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wr. PT
2
Se cr,
NO. 2005-4 va $4 9-9 4 ee
aw 20
MUSAB ZUBI ved go
WLe
Plaintiff ZOe
IN THE DISTRICT COBR -
Vv.
RANDAL DAVIS, HARRIS COUNTY, TEXAS
GT LEACH CONSTRUCTION,
EMPIRE VP, L.P., and
PORTLAND CORPORATION
Defendants
Or \euniciat DISTRICT
Pl LAINTI IFF’S ORIGINAL PETITION, REQUEST FOR DISCL AND
NOTICE THAT DOCUMENTS WILL BE USED AT TRIAL
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW MUSAB ZUBI, hereinafter referred to as “Plaintiff”, complaining
of RANDAL DAVIS, GT LEACH, EMPIRE VP, L.P., and PORTLAND
CORPORATION, hereinafter referred to as “Defendants”, for cause of action, and files
this Original Petition, and would respectfully show unto the Court the following:
DISCOVERY LEVEL
1 The Plaintiff pleads that discovery should be conducted in accordance with a
tailored discovery plan Level 3 under Texas Civil Procedure Rule 190.4.
ARTIES AND SERVICE OF CITATION
2. Plaintiff MUSAB ZUBI is an individual, residing in Harris County, Texas.
3 Defendant Randall Davis can be served through his registered agent at 1210 West
Clay Road, Suite 10, Houston, Texas 77019, or wherever else he be found.
’S MEMO!
‘This instrumen is of
t
at the time of imaging
4 Defendant GT Leach Construction was the general contractor on the building in
question. GT Leach Construction can be served through its registered agent at 1210 West
Clay Road, Suite 11, Houston, Texas 77019, or wherever else it may be found.
5. Defendant Empire VP, L.P. can be served through its registered agent at 1210
West Clay, Suite 10, Houston, Texas 77019, or wherever else it may be found.
6. Defendant Portland Corporation can be served through its registered agent at 1210
West Clay, Suite 10, Houston, Texas 77019, or where ever else it may be found.
VENUE & JURISDICTION
7. This court has personal jurisdiction over the defendants because they either reside
in Texas or conduct business in Texas, and because they have continuous and systematic
contacts with Texas. This court has subject matter jurisdiction over this claim because
the amount in controversy exceeds the court’s jurisdictional minimum.
8 Venue is proper in Harris County, Texas because certain defendants reside in
Harris County, Texas and all or a substantial part of the events which gave rise to this
claim occurred in Harris County, Texas.
BACKGROUND FACTS
9. On or about May 20, 2005, Mr. Musab Zubi entered into a binding Purchase
Contract with Defendants Randal Davis, Empire VP, L.P., and Portland Corporation for
the purchase of Unit 201 of the Empire Condominium located at 5005 Hidalgo St,
Houston, Texas 77056. Mr. Zubi closed on said unit on January 24, 2007.
10. On January 19, 2007, prior to closing, pursuant to Section 10(c) of the Purchase
Contract, Mr. Zubi prepared a well documented “punch list” of items that needed to be
repaired, replaced or required other work. This list was then provided to the Defendants.
Per the terms of the Contract, the Defendants were required to complete the items on the
punch list within thirty (30) business days. Despite assurances, promises, and other
representations by the Defendants, countless identified items were never completed or
unnecessarily delayed. The Defendants’ poor performance and failure to complete the
identified tasks is a clear breach of the Purchase Contract.
11. Section 10(c) of the Purchase Contract states that the general contractor of the
Seller shall complete the final punch list items within thirty (30) business days after the
date of closing or the date of the punch list walkthrough. Section 10 (c) also states that
seller shall be liable to purchaser for the cash sum of $100.00 per day for each day the
final punch list items are not complete. Mr. Zubi conducted his walk through and closed
on the property on January 24, 2007. Pursuant to the Purchase Contract, March 6, 2007
was the date in which all items on the punch list should have been completed and
addressed.
12. However, to date, Defendants have yet to complete the items identified on the
punch list, and the liquidated damages continue to accrue. Due to the failure, neglect and
lack of diligence among Randall Davis, GT Leach, Empire VP, L-P., Portland
Corporation and its agents and contractors, Mr. Zubi has been damaged
and seeks all
available remedies under Texas law and under specific terms of the Purchase Contract,
including the recovery of his attorney’s fees and costs.
