CPppeccce Prcctoblaes
Signature of arbitrator (s) Date: May 2, 2016
usiness Bureau Serving Central East Texas
PO. Box «6658 sworeTexas 75711 @ Phone: 903 581.5704 @ Fax: 903.534.8644
® Reasons for Decision
EB B JER AMENDED May 12, QOL GRRE H EK EK
Consumer: Douglas Jensen Case Number: 28019450
Business(es): Trent Williams Construction Management Date: May 2, 2016
Note to arbitrators: Please cite the testimony and evidence that support your decision.
The fulfillment of a 6 month timeline for construction completion, stated in
the Builders contract, I feel could only reasonably be accomplished under
optimal conditions. Construction of a home that depends on so many people
and weather conditions falls within the caveats stated in the construction
Contract: “...construction shail be completed within six months from the
commencement of construction, provided however, completion date shall be
extended as a result of the inability to obtain labor, materials neaee or any
other cause beyond the control of the builder.”
Weather or just about anything can be beyond the control of the Builder. The
contract appears to be a stock Builder’s form contract and gives “beyond
control of the builder” a great deal of latitude to a construction completion
timeline.
Ground breaking started January 2015. Mr. Trent testified to delays because
of the heavy rains and Mr. Trent did as much prep work as the law would
allow before obtaining the final construction permits from the city. Rainfall
amounts can vary in areas but I have no reason to not believe Mr. Trent’s
testimony building delays were caused by rain.
It appears the Builder had good intentions to correct errors in the
construction of the Jensen’s home but there was a failed follow up to make
sure the Punch List errors were done in a workmanlike manner. The
homeowner should remember, however, houses settle, wood shrinks and
expands after placement in a controlled environment. Some errors seen by
the homeowner might reappear after time even though repaired now.
Better Business
aE oe 7 ZS ST
Reasons for Decision
BEB
-2-
I will not give reasons for replacement each defective item or obvious none
completion of stated caulking, mortar, loose bricks or replacement that do
not match existing bricks/mortar except to say the cause - lack of
workmanship from the original Punch repairs list. Mr. Trent stated the very
slight uneven heights of cabinet door is easily adjusted. Caulk or paint on the
floor need no reason or explanation to be cleaned off.
Here are the areas that I think the parties may need a further explanation
and my reasoning as listed on the Decision:
Item #1) Shingles:-Until-a-preblem-—arises-am-assuming-th
seals—areret
e
arises- t ied.
penetrated
during-rainawithin-the-warranty-period,
te-cause-ateak
Item #2) The drawer in the kitchen is very difficult to open and close. It is
not satisfactory or acceptable.
Item #3) cook-top tubing painting or rewrapping purely for esthetic reasons.
More goodwill than a detracting repair.
Item #14) There appears to be a looseness in the operation of the laundry
room door latch for some reason. This should be addressed and corrected.
Item #16) Here is where the problem is obvious and undesirable- standing
water in the drain. The remedy I leave to the judgment of the homeowner to
decide how he wants this problem rectified by the builder.
Better Business Bureau Serving Central East Texas
ier, Texas 7! 1 @ Phone; 903
Reasons for Decision
BEB
-3-
Item #17) Spray painted cabinet doors generally do not get a final coat on
the none viewable edges i.e. the top or bottom of a cabinet door not visible
from a normal standing position. It does not detract from the beauty of a
room. Strange, but the lack of finish paint on one edge (Upper or lower) of
Cabinet doors is common in cabinet doors not painted by hand.
Item #19) Construction started in January on the Jensen's home. It was to
be completed in June. The contract was for a 6 month completion. As stated
previously, home construction is not an exact science. The 6 month
completion is optimum if every thing goes right. The written testimony of
Trent Construction states the Utilities and Porta-Potty are part of the contract
package and the homeowner is responsible for the charges.
Item #20) Ripples in the ceiling wallboard were not detected during
inspection. No repair is needed.
Item #21) A small area of the back fence was observed to be higher than
the rest of the fence at ground level. This could be caused by ground settling
in the area and I cannot definitively blame the builder for this flaw.
Item #22) The extension of the sidewalk, Mr. Trent stated, will be completed
when the adjacent home is completed. The sidewalk causes no danger or
detraction to the home or homeowner at 1227 Rainmaker.
Item #28) From conversations at the time of the inspection I understood
bids had been submitted for this drain. Mr. Trent via the BBB emailed hard
copy information to me and the homeowner after the arbitration was closed.
Better 8 Central East Texas
P.O. Box 6652 @ Tyler, Texas 75711 @ Phone: 903.581.5704 @ Fax: 903.534.8644
Reasons for Decision
BBB
-4-
The French drain was not part of the arbitration consideration because no
work order or contract had been submitted at the time of the arbitration.
Item #31) The mantel over cooktop seems to have a small gap on the right.
This needs to be checked and corrected. The door trim by the double ovens
does not detract or appear to have any major structural error.
item #32) The side door weather stripping, from the photos submitted by
the homeowner, align with the bottom threshold weather stripping.
After the discussion at the arbitration of the problems that arose with
selection and installation of the fire place, it is my understanding the fire
place has been properly installed per code and is mechanically sound.
Storage and rent reimbursement sought by Mr. Jensen: I can find no
justification for payment to be made by Trent Construction for these
personal expenses. The possibility of construction delays was discussed at
the beginning of this Decision Reasons and Trent Construction is not liable
for these personal expenses.
** After this decision was written I found out from Mr. Jensen there was a 20
year warranty on the roof. This warranty supersedes any decision on the
part of the arbiter.
pene Phctobee
Arbitrator Date: May 2, 2016
iness Bureau Servi
Ses a = eS
CAUSE NO.
DOUG JENSEN and CINDY JENSEN, IN THE DISTRICT COURT
Plaintiffs
JUDICIAL DISTRICT
VS.
