On June 30, 2021 a
Jury Demand
was filed
involving a dispute between
Big Tex Air Conditioning, Inc.,
Probuild South, Lp,
Taylor Morrison Of Texas, Inc.,
Taylor Woodrow Communities -League City, Ltd.,
Gavis, Katy,
Gavis, Michael,
and
All Star Plumbing Management, Llc,
Arnulfo Rodriguez Roofing Co., Inc.,
Big Tex Air Conditioning, Inc.,
City Framers, Llc,
Installed Building Products Of Houston, Llc,
L & W Weatherstripping, Llc,
Probuild South, Lp,
Wisenbaker Builder Services, Ltd.,
Taylor Morrison Of Texas, Inc.,
Taylor Woodrow Communities -League City, Ltd.,
for Contract - Debt - Commercial/Consumer
in the District Court of Galveston County.
Preview
Filed: 6/30/2021 5:55 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 54954090
By: Shailja Dixit
7/1/2021 8:16 AM
21-CV-0951
CAUSE NO______________
MICHAEL GAVIS and § IN THE DISTRICT COURT OF
KATY GAVIS §
Plaintiffs, §
§
§
vs. § GALVESTON COUNTY, TEXAS
§
TAYLOR MORRISON OF TEXAS, §
INC. AND TAYLOR WOODROW §
COMMUNITIES – LEAGUE CITY, § Galveston County - 10th District Court
LTD. §
Defendants. § _______ JUDICIAL DISTRICT
PLAINTIFFS’ ORIGINAL PETITION
AND REQUEST FOR DISCLOSURE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME Michael Gavis and Katy Gavis, Plaintiffs, complaining of Taylor
Morrison of Texas, Inc. and Taylor Woodrow Communities – League City, Ltd.
(collectively, “Defendants”), and for cause of action, show the Court the following:
DISCOVERY CONTROL PLAN
1. Plaintiffs intend that discovery be conducted under Discovery Level 3,
pursuant to Texas Rule of Civil Procedure 190.4, and request this Court to enter a Docket
Control Order.
PARTIES AND SERVICE
2. Plaintiffs, Michael Gavis and Katy Gavis, are residents of Galveston,
County, Texas whose address is 4727 Sabero Lane, League City, Texas 77573.
3. Defendant Taylor Morrison of Texas, Inc. is a Domestic For-Profit
Corporation that may be served through its registered agent, National Registered Agents,
Inc., at 1999 Bryan Street, Suite 900, Dallas, Texas 75201.
Status Conference - 09/30/2021
4. Defendant Taylor Woodrow Communities – League City, Ltd. is a Domestic
Limited Partnership that may be served through its registered agent, National Registered
Agents, Inc., at 1999 Bryan Street, Suite 900, Dallas, Texas 75201.
JURISDICTION AND VENUE
5. The subject matter in controversy is within the jurisdictional limits of this
Court. Pursuant to Texas Rule of Civil Procedure 47, Plaintiffs seek monetary relief of over
$200,000 but not more than $1,000,000.
6. This Court has personal jurisdiction herein because both Defendants are
Domestic entities.
7. Venue in Galveston County is proper because the cause of action alleged
herein arose in Galveston County and the property subject of this suit is situated in that
County.
FACTS
8. This case concerns multiple construction defects that have caused significant
mold growth in Plaintiffs’ home. Plaintiffs purchased the home located at 4727 Sabero
Lane, League City, Texas 77573 (“Home”) on June 8, 2018. The Home was built by
Defendants. Sometime after purchasing the Home, the Home began experiencing
unacceptably high levels of relative humidity and condensation.
9. Since then the Home has developed a severe, pervasive mold infestation
caused by construction defects. The mold infestation will require extensive remediation as
well as the replacement and cleaning of Plaintiffs’ contents. The mold in the Home is
caused by construction defects relating to Defendants’ design and construction of the
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Home, which has led to water intrusion and extreme and inappropriate humidity and
moisture levels to develop in the Home’s interior.
BREACH OF CONTRACT
10. Defendants breached the contract by building a home with the
aforementioned construction defects. Plaintiffs contracted with Defendants to purchase a
home free of defects and that was designed and built appropriately to not develop defects.
Plaintiffs have suffered damages as a result of Defendants’ breach of contract.
11. Pursuant to Section 38.001 of the Texas Civil Practices & Remedies Code,
Plaintiffs seek recovery of their reasonable and necessary attorney’s fees.
BREACH OF IMPLIED WARRANTIES
11. Defendants breached the implied warranty of habitability. The mold itself,
as well as the construction defects that caused the mold, are latent defects that rendered the
Home unsafe, unsanitary, or otherwise unfit for living therein.
