Preview
Received and E-Filed for Record
7/29/2019 6:04 PM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Patricia Morrill
CAUSE NO. 19-05-06051
ZION BUILDERS LIMITED LIABLITY § IN THE DISTRICT COURT
COMPANY D/B/A ZION BUILDERS §
§
PLAINTIFFS, §
§
§
V. OF MONTGOMERY COUNTY, TEXAS
§
ERIK GARDUNO A/K/A ERIC §
GARDUNO AND KAREN §
GARDUNO §
§
DEFENDANTS. 284TH JUDICIAL DISTRICT
______________________________________________________________________________
ANSWER
______________________________________________________________________________
TO THE HONORABLE JUDGE OF SAID COURT:
Counter-Defendants, Zion Builders Limited Liability Company d/b/a Zion
Builders (“Zion”) and Tyler Logeman (“Logeman”), and file this Answer to the claims
asserted by Counter-Plaintiffs, Erik and Karen Garduno (“Gardunos”), and, in support
thereof, shows as follows:
I. GENERAL DENIAL
Said Counter-Defendants assert a general denial and request the Court require
Counter-Plaintiffs prove the allegations by a preponderance of the evidence as is required
by state law.
ANSWER
Page 1 of 6
II. DEFENSES
Counter-Plaintiffs are barred from asserting negligence, negligent
misrepresentation, or negligent hiring and supervision because there is an enforceable
contract between the parties. The damages sought by Counter-Plaintiffs arise out of the
subject matter of the residential construction contract with Counter-Defendant. Thus,
Counter-Plaintiffs are limited to contractual claims.
To the extent that Counter-Plaintiffs are asserting Negligent Misrepresentation as
an oral contract, Counter-Plaintiffs’ claim is barred by the statute of frauds because the
subject matter relates to real property and may not be performed within a year.
Counter-Plaintiffs suffered no damages related to the alleged misrepresentations
because the amounts retained by Counter-Defendant were owed to Zion under the
residential construction contract.
The Counter-Defendants deny that all conditions precedent have occurred
because Counter-Plaintiffs failed to provide proper notice. The Texas Residential
Construction Liability Act (“RCLA”) applies to all suits to recover damages or other
relief arising from a construction defect. At least in part, Counter-Plaintiffs claim
damages due to construction defects and, thus, RCLA is applicable to this matter.
The RCLA has a notice provision that is a mandatory prerequisite to filing suit.
TEX. PROP. CODE § 27.004. Counter-Plaintiffs served Counter-Defendants a notice
pursuant to the DTPA. Ex. A, DTPA demand letter. However, the DTPA demand letter
does not mention or meet the requirements of the RCLA. For instance, the claimant
must specify “in reasonable detail the construction defects that are the subject of the
ANSWER
Page 2 of 6
complaint.” TEX. PROP. CODE § 27.004(a). The Counter-Plaintiffs merely allege that the
home “was still plagued with problems.” Ex. A at 2, ¶ 1. Thereafter, the Counter-
Plaintiffs provide 2 examples approximately $1500.00 combined.
To the extent of a conflict with any other law, including the DTPA, the RCLA
controls. TEX. PROP. CODE § 27.002. Therefore, the Counter-Plaintiffs failed to plead or
meet the conditions precedent to filing this counterclaim.
In addition to and/or alternatively to and without waiving the foregoing, Counter-
Defendants assert that the damages alleged in Counter-Plaintiffs' most current pleadings
for relief and/or any injuries to Counter-Plaintiffs alleged to have arisen during
construction were proximately caused by the acts or omissions of a separate and
independent agency, not reasonably foreseeable by the Counter-Defendants, which
destroyed the causal connection, if any, between the acts or omissions alleged in Counter-
Plaintiffs' most recent live Counter-Claim at the time of jury submission and thereby
became the immediate cause of the occurrence and/or injuries.
In addition to and/or alternatively to and without waiving the foregoing, Counter-
Defendants assert that the damages alleged by Counter-Plaintiffs were proximately
caused by an act or omission of some person not a party to this lawsuit, so that no act or
omission of any other person, including Counter-Defendants, could have been a
proximate cause.
In addition to and/or alternatively to and without waiving the foregoing, Counter-
Defendants assert that the damages alleged in Counter-Plaintiffs' most recent
Counterclaim were in whole or part proximately caused by the negligence of Counter-
ANSWER
Page 3 of 6
Plaintiffs meaning that they failed to use ordinary care, that is, failed to do that which a
person of ordinary prudence would have done under the same or similar circumstance or
did that which a person of ordinary prudence would not have done under the same or
similar circumstances.