TRENT WILLIAMS CONSTRUCTION
MANAGEMENT,
Defendant SMITH COUNTY, TEXAS
ORDER CONFIRMING ARBITRATION AWARD
BE IT REMEMBERED that on this day of , 2016, came the parties in the
above- entitled and numbered cause, to wit: Plaintiffs, Doug Jensen and Cindy Jensen and
Defendant, Trent Williams Construction Management, by and through their attorneys of
record; and all announced ready for trial. Whereupon a jury was waived and it was announced
to the Court that the parties confirm the arbitration decision as amended on May 12, 2016.
And such agreement having been made known to the Court, the Court proceeded to hear
evidence and is of the opinion that such settlement is fair and just to the Plaintiff herein and
should be apportioned to the Plaintiff as hereinafter provided.
Therefore, the Court hereby ORDERS and DECREES that such recovery should be
apportioned as follows pursuant to the amended arbitration decision entered on May 12, 2016,
as follows:
That Trent Williams Construction Management shall correct or repair these items on
Plaintiff's punch list:
1 No decision on shingles because of 20 year warranty.
2 Drawer in kitchen very difficult to open and close-repair or replace;
cook-top vent tubing wrapped with matching silver duct tape or painted .3
touch up all small paint areas such as around a/c ceiling vents;
EXHIBIT
i3 fh
re-caulk & clean various areas discolored by caulking butt seams
throughout home;
areas that need a touchup with dark stain on dark wood installation;
paint or caulk cleaned from tile floors;
fill tile at kitchen door entry;
fix leak under sink;
10 adjust and even cabinet door heights:
il fill external rock siding with mortar to conform at front door or any other
area found lacking required mortar;
12 replace any loose bricks or those not harmonizing with existing brick
flower bed wall bricks;
13 exterior caulking to be completed in all areas of exits or windows;
14 the cause of the loose laundry room door latch is to be checked and
corrected;
15 holes in the outside around drier vent are to be filled;
16 a system to drain off water that stands in front door roof gutter is to be
completed per homeowner's preference;
17 final coat painting the unseen of cabinets edge is denied;
18 the bathroom cabinet door with an area of rippled paint is to be
repainted;
19 Mr. Jensen is denied reimbursement for construction site utilities and
toilet (water, electric, and Porta Potty) which is part of the contract
package as testified to by Trent Construction;
20 repair to wallboard ceilings denied;
21 fence repairs denied;
22 Completion of sidewalk denied;
23 yard sprinkler heads are to be adjusted;
24 mirror: replace the bathroom mirror with one that does not have a
defect;
25 all base trim seams re-caulked and properly cleaned/or painted not to
show discoloration;
26 install soft close hinges in bathrooms at no charge because homeowner
stated he has paid for them per invoice;
27 front door handle was painted "around" leaving a conspicuous line. Door
handle to be removed, the wood repainted, door handle reinstalled;
28 french drain for water on drive way: no builder/work contract for this drain
was submitted at the arbitration or after so not considered;
29 Trent Construction is to supply copies of documents requested by the
homeowner i.e. receipt for back porch concrete stain, receipts for TWC
management fees, itemized final construction water bill, certificate of
Occupancy, construction checkbook (only documentation pertaining to 1227
Rainmaker), house key;
30. repair (smooth) side walls of cabinets in stall garage. Both lower side
ends have identical ridges;
31 door trim next to double oven replacement denied. The mantel above
cooktop assess on right side for gap and repair;
32 gutter brackets need to be screwed to fascia.
A
Preview
Electronically Filed 12/14/2016 2:14:39 PM Lois Rogers, Smith County District Clerk Reviewed By: Mary Pyle CAUSE NO. _16-2498-C DOUG JENSEN and CINDY JENSEN, IN THE DISTRICT COURT Plaintiffs VS. JUDICIAL DISTRICT TRENT WILLIAMS CONSTRUCTION MANAGEMENT, LLC, Defendant SMITH COUNTY, TEXAS DOUG AND CINDY JENSEN’S APPLICATION TO CONFIRM ARBITRATION AWARD INTRODUCTION COME NOW Doug Jensen and Cindy Jensen, Plaintiffs herein, ask the Court to confirm an arbitration award against Trent Williams Construction Management, LLC, Defendant herein, which was rendered on or about May 2, 2016. Defendant failed to adhere to the terms of the arbitrator’s decision, prompting the filing this applications. Plaintiffs, Doug Jensen and Cindy Jensen, are residents of Smith County, Texas. The last three digits of Doug Jensen’s Social Security number are XXX-XX-X364. The last three digits of his Texas Driver’s License No. are XXXXX405. The last three digits of Cindy Jensen’s Social Security number are XXX-XX-X831. The last three digits of her Texas Driver’s License No, are XXXXX351. Defendant, Trent Williams Construction Management, LLC is a business with its principal place of business located in Tyler, Smith County, Texas and may be served through its Registered Agent, Trent Williams, by certified mail, return receipt requested, at 713 WSW Loop 323, Suite 136, Tyler, Texas 75701-9460. Discovery in this case shall be conducted under Level 1 of Rule 190, T.R.C.P. JURISDICTION AND VENUE The court has jurisdiction to hear this application pursuant to Chapter 171 of the Texas Civil Practice and Remedies Code. Venue is appropriate in Smith County pursuant to Section 17.096 of the Texas Civil Practice and Remedies Code, sub-part (a)(1) because the defendant maintains a place a of business in Smith County, Texas, and sub-part (c} because the underlying arbitration took place in Smith County, ‘Texas, SUPPORTING EVIDENCE A true and correct copy of the BBB “Agreement to Arbitrate” signed by defendant’s representative, Trent Williams attached hereto as Exhibit A and incorporated by reference; A true and correct copy of the BBB “Complaint Activity Report” indicating the parties’ agreement to arbitrate attached hereto as Exhibit B and incorporated by reference; A true and correct copy of the Arbitrator’s Decision and Reasons for Decision executed on May 2, 2016 attached hereto as Exhibit C and incorporated by reference. The proposed Order Confirming Arbitration Award is attached hereto as Exhibit D and incorporated by reference. BACKGROUND FACTS Plaintiffs made an initial complaint to the Tyler Better Business Bureau (“BBB”) on December 21, 2015. Exhibit B. Defendant responded to the initial