Motion to Amend in COMPLEX REHAB TECHNOLOGIES L L C vs. JCBC INCORPORATED (D/B/A AC MEDICAL SUPPLY)| Trellis.Law

On March 09, 2018 a Party Discovery was filed involving a dispute between Complex Rehab Technologies L L C, and Ac Medical Supply, Dong, Vilien T, Jcbc Incorporated, for Debt/Contract - Debt/Contract in the District Court of Harris County.

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CAUSE NO. 2018-15819

COMPLEX REHAB TECHNOLOGIES, § IN THE DISTRICT COURT
L.L.C. §

§
VS. § 164 JUDICIAL DISTRICT
§
§
JCBC INCORPORATED §
D/B/A AC MEDICAL SUPPLY AND §
VILIEN T. DONG § HARRIS COUNTY, TEXAS

PLAINTIFF S FIRST AMENDED PETITION
INTERROGATORIES, REQUEST FOR DISCLOSURES, REQUEST FOR
PRODUCTION AND REQUEST FOR ADMISSIONS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Complex Rehab Technologies, L.LC. Plaintiff”) complaining of

JCBC Incorporated d/b/a AC Medical Supply and Vilien T. Dong, ( Defendants ) and

would respectfully show unto this Court as follows:

Plaintiff Affirmatively pleads that it seeks monetary relief aggregating

$100,000.00 or less, including damages of any kind, penalties, costs, expenses, pre-

judgment interest and attorney fees thus seeks to conduct discovery pursuant to Texas

Rule of Civil Procedure 190.2.

Plaintiff is a corporation licensed to conduct business in the State of Texas.

Defendant, JCBC Incorporated d/b/a AC Medical Supply is a Texas corporation

licensed to conduct business in the State of Texas and may be served by service upon its’
Registered Agent, The Estate of James E. Davis located at 13711 Westheimer Road, Suite

J, Houston, Texas 77077. Service of Process is requested at this time.

Defendant Vilien T. Dong, Individually and as registered agent for JCBC

Incorporated d/b/a AC Medical Cupply as Applicant for the Estate of James E. Davis has

entered an appearance herein. A copy of this Amended Petition will be served upon

her/its attorney of record Tammy Tran via e-service.

III.

Venue and jurisdiction are proper in this Court and in this county as Plaintiff’s

principal place of business is in this county.

IV.

On or about February 7, 2017, Defendants entered into a contract with Plaintiff

wherein Plaintiff contracted to provide medical supplies and equipment to Defendants.

Plaintiff has attached a copy contract at issue to this Petition and fully incorporates it as

Exhibit “A-1.” Pursuant to the terms of that contact, Plaintiff provided a customized

power wheelchair to Defendant for and on behalf of Defendants’ patient. Defendants

were obligated to pay Plaintiff for the provision of this medical device and support after

Defendants’ receipt of payment pursuant to the terms of the contract. (See Exhibit “A-1”

Schedule B, paragraph 1). Defendants were required to pay Plaintiff the contractually

agreed upon fees within “10 days of receipt of insurance payment…” (Id.)

Defendants received payment by check number 101370945 in the amount of

$24,796.03 issued on or about September 27, 2017. Defendants received an Explanation

of Benefits confirming payment on this account. (See copy attached hereto as Exhibit “A-

2.”) Defendants did not make payment to Plaintiff pursuant to the terms of the contract.
Defendants have failed and continue to fail to pay Plaintiff for services and

material provided.

Count 1 – Suit on Sworn Account

Plaintiff provided services to Defendants on an open account which Defendants

accepted and became bound to pay Plaintiff its designated charges which were reasonable

and customary for such services.

Plaintiff attaches a record of the account as Exhibits “A-3” and the required

Affidavit as Exhibit “A” and incorporates both for all intents and purposes. The account

accurately sets forth the services that Plaintiff provided to the Defendants, the dates of

service, and the cost of the services that Plaintiff provided. The account represented a

record of the transaction or series of transactions that is similar to records Plaintiff

systematically keeps in the ordinary course of business.

After receipt of the funds, Defendants did not make any payments to Plaintiff.

This claim is just and true, it is due, and all just and lawful offsets, payments, and

credits have been allowed. Plaintiff attaches an Affidavit verifying these facts as Exhibit

“A” and incorporates if by reference.

