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.

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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 -1- 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 -iii- 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 -iv- 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 -v- 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 -vi- 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 -1- 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. -2- 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 -3- 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 -4- 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 -5- 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. -6- 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 -7- 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 -8- 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 -9- 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 -10- 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) -11- 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; VVestlawNe:d © 2015 Thomson Reuters. 1\10 claim to original U.S. Government Works. 1 § 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 WestlawNe.xr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 § 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; I/JestlavvNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 § 17.46. Deceptive Trade Practices Unlawful, TX BUS & COM § 17.46 (28) delivering or distributing a solicitation in connection with a good or service that: (A) represents that the solicitation is sent on behalf of a governmental entity when it is not; or (B) resembles a governmental notice or form that represents or implies that a criminal penalty may be imposed if the recipient does not remit payment for the good or service; (28) using the translation into a foreign language of a title or other word, including "attorney," "lawyer," "licensed," "notary," and "notary public," in any written or electronic material, including an advertisement, a business card, a letterhead, stationery, a website, or an online video, in reference to a person who is not an attorney in order to imply that the person is authorized to practice law in the United States. (29) delivering or distributing a solicitation in connection with a good or service that resembles a check or other negotiable instrument or invoice, unless the portion of the solicitation that resembles a check or other negotiable instrument or invoice includes the following notice, clearly and conspicuously printed in at least 18-point type: "SPECIMEN-NON-NEGOTIABLE"; (30) in the production, sale, distribution, or promotion of a synthetic substance that produces and is intended to produce an effect when consumed or ingested similar to, or in excess of, the effect of a controlled substance or controlled substance analogue, as those terms are defined by Section 481.002, Health and Safety Code: (A) making a deceptive representation or designation about the synthetic substance; or (B) causing confusion or misunderstanding as to the effects the synthetic substance causes when consumed or ingested; or (31) a licensed public insurance adjuster directly or indirectly soliciting employment, as defined by Section 38.01, Penal Code, for an attorney, or a licensed public insurance adjuster entering into a contract with an insured for the primary purpose of referring the insured to an attorney without the intent to actually perform the services customarily provided by a licensed public insurance adjuster, provided that this subdivision may not be construed to prohibit a licensed public insurance adjuster from recommending a particular attorney to an insured. (c)(I) It is the intent of the legislature that in construing Subsection (a) of this section in suits brought under Section 17.47 of this subchapter the courts to the extent possible will be guided by Subsection (b) of this section and the interpretations given by the Federal Trade Commission and federal courts to Section 5(a)(I) of the Federal Trade Commission Act [15 U.S.C.A. § 45(a)(I)]. (2) In construing this subchapter the court shall not be prohibited from considering relevant and pertinent decisions of courts in other jurisdictions. ._-_._-------------_. 