ACCEPTED
04-15-00117-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
4/2/2015 2:57:19 PM
KEITH HOTTLE
CLERK
NO. 04–15–00117–CV
IN THE COURT OF APPEALS
FILED IN
FOR THE FOURTH DISTRICT OF TEXAS4th COURT OF APPEALS
AT SAN ANTONIO SAN ANTONIO, TEXAS
04/2/2015 2:57:19 PM
KEITH E. HOTTLE
RHINO CONTRACTORS, LLC, Clerk
APPELLANT,
V.
VULCAN CONSTRUCTION MATERIALS, LP,
APPELLEE.
On Appeal from the 288th District Court
Bexar County, Texas
BRIEF OF APPELLANT
EDWARD F. VALDESPINO
State Bar No. 20424700
edward.valdespino@strasburger.com
Judith R. Blakeway
State Bar No. 02434400
Judith.Blakeway@strasburger.com
STRASBURGER & PRICE, LLP
2301 Broadway
San Antonio, Texas 78215
Telephone: (210) 250-6000
Facsimile: (210) 250-6100
ATTORNEYS FOR APPELLANT
RHINO CONTRACTORS, LLC
1785604.1/SPSA/36984/0101/040215
Identity of Parties and Counsel
In accordance with Rule 38.1(a) of the Texas Rules of Appellate Procedure,
Appellees provide the following complete list of all parties and counsel to the trial
court’s order that forms the basis of this appeal.
Party Counsel
RHINO CONTRACTORS, LLC EDWARD F. VALDESPINO
Appellant State Bar No. 20424700
edward.valdespino@strasburger.com
Judith R. Blakeway
State Bar No. 02434400
Judith.Blakeway@strasburger.com
STRASBURGER & PRICE, LLP
2301 Broadway
San Antonio, Texas 78215
Telephone: (210) 250-6000
Facsimile: (210) 250-6100
VULCAN CONSTRUCTION Robert W. Wachsmuth
MATERIALS, LP State Bar No. 20626000
Appellees bob@rwwattorneys.com
Zachary J. Fanucchi
State Bar No. 24028548
zach@rwwattorneys.com
Robert Wachsmuth & Associates, PC
9311 San Pedro Ave., Suite 707
San Antonio, Texas 78216
Telephone: (210) 342–2707
Facsimile: (210) 342–2701
ii
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Statement Regarding Oral Argument
This case involves the straightforward application of well–established law to
undisputed facts. Therefore, oral argument is unlikely to significantly aid the court
in its disposition.
iii
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Table of Contents
Identity of Parties and Counsel ................................................................................. ii
Statement Regarding Oral Argument ...................................................................... iii
Table of Contents ......................................................................................................iv
Table of Authorities ..................................................................................................vi
Statement of the Case................................................................................................. 1
Issues Presented ......................................................................................................... 2
Statement of Facts ...................................................................................................... 3
Summary of Argument .............................................................................................. 5
Standard of Review .................................................................................................... 7
Argument and Authorities.......................................................................................... 7
I. The trial court erred in denying the motion for new trial because
Rhino did not receive notice of the suit. ............................................... 7
II. The trial court erred in failing to grant the motion for new trial
because Rhino established the Craddock factors. ................................. 9
A. Rhino’s failure to appear was not intentional or the result
of conscious indifference. ........................................................... 9
B. Rhino had a meritorious defense. ............................................. 10
C. Granting the motion for new trial would not prejudice
Vulcan. ...................................................................................... 11
III. The evidence is legally and factually insufficient to support the
judgment. ............................................................................................. 12
A. The actual damages awarded by the trial court are not
supported by legally or factually sufficient evidence. .............. 13
B. The award of prejudgment interest is not supported by
legally or factually sufficient evidence. .................................... 16
C. The award of attorney’s fees is not supported by legally
or factually sufficient evidence. ................................................ 17
iv
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Conclusion ............................................................................................................... 18
Certificate of Compliance ........................................................................................ 19
Certificate of Service ............................................................................................... 20
Appendix .................................................................................................................. 21
1. Default Judgment
2. Original Petition
3. Motion for Entry of Default Judgment
4. First Amended Motion to Set Aside Default Judgment
v
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Table of Authorities
Page(s)
CASES
Andrews v. East Tex. Medical Ctr.–Athens,
885 S.W.2d 264 (Tex. App.–Tyler 1994, no writ) ............................................. 13
Arenivar v. Providian Nat’l Bank,
23 S.W.3d 496 (Tex. App.–Amarillo 2000, no pet.) .......................................... 12
Arthur Andersen & Co. v. Perry Equip Corp.,
945 S.W.2d 812 (Tex. 1997) ......................................................................2, 6, 17
Barnes v. Stone Way Ltd. Partnership,
330 S.W.3d 925 (Tex. App.–Beaumont 2011, no pet.) ...................................... 10
Brown Electric. Contractors, Inc. v. Kelly,
595 S.W.2d 610 (Tex. Civ. App.–Austin 1980, no writ) ................................... 14
Caldwell v. Barnes,
154 S.W.3d 93 (Tex. 2004)................................................................................... 8
Central Tex. Micrographics v. Leal,
98 S.W.2d 292 (Tex. App.–San Antonio 1995, no writ) .................................... 18
Craddock v. Sunshine Bus Lines, Inc.,
133 S.W.2d 124 (Tex. 1939) ..................................................2, 6, 8, 9, 10, 11, 18
Dibco Underground, Inc. v. JCF Bridge & Concrete Inc.,
No. 03–09–00255–CV, 2010 Tex. App. LEXIS 2531 (Tex. App.–Austin
2010, no pet.) ...................................................................................................... 14
Dolgencorp of Tex., Inc. v. Lerma,
288 S.W.3d 922 (Tex. 2009) ........................................................................10, 11
El Apple I, Ltd. v. Olivas,
370 S.W.3d 757 (Tex. 2012) .............................................................................. 18
Enernational Corp. v. Exploitation Eng’rs, Inc.,
705 S.W.2d 749 (Tex. App.–Houston [1st Dist.] 1986, writ ref’d n.r.e.) .......... 15
Estate of Pollack v. McMurrey,
858 S.W.2d 388 (Tex. 1993) ....................................................................7, 10, 11
vi
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Fidelity & Guar. Ins. Co. v. Drewery Constr. Co.,
186 S.W.3d 571 (Tex. 2006) ............................................................................ 7, 8
Gause v. Roden,
66 S.W.2d 400 (Tex. App.–Amarillo 1933, no writ).......................................... 15
Griswold v. Carlson,
249 S.W.2d 58 (Tex. 1952)................................................................................. 15
Holt Atherton Indus., Inc. v. Heine,
835 S.W.2d 80 (Tex. 1992)................................................................................. 12
In re R.R.,
209 S.W.3d 112 (Tex. 2006) .............................................................................. 11
Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc.,
962 S.W.2d 507 (Tex. 1998) .............................................................................. 16
Jones v. Ben Maines Air Conditioning, Inc.,
621 S.W.2d 437 (Tex. Civ. App.–Texarkana 1979, no writ) .......................14, 15
L’Arte De La Mode, Inc. v. Neiman Marcus Group,
395 S.W.3d 291 (Tex. App.–Dallas 2013, no pet.) ............................................ 10
Mathis v. Lockwood,
166 S.W.3d 743 (Tex. 2005) ................................................................................ 8
Mega Builders, Inc. v. Am. Door Prods. Inc.,
No. 01–12–00196–CV, 2013 Tex. App. LEXIS 2831 (Tex. App.–
Houston [1st Dist.] 2013, no pet.)....................................................................... 14
Milestone Operating, Inc. v. Exxon Mobile Corp.,
388 S.W.3d 307 (Tex. 2012) ......................................................................7, 8, 10
Mobilevision Imaging Svcs., L.L.C. v. Lifecare Hosp. of N. Tex.,
260 S.W.3d 561 (Tex. App.–Dallas 2008, no pet.) .............................................. 8
Nguyen v. Short, How, Frels & Heitz, P.C.,
108 S.W.3d 558 (Tex. App.–Dallas 2003, pet. denied)...................................... 14
Otis Elevator Co. v. Parmelee,
850 S.W.2d 179 (Tex. 1993) .............................................................................. 12
vii
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Panditi v. Apostle,
180 S.W.3d 924 (Tex. App.–Dallas 2006, no pet.) ......................................14, 15
Peralta v. Heights Medical Ctr., Inc.,
485 U.S. 80, 108 S.Ct. 896 (1988).................................................................... 7, 8
Powers v. Adams,
2 S.W.3d 496 (Tex. App.–Houston [14th Dist.] 1999, no pet.) ......................... 13
Red Hot Enter., LLC v. Yellow Book Sales & Distrib. Co.,
No. 04–11–00686–CV, 2012 Tex. App. LEXIS 5967 (Tex. App.–San
Antonio 2012, no pet.) ........................................................................................ 16
San Antonio Water Sys. v. McKnight,
No. 04–02–00239–CV, 2003 Tex. App. LEXIS 548, 2003 WL 141047
(Tex. App.–San Antonio Jan. 22, 2003, no pet.) .................................................. 9
Sutherland v. Spencer,
376 S.W.3d 752 (Tex. 2012) ......................................................................7, 8, 10
Texas Commerce Bank, Nat’l Ass’n v. New,
3 S.W.3d 515 (Tex. 1999)................................................................................... 12
Texas Sting Ltd. v. RB Foods Inc.,
82 S.W.3d 644 (Tex. App.–San Antonio 2002, no pet.) ...................................... 9
Tips v. Heartland Dev., Inc.,
961 S.W.2d 618 (Tex. App.–San Antonio 1998, no pet.) .................................. 16
Titan Indem. Co. v. Old South Ins. Group, Inc.,
221 S.W.3d 703 (Tex. App.–San Antonio 2006, no pet.) .................................. 11
Williamsburg Nursing Home, Inc. v. Paramedics, Inc.,
460 S.W.3d 168 (Tex. App.–Houston [1st Dist.] 1970, no writ) ....................... 15
Woollett v. Matyastik,
23 S.W.3d 48 (Tex. App.–Austin 2000, pet. denied) ......................................... 18
STATUTES
TEX. CIV. PRAC. & REM. CODE § 38.001(7) and (8)................................................. 17
viii
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RULES
TEX. R. CIV. P. 185 .......................................................................................13, 14, 15
TEX. R. CIV. P. 241 ................................................................................................... 12
TEX. R. CIV. P. 243 ................................................................................................... 12
ix
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Statement of the Case
Nature of the Case This is an appeal from a no–answer default
judgment on a suit for breach of contract or,
in the alternative, on a sworn account.
Trial Court The Honorable David Canales
73rd Judicial District Court
The Honorable Stephanie Walsh
45th Judicial District Court
Bexar County, Texas
Cause No. 2014–CI–15870
Trial Court Disposition Judge Canales granted Plaintiff’s motion for
default judgment. Judge Walsh denied
Defendant’s motion for new trial.
1785604.1/SPSA/36984/0101/040215
Issues Presented
1. Did the trial court err in overruling Defendant’s motion for new
trial when Defendant’s agent for service’s testimony that she did
not receive notice of suit before a default was entered was
uncontroverted.
2. Did the trial court err in denying Defendant’s motion for new
trial when Defendant established the Craddock factors, namely
● Defendant’s failure to appear was not intentional or the
result of conscious indifference;
● Defendant had a meritorious defense;
● granting the motion for new trial would not prejudice
Plaintiff.
3. Did the trial court err in refusing to grant a new trial when
● damages were unliquidated and the affidavit to prove
damages stated that the outstanding principal balance of
the attached account was due and unpaid, but no account
was attached so that there was no evidence of the items sold,
date, or charge for each item, or any details of how the
amount was computed;
● the default judgment included prejudgment interest in the
amount of $12,561.36 when the petition sought prejudgment
interest at the rate of 18%, but the attached contract, which
was the source for interest, provided for only a late fee of
1% per month on the unpaid balance, and there was no
evidence of the rate of interest used, the accrual date, the
unpaid balance to which interest was applied, or any other
information about the interest calculation;
● the default judgment awarded $60,484.68 in attorney’s fees,
but the attorney’s fee affidavit failed to state that the fees
were reasonable or necessary, or any of the other Arthur
Andersen factors, or to attach any billing records.
2
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Statement of Facts
Vulcan Construction Materials, LP (“Vulcan”) sued Rhino Contractors, LLC
(“Rhino”) for breach of contract or, in the alternative, on a sworn account. C.R. 1–
4. Vulcan pleaded that it had provided materials to Rhino for use in Rhino’s
construction business, that Rhino had failed and refused to pay amounts due and
owing to Vulcan, and that Vulcan was owed a total of $454,846.76. C.R. 2. Vulcan
requested attorney’s fees and prejudgment interest at the rate of 18%. C.R. 2–3.
Attached to the petition was an affidavit stating that “the outstanding principal
balance of the attached account . . . the sum of $454,846.76 is . . . just and true, due
and unpaid and that all just and lawful offsets, payments and credits have been
allowed.” C.R. 5. However, no account was attached.
Also attached to the petition was a commercial credit application which
provided for a monthly late charge equal to “the lesser of one percent (1%) per
month or the maximum amount permitted by State Law on outstanding balances on
Applicant’s account unpaid after thirty (30) days from the billing date.” C.R. 7. It
further provided that terms of each individual sale were set forth on each invoice.
Id. But no invoices were attached.