‘ ‘-
FIRST CAUSE OF ACTION:
BREACH OF CONTRACT
13. Plaintiff has fully performed its obligations under the contract. The Plaintiff
entered into a Purchase Contract with the Defendants and, to date, the Defendants have
not abided by said contract. According to the signed and agreed upon Purchase Contract,
the items in the final Punch List were to be addressed by the required date of March 6,
2007. According to Section 10(c) of the Purchase Contract, the General Contractor of the
Seller is required to address the purchaser’s complaints within thirty (30) business days.
Since the Punch List was not addressed within in the allotted time period, the seller is
liable for damages. The Defendants have breached the contract, without legal excuse,
and failed to perform all promises that form all or part of the agreement. As a result of
the Defendants’ breach of contract, Plaintiff has sustained financial harm and has lost the
benefits expected to be received from the contract if the Defendants had performed as
promised.
SECOND CAUSE OF ACTION:
VIOLATION OF THE TEXAS DECEPTIVE TRADE PRACTICES ACT
14. The Texas Deceptive Trade Practices-Consumer Protection Act protects
consumers against false, misleading, and deceptive business practices, unconscionable
actions, breaches of warranty, and provides efficient and economical procedures to secure
such protection. The Texas Deceptive Trade Practices-Consumer Protection Act is
designed to protect consumers from certain acts or practices in the conduct of any trade
or commerce; in this case Unit 201 of Empire Condominiums represents a sale of
property and thus, should be protected by the act. The act also assures the Plaintiff that
+e
the property purchased shall be in good condition and meet the all the standards outlined
in the Purchase Contract.
THIRD CAUSE OF ACTION:
BREACH OF IMPLIED WARRANTIES OF HABITABILITY
15. Plaintiff makes the claim that the Defendants did not meet the requirements of the
Implied Warranties of Habitability. Numerous examples are provided on the prepared
Punch List.
FOURTH CAUSE OF ACTION:
BREACH OF LIMITED WARRANTY OF DEFECTS, WORKMANSHIP, AND
MATERIALS
16. The purchaser of Unit 201 of the Empire Condominium, Plaintiff Musab Zubi,
makes claim that the above mentioned Defendants did in fact commit a Breach of
Limited Warranty of Defects, Workmanship, and Materials. The Plaintiff prepared an
adequate, legitimate punch list outlining the problems discovered in the condominium in
question. The contractor, as well as the other Defendants, implied that the residence was
constructed in a good workmanlike manner.
GENERAL DAMAGES
17. Plaintiff Musab Zubi has damages of $21, 400.00, per the liquidated damages
clause, and eight months of mortgage payments and HOA dues, totaling $24,000.00, plus
mental anguish, pre and post judgment interest, court costs, and reasonable and necessary
attorney’s fees and expenses.
CONCLUSION:
18. Plaintiff Musab Zubi requests that the court grant judgment in his favor against
Defendants, for their actual, consequential, special, and incidental damages, reasonable
attorney’s fees, exemplary and punitive damages, disgorgement, costs of court, pre- and
post-judgment interest, and all other relief to which they are entitled.
x.
REQUEST FOR DISCLOSURE
24. Pursuant to Rule 194, all Defendants are requested to disclose, within 51 days of
receipt of this request, the information or material described in Texas Rule of Civil
Procedure 194.2 (a) through (1).
NOTICE THAT DOCUMENTS WILL BE USED AT TRIAL
25. Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, Plaintiff hereby
gives notice that all documents produced by Defendant will be used at any pretrial
proceeding or at the trial of this case.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that Defendants
be cited to appear and answer, and that on final trial, Plaintiff have the following:
1 Judgment against the Defendants for a sum established by proof at trial
that is within the jurisdictional limits of this Court;
Actual and compensatory damages;
Judgment for reasonable attorneys’ fees as specified above;
Prejudgment interest as provided by law;
Post judgment interest as provided by law;
Costs
of suit; and
All other damages, general and special, in law and in equity to which
Plaintiff may show himself justly entitled to.
we
Respectfully submitted
ESSMYER, TRITICO & RAINEY, L.L.P.
By:
Michael M. Essmyer
4.