'Nestla'NNe::.::t © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4- § 17.46. Deceptive Trade Practices Unlawful, TX BUS & COM § 17.46 ._--_._-------------------------- (d) For the purposes of the relief authorized in Subdivision (1) of Subsection (a) of Section 17.50 of this subchapter, the term "false, misleading, or deceptive acts or practices" is limited to the acts enumerated in specific subdivisions of Subsection (b) of this section. Credits Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21, 1973. Amended by Acts 1977, 65th Leg., p. 601, ch. 216, §§ 2, 3, eff. May 23,1977; Acts 1977, 65th Leg., p. 892, ch. 336, § 1, eff. Aug. 29,1977; Acts 1979, 66th Leg., p. l327, ch. 603, § 3, eff. Aug. 27, 1979; Acts 1987, 70th Leg., ch. 280, § 1, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 570, § 6, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 414, § 3, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 463, § 1, eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 962, § 1, eff. Sept. 1,2001; Acts 2001, 77th Leg., ch. 1229, § 27, eff. June 1,2002; Acts 2003, 78th Leg., ch. 1276, § 4.001(a), eff. Sept. 1,2003; Acts 2005, 79th Leg., ch. 728, § 11.101, eff. Sept. 1,2005; Acts 2007, 80th Leg., ch. 1230, § 26, eff. Sept. 1,2007; Acts 2015, 84th Leg., ch. 1023 (H.B. 1265), § 1, eff Sept. 1,2015; Acts 2015, 84th Leg., ch. 1080 (H.B. 2573), § 1, eff. Sept. 1,2015. Notes of Decisions (1318) V. T. C. A., Bus. & C. § 17.46, TX BUS & COM § 17.46 Current through the end of the 2015 Regular Session of the 84th Legislature End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. V'Iestla','v'Next © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 TAB D § 17.49. Exemptions, TX BUS & COM § 17.49 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. § 17-49 § 17.49. Exemptions Effective: May 28, 2011 Currentness (a) Nothing in this subchapter shall apply to the owner or employees of a regularly published newspaper, magazine, or telephone directory, or broadcast station, or billboard, wherein any advertisement in violation of this subchapter is published or disseminated, unless it is established that the owner or employees of the advertising medium have knowledge of the false, deceptive, or misleading acts or practices declared to be unlawful by this subchapter, or had a direct or substantial financial interest in the sale or distribution of the unlawfully advertised good or service. Financial interest as used in this section relates to an expectation which would be the direct result of such advertisement. (b) Nothing in this subchapter shall apply to acts or practices authorized under specific rules or regulations promulgated by the Federal Trade Commission under Section 5( a)(1) ofthe Federal Trade Commission Act [15 U.S.C.A. 45 (a)( 1) ]. The provisions of this subchapter do apply to any act or practice prohibited or not specifically authorized by a rule or regulation of the Federal Trade Commission. An act or practice is not specifically authorized if no rule or regulation has been issued on the act or practice. (c) Nothing in this subchapter shall apply to a claim for damages based on the rendering of a professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill. This exemption does not apply to: (1) an express misrepresentation of a material fact that cannot be characterized as advice, judgment, or opinion; (2) a failure to disclose information in violation of Section 17.46(b )(24); (3) an unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion; (4) breach of an express warranty that cannot be characterized as advice, judgment, or opinion; or (5) a violation of Section 17.46(b )(26). (d) Subsection (c) applies to a cause of action brought against the person who provided the professional service and a cause of action brought against any entity that could be found to be vicariously liable for the person's conduct. 'v\festta'lI"Ne.xt'© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 17.49. Exemptions, TX BUS & COM § 17.49 (e) Except as specifically provided by Subsections (b) and (h), Section 17.50, nothing in this subchapter shall apply to a cause of action for bodily injury or death or for the infliction of mental anguish. (t) Nothing in the subchapter shall apply to a claim arising out of a written contract if: (1) the 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; (2) in negotiating the contract the consumer is represented by legal counsel who is not directly or indirectly identified, suggested, or selected by the defendant or an agent of the defendant; and (3) the contract does not involve the consumer's residence. (g) Nothing in this subchapter shall apply to a cause of action arising from a transaction, a project, or a set of transactions relating to the same project, involving total consideration by the consumer of more than $500,000, other than a cause of