complaint on January 8, 2016. Exhibit B. After various party rebuttals to complaints and responses were made by the parties, the BBB recommended that the parties submit their claims and defenses to binding arbitration on February 17, 2016. Exhibit B. Both parties accepted the BBB’s proposal to arbitrate. Exhibit A; Exhibit B. 9. An arbitrator was assigned on April 11, 2016, and an arbitration hearing held on April 25, 2016. Exhibit B; Exhibit C. 10 The arbitrator’s award was made on April 29, 2016, and the parties were notified on or about May 5, 2016. Exhibit C." 1 The arbitrator’s award featured several findings in favor of the plaintiffs, requiring defendant to either make repairs or perform additional work pursuant to an incomplete punch list. Exhibit C. All of the repairs and work were to be completed by June 24, 2016. Exhibit C. 12 The defendant failed to adhere to the arbitrator’s deadline to complete contained within the award. Additionally, after several overtures by the plaintiff to avoid seeking court enforcement of the arbitrator’s award, the defendant has continually refused to perform those repairs that he is obligated to perform pursuant to that award. ARGUMENT AND AUTHORITIES 13 A court’s review of the arbitration process is severely limited. United Paperworkers Int'l Union vy, Misca, Inc., 484 U.S. 29, 36-37 (1987); see CVN Grp., Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex. 2002). A court should indulge all reasonable presumptions in favor of the arbitration award. CVN Grp., 95 S.W.3d at 238. 14 The arbitration award must be confirmed unless there are grounds for modifying, correcting, or vacating the award. Tex. Civ. Prac. & Rem. Code § 171.087; Nafta Traders, Inc. vy. Quinn, 339 S.W.3d 84, 89-90 (Tex. 2011). 15 There are no grounds for modifying, correcting, or vacating the award in this case, and the arbitrator’s decision and award are correct. Tex. Civ. Prac. & Rem. Code § 171.087. The deadline to modify or correct an arbitration award is 90 days after the award is delivered to the * The award expressly carved out from the arbitration plaintiff's claim regarding improper roofing and use of an inferior product on plaintiffs’ roof. This will be the subject of an original proceeding in a different cause. 3 parties. Tex. Civ. Prac. & Rem. Code § 171.091(b). The award in this case was presented to the parties on May 5, 2016, Exhibit B; Exhibit C. Well over 90 days have passed from the date of the award to the date of the filing of this application. 16 Because this application, proposed order, and proper attachments have been filed and because there are no grounds for modifying correcting, or vacating the award, the court must confirm the arbitration award in this case, Tex. Civ, Prac, & Rem, Code § 171,087. CONCLUSION The plaintiffs obtained a favorable award in a party-agreed arbitration through the BBB in April, 2016. That award was provided to the parties to the arbitration on May 5, 2016. Defendant refused to adhere to the tenants of the arbitration award by the deadline provided by the arbitrator of June 24, 2016. Plaintiffs now seek confirmation of the arbitration award in order to enforce the award. PRAYER For these reasons, plaintiffs ask the court to confirm the arbitration award and enter judgment in accordance with the award. Respectfully submitted, WHITESHAVER 205 W. Locust Tyler, Texas 75702 Telephone: 903/533-9447 Telefax: 903/595-3766 By _ ee a —_— _ ADAM B. ALLEN Bar No. 24038738 aallen@whiteshaverlaw.com ATTORNEY FOR PLAINTIFFS Trent Williams Construction From: Better Business Bureau tant: Monday, February 22, 2016 2:02 PM Mr Trent Williams Subject: BBB Complaint Case# 28019450 (Ref#78-15000935-28019450-20-31130) Our initial effort to reach a voluntary settlement on the above-mentioned complaint was not successful. Sometimes, despite best efforts, issues remaining unresolved can result in a joss of customer goodwill and possibly lead to legal actions. In an effort to support our BBB Accredited Businesses in maintaining that goodwill, BBB offers one last form of dispute resolution called arbitration. As a BBB Accredited Business, you have consented to using this form of dispute resolution when recommended by BBB. This process provides for an impartial third party arbitrator to hear and decide your case. The hearing is informal, so you can present your own case without a lawyer; however, you have every right to be represented by a lawyer if you prefer, The decision is final and binding, meaning both parties are legally bound to abide by the decision. Detailed information about this process may be obtained by calling our office, (903)581-5704 to request the booklet: Rules of Binding Arbitration. Both parties must sign an agreement to arbitrate this matter before we can proceed. The consumer has accepted this opportunity to resolve the dispute. If you do not contact BBB within 10 days of your willingness to participate in diation/arbitration as recommended the case will be closed as unresolved. I encourage you to contact me if you have auy questions or concerns. accept. I decline. Signature A summary of this complaint case can be viewed online at the following address: { \b https://www.bbb.or; } Please use the following to log in: Case ID: { \b 28019450 } Password: { \b fy3uu7} Para asistencia en Espanol, favor de llamar al 903-581-5704. Sincerely, B= Tabitha Ingraham Resolutions Consultant = wl 2 3 @ No virus found in this message, EXHIBIT Checked by AVG - www.avge.com Version: 2015.0.6189 / Virus Database: 4533/11679 - Release Date: 02/22/16 1 COMPLAINT ACTIVITY REPORT Case # 28019450 Better Business Bureau Serving Central East Texas. Consumer Info: Jensen, Douglas Business Info: Trent Williams Construction Management. 