ACCEPTED
13-15-00180-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
12/3/2015 4:02:14
11/23/2015 1:28:09 PM
Dorian E. Ramirez
CLERK
NO. 13-15-00180-CV
IN THE THIRTEENTH COURT OF APPEALS
FILED IN
CORPUS CRRISTIIEDINBURG TEXAS
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
12/3/2015 4:02:14 PM
DORIAN E. RAMIREZ
No. 13-10-22,801 Clerk
24th District Court
DeWitt County, Texas
Honorable Kemper Stephen Williams
AIRJIREH SERVICE CORPORATION, HVAC PLUMBING SPECIALIST CORPORATION
AlKI A HV AC PLUMBING SPECIALIST CORPORATION A/K/ A HV AC PLUMBING
SPECIALIST INC., D/B/A AIR JIRER SERVICE A/KJA AIR JIREH SERVICES AND
OSKAR SEPULVEDA, JR.
Appellants
V.
WEAVER & JACOBS CONSTRUCTORS, INC.
Appellee
APPELLANT'S FIRST AMENDED BRIEF
Rene Zarazua
State Bar No. 24077285
Attorney for Appellants
Law Office of Lee Hernandez
A Professional Corporation
4100 NW Loop 410, Suite 100
San Antonio, Texas 78229
Tel.: 210.735.4202
Fax: 210.735.4231
rene@leehernandez.com
IDENTITY OF PARTIES AND COUNSEL
Appellants
Air Jireh Service Corporation
HV AC Plumbing Specialist Corporation a/k/a HV AC Plumbing
Specialist Corporation a/k/a HV AC Plumbing Specialist Inc. d/b/a
Air Jireh Service alk/a Air Jireh Services
Oskar Sepulveda, Jr.
Counsel for Appellants
Rene Zarazua
State Bar No. 24077285
Law Office of Lee Hernandez
A professional Corporation
4100 NW Loop 410, Suite 100
San Antonio, Texas 78229
Appellee
Weaver & Jacobs Constructors, Inc.
Counsel for Appellee
Clayton C. Utkov
State Bar No. 24028180
Christopher A. Scifres
State Bar No. 24088374
FORD NASSEN & BALDWIN P.C.
111 Congress, Suite 1010
Austin, Texas 78701
Presiding Judge
The Honorable Kemper Stephen Williams
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. .i
TABLE OF CONTENTS .ii
INDEX OF AUTHORITIES .iii
STATEMENT OF THE CASE 1
ISSUES PRESENTED 2
STATEMENT OF THE FACTS 3
SUMMARY OF THE ARGUMENT 4
ARGUMENT 6
PRAYER 17
CERTIFICATE OF COMPLIANCE 18
CERTIFICATE OF SERVICE 18
APPENDIX 19
-ii-
INDEX OF AUTHORITIES
Airborne Freight Corp. v. CR. Lee Enters.
847 S.W.2d 289 (Tex.App.-EI Paso 1993, writ denied) 15
Antonini v. Harris County Appraisal Dist.
999 S.W.2d 608,614 (Tex. App.-Houston [14th Dist.] 1999, no pet.) 8
Ashford Dev., Inc. v. USLife Real Estate Serv. Corp.
661 S.W.2d 933, 935 (Tex.1983)) 11-12
Bavarian Autohaus, Inc. v. Holland
570 S.W.2d 110, 116 (Tex.Civ.App.-Houston [1st Dist.] 1978, no writ) 16
Baylor Univ. v. Sonnichsen
221 S.W.3d 632, 635 (Tex. 2007) 8
Copeland v. Alsobrook,
3 S.W.2d 598, 604 (Tex. App.-San Antonio 1999, pet. denied) 9
Corpus Christi Dev. Corp. v. Carlton
644 S.W.2d 521, 523 (Tex.App.-Corpus Christi 1982, no writ) 16
Daldav Associates, L.P. v. Lebar
391 F. Supp. 2d 472,476 (N.D. Tex. 2005) 15
Dallas Firefighters Ass'n v. Booth Research Group, Inc.,
156 S.W.3d 188, 194 (Tex.App.-Dallas 2005) 15
Desantis v. Wackenhut Corp.,
793 S.W.2d 670,688 (Tex. 1990), cert. denied, 498 U.S. 1048, 111 S.Ct. 755,
112 L.Ed.2d 775 (1991) 12,14
Dolenz v. Continental National Bank
620 S.W.2d 572,576 (Tex. 1985) 6
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English v. Fischer
660 S.W.2d 521,524 (Tex. 1993) 10
Federal Sign v. Texas S. Univ.
951 S.W.2d 401,408-09 (Tex. 1997» 8
Flint & Assoc. v. Intercontinental Pipe & Steel, Inc.
739 S.W.2d 622,624 (Tex.App.-Dallas 1987, writ denied) 16
Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc.,
960 S.W.2d 41, 47-48 (Tex. 1998) 12,14
Graves v. Sommerfeld
618 S.W.2d 952,954-55 (Tex.Civ.App.-Waco 1981, writ ref'd n.r.e.) 16
Green Tree Acceptance, Inc. v. Pierce
768 S.W.2d 416, 425 (Tex.App.-Tyler 1989, no writ) 16
Gulf Coast Farmers Co-op v. Valley Co-op Oil Mill,
572 S.W.2d 726, 737 (Tex. Civ. App.-Corpus Christi 1978) 8
Harca Energy, Inc. v. Re-Entry People, Inc.
23 S.W.3d 389, 392 (Tex. App.-Amarillo, no pet.) 8
Hernandez v. Ikon Office Solutions, Inc.
306 F. App'x 180,182 (5th Cir. 2009) 11
Kimbrough v. Fox
631 S.W.2d 606, 609 (Tex.App.-Fort Worth 1982, no writ) 15
Lane & Nearn v. Warren
115 S.W. 903 (Tex. Civ. App. 1909, writ refused) 8
Morrow v. HE.B., Inc.
714 S.W.2d 297, 298 (Tex. 1986) 6
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Oxoco Exploration & Prod., Inc. v. Arrowhead Drilling Corp.
No. A14 86 181 CV, 1986 WL 13431, at *1 (Tex. App. Nov. 20, 1986) 6
Premium Hospitality, L.L. C. v. Astra Capital Funding,
ClV.A. 12-0779,2014 WL 896807 (E.D. La. Mar. 6,2014) 10
Rosas v. Bursey
724 S.W.2d 402,410-11 (Tex.App.-Fort Worth 1986, no writ) 16
Schindler v. Austwell Farmers Coop.
841 S.W.2d 853, 854 (Tex.1992) 14,16
Spoljaric v. Percival Tours, Inc.
708 S.W.2d 432 (Tex. 1986) 14
Sears, Roebuck & Co. v. Meadows
877 S.W.2d 281,282 (Tex. 1994) 12,14
Stanfield v. O'Boyle
462 S.W.2d 270,272 (Tex. 1971) 14
Stewart Title Guar. Co. v. Sterling
822 S.W.2d 1, 11 (Tex. 1991) 16
Stone v. Lawyers Title Ins. Corp.
554 S.W.2d 183, 185 (Tex.1977) 12,14
Tony Gullo Motors 1, L.P. v. Chapa
212 S.W.3d 299, 304 (Tex.2006) 11
T o. Stanley Boot Co. v. Bank of El Paso
847 S.W.2d 218,222 (Tex. 1992) 14
United Concrete Pipe Corp. v. Spin-Line Co.
430 S.W.2d 360, 364 (Tex. 1968) 8
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Villasenor v. Villasenor
911 S.W.2d411, 420 (Tex. App. 1995) 16
Weynand v. Weynand
990 S.W.2d 843, 846 (Tex. App.-Dallas 199, pet. denied.) 8
Statutes
Tex. Bus. & Com. Code § 17.46(a) 12
Tex. Bus. & Com. Code Ann. § 17.49 12
Tex. Bus. & Com. Code Ann. § 26.01 9
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TO THE HONORABLE THIRTEENTH COURT OF APPEALS:
Appellants, Air Jireh Services Corporation (herein "AJS Corp."), HV AC Plumbing
Specialist Corporation AIKI A HV AC Plumbing Specialist Inc. DIBI A Air Jireh Service A/KlAI
Air Jireh Services (herein "Air Jireh") and Oskar Sepulveda, Jr. (herein "Sepulveda") file this
brief asking the Court to reverse the Order of the trial court against AJS Corp., Air Jireh, and
Sepulveda (herein collectively "Appellants"). Appellants respectfully show that prior to the
filing of this brief, Appellant Sepulveda, filed a Notice of Bankruptcy in this Court. As such, in
order to not violate the Stay as to Sepulveda, Appellants continue the references to Sepulveda in
this brief only for purposes of continuity in Appellant AJS Corp. And Air Jireh's argument and
not to assert any relief in violation of the Bankruptcy Stay.
