CAUSENO. DC-22-16546
`
`FILED
`4/5/2024 4:02 PM
`FELICIA PITRE
`DISTRICT CLERK
`DALLAS CO., TEXAS
`CAROLYN SELLERS DEPUTY
`
`IN THE DISTRICT COURT
`
`1015? JUDICIAL DISTRICT
`
`AZB LAS COLINAS,L.P.
`Plaintiff/Counter-Defendant,
`
`RESTAURANT & RETAIL
`
`NATIONWIDE CONTRACTING
`SERVICES, LLC.
`Defendant/Counter-Plaintiff
`
`QR2SNSPLNLNLhSHSLSNLN
`
`DALLAS COUNTY, TEXAS
`
`
`PLAINTIFF’S AMENDED ANSWER TO
`DEFENDANT’S THIRD AMENDED COUNTERCLAIM
`
`
`TO THE HONORABLE JUDGE OF SAID COURT:
`
`NOW COMES AZB LAS COLINAS, L.P., (hereinafter called the “AZB”) in the above
`
`matter complaining of RESTAURANT & RETIAL NATIONWIDE CONTRACTING
`
`SERVICES, LLC(hereinafter called the “RRN”) and for cause of action showsunto the Court the
`
`following:
`
`1.
`
`VERIFIED DENIAL
`
`—
`
`Pursuant to Rule 93 of the Texas Rules of Civil Procedure, AZB submit a verified denial
`
`that:
`
`(a) RRN hasnolegal capacity to sue because “Restaurant & Retail Nationwide Contracting
`
`Services, LLC”is not registered to conduct business in the State of Texas.
`
`(b) RRN is not entitled to recover in the capacity in which it sues because “Restaurant &
`
`Retail Nationwide Contracting Services, LLC”is not registered to conduct business in
`
`the State of Texas.
`
`(c) there is a defect of parties, AZB or RRN for the aforementioned reasons.
`
`1|Page
`
`
`
`FILED
`4/5/2024 4:02 PM
`FELICIA PITRE
`DISTRICT CLERK
`DALLAS CO., TEXAS
`CAROLYN SELLERS DEPUTY
`
`IN THE DISTRICT COURT
`
`1015? JUDICIAL DISTRICT
`
`AZB LAS COLINAS,L.P.
`Plaintiff/Counter-Defendant,
`
`RESTAURANT & RETAIL
`
`NATIONWIDE CONTRACTING
`SERVICES, LLC.
`Defendant/Counter-Plaintiff
`
`QR2SNSPLNLNLhSHSLSNLN
`
`DALLAS COUNTY, TEXAS
`
`
`PLAINTIFF’S AMENDED ANSWER TO
`DEFENDANT’S THIRD AMENDED COUNTERCLAIM
`
`
`TO THE HONORABLE JUDGE OF SAID COURT:
`
`NOW COMES AZB LAS COLINAS, L.P., (hereinafter called the “AZB”) in the above
`
`matter complaining of RESTAURANT & RETIAL NATIONWIDE CONTRACTING
`
`SERVICES, LLC(hereinafter called the “RRN”) and for cause of action showsunto the Court the
`
`following:
`
`1.
`
`VERIFIED DENIAL
`
`—
`
`Pursuant to Rule 93 of the Texas Rules of Civil Procedure, AZB submit a verified denial
`
`that:
`
`(a) RRN hasnolegal capacity to sue because “Restaurant & Retail Nationwide Contracting
`
`Services, LLC”is not registered to conduct business in the State of Texas.
`
`(b) RRN is not entitled to recover in the capacity in which it sues because “Restaurant &
`
`Retail Nationwide Contracting Services, LLC”is not registered to conduct business in
`
`the State of Texas.
`
`(c) there is a defect of parties, AZB or RRN for the aforementioned reasons.
`
`1|Page
`
`
`
`II.
`
`GENERAL DENIAL
`
`2.
`
`Pursuant to Rule 92 of the Texas Rules of Civil Procedure, AZB generally deny each and
`
`every,all and singular material allegations contained in RRN’s Third Amended Counterclaim and
`
`demandstrict proof by a preponderanceof the evidence.
`
`I.
`
`AFFIRMATIVE DEFENSES
`
`3.
`
`Pleading and without waiving the foregoing verified and general denials, even if RRN
`
`proves the allegations set forth in its Third Amended Counterclaim, AZBis not liable because:
`
`4.
`
`AZBasserts the affirmative defense offailure to state a claim upon whichrelief may be
`
`granted:
`
`(a) RRN’s Third Amended Counterclaim for quantum meruit should be dismissed. AZBis not
`
`hable for quantum meruit against RRN because AZB and RRN have a binding contract of
`
`which RRNseeks recovery. Under Texas law, a party who seeks to recover the reasonable
`
`value of services rendered or materials supplied through a quantum-meruit claim generally
`
`may do so only whenthere is no express contract covering those services or materials.