After attempts at personal service were unsuccessful, Vulcan filed a motion
for substituted service and obtained an order for substituted service, by leaving a
copy of the petition and citation on the front door of Defendant’s registered agent’s
3
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residence. C.R. 28–32. After Rhino failed to answer, Vulcan filed a motion for
default judgment. C.R. 12. No additional evidence was introduced when the default
was signed by Judge Canales. Instead, Vulcan relied upon the affidavit attached to
its petition
In connection with its motion for default, Vulcan submitted an affidavit from
its attorney. The attorney’s fee affidavit merely stated that “usual and customary
fees in this cause are $60,484.68,” and contained no information about what was
done, by whom, how long it took, at what hourly rate, the experience or
qualifications of the attorney performing the services, or that the fees were
reasonable or necessary. C.R. 15. No billing records or other documentation were
attached. Id.
Nevertheless, Vulcan obtained a default judgment that awarded it damages
of $454,846.76, prejudgment interest in the amount of $12,561.36, and $60,484.68
in attorney’s fees.
Rhino filed a timely motion for new trial arguing that its failure to answer
was not due to conscious indifference, but because it never received notice of the
lawsuit. C.R. 18–21. Rhino further alleged a meritorious defense to Vulcan’s
claim, namely that there was a dispute as to the invoices underlying the alleged
debt. C.R. 21–22. Rhino agreed to go to trial promptly and reimburse Vulcan for
its costs in taking the default judgment. C.R. 18.
4
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After the deadline for filing the motion for new trial, but while the trial court
still had plenary jurisdiction, Rhino filed a first amended motion for new trial
attaching affidavits from Nancy Russell, the registered agent for service of Rhino,
stating that Rhino never received a copy of the petition until after the default
judgment was issued. C.R. 55–94. Russell also stated that Vulcan’s invoices
contained numerous billing errors and that the amount sought by Vulcan was
“substantially in excess of any outstanding balance to which Vulcan may
ultimately be entitled.” C.R. 63. A second affidavit from Russell attached a listing
of outstanding balances of all transactions with Vulcan and payments made to
Vulcan, and internal emails and notes regarding the disagreement with Vulcan over
improper crediting of Rhino’s accounts, demonstrating a bona fide dispute over the
allowance of lawful payments, credits and offsets. C.R. 64–94.
The trial court granted leave to file Rhino’s amended motion for new trial
with the attached affidavits, C.R. 144, but denied Rhino’s motion for new trial.
C.R. 146. Rhino timely appealed. C.R. 155.
Summary of Argument
The trial court erred in overruling Rhino’s motion for new trial because
Rhino’s agent for service’s testimony that she did not receive notice of suit before
a default was entered was uncontroverted.
5
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The trial court also erred in denying Rhino’s motion for new trial because
Rhino established the Craddock factors––Rhino’s failure to appear was not
intentional or the result of conscious indifference, Rhino had a meritorious defense,
and granting the motion for new trial would not prejudice Vulcan.
Alternatively, assuming that Rhino is not entitled to a new trial on liability, it
nevertheless is entitled to a new trial on damages because Vulcan’s damages were
unliquidated and not proved by legally or factually sufficient evidence. The
affidavit Vulcan submitted to prove damages stated that the outstanding principal
balance of the attached account was due and unpaid, but no account was attached
so that there was no evidence of the items sold, date, or charge for each item, or
any details of how the amount was computed. Similarly, the default judgment
included prejudgment interest in the amount of $12,561.36 when the petition
sought prejudgment interest at the rate of 18%, but the attached contract, which
was the source for interest, provided for only a late fee of 1% per month, and there
was no evidence of the rate of interest used, the billing date, the outstanding
balance to which interest was applied, or any other information sufficient to allow
the trial court to calculate pre–judgment interest. The attorney’s fee affidavit was
likewise defective, failing to state that the fees were reasonable or necessary, or
any of the other Arthur Andersen factors, or to attach any billing records.
6
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The judgment should be reversed and the case remanded for a new trial. In
the alternative, the portions of the judgment assessing damages, attorney’s fees and
interest should be reversed and remanded for a new trial of those awards.
Standard of Review
A trial court’s ruling on a motion for new trial is reviewed for abuse of
discretion. But if a defendant asserts that it did not file an answer because it never
received notice, the default generally must be set aside. Sutherland v. Spencer,
376 S.W.3d 752 (Tex. 2012). Not receiving the citation is always a sufficient
excuse for not answering. Fidelity & Guaranty Ins. Co. v. Drewery Constr. Co.,
186 S.W.3d 571, 574 (Tex. 2006); Estate of Pollack v. McMurrey, 858 S.W.2d
388, 391 (Tex. 1993). It is also an abuse of discretion to deny a new trial if “(1) the
failure of the defendant to answer before judgment was not intentional, or the
result of conscious indifference on his part but was due to a mistake or accident;
(2) the motion for new trial sets up a meritorious defense; and (3) granting the
motion will occasion no delay or otherwise work an injury to plaintiff.” Milestone
Operating, Inc. v. Exxon Mobile Corp., 388 S.W.3d 307, 309 (Tex. 2012).
Argument and Authorities
I. The trial court erred in denying the motion for new trial because Rhino
did not receive notice of the suit.
In Peralta v. Heights Medical Ctr., Inc., 485 U.S. 80, 86, 108 S.Ct. 896,
899–900 (1988), the United States Supreme Court held that a defendant who has
7
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never received notice of the pending litigation is not required to comply with
Craddock’s meritorious defense requirement. Mathis v. Lockwood, 166 S.W.3d
743, 744 (Tex. 2005); Mobilevision Imaging Svcs., L.L.C. v. Lifecare Hosp. of N.
Tex., 260 S.W.3d 561, 564 (Tex. App.–Dallas 2008, no pet.). If a defendant does
not appear because he did not receive the suit papers, “the default generally must
be set aside.” Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571,
574 (Tex. 2006); Caldwell v. Barnes, 154 S.W.3d 93, 96–97 (Tex. 2004);
Sutherland v. Spencer, 376 S.W.3d 752, 757 (Tex. 2012)(Jefferson J.
dissenting)(“Not receiving the citation is always a sufficient excuse for not
answering.”)
Here, the uncontroverted testimony1 of Nancy Russell, Defendant’s agent for
service, that she did not receive a copy of the petition posted on the front door of
her home is sufficient to entitle Rhino to a new trial. Milestone Operating, Inc. v.
Exxon Mobile Corp., 388 S.W.3d 307, 309 (Tex. 2012)(Defendant’s agent’s
testimony that he did not recall being served sufficed even when eyewitness
testified she saw process server hand him the suit papers). When, as here, a party
receives no notice, she satisfies the first prong of Craddock and does not have to
meet the remaining prongs of the test to be entitled to a new trial. Peralta v.
1
The trial court granted leave to file Ms. Russell’s affidavits, which were attached to the
amended motion for new trial, on the day of the hearing on the motion for new trial. C.R. 144.
8
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Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1998); Texas Sting Ltd. v. RB Foods Inc.,
82 S.W.3d 644, 649 (Tex. App.–San Antonio 2002, no pet.).
II. The trial court erred in failing to grant the motion for new trial because
Rhino established the Craddock factors.
A. Rhino’s failure to appear was not intentional or the result of
conscious indifference.
More than 75 years ago, the Texas Supreme Court enunciated the standard
that courts follow today in examining no answer default judgments. Craddock v.
Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). Under Craddock, a
trial court must set a default judgment if (1) the failure of the defendant to answer
before judgment was not intentional or the result of conscious indifference, but was
due to a mistake or accident; (2) the motion for new trial sets up a meritorious
defense; and (3) a new trial will cause neither delay nor undue prejudice to the
plaintiff. Id; see also San Antonio Water Sys. v. McKnight, No. 04–02–00239–CV,
2003 Tex. App. LEXIS 548, 2003 WL 141047, at *1 (Tex. App.–San Antonio Jan.
22, 2003, no pet.); Tex. Sting Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 650 (Tex.
App.–San Antonio 2002, pet. denied). Thus, where the elements of the Craddock
test are satisfied, a trial court abuses its discretion in denying a motion for new
trial. Tex. Sting, Ltd., 82 S.W.3d at 650.
Because Rhino never received the suit papers, it need not establish the
Craddock factors. Nevertheless, Rhino did establish that its failure to appear was
9
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not intentional or the result of conscious indifference. Nancy Russell testified that
“because Rhino never received the petition prior to the entry of default judgment,
Rhino’s failure to answer the Petition was neither intentional nor due to conscious
indifference.” C.R. 62–93. This suffices to satisfy the first Craddock factor.
Milestone Operating, Inc. v. Exxon Mobile Corp., 388 S.W.3d 307 (Tex.
2012)(failure to recall being served sufficient); Sutherland v. Spencer, 376 S.W.3d
752 (Tex. 2012)(forgetting about suit because of weather and holidays sufficient
excuse to negate intentional or consciously indifferent conduct); Estate of Pollack
v. McMurrey, 858 S.W.2d 388, 391 (Tex. 1993)(lack of evidence that defense
attorney knew his client had been served was enough to show failure to answer
“could not have been intentional or the result of conscious indifference.”)
B. Rhino had a meritorious defense.
A motion sets up a meritorious defense if it alleges facts which in law would
constitute a defense to plaintiff’s cause of action and is supported by affidavits or
other evidence providing prima facie proof that the defendant has such a defense.
Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922 (Tex. 2009); L’Arte De La
Mode, Inc. v. Neiman Marcus Group, 395 S.W.3d 291, 294 (Tex. App.–Dallas
2013, no pet.); Barnes v. Stone Way Ltd. Partnership, 330 S.W.3d 925 (Tex. App.–
Beaumont 2011, no pet.) Once evidence of a meritorious defense is established,
the allegations supporting it must be taken as true in spite of controverting
10
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evidence. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922 (Tex. 2009); In re
R.R., 209 S.W.3d 112, 116 (Tex. 2006); Titan Indem. Co. v. Old South Ins. Group,
Inc., 221 S.W.3d 703, 709 (Tex. App.–San Antonio 2006, no pet.)
Rhino established that the debt alleged by Vulcan was disputed, setting up a
meritorious defense to Vulcan’s claims for both sworn account and breach of
contract. C.R. 63–94. Russell’s affidavit established that Rhino had been double–
billed and not properly credited with payments, offsets, and credits. Id. Rhino thus
satisfied the second element of the Craddock standard.
C. Granting the motion for new trial would not prejudice Vulcan.
Rhino also satisfied the third Craddock factor by stating that Vulcan would
not be prejudiced by granting the motion and by agreeing to go to trial promptly
and reimburse Vulcan for its costs in taking the default judgment. C.R. 18–22.
Once Rhino alleged that granting a new trial would not injure Vulcan, the burden
of proof shifted to Vulcan to prove injury. Dolgencorp v. Lerma, 288 S.W.3d 922
(Tex. 2009); Estate of Pollack v. McMurrey, 858 S.W.2d 388, 393 (Tex. 1993).
Vulcan did not meet its burden. It did not allege or prove a specific injury such as
loss of witnesses or evidence, that would negate Rhino’s claim of no undue delay
or injury. Because Vulcan did not prove such harm or injury as would preclude the
granting of a new trial, Rhino satisfied the third prong of the Craddock test.
11
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III. The evidence is legally and factually insufficient to support the
judgment.
Once a default judgment is taken against an non–answering defendant on an
unliquidated claim, all allegations of fact set forth in the petition are deemed
admitted, except for the amount of damages. Texas Commerce Bank, Nat’l Ass’n v.
New, 3 S.W.3d 515, 516 (Tex. 1999). If the claim is liquidated and proved by an
instrument in writing, the damages shall be assessed by the court. TEX. R. CIV.
P. 241. A claim is liquidated if the amount of damages caused by the defendant can
be accurately calculated from (1) the factual, as opposed to conclusory, allegations
in the petition, and (2) an instrument in writing. Arenivar v. Providian Nat’l Bank,
23 S.W.3d 496, 497 (Tex. App.–Amarillo 2000, no pet.) If the damages being
claimed are unliquidated, the court rendering a default judgment must hear
evidence as to damages. TEX. R. CIV. P. 243; Holt Atherton Indus., Inc. v. Heine,
835 S.W.2d 80, 83 (Tex. 1992). The legal and factual sufficiency of evidentiary
support for the amount of unliquidated damages may be challenged on appeal. Otis
Elevator Co. v. Parmelee, 850 S.W.2d 179, 180–81 (Tex. 1993); Heine,
835 S.W.2d at 86. If a no evidence point is sustained as to unliquidated damages
resulting from an uncontested, no–answer default judgment, the appropriate
disposition is remand for a new trial on the issue of unliquidated damages. See Id.
Assuming without conceding that by its default, Rhino admitted the
allegations in Vulcan’s pleading that it agreed to pay some amount to Vulcan, and
12
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that it did not do so, the amount owed remained unliquidated. Vulcan’s claims for
attorney’s fees and prejudgment interest were also unliquidated. Vulcan’s
affidavits are insufficient to support the awards for damages, attorney’s fees and
interest.
A. The actual damages awarded by the trial court are not supported
by legally or factually sufficient evidence.
Vulcan sued for breach of contract and, in the alternative, a sworn account.
The only contract attached to its pleadings is a commercial credit application
which does not reflect the sale of any goods, their price, or quantity or when they
were sold. C.R. 7. It simply sets forth terms of Rhino purchases on credit from
Vulcan but does not reflect any actual purchases. So it does not prove any
damages.
In the alternative, Vulcan sued on a sworn account. To establish a prima
facie case in a suit on a sworn account, Vulcan must have strictly adhered to Rule
185, which governs suits on sworn accounts. See TEX. R. CIV. P. 185; Powers v.
