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Received and E-Filed for Record
6/3/2019 9:57 AM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Megan Shiflett
Cause No. 19-05-06051
ZION BUILDERS LIMITED LIABILITY § IN THE DISTRICT COURT
COMPANY D/B/A ZION BUILDERS §
Plaintiff, §
§
§
v. § 284TH JUDICIAL DISTRICT
§
ERIK GARDUNO A/K/A ERIC §
GARDUNO AND KAREN GARDUNO §
Defendants. § OF MONTGOMERY COUNTY, TEXAS
DEFENDANTS’ ORIGINAL ANSWER
TO THE HONORABLE JUDGE OF THIS COURT:
COMES NOW DEFENDANTS, Eric Garduno and Karen Garduno (collectively the
“Gardunos” or Defendants), and file this their Original Answer to Zion Builder’s (“Plaintiff”)
Original Petition, and would show the Court as follows:
I.
GENERAL DENIAL
1. Pursuant to Rule 92 of the Texas Rules or Civil Procedure, Defendants deny each
and every, all and singular, allegations contained in Plaintiff’s Original Petition. Defendants
demand strict proof of Plaintiff’s claims by a preponderance of the evidence and/or by clear and
convincing evidence as required by the laws and constitutions of the State of Texas and the United
States.
II.
AFFIRMATIVE DEFENSES
2. Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Defendants assert the
defense of offset. Defendants are entitled to an offset to any recovery awarded to Plaintiff for any
and all payments or discounts, to or for Plaintiff or of which he benefits;
3. Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Defendants assert that
Plaintiff’s claims are barred in whole or in part, by waiver;
4. Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Defendants asserts that
Plaintiff’s claims are barred in whole or in part, by unclean hands;
5. Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Defendants assert that
Plaintiff’s claims are barred, in whole or in part, because Plaintiff failed to mitigate its damages,
if any;
6. Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Defendants assert that
Plaintiff’s claims are barred in whole or in part, by accord and satisfaction;
7. Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Defendants assert that
Plaintiff’s claims are barred in whole or in part, by estoppel;
8. Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Defendants assert that
Plaintiff’s claims are barred in whole or in part, by fraud.
9. Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Defendants assert that
Plaintiff’s claims are barred in whole or in part, by payment release;
10. Defendants reserve the right to amend this Answer to assert other and further
defenses.
III.
REQUESTS FOR DISCLOSURE
11. Pursuant to Texas Rule of Civil Procedure Rule 194, Plaintiff is requested to
disclose, within 30 days of service of this request, the information or material described in Rule
194.2(a) – (l).
IV.
NOTICE
12. Pursuant to Texas Rule of Civil Procedure 193.7, Defendants hereby give notice to
Plaintiff that any and all documents produced may be used against Plaintiff at any pre-trial
proceeding and/or trial of this matter without the necessity of authenticating the documents.
V.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants Eric Garduno and Karen
Garduno respectfully request that Plaintiff takes nothing by reason of this action, and for such
other and further relief to which Defendants may show themselves justly entitled.