STATEMENT OF THE CASE
This is an appeal from the February 2,2015 trial concerning Plaintiff, Weaver and &
Jacobs (herein "Weaver & Jacobs ") claims of Breach of Contract, Promissory Estoppel, and
Violation of the Texas Deceptive Trade Practices Act against AJS Corp. and claims of Fraud and
Negligent Misrepresentation against Sepulveda.
Weaver & Jacobs filed an original petition against AJS Corp. for Breach of Contract and
Promissory Estoppel on or about October 3, 2013. AJS Corp. filed an Original Answer on
October December 2,2013. Weaver and Jacobs then filed a Second Amended Petition on
January 22, 2014 alleging a third cause of action of Violation of the Deceptive Trade Practices
Act. Weaver and Jacobs filed their Traditional Motion for Summary Judgment on May 8, 2014.
AJS Corp. filed its Response to Weaver & Jacob's Traditional Motion for Summary Judgment on
June 24,2014. A hearing was held on Weaver & Jacob's Motion for Summary Judgment on July
2,2014 and it was denied by Order dated November 26,2014. On July 30,2014, AJS Corp.
filed its Supplemental Answer and Counterclaim. On August 4,2014, Weaver & Jacobs filed its
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Third Amended Petition adding additional Defendant Air Jireh, and alleging additional causes of
action of Fraud and Negligent Misrepresentation against additional Defendant Sepulveda. Air
Jireh and Sepulveda filed an Answer on September 1, 2014. A trial on the merits was held on
February 2,2014. The Court rendered its Judgment on February 5,2015 against Appellants.
Appellants filed their Objections to Proposed Judgment and Motion to Clarify Court's Ruling
setting the matter for hearing on March 23, 2015. Appellants filed their Request for Findings of
Fact and Conclusions of Law on February 25,2015. The Court signed a Judgment on March 5,
2015. The Court rendered its Findings of Fact and Conclusions of Law on March 20,2015.
Appellants filed their Notice of Appeal on April23, 2015.
ISSUES PRESENTED
1. Whether the Trial Court erred in its Findings of Fact and Conclusions oflaw in
granting a judgment against AJS, Corp.
2. Whether the Trial Court erred in ruling that a valid, enforceable contract was formed
between Weaver & Jacobs and Appellants.
3. Whether the Trial Court erred in ruling that Air Jireh's Bid represented Air Jireh's
enforceable promise, in such a manner that Weaver & Jacobs would act in reliance on the
promise; and that Weaver & Jacobs did rely on the promise to its detriment.
4. Whether the Trial Court erred in ruling that Weaver & Jacobs is entitled to any
protections afforded to consumers under the DTP A.
5. Whether the Trial Court erred in ruling that Sepulveda submitted a copy of Air Jireh's
resume which contained several representations; that these representations were false; that
Sepulveda made these representations with knowledge of their falsity or recklessly, as positive
assertions, without knowledge of their truth; and that Weaver & Jacobs relied on Oskar
Sepulveda's false representations.
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6. Whether the Trial Court erred in ruling that Sepulveda submitted the Bid to Weaver &
Jacobs, in which he represented that Air Jireh would perform the Work in exchange for the sum
of $125,971. 00; that these representations were false; that Sepulveda made these representations
with knowledge oftheir falsity or recklessly, as positive assertions, without knowledge of their
truth; and that Weaver & Jacobs relied on Sepulveda's false representations.
7. Whether the Trial Court erred in ruling that Sepulveda represented to Weaver &
Jacobs that Air Jireh had 20 years experience, that Air Jireh had performed certain jobs, and that
Air Jireh would perform the Work in exchange for $125,971.00; that these representations were
false; that Sepulveda intended that Weaver & Jacobs to rely on said.
8. Whether the Trial Court erred in awarding attorney fees to Weaver & Jacobs.
STATEMENT OF FACTS
The parties filed a Joint Statement of Stipulated Facts. Additionally, on June 26,2013,
Sepulveda, Project Manager for Air Jireh found a request for proposals on the Builders
Exchange Website regarding the Taft Independent School District High School Improvements
projects (herein the "Project"). The same day Sepulveda submitted an email bid (herein
"original bid") to Weaver & Jacobs in the amount of$147,732.00. The original bid was per the
plans and specifics of the project and was to include certain digital controls (herein "controls").
Due to the fact Weaver & Jacobs were over budget, Mike Weaver of Weaver & Jacobs contacted
Sepulveda to engage in value engineering. On July 7,2013, Mr. Weaver sent Air Jireh an email
informing Air Jireh that Weaver & Jacobs wanted to replace the controls with wall-mounted
thermostats. On July 9, 2014 Air Jireh responded to Weaver & Jacobs by submitting a revised
bid (herein "first revised bid") in the amount to f$132, 670.00 and was incorrectly dated June
26,2013. According to Weaver & Jacobs, Air Jireh had not adjusted the first revised bid to
recognize the full reduction price due to the fact that the controls were a single-source
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specification. Air Jireh submitted another revised bid (herein "second revised bid") in the
amount of $125,971.00 which indicated thennastats instead of controls and was also incorrectly
dated June 26,2013. On July 23,2013 Weaver & Jacobs sent a subcontract for Air Jireh to
review and sign. Air Jireh reviewed the subcontract and noticed problems with the subcontract.
The first problem with the contract was the commencement date. The date on the contract was
June 25,2013. The commencement date was also June 25,2013, but the contract was forwarded
to Air Jireh on July 23, 2013. The second problem with the contract was that it stated the
subcontract was to follow the scope and work in accordance with the plans and specifications.
Although Air Jireh submitted three (3) separate bids, the plans and specifications were never
properly changed and included controls. As part of Air Jireh protocol, they will not submit
submittals, shop drawings, or release PO information without having a signed contract with each
job. Air Jireh could not sign the contract due to the above stated problems. Nonetheless, when
Weaver & Jacobs presented their subcontract to a third-party after Air Jireh allegedly breached,
the subcontract had a different commencement date and the plans and specs were changed.
SUMMARY OF ARGUMENT
It is Appellants' position that the Trial Court has erred regarding its Judgment against
AJS Corp., Air Jireh, and Sepulveda. First the Trial Court erred by granting a judgment against
AJS, Corp. as there was no evidence of AJS Corp. at trial, in the Court's Findings of Fact and
Conclusions of Law, nor in the party's stipulated facts. Second, the Trial Court has erred in
concluding that a valid, enforceable contract was fanned. A contract can only exist if there is
mutual assent or "meeting of the minds" regarding the subject matter and essential terms ofthe
contract. There was not an agreement to the terms of the contract. While Weaver & Jacobs
thought certain details regarding controls and specs or commencement dates were not
necessarily important, they were important to Appellants' to avoid liability. If they were not so
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important, then why did Weaver & Jacobs change the third-party subcontract after Appellants
allegedly breached? Third, the Trial Court erred in concluding that Air Jireh's bid offer
represented an enforceable promise. To succeed on a claim of promissory estoppel, Appellants
feel that the promise must be clear and unambiguous in its terms. As stated earlier, some
material aspects of the alleged promise/contract were not clear. Weaver & Jacobs felt that they
were not clear as well, which is why they changed the third-party subcontract. Fourth, the Trial
Court erred in concluding that Weaver & Jacobs was entitled to relief under the DTPA. Texas
allows a DTPA claim to run with a breach of contract claim when the Defendant's
misrepresentation is made to induce the consumer into the transaction. However, there was
never any evidence of Appellants misrepresenting any information to induce Weaver & Jacobs
into the transaction. As a matter of fact, the evidence shows the contrary, that Appellants had
every intention to perform according to their bids, as long as both sides were clear on the terms.
Furthermore, Weaver & Jacobs, as a matter oflaw, is not even entitled to the protections
afforded to Consumers under the DTPA because Weaver & Jacobs is not a consumer as the
conflict arose from a written contract that was more than $100,000.00. The fact that every bid
submitted by Appellants was over $100,000.00 removes Weaver & Jacobs from the protections
under the DTP A. Fifth, the Trial Court erred in concluding that Sepulveda made false
representations when submitting the resume and submitting the bid. The only evidence
regarding the resume of AJS Corp., was that it was true and correct as to the services performed
and that the company had been in business for the past twenty (20) years. There was never any
controverting evidence. A company is allowed to perform under a d/b/a and take credit for the
jobs. Furthermore, there is a lack of evidence to show that Appellants never intended to enter
into a contract. The evidence actually shows that Appellants had every intention to enter into a
contract, but at an agreement to the terms, which there was never an agreement. Lastly, the Trial
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Court erred in awarding attorney fees to Weaver & Jacobs. The fees were not reasonable and
necessary. Furthermore, the fees were not segregated as they should have been because there
were multiple causes of action that were not so interrelated as required. An award of attorney's
fees erroneously based upon evidence of unsegregated fees requires a remand.
