Preview
Received and E-Filed for Record
3/27/2020 4:20 PM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Beth Rogers
20-03-04145
NO.
ROBERT SULZBACH, AND § IN THE
SANDY SULZBACH, §
PLAINTIFFS, §
§
v. § JUDICIAL DISTRICT COURT
§
JAMERA CUSTOM HOMES, INC., AND §
Montgomery County - 410th Judicial District Court
STRUCSURE HOME WARRANTY, LLC, §
DEFENDANTS. § OF MONTGOMERY COUNTY, TEXAS
ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
Comes now, Plaintiffs, ROBERT SULZBACH and SANDY SULZBACH, hereinafter
“Plaintiffs,” by and through their Attorney of Record, Lawrence Chang, who file this their
Original Petition against Defendants, JAMERA CUSTOM HOMES, INC. and STRUCSURE
HOME WARRANTY, LLC, and in support thereof respectfully show the Court as follows:
I. DISCOVERY PLAN
1. Plaintiffs submit that this matter should be conducted under Discovery Plan Level Three as
set forth in Rule 190.4 of the Texas Rules of Civil Procedure.
II. PARTIES
2. Robert Sulzbach and Sandy Sulzbach are a married couple who reside in Montgomery
County, Texas, and may be contacted through their undersigned attorney.
3. Defendant, Jamera Custom Homes, Inc., is a corporation doing business in the State of
Texas who can be served through their registered agent of record, Magda Garza, at 22922
Yukon River Dr., Porter, TX 77365.
4. Defendant, Strucsure Home Warranty, LLC, is a corporation doing business in the State of
Texas who can be served through their registered agent of record, Corporation Service
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Company d/b/a Lawyers Incorporating Service Company at 211 E. 7th Street, Suite 620,
Austin, TX, 78701.
III. JURISDICTION AND VENUE
5. This Court has subject matter jurisdiction as the matter in controversy exceeds this Court’s
minimum jurisdictional limits.
6. Personal jurisdiction is proper in this matter as the Defendant resides in and transact
business within the State of Texas, and have acquiesced to such jurisdiction.
7. Venue is mandatory and proper under Texas Civil Practice and Remedies Code § 15.017 as
Montgomery County is the county of Plaintiffs residence, and all or a substantial part of
the events giving rise to Plaintiffs’ claims occurred in Montgomery County, Texas.
IV. FACTUAL BACKGROUND
8. On or about June 14th, 2018, Claimants entered into contract (the “Contract”) to purchase
the property located at 27684 Rio Blanco Dr., Splendora, TX 77372 (the “Property”) from
Defendant, Jamera Custom Homes, Inc. (“Jamera”).
9. The Contract specified a floor plan chosen by Claimants. The ability to choose their floor
plan was a material factor that induced Claimants into entering the Contract.
10. On or about July 2, 2018, Jamera informed Claimants realtor that they were not going to
build according to the floor plan selected by Claimants.
11. Claimant, Robert Sulzbach, is a member of the United States Military who had been
ordered to report to duty in early August, 2018. Claimants were relying on the delivery of
the Property as outlined in the Contract and had planned their living arrangements
accordingly.
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12. Jamera informed Claimants that they had made the decision to build the Property with a
different floor plan before Claimants entered into the Contract and that they had no other
option. Claimants were forced, under duress, to proceed under the Contract as they had no
other option available.
13. On or about August 13th, 2018, Claimants purchased the Property from Jamera. As part of
that transaction, Jamera Homes provided Claimants with a ten (10) year home warranty
through Defendant, Strucsure Home Warranty, LLC (“Strucsure”), and their own two (2)
year Systems Warranty, and one (1) year Workmanship Warranty.
14. On or about August 17, 2019, Claimants notified Jamera of a water leak in the kitchen.
15. Jamera initially stated that the Workmanship Warranty had expired and denied the claim.
16. Strucsure was also notified. Strucsure informed Jamera Homes that the leak fell under the
Systems Warranty and that Jamera Homes was responsible for fixing it.