1227 Rainmaker Tyler, TX 75703 = 605 695-9616 903 581-6161 dj_prostreet@yahoo.com Location Involved: (Same as above) Consumer's Original Complaint: Trent Williams Construction Management did not meet their contractual agreements with homeowner. ‘Trent Williams Construction Management (hereafter also referred to as TWC) neglected their responsibility to provide qualified construction management oversight during the construction process. TWC was sending out administrative personal to oversee the subcontractors and was not Providing a qualified foreman as siated in the contract which has resulted in the items not being fixed correctly and the administrative personal marking off items as complete when they are not. Homeowner found that TWC wasn't paying close attention to detail so the homeowner created punch- lists during the framing stage, rough finish stage, financial meetings, and finish punch-list, The homeowner had to complete numerous items that were listed on the punch-list because TWC was moving forward and starting to cover up problems without fixing them. Several occasions during the construction process the homeowner had to engage representatives for the material manufactures to prove to TWC that they were incorrectly installing materials which were voiding the manufactures warranties. During financial meetings homeowner brought up concerns about several areas being extremely over budget and TWC management wasn't able to explain. The Homeowner conducted an audit to find the reasons for the over expenditures by TWC which TWC’'s management wasn't ableto justify. During the audit of the construction account for the bookkeeping / bill paying done by TWC the homeowner found that TWC had overpaid their subcontractors for services along with paying their subcontractors to come back and fix damage and installation errors done by the subcontractors. Homeowner also found during the audit that TWC was paying for materials to fix damage and installation errors that was caused by their subcontracts out of the construction account and not holding their subcontractor's financially responsible for fixing their errors. On October 27th 2014 a 6 month construction contract was signed between TWC and homeowner to allow construction to begin immediately after contract was signed. On August 14th 2015 at month 10 of construction TWC once again failed to meet the closing date requirements to compiete the: items listed on the punch list so the homeowner gave TWC another 2 weeks to finish and as of this date the punch-list still hasn't been completed. The homeowner has repeatedly met with TWC management at the house and gone over the items to which TWC management agreed that the items weren't completed and still need io be addressed. One item TWC has tried to use for not meeting the 6 month contract was due to rain, but our house was. framed and sealed up prior to all the major rains which aiiowed for interior construction to continue but didn't. Consumer's Desired Resolution: Com tion of the entire punch-list and supply qualified foreman to oversee the work. Reimbursement for materials and labor for repairing damage and incorrect installation done by their subcontractors as previously agreed upon by TWC and homeowner during financial meetings.Reimburse 4 months of additional out of pocket expenses to the homeowner (rent, storage, and utilities for the second house) that were incurred due to TWC failing to meet contractual agreement of 6 month construction completion. BBB Processing 12/24/2015 BBB Case Received BBB 12/22/2015 BEB PHONE CALL TO BUSINESS : LM w/ Michelle and confirmed email to send complaint. 12/22/2015 BEB Case Reviewed by BBB - 1212212015 Otto EMAIL Send Acknowledgement to Consumer 12/22/2015 Otto EMAIL Notify Susiness of Dispute - AB 01/08/2016 WEB BEB RECEIVED BUSINESS RESPONSE : As with all homes built by TWC Trent Williams monitors all areas of construction. TWC normal construction practices have proven successful on 300+ homes. TWC employs a seasoned staff with the superintendent on this job having over 5 yrs. experience and 45 custom homes, As verified by reputation and client referrals TWC is well qualified. On several occasions homeowner sought information on Youtube and through Google search engine to substantiate his personal construction preferences. The items discussed by homeowner related to installation alternatives. Incorporating suggestions to increase effectiveness the changes were made and all related costs were paid by TWC. Ail budgetary items discussed by homeowner were reiated to costs incurred by homeowner selections and plan changes. At all times during construction the homeowner had full access to their interim construction checking account and ail original invoices were delivered to homeowner af the periodic meetings. TWC has always had a full disclosure policy. The homeowner currently owes TWC $5782. As a gesture of goodwill ‘TWC did reframe and restone the interior fireplace and has offered to subtract $2749.76 leaving a balance of $3032.24 due to TWC. The homeowner informed TWC this balance would be paid at the completion of a reasonable punch list. Homeowner has not met thelr financial obligation at this time. TWC and client signed a contract on 10/27/14 after which the homeowner revised the plans, Final plans were not received until 12/12/14, On 12/15/14 plans were submitted to the city for permitting. Having purchased 2 lots and situating house on both lots the city required a replat and resurvey. This took approximately 2 wks, Final permit was received from the city on 1/2/15, This 8 week delay did not allow for foundation to be poured until 1/15/15. Once foundation was poured TWC moved efficiently to frame the house and had it dried in by 2/5/15. Due to excessive amounts of tain in Jan, Feb and Mar and the fact that the house is on the side of a hill we were experiencing excessive amounts of groundwater. This impeded access to the house for materials such as sheetrock, trim material and cabinetry to be delivered, The interior finish out process generally take ‘TWC 6 weeks to complete. Given the inability to get on the jobsite this process took 12 weeks. According to the Weather Station Historical Data Tyler received 38.5 inches of rain as of 8/30/15. Average rainfall during this time is 23.76. This excessive amount of rain affected ail builders regardiess of their stage of construction. According to the Tyler Area Builders Assoc. 9 homes were withdrawn for the 2015 Parade of Homes: due to the inability to complete construction because of excessive rain. TWC is very proud of their product and prior to the BBB letter felt confident that the homeowner contractor relationship was intact. 