action involving a consumer's residence. (h) A person who violates Section 17.46(b)(26) is jointly and severally liable under that subdivision for actual damages, court costs, and attorney's fees. Subject to Chapter 41, Civil Practice and Remedies Code, exemplary damages may be awarded in the event offraud or malice. (i) Nothing in this subchapter shall apply to a claim against a person licensed as a broker or salesperson under Chapter 1101, Occupations Code, arising from an act or omission by the person while acting as a broker or salesperson. This exemptiori does not apply to: (1) an express misrepresentation of a material fact that cannot be characterized as advice, judgment, or opinion; (2) a failure to disclose information in violation of Section 17.46(b )(24); or (3) an unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion. Credits Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21, 1973. Amended by Acts 1995, 74th Leg., ch. 414, § 4, eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 1229, § 28, eff. June 1,2002; Acts 2003, 78th Leg., ch. 1276, § 4.001(b), eff. Sept. 1, 2003; Acts 2011, 82nd Leg., ch. 189 (S.B. 1353), § 1, eff. May 28,2011. Notes of Decisions (37) V. T. C. A., Bus. & C. § 17.49, TX BUS & COM § 17.49 Westla'NNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 § 17.49. Exemptions, TX BUS & COM § 17.49 Current through the end of the 2015 Regular Session of the 84th Legislature End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. VVestl.'l'NNe:d © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 TAB E § 26.01. Promise or Agreement Must Be in Writing, TX BUS & COM § 26.01 Vernon's Texas Statutes and Codes Annotated Business and Commerce Code (Refs &Annos) Title 3. Insolvency, Fraudulent Transfers, and Fraud Chapter 26. Statute of Frauds V.T.C.A., Bus. & C. § 26.01 § 26.01. Promise or Agreement Must Be in Writing Effective: September 1, 2005 Currentness (a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is (1) in writing; and (2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him. (b) Subsection (a) of this section applies to: (1) a promise by an executor or administrator to answer out of his own estate for any debt or damage due from his testator or intestate; (2) a promise by one person to answer for the debt, default, or miscarriage of another person; (3) an agreement made on consideration of marriage or on consideration ofnonmarital conjugal cohabitation; (4) a contract for the sale of real estate; (5) a lease of real estate for a term longer than one year; (6) an agreement which is not to be performed within one year from the date of making the agreement; (7) a promise or agreement to pay a commission for the sale or purchase of: (A) an oil or gas mining lease; (B) an oil or gas royalty; VVestla;NNext' © 2015 Thomson Reuters. No claim to original U.S. Government Works. § 26.01. Promise or Agreement Must Be in Writing, TX BUS & COM § 26.01 (C) minerals; or (D) a mineral interest; and (8) an agreement, promise, contract, or warranty of cure relating to medical care or results thereof made by a physician or health care provider as defined in Section 74.001, Civil Practice and Remedies Code. This section shall not apply to pharmacists. Credits Acts 1967, 60th Leg., vol. 2, p. 2343, ch. 785, § 1. Amended by Acts 1977, 65th Leg., p. 2053, ch. 817, § 21.01, eff. Aug. 29, 1977; Acts 1987, 70th Leg., ch. 551, § 1, eff. Aug. 31,1987; Acts 2005, 79th Leg., ch. 187, § 1, eff. Sept. 1,2005. Notes of Decisions (2145) V. T. C. A., Bus. & C. § 26.01, TX BUS & COM § 26.01 Current through the end of the 2015 Regular Session of the 84th Legislature End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. Westla'NNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 TAB F Air Jirtb services SBE, MBE. HUB çcrtined~ 8 (a) The Airconditioldng 1Plumbing Specialist 5122 Leonhardt, San ARwoio, TX 78233 Phone: (210) 590-0119 Fax: (210) 590-7789 MECHANICAL~PLUMBING-SlTE UTJLITIES Name: We2Ver &. ":leobs Constructors, Inc, Dilte: June l6. lOll Address: 301 Coopeflitlve Way Phone: (361) 217..,300 Cil)', Stnte &; Zip:Cuel'll, TI( 77954 Fax: (;.JU)271·'174 B-MaH: BlUItt Jacobs TAn lSD .Front Package C Scope of Work; We Itre bidding Oll tbe HVAC as per pbllS KVAC I. Provide snd Install (3) frIOftOPunlta. 2. Provide and In,taU (3) emaust lims. 3. Pr(lVide lUId Install (3) Jmoke detectørll. 4, Provide and In!tøll Bner plenums. 5. Provide alld lnstøll %" \'!/I'apped shettmetal ductwork. 6. Provide anel JOBtall PVC l!OndtUBate. '1. Pl'f)vlde aud Imtall all ¡rilles and ¡flftluerll. 8. 'rovIde lIi~blllalleetest. 