17. While fixing the leak, mold was discovered in the Property.
18. Claimants hired Texas Mold Inspectors (“TMI”) to check whether or not the mold found in
the Property was hazardous. TMI concluded that the Property contained toxic, deadly
mold, and that it was unfit for human occupancy. That report was shared with Jamera in
October of 2019.
19. As part of the report, TMI found that the Property likely had inherent construction defects
which was another producing cause of the mold. Those defects included improper attic
ventilation and HVAC installation.
20. Jamera Homes hired HTX to create a mold treatment protocol for the Property. HTX
performed a visual assessment and determined that the source of the mold was the water
leak in the kitchen that had not been properly dried out.
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21. Jamera’s defective construction of the Property is the primary cause of Claimants mold
problems.
22. Jamera and HTX presented a remediation protocol to Claimants that did not address the
inherent construction defects of the Property or the true cause of the mold. Jamera
intended to fraudulently induce Claimants into waiving their rights by taking advantage of
their lack of expertise and knowledge.
23. Strucsure has denied all liability and has failed to honor their warranty.
24. Plaintiffs would not have purchased the Property without the warranties from either
Defendant.
25. Claimants assert claims for breach of contract, breach of implied warranty of habitability,
negligence, fraud, statutory fraud and fraudulent inducement, as well as claims under the
Texas Deceptive Trade Practices-Consumer Protection Act. 1
26. Claimants gave notice of their claims to Jamera and Strucsure on December 4, 2019.
27. Claimants assert claims for personal injury, negligence, fraud, and fraudulent inducement,
as well as claims under the Texas Deceptive Trade Practices-Consumer Protection Act. 2
(Tex Bus & Comm Code § 17.41 -17.63.)
V. CAUSES OF ACTION
Plaintiffs re-allege and incorporate by reference all facts and allegations set forth in the
foregoing paragraphs.
A. Violations of the Deceptive Trade Practices Consumer Protection Act
1
See Tex. BUS. COM. CODE § 17.41-17.63.
2
See Tex. BUS. COM. CODE § 17.41-17.63.
4
28. Plaintiffs hereby invoke the provisions of the Texas Business and Commerce Code § 17.41
et seq., commonly referred to as the Deceptive Trade Practices – Consumer Protection Act
(hereinafter, “DTPA”).
29. Plaintiffs have a cause of action against Defendants under the provision of the DTPA
pursuant to § 17.50 (a), which provides remedies for any unconscionable action or course
of action by any person by unreasonable delay, in payment, unreasonable denial of
coverage, misrepresentation of facts; or the breach of an express or implied warranty.
Defendants, by virtue of their conduct as described above, engaged in an unconscionable
action or course of action as that term is defined by the DTPA. Plaintiffs are entitled to the
relief set out in the Act.
30. Defendants have also violated various provisions of the Texas Business and Commerce
Code § 17.46 (b) including but not limited to:
a. 17.46 (b)(13) - Knowingly making false or misleading statements of fact
concerning the need for parts, replacement, or repair service;
b. 17.46 (b)(22) - representing that work or services had been performed, when the
work or services were not performed
c. 17.46 (b)(24) – failing to disclose information concerning goods or services which
were known at the time of the transaction if such failure to disclose such
information was intended to induce the consumer into a transaction into which the
consumer would not have entered had the information been disclosed.
31. The above violations of Texas Business and Commerce Code § 17.46 (b) were a producing
cause of Plaintiffs’ damages as hereinafter set forth and were committed knowingly, and
maliciously.
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B. Fraud by Nondisclosure, Fraud in the Inducement and Statutory Fraud
32. Defendants made representations to Plaintiffs which were material and false. When the
Defendants made such representations, Defendant knew them to be false, and made the
representations maliciously with knowledge of their falsity. Defendant made these
representations to Plaintiffs with the intent that Plaintiffs act on them. Plaintiffs relied on
the false representations made by Defendants. The representations by Defendant have
caused Plaintiffs’ damages described herein.