ARGUMENT
Issue 1: The Trial Court erred in its Findings of Fact and Conclusions oflaw and in
granting a judgment against AJS Corp.
ARGUMENT & AUTHORITIES
On March 5, 2015, the Honorable Kemper Stephen Williams signed a Final Judgment in
favor of Weaver & Jacobs and against all Appellants. However, in the Findings of Fact and
Conclusions of Law signed by the Court on March 20,2015, AJS Corp. is never listed or even
referred to, only Air Jireh and Sepulveda are named. Furthermore, AJS Corp. was never a party
in the Joint Statement of Stipulated Facts, nor was it listed in said Joint Statement of Stipulated
Facts. Lastly, there was no evidence at trial to implicate AJS, Corp., only Air Jireh. In
considering a no evidence point of error, this court must consider only evidence and inferences
that support the finding and disregard all contrary evidence and inferences. Dolenz v.
Continental National Bank, 620 S.W.2d 572, 576 (Tex. 1985); Oxoco Exploration & Prod., Inc.
v. Arrowhead Drilling Corp., No. A14 86 181 CV, 1986 WL 13431, at *1 (Tex. App. Nov.
20, 1986). There was no evidence, nor were there any inferences as to AJS Corp. and as such it
was error for the Court to grant a judgment against AJS, Corp. without any evidence.
Issue 2: The Trial Court erred in ruling that a valid, enforceable contract was formed
between Weaver & Jacobs and Air Jireh.
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ARGUMENT & AUTHORITIES
To establish the existence of an enforceable contract, a party must prove (l) an offer, (2)
acceptance of the offer, (3) mutual assent or "meeting of the minds" regarding the subject matter
and essential terms of the contract, and (4) consideration, or mutuality of obligations. See
Baylor Univ. v. Sonnichsen, 221 S.W.3d 632,635 (Tex. 2007); Harca Energy, Inc. v. Re-Entry
People, Inc., 23 S.W.3d 389,392 (Tex. App.-Amarillo, no pet.) (citing Federal Sign v. Texas S.
Univ., 951 S.W.2d 401,408-09 (Tex. 1997)). To form a contract, the offer must be clear and
definite. Gulf Coast Farmers Co-op v. Valley Co-op Oil Mill, 572 S.W.2d 726, 737 (Tex. Civ.
App.-Corpus Christi 1978). A court, in deciding whether a contract was made, should determine
from the facts that all essential terms thereofhave been met. Id. The offer from Weaver &
Jacobs was anything but clear and definite, except of course to Weaver & Jacobs. RR 32:1-5;
33: 11-34:22 Three different bids were submitted, all with the alleged date of June 26, 2013. RR
31: 10-32:4. Likewise, there must be a clear and definite acceptance of all terms contained in the
offer. Id. An acceptance must not change the terms of an offer. If it does, the offer is rejected.
United Concrete Pipe Corp. v. Spin-Line Co., 430 S.W.2d 360,364 (Tex. 1968). A material
change in a proposed contract constitutes a counteroffer, which must be accepted by the other
party. Antonini v. Harris County Appraisal Dist. 999 S.W.2d 608, 614 (Tex. App.-Houston
[14th Dist.] 1999, no pet.). It is well established under Texas Law that the submission ofa bid in
response to an invitation for bids constitutes a formal offer to enter into a contract. Lane &
Nearn v. Warren, 115 S.W. 903 (Tex. Civ. App. 1909, writ refused). The submission of a
second revised bid constituted an offer that Weaver & Jacobs had to accept. Weaver & Jacobs
claims to have accepted the bid and memorialized the acceptance by sending over a subcontract
on July 23,2014. RR 23:5-20. It was this very subcontract that made Weaver & Jacob's alleged
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acceptance unclear and not definite. Mutuality of obligation refers to the parties' mutual
understanding and assent to the expression of their agreement. Weynand v. Weynand, 990
S.W.2d 843,846 (Tex. App.-Dallas 199, pet. denied.). The parties must agree to the same thing,
in the same sense, at the same time. The determination of a meeting of the minds, and thus offer
and acceptance, is based on the objective standard of what the parties said and did. Copeland v.
Alsobrook,3 S.W.2d 598,604 (Tex. App.-San Antonio 1999, pet. denied). The record is clear
that the parties were not on the same page. Sepulveda constantly refers to the fact that no terms
were agreed upon. RR 75:24-76:6; 76:20-21; 79:25-80:4; 80:16-23. Additionally, to further
corroborate the fact there was not mutual understanding between the parties we look to the
commencement date on both the subcontracts with Air Jireh and the Third-party subcontract.
Weaver & Jacobs admits that the commencement date ofthe subcontracts sent to Air Jireh stated
June 25, 2015, despite the subcontract being created on July 23,2015. RR 30:7-23.
Furthermore Weaver & Jacobs believes that the commencement date is not important. RR
30: 11-21. However, on the third party subcontract to Crossroads Mechanical that was necessary
after Air Jireh allegedly breached the contract, the commencement date stated August 20,2013
while the subcontract was dated July 23,2015. RR 32: 13-24. On the third party subcontract to
Crossroads Mechanical, changes were made to the contract to make sure the terms were clear.
RR 33:8-22. Again the fact that Weaver & Jacobs had to make changes to the subcontract when
sending it to Crossroads Mechanical to make sure the parties were clear further corroborates the
fact that there was no mutual agreement between Weaver and Jacobs and Air Jireh and thus no
contract.
Lastly, there could not have been a valid, enforceable contract due to the statute of
frauds. Under the statute of frauds, a promise or agreement is not enforceable unless the promise
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or agreement, or a memorandum of it, is in writing; and signed by the person to be charged with
the promise or agreement or by someone lawfully authorized to sign for him. Tex. Bus. & Com.
Code Alli. § 26.01. In this case, there was never a written agreement that was signed by any of
the Appellants. A bid was submitted, however, it was never accepted. Rather, a subcontract was
sent by Weaver & Jacobs that contained material changes and thus constituted a counter-offer as
stated previously. There was never any evidence of a written contract signed by AJS Corp., Air
Jireh, or Sepulveda. Conversely, the subcontract with the third-party contained all required
signatures unlike this contract.
Issue 3: The Trial Court erred in ruling that Air Jireh's bid represented Air Jireh's
enforceable promise to perform the Work in exchange for the amount of$125,971.00; that Air
Jireh reasonably foresaw that Weaver & Jacobs would act in reliance on the promise; and that
Weaver & Jacobs did rely on the promise to its detriment.
ARGUMENT & AUTHORITIES
Under Texas law, a plaintiff alleging promissory estoppel must establish (1) a promise;
(2) foreseeable reliance thereon by the promisor; (3) substantial reliance thereon by the
promisee. English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1993). Meanwhile, other Circuits
have held that in order to succeed on a claim of promissory estoppel, a plaintiff must prove: (1) a
promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is
made; (3) reliance both reasonable and foreseeable; and (4) injury due to the reliance. Premium
Hospitality, L.L.c. v. Astra Capital Funding, CIV.A. 12-0779,2014 WL 896807 (E.D. La. Mar.
6,2014). For the reasons stated under Appellants' Argument & Authorities for Issue 2, it is
Appellants' position that the alleged promise by Appellants lacked the clarity necessary for
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Weaver & Jacobs to claim promissory estoppel, thus barring Weaver & Jacobs from claiming
promissory estoppel.
Issue 4: The Trial Court erred in ruling that Weaver & Jacobs is entitled to all
protections afforded to consumers under the DTP A.
ARUGMENT & AUTHORITIES
The Texas Supreme Court has made clear that "[a]n allegation of a mere breach of
contract, without more, does not constitute a 'false, misleading or deceptive act' in violation of
the DTPA." Hernandez v.lkon Office Solutions, Inc., 306 F. App'x 180, 182 (5th Cir. 2009);
Tony Gullo Motors L L.P. v. Chapa, 212 S.W.3d 299,304 (Tex.2006) (quoting Ashford Dev.,
Inc. v. USLife Real Estate Serv. Corp., 661 S.W.2d 933,935 (Tex. 1983). Texas law allows
DTP A claims alongside contract claims when the defendant makes an initial misrepresentation
that was known at the time of the transaction and made to induce the consumer into the
transaction. Id. In the present case, the evidence is to the contrary in that there was never a
misrepresentation for Weaver & Jacobs to rely upon. There was no evidence presented that
showed that Sepulveda submitted the bid to induce Weaver & Jacobs into the transaction.
