Motion-Secondary: AGGREGATE TECHNOLOGIES INC vs. GOLDSHIRE DEVELOPERS LLC

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                CAUSE          NO.   2012 34382


AGGREGATE       TECHNOLOGIES,            INC.                    IN THE DISTRICT COURT OF


                                                                 HARRIS     COUNTY, TEXAS


GOLDSHIRE      DEVELOPERS,        LLC,            §
etal                                                             152nd    J UDICIAL DISTRICT


                    DEFENDANTS’ RESPONSE IN OPPOSITION TO
                        MOTION FOR ENTRY OF J UDGMENT

       Defendants   submit that plaintiff is not entitled to entry of judgment for the full

amount it has requested, and in support would show:

          No Breach of Contract J udgment for Payment Application No. 8

       Defendants agree that, based upon the jury’s verdict (without admitting or co

ceding that the verdict itself was       proper), ATI would         be entitled to judgment for the

amounts    represented   by its    ayment         Applications   Nos.    6 and   7 in the   amount of

$98,831.65However, for the reasons set forth in Defendants’ Motion to Disregard J ury

Answers and forJ udgment N.O.V. (which is incorporated by reference for all purposes),

ATI is not entitled to judgment on its breach of contract claim for               ayment Application

No. 8 because ATI's President, Ronnie W                , conclusively admitted that there was no

agreement by Goldshire to pay those amounts.                 Without an agreement to pay those

amounts, (which exceed the amount of the original agreed contract price) there was no

contract to pay any additional amounts for the additional work done by ATI on Bents 38

and 40. Because there was no contract to pay those amounts, and no jury question was

submi ted that could have attempted to establish the existence of such an agreement,



                                                Page    of
ATI is not entitled to judgment for breach of contract for the amounts           represented   by

Payment       pplication No. 8.

             No Quantum Meruit J udgment for Payment Application No. 8

        ATI is further not entitled to judgment on its quantum meruit claim for Payment

Application No. 8 because the subject matter of that payment application was already

the subject of its express contract with Goldshire. It was undisputed that ATI was obl

gated by its agreement with Goldshire to completely remove Bents 38 and 40, including

the footings. It is fu ther undisputed that the work and associated charges represented

by Pa    ment A    plic tion No. 8 were all related to costs incurred by ATI in connection

with the remo     al of Bents 38 and 40. As such, the subject matter of payment application

No. 8 was      aready   included within the express     contract between     ATI and Goldshire.

      ment        cation No. 8 is nothing more or less than an attempt to recover cost ove

runs by ATI for work it was already required to complete. Even if, as Mr. Wills admitted,

Gol   shire did not agree to pay these additional costs, the work was still already required

to be co     pleted under the original contract. No quantum meruit claim exists merely b

cause the work to be completed cost ATI more than the original contract price.

             No Payment Bond J udgm            ent for Payment Application No. 8

        Finally, ATI is not entitled to any judgment on its payment bond claim. Payment

bonds are limited only to an undertaking by the sureties to pay the amount of the co

tract price owed     to the claimant. The    payment bond    does   not apply to or extend      to

amounts      not due and owing    under the construction    contract. ATI admitted that there

was no contract modification or agreement to pay the amount of Payment Application

No. 8, which is undisputedly more than the amount of the origina           contract price and the



                                            Page   of
amount that the jury determined was a perfected bond claim. The payment bond statute

(or, to be more precise, Chapter 2253 of the Texas Government Code) does not apply

or extend to quantum meruit recoveries as a matter of law. Where there is no basis fora

breach of contract claim to ATI, its quantum meruit/compensable work claim may be e

tered, if at all, only as against Goldshire, and not against the surety defendants on the

payment bond.

         Defendants accordingly pray that any judgment in favor of ATI be limited only to

the amounts      represented by Payment Applications Nos. 6 and 7; that no judgment be

entere    in favor of ATI on the payment bond claim against any of the bond/surety d

fendants; and that any attorneys’ fees, interest, and costs be limited in accordance with

that judgment.

                                          Respectfully submitted,

                                                       FFICE        ATTE.   UBIN

                                                 /s/ MattE. Rubin
                                                 Matt E. Rubin
                                                 State Bar No. 17361620
                                                 12 Greenway Plaza, Suite 1100
                                                 Houston, TX 77046 1201
                                                 Telephone: 713 335 0300
                                                 Facsimile: 713 425 4999
                                                 Email: mrubin@ mrubinlaw.com

                                                 ATTORNEY      FOR DEFENDANTS




                                        Page    of
Certificate of Service

        | hereby certify that on the         day of December, 2014, a true and correct
copy of the foregoing was served upon counsel of record by electronic delivery through
the State of Texas e filing system, addressed as follows:


William B. Westcott
William B. Davis
ANDREWS MYERS, P.C.
3900 Essex Lane, Suite 800
Houston, TX 77027
Attorneys for ATI

                                                   /s/ MattE. Rubin




                                      Page    of