`
`Truly v. Austin, 744 8.W.2d 934, 936 (Tex. 1988).
`
`(b) RRN’s Third Amended Counterclaim for promissory estoppel should be dismissed. AZB
`
`is not liable for promissory estoppel against RRN because AZB and RRN have a binding
`
`contract of which RRN seeks recovery. Promissory estoppel is not applicable to a promise
`
`covered by a valid contract between the parties. Trevino & Assocs. Mech., L.P. v. Frost
`
`Natl Bank, 400 S.W.3d 139, 146 (Tex. App.—Dallas 2013, no pet.); see also Stable
`
`Energy, LP. v. Kachina Oil & Gas, Inc., 52 S.W.3d 327, 336 (Tex. App.-Austin 2001, no
`
`pet.) (‘If an alleged promiseis part of a valid contract, the promisee cannot disregard the
`
`contract and sue for reliance damages under the doctrine of promissory estoppel.”).
`
`2|Page
`
`
`
`(c) RRN’s Third Amended Counterclaim for violations under the Texas Trust Fund Act should
`
`be dismissed. AZB did not receive construction payments and/or loan receipts to be utilized
`
`in the payment of construction and/or repair of the Property by RRN.
`
`5.
`
`AZBasserts the affirmative defense of first to breach and/or prior material breach.
`
`RRN breached its contract with AZB first by violating provisions of the parties’ Fixed Price
`
`Construction Contract, including but not limited to §§ 1-5, 7-9, 12, 13, 16-19, and 25.
`
`6.
`
`AZB asserts the affirmative defense of unclean hands. RRN engaged in inequitable
`
`behavior, e.g., deceit and fraud, by acts including but not limited to: (a) intentionally filing a
`
`fraudulent lien and seeking damages for work that fails to comply with the parties Fixed Price
`
`Construction Contract; and (b) failing to disclose AZB could not hire a third-party contractor to
`
`perform HVAC duct work under RRN’s permit and requiring AZB to use RRN’s designated subs
`
`and estimates which included additional profit and overhead costs.
`
`7.
`
`AZBasserts the affirmative defense of failure to satisfy conditions precedent. RRN’s
`
`conduct includes, but is not limited to: (a) failure to give AZB at least 35 days notice of outstanding
`
`paymentprior to altempting to place a lien on AZB’s interest in the Property; and (b) failure to
`
`inspect the Property pursuant to the parties Fixed Price Construction Contract.
`
`8.
`
`AZBasserts the affirmative defense of anticipatory repudiation including but not limited
`
`to the following: AZB provided notice to RRN ofits dissatisfaction with RRN’s performance
`
`pursuant to the Fixed Price Construction Contract including delays and objections to applications
`
`for payment.
`
`9.
`
`AZBasserts the affirmative defense of set off including but not limited to: RRN provided
`
`Application for Payment 10 on or about September 19, 2022. At such time AZB had, pursuantto
`
`the Fixed Price Construction Contract,
`
`incurred $768,000.00 in delay damages,
`
`less the
`
`3|Page
`
`
`
`outstanding contract price.
`
`10.
`
`AZBasserts the affirmative defense of waiver. RRN waivedits alleged rights to the alleged
`
`contractual terms it has sued on relation to the requirements to be met before it is paid for work.
`
`RRN waivedits alleged rights, claims, breaches, and damagesby intentional relinquishmentof the
`
`rights, claims, breaches, and damages, and intentional conduct inconsistent with claiming the
`
`rights, claims, breaches, and damages. RRN hadactual knowledge ofthe existence of the alleged
`
`rights, claims, breaches, and damages. RRN acted with intent to relinquish the alleged rights,
`
`claims, breaches, and damages, e.g., continuing performing work on the project, not otherwise
`
`enforcing compliance with the alleged rights. RRN assumedthe responsibility of foreseeable risks
`
`and hazards under Section | of the Fixed Price Construction Contract. Further, despite AZB’s
`
`efforts to reconcile questions regarding RRN’s Applications for Payment, RRN continued
`
`performance without payment. RRN further representedit inspected the Property including but not
`
`limited to the condition ofthe concrete, HVAC, lighting, and general construction conditions. RRN
`
`had notice of the COVID-19 pandemic and/or acts of God including but not limited to awareness
`
`of supply chain delays. RRN’s actions also constituted modification of the contract terms to
`
`removethe alleged rights on which RRN1s allegedly suing.
`
`11.
