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Mowdy's Motion for Judicial Review of the Fraudulent Document

 Mowdy filed this motion in the 26th District Court and it was transferred to the 277th District Court.  Judge Ken Anderson, abated this judicial review and sent the dispute to arbitration after the contractor missed meeting discovery deadline.

The 277th District Court has refused to review the known false document because it would be the second legal confirmation of forgery.  After confirming the finding that a false document had been filed in her court, against Mowdy, and the claim against Mowdy was false, Judge Stacey Mathews then denied Mowdy legal fees for removing the lien which was based on the false document and claims.   

This document is Mowdy's request for Judicial Review of the fraudulent document filed against Mowdy.  Mowdy had a right to the Judicial Review which the 277th District Court refused to perform.   Mowdy had a right to know the fraudulent nature of the the claims made against him.

Some exhibit numbers in this motion may not be the same since the numbering system was reorganized.  Anyone wanting a specific exhibit should identify the paragraph and exhibit number to help finding the exhibit. 

 

 

DOCKET # 11-1064-C277

 

john hughes d/b/a

Hughes amalgamated

plaintiff

 

V.

 

THOMAS C. Mowdy

defendant

 

 

 

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277th Judicial District

In and for Williamson County, Texas

 

 

DEFENDANT Mowdy's 1ST SUPPLEMENT TO 2ND AMENDMENT

 TO motion FOR JUDICIAL REVIEW OF DOCUMENT OR

INSTRUMENT PURPORTED TO CREATE A LIEN

 

 

Defendant, Thomas C. Mowdy files this motion requesting a judicial determination of the status of documentation or an instrument purporting to create a lien or claim on real property filed in the office of the County and District Clerks of Williamson County, Texas, and in support of this motion would show the court as follows:

 

 

a. Introduction

 

1.  Plaintiff is John Hughes d/b/a Hughes Amalgamated, hereinafter referenced as Hughes.

 

2.  Hughes sued Defendant on October 5, 2011, for breach of contract, quantum meruit, suit on account, and to fix and foreclose a lien on Defendant's homestead.

 

3.  Defendant is Thomas C. Mowdy, hereinafter referenced as Mowdy.

 

4.  Mowdy answered, on October 24, 2011, Exhibit "12", denying Hughes's claims and that all Hughes's allegations and counts brought forth fail to state a claim for which relief can be granted.

 

5.  Mowdy filed countersuit on April 10, 2012, claiming breach of contract, negligence, injury to improvements and vegetation, fraud, and liability for presenting a fraudulent lien claim.

 

6.  Discovery in this suit is governed by a Level 2 discovery-control plan.

 

7.  Mowdy, is the purported obligor or debtor or person who owns the real property described in the documentation or instrument.   Mowdy's property, 1805 Carey Avenue, Taylor, TX 76574, is a legal homestead.

 

8.  On November 12, 2010, in the exercise of the county clerk's official duties as County Clerk of Williamson County, Texas, the county clerk received and filed and recorded the attached Exhibit"1" documentation or instrument consisting of Hughes's, one page sworn affidavit and 119 document pages. By that sworn affidavit, Hughes purports the Exhibit "1" 119 page documentation to be a contract providing evidence for creating a lien on Mowdy's homestead.

 

9.  On October 5, 2011, in the exercise of the district clerk's official duties as District Clerk of Williamson County, Texas, the district clerk received and filed and recorded the attached Exhibit "1" documentation or instrument consisting of Hughes's one page affidavit and 119 document pages. By sworn affidavit, Hughes purports the Exhibit "1" 119 page documentation to be a contract providing evidence for creating a lien on Mowdy's homestead. 

 

10.  Mowdy alleges the Exhibit "1" documentation or instrument presented by Hughes as the contract for work performed on Mowdy's property is fraudulent, is not a contract, contains fraudulent and false claims in violation of terms of the true and correct August 18, 2009 contract, and is not what Hughes purports it to be.

 

11.  On November 22, 2011, in the exercise of the district clerk's official duties as County Clerk of Williamson County, Texas, the county clerk received and filed and recorded the attached Exhibit "2" documentation or instrument consisting of Hughes's, one page affidavit and a two page document.  By sworn affidavit, Hughes claimed the Exhibit "2" document is the true and correct contract for all the work performed at Mowdy's homestead.  Hughes Exhibit "2" affidavit filed with the Williamson County Clerk on November 22, 2011, conflicts with Hughes's November 12, 2010, Exhibit "1" affidavit.  Both sworn affidavits cannot be true and both documents cannot be the contract for the work performed.  Mowdy agrees that the Exhibit "2", contract is the true and correct contract.