Adams, 2 S.W.3d 496, 498 (Tex. App.–Houston [14th Dist.] 1999, no pet.);
Andrews v. East Tex. Medical Ctr.–Athens, 885 S.W.2d 264, 267 (Tex. App.–Tyler
1994, no writ). Under this rule, a plaintiff’s petition on a sworn account must
contain “a systematic, itemized statement of the goods or services sold, . . . reveal
offsets made to the account, and [ ] be supported by an affidavit stating the claim is
within the affiant’s knowledge, and that it is ‘just and true.’” Andrews, 885 S.W.2d
13
1785604.1/SPSA/36984/0101/040215
at 267; Mega Builders, Inc. v. Am. Door Prods. Inc., No. 01–12–00196–CV, 2013
Tex. App. LEXIS 2831 *19 (Tex. App.–Houston [1st Dist.] 2013, no
pet.)(testimony that account was “just and true” did not constitute prima facie
evidence of debt in absence of itemized record); Dibco Underground, Inc. v. JCF
Bridge & Concrete Inc., No. 03–09–00255–CV, 2010 Tex. App. LEXIS 2531, *16
(Tex. App.–Austin 2010, no pet.)(affidavit that did not include systematic record
was insufficient under Rule 185); Panditi v. Apostle, 180 S.W.3d 924, 926 (Tex.
App.–Dallas 2006, no pet.)(stating requirements for sworn account petition and
accompanying affidavit, including requirement that account “show with reasonable
certainty the name, date, and charge for each item, and provide specifics or details
as to how the figures were arrived at”); Nguyen v. Short, How, Frels & Heitz, P.C.,
108 S.W.3d 558, 562 (Tex. App.–Dallas 2003, pet. denied)(same). The systematic
record of labor or materials furnished must clearly identify “the amount or nature
of the labor done or of the materials furnished, the date that such labor was
performed or materials furnished, the charge for the labor, and the charge for
materials.” Jones v. Ben Maines Air Conditioning, Inc., 621 S.W.2d 437, 438 (Tex.
Civ. App.–Texarkana 1979, no writ); see also Brown Electric. Contractors, Inc. v.
Kelly, 595 S.W.2d 610, 611 (Tex. Civ. App.–Austin 1980, no writ). “The account
must show with reasonable certainty the name, date, and charge for each item, and
provide specifics or details as to how the figures were arrived at.” Panditi, 180
14
1785604.1/SPSA/36984/0101/040215
S.W.3d at 926. “General statements . . . without description of specific items are
insufficient to comply with Rule 185.” Jones v. Ben Maines Air Conditioning, Inc.,
621 S.W.2d 437, 439 (Tex. Civ. App.–Texarkana 1981, no writ). If there is a
deficiency in the plaintiff’s sworn account, the account will not constitute prima
facie evidence of the debt. Enernational Corp. v. Exploitation Eng’rs, Inc., 705
S.W.2d 749, 750 (Tex. App.–Houston [1st Dist.] 1986, writ ref’d n.r.e.).
Vulcan’s evidence did not comply with the requirements of Rule 185
because, although Vulcan’s credit manager verified that the “attached account”
was within his knowledge and was “just and true,” no account was attached.
Vulcan did not include any systematic or itemized record of the parties’
transactions. Thus, Vulcan’s affidavit did not constitute prima facie evidence of
Rhino’s debt. See Panditi, 180 S.W.3d at 927. (“If there is a deficiency in the
plaintiff’s sworn account, the account will not constitute prima facie evidence of
the debt.”); see also Enernational Corp., 705 S.W.2d at 750.
An account insufficient on its face as a verified account under Rule 185 will
not support a default judgment. Griswold v. Carlson, 249 S.W.2d 58, 60 (Tex.
1952); Williamsburg Nursing Home, Inc. v. Paramedics, Inc., 460 S.W.3d 168,
169 (Tex. App.–Houston [1st Dist.] 1970, no writ); Gause v. Roden, 66 S.W.2d
400, 401 (Tex. App.–Amarillo 1933, no writ).
15
1785604.1/SPSA/36984/0101/040215
Because there was no itemized account attached to the affidavit, Vulcan’s
evidence was inadequate to support the judgment for $454,846.76. The judgment
must be reversed and remanded for a trial on damages.
B. The award of prejudgment interest is not supported by legally or
factually sufficient evidence.
Vulcan requested interest at 18% per annum. C.R. 2. However, the credit
agreement attached to the petition did not specify an interest rate, but only a
monthly late charge “equal to the lesser of one percent (1%) per month or the
maximum amount permitted by State Law on outstanding balances on Applicant’s
account that are unpaid after thirty (30) days from the billing date.” C.R. 7.
The default judgment awarded prejudgment interest in the amount of
$12,561.36. There is no evidence in the record from which the trial court could
calculate prejudgment interest. There is no evidence of what rate was used, on
what outstanding balance, from what billing date.
The applicable post–judgment interest rate on the date the default judgment
was signed was 5% per annum, and the prejudgment rate is computed at the same
statutory rate. See Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc.,
962 S.W.2d 507, 528 (Tex. 1998); Tips v. Heartland Dev., Inc., 961 S.W.2d 618,
624 (Tex. App.–San Antonio 1998, no pet.); Red Hot Enter., LLC v. Yellow Book
Sales & Distrib. Co., No. 04–11–00686–CV, 2012 Tex. App. LEXIS 5967 (Tex.
App.–San Antonio 2012, no pet.). But because no invoices are attached, there is no
16
1785604.1/SPSA/36984/0101/040215
way to tell what amounts should bear interest and from which dates. Accordingly,
the interest award must be reversed and remanded for trial.
C. The award of attorney’s fees is not supported by legally or
factually sufficient evidence.
Vulcan sought to recover attorney’s fees under Tex. Civ. Prac. & Rem. Code
§38.001(7) and (8) and pursuant to the contract. In support of its claim, its attorney
submitted an affidavit stating “usual and customary fees in this cause are
$60,484.68.” C.R. 15. He testified he was an attorney licensed to practice law in
Texas and familiar with attorney’s fees customarily charged in Bexar and adjacent
Texas counties. Id.
The affidavit is not legally sufficient to support the trial court’s judgment. It
provides no information from which the trial court could compute attorney’s fees.
It contains no information about the Arthur Andersen factors. Arthur Andersen &
Co. v. Perry Equip Corp., 945 S.W.2d 812, 818–19 (Tex. 1997). The affidavit
supplies no detail about what services were rendered, by whom, the hours
expended, the attorney’s usual billing rate, the amount and time involved, the
novelty and difficulty of the questions involved, the skill required to perform the
legal service properly, preclusion of other employment, time limitations, nature
and length of professional relationship, experience, reputation or ability of the
attorney performing the services, whether the fee was fixed or contingent, or any
other information about whether the services were necessary and the fee was
17
1785604.1/SPSA/36984/0101/040215
reasonable. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012)(“[P]roof
should include . . . (1) the nature of the work, (2) who performed the service and
their rate, (3) approximately when the services were performed, and (4) the number
of hours worked.”); Woollett v. Matyastik, 23 S.W.3d 48, 52–53 (Tex. App.–Austin
2000, pet. denied)(evidence of fees insufficient: failed to detail work completed,
state attorney’s hourly fees or hours expended); cf. Central Tex. Micrographics v.
Leal, 98 S.W.2d 292, 299 (Tex. App.–San Antonio 1995, no writ)(attorney’s fees
evidence should include hourly rate and hours expended). Accordingly, the award
of attorney’s fees was erroneous and the judgment must be reversed and remanded
for further proceedings to calculate proper attorney’s fees.
Conclusion
Because Rhino received no notice of suit before the default judgment was
entered, and because it established the Craddock factors, the trial court erred in
overruling Rhino’s motion for new trial. Accordingly, the judgment should be
reversed and remanded for trial. In the alternative, because there is no legally
sufficient evidence to support the damages, interest and attorney’s fees awarded by
the trial court, the judgment should be reversed and remanded for trial on those
awards.
18
1785604.1/SPSA/36984/0101/040215
Respectfully submitted,
/s/ Judith R. Blakeway
EDWARD F. VALDESPINO
State Bar No. 20424700
edward.valdespino@strasburger.com
Judith R. Blakeway
State Bar No. 02434400
Judith.Blakeway@strasburger.com
STRASBURGER & PRICE, LLP
2301 Broadway
San Antonio, Texas 78215
Telephone: (210) 250-6000
Facsimile: (210) 250-6100
ATTORNEYS FOR APPELLANT
RHINO CONTRACTORS, LLC
CERTIFICATE OF COMPLIANCE
In accordance with Tex. R. App. P. 9.4(i)(1), I hereby certify that this Brief
of Appellant contains no more than 3,928 words.
/s/ Judith R. Blakeway
JUDITH R. BLAKEWAY
19
1785604.1/SPSA/36984/0101/040215
CERTIFICATE OF SERVICE
Pursuant to E-Filing Standing Order, I certify that on April 2, 2015, I
electronically filed the foregoing with the Clerk of Court using the
EFile.TXCourts.gov electronic filing system which will send notification of such
filing to the following:
Robert W. Wachsmuth
bob@rwwattorneys.com
Zachary J. Fanucchi
zach@rwwattorneys.com
Robert Wachsmuth & Associates, PC
9311 San Pedro Ave., Suite 707
San Antonio, Texas 78216
Telephone: (210) 342–2707
Facsimile: (210) 342–2701
Attorneys for Appellee Vulcan Construction Materials, LP
/s/ Judith R. Blakeway
JUDITH R. BLAKEWAY
20
1785604.1/SPSA/36984/0101/040215
NO. 04–15–00117–CV
IN THE COURT OF APPEALS
FOR THE FOURTH DISTRICT OF TEXAS
AT SAN ANTONIO
RHINO CONTRACTORS, LLC,
APPELLANT,
V.
VULCAN CONSTRUCTION MATERIALS, LP,
APPELLEE.
On Appeal from the 288th District Court
Bexar County, Texas
APPENDIX
1. Default Judgment
2. Original Petition
3. Motion for Entry of Default Judgment
4. First Amended Motion to Set Aside Default Judgment
21
1785604.1/SPSA/36984/0101/040215
APPENDIX 1
DOCUMENT SCANNED AS FILED
t-llim v.~~~m111\Q
~ 2014CI15870 -0288
CAUSE NO. 2014-CI-15870
VULCAN CONSTRUCTION ~ IN THE DISTRJCT COURT
MATERIALS, LP, §
Plaintiff §
§
V. § 288TH JUDICIAL DISTRJCT
§
RHINO CONTRACTORS, LLC §
Defendant ~ BEXAR COUNTY, TEXAS
DEFAULT JUDGMENT
On the~ day of December, 2014, came to be heard the above numbered and
styled cause wherein VULCAN CONSTRUCTION MATERJALS, LP is the Plaintiff, and
RHJNO CONTRACTORS, LLC is the Defendant. Plaintiff appeared through its attorney of
record. Defendant, although duly cited to appear and answer herein, has failed to file an answer
within the time allowed by law.
The Court has considered the pleadings and records on file in this cause and the evidence
and is of the opinion that judgment should be rendered for Plaintiff.
It is accordingly ADJUDGED that VULCAN CONSTRUCTION MATERIALS, LP,
Plaintiff, recover from RHINO CONTRACTORS, LLC, Defendant, judgment for:
1. Unpaid principal in the amount of $454,846. 76;
~l 2. Prejudgment interest in the amount of$12,561.36;
3. Postjudgment interest at a rate of 5% on the total amount of the judgment, from
'l
0 the date of judgment until paid;
/
2 4. $60,484.68 as attorney's fees; and
~i~ 5. Couti costs in the amount of $429.1 0.
It is ORDERED that Plaintiff shall have all writs of execution and other process
v
0 necessary to enforce this judgment.
L
All relief not expressly granted herein is denied.
a SIGNED on DEC- .e 2014
f2.
g JUDGE PRESIDING
16
DOCUMENT SCANNED AS FILED
I
.. APPROVED AS TO FORM:
Robert Wachsmuth & Associates, PC
9311 San Pedro Ave., Suite 707
San Antonio, Texas 78216
210-342-2707
210-342-2701 (fax)
~~.!ittf
RObertW~ Wachsmuth
State Bar No. 20626000
bob@rwwattorneys.com
Zachary J. Fanucchi
State Bar No. 24028548
zach@rwwattorneys.com
ATTORNEY FOR PLAINTIFF
17
APPENDIX 2
FILED
10/6/2014 11:39:40 AM
Donna Kay McKinney
Bexar County District Clerk CIT PPS - SAC2
Accepted By: Marc Garcia
2014CI15870
288TH
1
substantial part of the events or omissions giving rise to the claim occurred.
4. Jurisdiction
4.1 Damages sought in this matter are within the jurisdictional limits of this Court.
Plaintiff seeks monetary relief of more than $200,000.00 but less than $1 ,000,000.00. Tex. R.
Civ. P. 47. Plaintiff demands judgment for all other reliefto which it is justly entitled.ld.
5. Facts
5.1 In or about August 2013, September 2013, November 2013, January 2014,
February 2014, and March 2014, VULCAN provided materials to RHINO for use in RHINO's
construction business.
5.2 RHINO agreed to pay VULCAN the sums due and owing.
5.3 Despite the fact that VULCAN provided goods to RHINO, it has failed and
refused to pay the amounts due and owing to VULCAN, despite proper demands by VULCAN
for the payment of same. VULCAN is owed a total of $454,846.76, exclusive of interest, which
accrues at the rate of 18% per annum.