01/11/2016 ti EMAIL Fonward Business response to Consumer, EXHIBIT 8B 8 01/44/2016 WEB BBB BBB REVIEWS CONSUMER REBUTTAL TO BUSINESS RESPONSE : (The consumer indicated he/she DID NOT accept the response from the business.) en TWC didn't install the windows correctly the homeowner looked up the manufactures installation instructions and provided them to TWC. TWC didn’t engage the manufacture as requested so the homeowner contacted a Certified Tyvek Specialist and asked him to attend a meeting with the homeowner, TWC and the framing contractor. At the meeting the Tyvek Specialist did inform TWC and the framer that the way they had installed the windows was not correct and did void Tyveks warranty. TWC agreed to pay for the materials to correct installation and the framer agreed to supply the labor. The homeowner found that TWC had paid for some of the window repair materials out of the construction account and were not paid for by TWC as agreed. The over-budget and full discloser of payments statement made by TWC is incorrect, lets discuss the fact that TWC had intentionally not listed a payment for $3,000 on the financial spreadsheet for painting to hide the fact the painting was over-budget by $5,664 and not $2,664 over-budget as disclosed to the homeowner. The homeowner found the additional payment made by TWC by reviewing the bank statements, When the homeowner confronted TWC about the undisclosed payment TWC informed the homeowner they were correct and that TWC would reimburse the $3,000. We can also tatk about over-budget items associated to TWC not holding their subcontractors responsible repairing and replacing damage that was caused by their subcontractors for which they have insurance to cover those expenses and not push those costs to the homeowner as was. found on numerous occasions which added up to the $2749.76 which TWC is not correctly disclosing on their statement. The reason TWC was held responsible for the fireplace repair costs was they repeatedly over 4 times incorrectly installed the fireplace per the manufacture installation instructions and city codes even after TWC had informed the homeowner that they had reviewed the instalation manual and met with the distributor of the fireplace. In TWC's statement they are leading you to belleve that $2749.76 was agreed upon to be reimbursed solely for the fireplace repairs, which is not true. That amount was a combination of numerous items found by the homeowner that were paid out of the construction account that should not have been paid for by the homeowner to cover materials and labor to fix installation errors and damage caused by the subcontractors and TWC agreed to reimburse those costs. TWC neglected to mention they started construction on 11/21/14 by clearing the lot of trees and completing the initial dirt work and site grading. TWC also neglected to mention that they had started installing the concrete forms by 12/20/2014. As far as TWC's statement about not being able to get materials up to the house due to rain that is an incorrect statement because at times the material suppliers used plywood to create a path to our house during rain storms to deliver materials with their forklifts. TWC confirmed in their statement that the house was sealed up on 2/5/15. and { can show where we brought in a skid steer to unioad a 1,200 pound air compressor and put it in the shop the 20th of February. A muddy driveway did nat stop the completion of the inside of our house during the Jan. Feb. and Mar. time fine as TWC is trying to indicate. One of the reasons TWC wasn't able to work on our house during this time frame was TWC started a spec house for TWC in Hidden Holtows the beginning of Feb, placing it in front of other existing bulids so it would be finished by end of May to be highlighted in the parade of homes. ‘The foreman that was overseeing our house was released from employment by TWC. TWC didn't want to pull a new job Forman from their production line to oversee the sub-contractors at our house so TWC sent out administrative personal to our house to oversee the work which has resulted with work not being completed, but TWC is trying to claim that itis done. The homeowners had to repeatedly call, text, email and at times go into TWC's office to get TWC to make any effort to work on the punch-list but most times our communications got no response. During our last face to face meeting with TWC the owner of TWC mentioned to us that he had considered watking away from the construction project and not compiete the work so when TWC failed to respond to emails and texts requesting TWC to complete the punch-list items the homeowner reached out to BBB for assistance. The owner of TWC didn't want to address all the items on the punch-list and kept trying to get the homeowner to give TWC the TOP 5 issues to try and get out of their contractual obligation to get finial payment. The homeowner insisted that TWC complete ail the issues on the punch- list and never indicated to TWC they were willing to release TWC of their obligation to complete the entire punch-list as stated in the construction contract supplied and signed by TWC. 01/15/2016 EMAIL REQUEST ADDITIONAL INFO FROM CONSUMER : Please provide a copy of the contract. Also, please provide an itemized list of everything that needs to be completed or corrected, 01/23/2016 WEB BBB CONSUMER RESPONSE TO BUSINESS REBUTTAL : (The consumer indicated he/she DID NOT accept the response from the business.) When TWC didn't install the windows correctly the homeowner looked up the manufactures installation instructions and provided them to TWC. TWC didn't engage the manufacture as requested so the homeowner contacted a Certified Tyvek Specialist and asked him to attend a meeting with the homeowner, TWC and the framing contractor. At the meeting the Tyvek Specialist did inform TWC and the framer that the way they had installed the windows was not correct and did void Tyveks warranty. TWC agreed to pay for the materials to correct installation and the framer agreed to supply the labor. The homeowner found that TWC had paid for some of the window repair materials out of the construction account and were not paid for by TWC as agreed. The over-budget and full discloser of payments statement made by TWC is incorrect, lets discuss the fact that TWC had intentionally not listed a payment for $3,000 on the financial spreadsheet for painting to hide the fact the painting was over-budget by $5,664 and not $2,664 over-budget as disclosed to the homeowner. The homeowner found the additional payment made by TWC by reviewing the bank statements. When the homeowner confronted TWC about the undisclosed payment TWC informed the homeowner they were correct and that TWC would reimburse the $3,000. We can also talk about over-budget items associated to TWC not holding their subcontractors responsible repairing and replacing damage that was caused by their subcontractors for which they have insurance to