In addition to and/or alternatively to and without waiving the foregoing, Counter-
Defendants assert that the damages alleged in Counter-Plaintiffs' most recent pleadings
for relief resulted from Counter-Plaintiffs', through want of care, aggravating or failing to
mitigate their damages, including but not limited to failing to follow instructions
regarding utilities.
III. JURY DEMAND
Counter-Defendants requests a trial by jury, the jury fee having been previously
tendered to the District Clerk in conformance with law.
WHEREFORE, PREMISES CONSIDERED, Counter-Defendants prays that the
Counter-Plaintiffs take nothing by this suit, and that Counter-Defendants be awarded all
costs of Court, as well as such other and further relief, both general and special, at law or
in equity, to which Counter-Defendants may show themselves justly entitled.
IV. PRAYER
For these reasons, Counter-Defendants, Zion Builders Limited Liability Company
d/b/a Zion Builders and Tyler Logeman, pray that the Counter-Plaintiffs take nothing
ANSWER
Page 4 of 6
by this counterclaim and after final trial, Zion have judgment, joint and severally, against
the Gardunos for:
a. $11,442.89 as the amount due on the account;
b. prejudgment interest;
c. reasonable and necessary attorneys’ fees;
d. post-judgment interest;
e. court costs; and
f. all other relief to which Zion is entitled.
Respectfully submitted,
LUCCI SMITH LAW, PLLC
/s/ Joseph K. Watts
Jacqueline Lucci Smith
Texas Bar No.: 00786073
Joseph K. Watts
Texas Bar No.: 24005135
2550 Gray Falls Drive, Suite 395
Houston, Texas 77077
Telephone: 832-494-1700
Facsimile: 832-494-1426
JLSmith@LucciSmithLaw.com
JWatts@LucciSmithLaw.com
ATTORNEYS FOR PLAINTIFF
ZION BUILDERS
ANSWER
Page 5 of 6
CERTIFICATE OF SERVICE
I, undersigned counsel of record, do certify that on this 29th day of July, 2019,
the above and foregoing document was served upon the following counsel of record
via electronic service in compliance with Rule 21a of Texas Rules of Civil Procedure.
Johnson & Associates Attorneys at Law, PLLC
Christopher L. Johnson
chris@Johnson-Attorneys.com
Justin M. Kornegay
justin@Johnson-Attorneys.com
Morgan A. Jenkins
morgan@Johnson-Attorneys.com
Jimmy N. Smith
jimmy@Johnson-Attorneys.com
ATTORNEYS FOR DEFENDANTS
/s/Jacqueline Lucci Smith
Jacqueline Lucci Smith
ANSWER
Page 6 of 6
Preview
Received and E-Filed for Record 7/29/2019 6:04 PM Melisa Miller, District Clerk Montgomery County, Texas Deputy Clerk, Patricia Morrill CAUSE NO. 19-05-06051 ZION BUILDERS LIMITED LIABLITY § IN THE DISTRICT COURT COMPANY D/B/A ZION BUILDERS § § PLAINTIFFS, § § § V. OF MONTGOMERY COUNTY, TEXAS § ERIK GARDUNO A/K/A ERIC § GARDUNO AND KAREN § GARDUNO § § DEFENDANTS. 284TH JUDICIAL DISTRICT ______________________________________________________________________________ ANSWER ______________________________________________________________________________ TO THE HONORABLE JUDGE OF SAID COURT: Counter-Defendants, Zion Builders Limited Liability Company d/b/a Zion Builders (“Zion”) and Tyler Logeman (“Logeman”), and file this Answer to the claims asserted by Counter-Plaintiffs, Erik and Karen Garduno (“Gardunos”), and, in support thereof, shows as follows: I. GENERAL DENIAL Said Counter-Defendants assert a general denial and request the Court require Counter-Plaintiffs prove the allegations by a preponderance of the evidence as is required by state law. ANSWER Page 1 of 6 II. DEFENSES Counter-Plaintiffs are barred from asserting negligence, negligent misrepresentation, or negligent hiring and supervision because there is an enforceable contract between the parties. The damages sought by Counter-Plaintiffs arise out of the subject matter of the residential construction contract with Counter-Defendant. Thus, Counter-Plaintiffs are limited to contractual claims. To the extent that Counter-Plaintiffs are asserting Negligent Misrepresentation as an oral contract, Counter-Plaintiffs’ claim is barred by the statute of frauds because the subject matter relates to real property and may not be performed within a year. Counter-Plaintiffs suffered no damages related to the alleged misrepresentations because the amounts retained by Counter-Defendant were owed to Zion under the residential construction contract. The Counter-Defendants deny that all conditions precedent have occurred because Counter-Plaintiffs failed to provide proper notice. The Texas Residential Construction Liability Act (“RCLA”) applies to all suits to recover damages or other relief arising from a construction defect. At least in part, Counter-Plaintiffs claim damages due to construction defects and, thus, RCLA is applicable to this matter. The RCLA has a notice provision that is a mandatory