6. COUNT 1-Breach of Contract
6.1 VULCAN and RHINO had a valid, enforceable Contract. See Exhibit "B."
RIIINO agreed to pay for the goods provided it by VULCAN. furthermore, VULCAN has
standing in that it is a patty to the Contract. RJ UNO breached the contract by refusing to pay the
amount owed to VULCAN. VULCAN has been injured due to the loss inflicted upon it. The
breach of contract was a material breach that goes to the essence of the Contract. These foregoing
facts were the proximate cause of VULCAN' s injuries. The amount of damages sustained by
VULCAN is $454,846.76. Interest accrues daily at the rate of 18% per annum.
2
2
7. COUNT 2-Suit on a Sworn Account
7.1 In the alternative to count I , VULCAN provided RHINO goods on an open
account. RH INO accepted the goods and became bound to pay VULCAN its designated charges,
which were according to the terms of the parties' agreement. The amounts charged for said goods
are reasonable and customary.
7.2 VULCAN attaches a record of the account and the required affidavit as Exhibit
"A" to this petition, and incorporates it by reference. The account accurately sets forth that goods
were provided by VULCAN to RJ-IINO, the dates of delivery and the costs of the goods sold.
The account represents a record of the transactions that is similar to records VULCAN
systematically keeps in the ordinary course of its business.
7.3 The date and amount of RHINO 's payment is fully accounted for and credited to
the account. The claim is just and true, is due, and all just and lawful offsets, payments and
credits have been allowed. The principle amount due and owing is $454,846.76.
8. Attorney Fees
8.1 Pursuant to Texas Civil Practice & Remedies Code § 38.001(7) & (8), VULCAN
is entitled to recover attorney fees. VULCAN is also entitled to recover attomey fees pmsuant to
the Agreement. See Exhibit "B."
9. Conditions Precedent
9.1 All conditions precedent to VULCAN's claims have been performed or have
occurred.
10. Request for Disclosure
10.1 Pursuant to Texas Rule of Civil Procedure 194, VULCAN requests that Defendant
3
3
RHINO disclose, within 50 days of the service of this request, the information of material
described in T.R.C.P. 194.2.
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that this
Court award VULCAN CONSTRUCTION MATERIALS, LP, a judgment against RHINO
CONTRACTORS, LLC for actual damages, as well as attorney fees and costs of cowt, interest
(both pre-judgment and post-judgment), and any other relief, in law or equity, to which it is
entitled.
RESPECTFULLY SUBMITTED,
Robert Wachsmuth & Associates, PC
93 11 San Pedro Ave., Suite 707
San Antonio, Texas 78216
210-342-2707
210-342-2701 (fax)
attorneys.com
Zachary J. Fanucchi
State Bar No. 24028548
zach@rwwattorneys.com
ATTORNEY FOR PLAINTIFF
4
4
AFFIDAVIT
STATE OF TEXAS §
§
COUNTY OF BEXAR §
BEFORE ME, the undersigned Notary Public in and for said County and State, on this day
personally appeared Lee McCarty, known to me, and, after being duly sworn, stated on oath that the
outstanding principal balance of the attached account of VULCAN CONSTRUCTION
MATERIALS, LP is the sum of $454,846.76, is within the knowledge of affiant, just and true, that
it is due and unpaid, and that all just and lawful offsets, payments and credits have been allowed.
Lee cCarty
Corporate Credit Manager
Vulcan Construction Materials, LP
SWORN AND SUBSCRIBED TO BEFORE ME on this the I day of
a~ '2014.
~t~ Notary Public, State ofTexas
,,,,~~"11(!,,, ADELA WHITE
ll~':·····-~.}~ Notary Puollc. State ot _Texas
~ : .:.. ~ My commission Expnes
<:.,'J;; ····:~+$~
~,,r os ,,,, October 20. 2016
'''""''\
EXHIBIT
i A
5
/ Me1 28 1310:07e p.2
Uul[on
Materials Company
Ito $uboldl•rloo ond Afllllalu
South Region • Commercial Credit AppllcaUon
Fax: 1·904-7.79-6527 or
Ern oil: VMC-Credil-App·Sovth@vmcmall.com
Business Name Rhino Coolr.acto""""rs..._. LL,.,C...._
..., _ _ _ _ _ _ _ _ __
FOR INTERNAL USE ONLY
Slroet Address 26163 Altas Palmas
Soles Rcpro:senla11ve or Plant
Ma1ing Address, if different:.......------------- --
Date Received.,-------
City Harlingen State TX Zip_7:....:8:.:::5c=.5.::..2_ __ Date Compleled --~--
Approved: By_ _
Denied: _ ____ __ By_ _ _
Telephone No. 956.364.1737 Fax No. 956.412.6240 Date: __i _ /_ _ _ _ __
Contact Email_ _..,!!a.!.!durn!!!in.u:@~rhJJ;io~oo£.:·J.lrg;l.lv~,c.a.ol!.rnu___ _ _ _ _ _ _ _ _ __
Check one: Corporation/LLC ~Partnership_ Sole Proprietor_ FEIN orSS#_ _ _ _ _ _ __
Date Established 8.2003 If Corporation, Date and State Incorporated Texas 2003
Contraclor's l icense# 760741296 Are you taxable? .:..N:.:o'--.,------""'='"--,---,..,...-
(lf non-taxable, :a tax a >-~3""75~11,.__ __ __
Phone No. 956.430.6523 Fax No. _ __,9.,5.,6""4'""3..,.0""6""5""3LJ1...__ _ _ _ _ _ _ _ __
Page 1 of 2 ·Application is not complete without Clfl pogcs and applicant signature.
EXHIBIT
6 I :0
.v1ar 231310 :07a p.3
Application for Business Credit Applicant's Name Rhino Contractors, LLC
TERMS AND CONDITIONS OF BUSINESS CREDrr
Thl$ Avplicolion, incluclng oil olthl) lnlonn8tlon contalncu h~reln, Is a requ~~t/or one or more ell tensions ollluclnass crodlt to defer paymont for
purch~~:<~ or corGtruc!lnn moterial• by AppEcarlt loom VuiCWl Cons\lucUon Mote~als. lP oii()IOr Its alriii:JIC$ (i ndil.idunlly ar-d colletlivoly,
'Vulcan"). By ~ubmltUng I his AppllcAIIon to VII can, Applies rot hereby agrees to these TCliTlls anu Cordttiof!S.
AppGeort hemby egroua to P"Y Vulcan lor eo~h purchnse made hercunuer, ;,s lolbws: Net 16th prox. (1 Sill calendor day or the monlh fcDowing
tho montnd,..;ng which shlpmenlls ""'de. ) APIJicalllllg•ces to pay Vulc4n e monthly tate ch3tgo equal to tho l-=sser orono percent (1~~~ per
mo.-.h or tho mold mum omourt ponnllted by Sl.llle Low on al oULstanding bal,ncC5 on AppDCl\rcgaoding Ap!Jiconl and Guarantorfrorn eny"edi!orol.-,pp5conl81ll Ou;:orontor,lncludlng, but not l mr!nd to, each or the credit
rolorof'\Coo fioted on pog o 1. App~cont 11nd Guur;m tor turlhar aU1hooizo each ol the cre~ilurs to givo lo Vulcan from Umo to ~me any and oil
necu o11ry lnlorm ~llon th::lt will illd Vulcan in 11:1 crodil imestigellon. Applicant ond Gu:rontor rurUter oulhurt..:e Vulcon co reJfl'/estlgate credll
st:lluc fru1n limo to lime 3& Vulcan deems nccesoory. Vulo;:.e n ""3orves the nghiiO IL-nlt. terminate, ur cnangn rheltlrma or any I!XIen.,lon credt or
to Appl eant at ils &Ole tll &c...lion. Appfic:~" ;,uthori:too Vu!eon to eel ns a c:redil reference lor ,a.ppl canl uy n:spcndln;~to I nquiries !rom otiW
uf!eilors or potential - dito,.. or Appfi""'nt r11no1'111ng lrt~n,ocllonu or o~poricncos wilt> AppGcarlt.
Far:k olll'e undersigned er
;...-oomotlon wWch may alleel ablfit)IIO pay, ant! undl such tln>o. V Ulcan m:ly co...,nue to roly on I hi~ lriOtlon A"'f chango• ln lapal a~.>tus or
the inlormalion provldnd on page 1 must be communicated to Vulcan •lleaetlon (10) buslnoo:~ days in odvonco bycertillodmail. Tho origiMI
1\pplcanl. wiU remain Ueble until auch lime •• Vuk:.en hM hROin given n """ ionoblot poriod olllmo to rue pond to ony noUco rcyurcl1ng chsngllsln
(ogalstall.l!l und h.,~ a (Teed to auch change. Appllcan l lurther atycn lhatlhosc Torma 'lnd CondilioM are yoverned by the laws ollhe Sto te or
Te~~s ~nd Applicant ~pcciOc:slly con;onte to tho oxttrcic" ol
roo-exclusive porson:.JI jurisdiction over Applicant and to GXIralerriloriDI service or proCAJss, if reOP.ssary.
V ulcan uses vi deo to verily acquis1Uon and quanel ty o( pnooucl purchased Irom Vulcan. AI the time a vetocle enlers Vulcan's scal e, a piclure wiH
be l:lkonollhe vorlcle and fi~ense pl;,te -Mih lhu lime :~nd date sl3mped on the picture . This is Vulcan's pnool of receipl nnd der.vary. Tho
llnver vnllrccclva a bill nllalllng (velliclo tlck.el )lhRt Stijltls tho quar~lty ol prodUt.1 and location of delivery, No So w;,ived unk.'Ss wrilt~n noijco ol such claim sh;:,l he dulivered le Vulcan. lly conilltld
rnall ut Hie Mdri!Ss on liS Invoice, 'MII1n ssven (7) d~y~ ol mcelpt or such onoducls by Applicarl.,
Vulcan 11'\dY at ony ~mil, usrgn 1111 rlghllor payment horcu~ ~~
Nancy W. Russell Wu.{.Q ) ~ PresidenUCEo
Prinl Namo u l Person SIQAnQ '-¥l'lul~i~..::,ri~:te
>:::d:.qJI,.Aa~t"
t.re
..K:..lr:l'o..:¥-:..~r<::>Sf.---- Tlllu
Print N~mo ol Por'!lon Signing Aull'orizad Slgm~\ure Tide
PERSONAL GUARANTY OF BUSINESS CREDIT
For value rcc~ivad, each of the undurslyned hero by p11rsor.al~ an:J individually ouaranln~~s paymr.nl whe~ du" nf 11U l nd,.biol\ill guir3nly is unlmlted in iln\OUr~ and shaJ apply lo all
blllanc"~ arising from soles to Appl•ca nl. Euch ol Uto unucrsignnd VIill be con,ldered os lhe or1glnul)
Page 2 of 2 -Application is no\ complete without all poges and applicant signature.
---·--·--- -..............----·--·--- -·--·--"- ---- ····- -- -- - - ---- - - -··- - - -
7
Cause Number : - - - - -- -
District Court : -------
Donna Kay MtKinney
Bexar County District Clerk
Request for Process
Style : VULCAN CONSTRUCTION MATERIALS. LP Vs. RHINO CONTRACTORS, LLC
Request the following process: (I' lease check all II• a• Apply)
liJ C itation 0 Notice 0 Tempor·ary Restraining Order 0 Notice of Temporary Protective Or·der
0 Tcmporar·y Pr·otective Order 0 Pr·ecept with hearing 0 Precept without a hearing Owrit of Attachment
O writ of Habeas Corpus D Writ of Ga rnishment 0Writ of Sequestration 0Capias 0 Other: - - - - - - - -
1.
Name: RHINO CONSTRUCTION. LLC
Regi s~ redAgen UByServin g: _N_a_
oc~y_R_u_
~_e_
" ~~~~~~~~~~~~~~~~~~~~~~~~~~
Add ress 26123 Atlas Palmas. Harlingen. Texas 78552
Ser vice Type: (Check One) [i]Private Process 0Sfler!ff 0 Publicatiou (Cheek One) Ocommercial Recortfcr Onart Beat Ocourtlrousc Door
O cert{fied Mail 0 Registered Mail Oout ofCmmty O s ecretary of State Ocommissioner of Jn.w rance
2.
Na Jn e= -~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~--
RegisteredAgenUByServing: ~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Address __~~~~~~~~~~~~~~~~~~~--~~~~~~~~~~~~~~-
Service Type: (Ch«k One) 0 Private Process O S!ter!ff 0Publication (Check One) O commercial Recorder Ounrt Beat Ocourtlrouse Door
Ocertifietl Mail 0 Registered Mail O out of County Osecretary of State Ocommissioner of Insurance
3.
Name: ~~----~------~~----~~----~~----~~----~~~----~~~--------~~---
Registered Agent/By Servin g :-~~~~~~~~~~~~~~~~~~~~~~~~~~--
Address _~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~-
Service TXJle: (Check One) 0 Private Process OS!ter!ff 0Publicalion (Cheek One) Ocommercial Recorder 0Hart Beat O courtlrouse Door
0Cert(fier/ Mail 0 Regi.Hered Mail Oout of County 0Secretary ofState Dcommissioner of lnsurtmce
4.