33. The actions and omissions of the Defendants constitute common law fraud, fraudulent
inducement, and fraud by nondisclosure, which were the proximate cause of damages
suffered by Plaintiffs, as described further herein.
C. Breach of Contract
34. Plaintiffs entered into Contract to purchase the Property from Jamera as a new custom built
home.
35. Jamera had no intention to honor the contract, as they knew construction was already under
way before Plaintiffs chose their floor plan.
36. Jamera failed to provide a habitable home that complies with the code requirements of the
State of Texas.
37. Strucsure failed to honor their warranty.
38. Defendants’ failure to deliver under the contract with Plaintiffs was a breach of contract
that was a proximate cause of the damages of which Plaintiffs complain.
D. Negligence
39. Jamera was negligent, at best, when constructing the Property.
40. Defendants were negligent, at best, in their advertising.
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41. The Defendants negligence was a proximate cause of the Plaintiffs damages as described
herein.
VI. DAMAGES
42. As a consequence of Defendants’ wrongful acts described above, Plaintiffs have suffered
actual and consequential damages. Plaintiffs seek general and special damages. Plaintiffs
request and are entitled to costs of Court, and pre- and post- judgment interest at the
maximum rate agreed to by the parties or permitted by law, pursuant to Texas law.
43. Plaintiffs plead exemplary damages, including damages for mental distress and anguish, on
all causes of action. Defendants committed the aforementioned acts with the kind of
willfulness, wantonness, and/or malicious intent for which the law allows the imposition of
exemplary damages.
44. Plaintiffs estimate the cost of remediating the Property to be over $300,000.00.
Remediating the Property is the appropriate remedy as it will put Plaintiffs in the position
they would have been if not for the Defendants wrongful acts.
45. Due to the presence of toxic mold, Defendant owes Plaintiffs the cost of relocation.
46. Defendant is liable to Plaintiffs for the value of the furniture and belongings in the
Property that need to be replaced.
47. Defendants deceptive trade practice and fraud led to the proliferation of toxic mold in the
Property, which may have caused long term personal injury to Plaintiffs. Defendants are
liable for past and future medical expenses to treat the symptoms of toxic mold exposure,
as well as for pain and suffering and mental anguish.
VII. CONDITIONS PRECEDENT AND RULE 47 STATEMENT
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48. All conditions precedent to the filing of this action have been performed, have occurred or
been waived. Pursuant to Rule 47 of the Texas Rules of Civil Procedure, Plaintiffs state
they seek monetary relief over $1,000,000.
VIII. REQUEST FOR DISCLOSURE
49. Pursuant to Texas Rule of Civil Procedure 194, Plaintiffs request that Defendants disclose,
within 30 days of the service of this request, the information or material described in Rule
194.2, subsections (a) – (l) of the Texas Rules of Civil Procedure.
IX. JURY REQUEST
50. Pursuant to Rule 216 of the Texas Rules of Civil Procedure, Plaintiffs request a trial by
jury and will tender the appropriate fee.
X. PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants be cited to appear
and answer herein and that, upon trial, Plaintiffs receive Judgment as follows:
a) Actual and economic damages, including but not limited to the costs of repair and
replacement and past and future medical expenses;
b) Additional damages as provided by the DTPA:
c) Costs of suit, including reasonable legal expenses;
d) Reasonable and necessary attorney fees, as provided by the DTPA and the Civil
Practice and Remedies Code;
e) Pre- and post- judgment interest at the maximum rate provided by law;
f) Exemplary Damages;
g) Post-judgment discovery and collection in the event execution on the judgment is
necessary; and
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h) Any and all other relief the Court deems appropriate in an amount within the
jurisdictional limits of this Court
Respectfully submitted,
CHOATE & ASSOCIATES
____________________________________
Lawrence Chang
State Bar No. 24072892
1000 Westbank Dr., Building #1
Austin, Texas 78746
Telephone: (512) 297-9124
Facsimile: (512) 330-0286
Law.Chang@choateaustin.com
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Preview
Received and E-Filed for Record 3/27/2020 4:20 PM Melisa Miller, District Clerk Montgomery County, Texas Deputy Clerk, Beth Rogers 20-03-04145 NO. ROBERT SULZBACH, AND § IN THE SANDY SULZBACH, § PLAINTIFFS, § § v. § JUDICIAL DISTRICT COURT § JAMERA CUSTOM HOMES, INC., AND § Montgomery County - 410th Judicial District Court STRUCSURE HOME WARRANTY, LLC, § DEFENDANTS. § OF MONTGOMERY COUNTY, TEXAS ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: Comes now, Plaintiffs, ROBERT SULZBACH and SANDY SULZBACH, hereinafter “Plaintiffs,” by and through their Attorney of Record, Lawrence Chang, who file this their Original Petition against Defendants, JAMERA CUSTOM HOMES, INC. and STRUCSURE HOME WARRANTY, LLC, and in support thereof respectfully show the Court as follows: I. DISCOVERY PLAN 1. Plaintiffs submit that this matter should be conducted under Discovery Plan Level Three as set forth in Rule 190.4 of the Texas Rules of Civil Procedure. II. PARTIES 2. Robert Sulzbach and Sandy Sulzbach are a married couple who reside in Montgomery County, Texas, and may be contacted through their undersigned attorney. 3. Defendant, Jamera Custom Homes, Inc., is a corporation doing business in the State of Texas who can be served through their registered agent of record, Magda Garza, at 22922 Yukon River Dr., Porter, TX 77365. 4. Defendant, Strucsure Home Warranty, LLC, is a corporation doing business in the State of Texas who can be served through their registered agent of record, Corporation Service 1 Company d/b/a Lawyers Incorporating Service Company at 211 E. 7th Street, Suite 620, Austin, TX, 78701. III. JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction as the matter in controversy exceeds this Court’s minimum jurisdictional limits. 6. Personal jurisdiction is proper in this matter as the Defendant resides in and transact business within the State of Texas, and have acquiesced to such jurisdiction. 7. Venue is mandatory and proper under Texas Civil Practice and Remedies Code § 15.017 as Montgomery County is the county of Plaintiffs residence, and all or a substantial part of the events giving rise to Plaintiffs’ claims occurred in Montgomery County, Texas. IV. FACTUAL BACKGROUND 8. On or about June 14th, 2018, Claimants entered into contract (the “Contract”) to purchase the property located at 27684 Rio Blanco Dr., Splendora, TX 77372 (the “Property”) from Defendant, Jamera Custom Homes, Inc. (“Jamera”). 9. The Contract specified a floor plan chosen by Claimants. The ability to choose their floor plan was a material factor that induced Claimants into entering the Contract. 10. On or about July 2, 2018, Jamera informed Claimants realtor that they were not going to build according to the floor plan selected by Claimants. 11. Claimant, Robert Sulzbach, is a member of the United States Military who had been ordered to report to duty in early August, 2018. Claimants were relying on the delivery of the Property as outlined in the Contract and had planned their living arrangements accordingly. 2 12. Jamera informed Claimants that they had made the decision to build the Property with a different floor plan before Claimants entered into the Contract and that they had no other option. Claimants were forced, under duress, to proceed under the Contract as they had no other option available. 