cover those expenses and not push those costs to the homeowner as was found on numerous occasions which added up to the $2749.76 which TWC is not correctly disclosing on their statement. The reason TWC was held responsible for the fireplace repair costs was they repeatedly over 4 times incorrectly installed the fireplace per the manufacture installation instructions and city codes even after TWC had informed the homeowner that they had reviewed the installation manual and met with the distributor of the fireplace. In TWC's statement they are leading you to believe that $2749.76 was agreed upon to be reimbursed solely for the fireplace repairs, which is not true. That amount was a combination of numerous items found by the homeowner that were paid out of the construction account that should not have been paid for by the homeowner fo cover materials and jabor to fix installation errors and damage caused by the subcontractors and TWC agreed to reimburse those costs. TWC neglected to mention they started construction on 11/21/14 by clearing the lot of trees and compieting the initial ditt work and site grading. TWC aiso neglected to mention that they had started installing the concrete forms by 12/20/2014. As far as TWC's statement about not being able to get materials up to the house due to rain that is an incorrect statement because at times the material suppliers used plywood to create a path to our house during rain storms to deliver materials with their forklifts. TWC confirmed in their statement that the house was sealed up on 2/5/15 and 1 can show where we brought in a skid steer to unload a 1,200 pound air compressor and put it in the shop the 20th of February. A muddy driveway did not stop the completion of the inside of our house during the Jan. Feb. and Mar. time line as TWC is trying to indicate. One of the reasons TWC wasn't able fo work on our house during this time frame was TWC started a spec house for TWC in Hidden Hollows the beginning of Feb. placing it in front of other existing builds so it would be finished by end of May to be highlighted in the parade of homes. The foreman that was overseeing our house was released from employment by TWC. TWC didn't want to pull a new job Forman trom their production line to oversee the sub-contractors at our house so TWC sent out administrative personal to our house to oversee the work which has resulted with work nat being completed, but TWC is trying to claim that it is done. The homeowners had to repeatedly cal, text, email and at times go into TWC's office to get TWC to make any effort to work on the punch-list but most times our communications got no response. During our last face to face meeting with TWG the owner of TWC mentioned to us that he had considered walking away from the construction project and net complete the work so when TWC failed to respond to emails and texts requesting TWC to complete the punch-list items the homeowner reached out to BBB for assistance. The owner of TWC didn’t want to address ali the items on the punch-list and kept trying to get the homeowner to give TWC the TOP. 5 issues to try and get out of their contractual obligation to get finial payment. The homeowner insisted that TWC complete all the issues on the punch- list and never indicated to TWC they were willing to release TWC of their obligation to complete the entire punch-list as stated in the construction contract supplied and signed by 01/23/20" BBI MORE INFO RECEIVED FROM THE CONSUMER : ***Document Attached"* 01/25/2018 knm EMAIL Forward Consumer Rebuttal to Business 02/15/2016 Otto BBB No Response from Business te: Consumer Rebuttal 02/17/2016 ti BBB Move Complaint Into ADR Offer Phase: 02/17/2016 ti EMAIL Send Offer to Arbitrate to Consumer 02/22/2016 4 BBB Consumer accepts offer to arbitrate 02/22/2016 q EMAIL Send Recommendation to Arbitrate to AB 03/01/2016 nh BBB Business Accepts Offer To Arbitrate 03/01/2016 nh BBB Case Moved into Arbitration phase(Arb Process) 03/11/2016 oh BBB Agreement to Arbitrate to Consumer 03/41/2016 Otto BBB Agreement to Arbitrate to Business 04/11/2016 nh BBB SCHEDULE HEARING DATE/TIME : Hearing is scheduled for Monday 25th April, 2016. Suzanne Mitchell is the Arbitrator. 04/41/2016 Otto BBB Assign Arbitrator 04/11/2016 Otto BBB Notice of Hearing to Consumer 04/41/2016 Otto BBB Notice of Hearing to Company 04/22/2016 Otto BBB Notice Of Hearing Timeout 04/27/2016 nh BEB SCHEDULE HEARING DATE/TIME : Hearing was held on Monday 25th April. Only updated today due to being out of office on a family emergency. 04/27/2016 3 Assign Arbitrator 04/27/2016 Otto BBB Notice of Hearing to Consumer 04/27/2016 Otto BBB Notice of Hearing to Company 04/27/2016 nh BBB Waiting for Hearing Date 04/27/2016 oh BBB Hearing reminder Calls 04/27/2016 nh BBB Arbitration Hearing (Held) 05/05/2016 nh BBB DECISION TO CONSUMER : Dacision sent on Friday 29th April 2016 06/05/2016 Otto BBB DECISION TO COMPANY : Decision sent on Friday 29th April 2016 06/27/2016 Onto BBB Decision Time Out 06/30/2016 nh BBB Business Failed to Honor Settlement 06/30/2016 Otto EMAIL Inform Business - Case Closed FAILURE TO HONOR SE 06/30/2016 Otto EMAIL Inform Consumer - Case Closed FAILURE TO HONOR SET 06/30/2016 Otto BBB Case Closed - Failed to Honor Settlement Decision BE ine eek DECISION AMENDED MAY 12, 2016*****# 44% Consumer: Douglas Jensen Case Number:28019450 Business(es):Trent Williams Construction Management Date: May 2,2016 Having heard the claims and considered the evidence as it relates to the dispute between the parties named above, the decision of the undersigned arbitrator(s) is as follows: Trent Williams Construction Management shall correct or repair these items on the Jensen’s Punch list: 1) No decision on shingles because of 20 year_warranty ,2) drawer in kitchen very difficult to open and close-repair or replace, 3) cook-top vent tubing wrapped with matching silver duct tape or painted, 4) touch up all small paint areas such as around a/c ceiling vents, 5) re-caulk & clean various areas discolored by caulking butt seams throughout home, 6) areas that need a touchup with dark stain on dark wood installation. 7) Paint or caulk cleaned from tile floors, 8) fill tile at kitchen door entry, 9) fix leak under sink. 10) Adjust and even cabinet door heights, 11) fill external rock siding with mortar to conform at front door or any other area found lacking required mortar. 