Name=-------~----~------~~--~~~~--~~------------~--------~--~~---
RegisteredAgen UBySe~ in g: __~~~~~~~~~~~~~~~~~~~~~~~~~~-
Address ~~----~~~--~~~------------------~~--~~~----~~~----~------
Service Type: (Check One) 0 Private Process 0Siter!ff 0 Publication (Cheek On•) Ocommercint Recorder 0 Hnrt Bent Ocourtllouse Door
Ocertified Mail 0 Registered Mail O out of County Osecretary ofState Ocommissioner of Insurance
Title of Document/Pleading to be Attached to Process: _________________~--------------------
Name of Attorney/Prose: ZACHARYFANUCCHI Bar Number: _2_
40_2_
85_4_8~~~~~~~~
Address: 931 1 SAN PEDRO, STE. 707, SATX 78216 Phone N umber: _2_1o_.J_4_2_
-2_
7o_7~-~~~~-
xx____~- Defendant -~~- Other -~~~~
Attorney for P laintiff_x_
****IF SERVICE IS NOT PICKED UP WITHIN 14 BUS INESS DAYS, SERVICE WILL BE DESTROYED****
8
APPENDIX 3
FILED
12/1/2014 3:52:30 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Eddie Pichardo
CAUSE NO. 2014-CI-15870
VULCAN CONSTRUCTION § IN THE DISTRICT COURT
MATERIALS, LP, §
Plaintiff §
§
v. § 288TH JUDICIAL DISTRICT
§
RHINO CONTRACTORS, LLC §
Defendant § BEXAR COUNTY, TEXAS
MOTION FOR ENTRY OF DEFAULT JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Movant Vulcan Construction Materials, LP, ("Plaintiff') who moves the
Court to enter a default judgment against Rl1ino Contractors, LLC ("Defendant") pursuant to rule
239 of the Texas Rules of Civil Procedure.
I.
GROUNDS
Plaintiff is entitled to be granted a default judgment against Defendant and as grounds
would show the Court the following:
a. Defendant continues to be indebted to Plaintiff as specifically pleaded m
Plaintiff's Original Petition on file in this case.
b. Defendant has been duly served with citation in this cause, and the citation with
the officer's retw·n thereon has been on file with the clerk of this Court for ten
days, exclusive of the day of filing and the day of judgment.
c. Defendant has neither answered nor appeared within the time allowed by law and
has wholly defaulted.
n.
ATTACHMENTS
Plaintiff has attached the following documents to this motion:
a. Plaintiffs Certificate of Last Known Mailing Address.
b. Plaintiffs Attorney Fee Affidavit.
12
IV.
PRAYER
Plaintiff prays that the Court enter a default judgment in Plaintiffs favor against RHINO
CONTRACTORS, LLC, for the relief prayed for in Plaintiff's original petition and for all further
rei ief to which Plaintiff may be entitled.
RESPECTFULLY SUBMITTED,
Robert Wachsmuth & Associates, PC
9311 San Pedro Ave., Suite 707
San Antonio, Texas 78216
210-342-2707
210-342-270 1 (fax)
bob@rwwattorneys.com
Zachary J. Fanucchi
State Bar No. 24028548
zach@ rwwattorneys.com
ATIORNEY FO R PLAINTIFF
13
CAUSE NO. 2014-Cl-15870
VULCAN CONSTRUCTION § IN THE DISTRICT COURT
MATERIALS, LP, §
Plaintiff §
§
V. § 288TH JUDICIAL DISTRICT
§
RHINO CONTRACTORS, LLC s
~
Defendant § BEXAR COUNTY, TEXAS
CERTIFICATE OF LAST KNOWN ADDRESS
TO THE HONORABLE JUDGE:
Plaintiff, Vulcan Construction Materials, LP, certifies that the last known mailing address
of Defendant, RHINO CONTRACTORS, LLC is:
RHINO CONTRACTORS, LLC
Registered Agent: Nancy Russell
26123 Altas Palmas
Harlingen, Texas 78552
RESPECTFULLY SUBMITTED,
Robert Wachsmuth & Associates, PC
9311 San Pedro Ave. , Suite 707
San Antonio, Texas 78216
210-342-2707
210-342-2701 (fax)
~~~'-'*'::#
IROIJertW:WaChsmuth
State Bar No. 20626000
bob@rwwattorneys.com
Zachary .J. Fanucchi
State Bar No. 24028548
zach@rwwattorneys.com
ATTORNEY FOR PLAINTIFF
14
CAUSE NO. 2014-CI-15870
VULCAN CONSTRUCTION § IN THE DISTRICT COURT
MATERIALS, LP, §
Plaintiff §
§
V. § 288TH JUDICIAL DISTRICT
§
RHINO CONTRACTORS, LLC §
Defendant § BEXAR COUNTY, TEXAS
ATTORNEY FEE AFFIDAVIT
STATE OF TEXAS §
§
COUNTY OF BEXAR §
The undersigned Affiant appeared before me, was sworn, and stated:
"I am the Plaintiffs counsel in this cause, licensed to practice law in Texas and fam iliar
with attorneys' fees customarily charged in Bexar and adjacent Texas counties. Pursuant to
§38.003 and §38.004 of the Civi l Practice and Remedies Code, usual and customary fees in tllis
cause are $60,484.68 with additional fees of $20,000.00 in event of appeal and with additional
fees of $40,000.00 in event of appeal from the court of appeals to the Supreme Court of Texas.
To date, the Plaintiff incurred attorney fees in the amount of $60,484.68 in prosecution of
this matter against Defendant. In addition to the $60,484.68 in attorney fees, Plaintiff incurred
$429.10 in court costs and service fees.
Demand for payment was made upon Defendant more than thirty days prior to filing suit
and the just amount owed was not paid or tendered. Affiant has personal knowledge of the
matters stated herein."
~~~.-:w
OBERT W. WACHSMUTH
NOTARY PUBLICi~~ for the State ofTexas
15
APPENDIX 4
FILED
1/30/2015 9:15:09 AM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Maria Abilez
CA SE NO. 2014-CI-15870
VULCAN CONSTRUCTION § IN THE DISTRICT COURT
MATERIALS, LP, §
P aintiff, §
§
vs. § 288TH JUDICIAL DISTRICT
§
RHINO CONTRACTORS, LLC §
Defendant. § BEXAR COUNTY, TEXAS
DEFENDANT'S FIRST AMENDED MOTION TO SET ASIDE DEFAULT JUDGMENT
AND FOR NEW TRIAL AND BRIEF IN SUPPORT THEREOF
Defendant Rhino Contractors, LLC ("Rhino") respectfully moves this honorab e Court to
set aside the default judgment in this matter for a new trial, stating as follows:
Legal Ground for New Trial
Defendant was not properly served with citation. Although Plaintiff's motion for
substituted service alleges that the citation was placed on Defendant's door, the citation was
never received by Defendant. Consequently, Defendant did not receive notice of the lawsuit in
order to timely file an answer.
Equitable Grounds for New Trial
Rhino ' s failure to timely file an answer in this matter was not intentional or the result of
conscious indifference, but instead was the product of accident, mistake, or inadvertence.
Rhino has meritorious defenses to Plaintiff's claims. Specifically, (1) there is a d'spute as
to the invoices underlying the alleged debt owed to Plaintiff; (2) there is evidence from which a
jury could find that Rhino did not breach any contract, because the amounts all eged were in
dispute~ and (3) Based upon the evidence, P aintiff failed to allow all just and lawful offsets,
credits and payments to the account of Defendant as required by Tex. R. Civ. P. 185 .
l7H 255 2 SPSA1369M'OIOI 012915
55
A new trial in this matter will neither occasion delay nor prejudice Plaintiff. Rhino is
ready, willing, and able to go to trial promptly, and will reimburse Plaintiff for its costs in taking
the default judgment.
Evidence
In support of this Amended Motion to Set Aside Default Judgment and For New Trial,
Defendant files attached Exhibits A and B and incorporates them herein for all purposes.
I. A NEW TRIAL MUST BE GRANTED BECAUSE THE DEFENDANT WAS NOT
PROPERLY SERVED WITH CITATION.
Whenever a motion for new trial seeks to reverse a no-answer default judgment the
question before the court is "[w]hy did the defendant not appear?" Fid. & Guar. Ins. Co. v.
Drewery Constr. Co., 186 S.W.3d 571, 573-74 (Tex. 2006). The Texas Supreme Court has
made clear that if the answer is "(b]ecause I didn't get the suit papers," the default judgment
"generally must be set aside." Id.
"For well over a century the rule has been firmly established in this state that a default
judgment cannot withstand direct attack by a defendant who complains that he was not served in
strict compliance with applicable requirements." Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.
1990); accord, e.g., Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885
(Tex. 1985). In such a case, there are no presumptions in favor of valid issuance, service, and
return of citation. E.g., Wilson, 800 S.W.2d at 836; Uvalde, 690 S.W.2d at 885 . Instead, all such
matters must affirmative y appear of record . E.g., Primate Construction, Inc. v. Silver, 884
S.W.2d 151, 152 (Tex. 1994).
2
1734255 2/S PSA/36984/01 01!012915
56
"[T]he slightest defect in a citation may be fatal, for Texas courts traditionally have been
quick to find errors in a citation sufficient to set aside a default judgment." Michae A. Pohl &
Stephen R. Kirklin, Judgments by Default - A Survey of Texas Law, 31 Sw. L.J. 465, 471 (1977).
In this case, Rhino never received notice of the lawsuit unti after the default judgment
was rendered, thereby depriving Defendant the opportunity to defend the lawsuit. The failure to
properly serve citation deprived Defendant of due process rights.
A NEW TRIAL SHOULD BE GRANTED UNDER THE CRADDOCK DOCTRINE.
The standard for evaluating an equhable motion for new trial following a default
judgment is a fami liar one:
[A] default judgment should be set aside and a new trial granted when the
defau ting party estab lishes that (1) the failure to appear was not intentiona or the
result of conscious indifference, but was the result of an accident or mistake, (2)
the motion for new trial sets up a meritorious defense, and (3) granting the motion
will occasion no delay or otherwise injure the plaintiff.
Dolgencorp ojTex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009); Director, State Employees
Workers' Compensation Division v. Evans, 889 S.W.2d 266, 268 (Tex. 1994) (quoting Craddock
I
v. Sunshine Bus Lines, Inc., 133 S. W.2d 124, 126 (1939)).
"A [Craddock] motion for new trial is addressed to the trial court's discretion and the
court's ruling will no be disturbed on appeal in the absence of a showing of an abuse of
discretion." Evans, 889 S.W.2d at 268. "That discretion, however, is 'not an unbridled
discretion ffor trial courts] to decide cases as they might."' Old Republic Insurance Co. v. Scott,
873 S.W.2d 381, 382 (Tex. 1994) (quoting Craddock, 133 S.W.2d at 126). "[A] trial court
1
Accord, e.g., Old Rep11hlic Insurance Co. v Scott, 873 S.W.2d 381, 382 (Tex. 1994); Esrare of Pollack v
McMurray, 8 8 S.W.2d 388, 390 (Tex. 1993); Bank One Texas, N.A . v. Moody, 830 S.W.2d 81, 82-83 (Tex. I992).
3
1734255 2/SPSA/36984101 011012915
57
abuses its discretion by not granting a new trial when all three elements of the Craddock test are
2
met." Evans, 889 S.W.2d at 268 .
Cases holding that the Craddock requirements are to be applied iberal y, to the end that
cases are decided on their merits rather than by default, are legion. For a small sample, see, e.g.,
In the Intere 1 of A. P. P., 74 S.W.3d 570, 573 (Tex. App.- Corpus Christi 2002) ("Courts have
appl ied the first Craddock prong liberally, and each case depends on its own facts."); Rabie v.
Sonilrol, Inc., 982 S.W.2d 194, 196-97 (Tex. App.-Houston [1st Dist.] 1998, no pet.); Norton v.
Martinez, 935 S.W.2d 898, 901 (Tex. App.-San Antonio 1996, no writ); Miller v. Miller, 903
S.W.2d 45, 47 ( ex. App.-Tyler 1995, no writ); McCarthy v. Jesperson, 527 S.W.2d 825, 827
(Tex. Civ. App.-El Paso 1975, no writ).
Rhino's Failure to Answer Was Not Intentional or the Result of Conscious
Indifference.
Rhino did not receive notice of the lawsuit unti after the default judgment, therefore, its
failure to timely file an answer was not intentional or the result of conscious indifference.
"Failing to file an answer intentionally or due to conscious indifference means 'the
defendant knew it was sued but did not care."' In re R.R., 209 S.W.3d 112, 115 (Tex. 2006)
(quoting Fidelity, 186 S.W.3d at 576). Negligence is not the correct standard . E.g., Ivy v.
Carrell, 407 S.W.2d 212, 213 (Tex. 1966); In re Adams, 416 S.W.3d 556, 561 (Tex. App.-
Tyler 2013, no pet.) ("Under Craddock, conscious indifference must amount to m re than mere
negligence to preclude the setting aside of a de fault judgment"); Custom-Crete, inc. v. K-Bar
Servs., 82 S.W.3d 655, 660 (Tex. App.-San Antonio 2002, no pet.). "In fact, the defendant's
'
-Accord, e.g., Old Republic Insurance Co v. colt, 873 S.W.2d at 382 ; Bank One Texas, N.A. v. Moody, 830 S.W.2d
at 85.
4
1734255 2/SPSN369B4/01 01/012915
58
burden of demonstrating the accidental or mistaken nature of his fai ure to answer may often
result in an admission of negligence." Michael A. Pohl & David Hittner, Judgments by Default
in Texas, 37 Sw. L.J. 421,443 (1983).