12. Further, Defendants breached the implied warranty of good workmanship
because Defendants did not construct the Home in the same manner as would a generally
proficient builder engaged in similar work and performing under similar circumstances.
NEGLIGENT CONSTRUCTION
13. Defendants had a duty to exercise ordinary care in the construction of the
Home. By the above-alleged conduct, Defendants breached its duty to exercise ordinary
care and that breach proximately caused Plaintiffs’ damages.
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DECEPTIVE TRADE PRACTICES – CONSUMER PROTECTION ACT
14. By the above-alleged conduct, Defendants violated the Texas Deceptive
Trade Practices – Consumer Protection Act (DTPA). Tex. Bus. & Com. Code § 17.46.
Defendants violated Tex. Bus. & Com. Code § 17.50 as follows:
15. Breach of implied warranty; and
16. Tex. Bus. & Com. Code § 17.46. Defendants violated the following laundry
list of items in § 17.46(b), including but not limited to:
§17.46 (b) (5) Represented that goods or services had sponsorship, approval,
Characteristics, ingredients, uses, benefits, or quantities which
they do not have;
§17.46 (b) (7) Represented that goods or services are of a particular standard,
quality, or grade, or that goods are of a particular style or model, if they are of
another; and
§17.46 (b) (24) Failed to disclose information concerning goods or services
which was known at the time of the transaction with the intention to induce the consumer
into a transaction into which the customer would not have entered had the information been
disclosed.
17. Plaintiffs relied on Defendants’ acts, practices and omissions to their
detriment. Defendants’ acts, practices, and omissions were the proximate cause of
Plaintiffs’ damages.
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DPTA NOTICE
18. Plaintiffs provided notice under the Residential Construction Liability Act of
their claims to Defendants. It is Plaintiffs’ position that the RCLA notice satisfies the
notice required under the DTPA. Plaintiffs, in the alternative, were unable to provide
notice of their DTPA claims to Defendants because providing notice was rendered
impracticable by the statute of limitations.
DISCOVERY RULE
19. Defendants are estopped from asserting the affirmative defense of limitations
because Plaintiffs did not discover, nor could Plaintiffs have discovered by the exercise of
reasonable diligence, the existence of their causes of action against Defendants until less
than two years prior to the date on which Plaintiffs filed their original petition in this
lawsuit.
ECONOMIC DAMAGES
20. Plaintiffs sustained economic damages as a result of the construction defects
including, but not limited to, the following damages allowed by §27.004(g) of the
Residential Construction Liability Act:
(a) The reasonable cost of repairs necessary to cure any construction defect;
(b) The reasonable cost to remediate the mold and rebuild following
remediation;
(c) The reasonable and necessary cost for the replacement or repair of any
damaged goods in the residence;
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(d) Reasonable and necessary engineering and consulting fees;
(e) The reasonable expenses of temporary housing;
(f) Reasonable and necessary attorney’s fees.
ATTORNEYS’ FEES
21. Request is made for all costs and reasonable and necessary attorneys’ fees
incurred by or on behalf of Plaintiffs, including all fees necessary in the event of an appeal
of this cause to the Court of Appeals and/or the Supreme Court of Texas, as the Court
deems equitable and just, as provided by Chapter 27 of the Texas Property Code, The
Deceptive Trade Practices Act and Chapter 38 of the Texas Civil Practice and Remedies
Code. Plaintiffs have presented their claim to Defendants pursuant to the latter statute.
CONDITIONS PRECEDENT
22. All conditions precedent have been met prior to the filing of this suit.
REQUEST FOR DISCLOSURE
23. Pursuant to Texas Rule of Civil Procedure 194, Plaintiffs request that
Defendants disclose within 50 days of service of this request, the information and material
described in Rule 194.2.
DEMAND FOR JURY TRIAL
24. Plaintiffs hereby demand a trial by jury.
REQUEST FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Plaintiffs, Michael Gavis and Katy
Gavis respectfully request that Defendants be cited to appear and answer herein, and that
upon final hearing of the cause, judgment be entered for Plaintiffs against Defendants for
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the economic and actual damages together with pre-judgment and post-judgment interest
at the maximum rate allowed by law, multiple damages, attorney’s fees, costs of court,
expert fees, and such other and further relief to which Plaintiffs may be entitled at law or
in equity.
Respectfully submitted,
THE FAUBUS FIRM
By: /s/ Dax O. Faubus
Dax O. Faubus
State Bar No. 24010019
1001 Texas Avenue, 11th Floor
Houston, Texas 77002
Telephone: (713) 222-6400
Facsimile: (713) 222-7240
dax-notice@faubusfirm.com
Attorneys for Plaintiffs
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