`
`AZBasserts the affirmative defense of fraud including but not limited to the following:
`
`RRN engaged in intentionally fraudulent behavior by intentionally filing a fraudulent lien and
`
`seeking damages for workthat fails to comply with the parties Fixed Price Construction Contract.
`
`RRN further represented it could perform the Contract on or before January 3, 2022, for which
`
`AZBdetrimentally relied.
`
`PRAYER
`
`WHEREFORE,Plaintiff/Counter-Defendant, AZB LAS COLINAS, L.-P., prays this Court,
`
`4|Page
`
`
`
`upon notice and hearing,
`
`issue a take nothing judgment against Defendant/Counter-Plaintiff,
`
`RESTAURANT & RETIAL NATIONWIDE CONTRACTING SERVICES, LLC, assess costs
`
`against
`
`Defendant/Counter-Plaintiff,
`
`RESTAURANT
`
`&
`
`RETIAL
`
`NATIONWIDE
`
`CONTRACTING SERVICES, LLC,
`
`and award Plaintiff/Counter-Defendant, AZB LAS
`
`COLINAS, L.P., any andall other relief, in law or in equity, to which they may beentitled.
`
`Respectfully submitted,
`
`OLIVA, SAKS, GARCIA & CURIEL, PLLC
`
`By: /s/ Kenneth S. Saks
`KENNETHS. SAKS
`Texas Bar No. 17525580
`ken@osgclaw.com
`CAITLIN ALANIZ
`
`Texas Bar No. 24131215
`caitlin.alaniz@osgclaw.com
`14255 Blanco Rd.
`San Antonio, Texas 78216
`Tel. (210) 308-6600
`Fax. (210) 308-6939
`Attorneys for Plaintiff
`
`SHAMOUN & NORMAN, LLP
`1800 Valley View Lane, Suite 200
`Farmers Branch, Texas 75234
`Telephone (214) 987-1745
`Facsimile: (214) 521-9033
`C. Gregory Shamoun C.
`GREGORY SHAMOUN
`State Bar No. 18089650
`ge@snlegal.com
`STEPHEN R.TITTLE,JR.
`State Bar No. 24028043
`s@snlegal.com
`LUCASA. DIAZ
`State Bar No. 24120800
`lad@snlegal.com
`Counselfor Plaintiff
`
`5|Page
`
`
`
`CERTIFICATE OF SERVICE
`
`I certify that on April 5, 2024, a true and correct copy of the above referenced document
`was served on all counsel of record via electronic filing system and the electronic transmission
`wasreported as complete in accordance with the applicable rules of Texas Civil Procedure.
`
`
`/s/: Caitlin Alaniz
`CAITLIN ALANIZ
`
`6|Page
`
`
`
`VERIFICATION
`
`§ §
`
`STATE OF TEXAS
`
`COUNTY OFBEXARss§
`
`BEFORE ME, a notary public, on this day personally appeared Agustin Zurita, known to
`me to be the person whose nameis subscribed below, and being by mefirst duly sworn, declared
`that he read the foregoing document,that he has personal knowledgeofthe facts contained therein,
`andthatall statementscontainedinsaiddocumentaretrueandpe
`
`Agustin Zurita
`
`VV
`\\
`2024,
`_APA|
`SUBSCRIBED AND SWORN TObefore methis
`day of
`.
`
` bers PPrileee art
`ERIKA ELIZONDO
`
`
`stay,
`Fat Py
`te,
`abies"Sete
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`ae
`
`1|/Page
`
`
`
`Automated Certificate of eService
`This automated certificate of service was created by the efiling system.
`The filer served this document via email generated by the efiling system
`on the date and to the personslisted below. The rules governing
`certificates of service have not changed. Filers muststill provide a
`certificate of service that complies with all applicable rules.
`
`Envelope ID: 86363069
`Filing Code Description: Miscellanous Event
`Filing Description: SUBPOENA FOR THE ORAL DEPO - DANIEL
`MENDEZ
`Status as of 4/8/2024 10:29 AM CST
`
`Case Contacts
`
`[Eatnein[i
`
`Kristen Hill
`
`——_[iteeserirancon[aaarSENT
`[—|asennconamareser
`
`Associated Case Party: RESTAURANT & RETAIL NATIONWIDE CONTRACTING
`SERVICES LLC
`
`}BarNumber|Email= TimestampSubmitted|Status
`
`Sonnet][setoenzon[SaToEa[SENT
`
`Associated Case Party: AZB LAS COLINAS, L.P.
`
`Daniela Rials P| der@snlegal.com|4/5/2024 4:02:03 PM|SENT
`
`C. GregoryShamoun
`
`
`——
`
`—— -
`
`Stephen R. Tittle
`
`KENNETH SSAKS
`
`Caitlin Alaniz
`
`
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