 

12.  Hughes did not file the Exhibit "2" affidavit and the attached true and correct August 18, 2009, contract with his November 12, 2010, lien claim and did not filed the true and correct contract with his October 5, 2011, lawsuit.   

 

13.  A material issue in the case before the court is the true and correct contract between Hughes and Mowdy for repair of Mowdy's home.  Obvious questions are:  Why would Hughes make a false sworn affidavit and file a fraudulent contract with his lien claim and lawsuit?  And, why would Hughes file a lawsuit claiming quantum meruit, a legal theory that applies only when there is no written contract, when he knew there was a written contract that included all work performed?  His behavior and actions clearly indicate Hughes had convincing reason and cause to believe Mowdy could not locate, produce, and defend himself with the written terms of the true and correct contract.  In considering this material issue, the court should be aware that during the repair of Mowdy's burned and uninhabitable home, Hughes was responsible for maintenance of, and had full access to, Mowdy's rented apartment.  Exhibit "11", is an affidavit from the building manager proving Hughes had access to Mowdy's apartment.  The true and correct August 18, 2009, contract was signed by Hughes and Mowdy in that apartment, Exhibit "8".   Mowdy is a retired person and kept the contract in his apartment.  During the apartment rental and home repair period, Mowdy was absent, out of state, for more than 80 consecutive days.  Hughes was aware of Mowdy's absence and communicated with Mowdy using email.  Upon returning from his absence, Mowdy could not find the August 18, 2009, contract document in his apartment.  Mowdy suspected Hughes, having access, removed the contract from Mowdy's apartment during Mowdy's absence.  On August 26, 2011, more than eight months after Hughes filed his November 12, 2010, lien claim,  Mowdy found an electronic copy of the true and correct August 18, 2009, contract, on a separate back-up computer memory.  Mowdy did not make Hughes aware that Mowdy found the true and correct contract until October 31, 2011, Exhibit "13", a date after Hughes filed his October 5, 2011, lawsuit to foreclose on Mowdy's property.  Then, on November 22, 2011, within 23 days after Mowdy made Hughes's attorney aware that Mowdy had a copy of the true and correct contract, Hughes filed the affidavit swearing the two page August 18, 2009, Exhibit "2", document, was the true and correct contract.  That Exhibit "2", undated affidavit, was filed by Hughes with the Williamson County Clerk on November 22, 2011.  Hughes did not file that true and correct August 18, 2009, contract with Hughes's lien claim, or lawsuit.  Hughes did not notify Mowdy that Hughes filed the true and correct contract with the Williamson County Clerk.  Mowdy agrees that the Exhibit "2", two page document dated August 18, 2009, is the true and correct contract between Mowdy and Hughes for all Hughes's work at 1805 Carey Avenue, Taylor, TX 76574.

14.  Mowdy requested disclosure from Hughes on October 24, 2011, in Mowdy's Answer to Hughes Original Petition.  Mowdy's October 24, 2011, Answer, delivered to Hughes via certified mail return receipt, Exhibit "12", included a request for disclosure and a Special Exception requesting Hughes produce the true and correct August 18, 2009, contract.  As of May 3, 2012, Hughes failed to provide disclosure as required by Tex. R. Civ. P. 194.2, and failed to produce the true and correct August 18, 2009, contract within his suit.  Mowdy reminded Hughes in the October 31, 2011, letter, Exhibit "13", that Mowdy requested disclosure.  Mowdy filed motions and within those motions addressed the failure of Hughes to disclose.  All requests and motions were delivered to Hughes through certified mail.  During a March 5, 2012, hearing in the 277th District Court, Mowdy advised the court, and John Hughes, that Hughes failed to meet discovery requirements.  Hughes still failed to provide 194.2 disclosure and the true and correct August 18, 2009, contract.  Hughes refused to appear for properly noticed deposition, Exhibit "4".  The continued delay of this case and Hughes concealment behavior are financially harmful to Mowdy, and causes Mowdy extreme stress and mental anguish.

15.  Mowdy does not request the court make a finding for any underlying claim of the parties involved and acknowledges that this motion does not seek to invalidate a legitimate lien.  Mowdy further acknowledges that Mowdy may be subject to sanctions, as provided by Chapter 10, Civil Practice and Remedies Code, if this motion is determined to be frivolous.