The principal balance due on the account is $22,812.47.

Plaintiff is entitled to recover reasonable and necessary attorney fees under Texas

Civil Practice & Remedies Code Section 38.001(7) because this is a suit on sworn

account. Plaintiff retained counsel, who presented Plaintiff’s claim to Defendants.

Defendants did not tender the amount owed within thirty (30) days after the claim was

presented.

Count 2 - Breach of Contract
Additionally, or in the alternative to the other counts, as stated above Plaintiff and

Defendants entered into valid and enforceable contracts (see Exhibit “A-1” attached

hereto). Under this contract, Defendants retained the Plaintiff to provide goods and

services to Defendants and agreed to timely pay Plaintiff the full amounts within ten (10)

days from receipt thereof. (Id).

Plaintiff provided the motorized wheelchair and support to Defendants’ patient in

performance of Plaintiff’s contractual obligations.

Defendants breached the contracts by failing to timely pay Plaintiff the monies

due and owing. (See Exhibit “A-1”).

Plaintiff is entitled to recover reasonable attorney fees under Texas Civil Practice

& Remedies Code chapter 38 because this is a suit for breach of contract. Plaintiff

retained counsel, who presented Plaintiff’s claim to Defendants. Defendants did not

tender the amount owed within 30 days after the claim was presented. Plaintiff has

provided written notice and demand for payment to Defendants for Defendants’ breach in

accordance with the terms of the written agreement. Despite Plaintiff’s requests, written

and otherwise, Defendants have continued to breach the terms of the agreement.

Count 3 – Quantum Merit

Additionally, or in the alternative to the other counts, Defendants accepted the

services from Plaintiff without compensating Plaintiff. Plaintiff herein incorporates the

facts stated above. Plaintiff provided Defendant with equipment, support and services.

Defendants had reasonable notice that the Plaintiff expected compensation for the

services it provided. Additionally, Plaintiff submitted invoices to Defendants (See Exhibit

“A-3”). Defendants have failed and continue to fail to pay for such services.
The reasonable value of the services provided is set forth above.

Plaintiff is entitled to recover reasonable and necessary attorney fees under Texas

Civil Practice & Remedies Code Section 38.001 (1) – (3). Plaintiff retained counsel, who

presented Plaintiff’s claim to Defendants. Defendants did not tender the amount owed

within thirty (30) days after the claim was presented.

Count 4 – Fraud

Additionally, or in the alternative to the other counts, Plaintiff alleges that

Defendants’ refusal to pay for the medical device, support and services was fraud.

Plaintiff herein incorporates the facts stated above.

Defendants represented to Plaintiff that they would timely pay Plaintiff for the

device, service and support. Defendants’ representations were false in that the Plaintiff

was never paid for the device, service and support and Plaintiff believes Defendants to

have made this representation on multiple occasions prior to suit being filed.

When the Defendants made the representations, Defendants knew the

representations were false or made the representations recklessly, as a positive assertion,

and without the knowledge of its truth. Defendants made the representations with the

intent that the Plaintiff act on it.

Plaintiff relied on the representations made by Defendants that itwould be paid

for the devices, support and services rendered.

Plaintiff’s reliance on the Defendants’ representations caused injury to the

Plaintiff in that Defendants failed and continue to fail to pay Plaintiff the monies due for

the deposition transcripts.
Plaintiff reasonably expected to be paid for the medical devices, support and

services it performed.

Plaintiff is entitled to recover exemplary damages because of the fraudulent

misrepresentations of the Defendants in that Defendants clearly did not intend to pay

Plaintiff.

All conditions precedent to Plaintiff’s claim for relief have been performed or

have occurred.

VI.

Plaintiff is entitled to recover reasonable and necessary attorney fees under

Texas Civil Practice & Remedies Code chapter 38 because this is a suit for breach of a

written contract.

Plaintiff retained counsel, who presented Plaintiff’s claim to Defendant.

Defendant did not tender the amount owed within 30 days after the claim was presented.

Consequently, Plaintiff is entitled to recover attorney fees pursuant to the Texas Civil

Practice & Remedies Code.
VII.