12) replace any loose bricks or those not harmonizing with existing brick flower bed wall bricks, 13) exterior caulking to be completed in all areas of exits or windows, 14) the cause of the loose laundry room door latch is to be checked and corrected, 15) holes in the outside around drier vent are to be filled. 16) A system to drain off water that stands in front door roof gutter is to be completed per homeowner’s preference. 17) Final coat painting the unseen of cabinets edge is denied. Better Business Bureau RO, Box 6652 Mer, a @ Phone: 903.581.5704 203.534.8644 EXHIBIT -2- Decision BBB 18) The bathroom cabinet door with an area of rippled paint is to be repainted. 19)Mr. Jensen is denied reimbursement for construction site utilities and toilet (water, electric, and Porta Potty)which is part of the contract package as testified to by Trent Construction. 20) Repair to wallboard ceilings denied. 21) Fence repairs denied. 22) Completion of sidewalk denied. 23) Yard sprinkler heads are to be adjusted. 24) Mirror: Replace the Bathroom Mirror with one that does not have a defect. 25) All Base trim seams re-caulked and properly cleaned/or painted not to show discoloration. 26) Install soft close hinges in bathrooms at no charge because homeowner stated he has paid for them per invoice. 27) Front door handle was painted “around” leaving a conspicuous line. Door handle to be removed, the wood repainted, door handle reinstalled. 28) French Drain for water on drive way: no Builder/work contract for this Drain was submitted at the arbitration or after so not considered. Servi P.O. Box 6652 @ Tyler, Texas 75711 @ Phone: 903.581.5704 @ Fax: 903.534.8644 Decision BBE -3- 29) Trent Construction is to supply copies of documents requested by the homeowner i.e. Receipt for back porch concrete stain, receipts for TWC management fees, itemized final construction water bill, certificate of Occupancy, construction checkbook (only documentation pertaining to 1227 Rainmaker), house key 30) Repair (smooth) side walls of cabinets in Stall Garage. Both lower side ends have identical ridges 31) Door trim next to double oven replacement denied. The mantel above cooktop assess on right side for gap and repair 32) Gutter brackets need to be screwed to fascia After the Punch list repairs are made, Mr. Trent is to personally inspect and confirm Douglas Jensen is satisfied with repairs. Trent Construction is to be paid by Douglas Jensen within 7 business days from the date of this decision $3032.24 by personal or certified check. Both parties agreed this amount was due Trent Construction Reimbursement to Douglas Jensen by Trent Construction for personal rent and storage costs is denied ***Trent Construction is to complete repairs listed by June 24 2016 CPppeccce Prcctoblaes Signature of arbitrator (s) Date: May 2, 2016 usiness Bureau Serving Central East Texas PO. Box «6658 sworeTexas 75711 @ Phone: 903 581.5704 @ Fax: 903.534.8644 ® Reasons for Decision EB B JER AMENDED May 12, QOL GRRE H EK EK Consumer: Douglas Jensen Case Number: 28019450 Business(es): Trent Williams Construction Management Date: May 2, 2016 Note to arbitrators: Please cite the testimony and evidence that support your decision. The fulfillment of a 6 month timeline for construction completion, stated in the Builders contract, I feel could only reasonably be accomplished under optimal conditions. Construction of a home that depends on so many people and weather conditions falls within the caveats stated in the construction Contract: “...construction shail be completed within six months from the commencement of construction, provided however, completion date shall be extended as a result of the inability to obtain labor, materials neaee or any other cause beyond the control of the builder.” Weather or just about anything can be beyond the control of the Builder. The contract appears to be a stock Builder’s form contract and gives “beyond control of the builder” a great deal of latitude to a construction completion timeline. Ground breaking started January 2015. Mr. Trent testified to delays because of the heavy rains and Mr. Trent did as much prep work as the law would allow before obtaining the final construction permits from the city. Rainfall amounts can vary in areas but I have no reason to not believe Mr. Trent’s testimony building delays were caused by rain. It appears the Builder had good intentions to correct errors in the construction of the Jensen’s home but there was a failed follow up to make sure the Punch List errors were done in a workmanlike manner. The homeowner should remember, however, houses settle, wood shrinks and expands after placement in a controlled environment. Some errors seen by the homeowner might reappear after time even though repaired now. Better Business aE oe 7 ZS ST Reasons for Decision BEB -2- I will not give reasons for replacement each defective item or obvious none completion of stated caulking, mortar, loose bricks or replacement that do not match existing bricks/mortar except to say the cause - lack of workmanship from the original Punch repairs list. Mr. Trent stated the very slight uneven heights of cabinet door is easily adjusted. Caulk or paint on the floor need no reason or explanation to be cleaned off. Here are the areas that I think the parties may need a further explanation and my reasoning as listed on the Decision: Item #1) Shingles:-Until-a-preblem-—arises-am-assuming-th seals—areret e arises- t ied. penetrated during-rainawithin-the-warranty-period, te-cause-ateak Item #2) The drawer in the kitchen is very difficult to open and close. It is not satisfactory or acceptable. Item #3) cook-top tubing painting or rewrapping purely for esthetic reasons. More goodwill than a detracting repair. Item #14) There appears to be a looseness in the operation of the laundry room door latch for some reason. This should be addressed and corrected. Item #16) Here is where the problem is obvious and undesirable- standing water in the drain. The remedy I leave to the judgment of the homeowner to decide how he wants this problem rectified by the builder. Better Business Bureau Serving Central East Texas ier, Texas 7! 