13. On or about August 13th, 2018, Claimants purchased the Property from Jamera. As part of that transaction, Jamera Homes provided Claimants with a ten (10) year home warranty through Defendant, Strucsure Home Warranty, LLC (“Strucsure”), and their own two (2) year Systems Warranty, and one (1) year Workmanship Warranty. 14. On or about August 17, 2019, Claimants notified Jamera of a water leak in the kitchen. 15. Jamera initially stated that the Workmanship Warranty had expired and denied the claim. 16. Strucsure was also notified. Strucsure informed Jamera Homes that the leak fell under the Systems Warranty and that Jamera Homes was responsible for fixing it. 17. While fixing the leak, mold was discovered in the Property. 18. Claimants hired Texas Mold Inspectors (“TMI”) to check whether or not the mold found in the Property was hazardous. TMI concluded that the Property contained toxic, deadly mold, and that it was unfit for human occupancy. That report was shared with Jamera in October of 2019. 19. As part of the report, TMI found that the Property likely had inherent construction defects which was another producing cause of the mold. Those defects included improper attic ventilation and HVAC installation. 20. Jamera Homes hired HTX to create a mold treatment protocol for the Property. HTX performed a visual assessment and determined that the source of the mold was the water leak in the kitchen that had not been properly dried out. 3 21. Jamera’s defective construction of the Property is the primary cause of Claimants mold problems. 22. Jamera and HTX presented a remediation protocol to Claimants that did not address the inherent construction defects of the Property or the true cause of the mold. Jamera intended to fraudulently induce Claimants into waiving their rights by taking advantage of their lack of expertise and knowledge. 23. Strucsure has denied all liability and has failed to honor their warranty. 24. Plaintiffs would not have purchased the Property without the warranties from either Defendant. 25. Claimants assert claims for breach of contract, breach of implied warranty of habitability, negligence, fraud, statutory fraud and fraudulent inducement, as well as claims under the Texas Deceptive Trade Practices-Consumer Protection Act. 1 26. Claimants gave notice of their claims to Jamera and Strucsure on December 4, 2019. 27. Claimants assert claims for personal injury, negligence, fraud, and fraudulent inducement, as well as claims under the Texas Deceptive Trade Practices-Consumer Protection Act. 2 (Tex Bus & Comm Code § 17.41 -17.63.) V. CAUSES OF ACTION Plaintiffs re-allege and incorporate by reference all facts and allegations set forth in the foregoing paragraphs. A. Violations of the Deceptive Trade Practices Consumer Protection Act 1 See Tex. BUS. COM. CODE § 17.41-17.63. 2 See Tex. BUS. COM. CODE § 17.41-17.63. 4 28. Plaintiffs hereby invoke the provisions of the Texas Business and Commerce Code § 17.41 et seq., commonly referred to as the Deceptive Trade Practices – Consumer Protection Act (hereinafter, “DTPA”). 29. Plaintiffs have a cause of action against Defendants under the provision of the DTPA pursuant to § 17.50 (a), which provides remedies for any unconscionable action or course of action by any person by unreasonable delay, in payment, unreasonable denial of coverage, misrepresentation of facts; or the breach of an express or implied warranty. Defendants, by virtue of their conduct as described above, engaged in an unconscionable action or course of action as that term is defined by the DTPA. Plaintiffs are entitled to the relief set out in the Act. 30. Defendants have also violated various provisions of the Texas Business and Commerce Code § 17.46 (b) including but not limited to: a. 17.46 (b)(13) - Knowingly making false or misleading statements of fact concerning the need for parts, replacement, or repair service; b. 17.46 (b)(22) - representing that work or services had been performed, when the work or services were not performed c. 17.46 (b)(24) – failing to disclose information concerning goods or services which were known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed. 31. The above violations of Texas Business and Commerce Code § 17.46 (b) were a producing cause of Plaintiffs’ damages as hereinafter set forth and were committed knowingly, and maliciously. 