Plaintiff s Original Petition

Transcription

1 Cause No. FILED TARRANT COUNTY 5/30/2014 1:58:50 PM THOMAS A. WILDER DISTRICT CLERK Synergy Environmental Services, LLC In the District Court of a Texas limited liability company Plaintiff, Tarrant County, Texas vs. Prime Preparatory Academy, a Texas non-profit corporation Judicial District Defendants. Plaintiff s Original Petition Synergy Environmental Services, LLC, a Texas limited liability company ( Synergy or Plaintiff ) complains of Prime Preparatory Academy, a Texas non-profit corporation ( Prime Prep or Defendant ). Discovery Plan 1. This is a level 2 case for purposes of a Discovery Control Plan. Parties 2. Plaintiff is a limited liability company, duly formed and existing under the laws of the State of Texas, and having its principal place of business in Tarrant County, Texas. 3. Prime Prep is a Texas non-profit corporation and may be served with process by serving its registered agent, Chazma D. Jones, at 4400 Panola Avenue, Fort Worth, Tarrant County, Texas Plaintiff s Original Petition Sworn Account Page 1 of 10 A

2 Jurisdiction and Venue 4. Venue is proper in Tarrant County, Texas, because the open account or contract made the basis of this lawsuit was entered into, performable, and payable in Tarrant County, Texas, and the services were performed in Tarrant County, Texas. In addition, all or a substantial part of the events or omissions giving rise to the claims in this Petition occurred in Tarrant County, Texas. 5. The Court has jurisdiction over the parties and the subject matter of this controversy, as the Defendant is a Texas resident, or an entity formed and operating in Texas pursuant to the Texas Business Organizations Code, and the damages sought are within the jurisdictional limits of the Court. Facts 6. Plaintiff operates a HVAC repair, installation, and maintenance company. 7. Defendant asked Plaintiff to prepare a quote to install air conditioning and HVAC improvements to its school campus at 4400 Panola Avenue in Fort Worth in July, Plaintiff prepared a $15, quote for service for the requested work and forwarded this service quote to Defendant s representative for approval. Defendant approved the service quote and authorized Plaintiff to proceed with the work. Plaintiff installed the air conditioning and HVAC improvements as agreed and in accordance with the written service quote. Defendant then requested that Plaintiff perform additional work, all of which was performed as agreed, and approved by Defendant s representatives. Defendant repeatedly assured Plaintiff that Plaintiff s invoices would be paid, but failed to pay the invoices on time. Plaintiff was told that all invoices would be paid in full on November 29, Defendant failed to pay Plaintiff on that date, and made a partial payment of $7, in December 2013, leaving an outstanding balance owed to Plaintiff of $9, Plaintiff s Original Petition Sworn Account Page 2 of 10 A

3 8. Plaintiff s action is founded upon an open account or other claim for goods and services, and is a claim for a liquidated money demand based upon business dealings between the parties, as well as for labor done and materials furnished, on which a systematic record has been kept by Plaintiff. 9. At Defendant s request, Plaintiff installed HVAC parts and equipment on HVAC units at Defendant s Fort Worth campus. Defendant failed to pay the agreed charges. First Cause of Action Suit on Sworn Account 10. Defendant requested Plaintiff to install HVAC parts and equipment (collectively HVAC Services ) on Defendant s Fort Worth campus on an open account. Defendant approved and accepted the HVAC Services and became bound to pay Plaintiff for the HVAC Services, which were priced according to the parties agreement, and were the usual, customary, and standard charges for the HVAC Services. 11. Plaintiff attaches as Exhibit A : [A-1] a detailed description of the parties open account (the Account ), and [A-2] an accompanying affidavit. Exhibit A, including both subparts A-1 and A-2, is incorporated into this Petition for all purposes by reference. 12. The Account consists of invoices and communications that accurately set forth the HVAC Services Plaintiff provided to Defendant, the dates of the performance or delivery of the HVAC Services, the amounts billed Defendant for the HVAC Services, and the Defendant s agreement to pay for the HVAC Services. 13. The Account represents a record of the transactions involving the HVAC Services, and is the same or similar to records Plaintiff systematically keeps in the Plaintiff s Original Petition Sworn Account Page 3 of 10 A

4 ordinary course of business. 14. The Plaintiff s claim is just and true, it is due, and all just and lawful offsets, payments, and credits have been allowed. 15. The principal balance due on the Account is $9, On March 17, 2014, Plaintiff made demand upon Defendant for payment of the HVAC Services. Defendant has failed and refused, and still refuses, to pay them. A copy of Plaintiff s written demand upon Defendant is attached as Exhibit B, which is incorporated into this Petition for all purposes by reference. Second Cause of Action Breach of Contract 17. Plaintiff incorporates its factual allegations contained in this Petition. 18. Alternately, Defendant breached Defendant s contract with Plaintiff. Defendant s contract breach proximately caused Plaintiff s damages. Third Cause of Action Quantum Meruit 19. Plaintiff incorporates its factual allegations contained in this Petition. 20. Alternately, Plaintiff performed or delivered the HVAC Services to Defendant, which were accepted by Defendant. Defendant accepted the HVAC Services without compensating Plaintiff. Defendant accepted the HVAC Services, and knew, or under the circumstances reasonably should have known, that Plaintiff expected payment from Defendant for the HVAC Services. The HVAC Services were reasonably worth the sum of $9, at the time they were furnished. Defendant s Plaintiff s Original Petition Sworn Account Page 4 of 10 A

5 conduct proximately caused Plaintiff s damages. Conditions Precedent 21. All conditions precedent to Plaintiff s claims against the Defendant have occurred, been performed, satisfied, or otherwise fulfilled. Attorney s Fees 22. Under Texas law Plaintiff is entitled to recover its reasonable and necessary attorney fees in its prosecution of this case. Plaintiff retained counsel, who has presented Plaintiff s demand to Defendant. Defendant has not tendered the amount owed within 30 days of when the claim was presented. Plaintiff submits to the Court that the following amounts of attorney s fees represent reasonable payment for performance of the following services: (a) The sum of $1, for the preparation and presentment of this Petition; and (b) The additional sum of $7, for the conduct of discovery in this case, including the taking of depositions; and (c) The additional sum of $2, for the cost of attending mediation or similar ADR proceedings; and (d) The additional sum of $10, for handling a bench trial of this case; and (e) The additional sum of $15, for handling a jury trial of this case; and (f) The additional sum of $15, for appellate work in the event of an appeal to the appropriate court of appeals after judgment; and (g) The additional sum of $15, for appellate work in the event of a further appeal to the Texas Supreme Court. Plaintiff s Original Petition Sworn Account Page 5 of 10 A

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7 Exhibit A-1 to Petition Plaintiff s Original Petition Sworn Account Page 5 of 8 A

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18 Exhibit B to Petition Plaintiff s Original Petition Sworn Account Page 8 of 8 A

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