Sepulveda testified that he sent requests for submittals to M&M Metals, Mechanical Reps, and
Professional Air Balance indicating his intention to enter into a transaction. RR 78 :2-16; 79:21-
24. Furthermore, Sepulveda informed Chris Brzozowski of Weaver & Jacobs that Air Jireh
would be willing to perform the work on this project, once the two sides could agree as to the
terms. RR 79:25-80: 1-4. Not once, but twice did Sepulveda testify regarding the Appellants'
intention to perform according to the bids submitted. It was not until August 15, 2015, wherein
Sepulveda acknowledged that witout a signed, written contract Air Jireh would not engage in the
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project. RR 80:16-23. Additionally, the testimony of Kristen Parisher and Javier Martinez
corroborate the fact that Sepulveda and Air Jireh intend to perfonn the work, but not without the
proper understanding between the parties. According to Kristen Parisher, there was a concern
over liability if the terms ofthe subcontract were not correct. RR 85: 18-87:6.
There was never any testimony regarding the DTP A and Plaintiff failed to prove its cause
of action under the DTP A. Weaver & Jacobs does not constitute a "consumer" under the DTPA
due to the type of transaction involved. Further, the Deceptive Trade Practices Act does not
apply to a claim arising out of a written contract ifthe contract relates to a transaction, a project,
or a set of transactions related to the same project involving total consideration by the consumer
of more than $100,000.00. Tex. Bus. & Com. Code Ann. § 17.49. The testimony throughout
trial was regarding a written subcontract. RR 23: 18-20; 42: 13-20. Additionally, the dispute
arose out of three different bids that were submitted to Weaver & Jacobs. All three (3) bids were
for an amount greater than $100,000.00. RR 12:10-14; 41 :23-42:5. The bid that Weaver &
Jacobs allegedly relied upon was for the amount of$125,971.00 RR 32:4-5. Accordingly, the
DTP A does not apply specifically to this transaction and Weaver & Jacobs is not entitled to any
relief under the DTP A.
Issue 5: The Trial Court erred in ruling that Sepulveda submitted a copy of Air Jireh's
resume which contained several representations; that these representations were false; that
Sepulveda made these representations with knowledge of their falsity or recklessly, as positive
assertions, without knowledge oftheir truth; and that Weaver & Jacobs relied on Sepulveda's
false representations. (Argument made only for purposes of continuity and NOT to assert any
relief on behalf of Sepulveda who has filed a Notice of Bankruptcy with the Court)
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ARGUMENT & AUTHORITIES
A fraud cause of action requires a material misrepresentation, which was false, and which
was either known to be false when made or was asserted without knowledge of its truth, which
was intended to be acted upon, which was relied upon, and which caused injury." Formosa
Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41,47-48 (Tex.
1998); Sears, Roebuck & Co. v. Meadows, 877 S.W.2d 281,282 (Tex. 1994); *48 DeSantis v.
Wackenhut Corp., 793 S.W.2d 670,688 (Tex.l990), cert. denied, 498 U.S. 1048, 111 S.Ct. 755,
112 L.Ed.2d 775 (1991); see also Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185
(Tex. 1977). First, a resume was never submitted for Air Jireh. The resume submitted was for
AJS Corp. Javier Martinez, the president of AJS, Corp., clearly states that "this is a resume that
I myself generated for Jireh Services Corporation." RR 62:3-4. For arguments sake, even if the
resume was for Air Jireh, there was no evidence that the jobs on the resume were not performed.
Javier Martinez testified that the resume is "true and correct as to the services perfonned by Air
Jireh Services Corp." RR 61 :24-62:2. Javier Martinez also testified that the company been in
business for the past twenty (20). RR 57:9-58:4. There is no testimony to rebut the statements
of Javier Martinez that the jobs listed on the resume were actually performed, that the resume
was incorrect, that the resume's recitation of'most recent jobs" were false, or that the company
had been in business for over twenty (20) years. Although the jobs listed on the resume, were
some ofthe same jobs listed on the website of AC Plumbing Specialist, Javier Martinez
additionally testified that the entity Air Jireh, also goes by the name of AC Plumbing Specialist.
RR 61 :15-18.; RR 66:19-23. A necessary element of fraud must involve a false representation.
As stated above, there is not any evidence to the contrary that the resume submitted by
Sepulveda was false. The Trial Court erred in ruling that the resume submitted by Sepulveda
-12-
was false. To his knowledge, they were true as he was given them by his employer, Javier
Martinez, who verified through testimony that they were in fact true. Sepulveda, though perhaps
unaware of whether all the jobs were accurate, had no reason to believe that they were false.
Issue 6: The Trial Court erred in ruling that Sepulveda submitted the bid to Weaver &
Jacobs, in which he represented that Air Jireh would perform the Work in exchange for the sum
of $125,971.00; that these representations were false; that Sepulveda made these representations
with knowledge of their falsity or recklessly, as positive assertions, without knowledge of their
truth; and that Weaver & Jacobs relied on Oskar Sepulveda, Jr's false representations.
(Argument made only for purposes of continuity and NOT to assert any relief on behalf of
Sepulveda who has filed a Notice of Bankruptcy with the Court)
ARGUMENT & AUTHORITIES
A fraud cause of action requires a material misrepresentation, which was false, and which
was either known to be false when made or was asserted without knowledge of its truth, which
was intended to be acted upon, which was relied upon, and which caused injury." Formosa
Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41,47-48 (Tex.
1998); Sears, Roebuck & Co. v. Meadows, 877 S.W.2d 281,282 (Tex. 1994); *48 DeSantis v.
Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990), cert. denied, 498 U.S. 1048, 111 S.Ct. 755,
112 L.Ed.2d 775 (1991); see also Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185
(Tex. 1977). However, the mere failure to perform a contract is not evidence of fraud. Schindler
v. Austwell Farmers Coop., 841 S.W.2d 853,854 (Tex. 1992). The Court in Formosa Plastics
held that evidence had to be presented that representations were made with the intent to deceive
and with no intention of performing as represented. See Spoljaric, 708 S.W.2d at 434; Stanfield,
-l3-
462 S.W.2d at 272; see also TiO. Stanley Boot Co., 847 S.W.2d at 222; Moreover, the evidence
presented must be relevant to Fonnosa's intent at the time the representation was made.
Spoljaric, 708 S.W.2d at 434.
Weaver & Jacobs fails to meet this burden. Although the Court may have found that Air
Jireh failed to perfonned the contract, there was no evidence presented that showed that Air
Jireh, through Sepulveda, submitted the bid with an intent to deceive and with no intention of
performing as represented. As a matter ofthe fact, the evidence states the contrary. Sepulveda
testified that he sent requests for submittals to M&M Metals, Mechanical Reps, and Professional
Air Balance. RR 78:2-16; 79:21-24. Additionally, Sepulveda informed Chris Brzozowski of
Weaver & Jacobs that Air Jireh would be willing to perfonn the work on this project, once the
two sides could agree as to the terms. RR 79:25-80:4. Not once, but twice did Sepulveda testify
of Appellants' intention to perfonn according to the bids submitted. It was not until August 15,
2015, wherein Sepulveda of Air Jireh refused to perfonn work on the project. RR 80:16-23.
Additionally, the testimony of Kristen Parisher and Javier Martinez corroborates the fact that
Sepulveda and Air Jireh intend to perfonn the work, but not without the proper understanding
between the parties. According to Kristen Parisher, there was a concern over liability ifthe
terms ofthe subcontract were not correct. RR 85:18-87:6
Issue 7: The Trial Court erred in ruling that Sepulveda in the course and scope of his
employment, represented to Weaver & Jacobs that Air Jireh had twenty (20) years experience,
that Air Jireh had perfonned certain jobs, and that Air Jireh would perfonn the Work in
exchange for $125,971.00; that these representations were false; that Sepulveda, in the course
and scope of his employment, intended that Weaver & Jacobs to rely on said representations;
that Sepulveda failed to exercise reasonable care or competence in obtaining and communicating
the representations on behalf of Air Jireh.
-14-
ARGUMENT & AUTHORITIES
To establish a cause of action for negligent misrepresentation, Plaintiff must prove the
following elements: (1) the representation was made in the course of Defendant's business; (2)
false information was supplied for the guidance of others in their business; (3) Defendant did not
exercise reasonable care or competence in obtaining or communicating the information; and (4)
Plaintiff suffered pecuniary loss by justifiably relying on the representation. Daldav Associates,
L.P. v. Lebar, 391 F. Supp. 2d 472,476 (N.D. Tex. 2005); See Dallas Firefighters Ass'n v. Booth
Research Group, Inc., 156 S.W.3d 188, 194 (Tex.App.-Dallas 2005); Airborne Freight Corp. v.