PLAINTIFF’S WRITTEN DISCOVERY REQUESTS

Plaintiff serves the following Request for Disclosure, Interrogatories, Request for

Production and Request for Admissions pursuant to Rules 194, 196, 197, and 198, Texas

Rules of Civil Procedure. Defendant shall produce the originals or true and correct copies

of the items requested per Rule 194 and 196 at the offices of the undersigned attorney.

Defendant’s responses to these discovery requests are due on or before the expiration of

fifty (50) days after service thereof.

REQUEST FOR DISCLOSURE TO DEFENDANT

a. Provide the correct names of the parties to this lawsuit.

b. Provide the name, address and telephone number of any potential parties.

c. Provide the legal theories and, in general, the factual bases of your claims or
defenses.

d. Provide the amount and any method of calculating economic damages.

e. Provide the name, address, and telephone number of persons having knowledge of
relevant facts, and a brief statement of each identified person's connection with
the case.

f. Provide the following for any testifying expert:

(1) the expert's name, address, and telephone number;

(2) the subject matter on which the expert will testify;

(3) the general substance of the expert's mental impressions and opinions and
a brief summary of the basis for them, or if the expert is not retained by,
employed by, or otherwise subject to your control, documents reflecting
such information;

(4) if the expert is retained by, employed by, or otherwise subject to your
control:
(a) all documents, tangible things, reports, models, or data
compilations that have been provided to, reviewed by, or prepared
by or for the expert in anticipation of the expert's testimony; and

(b) the expert's current resume and bibliography

g. Provide any indemnity and insuring agreements described in Rule 192.3(f).

h. Provide any settlement agreements described in Rule 192.3(g).

i. Provide any witness statements described in Rule 192.3(h).

j. In a suit alleging physical or mental injury and damages from the occurrence that
is the subject of the case, provide all medical records and bills that are reasonably
related to the injuries or damages asserted or, in lieu thereof, an authorization
permitting the disclosure of such medical records and bills.

k. In a suit alleging physical or mental injury and damages from the occurrence that
is the subject of the case, provide all medical records and bills you have obtained
by virtue of an authorization furnished by the requesting party;

l. Provide the name, address and telephone number of any person who may be
designated as a responsible third party.

REQUEST FOR ADMISSIONS

1. Admit you have been sued in the proper capacity.

Response:

2. Admit the document attached to Plaintiff’s Petition as Exhibit “A-1” is a true and
correct copy of the SubContract Agreement.

Response:

3. Admit you, which includes your agents, representative and employees, signed
Exhibit “A-1.”

Response:

4. Admit Exhibit “A-1” states that you would pay Plaintiff within 10 days from your
receipt of insurance payments.

Response:
5. Admit the document attached as Exhibit “A-2” to Plaintiff’s Petition is a true and
correct copy of the Explanation of Benefits you received regarding Mary
Hancock.

Response:

6. Admit you deposited the check in the amount of $22,812.47 into your account.

Response:

7. Admit, after receipt of the funds identified in the Explanation of Benefits attached
to Plaintiff’s Petition as Exhibit “A-2,” that you did not pay Plaintiff the agreed
upon sum pursuant to the contact attached to Plaintiff’s Petition as Exhibit “A-1.”

Response:

8. Admit Plaintiff complied with the terms set forth in Exhibit “A-1.”

Response:

9. Admit Plaintiff issued written demand to you on January 24, 2018.

Response:

10. Admit you did not pay Plaintiff the amount due pursuant to the contract attached
to Plaintiff’s Petition as Exhibit “A-1” after your receipt of the demand sent by
Plaintiff.

Response:

11. Admit you were provided more than thirty days to resolve this matter prior to suit
being filed.

Response:

12. Admit Plaintiff has complied with all conditions precedent to the recovery of
attorney fees.

Response:
13. Admit you received Plaintiff’s invoice attached to Plaintiff’s Petition as Exhibit
A-3.

Response:

14. Admit you did not pay the invoice you received from Plaintiff attached to
Plaintiff’s Petition as Exhibit A-3.

Response:

REQUEST FOR PRODUCTION

1. Please produce a copy of all check registers, banking records, account sheets,
accounting records, deposit slips that reference and show receipt of the check
number 101370945 in the amount of $24,796.03 identified in the Explanation of
Benefits attached to Plaintiff’s Petition as Exhibit “A-2.”