5 B. Fraud by Nondisclosure, Fraud in the Inducement and Statutory Fraud 32. Defendants made representations to Plaintiffs which were material and false. When the Defendants made such representations, Defendant knew them to be false, and made the representations maliciously with knowledge of their falsity. Defendant made these representations to Plaintiffs with the intent that Plaintiffs act on them. Plaintiffs relied on the false representations made by Defendants. The representations by Defendant have caused Plaintiffs’ damages described herein. 33. The actions and omissions of the Defendants constitute common law fraud, fraudulent inducement, and fraud by nondisclosure, which were the proximate cause of damages suffered by Plaintiffs, as described further herein. C. Breach of Contract 34. Plaintiffs entered into Contract to purchase the Property from Jamera as a new custom built home. 35. Jamera had no intention to honor the contract, as they knew construction was already under way before Plaintiffs chose their floor plan. 36. Jamera failed to provide a habitable home that complies with the code requirements of the State of Texas. 37. Strucsure failed to honor their warranty. 38. Defendants’ failure to deliver under the contract with Plaintiffs was a breach of contract that was a proximate cause of the damages of which Plaintiffs complain. D. Negligence 39. Jamera was negligent, at best, when constructing the Property. 40. Defendants were negligent, at best, in their advertising. 6 41. The Defendants negligence was a proximate cause of the Plaintiffs damages as described herein. VI. DAMAGES 42. As a consequence of Defendants’ wrongful acts described above, Plaintiffs have suffered actual and consequential damages. Plaintiffs seek general and special damages. Plaintiffs request and are entitled to costs of Court, and pre- and post- judgment interest at the maximum rate agreed to by the parties or permitted by law, pursuant to Texas law. 43. Plaintiffs plead exemplary damages, including damages for mental distress and anguish, on all causes of action. Defendants committed the aforementioned acts with the kind of willfulness, wantonness, and/or malicious intent for which the law allows the imposition of exemplary damages. 44. Plaintiffs estimate the cost of remediating the Property to be over $300,000.00. Remediating the Property is the appropriate remedy as it will put Plaintiffs in the position they would have been if not for the Defendants wrongful acts. 45. Due to the presence of toxic mold, Defendant owes Plaintiffs the cost of relocation. 46. Defendant is liable to Plaintiffs for the value of the furniture and belongings in the Property that need to be replaced. 47. Defendants deceptive trade practice and fraud led to the proliferation of toxic mold in the Property, which may have caused long term personal injury to Plaintiffs. Defendants are liable for past and future medical expenses to treat the symptoms of toxic mold exposure, as well as for pain and suffering and mental anguish. VII. CONDITIONS PRECEDENT AND RULE 47 STATEMENT 7 48. All conditions precedent to the filing of this action have been performed, have occurred or been waived. Pursuant to Rule 47 of the Texas Rules of Civil Procedure, Plaintiffs state they seek monetary relief over $1,000,000. VIII. REQUEST FOR DISCLOSURE 49. Pursuant to Texas Rule of Civil Procedure 194, Plaintiffs request that Defendants disclose, within 30 days of the service of this request, the information or material described in Rule 194.2, subsections (a) – (l) of the Texas Rules of Civil Procedure. IX. JURY REQUEST 50. Pursuant to Rule 216 of the Texas Rules of Civil Procedure, Plaintiffs request a trial by jury and will tender the appropriate fee. X. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants be cited to appear and answer herein and that, upon trial, Plaintiffs receive Judgment as follows: a) Actual and economic damages, including but not limited to the costs of repair and replacement and past and future medical expenses; b) Additional damages as provided by the DTPA: c) Costs of suit, including reasonable legal expenses; d) Reasonable and necessary attorney fees, as provided by the DTPA and the Civil Practice and Remedies Code; e) Pre- and post- judgment interest at the maximum rate provided by law; f) Exemplary Damages; g) Post-judgment discovery and collection in the event execution on the judgment is necessary; and 8 h) Any and all other relief the Court deems appropriate in an amount within the jurisdictional limits of this Court Respectfully submitted, CHOATE & ASSOCIATES ____________________________________ Lawrence Chang State Bar No. 24072892 1000 Westbank Dr., Building #1 Austin, Texas 78746 Telephone: (512) 297-9124 Facsimile: (512) 330-0286 Law.Chang@choateaustin.com 9