9. Provide controls syslem. tO. Provide pennit, erane. and 110 tu Oll _feriat --------._:;_----------------------_._---- Blectrlc¡¡J switches, disconnects, motor sl¡¡¡tcrs for e¡¡haust fans or HVAC equipment, conduit pipe lIlld interlock ccnnectíens OOCWIlCIl làll$ Is oot part of thi;¡ bid. 2 Roof Ilnd wall peneu-atÎollS, roof curb leveling, mopin¡¡. lIashing anli sealing Is l'lot plirt oftbis bid. 1'0 be provided by foofer or genemlcootmctor, 3 Concrete slab, or hUl.IS£'keeplllgpad tbr oondenser. alt hlmdlers Dí Illly equipment, kl IlOt part of this bid. ( Genel'lll Contractor) 4 Wllldt:d angle iron under mofcurb tur l\Irucl.llral support is not par of this bid. (by OC) 5 Any pilltrorm, eoneretc slab, for water h.erúers, or any equipment is oot part oftbis bid. (by Ge) Payment Terms; Acceptance: Thil aboYe prices.,spedfielttions lIud oolldllilln. are satlsfactlll'Y and II~ meby IItcctlted. YOIl fife ftutllorlzed to do tbe work JlS Jp«,lfled. Payment will be mde ~ outlined .bove. Autholizcd Acceptance Company Representative Oskar Sepulvcd. ------~----------------------- 13 282 TAB G Air Jirell services SBE, MBE, HUB Certified, 8 (a) The Airconditioning I Plumbing Specialist 5122 Leonhardt, San Antonio, TX 78233 Phone: (210) 590-0119 Fax: (210) 590-7789 MECHANICAL-PLUMBING-SITE UTILITIES Name: Weaver & Jacobs Constructors, Inc, Date: June 26.2013 Address: JOl Cooperative Way Phone: (361) 277~9JOO Cily, State & Zip: Cuero, TX 71954 Fax: (36J) 217~9274 E~MaU: Brant Jacobs Job Name: TAFT ISO Front Package C Scope of Work: We are bidding on the HVAC as per plans IIVAC I. Provide and Install (3) rooftop units. 2. Provide ilnd Install (3) exbaust fans. J. Provide and Install (3) smoke detectors. 4. Provide aud Install liner plenums. 5. Provide and InstaD 2" wrapped sheetmetlll ductwork. 6. Provide and Install PVC condensate, 1. Provide and Install all grilles Bnd diffusers. 8. Provide airbalance test. 9. Provide permit. crane, Hnd uo tfIX on material. S132,67UO ** AL TERNATES** I. 'Provide lind Install DOC controls for rooftop units. ADD $15.062.00 ----------_._--_ ..._._._,------------ Exclusions ---,-----,,--,-------,--- Electrical switches. disconnects, motor starters for exhaust fans or HVAC equipment, conduit pipe and interlock connections between fans is not part of this bid. 2 Roof and wall penetrations, roof curb leveling, moping, flashing and sealing is l'lOf part of this bid. To be provided by roofer at general contractor. 3 Concrete slab, or housekeeping pad for condenser. air handlers or any equipment, is not part of'his bid. ( General Contractor) 4 Welded angle Iron under roof curb for structural support Is not pitt of this bid. (by OC) S Any platform, concrete slab, for water beaters, or any equipment is not part anhis bid. (by OC) Payment Terms: Acceptance: The above priees. specmcations and conditions are satisfactory llnd lire bereby accepted. Vou are authorized to do tbe work as specified. Paymeut will be made as outlined above. 26 295 r----------- _ Authorized Acceptance Date 296 TAB H Air Jireh services SnE, MBE; HUB Certjfiedt 8 (a) The Airconditioning I Plumbing Specialist 5122 Leonhardt, San Antonio, TX 78233 Phone: (210) 59()..OH9 Fax: (210) 590~778~ MECHANICAL-PLUMBING~ITE UTILITIES Name: WI:lIVCl' &; Jacobs Constrllletors.llle. Date: JUlie 26, ZOl3 Addres.~; 301 Coo{k!lratlvt Way Phone: (Ul) 277·9300 City. State &. Zlp:Cuero, TX 77954 (361) 277·9174 ß-Mail: BrantJlllJilbs Job Name: TAFT ISO FroIlt Paëkage C Scope of Work: We lite blddillg on tile HVAC all per plaftS HVAC 1. Provide and InstillU (3) rooftop ullits. 2. Provide Ind Innal! (3) ulu!ust rans. 3. Provide Imd InstIll (3) smoke detetltors. 4. Provide and Instal1lbtei' plelll'nl', S. Pl'ovidelind instaD 1" wrappttl sbeeCmetal thu:tw&rk,. Ii. Prov_de IIJ11t Illst •• l PVC i'!Ondemalil. 7. Provide.nd IllstalllllllrllJe# lind dlrta"l'S. 8. Provide prognl!mmable (-staU. 9. Provide all1l1l1Aneé t.".t. 11). Provide permit. eUle. Ind nø tøxon MIlterlat roTAL Q ~ .. .sU5"'71••0 Elecll'icill :;witches, disconnects. molar starters for exhaust lims Ot HV AC equipment. conduit pipe and [lIt1n'1oek conMCtiQnQ between fans Îs not part o'fuis bid. 2 Roof lind wall ptJIletrations, roof ourb leveling, moping, flashing and sealing is not part of this bid. To be provided by roofer or genoral cootr¡¡çtor. ) Concrek: sJab, or hQu:;ekeeplng pad for coßàen~er, ail' handlas or IIny equipment. is not plirt of this bid. ( General Conlmclor) 4 Welded angle Iron under roof curb for al.ructul'1dsupport Is not par Qfthls bid. (by OC) 5 Any platfol'm, COllerete slab, for waler heaters, or My equipment is not pørt of this bid. (by OC) 6 DDC Controls $re not a port afthis bid. Payment Temtl.I: Tfle .b!We præf:S,lpedlicl'Iün.s aud wndltiom .n l.tØr.ctofYllUd .re bel'llby .