On May 01, 2017 a
Centex Homes Inc Answer and Answer and Counterclaim of Proper Party Defendant Pulte Homes of Texas LP
was filed
involving a dispute between
Luxury Baths By Arrow,
and
Centex Homes Inc,
for Debt/Contract - Debt/Contract
in the District Court of Harris County.
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CAUSE NO. 2017-28889
LUXURY BATHS BY ARROW IN THE DISTRICT COURT
Plaintif ,
§ 152nd JUDICIAL DISTRICT
CENTEX HOMES, INC.
Defendant. HARRISCOUNTY, TEXAS
CENTEXHOME S, INC. ANSWERAND ANSWER AND COUNTERCLAIM OF
PROPER PARTY DEFENDANT PULTE HOMES OF TEXAS, LP.
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant Centex Homes Inc. (“Centex”) files this Answer to Plaintiff’s Original Petition
Pulte Homes of Texas, LP(“Pulte”) files this Answer to Plaintiff’s Original Petitio n as the proper
party defendant and files its Counterclaim against Plaintiff.
GENERAL DENIAL
Centex and Pulte deny each and every allegation made in Plaintiff’s Original Petition, all
and singular, and demands strict proof thereof as required by the Constitution, Statutes, and Laws.
CENTEX HOMES, INC.IS NOT THE PROPER PA RTY DEFENDANT
Plaintiff entered into a Master Trade Agreement with Pulte to provide labor and materials
for homes built by Pulte. Pulte is the proper party defendant. entex Homes, Inc. does not contract
with trades or homebuyers.
DENIAL OF ACCOUNT
Defendants deny the account on which aintiff files suit because not every item of the
account is just or true. Plaintiff’s accounting attached to its petition varies from the invoices paid
by Pulte and cannot be reconciled with Pulte’s regarding the amount due to Plaintiff.
Further, Plaintiff’ accounting includes upgraded products installed by Plaintiff which
were not authorized by Pulte and which were in direct contradiction to the products specified and
pricing agreed to by Plaintiff in the Master Trade Agreement (“Agreement”) and Scopes of Work
issued pursuant to the Agreement. Accordingly, the accounton which Plai ntiff filed suit inclues
items that are no in accordance with the parties’ Agreement.
Further, the account is not due. Pursuant to Section 18.6 of the Agreement, Pulte is entitled
to stop all payments to Plaintiff if Plaintiff refuses to perform warranty work related to defective
work and/or materials as required by Section 14 of the Agreement. Plaintiff refused to perform
warranty work and Pulte exercised its right to stop all payments. No monies are presently due to
Plaintiff until Plaintiff’s breaches are resolved.
Further, due to Plaintiff’s refusal to perform its warranty work, in accordance with Section
14.3 of the Agreement, Pulte was required to hire other contractors to repair or replace Plaintiff’s
defective work or materials. Plaintiff is contractually obligated to reimburse Pulte for all costs
related thereto.
IV.
COUNTERCLAIMBREACH OF CONTRACT
Under the Agreement between Plaintiff and Pulte, Plaintiff is required to promptly repair
defective work and/or materials at their sole cost and expense. Plaintiff failed to perform warranty
work after notice by Pulte which constitutes a breach of contract. Pulte incurred costs to perform
the warranty work that Plaintiff refused to performBy way of counterclaim, Pulte seeks
reimbursement for all its costs and attorney’s fees pursuant to Section 29.7 of the Agreement and
under Chapter 38 of the Texas Civil Practice and Remedies code. Damages to Pulte to accrue as
Plaintiff continued
SPECIFIC DENIALS
The Texas Trust Fund Statute has no application to this dispute. Pulte is not a trustee under
the statute.
The Prompt Pay Act has no application to this dispute. The Agreement between the parties
permits Pulte to stop payment due to Plaintiff’s breach of its contractual warranty obligations.
Further, the Act provides for withholding of payment for a good faith dispute.
There is no statutory basis for the recovery of attorney’s fees by Plaintiff against Pulte.
There is basis for the recovery of pre judgment interest at the rate of 18% per year as
pled by Plaintiff and the prayer for such interest is usurious.
VI.
JURY DEMAND
Pulte demands a jury trial and tenders the appropriate fee with this answer.
VII.
REQUEST FOR DISCLOSU
Under Texas Rule of Civil Procedure 194, Pulte requests that Plaintiff disclose, within 30
days of the service of this request, the information or material described in Rule 194.2.
HEREFORE, Centex Homes, Inc. prays that t be dismissed from this matter and Pulte
Homes of Texas, LP prays, upon hearing, judgment be rendered that Plaintiff take nothing on it
claims, that Pulte be awarded its damages under its counterclaim, and that Pulte recover its
attorney’s fees and cost and such other and further relief to which it may show itself justly
entitled.
Respectfully submitted,
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite
San Antonio, Texas 78257
Telephone: (210) 447
Facsimile: (210) 447
Annalyn G. Smith
State Bar No. 18532500
asmith@sr llp.com
ATTORNEYS FOR CENTEX HOMES INC.
and PULTE HOMES OF TEXAS, LP
CERTIFICATE OF SERVI
I hereby certify that on the 29th day of June, a true and correct copy of this document
wasserved via mailand via el ectronic service on:
Mr.Preston C. Goodwin
GOODWIN & Harrison, L.L.P.