State Bar No. 06672400
3111 Center Street
Houston, Texas 77007
(713) 869-1155
(713) 869-8957 (Facsimile)
ATTORNEY FOR PLAINTIFF
MUSAB ZUBI
Preview
wr. PT 2 Se cr, NO. 2005-4 va $4 9-9 4 ee aw 20 MUSAB ZUBI ved go WLe Plaintiff ZOe IN THE DISTRICT COBR - Vv. RANDAL DAVIS, HARRIS COUNTY, TEXAS GT LEACH CONSTRUCTION, EMPIRE VP, L.P., and PORTLAND CORPORATION Defendants Or \euniciat DISTRICT Pl LAINTI IFF’S ORIGINAL PETITION, REQUEST FOR DISCL AND NOTICE THAT DOCUMENTS WILL BE USED AT TRIAL TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW MUSAB ZUBI, hereinafter referred to as “Plaintiff”, complaining of RANDAL DAVIS, GT LEACH, EMPIRE VP, L.P., and PORTLAND CORPORATION, hereinafter referred to as “Defendants”, for cause of action, and files this Original Petition, and would respectfully show unto the Court the following: DISCOVERY LEVEL 1 The Plaintiff pleads that discovery should be conducted in accordance with a tailored discovery plan Level 3 under Texas Civil Procedure Rule 190.4. ARTIES AND SERVICE OF CITATION 2. Plaintiff MUSAB ZUBI is an individual, residing in Harris County, Texas. 3 Defendant Randall Davis can be served through his registered agent at 1210 West Clay Road, Suite 10, Houston, Texas 77019, or wherever else he be found. ’S MEMO! ‘This instrumen is of t at the time of imaging 4 Defendant GT Leach Construction was the general contractor on the building in question. GT Leach Construction can be served through its registered agent at 1210 West Clay Road, Suite 11, Houston, Texas 77019, or wherever else it may be found. 5. Defendant Empire VP, L.P. can be served through its registered agent at 1210 West Clay, Suite 10, Houston, Texas 77019, or wherever else it may be found. 6. Defendant Portland Corporation can be served through its registered agent at 1210 West Clay, Suite 10, Houston, Texas 77019, or where ever else it may be found. VENUE & JURISDICTION 7. This court has personal jurisdiction over the defendants because they either reside in Texas or conduct business in Texas, and because they have continuous and systematic contacts with Texas. This court has subject matter jurisdiction over this claim because the amount in controversy exceeds the court’s jurisdictional minimum. 8 Venue is proper in Harris County, Texas because certain defendants reside in Harris County, Texas and all or a substantial part of the events which gave rise to this claim occurred in Harris County, Texas. BACKGROUND FACTS 9. On or about May 20, 2005, Mr. Musab Zubi entered into a binding Purchase Contract with Defendants Randal Davis, Empire VP, L.P., and Portland Corporation for the purchase of Unit 201 of the Empire Condominium located at 5005 Hidalgo St, Houston, Texas 77056. Mr. Zubi closed on said unit on January 24, 2007. 10. On January 19, 2007, prior to closing, pursuant to Section 10(c) of the Purchase Contract, Mr. Zubi prepared a well documented “punch list” of items that needed to be repaired, replaced or required other work. This list was then provided to the Defendants. Per the terms of the Contract, the Defendants were required to complete the items on the punch list within thirty (30) business days. Despite assurances, promises, and other representations by the Defendants, countless identified items were never completed or unnecessarily delayed. The Defendants’ poor performance and failure to complete the identified tasks is a clear breach of the Purchase Contract. 11. Section 10(c) of the Purchase Contract states that the general contractor of the Seller shall complete the final punch list items within thirty (30) business days after the date of closing or the date of the punch list walkthrough. Section 10 (c) also states that seller shall be liable to purchaser for the cash sum of $100.00 per day for each day the final punch list items are not complete. Mr. Zubi conducted his walk through and closed on the property on January 24, 2007. Pursuant to the Purchase Contract, March 6, 2007 was the date in which all items on the punch list should have been completed and addressed. 