The Supreme Court has made clear that "some excuse, although not necessarily a good
one," suffices to negate conscious indifference. In re R.R., 209 S.W.3d at 115; accord, Fidelity,
186 S.W.3d at 576; Craddock, 133 S.W.2d at 125. Indeed, "[o]nly a slight excuse is required."
Europa, 809 S.W.2d at 785; accord, e.g., In reMarriage of Parker, 20 S.W.3d 812, 819 (Tex.
App.- Texarkana 2000, no pet.). Rhino's failure to answer was the result of the fact that it did
not receive the citation, rather than conscious indifference on anyone's part to the requirement
that an answer be filed.
The Defendant Has Meritorious Defenses.
The defendant's burden in a Craddock motion is to allege a meritorious defense and
provide prima fade proof of that defense; once that is done, the trial court may not try the
defensive issues in deciding whether to set aside the default judgment, and should not consider
counteraffidavits or conflicting testimony offered to refute the movant's factual allegations. E.g.,
Estate of Pollack v. McMurray, 858 S.W.2d 388, 392 (Tex. 1993); Guaranty Bank v. Thompson,
632 S.W.2d 338,340 (Tex. 1982).
A meritorious defen e is one that would produce a different result. E.g., Norton v.
Martinez, 935 S.W.2d 898, 902 (Tex. App.-San Antonio 1996, no writ); Burgess v. Burgess,
834 S.W.2d 538, 539 (Tex. App.-Houston [l 5t Dist.] 1992, no \wit; Stein v. Meachum, 748
S.W.2d 516, 518 (Tex . App.-Dallas 988, no writ. This result need not, however, be a totally
opposite result. Jackson v. Mares, 802 S.W.2d 48, 51 (Tex. App.-Corpus Christi 1990, writ
denied; Harfen v. Pfeffer, 693 S.W.2d 543, 546 (Tex. App.-San Antonio 1985, no writ).
1734255. 2/SPSA/36984101 01 /0129 15
59
Here, Rhino asserts a meritorious defense to the judgment. Specifically, that it did not
breach its contract with Vulcan because the amounts alleged to be owed are in dispute.
Hence Plaintiff is not entitled to recover against Rhino on any cause of action for breach
of contract. 3 Alternatively, there exists a bona fide dispute as to any amounts allegedly owed to
Vulcan. Based upon the evidence, Plaintiff failed to allow all just and lawful offsets, credits and
payments to the account of Defendant as required by Tex. R. Civ. P. 85.
The Granting of this Motion Will Not Cause Prejudice or Undue Delav to the
Plaintiff.
The final Craddock requirement, that the motion for new trial be filed at a time when its
granting wiJI not delay or injure the plaintiff, is satisfied by the defendant's allegation to this
effect coup ed with an offer to reimburse the p aintiff for the reasonable costs incurred in taking
the default judgment; the burden then shifts to the plaintiff to offer proof of prejudice. E.g.,
Do/gencorp, 288 S.W.3d at 929; l!stare of Pollock v. McMurray, 858 S.W.2d 388, 393 (Tex.
1993); Angelo v. Champion Restaurant Equipment Co., 713 S.W.2d 76 78 (Tex. 1986). There
can be no such proof here.
Prayer
Defendant Rhino Contractors, LLC, respectfully prays: ( 1) that the judgment against it in
this matter be set aside; (2) that a new trial be granted as to all issues; and (3) for such other and
further re lief to which it may be entitled at law or in equity.
3
The default judgment in this case is based at least in part on breach of contract, inasmuch as it awards attorneys'
fees.
6
1734255 2/SPSN36984/01 011012915
60
Respectful ly submitted,
S RASBURGER & PRICE, LLP
2301 Broadway
San Antonio, Texas 78215
Telephone: (210) 250-6000
Facsimile: (2 10) 25 0-6100
A TTO ENDANT 1
RHINO CONSTRUCTION, LLC
CERTIFICATE OF SERVICE
On the~~ of January, 2015, a true and correct copy of the foregoing document
has been served in accordance with the Texas Rules of Civil Procedure upon the following:
Robert Wachsmuth
Robert Wachsmuth & Associates PC
9311 San Pedro Ave., Suite 707
San Antonio, Texas 78229-4252
Attorney for Plailltiff
7
1734255 2/SPSA/36984/0 1011012915
61
CAUSE NO. 2-14-CI-15870
VULCAN CONSTRUCTION § IN THE DISTRICT COURT
MATERIALS, LP, §
Plaintiff §
§
v. § 288TH ruDICIAL DISTRICT
§
RHINO CONTRACTORS, LLC §
Defendant § BEXAR COUNTY, TEXAS
AFFIDAVIT OF NANcy RUSSELL IN SUPPORT OF MOTION TO SET ASIDE
DEFAULT JUDGMENT AND FOR NEW TRIAL
STATE OF TEXAS §
CAMERON COUNTY §
BEFORE :ME, the undersigned authority, on this day personally appeared Nancy W.
Russell, who being duly sworn, deposed as follows:
I.
"My name is Nancy W. Russell. I am the President of Rhino Contractors, LLC
("Rhino"), Defendant in this action. I am authorized to make this Affidavit. I am over eighteen
years of age, of sound mind, and capable of making this Affidavit. I have never been convicted
of a felony of moral turpitude. The matters stated herein are of my personal knowledge and are
true and correct.
2.
Rhino's failure to answer the Original Petition filed by Plaintiff Vulcan Materials, LP
(''Vulcan") in this matter was neither intentional nor due to conscious indifference. Instead,
Rhino never received a copy of the Petition until it was obtained by my attorney after the Court
had already entered default judgment against Rhino. On none of the occasions mentioned in the
affidavit of the process server where he purportedly attempted to deliver the Petition to me
personally was I present at my personal residence. Instead, I was at Rhino's business premises,
which is located directly behind my personal residence and is where deliveries related to Rhino
are customarily received. In fact, I maintain a sign near the entrance of my personal residence
instructing persons attempting to make deliveries of any documents or packages directed to
Rhino to the office behind the house. I believe the process server ignored these instructions in
trying to serve me with the Petition.
3.
I likewise did not receive the Petition when it was posted to the front door of my personal
residence. I also did not receive any of the business cards left by the process server. My
personal residence is located in a very rural and open area and is subject to excessive winds. It is
likely that the excessive wind displaced the Petition. Further, it is unlikely that the Petition could
have been adequately secured to the front door. Regardless, I did not receive the Petition that
was posted to the front door of my personal residence. As a result, because Rhino never received
EXHIBIT A
62
r
the Petition prior to the entiy of default judgment, Rhino's failure to answer the Petition was
neither intentional nor due to conscious indifference.
4.
Rhino has a meritorious defense to Vulcan's claim in this matter. Rhino has made known
to Vulcan that there were numerous instances of multiple billing where Vulcan charged Rhino
two or more times for the same items. In addition, Rhino has attempted to work with Vulcan
since July 2013 to correct these billing errors. Specifically, on August 24, 2013, October 23,
2013, January 14, 2014, I requested that Vulcan send Rhino revised invoices to correct the
billing errors, but the majority of the billing errors remained unchanged. In early May 2014,
Vulcan even appointed a new account services individual to assist with the corrections to
Rhino's bills. Despite Rhino being in continuing contact with Vulcan throughout May 2014, the
errors on the bills remained. The amount sought by Vulcan and the amount of the default
judgment is premised upon these billing enors and is substantially in excess of any outstanding
balance to which Vulcan may ultimately be entitled.''
STATE OF TEXAS §
§
COUNTY OF CRAWFORD §
My Gommissi.oo Expires:
1.0~ ,,
3074065.1 S2~006
63
CAUSE NO. 2-14-CI-15870
VULCAN CONSTRUCTION § IN THE DISTRICT COURT
MATERIALS, LP, §
Plaintiff §
§
v. § 288-m JUDICIAL DISTRICT
§
RHINO CONTRACTORS, LLC §
Defendant § BEXAR COUNTY, TEXAS
AFFIDAVIT OF NANCY RUSSELL IN SUPPORT OF MOTION TO SET ASIDE
DEFAULT JUDGMENT AND FOR NEW TRIAL
STATE OF TEXAS §
CAMERON COUNTY §
BEFORE ME, the undersigned authority, on this day personally appeared Nancy W.
Russell, who being duly sworn, deposed as follows:
1.
"My name is Nancy W. Russell. I am the President of Rhino Contractors, LLC
("Rhino"), Defendant in this action. I am authorized to make this Affidavit. I am over eighteen
years of age, of sound mind, and capable of making this Affidavit. I have never been convicted
of a felony of moral turpitude. The matters stated herein are of my personal knowledge and are
true and correct.
2.
As President of Rhino, I am also the custodian of records for the company. Attached to
this affidavit, marked Rhino 0001-0029, are records kept by me in the regular course of business,
and it was the regular course of business of Rhino for a representative of Rhino, with knowledge
of the services provided and the payments made for the services provided, to make a record or
transmit infonnation to be included in the record. The records were made in the regular course
of business at or near the time or reasonably soon after the time the service was provided and the
payments were made. The records are the original or duplicates of the original.
3.
Rhino 0001 is a listing of the outstanding balance, to date, of all transactions with vendor,
Vulcan Materials. Rhino 0002 is a listing of all payments made to vendor Vulcan Materials.
Rhino 0003-0029 are internal notes and emails regarding the disagreement with Vulcan over the
improper crediting ofRhino's accounts with Vulcan. These records demonstrate that there was,
and still is, a bona fide dispute over the allowance of lawful payments, credits and offsets for the
account of Rhino. Based upon the records attached, the amount claimed and awarded in
Vulcan's judgment is incorrect as it is far in excess of the amounts indicated in the records.
EXHIBIT~
64
STATE OF TEXAS §
§
COUNTY OF CRAWFORD §
BEFORE ME, the undersigned authority, on this day personally appeared
N~W.-a,~e.t\ , known to me, who being by me duly swom upon oath deposes and states that
xx is over the age of eighteen (18), that he/she is of sound mind, that he/she is fully competent to
make this affidavit and acknowledgement, that he/she has personal knowledge of every
statement contained herein, that the statements contained in the above instrument are true and
correct, and that he/she executed the above instrument for the purposes and consideration therein
expressed.
SUBSCRIBED AND SWORN TO BEFORE ME, and given under my hand and sea] of
office this~ day of ..J"'CUUJtVlj , 2015.
Notary Public in and for
Said County and State
My Commission Expires:
1749893 IISPSA/36984!01011012915
65
5:39PM Rhino Contractors, LLC
01/19/16
Accrual Basis
Vendor Open Balance
All Transactions
Num Memo Open Balance
VULCAN CONSTRUCTION MATERIALS
61011923 Vulcan Lost Check 21,127.12
61049571 Bahia Grande SO: 11.12, 13, 14, 2014 79,223.62
61049570 Bahia Grande SO: 11.12.13 3,626.93
61049573 Bahia Grande S0:11.18, 19,20,21,22 2 87,998.81
61053866 Laguna B S0:2.4-5.2014 13,684.16
61057777 Laguna B S0:2.19 and 2.20.14 14,672.69
61049215 Laguna B S0:1.16.14 12,95&.&7
61050846 Laguna B SO: 1.21 ,22,23 2014 34,490.71
61052480 Laguna B SO: 1.27.14 8,370.50
61055500 Laguna B SO: 2.1 0,13 2014 11,504.08
61057778 Laguna B SO: 2.17,18,19 2014 9,874.20
TOTAL 297,529.49
Page 1 of 1
66
RHINO 0001
5:47PM Rhino Contractors, LLC
01/15/16 Bill Payments for VULCAN CONSTRUCTION MATERIALS
All Transactions
Type Num Date Amount Open Balance Memo
Bill Pmt -Check 13600 07/16/2014 3,174.78 93988.212961
Bill Pmt -Check 13558 06/1512014 718.69 93988.212961
Bill Pmt -Check 13523 05/0812014 9,706.48 Laguna B JO...
Bill Pmt -Check 13445 04/0112014 58,797.05 JOB 1246 La...
Bill Pmt -Check 13387 0211712014 21,129.65 JOB 1246 La...
Bill Pmt -Check 13309 01/1212014 1,026.08 JOB 1246 Lag ...
Bill Pmt -Check 13317 01/10/2014 23,666.69 JOB 1246 Lag ...
Bill Pmt -Check 13282 12/2312013 38,741.50 JOB 1246Lag...
Bill Pmt -Check 13224 12102/2013 66,193.75 JOB 1246 Lag ...
Bill Pmt -Check 13121 10/24/2013 0.00 VOID: 93988 ....
Bill Pmt -Check 13120 10/23/2013 19,821.27 JOB 1238 La ...
Bill Pmt -Check 13117 1012112013 6,607.09 JOB 1238La...
Bill Pmt -Check 13058 10/01/2013 35,311.50 JOB 1238 La...
Bill Pmt -Check 13059 10/01/2013 0.00 VOID: $26428 ...
Bill Pmt -Check 13060 09/1712013 348.88 Job 1238 Lat..
Bill Pmt -Check 13028 09/1512013 2,098.65 Job 1238 Lag ...
Bill Pmt -Check 12928 07/24/2013 18,228.70 Job 1238 Lag ...
Bill Pmt -Check 12899 07/16/2013 58,242.80 Job 1238 Lag ...
Total 363,813.66 0.00
Page 1
67
RHINO 0002
6.15.14
QeiMiiY I..Oc:iltlon ~ ~~~ ~Hi! aana lXiCi.