1 @ Phone; 903 Reasons for Decision BEB -3- Item #17) Spray painted cabinet doors generally do not get a final coat on the none viewable edges i.e. the top or bottom of a cabinet door not visible from a normal standing position. It does not detract from the beauty of a room. Strange, but the lack of finish paint on one edge (Upper or lower) of Cabinet doors is common in cabinet doors not painted by hand. Item #19) Construction started in January on the Jensen's home. It was to be completed in June. The contract was for a 6 month completion. As stated previously, home construction is not an exact science. The 6 month completion is optimum if every thing goes right. The written testimony of Trent Construction states the Utilities and Porta-Potty are part of the contract package and the homeowner is responsible for the charges. Item #20) Ripples in the ceiling wallboard were not detected during inspection. No repair is needed. Item #21) A small area of the back fence was observed to be higher than the rest of the fence at ground level. This could be caused by ground settling in the area and I cannot definitively blame the builder for this flaw. Item #22) The extension of the sidewalk, Mr. Trent stated, will be completed when the adjacent home is completed. The sidewalk causes no danger or detraction to the home or homeowner at 1227 Rainmaker. Item #28) From conversations at the time of the inspection I understood bids had been submitted for this drain. Mr. Trent via the BBB emailed hard copy information to me and the homeowner after the arbitration was closed. Better 8 Central East Texas P.O. Box 6652 @ Tyler, Texas 75711 @ Phone: 903.581.5704 @ Fax: 903.534.8644 Reasons for Decision BBB -4- The French drain was not part of the arbitration consideration because no work order or contract had been submitted at the time of the arbitration. Item #31) The mantel over cooktop seems to have a small gap on the right. This needs to be checked and corrected. The door trim by the double ovens does not detract or appear to have any major structural error. item #32) The side door weather stripping, from the photos submitted by the homeowner, align with the bottom threshold weather stripping. After the discussion at the arbitration of the problems that arose with selection and installation of the fire place, it is my understanding the fire place has been properly installed per code and is mechanically sound. Storage and rent reimbursement sought by Mr. Jensen: I can find no justification for payment to be made by Trent Construction for these personal expenses. The possibility of construction delays was discussed at the beginning of this Decision Reasons and Trent Construction is not liable for these personal expenses. ** After this decision was written I found out from Mr. Jensen there was a 20 year warranty on the roof. This warranty supersedes any decision on the part of the arbiter. pene Phctobee Arbitrator Date: May 2, 2016 iness Bureau Servi Ses a = eS CAUSE NO. DOUG JENSEN and CINDY JENSEN, IN THE DISTRICT COURT Plaintiffs JUDICIAL DISTRICT VS. TRENT WILLIAMS CONSTRUCTION MANAGEMENT, Defendant SMITH COUNTY, TEXAS ORDER CONFIRMING ARBITRATION AWARD BE IT REMEMBERED that on this day of , 2016, came the parties in the above- entitled and numbered cause, to wit: Plaintiffs, Doug Jensen and Cindy Jensen and Defendant, Trent Williams Construction Management, by and through their attorneys of record; and all announced ready for trial. Whereupon a jury was waived and it was announced to the Court that the parties confirm the arbitration decision as amended on May 12, 2016. And such agreement having been made known to the Court, the Court proceeded to hear evidence and is of the opinion that such settlement is fair and just to the Plaintiff herein and should be apportioned to the Plaintiff as hereinafter provided. Therefore, the Court hereby ORDERS and DECREES that such recovery should be apportioned as follows pursuant to the amended arbitration decision entered on May 12, 2016, as follows: That Trent Williams Construction Management shall correct or repair these items on Plaintiff's punch list: 1 No decision on shingles because of 20 year warranty. 2 Drawer in kitchen very difficult to open and close-repair or replace; cook-top vent tubing wrapped with matching silver duct tape or painted .3 touch up all small paint areas such as around a/c ceiling vents; EXHIBIT i3 fh re-caulk & clean various areas discolored by caulking butt seams throughout home; areas that need a touchup with dark stain on dark wood installation; paint or caulk cleaned from tile floors; fill tile at kitchen door entry; fix leak under sink; 10 adjust and even cabinet door heights: il fill external rock siding with mortar to conform at front door or any other area found lacking required mortar; 12 replace any loose bricks or those not harmonizing with existing brick flower bed wall bricks; 13 exterior caulking to be completed in all areas of exits or windows; 14 the cause of the loose laundry room door latch is to be checked and corrected; 15 holes in the outside around drier vent are to be filled; 16 a system to drain off water that stands in front door roof gutter is to be completed per homeowner's preference; 17 final coat painting the unseen of cabinets edge is denied; 18 the bathroom cabinet door with an area of rippled paint is to be repainted; 19 Mr. Jensen is denied reimbursement for construction site utilities and toilet (water, electric, and Porta Potty) which is part of the contract package as testified to by Trent Construction; 20 repair to wallboard ceilings denied; 21 fence repairs denied; 22 Completion of sidewalk denied; 23 yard sprinkler heads are to be adjusted; 24 mirror: replace the bathroom mirror with one that does not have a defect; 25 all base trim seams re-caulked and properly cleaned/or painted not to show discoloration; 26 install soft close hinges in bathrooms at no charge because homeowner stated he has paid for them per invoice; 27 front door handle was painted "around" leaving a conspicuous line. Door handle to be removed, the wood repainted, door handle reinstalled; 28 french drain for water on drive way: no builder/work contract for this drain was submitted at the arbitration or after so not considered; 29 Trent Construction is to supply copies of documents requested by the homeowner i.e. receipt for back porch concrete stain, receipts for TWC management fees, itemized final construction water bill, certificate of Occupancy, construction checkbook (only documentation pertaining to 1227 Rainmaker), house key; 30. repair (smooth) side walls of cabinets in stall garage. Both lower side ends have identical ridges; 31 door trim next to double oven replacement denied. The mantel above cooktop assess on right side for gap and repair; 32 gutter brackets need to be screwed to fascia. A