œeptl:d. 1'.,111" authorbl4!d tø do tbe work n specified. PaymenC wU, be imide M outbed llbove. Au!lwri:œd Acceptance Date Company Representstlve _()_s_k;;..IIr_Se.;..;.::p;;..W,;_v,;_cd:....II ~_____ Daté ~!.-~!~~_ .. _ W&J 000003(1 31 300 TAB I WEAVER & JACOBS Contract j:¡ INN1'¡IP¡;1"I)!l)i, INC. Se...i309-QOOiS \/Ilsaver 8. Jaeobs COllalruclors, loe. Prol..:t; 13ll9. TaUfigl1 School Froot afflte 8. Z013lmøro'ltmeliti :101 CO()!lllf$11veWay 400 Colí!glJ Slfeet CUMO, TexlIs 17954 Tafl, Texas 78390 Phona: 361·271.9300 F&~: 36HZ71·!I2'f4 HVAC Systems OATIë CREATEO: 01/23/2013 CONTRACT COMPANY: Air Jlrelt SeIViclIa Chri& Br,¡;oJ:'ow&ki fWtiIVtr & S12Z leonhardl JacobsC_\tu!llo,a. mil.) Søn AnIQmO', 't8Xl1$ 78233 3€J1 COOjli!f91lvt Way Phon&; (210) 590.0119 CUero, Tex» 77954 Fax! (21G)S9f}.7189 • ~"",~,,,,,....,4_~ .. _.,. '.~" ~"", __ ....__ ,.._... .. ~_. _.. _"_.ü."_~',,, .. ""_,, . _. " .• _.. ~ ~ COH'l'AA!::T 5TATlJ$: ApprllWd EXECUTED: .~-~.~." ... ,_..,. ....... _' .... " ...... -y. ~, .. ~_..... .. .... ~ ...... .....,. ,.~' ....... ".. ,..---- ...... " ......... -_ .... STAAT DATE: ...... ~ '" o. _u",''''''' ...... J~_""",_""~,,,,,__ ,__ ,,,,,,,,,~,,,,,",,,,_,,_, ....._~ ~ .~__.~,. SIaHen COtolTRACTRSCElVED DAre: DEFAULT RerAIHAtn¡: oEseru1>T1fltf: GeNeAAI.. CONTRACT DATe: June 25, 2013 OWflErt: TlIftLS.O. 400 COUIIg9 gime! Tall, rx 711390 Talt HIUh Sefiool front Ofl'ICllOlind (lUMr Imp_11Mfft3 2013 liI:l:i!Rincon • Tall, TX 1lJ39{l f'e«~n&~1),Ût$ Cllrpll$ CMSII, TeJÁYMENTS: SVBOONiRACiOR PROGRESS PAYMEIIITS WU ae MACE NO LATJ';¡RTHAN 5 WORKlNG DAYS AFTER GENERAL CONTRACTOR ru:œves PAYMeNT.Colltraçtor ¡hall píly SubClllllroctor IllQnll1!yprog_ paymentI. SUbClllllraetor.1ulI prll\llde C«\!IlIetor will! mø_ estImal!!ll bylite ZQIb or eallll monI1111lId .J!íL..... petœf11JIlIY!11l!1lt of 8jlfltIIved eSlimill8l¡. $hd be paid.Tile IIl1'lOO1ltOf ear.h llrour- paymmllfo !he SjJb*~sIIaII bø equllllO lIta!lll~ of f:llmpledon øliowed to !he col'llra~orfortl1e WOlle(jf!hlll Stlbcoo!nlctor ap¡Xled IO ll1it COllIrilct &um ofINa IlObOOfltract flIUIIll'!e amounl álowed 10r ma!l!nall! lUId equlp¡nelll IIt.lÍU!l:lIy SlOOld by tile Sl.Ibèølltrllclor IMs Itle I19gregate 0I1lf411lcm pøymen\lllO lite Slilcoi'lltactor lef;aJlL......... p!If(:>;!n!mlama¡¡é. 11"- 1II11!Q11!:.of II pragl"" plYll'lIlnt, lit. ,ubc~or.ll.lI.\lbmlt tvlftel'lc •• MllfllltOIY tø the C~ thllt dlllU. lOr maUllÍlllllnd .qulprtl4lllt, and III known mdebtedlt ... 1l000llllC1ilQwill! ttt. SUbcontractor's work havll bflln nttatled Md dlaclliU¡Jtd fot ttt. 1'l'1l'i1<1118 ¡lllrlodil for whll:ll PlIyl'lHlnt ha. ~ mad.. A cllfnpf4tllllllt øf Yflur f¡1l1l-subllnwllCton¡ and mølor 11U111Ifta1.~ mUll be lIIladl.d bl UtI. ilUbeOfttnll:t on Illfl fonn prílllldØ'd. f'rtlVllIed It*'I'l h,$ bfll!!100 m.adt GrdefIllIt uflll!!r this Mmet SWconlracl ÀIlfllllfllllnf, ~IGr $haßmilk. paymenton !he lattor ofthe fQIIoWing datll$: 1. On or I!eI'Gre lha201ll !lay of lh!l toIIGw(ng month: 2. IMIhIllllve days of IlICi1Jj)t of Ukli payment from 0Wn1llf': 3. 'Mlhln five clay/¡ at S!IbconIracw Ctlrlng any bteiIdI ol OOIIIrllcl,lnclldlng, lM nolImIted lo. hllllfn¡¡ boen nDlifled of faqum lo pedOfIlI pmu.1lI III MIde 17. MIlll(.llllon of In!e>1tIO Ih._ ef Ølhlll' efalm& and or lfIe Iling ol'l.lcl1liefl! Of'olller d.mt¡ bylIub-.ubCllntractons .nd lWptlJtlrs of Sllb~r. fllllure lo prolll•• ihl. llolldltill!1 pntCCd"nt al.o IIpplits tø Contractor'" obIlglItlon lo PlIY chang. OMn. tiltal" 119'* Qf flnlIr flIiIl'mlInt, If any. lind Cont~r'lJ eurcÑíe of li rlllbt o, offaet Ilhall !HIt be Il bIllIIch of .ny l*Yment prøvlelofl hartot, lind "'afl not 11111 (:.onlllll'W!d .. being a vl9r.llonof tM-T8Ka11-Trual-FundStll!ulls. - W&JOOGOO8 33 302 • Conlrllctor paraorIIPIt I:I6rewllh, CeRTIFl1W Wl::"A VER PAYROLL: & JACOnS CO/\'STflU, :rORS. IJl;C, ahan never be obligatttd to pay !'IltJ;lnag" to SubcontrllCtof NOI1!! UIIH! Contractor b.IJrøçelved all of Contractor'. Contract SC ..1309-00015 101,llIilS811l fulL Thiel aupel10tdu III other provl!lionlJi of lill, Agf'llllmenl, and IIny c:onftldlng laRqualle ,hllil b. modlll.d 1M' deJlrled lo bo con.I.