1 FWS Laguna Alaacosa NWR: F 8.27.2013 9.15.2013 61011923 21.127.12 see enclosed Paid by ck# 13121 $21127.12 FED EX802457937474 ReceiPt TreCI Lynner
• Need explanetJon for Government on what happened to the check
2 FWS Laguna Atascosa NWR 9.23.2013 10.15.2013 61019776 ($348.83)
3 LaiB Chalge 9.30.2013 10.15.2013 33690 311.88 s 311.88 Rhino wiU pay•• We did not maD the chsck unt1110.23.14 dus to Govsmmant Shutdown
clc#13558
4 FWS Laguna Alaacosa NWR 9.30.2013 10.15.2013 61022340 501.77 0 As per email dated 12.6 13. ticket# 57000633 Is not Rhano
5 Late Chelflll 10.31.2013 11.15.2013 36298 1,089.80 0 REVIEW
& FWS Laguna Alaacosa NWR 11.11.2013 12.15.2013 61033533 31,365.05 VOID:ThiS lnvotee was perUy on lnv 61049568; Need to reinvolce for the remaining not biDed
7 Late Chelfle 11.30.2013 12.15.2013 39490 1,893.23 s 407.01 See BeiDW(OWe $407.01)c:k#13558
8 FWS Laguna Ala!IIXlSa NWR 12.20.2013 01.15.2014 81042888 8,127.00 Incorrect: Rhino does not have ticket# 57004615· pending revised anvoace
9 Late Ch81fl8 12.31.2013 01.15.2014 43151 5,251 .84 REVIEW
10 Bahia Grande Wildlife 01.24.2014 02.15.2014 61049569 55,459.58 see enclosed REBILL requested on in 61033535 end on 61049569 due to 57002063is not our receipt
2.12.14 3.15.2014 61054012 316.82 see enclosed See note on Invoice
1 I'm attaching the documents sent along with Fed Ex Receipt.. Did Vulcan not find the package. Need a statement whether It was lost?
3 Paid by Rhino •• We were late In payment due to Government shut down
4 Need a revised Invoice because the noted ticket was not Rhino; This was on the previous request 11&,892.20
•• On tnv 6W22340, there was one weight ticket that was not ours; I never received the reblllso I paid the
Invoice less that receipt. David, I think I gave you a copy when I made the payment.M I can look up the lnfonnatlon
6 See notes, need for It to be rebnted. I talked previously with the assistant Angel and explained the error. I never received the revised Invoice
7 Rhino paid partiaL L£E this was on the previous correspondence and I don't have the explanation
8 see notes by Invoice
• I mailed the check to clear 113 and 111 so I can validate everything with the government clcfl13558
• I will start making payment next week on the January lnvolces;can we get these last few things corrected.
61049215 61049568
61050846 61049571
61052480 61049570
61052481 61049574
::::0
I 61052481 61049572
z
0
0
0
0
(..)
68
TIMELINE OF COMMUNICATIONS/EMAIL$
7.2.13 *emalled David Farrar[Vulcan Rep] that Invoices were incorrect: Cost/ton was incorrect
*Payment were not being applied to accounts due to their billing systems
8.13.13 Emalled that revised Invoices had not been sent to Rhino
Emalled that payments were not reflected on Vulcan's Statement
8.24.13 RC received the revised invoices for deliveries on 7.3.13
Requested corrected Vulcan Statement w. RC payments reflected on Statement
8.31.13 RC received Statement with NO CORRECTIONS/No late charges removed
9.15.13 RC emailed various Individuals at Vulcan's Corporate offices requesting assistance
9.16.13 same
9.17.13 same
10.1.13 thru 10.23.13 GOVERNMENT SHUT DOWN
10.20.13 RC emailed David that I had a check ready because David wanted to pick them up; NO SHOV
10.22.13 RC emalled Vulcan requesting correction to statement and Invoices;
10.23.13 RC overnlghted payment to Vulcan Office .•. Vulcan could not find it even though RC has trac
number and signature from Vulcan office
** Requested corrections to invoices along with revised statement/invoices..
10.25.13 Vulcan shut down RHINO's account •• even though no action was taken to correct account
*** NOTE: US FISH had agreed to continue payments for deliveries however commitment....,
not honored at the last minute due to accounting requirements of us Fish; thus RC had
to void payment on one check
**** CONTINUED REQUESTING CORRECTIONS TO INVOICES
12.16.13 Emalled David Farrar that none of RC invoices had been corrected Ill Stated that I had been
working on this since July 2013 with no progress
1.14.14 RC meet with David Farrar at Jack in the Box.. Requested revised documents
1.2014 RC received some of the revised invoices but the majority remained incorrect
4.29.14 Vulcan appointed new account services individual to assist with correction: NO PROGRESS
5.1.14 RC em ailed errors on statements/ invoices
5.6.14 thru 5.23.14 RC In constant communications with Vulcan; requesting revisions
6.15.14 RC emalled errors on statements/ invoices
6.20.14 RC emalled to Vulcan support documents to Illustrate corrections needed on invoices/state•
8.3.14 RC spoke with a local attorney: Jason Mann and asked for their help to rectify the invoices/s
69 RHINO 0004
Nlincy Russell LO
0
Fnxn: Nancy Russel (nancy@rhlno-rgv.cam) 0
0
Sant: Sunday, May 11, 2014 7:20 PM
To: 'While, Adela' 0
Cc: 'Lee Russelr z
Subject: RE: RHINO CONTRACTORS emall22 I
0:::
Vulcan Materials Inc
1200 Urban Ctr Dr
Binningharn AL 35242
It appears that most of the Fed Ex shipping labels were addressed to Traci Lynch. Someone must have given me her name in all of this mess. The
check has not cleared. I did notice that the check for $58,000+ did clear ..
I am going to be flying all day tomorrow so will be out oftouch. I have finished one more ofthe group of invoices. I need to have an updated
statement showing all of the items corrected that were to be correct and/or cleared done. I have to submit this to US Fish and SBA I will be sending
another batch of checks. I will be in a conference most of the week but just email me and I will respond late at night.
Nancy W Russell
CEO/President
Rhino Contractors, LLC
SBA 8AIW08BIIIUB Certlfled
26163 Altaa Palmu Road
Harlingen T•-• 78852
OfRce:9!18.384.1737
Fax:956.412.82AO
Celldt5&.S3S.4900
From: White, Adela [malltD:whitead@vmcmall.com]
Sent: Tuesday, May 06, 2014 2:06PM
To: Nancy Russell
Subject: Re: RHINO CONTRACfORS email 22
Nancy,
rm needing the address where ck#13121 was sent, and date it cleared your bank.
Thank you,
1
70
On Fri, May 2, 2014 at 9:27AM, Nancy Russell wrote:
co
0
I am finishing those today and will have a response. Lee , I appreciate you helping. 0
0
0
z
I
et::
As I stated in my emails, Vulcan has put me in a difficult situation with the SBA because I wasn't able to comply with the reports that I requested in
July. If you will read my emai~ you will see where I request the "urgency" to my account. Rhino is an SBA SA company and this has caused me a
lot of problems. I was told in January 2014 by David Farrar that everything would be taken care of... and I would have someone to work with.
Again, nothing happened.
Nancy W Russell
CEGIPraaldant
Rhino Contractors, LLC
SBA 8AIWOSBIHUB Cartlftad
26163 Altas Palma• Raacl
Harlingen Taxa T85!12
Offlce:9S&.364.1737
Fax:956A12.6240
Call:95&.535.4900
From: McCarty lr, Lee [mallto:mccartvl®vmcmall.coml
Sent: Friday, May 02,2014 9:08AM
To: Nancy Russell
Subject: Re: RHINO CONTRACTORS email 22
2
71
1'-
0
We will remove the late charges. Adela will be emailing soon. Lots of January invoices due, any problems on them? 0
0
0
z
J:
0::::
On Thu, May 1, 2014 at 6:23PM, Nancy Russell wrote:
Lee, Attached are the a few request for copies of the late charges. I am having to go back to all my emails to your company to verify everything. But
I will be finished. Here is the initial half I await for the copies and corrections.
Nancy W Russell
CEOIPruldeat
Rhino Contractors, LLC
88A 8AIWOSBIHUB Certlftad
28163 Alta• Palma• Road
Harlingen T..- 78552
Offlc:e:9!16.364.1737
Fax:9S8.412.6240
Ce01956.535.4900
From: McCarty Jr, Lee [mallto:mccartvl@vmcmail.coml
5ent: Wednesday, April 30, 2014 1:35 PM
To: Nancy Russell
Subject: Re: Scan from a Xerox WorkCentre
3
72
Thank you
co
0
0
0
0
On Wed, Apr 30, 2014 at 1:23PM. Nancy Russell wrote: z
I
0:::
I am preparing a spreadsheet of every invoice that is incorrect and will have this to you by tomorrow or Friday morning at the latest.
Nancy W Russell
CEO,...._Ident
Rhlna Cantractars1 LLC
SBA 8A/WOS8fHU8 Certlfted
26183 Altas Palma• Road
HarUngen Texas 78552
Offtce:956.384.1737
FaJa956A12.6240
CeiL-956.535.4900
From: McCarty Jr, Lee [mailto:mccartyl@vmcmal!.comJ
Sent: Wednesday, April30, 2014 8:27AM
To: Nancy Russell
Subject: Re: Scan from a Xerox WorkCentre
Confused, the note you sent Adela is prior August 27 and taken care of. I need to know about the 26 invoices still due. How can we help? Once paid I
can remove the late fee's.
4
73
0)
0
On Tue, Apr 29, 2014 at 3:31 PM, Nancy Russell wrote: 0
0
0
I have them finished on my side. The penalties have to be removed starting with 7.31.2013. I sent correspondence to Adela so there is a clean z
explanation of the errors. I am working on your account right now as well ... because I want to clear this now that I have someone to work with. I
0:::
Thank you for assigning someone. I would appreciate there being actions taken on the issues address in my email from 7.31.13.
Nancy W Russell
CEOIPrasldant
Rhino Contractors, LLC
SBA 8AIWOS8/HU8 Certified
28183 Altlls Palmas Road
Harlingen Texas 78552
Offlce:958,364.1737
Fa1C1956.412.624D
Ceii:956.535.49DD
From: McCarty Jr, Lee [malltn:mccarM@vmcmail.com]
Sent: Tuesday, Aprfl29, 2014 3:18PM
To: Nancy Russell
Cc: Farrar, David
Subject: Re: Scan from a Xerox WorkCentre
I can have Adela send you all the 26 invoices, you mark what is wrong and we will get them corrected. Would that work for you?
5
74
0
.......
On Tue, Apr 29,2014 at 3:10PM, Nancy Russell wrote: 0
0
0
Lee, As I have stated since July 2013, I am required to have ALL the errors corrected on the statement. Secondly, the invoices that were rebilled are z
INCORRECT. I was told on 1.14.14 at 10:00 am that I would have contact person and everything would be cleared IMMEDIATELY .. £ received a I
0:::
phone call from David on 4.22.14 with my contact person so I can start all over again. I have sent over 20 request and no one has corrected any of
the invoices nor errors. The attached statement clearly shows that ALL of my correspondence has been ignored so WHO do I go to ask for
assistance? Just let me know. Do I go thru Adela or Linda Trimpe?
Nancy W Russell
CEOIPraeldant
Rhino Contractors1 LLC
S8A 8A/WOSBIHUB Certified
26163 Alta• Palm- Road
Hlllllngan Texas 78852
Offh:e:956.364.1737
FaxJ956.412.6240
Call:956.535.4900
From: McCarty Jr, Lee [malltD:mccartvl@vmgnail.coml
Sent: Tuesday, April29, 2014 2:43PM
To: lee@rhlno-rov.com
Cc: nancy@rhjno-rov.com; Kenny Warr; David Farrar, Adela White
Subject: Fwd: Scan from a Xerox WorkCentre
6
75
I have reviewed your email that you sent Adela today. It looks like all invoices prior to August 27 have been taking care of. We now need to address
.......
the 26 invoices forward that total $490k and are seriously past due. Please review the attached statement with invoices that are checked. Please .......
0
respond on David picking up a check tomorrow 0
0
---Forwarded message--- z
I
From: <4thFloorXEROX@vmcmail.com> 0:::
Date: Tue, Apr 29, 2014 at 2:40PM
Subject: Scan from a Xerox WorkCentre
To: Lee McCarty
Please open the attached document. It was scanned and sent to you using a Xerox WorkCentre.
Sent by: Guest (4thFioorXEROX@vmcmail.com]
Attachment File Type: PDF
WorkCentre Location: 4th Floor Sales Isom Rd
Device Name: XRXOOOOAADDE31F
For more information on Xerox products and solutions, please visit http://www.xerox.com
Lu McCarty I Credit Manager I Vulcan Materials Company
800 Isom Road, Ste. 300 •SaJl Antonio, Texas 78216 W: (210) 52-1-3524 1 F: (210) 524-3555
email: mccartyl@.vmcmail.com
7
76
N
.....
0
0
0
z
IG B This email is free from viruses and malware because avast! Antivirus protection is active.
:::r:
0::::
Lee McCtuty I Credit Manager I Vulcan Materials Company
800 /som Road, Ste. 300 •San Antonio, Texas 782/6 W: (2/0) 52-1-352-1 F: {2/0) 52-1-3555
email: mccartylriV.vmcmail.com
10---------------------------------------------------
a
------------------------------------------
This email is free from viruses and malware because avast I Antivirus protection is active.
8
77
('t)
......
0
0
0
z
J:
0::::
Lee McCarty I Credit Manager I Vulcan Materials Company
800 lmm Road Ste. 300 •San Antonio, Texas 782161 W: (2/0J 52-1-3524 F: (210) 52-1-3555
email: mccarty/fa.vmcmail.com
j0 j This email is free from viruses and malware because avast I Antivirus protection is active.