CR. Lee Enters., 847 S.W.2d 289 (Tex.App.-EI Paso 1993, writ denied). A promise of future
performance constitutes an actionable misrepresentation if the promise was made with no
intention of performing at the time it was made. Schindler v. Austwell Farmers Coop., 841
S.W.2d 853,854 (Tex.1992).
Again, for the reasons stated in the Argument & Authorities under Issue 6, there was no
evidence presented that showed that Sepulveda submitted the bid with an intent to deceive and
with no intention of performing as represented on behalf of Air Jireh. As a matter of the fact, the
evidence states the contrary. Additionally, there is no testimony to rebut the statements of J avier
Martinez that Air Jireh actually perfonned the jobs listed on the resume, that the resume was
incorrect, that the resume's recitation of Air Jireh's "most recent jobs" were false, or that Air
Jireh had been in business for over twenty (20) years.
Issue 8: The Trial Court erred in awarding attorney fees to Weaver & Jacobs.
ARGUMENT & AUTHORITIES
As a general rule, the party seeking to recover attorney's fees carries the burden of proof.
See, e.g., Kimbrough v. Fox, 631 S.W.2d 606, 609 (Tex.App.-Fort Worth 1982, no writ);
-15-
Corpus Christi Dev. Corp. v. Carlton, 644 S.W.2d 521,523 (Tex.App.-Corpus Christi 1982, no
writ); Bavarian Autohaus, Inc. v. Holland, 570 S.W.2d 110,116 (Tex.Civ.App.-Houston [1st
Dist.] 1978, no writ). The trial court may award those fees that are "reasonable and necessary"
for the prosecution of the suit. See, e.g., Green Tree Acceptance, Inc. v. Pierce, 768 S. W 2d 416,
425 (Tex.App.-Tyler 1989, no writ); Flint &Assoc. v. Intercontinental Pipe & Steel, Inc., 739
S. W2d 622, 624 (Tex.App.-Dallas 1987, writ denied); Rosas v. Bursey, 724 S. W2d 402,
410-11 (Tex.App.-Fort Worth 1986, no writ); Graves v. Sommerfeld, 618 S. W2d 952, 954-55
(Tex.Civ.App.-Waco 1981, writ ref'd n.r.e.). It is Appellant's position that the fees in this case
are not reasonable and necessary as they are more than the actual judgment awarded.
Furthermore, attorney fees were granted based upon Section 38.001 of the Texas Civil Practice
and Remedies Code and Section 17.50 of the Texas Business and Commerce Code. It is
appellant's position that Weaver & Jacobs is not entitled to any protections afforded to
consumers under the DTP A and thus the attorney fees must be segregated. Attorney's fees
attributable to separate causes of action must be segregated unless the claims arise from the same
transaction and are so interrelated that their prosecution or defense entails proof or denial of
essentially the same facts. Villasenor v. Villasenor, 911 S.W.2d 411, 420 (Tex. App. 1995). For
argument's sake, assuming that the separate causes of action alleged by Weaver & Jacobs arise
from the same transaction, they are not so interrelated that their prosecution or defense entails
proof or denial of essentially the same facts. A cause of action under the DTP A requires a party
to be a consumer, which is not required under Breach of Contract, nor Promissory Estoppel.
Thus, additional proof is required for a DTP A transaction than is required under breach of
contract and promissory estoppel. As a result of this segregation, an award of attorney's fees
erroneously based upon evidence of unsegregated fees requires a remand. Stewart Title Guar.
Co. v. Sterling, 822 S.W.2d 1, 11 (Tex. 1991)
-16-
PRAYER
For the foregoing reasons stated herein above, Appellants respectfully request that the
Court of Appeals reverse the Order of the Trial Court. Appellee requests all other appropriate
relief to which they are entitled both at equity and in law.
Respectfully Submitted,
Law Office of Lee Hernandez
A Professional Corporation
4100 NW Loop 410, Suite 100
San Antonio, Texas 78229
Tel.: 210.735.4202
Fax: 210.735.4231
State Bar No. 24077285
Attorney for Appellants
rene@leehernandez.com
-17-
CERTIFICATE OF COMPLIANCE
I certify that the above document is in compliance with the Texas Rules of Appellate
Procedure 9.4(2), (3). This document has a total ofS,348 words.
CERTIFICATE OF SERVICE
On the 23rd day of November, 2015, in compliance with the Texas Rules of Appellate
Procedure 9.5(b), I, the undersigned counsel, served this document on the following counsel of
record electronically through the electronic filing manager:
FORDNASSEN & BALDWIN P.C.
c/o Christopher Scifres
111 Congress, Suite 1010
Austin, Texas 78701
Telephone: (512) 236-0009
Facsimile: (512) 236-0682
cascifres@fordnassen.com
Rene Zarazua
-18-
APPENDIX
Final Judgment. Tab A
Findings of Fact and Conclusions ofLaw Tab B
Tex. Bus. & Com. Code § 17.46(a) Tab C
Tex. Bus. & Com. Code Ann. § 17.49 Tab D
Tex. Bus. & Com. Code Ann. § 26.01. Tab E
Air Jireh Bid No. 1 Tab F
Air Jireh Bid No. 2 Tab G
Air Jireh Bid No. 3 Tab H
Subcontract - Air Jireh Tab I
Subcontract - Crossroads Mechanical, Inc Tab J
-19-
TAB
A
Cause No. 13-1O~22,801
WEAVER & JACOBS CONSTRUCTORS, § IN THE DISTRICT COURT OF
lNC. §
Plaintiff, §
§
~ §
§ nswrrr COUNTY, TEXAS
AIR JIREH SERVICES CORPORATION, §
HVAC PLUMBING SPECIALIST §
CORPORATION AlK/A HVAC PLUMBING §
SPECIALIST INC DIB/ A ArR JIREH §
SERVICE AIKJ A AIR JIREH SERVICES and §
OSKAR SEPULVEDA, JR., §
Defendants. § 24TH JUDICIAL DISTRICT
AGREED FINAL JUDGMENT
On February 2, 2015, this case was called for trial. Plaintiff, WEAVER & JACOBS
CONSTRUCTORS, INC., and Defendants. AIR JIREH SERVICES CORPORATION, HVAC
PLUMBING SPECIALIST CORPORATION a!k/a HVAC PLUMBING SPECIALIST INC dib/a
AIRJIREH SERVICE a/k:IaAIR JIREH SERVICES, and OSKAR SEPULVEDA, JR. (collectively,
the 4~DEFENDANTS").announced ready for trial. The matters in controversy between WEAVER &
JACOBS CONSTRUCTORS, INC. and the DEFENDANTS were presented to the Court.
Upon review orthe evidence, the Court granted judgment in favor ofWEA VER & JACOBS
CONSTRUCTORS, INC., and against the DEFENDANTS.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that WEAVER &
JACOBS CONSTRUCTORS, INC. have and recover, jointly and severally, of and from the
DEFENDANTS, AIR JIREH SERVICES CORPORATION, HVAC PLUMBING SPECIALIST
CORPORATION a/k/a HVAC PLUMBING SPECIALIST INC dib/a AIR JIREH SERVICE a/kJa
AIR JIREH SERVlèES, and OSKAR SEPULVEDA, JR., the sum of Sixteen Thousand Five
AGREED FINAL .JUDGMENT ~ Page l 138221.1/2845.002
346
Hundred Fifty-Six and 00/100 DoUars ($16,556.00), with interest thereon at the rate of five percent
(5%) per year, from the date the final judgment is signed by the Court, until paid.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that WEAVER &
JACOBS CONSTRUCTORS, lNC. have and recover, jointly and severally, of and from the
DEFENDANTS, AIR JIRER SERVICES CORPORATION~ RVAC PLUMBING SPECIALIST
CORPORATION aIkIa RVAC PLUMBING SPECIALIST INC dlbla AIR JIRER SERVICE aIkIa
AIR lIRER SERVICES, and OSKAR SEPULVEDA, JR., pre-judgment interest at the rate offive
percent (5%) per year, accruing from the date the lawsuit was filed, October 3,2013, until the day
before the date on which the final judgment is signed by the Court. As of February 17; 2015, pre-
judgment interest has accrued in the amount of$1,138.51, and will continue to accrue at a rate of
$2.27 per day until the day before the date on which the final judgment is signed by the Court.