prerequisite to filing suit. TEX. PROP. CODE § 27.004. Counter-Plaintiffs served Counter-Defendants a notice pursuant to the DTPA. Ex. A, DTPA demand letter. However, the DTPA demand letter does not mention or meet the requirements of the RCLA. For instance, the claimant must specify “in reasonable detail the construction defects that are the subject of the ANSWER Page 2 of 6 complaint.” TEX. PROP. CODE § 27.004(a). The Counter-Plaintiffs merely allege that the home “was still plagued with problems.” Ex. A at 2, ¶ 1. Thereafter, the Counter- Plaintiffs provide 2 examples approximately $1500.00 combined. To the extent of a conflict with any other law, including the DTPA, the RCLA controls. TEX. PROP. CODE § 27.002. Therefore, the Counter-Plaintiffs failed to plead or meet the conditions precedent to filing this counterclaim. In addition to and/or alternatively to and without waiving the foregoing, Counter- Defendants assert that the damages alleged in Counter-Plaintiffs' most current pleadings for relief and/or any injuries to Counter-Plaintiffs alleged to have arisen during construction were proximately caused by the acts or omissions of a separate and independent agency, not reasonably foreseeable by the Counter-Defendants, which destroyed the causal connection, if any, between the acts or omissions alleged in Counter- Plaintiffs' most recent live Counter-Claim at the time of jury submission and thereby became the immediate cause of the occurrence and/or injuries. In addition to and/or alternatively to and without waiving the foregoing, Counter- Defendants assert that the damages alleged by Counter-Plaintiffs were proximately caused by an act or omission of some person not a party to this lawsuit, so that no act or omission of any other person, including Counter-Defendants, could have been a proximate cause. In addition to and/or alternatively to and without waiving the foregoing, Counter- Defendants assert that the damages alleged in Counter-Plaintiffs' most recent Counterclaim were in whole or part proximately caused by the negligence of Counter- ANSWER Page 3 of 6 Plaintiffs meaning that they failed to use ordinary care, that is, failed to do that which a person of ordinary prudence would have done under the same or similar circumstance or did that which a person of ordinary prudence would not have done under the same or similar circumstances. In addition to and/or alternatively to and without waiving the foregoing, Counter- Defendants assert that the damages alleged in Counter-Plaintiffs' most recent pleadings for relief resulted from Counter-Plaintiffs', through want of care, aggravating or failing to mitigate their damages, including but not limited to failing to follow instructions regarding utilities. III. JURY DEMAND Counter-Defendants requests a trial by jury, the jury fee having been previously tendered to the District Clerk in conformance with law. WHEREFORE, PREMISES CONSIDERED, Counter-Defendants prays that the Counter-Plaintiffs take nothing by this suit, and that Counter-Defendants be awarded all costs of Court, as well as such other and further relief, both general and special, at law or in equity, to which Counter-Defendants may show themselves justly entitled. IV. PRAYER For these reasons, Counter-Defendants, Zion Builders Limited Liability Company d/b/a Zion Builders and Tyler Logeman, pray that the Counter-Plaintiffs take nothing ANSWER Page 4 of 6 by this counterclaim and after final trial, Zion have judgment, joint and severally, against the Gardunos for: a. $11,442.89 as the amount due on the account; b. prejudgment interest; c. reasonable and necessary attorneys’ fees; d. post-judgment interest; e. court costs; and f. all other relief to which Zion is entitled. Respectfully submitted, LUCCI SMITH LAW, PLLC /s/ Joseph K. Watts Jacqueline Lucci Smith Texas Bar No.: 00786073 Joseph K. Watts Texas Bar No.: 24005135 2550 Gray Falls Drive, Suite 395 Houston, Texas 77077 Telephone: 832-494-1700 Facsimile: 832-494-1426 JLSmith@LucciSmithLaw.com JWatts@LucciSmithLaw.com ATTORNEYS FOR PLAINTIFF ZION BUILDERS ANSWER Page 5 of 6 CERTIFICATE OF SERVICE I, undersigned counsel of record, do certify that on this 29th day of July, 2019, the above and foregoing document was served upon the following counsel of record via electronic service in compliance with Rule 21a of Texas Rules of Civil Procedure. Johnson & Associates Attorneys at Law, PLLC Christopher L. Johnson chris@Johnson-Attorneys.com Justin M. Kornegay justin@Johnson-Attorneys.com Morgan A. Jenkins morgan@Johnson-Attorneys.com Jimmy N. Smith jimmy@Johnson-Attorneys.com ATTORNEYS FOR DEFENDANTS /s/Jacqueline Lucci Smith Jacqueline Lucci Smith ANSWER Page 6 of 6