12. However, to date, Defendants have yet to complete the items identified on the punch list, and the liquidated damages continue to accrue. Due to the failure, neglect and lack of diligence among Randall Davis, GT Leach, Empire VP, L-P., Portland Corporation and its agents and contractors, Mr. Zubi has been damaged and seeks all available remedies under Texas law and under specific terms of the Purchase Contract, including the recovery of his attorney’s fees and costs. ‘ ‘- FIRST CAUSE OF ACTION: BREACH OF CONTRACT 13. Plaintiff has fully performed its obligations under the contract. The Plaintiff entered into a Purchase Contract with the Defendants and, to date, the Defendants have not abided by said contract. According to the signed and agreed upon Purchase Contract, the items in the final Punch List were to be addressed by the required date of March 6, 2007. According to Section 10(c) of the Purchase Contract, the General Contractor of the Seller is required to address the purchaser’s complaints within thirty (30) business days. Since the Punch List was not addressed within in the allotted time period, the seller is liable for damages. The Defendants have breached the contract, without legal excuse, and failed to perform all promises that form all or part of the agreement. As a result of the Defendants’ breach of contract, Plaintiff has sustained financial harm and has lost the benefits expected to be received from the contract if the Defendants had performed as promised. SECOND CAUSE OF ACTION: VIOLATION OF THE TEXAS DECEPTIVE TRADE PRACTICES ACT 14. The Texas Deceptive Trade Practices-Consumer Protection Act protects consumers against false, misleading, and deceptive business practices, unconscionable actions, breaches of warranty, and provides efficient and economical procedures to secure such protection. The Texas Deceptive Trade Practices-Consumer Protection Act is designed to protect consumers from certain acts or practices in the conduct of any trade or commerce; in this case Unit 201 of Empire Condominiums represents a sale of property and thus, should be protected by the act. The act also assures the Plaintiff that +e the property purchased shall be in good condition and meet the all the standards outlined in the Purchase Contract. THIRD CAUSE OF ACTION: BREACH OF IMPLIED WARRANTIES OF HABITABILITY 15. Plaintiff makes the claim that the Defendants did not meet the requirements of the Implied Warranties of Habitability. Numerous examples are provided on the prepared Punch List. FOURTH CAUSE OF ACTION: BREACH OF LIMITED WARRANTY OF DEFECTS, WORKMANSHIP, AND MATERIALS 16. The purchaser of Unit 201 of the Empire Condominium, Plaintiff Musab Zubi, makes claim that the above mentioned Defendants did in fact commit a Breach of Limited Warranty of Defects, Workmanship, and Materials. The Plaintiff prepared an adequate, legitimate punch list outlining the problems discovered in the condominium in question. The contractor, as well as the other Defendants, implied that the residence was constructed in a good workmanlike manner. GENERAL DAMAGES 17. Plaintiff Musab Zubi has damages of $21, 400.00, per the liquidated damages clause, and eight months of mortgage payments and HOA dues, totaling $24,000.00, plus mental anguish, pre and post judgment interest, court costs, and reasonable and necessary attorney’s fees and expenses. CONCLUSION: 18. Plaintiff Musab Zubi requests that the court grant judgment in his favor against Defendants, for their actual, consequential, special, and incidental damages, reasonable attorney’s fees, exemplary and punitive damages, disgorgement, costs of court, pre- and post-judgment interest, and all other relief to which they are entitled. x. REQUEST FOR DISCLOSURE 24. Pursuant to Rule 194, all Defendants are requested to disclose, within 51 days of receipt of this request, the information or material described in Texas Rule of Civil Procedure 194.2 (a) through (1). NOTICE THAT DOCUMENTS WILL BE USED AT TRIAL 25. Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, Plaintiff hereby gives notice that all documents produced by Defendant will be used at any pretrial proceeding or at the trial of this case. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that Defendants be cited to appear and answer, and that on final trial, Plaintiff have the following: 1 Judgment against the Defendants for a sum established by proof at trial that is within the jurisdictional limits of this Court; Actual and compensatory damages; Judgment for reasonable attorneys’ fees as specified above; Prejudgment interest as provided by law; Post judgment interest as provided by law; Costs of suit; and All other damages, general and special, in law and in equity to which Plaintiff may show himself justly entitled to. we Respectfully submitted ESSMYER, TRITICO & RAINEY, L.L.P. By: Michael M. Essmyer 4. State Bar No. 06672400 3111 Center Street Houston, Texas 77007 (713) 869-1155 (713) 869-8957 (Facsimile) ATTORNEY FOR PLAINTIFF MUSAB ZUBI