~nt ACCEPTEe ALTERNATes: None UNIT PRICES: IlIlICCQnlance with q~öle SUBMITTALS: SUBMIT ALL SUBMITTALS/SHO? ORAIMNGS ELECTRONICALLY; PLEASE CONTACT PROJECT MANAGER TO COORDrN ....TE mSURAtfc£ fU!QUJRI',MEN'I'$ A) Commuelal 0lt wllhln Ihmlt days lo 1M Contractor any fnJul)' lo eny of II1e Subcanlnlc\or', employeas al IIu! sita. It 1"\lrttulr agrecd by and b!llWoen 1M partie$ hlll1rtt:lIMt SUbeonlroclor hemin :¡hallIOld harmleilll and Indemnll'y Contrlldtlr ror IIny and 1111 pefIßlllea ø""ased agaInst Contractor al! ji ,asurl of lIioløUon ol Ule OCCUpatlona, Heil1th and Sar~fy Act and all'llqUlrol'lllln1$ relelad Ihøreto If such penally aT ~llf1alllllS am 8llSI!S$lId gl !evled as II fe$U~ d. any "lIllation of said Oceupplfol1al Heal1h lind Safely Act by SubCQlltr!lc;lor or an~ of uld Subcanlractor'a employees, IIQ&rltli or Independent conlractors wortdng undet Ine dhclloo ol IIald SUbeontraetor. Paliure to telmlluflll Conllaelar ,høll rnlW lite elfeCl ot _!loWIng COnl1ae!Ot IQ WIthhold fot "s own betUli! 111ftamount af $uch penall't out af ""V paymMhl due under lIIeloilrm$ øf lilis conll'llcl. 4. Subcontraetor shall not usíll" aU ur any part of thIs sijbconlrael nOf any amountß due or lo become due underthl& wbconlrBct wllÎ10ut writtan consent of ConlraClor. &. Sul¡l)OI1lrllclof warrant& that BlI matlulall; and IIqul¡!menl f\lmlshød and !ncorporaltd by kim Inthe Pr~w. ahal he new unless öthorwlsa i!;le(;ified. ind Ihal al/ W()rk under liliS Subconlrad shif be good quaily. fnm tram (aulla dnd defllclS and in confurmance wllh Ø11lContrael 0cx:IJ ment~. 6, SIlbconlrao:tor 8!jceaSlhalll he should neglect to proseCIlIe lile work LOVEES OF SlJBCONTRACTOR, AND EMPLOYEES Ol' Am OF sua- CONTRACTORS' 8UaCONTRAcroRS ANnlOR SUPPLIERS; AND 2, 2. PROP~1'Y DAllAGE TO PROPERTY OF sua- CONTRACTOR ANOlaR sueCONTRACTORS' sUB. CONTRACTORS AN0101t SUPPLIERS ,INCLUDING THE LOSS OF USE OF PROPERTY. Tua INOEMHrtY CONTAINED HERI!IM INCLUOE!SINOEMNlflCATION FOR ANY AMD AU. EXPENSES AND ATTORNeYS FUS Jl.I!LATaO TO Tftl! CLAIMS OellCftIBED ARISING OR AlU!GED lO ARIlI! OUT OF OR 1MAtri WAY TO SUBCONTRACTOR'S BRflACH OF THil AGREIWENT. eVEN IF SUCH CLAlM OR UAalU'tY IS CAUS!:O IN WHOU, OR IN PARl' 8'1 'fHe NI!GLIGEH.CE OF IJff INDlliMNfI'EE, Ir BeINIl THE EXPRESS INTIlNT OF THE PARTI£S THAT Tfo!E3UBCONTRACTOR INOEMNIPY THE COH1'RAcTOR EVEN FRaU lHE Q'MfM'!I AND CONTRACTOR'S OWN NEGUOENC&. SUBCONTRACTOR AlSO AORUS 1'0INoeMNIFYiHE OWNER AND CONTRACTOR AND IfOLD rr HAIIMLGSlI FR.OU ALlIi!XPENlIES. INCUIDING ATJORNlY'S FEES CAUSED ay OA RELATSD TO ANY BREACH BYIIUIICONmACTOR OF THIS AOREeMENT. SUBCONTRACTOR SHALL Bli RESPONSISLE FOR OAMAGe 10 OR LOSS OF THE SUBLET WORK, WHetHER CPWLETED OR UNDER cormmUCT10N, umlL RESPONSIBlWTY FOR lHE WORf( HAS ElEENAcceMro BY THE OWN:eA,AND suaf shall be bGllnd IQ Subconlrøåor b'l \h\lll!lll1l1 oJ this IIg«1cmenl and of lllø Conirae! Oocumoob beIWe:I Miela In lI¡¡ht of the clrcumslance6 contonllng ConIraelor al U'l& time GlIdl rledlllon Is made. Should ConlraWlr's dacillan lo lemllIlle S\Jbeanlract for default be delermtled by a C4wt fo be li wrongfUl tMlllllladOll, Itlrlo ~ t"rmll\lIIkm fIlr dftlalM Shall automatically btl CDnVllrted to It terminalIon for flOnvenlftnGe of the Contractor, Il$ selout below, and SllboontraGtor's damages ilhaB be determinad u utllut in li tormlnatlon ror oonl/81\1enoo of Ihe ConlrllctDf'. B. TE~MINATION FOR CONVEAlI!NCa Of CONTRACTOR OR OWNllR General Contractor møy, at i!JI option, tmmínallt for eal1VcniBIIÇII!:h1l Sublllt Wolle In Whole ar, from 111\1& to Ømé, In palt, RI øn~ time bV WI'kten "olice lo Subçontract<:lr, Such nollGO ahlll specify the axlènl Ie whlCfl Itle performaoœ olWOlk 1$termlIIallll!FI!CTM WORK AND CLAIMS: flQym~nl5 othørwl&e due mny bli withheld by Contractor on lI'CCOOnlof døfaotl~ wOll< not rt!medled, eI.ima fltød,ellldöl1CG lnatcallng pTobablKIYor tiling of clalm~, laUure at Subconlf'j¡CIOf lo make Ilaymenl~ Properly to Itl Sub-aubcön!ractolll et IO mall!t1UngB~claims, to the e~lenl Ihalwch eooperalloo I. reßsonable, Subnontracl worK lind dlange oldt!r~ mtun be aUlhonxed In WIlting and signed by Cooii'_dor. W&J ÖOOOÓÏ'z . F'Jintoo On: 00/20/2013 01 :48 PM 37 306 • MeOIATlON: 1, WI..:'AVER. & lACOfJS ('èll'l'.~m!i(:HJflS. INC thereof. sholl be submllled IQ modilltlon, IMIIl respee! to disputes thsllnvolve SC-i309-00DiS Contract Prlar lo the flUng or any IßWlJuk, all claims. dIsputas and othor maUara in que$llon arl5fng out or, or ralaUtlIJ lo. this subconlracl, or Ihe bresch Owner lind Contractor. sudl mediation shaft ba Illll1elaamll' manner and under the 1!aIl16 proC compensation and emploYél'llllllblRly Inlilltanoo maintained per req ulrement staled above. 