P. O. Box 8278
The Woodlands, Texas 7
preston@goodwin harrison.com
Annalyn G. Smith
Document Filed Date
June 29, 2017
Case Filing Date
May 01, 2017
Category
Debt/Contract - Debt/Contract
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CAUSE NO. 2017-28889 LUXURY BATHS BY ARROW IN THE DISTRICT COURT Plaintif , § 152nd JUDICIAL DISTRICT CENTEX HOMES, INC. Defendant. HARRISCOUNTY, TEXAS CENTEXHOME S, INC. ANSWERAND ANSWER AND COUNTERCLAIM OF PROPER PARTY DEFENDANT PULTE HOMES OF TEXAS, LP. TO THE HONORABLE JUDGE OF SAID COURT: Defendant Centex Homes Inc. (“Centex”) files this Answer to Plaintiff’s Original Petition Pulte Homes of Texas, LP(“Pulte”) files this Answer to Plaintiff’s Original Petitio n as the proper party defendant and files its Counterclaim against Plaintiff. GENERAL DENIAL Centex and Pulte deny each and every allegation made in Plaintiff’s Original Petition, all and singular, and demands strict proof thereof as required by the Constitution, Statutes, and Laws. CENTEX HOMES, INC.IS NOT THE PROPER PA RTY DEFENDANT Plaintiff entered into a Master Trade Agreement with Pulte to provide labor and materials for homes built by Pulte. Pulte is the proper party defendant. entex Homes, Inc. does not contract with trades or homebuyers. DENIAL OF ACCOUNT Defendants deny the account on which aintiff files suit because not every item of the account is just or true. Plaintiff’s accounting attached to its petition varies from the invoices paid by Pulte and cannot be reconciled with Pulte’s regarding the amount due to Plaintiff. Further, Plaintiff’ accounting includes upgraded products installed by Plaintiff which were not authorized by Pulte and which were in direct contradiction to the products specified and pricing agreed to by Plaintiff in the Master Trade Agreement (“Agreement”) and Scopes of Work issued pursuant to the Agreement. Accordingly, the accounton which Plai ntiff filed suit inclues items that are no in accordance with the parties’ Agreement. Further, the account is not due. Pursuant to Section 18.6 of the Agreement, Pulte is entitled to stop all payments to Plaintiff if Plaintiff refuses to perform warranty work related to defective work and/or materials as required by Section 14 of the Agreement. Plaintiff refused to perform warranty work and Pulte exercised its right to stop all payments. No monies are presently due to Plaintiff until Plaintiff’s breaches are resolved. Further, due to Plaintiff’s refusal to perform its warranty work, in accordance with Section 14.3 of the Agreement, Pulte was required to hire other contractors to repair or replace Plaintiff’s defective work or materials. Plaintiff is contractually obligated to reimburse Pulte for all costs related thereto. IV. COUNTERCLAIMBREACH OF CONTRACT Under the Agreement between Plaintiff and Pulte, Plaintiff is required to promptly repair defective work and/or materials at their sole cost and expense. Plaintiff failed to perform warranty work after notice by Pulte which constitutes a breach of contract. Pulte incurred costs to perform the warranty work that Plaintiff refused to performBy way of counterclaim, Pulte seeks reimbursement for all its costs and attorney’s fees pursuant to Section 29.7 of the Agreement and under Chapter 38 of the Texas Civil Practice and Remedies code. Damages to Pulte to accrue as Plaintiff continued SPECIFIC DENIALS The Texas Trust Fund Statute has no application to this dispute. Pulte is not a trustee under the statute. The Prompt Pay Act has no application to this dispute. The Agreement between the parties permits Pulte to stop payment due to Plaintiff’s breach of its contractual warranty obligations. Further, the Act provides for withholding of payment for a good faith dispute. There is no statutory basis for the recovery of attorney’s fees by Plaintiff against Pulte. There is basis for the recovery of pre judgment interest at the rate of 18% per year as pled by Plaintiff and the prayer for such interest is usurious. VI. JURY DEMAND Pulte demands a jury trial and tenders the appropriate fee with this answer. VII. REQUEST FOR DISCLOSU Under Texas Rule of Civil Procedure 194, Pulte requests that Plaintiff disclose, within 30 days of the service of this request, the information or material described in Rule 194.2. HEREFORE, Centex Homes, Inc. prays that t be dismissed from this matter and Pulte Homes of Texas, LP prays, upon hearing, judgment be rendered that Plaintiff take nothing on it claims, that Pulte be awarded its damages under its counterclaim, and that Pulte recover its attorney’s fees and cost and such other and further relief to which it may show itself justly entitled. Respectfully submitted, SCHMOYER REINHARD LLP 17806 IH 10 West, Suite San Antonio, Texas 78257 Telephone: (210) 447 Facsimile: (210) 447 Annalyn G. Smith State Bar No. 18532500 asmith@sr llp.com ATTORNEYS FOR CENTEX HOMES INC. and PULTE HOMES OF TEXAS, LP CERTIFICATE OF SERVI I hereby certify that on the 29th day of June, a true and correct copy of this document wasserved via mailand via el ectronic service on: Mr.Preston C. Goodwin GOODWIN & Harrison, L.L.P. P. O. Box 8278 The Woodlands, Texas 7 preston@goodwin harrison.com Annalyn G. Smith