Respectfully submitted,
Johnson & Associates
Attorneys at Law, PLLC
By: /s/ Christopher L. Johnson
Christopher L. Johnson
Texas State Bar No. 24069999
chris@Johnson-Attorneys.com
Justin M. Kornegay
Texas State Bar No. 24077668
justin@Johnson-Attorneys.com
Morgan A. Jenkins
Texas State Bar No. 24106141
morgan@Johnson-Attorneys.com
Jimmy N. Smith
Texas State Bar No. 24103303
jimmy@Johnson-Attorneys.com
303 East Main Street, Suite 100
League City, Texas 77573
Main:281-895-2410
Fax: 409-263-1020
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served upon
the following counsel of record by certified mail, return receipt requested, facsimile, and/or
electronic service on this Monday, June 3, 2019:
Via Electronic Service:
Jacqueline Lucci Smith
Joseph K. Watts
Lucci Smith Law, PLLC
2550 Gray Falls Drive, Suite 395
Houston, Texas 77077
Tel: 832-494-1700
Fax: 832-494-1426
JLSmith@LucciSmithLaw.com
JWatts@LucciSmithLaw.com
/s/ Christopher L. Johnson
Christopher L. Johnson
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Received and E-Filed for Record 6/3/2019 9:57 AM Melisa Miller, District Clerk Montgomery County, Texas Deputy Clerk, Megan Shiflett Cause No. 19-05-06051 ZION BUILDERS LIMITED LIABILITY § IN THE DISTRICT COURT COMPANY D/B/A ZION BUILDERS § Plaintiff, § § § v. § 284TH JUDICIAL DISTRICT § ERIK GARDUNO A/K/A ERIC § GARDUNO AND KAREN GARDUNO § Defendants. § OF MONTGOMERY COUNTY, TEXAS DEFENDANTS’ ORIGINAL ANSWER TO THE HONORABLE JUDGE OF THIS COURT: COMES NOW DEFENDANTS, Eric Garduno and Karen Garduno (collectively the “Gardunos” or Defendants), and file this their Original Answer to Zion Builder’s (“Plaintiff”) Original Petition, and would show the Court as follows: I. GENERAL DENIAL 1. Pursuant to Rule 92 of the Texas Rules or Civil Procedure, Defendants deny each and every, all and singular, allegations contained in Plaintiff’s Original Petition. Defendants demand strict proof of Plaintiff’s claims by a preponderance of the evidence and/or by clear and convincing evidence as required by the laws and constitutions of the State of Texas and the United States. II. AFFIRMATIVE DEFENSES 2. Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Defendants assert the defense of offset. Defendants are entitled to an offset to any recovery awarded to Plaintiff for any and all payments or discounts, to or for Plaintiff or of which he benefits; 3. Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Defendants assert that Plaintiff’s claims are barred in whole or in part, by waiver; 4. Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Defendants asserts that Plaintiff’s claims are barred in whole or in part, by unclean hands; 5. Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Defendants assert that Plaintiff’s claims are barred, in whole or in part, because Plaintiff failed to mitigate its damages, if any; 6. Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Defendants assert that Plaintiff’s claims are barred in whole or in part, by accord and satisfaction; 7. Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Defendants assert that Plaintiff’s claims are barred in whole or in part, by estoppel; 8. Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Defendants assert that Plaintiff’s claims are barred in whole or in part, by fraud. 9. Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Defendants assert that Plaintiff’s claims are barred in whole or in part, by payment release; 10. Defendants reserve the right to amend this Answer to assert other and further defenses. III. REQUESTS FOR DISCLOSURE 11. Pursuant to Texas Rule of Civil Procedure Rule 194, Plaintiff is requested to disclose, within 30 days of service of this request, the information or material described in Rule 194.2(a) – (l). IV. NOTICE 12. Pursuant to Texas Rule of Civil Procedure 193.7, Defendants hereby give notice to Plaintiff that any and all documents produced may be used against Plaintiff at any pre-trial proceeding and/or trial of this matter without the necessity of authenticating the documents. V. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants Eric Garduno and Karen Garduno respectfully request that Plaintiff takes nothing by reason of this action, and for such other and further relief to which Defendants may show themselves justly entitled. Respectfully submitted, Johnson & Associates Attorneys at Law, PLLC By: /s/ Christopher L. Johnson Christopher L. Johnson Texas State Bar No. 24069999 chris@Johnson-Attorneys.com Justin M. Kornegay Texas State Bar No. 24077668 justin@Johnson-Attorneys.com Morgan A. Jenkins Texas State Bar No. 24106141 morgan@Johnson-Attorneys.com Jimmy N. Smith Texas State Bar No. 24103303 jimmy@Johnson-Attorneys.com 303 East Main Street, Suite 100 League City, Texas 77573 Main:281-895-2410 Fax: 409-263-1020 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served upon the following counsel of record by certified mail, return receipt requested, facsimile, and/or electronic service on this Monday, June 3, 2019: Via Electronic Service: Jacqueline Lucci Smith Joseph K. Watts Lucci Smith Law, PLLC 2550 Gray Falls Drive, Suite 395 Houston, Texas 77077 Tel: 832-494-1700 Fax: 832-494-1426 JLSmith@LucciSmithLaw.com JWatts@LucciSmithLaw.com /s/ Christopher L. Johnson Christopher L. Johnson