1"1 Notlfkl«llO!I of cancell_Uoll, NQn·Renf\n' ilt Material CIl_ngll In COl/e"QO 1. Subconll'llc:!ofS 05nlt181 liabMity. Autolflllbila liability, Umbrolla Uablilly and WOIkers' Compensation poMdßll shall be a",dorssd la støte IIlliI Conll'llctOf will b¥ noURed all!lwlil30 dayaln advance In the allOlnt of cançellallDl'l. nDn.fenewal. or material cllan¡¡e In ctlVelllga ct said pojlQles and the aubconlrsc:tor will replace "wMIendeavor" with "musl notify" In 1tl&ir Cortiflc~te of IMUnJnce, Gl ClIl1lfiSTS FOR EXTRAll OR CHANGE ORDeRS: AlL CHANGE OROER,$IIUST 811H WRmHG. CHANGe ORDERS MAV NOT BE DoNe "T THE JOSSITE LEVEL AlL REQUSSn FOR EXTMS OR CHAN(Ui ORDIiRS MUST COME THROUGH me PROJECT MANAGIl~ IN THil HOME OFfICE. lHE ONLY 'NAVTa CHANGE: VOllA CONTRACT AMOUNT IS T"ROooH A WRITTEN CHANGE OROER FROM OUR OFFICE, PAYM£NTS 'rO SUSCOÑtAACTORSlllUPPLlERS: Q¡lllractor.mi Subcontractor agMe lhallf Conlractor III any filllD beßavtls, In Its IlOIe¡ud!¡menl, thai Subcontractor's suppllars and/or subcofJ!r.I~lars may OJ)t be paid' by Stlbconlraclor, CO!'llraC!Of may eleet to pay any such subcoooact()!3 orsuppkrJ dilQCIly by J()jnt ehaele and ma" be anUtted to deauct!ll'll/ such Sml. Pllid from sum, dueto Subconlractor. Contractor'. decision to pay SlIbconltllclol', !iUppIIOI$of lubeontt.ctola dheUy Qf by Jolnl'checlt iihsll no! bo consfdered Il breach ottilia Subconlrad. FlUAI.. PAYMENT: Fln.' !léymllnl Illall bo dw wMn Ille Wolk dllscrbld In th¡~lIul!colllrad Ii Uly cotJIj!lelsd eod perlormed in Ilc~ordarn;e willi It\!! contracl dOf,;Urnonlll.apPfCMId by Iha Álcl1Jleoi. acceptod by Ihe Owner, IIIld m!alnage for tllal p.>rtlon otlhs wolle has been fi!celved tromlhe owner. Bøfors IslIUUIlCilof final paymeol, !l'HI Subconll1lelor 8hall :IWmIlnllidonCtl sllUalaClöljI to !he C Atchitøct'll consunanla. and aganla and employoes of any of thom erlnlllg oil! of lI1e prepol1lHon or 8f)plOlial Of maps, drawings, oplnlill1S. reporl$, $U~ Change OnIelS. dealgns or lI¡Jocl1iooUona. or ilia gMng Qr or falluro lo give direCtions or ln8lru<:Uons by the Architect, the ArchitQct·~ conwltMtlh and agllnl$ lind omplOyell'S ol any of them proVided sucll gi\dn.g or (aJlul1Ila ¡¡Ivo Is Ille primary caUSIl of Ille IrtUry or damage. (¡ONIMCTOR'S ßESeQNSIBll.mes: 1. Cunlraclof shaH be bo~nll h, Subcontractor by tila loons of thill aQroementund of the Cnnlract Oocumenl$ belW6«1l11ó1 Owner and Contnlctor alld ,hBII a6~UI11l1lowald Subcolllr.lellK allIIle obligations lind retpO"61b1lllles ll1alllla OWtlar, Ily lhosl! Dowmel1l$. lInumes toward Centrado!, QI'Id Ihlll1 have thll beneGt uf al ñghlll, fsmedli,,¡ lind redles'II Bgal"«t the S\.IbconlraClOf Y/nlcll the Ov;nar. by I~ DOllUmeflb, has against Contractor. fnsor.... Ila øppllcobla lo \hill lubcoolract. prov¡~d tl1al wh!!ra ¡ny provl91on ofllle CornIa&! Oocumenls bnlwool1 OwnQr and Contracter 1¡¡lncollsi.len! with any provIGlon In Ihlac agreem!ll'lt. this agresment.haR IIO~. 2. CanIllIcoor $ha. prOl11ll!ly l10tify Subcontractor of alIl11odlficaUonllo 1110contfiltt bel.wllen the Own;¡r arid Corllruclor, wh¡~h ¡Illeet this subcontract and which were IS$ued orøntel1ld Into $lIh!JQquent (o tha øxucuUon of lilIs sybcootraCl. 3. Contractor shaft maka no demand for HquIdated d8mage$ fou!clay In 8ny sum In axce$~ ofsuctl amount ae mal' be speclflçally nIImed In Ihis 6ubconfmcl, and no Iqufdated dlll1lllgos shall 00 as_ed aglRnAt lhl& SubcontractQr for delaY' or ÇgUllUI attributed to 01her tubcantrøclors Gr etl$lnQ oul$fde Ihe $cope orthis ~bcont ... <:t. 4. Conlmctor shaH not g¡V~1n$I.uCtiOnllaf ordef'$ diracUy to of Its Wllm up lo Ihal of Conlrodor Øl' ailler !raoos, or II\ø fallure lo exeel.lle ita work lI$ ¡froeted by Conftactor, Subcontractor agraes to (!l(etI.!le anli _gnml!lllll neCIJllIBIY to make avaU.bIa to Cometar own. am:IlI'Il'I \Ile ri¡;¡l$ of .~lrIIGtør 1111derIlUl'dWo orøm .1'1(1 .ubCOfllrIdS, COfIIr;Ictorwll! crldit Subcootractor's aCCIIlmt wllh !he vafu!¡ of lila milterlal!l and liuppller, GOutGd bulth.re Will bl! no eliJdlI tor IiJnt on equl¡mlenl SUIlçonlmclorwlllllIlmlMU COnlraelor In O.WIlI COUnty. T(!l(l!$, lo 1M eX!