IT IS FURTHER ORDERED~ ADJUDGED, AND DECREED that WEAVER &
JACOBS CONSTRUCTORS, lNC. have and recover of and from, jointly and severally, AIRJIREH
SERVICES CORPORATION and nvxc PLUMBING SPECIALIST CORPORATION a!k!a
HV AC PLUMBING SPECIALIST INC d/b/a AlR JIREH SERVICE a/kJa AIR lIREH SERVICES
its reasonable and necessary attorney fees in the amount of Twenty-One Thousand Three Hundred
Fifty-Four and 00/100 Dollars ($21,354.00).ln addition, WEAVER &JACOBS CONSTRUCTORS,
INC. shall conditionally recover the sum of Fifteen Thousand and 00/100 Dollars ($15,000.00) in the
event WEAVER & JACOBS CONSTRUCTORS, INC. prevails on appeal to the court of appeals,
and further conditionally recover Ten Thousand and 00/100 Dollars ($10,000.00) in the event the
Supreme Court of Texas accepts an appeal from the court of appeals and WEAVER & JACOBS
CONSTRUCTORS, INC. prevails on such appeal.
AGREED FINAL JUDGMENT· Page2 t 3&221.11284S.002
347
-------- --
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that WEAVER &
JACOBS CONSTRUCTORS, INC. have and recover of and from, jointly and severally, AIR JIREH
SERVICES CORPORATION and HVAC PLUMBING SPECIALIST CORPORA TJON alkIa
HVAC PLUMBING SPECIALIST INC d/b/a AIR JIREH SERVICE a/k/a AIR JIRER SERVICES
post-judgment interest at the rate of fi ve percent (5%) per year, compounded annually, on the amount
of$39,048.51, which represents the judgment amount of$16,556.00 plus pre-judgment interest in
the amount of$1,138.51 and reasonable and necessary attorney fees in the amount of$2I,354.00,
accruing from the date the final judgment is signed by the Court and continuing until the date on
which the judgment is satisfied, at the rate of $5.35 per day.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that WEAVER &
JACOBS CONSTRUCTORS, INC. have and recover of and from OSKAR SEPULVEDA, JR. post-
judgment interest at the rate of five percent (5%) per year, compounded annually, on the amount of
$17,694.51, which represents the judgment amount of$16,556.00 plus pre-judgment interest in the
amount of $1,138.51, accruing from the date the final judgment is signed by the Court and
continuing until the date on which the judgment is satisfied, at the rate of$2.42 per day.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that WEAVER &
JACOBS CONSTRUCTORS. INC. shall be entitled to have all writs of execution and other process
necessary to enforce these judgments against each of the DEFENDANTS, jointly and severally.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs of court be
and hereby are taxed against the DEFENDANTS, jointly and severally.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all reliefnot expressly
granted is hereby DENIED. This is a FINAL JUDGMENT and disposes of all claims and
parties.
AGREED FINAL JUDGMENT· Page 3 138221.1/2845.002
348
SIGNEDthiS~aYOf ~ ,2015.
Approved as to Form and Substance:
FORD NASSEN & BALDWIN P.C. LAW OFFICE OF LEE HERNANDEZ
By:. ~ __ By:
Christopher A, Scifres --------------------------
Rene G. Zarazua
Texas State Bar No. 24088374 Texas State Bar No. 24077285
Attorney for Plaintiff Attorney for Defendants
AGREED FINAL JUDGMENT. Page 4 138221.112845.002
349
TAB
B
Cause No. 13-10~22,801
WEAVER & JACOBS CONSTRUCTORS, § IN THE DISTRICT COURT OF
INC. §
Plaintiff, §
§
v. §
§ DEWITT COUNTY, TEXAS
AIR JIREH SERVICES CORPORATION, §
HVAC PLUMBING SPECIALIST §
CORPORATION AlKJA HVAC PLUMBING §
SPECIALIST INC DIBI A AIR JIREH §
SERVICE AIKIA AIRJIREH SERVICES and §
OSKAR SEPULVEDA. JR.; §
Defendants. § 24TH JUDICIAL DISTRICT
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On February 2, 2015; this case was caned for trial. All parties appeared through counsel and
announced ready. The case proceeded to trial. Based on the evidence at trial. the briefs, the
arguments of counsel, and the parties' joint statement of stipulated facts, the Court makes the
following findings of fact and conclusions of law, pursuant to RuIe 296 of the Texas Rules of Civil
Procedure.
I.FINDINGS OF FACT
1. Weaver & Jacobs is a Texas corporation in good standing and authorized to do
business in the State of Texas.
2. HVAC Plumbing Specialist Corporation alk/a HVAC Plumbing Specialist Inc dlb/a
Air Jireh Service a/k/a Air Jireh Services ("Air Jireh") is a Texas corporation authorized to do
business in the State of Texas.
3. Air Jireh uses interchangeably the names "HVAC Plumbing Specialist Corporation,"
"HVAC Plumbing Specialist Inc," "Air Jireh Service," "Air Jireh Services," and "AC Plumbing
Specialists."
FINDINGS 01<' FACT AND
CONCLUSIONS OF LA W - Page 1 138554.112845.002
351
4. Oskar Sepulveda, Jr. ("Sepulveda") is an individual who resides in Texas.
5. On April 8, 2013, Weaver & Jacobs entered into a prime contract with Taft
Independent School District ("TISD") for the Taft Independent School District High School
Improvements, Taft, Texas (the "Project").
6. TISO is the owner of the Project, and Weaver & Jacobs agreed to act as the
Construction Manager at Risk for the construction of a new front office. among other improvements.
7. Weaver & Jacobs issued a Notice of Requests for Proposals from Subcontractors and
Suppliers (the "Requests for Proposals").
8. In the Requests for Proposals, Weaver & Jacobs requested bid offers from
subcontractors and suppliers indicating the price for which they would be willing to perfonn certain
scopes of work on, or to supply materials to, the Project.
9. All bid offers were required to be submitted to Weaver & Jacobs by June 26, 2013.
10. On June 26, 2013, at 2:09 p.m., Sepulveda, who is a project manager for Air Jireh,
sent an e-mail to Weaver & Jacobs.
11. Air Jireh attached to its June 26, 2013, e-mail a bid offer (the "Original Bid") to
furnish labor and materials for the heating, ventilation, and air conditioning systems for the Project
(the "Work") in exchange for the sum of$147,732.00.
12. The Original Bid included the cost for certain digital controls (the "Digital Controls")
to be installed as part of the Work.
13. Air Jíreh sent with the Original Bid a copy of Air Jireh's résumé.
14. The Digital Controls were a single-source specification, which means that every offer
to perform the work submitted to Weaver & Jacobs was to include the Digital Controls at the same
cost of$23,561.00.
FINDiNGS OF FACT AND
CONCLUSIONS OF LAW· Page 2 I38554.lI2845.002
352
15. Sepulveda concluded his June 26, 20 B, e-mail by thanking Weaver & Jacobs for the
"opportunity" and expressing that Air Jíreh "look] ed] forward to working for [Weaver & Jacobs] in
the near future."
16. After Weaver & Jacobs received and compiled all of the subcontractor offers for the
entire Project, it was necessary for Weaver & Jacobs to engage in value engineering to reduce the
Project's price.
17. On June 26, 2013, at2:29 p.m., Weaver&Jacohs sent Air Jireh an e-mail asking Air
Jireh to confirm that it had included in its Original Bid the Digital Controls at a price of "around
$25k,"
18. On June26, 2013, at2:56 p.m., Air Jireh sent Weaver &Jacobsane~mailconfirming
that the Digital Controls were included in its Original Bid at a price of $24,986,00.
19. As part of a comprehensive budget reduction plan, Weaver & Jacobs and TISD agreed
to replace the Digital Controls with less expensive wall-mounted thermostats (the "Thermostats").
20. On or about June 26, 2013, Weavér & Jacobs submitted its guaranteed maximum
price (the "'GMP") to TISD.
21. On July 7,2013, at 4:53 p.m., Weaver & Jacobs sent Air Jireh an e-mail informing
Air Jireh that Weaver & Jacobs was replacing the Digital Controls with the Thermostats.
22. On July 7,2013, at 6:40 p.m., Air Jireh sent Weaver & Jacobs an e-mail indicating
that the Original Bid included the Digital Controls at a price of$23,561.00 and three Thermostats at
a price of$475 each.
23. On July 9, 2013. Air Jireh submitted to Weaver & Jacobs a revised bid offer in the
amount of $132,670.00 (the "Revised Bid"). However, the Revised Bid's price did not properly
recognize the full deduction for substituting the Thermostats tor the Digital Controls.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW ~Page 3 138554.112845.002
353
24. Air Jireh agreed to submit a bid offer in the amount of$125,971.00 (the Original Bid
of$147,732.00 minus $23,561.00 for the Digital Controls plus $1,800.00 for the Thermostats).