Lee McCtuty I Credit Manager I Vulcan Materials Company
800 Isom Road, Ste. 300 •San Antonio, Texas 782161 W: (210) 52-1-352-11 F: (210) 52-1-3555
9
78
email: mccarty/fq'.l'mcnuul. cam
~
.....
0
0
0
z
J:
~
I[!I a This email is free from viruses and malware because avast! Antivirus protection is active.
Lee McCarty I Credit Manager I Vulcan Materials Company
800 lsom Road, Ste. 300 •San Antonio, Texas 782161 W: (2/0) 52-1-352-1 ! F: (2/0) 52-1-3555
email: mccartyta:vmcmail. com
Il!J Q This email is free from viruses and malware because avast! Antivirus protection is active.
10
79
10
......
0
0
0
z
Adela White I Credit and AR I SOR- Texas I Vulcan Materials Company I Website: l1)www.vulcanmaterials.com J:
0:::
800 Isom Rd. Ste. 300 San Antonio, TX 78216 I W 'iil: (210)524-3503 I F'm': (210) 524-35551 (J):whitead!c(-,vmcmail.com
j0 ~ This email is free from viruses and malware because avast! Antivirus protection is active.
11
80
co
~
0
Nancr Russell 0
0
From: Nancy Ruaell (nancyGfhN.rgu:om} z
Sent: WedneSday, bclabet 23, 2013 5:01 PM J:
To: 'Fanat. David' 0:.::
Bt.lb)ectl Payment
AttaaJwnenta: SPREADSHEET.xtr.x
David,
I overnighted(Lona Star overnight) a payment to your office in BI'Ownsvllle Texas in the amount of $21127.12. Here is the updated spreadsheet.
There was a payment made in the amount of $348.88 that need!> to he applied to the late fee that was due on 10.15.13 for tnvoice 33690 in the
amount of 311.68. Thus I have a remaining 31.97 that can be applied to invoice 6109776.
•nvoice 61022340 has a ticket that was applied incorrectly #57000633. I will need the invoice correct and resubm;ued. Alf of these Invoices go to
the government along wit 1 Wetght tickets and they want everything exact.
Nancy W Russell
CEO(Presldent
Rhino Contractors, LLC
SBA BA/WOSBIHUB CertJO&d
26183 AJtas Palmas Ro<~d
Harllltgon Tescns 78552
Offlt;o:91&,364.1737
fa»u9S6.412,6240
CoRc9!16,S35,4900
81
----- - - - -
October 24.2013
Dear Customer:
llle following Ja the proof-okielivel for tradring number 802457937474.
Stalu8: Delivered ReceplianlatiFront Desk
Sfgnad 1br by: V.WARO 1200 URBAN CENTER DR
AL35242
Oct 23. 2013 09:16
Shipping fnfarmatian:
TJZidng number. 802457937474 Oct22, 2013
Redplent Shipper.
TRACIE LYNCH NANCY RUSSELL
VULIAN MATERIALS CO RHINO CONTRACTORS.I.LC
1200 URBAN CTR DR 28183 ALTAS PALMAS RD
AL35242US HARLINGEN, lX 785526285 US
Thank you for choosing FedEle.
82 RHINO 0017
fed, Pac:l\fiiJH
i .~ ,ftir!Ji/i 8024 5793 7474 r:; 0215
I , ; of-.. . . .. I' ' ,11
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I
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83
I
N~ncy Russell
Fram: Nancy R11118111 [IIIIICYCirhhH'gv.ccm)
Sent: Sll"lday, May 11,2014 7:20PM
To: 'White.~
Cc: 'Lee Ru88811'
Subject: RE: RHINO CONTRACTORS emall22
Vulcan Materials Inc
1200 Urban Ctr Dr
Birmingham AL 35242
It appears that most of the Fed Ex shipping labels were addressed to Traci Lynch. Someone must have given me her name in all of this mess. The
check has not cleared. I did notice that the check for $58,000+ did clear ..
I am going to be flying all day tomorrow so will be out oftouch. I have finished one more of the group of invoices. I need to have an updated
statement showing all of the items corrected that were to be correct and/or cleared done. I have to submit this to US Fish and SBA I will be sending
another batch of checks. I will be in a conference most of the week but just email me and I will respond late at night.
Nancy W Ruaell
CEOIPrealdent
Rhino Contractors, LLC
8BA 8AIW0811111UB Certified
28183 Altaa Palm-.._.
Harlingen TeXM 781112
Olllcml!l8.384.1737
FIIJIIIHI8.412.82AO
CIIIIIIILIH.4100
Fram: White, Adela [mallto:whltead@vrncman.com]
Sent: Tuesday, May 06, 2014 2:06 PM
To: Nancy Russell
SUbject: Re: RHINO CONTRACTORS email 22
:::0 Nancy,
:::r: rm needing the address where ck#13121 was sent, and date it cleared your bank.
z
0
0
0
Thank you,
~
co
1
84
On Fri, May 2, 2014 at 9:27AM, Nancy Russell wrote:
I am finishing those today and will have a response. Lee , I appreciate you helping.
As I stated in my emails, Vulcan has put me in a difficult situation with the SBA because I wasn't able to comply with the reports that I requested in
July. If you will read my email, you will see where I request the "urgency" to my account. Rhino is an SBA SA company and this has caused me a
lot of problems. I was told in January 2014 by David Farrar that everything would be taken care of... and I would have someone to work with.
Again, nothing happened.
Nancy W Ruuall
Rhino Contractora1 LLC
BBA 8AIW08BIHUB C.atled
28183 Ale.• P.a..... RCIIId
lllull....a T . . . . '70!12
FU18!18,412.1240
C.U1918.!1311.4BOO
:::0
I
z
0 Frvm: McCarty Jr, Lee [malltD:mccarM®vmcmall.com]
0 Sent: Friday, May 02, 2014 9:08 AM
0
IV To: Nancy Russell
0
Subject: Re: RHINO CONTRACTORS email 22
2
85
We will remove the late charges. Adela will be emailing soon. Lots of January invoices due, any problems on them?
On Thu, May 1, 2014 at 6:23PM, Nancy Russell wrote:
Lee, Attached are the a few request for copies of the late charges. I am having to go back to all my emails to your company to verify everything. But
I will be finished. Here is the initial half. I await for the copies and corrections.
Nancy W Runell
CEOIPIUkltlnt
Rlllno Contracton, LLC
88A 8AIW08111H. . Certified
28183 Allaa ....._ Road
Harllna-T.... 78112
ClffiC8IBH.364.1737
FIUIIB58.412.6240
c.tla858.531.49GO
:::0 From: McCarty Jr, Lee [mallto:mccartyl®vmcmal!.coml
:::r: Sent: Wednesday, April 30, 2014 1:35 PM
z To: Nancy Russell
0
0 SUbJect: Re: Scan from a Xerox WorkCentre
0
N
~
3
86
Thank you
On Wed, Apr 30, 2014 at 1:23PM, Nancy Russell wrote:
I am preparing a spreadsheet of every invoice that is incorrect and will have this to you by tomorrow or Friday morning at the latest.
Nancy W Ru-11
CEOIPrwaldeat
Rhino Contracton, LLC
8BA 8AIW088/HU8 C.rllfted
281UAita8Palmu._.
FaaM6.41Z.6240
CelldiS&.!S3!1.4800
From: McCarty Jr, Lee [rnallto:mccartvl®ymcmal!.com]
Sent: Wednesday, Aprll30, 2014 8:27AM
To: Nancy Russell
:::0 Subject: Re: Scan from a Xerox WorkCentre
I
z
0
0
0
1\) Confused, the note you sent Adela is prior August 27 and taken care of. I need to know about the 26 invoices still due. How can we help? Once paid I
1\)
can remove the late fee's.
4
87
On Tue, Apr 29,2014 at 3:31PM, Nancy Russell wrote:
I have them finished on my side. The penalties have to be removed starting with 7.31.2013. I sent correspondence to Adela so there is a clean
explanation of the errors. I am working on your account right now as well ... because I want to clear this now that I have someone to work with.
Thank you for assigning someone. I would appreciate there being actions taken on the issues address in my email from 7.31.13.
NancyWRuaall
CEOIPraald...t
Rhino Contractors, LLC
8BA 8AIWD8BIHUB Certified
28183 Alta him•• Road
Harllllgen T - - 78182
Olllcea818.384.1 T3T
F111C1188.41Z.U40
c....,sa.sasAaoo
From: McCarty lr, Lee [maRto:mccarty!@yrrcmail.com]
Sent: Tuesday, Aprll29, 2014 3:18PM
To: Nancy Russell
:::o Cc: Farrar, David
:::r: SUbject: Re: Scan from a Xerox WorkCentre
z
0
0
0
1\,)
w I can have Adela send you all the 26 invoices, you mark what is wrong and we will get them corrected. Would that work for you?
5
88
On Tue, Apr 29, 2014 at 3:10PM, Nancy Russell wrote:
Lee, As I have stated since July 2013, I am required to have ALL the errors correc::ted on the statement. Secondly, the invoices that were rebilled are
INCORRECf. I was told on 1.14.14 at 10:00 am that I would have contact person and everything would be cleared IM:MEDIATELY.. I received a
phone call from David on 4.22.14 with my contact person so I can start all over again. I have sent over 20 request and no one has corrected any of
the invoices nor errors. The attached statement clearly shows that ALL of my correspondence has been ignored so WHO do I go to ask for
assistance? Just let me know. Do I go thru Adela or Linda Trimpe?
NancyWRuaall
CEGIP,...._at
Rhino Contractors, LLC
88A 8AIWD8BIHU8 Certified
21183 Allll• Pal. . . Road
.......... T.... 781S2
Offlce;H8.314.173T
FUJ888A12.8240
Celh911.13B.4100
:::0
From: McCarty Jr, lee [mailto:mccartvl@vmgnai!.comJ
:::r: Sent: Tuesday, Aprtl29, 2014 2:43 PM
z To: !ee@rhiDo-roy.mm
0 Cc: nancv!Dlrhino-rgy.com: Kenny Warr; David Farrar; Adela White
0 Subject: Fwd: Scan from a Xerox WorkCentre
0
N
~
6
89
I have reviewed your email that you sent Adela today. It looks like all invoices prior to August 27 have been taking care of. We now need to address
the 26 invoices forward that total $490k and are seriously past due. Please review the attached statement with invoices that are checked. Please
respond on David picking up a check tomorrow.
---Forwarded message---
From: <4thFloorXEROX@ymcmail.com>
Date: Tue, Apr 29, 2014 at 2:40PM
Subject: Scan from a Xerox WorkCentre
To: Lee McCarty
Please open the attached document. It was scanned and sent to you using a Xerox WorkCentre.
Sent by: Guest [4thFloorXEROX@vmcmail.com]
Attachment File Type: PDF
WorkCentre Location: 4th Floor Sales Isom Rd
Device Name: XRXOOOOAADDE31F
For more information on Xerox products and solutions, please visit http://www.xerox.com
Lee McCtrrty I Credit Mt~~~ager I V11kt111 Materia/r Conrpt111y
~ 800 /som Road, Ste. 300 • Sa11A11tonio, Texas 78216 1W.· (210) 524-352-1 1F: (2 10) 52-1-3555
z
0 email: mccarty/Ciilvmcmail.com
0
0
N
01
7
90
Il!l ij This email is free from viruses and malware because avast! Antivirus protection is active.
Lee McCtuty I Credit MaiUiger I Jl•klm Materials Company
800 /som Road. Ste. 300 • San Antonio, Texas 78216 ! W:· (2/ 0) 524-3524 1F: (210) 52-1-3555
email: mccartyl@vmcmail.com
:::0
10 B This email is free from viruses and malware because avast I Antivirus protection Is active.
I
z
0
0
0
N
0)
8
91
Lee McCarty I Credit MtUUJger I VldCllll Mlllerillls Company
800 lsom Road. Ste. 300 • Sail Anto11io, Teras 78216 1W: (210) 52-1-3524 1F: (210) 52-1-3555
email: mccartylrmvmcmqil.com
Il!l j This email is free from viruses and malware because avast I Antivirus protection Is active.
:::0
I
z
0
g Lee McCorty I Credit M1111ager I Vulc1111 M11terltds Comp1111y
~ 800 /som Road. Ste. 300 • Sa11 Antonio, Texas 78216 1 W: {2/0) 52-1-352-1 1F: (210) 52-1-3555
9
92
email: mccartylriV.vmcmail.com
II!] ij This email is free from viruses and malware because avast! Antivirus protection is active.
Lee McCtuty I Credit MtuUJger I Vulcan Mtlterials Company
800 Jsom Road. Ste. 300 • San Antonio, Texas 78216 1 W:· (210) 524-3524 ! F: (2/0J 524-3555
email: mccartylrfJ)vmcmailcom
:::0
::r:
z
0
0
0
N
j [!) i This email is free from viruses and malware because avast! Antivirus protection is active.
co
10
93
Adela White I Credit ancl AR I SOR- Texu I Vulcan Materials Company I Website: tJ' www.vulc.;mmaterials.com
800 lsom Rd. Ste. 300 San Antonio, TX 78216 I W : (210)524-3503 I F if : (210) 524-35551 1):whitead@ymcmajl.com
IE1 j This email is free from viruses and malware because avast! Antivirus protection is active.
:::0
I
z
0
0
0
1\)
<.0
11
94