$I'Il!hat Conltactor'a .Xlla"", Including sliomeyG I'oos, In CO!l1Jll8llng Ihø Sublet Work .nd pr_dIn9lJ11der this AI1ldc Il)(~ede the balallCll WIIIdI woul« hswl¡acomé dua lo SUbcontractor under thla Agrl!elllllllt hild SiJIle011lroÇ\Ot comploted the Stillet WOOl.If Oonlr.dori! ttXlllIDlle IIIlelU! lI1an ilUd!lItIlQlII'tl, !I1en SubCllnlm(;Úlf Ihd reoelve Øa ¡.. MI1l'll ano IOIt cemptlOsmJonlta aClual CMllI1ññ, IlI!WISlIIY and mllsonabfe costa of pel'formlllllllte work IO lite dale of IIIrmlnallOl1, u detetmllIM by IIL1llIt Of lUboontractor's reoord&. pbs e t\l~sGfloNe 1IW'ku¡) før ovortlead and prolIt. Irut tn no _nt malllllCÎl amOUl'l1a due btmmdtlr lIK1:eed tIlliIløwl Subcel'ltract AmOUIlt. SUbCilltllllclOt hereby Wl!1ves all Claims llllalnsl eoolrado!' tqr ¡ImRIs, r!!l1l on equlpmQl'lt ar othar dlmlajJelll1llated lo any Ilfoœedlng which GonfrlJc!ot InIilltUle$ under Ihls Atlide. thI! Pó, IIl1ftlfl !hat the IOrmll of fim¡ IIri1d11 shlllllIe binding i1 COnftIldor In good fll4ll1lll1s døtemllned that SUbcenftllc!or'lI performanœ III inadsqt!lllo and !hat the ()wo¡¡r Of C1ln!røclor Of.r subClló1lrllåQr l'nay be damll9ed, or Contractor may he unalde to pedarm fl\! CIIflfrlJtlllai ®IIgatkll'l$. unlsss Coolractor proll8adS Und!!f 11'1111 Arlll:!!!;. The ~ agree Illat BUd! delermbrtloo& W1l dflllwll to mako and muat be IlI!!de under pr.sslng drcunwlanœs, Md agtee lo be bound In !lC!lOfdanœ with thi" Arlldlllnllghl of the drwmelanCllS çOottó_ COfIIrIIdor .llho .1lI!! sud! ~ci8ll)n lImado. Should CofIIJ¡¡c!Qf'll dllcilion IO IerminllÙt SubCllntract fot qefa¡ijt lie ~1efmí'Ted by iii ¡;oIlIt lo bt iii ~ I:em1lnlltloo.lMllllle ~i!Orl for derauillilall lIulomatil:'lilly be Cllnwrtød lo a IIIrmlna!ion tor COIlvenleoca of ttre Contractor. lIS set olll billow. lind Subeontraclara damagC$ ~alI n. deltl'l1lined all aøt ou! 11'111lèrmll'lø!lon lor COOllllrlMlnce of the ConIraCklr, • e. TERMIflATlOH FOR CONVENIENCE OF CONTRACTOR OR OWNER a-ml Con!raClor may, at II!! opllon, M¡rnfnate for COIlvenlem:a lt1e SUblet Woll< III wIIoIe or, !l'om IfmtlIO Hma, In part, lit 811Y!fma by den fIOIIO!! to Su!leQnlrllotllr. such nodee allai spedfy the luctanllO WIIlm !he parl'olmance ofworlt I, termlnelèd t!lld !he e&I:lIve daft! ol sUCh terminlIlion. Upon rflCOlipt of such nllliœ Subt':onfrlletor !hall (II) lmmedtalllly dlilcontlnue the SuIlIal!J\.bñ¡ on th. dalll and IO the ex!ent ~~llllllltl! nOllced piece no furth., ól'ditl'$ or .ub~ilè.lI$ filt mlltlllla1s, IlINIea, or faClilll!8, Olhllr thm !l5 may be !lIqIirlld for Cllmple1foo af SOëh porI!oo oflbe Sublet Wor1c !hili fi¡ not lIIrl'íllnlltsd; (bl prompII'¡ obtllln eMCèllalloo UPtlfIItrIll!! alltlsfarto¡y to General Conflactor on lIl1 pulthftae ordam, ioo-&ubeootram.. refilaI., or any oll\ør lJgreem\lnllJ e~ lOt Ihø pert_ oflhe letmlnilted Wl'lfk er tmløn lliose aul1ll'lñtMtil to GeœnlfConll'llclar!lll dlrecled: (c) allSlf¡l General C!lnlroctorifllhê maIni_nell. pl'otedlon, I!IId dlllpGSI!lon ofwnrk in prOGress, plant. tools, equlpmen!, pl'llperty, and !IllII!!riøl511l'4ulmd by SubCllnttatl10r Of fl.lll'l!ilhell by_SubCllnftaotllf_IJI'I(I.,-tN4conlrllel;lIld(d)lllImpIelll pedormanœ1lfJJhe_Suble!JM:llk_wbid1_15_!lQ( tetminated. Up¡¡11 any Sl.!OOlenninaUon, G_I Conlrlilclor shall have /lO IlIlIillry for any dømej¡l!t.l!'lclldno 1o~1I....t M~dPIIlød prolllll. As lis _ right and remedy, SubCIInlraclof mal ba pIItd Ihe following: (a) all .moUllla due and nolllreWolJ$1y paid to S1.ibClln1fllcldllIll~itilln oflllildúill material, ¡¡¡Mt aM equipment; and (d) li 1lI41l~ ørorit M Heros (b) and (elof!his 1!3(~ph, 1I'I!tHI _nt my Il!l'Il1lnaUon cf lheSubeotllnlClor for default II!Idl!r!lv! dl!ll'ilull terminalIon lIrtIde !J!&Iet delfirmlned to h_W blllln Irn¡!roporj the WIfI11t!IIUan lIhllll automaUœDv bil de~ II termlnMkm tor ClIlW$nience lIIld !ha SUbcoolti.taOl' !liai!bt Irnlled in II' IlIcovery $bidIy to the SubCOlllmclD( ,hal! allbmlt within 30 døys .Iler reeeipt of nali08 1)f lerminllllon, II propOdll for an ødjUtlmenl in cempí!lWllon, inclUding aD Incurred CIIiIIll i'I~ l1er$in. Gene1aI COnfrlJctOl' shalf røvklW, ønøl)lte, snd lII!Ilfy aud! ptopoIIaI, lind, If not 3a1ñl.d. !leguUste an ElQwtable adjUllIm8llt 800 Ihø $ubcøn!taot lII'laH be am~ed ill wrillng accordingly. DEFECTIVE WOIlK AHD CLAfIl/lS! Paymentl oIl!a~1l due may be wilhheld by Cooltllclør on aeQJun! of defédlva work nol remedied, dlllm! filed, Il~rtœ Il1Illcallng probatlfJly ot ftl!ng af ctillms. (l!Iture ol SubCllnlfllctor lo make PIIYIlltnts property to tiG Stib--&ubClll\lráclOr$ 01'10 make llilYl'flMts for rolilerial ar labor. or • ft3lQnllblt doubt lMllI!e Sublet 'Nom œn be compk)tllÚ for the balance !hilen unpaid. If the økt œYSml1!fl'i l'loi femnved wllhln IlllYeflly·IWO (72) houri .lter SulIOOIIlnIC!or'$lVœip' afwri\ten rmtiœ. Conndor mey 1lIC!lty Ihe lI8m& al $\lbCllntral::tor' expenae. CoIl!raGlor!Tlll)' offt¡at 1I110Íllll any BumB!lue Sullcentllldor hefelll'tdtr lhe amounl af øny Iqultløll3d or 1II1·liqt.¡idøted DbRglltiona ol SuboonlraClar to CoofruclO!', whalhar Ql'lIllt arlsl!1g øulof tIlllI Agreement. Subl:onlnlclor IIgn11ll1 til bt bound by .Ilho pravjj¡(oM of !he Prime Contract, Indudlng, buIllO! Umited tø. prolli$lons ,.. Ia!illg to quantllm, meæuremenl and paymenl. llÎlllllllo ornera, QJ