25. Weaver & Jacobs informed Air Jireh that it would accept Air Jireh's $125,971.00
offer and would issue a subcontract in the amount of$125,971.00 to Air Jíreh to memorialize their
agreement.
26. On July 16.2013, Air Jireh sent Weaver & Jacobs an e-mail indicating that Air Jireh
had "revised [the] HVAC proposal with programmable t-stats in lieu of the controlsl.]"
27. Attached to Air Jireh' s July 16, 2013, e-mail was Air Jireh' s corrected bid offer (the
"Corrected Bid Offer"). which properly substituted the cost of the Digital Controls with the cost of
the Thermostats, but which was incorrectly dated "June 26,2013."
28. In the Corrected Bid Offer, Air Jireh offered to perform the Work in exchange for
amount of$125,971.00.
29. Air Jireh's July 16, 2013, e-mall concluding by thanking Weaver & Jacobs for "the
opportunity" and stating that Air Jireh "lookjed] forward to working for [Weaver & Jacobs]."
30. Weaver & Jacobs accepted the Corrected Bid Offer.
31. On July 23, 2013, Weaver & Jacobs sent Air Jireh a subcontract in the amount of
$125,971.00 (the "Subcontract"), which communicated Weaver & Jacobs' acceptance of the
Corrected Bid Offer.
32. The following provision was included in the Subcontract on page six:
"EXCLUSIONS: Per quote dated 6/26/13."
33. On August 5, 2013, Weaver & Jacobs sent an e-mail to all of the Project's
subcontractors, including Air Jireh, which stated that each recipient had recently contracted with
Weaver & Jacobs.
FINDINGS OF FACT AND
CONCLUSIONS OF LA W • Page 4 138554.1/2845.002
354
34. In its August 5, 2013, e-mail, Weaver& Jacobs asked Air Jireh to provide submittals
or shop drawings to Weaver & Jacobs by August 19, 2013, for the materials and equipment it would
be furnishing to the Project (the "Request for Submittals"), again communicating Weaver & Jacobs'
acceptance of the Corrected Bid Offer.
35. On or about August 10,2013, after not receiving a response to the August 5, 2013,
request for submittals. Chris Brzozowski ("Brzozowski"), Weaver & Jacobs' project manager,
contacted Air Jíreh via telephone to seek assurances that Air Jíreh still planned to perform the Work.
During the telephone conversation, Sepulveda represented to Weaver & Jacobs that Air Jireh would
perfonn the Work.
36. On or about August 15, 2013, Brzozowski again contacted Air Jíreh via telephone and
spoke with Sepulveda. During that telephone conversation, Sepulveda represented that Air Jireh
would neither execute the Subcontract nor perform the Work as it had promised in the Corrected Bid
Offer.
37. Weaver & Jacobs was forced to enter into a subcontract with a third party to perform
the Work for the amount of$142,347.00, which was $16,556.00 more than the amount agreed to by
Air Jireh in the Corrected Bid Offer for the performance of the Work.
38. On or about January 23,2013, HVAC Plumbing Specialist Inc filed with the Bexar
County Clerk an assumed name certificate whereby HVAC Plumbing Specialist Inc would conduct
business as "Air Jíreh Service" (tbe "Assumed Name Certificate"). In the Assumed Name
Certificate, the address for HVAC Plumbing Specialist Inc is listed as "5122 Leon Hardt, San
Antonio, TX 78233." Richard B. Can' signed the Assumed Name Certificate as "officer, general
partner, manager, member. representative, or attorney-in-fact."
FINDINGS OF FACT AND
CONCLUSIONS OF LA W - Page 5 138554.1/2845.002
355
II. CONCLUSIONS OF LAW
39. A valid, enforceable contract was formed between Weaver & Jacobs and Air Jireh
after Weaver & Jacobs accepted Air Jireh's Corrected Bid Offer to perform the Work in exchange
for the sum of$125,791.00. Air Jíreh breached its contract with Weaver & Jacobs by refusing to
perform the Work. Air Jireh' s breach of contract caused injury to Weaver & Jacobs in the amount of
$16,556.00. Air Jireh failed to establish by a preponderance orthe evidence that it has any valid
excuse or defense to liability for its material breach of its contractual obligations to Weaver &
Jacobs.
40. Air Jireh's Corrected Bid Offer in the amount of$125,971.00 represented Air Jireh's
enforceable promise to perform the Work in exchange for that amount. Air Jireh reasonably foresaw
that Weaver & Jacobs would act in reliance on the promise, and Weaver & Jacobs did, in fact, rely
on the promise to its detriment in calculating the GMP for the Project As a direct and proximate
result of Air Jíreh's refusal to perform the Work as promised, Weaver & Jacobs was damaged in the
amount of$16.556.00. Air Jireh failed to establish by a preponderance of the evidence that it has any
valid excuse or defense to liability for its failure to fulfill its promise to perform the Work.
41. Weaver & Jacobs is a consumer under the Texas Deceptive Trade Practices Act, Tex.
Bus. & Com. Code § 17.41 et seq. (the "DTP A"), because it is a corporation that sought to purchase
from Air Jireh goods and services needed to perform the Work on the Project. Weaver & Jacobs is
thus entitled to all protections afforded to consumers under the DTP A. Air Jireh can be sued under
the DTP A because it sells and installs HVAC systems and provides service for existing systems. By
offering to perform the Work on the Proj eet in exchange for the sum of $125,971.00, and then orally
repudiating its proposal, Air Jireh engaged in false, misleading, and deceptive acts in the conduct of
its trade and in violation of Tex. Bus. & Com. Code § 17.46(a). Air Jireh's conduct constitutes false,
FINDINGS OF FACT AND
CONCLUSIONS OF LAW· Page 6 138554.1/2845.002
356
misleading, and deceptive acts and practices included in the "laundry list" ofDTPA violations. Such
"laundry list" violations include (1) advertising goods or services with the intent not to sell them as
advertised and (2) representing that an agreement confers or involves rights, remedies, or obligations
that it does not. Weaver & Jacobs relied on Air Jireh's false, misleading, and deceptive acts to its
detriment by using Air Jireh's proposal to compute its GMP for the Project. Air Jireh's conduct
forced Weaver & Jacobs to contract with another subcontractor at a substantially higher contract
price than that which was promised by Air Jireh, Air Jireh is the producing cause of Weaver &
Jacobs' damages in the amount of$16,5 56.00. Air Jireh failed to establish by a preponderance of the
evidence that it has any valid excuse or defense to liability for its false, misleading, and deceptive
acts.
42. Sepulveda included with Air Jíreh's Original Bid offer a copy Air Jíreh's résumé.
The résumé contained several false representations, including the assertion that Air Jíreh had been
doing business in the San Antonio area for the past 20 years and a recitation of certain "most recent
jobs." Sepulveda also submitted the Corrected Bid Offer to Weaver & Jacobs, in which he
represented that Air Jíreh would perform the Work in exchange for the sum of$125,971.00. Further,
on or about August 10, 2013, Sepulveda represented to Weaver & Jacobs that Air Jíreh would
perform the Work as promised in the Corrected Bid Offer. These representations were material in
that Weaver & Jacobs relied on the representations to make its decision to accept Air Jireh's bid
offer and would not have done so absent the representations. These representations were false.
Sepulveda made these representations with knowledge of their falsity or recklessly, as positive
assertions, without knowledge of their truth. Weaver & Jacobs relied on Sepulveda's false
representations in calculating its GMP and, after Air Jireh refused to perform the Work, Weaver &
Jacobs was forced to subcontract with a third party to perform the Work, resulting in damages to
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - Page 7 138554.112845.002
357
Weaver& Jacobs in the amount of$16,556.00. Sepulveda failed to establish by a preponderance of
the evidence that he has any valid excuse or defense to liability for his fraudulent representations to
Weaver & Jacobs.
43. Sepulveda represented to Weaver & Jacobs that Air Jireh had 20 years' experience
doing business in the San Antonio area, that Ail'Jireh had performed certain recent jobs, and that Air
Jireh would perform the Work in exchange for $125,971.00. These representations were false, and
Sepulveda intended that Weaver & Jacobs rely on the representations. Sepulveda failed to exercise
reasonable care or competence in obtaining and communicating these representations. Sepulveda
intended that Weaver & Jacobs use these representations as guidance. Weaver & Jacobs reasonably
and justifiably relied on Sepulveda's false representations to its detriment, resulting in damages to
Weaver & Jacobs in the amount of $16,556.00. Sepulveda failed to establish by a preponderance of
the evidence that he has any valid excuse or defense to liability for his negligent misrepresentations
to Weaver & Jacobs.