Response:

2. Please produce a copy of all check registers, banking records, account sheets,
accounting records, employee distributions, partnership distributions, payroll or
company expenditures of any kind or nature from the account into which check
number 101370945 in the amount of $24,796.03 identified in the Explanation of
Benefits attached to Plaintiff’s Petition as Exhibit “A-2” was deposited from the
date of deposit through the present.

Response:

3. A full and complete copy of your entire file with regard to all services provided to
and payment received by, through and or on behalf of Mary Hancock.

Response:

4. A copy of all correspondence, including but not limited to documents, email,
letters, facsimiles or call notes, message notes that you have sent to Plaintiff or
received from Plaintiff regarding this lawsuit.

Response:
5. If you did not unqualifiedly admit that the Plaintiff has complied with all
conditions precedent, please attach all documents supporting your contentions that
Plaintiff has not complied with all conditions precedent.

Response:

6. Please produce a copy of check registers, banking records, account sheets,
accounting records, deposit slips that reference and show receipt of the check
attached to Plaintiff’s Request for Admissions as Exhibit “A-2.”

Response:

7. For every account you identified in response to Interrogatory Number 6, please
produce the bank statement for every month from September 1, 2017 through the
present.

Response:

8. For every account you identified in response to Interrogatory Number 7, please
produce the bank statement for every month from September 1, 2017 through the
present.

Response:

9. Please produce the statements for any credit card used in any manner for any
purchase or payment from June 1, 2017 through the present.

Response:

10. Please produce a copy of all contracts you have, or have had, to provide services
from June 1, 2017 through the present.

Response:

11. Please produce a copy of your corporate documents including but not limited to
your articles of incorporation, by laws, meeting minutes,

Response:
INTERROGATORIES

1. Has this Defendant been sued in its proper capacity and name? If the answer is
anything other than an unequivocal “yes,” please state the full proper name and
the factual basis supporting this Defendant’s contention that it has not been sued
in its proper name and capacity.

Answer:

2. If you did not unqualifiedly admit Plaintiff’s Request for Admissions, please
explain your denial.

Answer:

3. If you contend that Plaintiff has not complied with any term or condition of the
contract made the basis of this suit, please identify the specific provision with
which you contend Plaintiff has not complied.

Answer:

4. If you contend that Plaintiff has not provided you with proper notice of its claims
as required by the Texas Civil Practice and Remedies Code, please identify all
facts and documents which support such contention.

Answer:

5. If you did not unqualifiedly admit that the Plaintiff has complied with all
conditions precedent prior to filing this suit, please set forth your factual
contentions as to each condition precedent to which you claim Plaintiff did not
comply.

Answer:

6. Please identify each and every account including to which any owner, officer,
director, agent, employee or representative had access to from June 1, 2017
through the present.

Answer:

7. Please identify every account to which any entity or governmental agency had
access to for the purposes of making payments to you on their account(s)
including but not limited to any insurance company, Medicare and Medicaid.

Answer:
VIII.

Plaintiff hereby demands trial by jury.

For these reasons, Plaintiff asks that the Court issue citation for Defendant to

appear and answer, and that Plaintiff be awarded a judgment against Defendant for actual

damages, specific performance of the contract, exemplary damages, pre and post

judgment interests, cost of court, attorney fees and expenses, and any and all other and

further damages to which Plaintiff may be justly entitled, at law or in equity.

Respectfully submitted,

THE LAW OFFICE OF JOHN R. HUNT

By:
John R. Hunt
Texas State Bar No. 24027082
3724 Cypress Creek Pkwy., Suite 104
Houston, Texas 77068
Telephone: (281) 537-1196
Facsimile: (281) 537-9234
Email: JHunt@AttorneyJohnRHunt.com

ATTORNEY FOR PLAINTIFF

Case Info

Judge

C. ELLIOTT THORNTON Track Judge’s New Case

Case No.

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Document Filed Date

October 19, 2018

Case Filing Date

March 09, 2018

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Party Discovery: COMPLEX REHAB TECHNOLOGIES L L C vs. JCBC INCORPORATED (D/B/A AC MEDICAL SUPPLY)

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