44. All conditions precedent to Weaver & Jacobs' entitlement to recovery have been
performed. have occurred, or have been excused.
45. Weaver & Jacobs has established by a preponderance of the evidence that the
damages it incurred were reasonable and necessary to perform the Work after Air Jireh refused to
execute the Subcontract or perform the Work. Weaver & Jacobs is entitled to recover from Air Jireh
and Sepulveda, jointly and severally) damages in the amount of $16,556.00.
46. Based on the acts and/or omissions of Air Jireh, Weaver & Jacobs is entitled, pursuant
to Section 38.001 et seq. of the Texas Civil Practice and Remedies Code, Section 17.50(d) of the
Texas Business and Commerce Code, and all other applicable laws, to recover from the Air Jireh its
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - Page 8 138554.112845.002
358
reasonable attorney fees and costs incurred in connection with this dispute and in pursuing its claim,
in the amount of$21,354.00.
47. Weaver & Jacobs is entitled to recover from Air Jíreh and Sepulveda, jointly and
severally, pre-judgment interest at the rate of five percent (5%) per year, accruing from the date the
lawsuit was filed, October 3,2013, until the day before the date on which the final judgment is
signed by the Court.
48. Weaver & Jacobs is entitled to recover from Air Jireh post-judgment interest at the
rate oftive percent (5%) per year, compounded annually, on its damages of$16,556.00 plus any pre-
judgment interest that has accumulated on such damages, and on its attorney fees of$21,354.00,
accruing from the date the final judgment is signed by the Court and continuing until the date on
which the judgment is satisfied.
49. Weaver & Jacobs is entitled to recover from Sepulveda post-judgment interest at the
rate of'five percent (5%) per year, compounded annually, on its damages of$16,556.00 plus any pre-
judgment interest that has accumulated on such damages, accruing from the date the final judgment
is signed by the Court and continuing until the date on which the final judgment is satisfied.
5O. Weaver & Jacobs is entitled to have all writs of execution and other process necessary
to enforce these judgments against each of the defendants.
51. Any of the foregoing conclusions oflaw that are more properly considered findings of
fact are also adopted by the Court as findings of fact.
SIGNED this ~y Of _ _.;..&~~.¿:,;..a~,,-,-- , 2015.
FILED
~~~---~
a~ .L ...J•.!. O}CloCk_~M
MAR 2 8 2015
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - Pa . 138554.1/2845.002
B~~~~~::'$'l
359
TAB
C
§ 17.46. Deceptive Trade Practices Unlawful, TX BUS & COM § 17.46
¡- < KeyCite Yellow Flag - Negative Treatment
Unconstitutional or Preempted Prior Version Limited on Preemption Grounds by Lewkut v. Stryker Corp., S.D.Tex., Apr. 16, 2010
J ~
KeyCite Yellow Flag - Negative Treatment Proposed Legislation
Vernon's Texas Statutes and Codes Annotated
Business and Commerce Code (Refs &Annos)
Title 2. Competition and Trade Practices
Chapter 17. Deceptive Trade Practices (Refs & Annos)
Subchapter E. Deceptive Trade Practices and Consumer Protection (Refs & Annos)
V.T.C.A., Bus. & C. § 17.46
§ 17.46. Deceptive Trade Practices Unlawful
Effective: September 1, 2015
Currentness
(a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful and
are subject to action by the consumer protection division under Sections 17.47, 17.58, 17.60, and 17.61 of this code.
(b) Except as provided in Subsection (d) of this section, the term "false, misleading, or deceptive acts or practices" includes,
but is not limited to, the following acts:
(1) passing off goods or services as those of another;
(2) causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
(3) causing confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another;
(4) using deceptive representations or designations of geographic origin in connection with goods or services;
(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities
which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which the person does
not;
(6) representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or secondhand;
(7) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style
or model, if they are of another;
(8) disparaging the goods, services, or business of another by false or misleading representation of facts;
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§ 17.46. Deceptive Trade Practices Unlawful, TX BUS & COM § 17.46
(9) advertising goods or services with intent not to sell them as advertised;
(10) advertising goods or services with intent not to supply a reasonable expectable public demand, unless the advertisements
disclosed a limitation of quantity;
(11) making false or misleading statements of fact concerning the reasons for, existence of, or amount of price reductions;
(12) representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve,
or which are prohibited by law;
(13) knowingly making false or misleading statements offact concerning the need for parts, replacement, or repair service;
(14) misrepresenting the authority of a salesman, representative or agent to negotiate the final terms of a consumer transaction;
(15) basing a charge for the repair of any item in whole or in part on a guaranty or warranty instead of on the value ofthe
actual repairs made or work to be performed on the item without stating separately the charges for the work and the charge
for the warranty or guaranty, if any;
(16) disconnecting, turning back, or resetting the odometer of any motor vehicle so as to reduce the number of miles indicated
on the odometer gauge;
(17) advertising of any sale by fraudulently representing that a person is going out of business;
(18) advertising, selling, or distributing a card which purports to be a prescription drug identification card issued under Section
4151.152, Insurance Code, in accordance with rules adopted by the commissioner of insurance, which offers a discount on the
purchase of health care goods or services from a third party provider, and which is not evidence of insurance coverage, unless:
(A) the discount is authorized under an agreement between the seller of the card and the provider of those goods and
services or the discount or card is offered to members of the seller;
(B) the seller does not represent that the card provides insurance coverage of any kind; and
(C) the discount is not false, misleading, or deceptive;
(19) using or employing a chain referral sales plan in connection with the sale or offer to sell of goods, merchandise, or
anything of value, which uses the sales technique, plan, arrangement, or agreement in which the buyer or prospective buyer
is offered the opportunity to purchase merchandise or goods and in connection with the purchase receives the seller's promise
or representation that the buyer shall have the right to receive compensation or consideration in any form for furnishing to the
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§ 17.46. Deceptive Trade Practices Unlawful, TX BUS & COM § 17.46
-------------_.
seller the names of other prospective buyers if receipt of the compensation or consideration is contingent upon the occurrence
of an event subsequent to the time the buyer purchases the merchandise or goods;
(20) representing that a guaranty or warranty confers or involves rights or remedies which it does not have or involve,
provided, however, that nothing in this subchapter shall be construed to expand the implied warranty of merchantability as
defined in Sections 2.314 through 2.318 and Sections 2A.212 through 2A.216 to involve obligations in excess of those which
are appropriate to the goods;
(21) promoting a pyramid promotional scheme, as defined by Section 17.461;
(22) representing that work or services have been performed on, or parts replaced in, goods when the work or services were
not performed or the parts replaced;
(23) filing suit founded upon a written contractual obligation of and signed by the defendant to pay money arising out
of or based on a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal,
family, household, or agricultural use in any county other than in the county in which the defendant resides at the time ofthe
commencement of the action or in the county in which the defendant in fact signed the contract; provided, however, that a
violation of this subsection shall not occur where it is shown by the person filing such suit that the person neither knew or
had reason to know that the county in which such suit was filed was neither the county in which the defendant resides at the
commencement of the suit nor the county in which the defendant in fact signed the contract;
(24) failing to disclose information concerning goods or services which was known at the time of the transaction if such
failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would
not have entered had the information been disclosed;
(25) using the term "corporation," "incorporated," or an abbreviation of either of those terms in the name of a business entity
that is not incorporated under the laws of this state or another jurisdiction;
(26) selling, offering to sell, or illegally promoting an annuity contract under Chapter 22, Acts of the 57th Legislature, 3rd
Called Session, 1962 (Article 6228a-S, Vernon's Texas Civil Statutes), with the intent that the annuity contract will be the
subject of a salary reduction agreement, as defined by that Act, if the annuity contract is not an eligible qualified investment
under that Act or is not registered with the Teacher Retirement System of Texas as required by Section 8A of that Act;
(27) taking advantage of a disaster declared by the governor under Chapter 418, Government Code, by:
(A) selling or leasing fuel, food, medicine, or another necessity at an exorbitant or excessive price; or
(B) demanding an exorbitant or excessive price in connection with the sale or lease of fuel, food, medicine, or another
necessity;
Air Jireh Service Corporation, HVAC Plumbing Specialist Corporation A/K/A HVAC Plumbing Specialist Corporation A/K/A HVAC Plumbing Specialist Inc. D/B/A Air Jireh Service A/K/A Air Jireh Services and Oskar Sepulveda, Jr. v. Weaver & Jacobs Constructors, Inc.
Combined Opinion