16.  The 119 page document, Exhibit "1", identified by Hughes's November 12, 2010, affidavit as the contract for the work at Mowdy's homestead, is hereinafter incorporated by reference as "the fraudulent contract".

17.  The true and correct August 18, 2009, contract is contained in Exhibit "2" and is hereinafter incorporated by reference as "the contract", or the "true and correct contract".

18.  Mowdy attests that assertions herein are true and correct.

 

 

 

B. Facts

 

19.  Mowdy alleges the Exhibit "1", 119 page document sworn by Hughes to be the contract for the work performed at Mowdy's homestead is a fraudulent document Hughes presented in official proceedings, and is not what Hughes purports the document to be.

 

20.  Mowdy alleges the Exhibit "1" 119 page document is fraudulent because Hughes presented it, in official proceedings defined by statute, as the basis for legal claims for payments for goods and services that Hughes did not provide.

 

21.  Mowdy alleges the Exhibit "1", 119 page document is fraudulent as defined by Texas Government Code Section 51.901(c)(2), because it does not and never has had, in any form, the consent and, or, approval of Mowdy.

 

22.  On August 18, 2009, Mowdy and Hughes entered into a valid and enforceable two page written contract, the true and correct contract, for Hughes to make repairs to Mowdy's fire damaged house, Exhibit "2".  Hughes agreed by his signature, on the contract with written terms, that repairs would be made for the lesser amount of Hughes's actual cost plus 10% overhead and 10% profit, or the amount the insurance carrier allowed for the repairs.   The amount allowed by the insurance carrier was $377,018.40, Exhibit "14" (USAA Insurance Claim Summary), which is the maximum compensation possibly due to Hughes under the contract's paragraph 2 terms.  Paragraph 4, CONTRACTOR's FEE, of the agreement provides that all supplements will be by written agreement and will be based on actual cost plus 10% overhead and 10% profit.  After just credits and offsets are applied, Hughes was paid more than either paragraph 2 "CONTRACTOR's FEE", or paragraph 4, "WORK DESCRIPTION", of the contract allowed.  Mowdy has overpaid Hughes due to fraudulent, deliberate, and deceptive acts by Hughes as shown by Mowdy's January 19, 2011, letter, Exhibit "17", and Hughes owes Mowdy.

 

23.  Mowdy attaches affidavits to the motion as Exhibits "1", through "19",  to establish facts in support of this motion and incorporates the affidavits by reference.

 

 

C.  Arguments and Authorities

 

24. In order to perfect a lien on Mowdy's property, Hughes must comply with the requirements of Texas Property Code Section 53.052.  53.052 requires that a person claiming a residential construction lien must file an affidavit with the county clerk:

 

§ 53.052. FILING OF AFFIDAVIT.  (a) Except as provided by Subsection (b), the person claiming the lien must file an affidavit with the county clerk of the county in which the property is located or into which the railroad extends not later than the 15th day of the fourth calendar month after the day on which the indebtedness accrues.

            (b)  A person claiming a lien arising from a residential construction project must file an affidavit with the county clerk of the county in which the property is located not later than the 15th day of the third calendar month after the day on which the indebtedness accrues.

 

25.  The contents of the affidavit required by Texas Property Code 53.052 are established by Texas Property Code Section 53.054.  Section 53.054(a), describes the substantial contents of the affidavit, and 53.054(b) states the claimant may attach any applicable written agreement or contract:

 

Texas Property Code § 53.054. CONTENTS OF AFFIDAVIT.  (a) The affidavit must be signed by the person claiming the lien or by another person on the claimant's behalf and must contain substantially:

 

            (b)  The claimant may attach to the affidavit a copy of any applicable written agreement or contract and a copy of each notice sent to the owner.

26.  Hughes was not required to attach the applicable written agreement or contract to Hughes's lien claim affidavit, but Hughes elected to do so in compliance with Texas Property Code 53.054(b).  Hughes attached, and swore, the 119 page Exhibit "1" document is the contract for the work performed at 1805 Carey Avenue, Taylor, TX 76574.  Hughes made the decision to attach the applicable written agreement or contract, and thereby became legally obligated to attach the document that was in fact, the applicable written agreement or contract. Hughes failed to comply with the 53.054(b) requirement, when electing to attach a copy of the contract, because Hughes filed a document that was not the applicable agreement or contract.  Instead, Hughes filed the Exhibit "1", 119 page document and swore it was the contract.  But, the only applicable written agreement or contract is the two page document shown in Exhibit "2".  The Exhibit "2" document was sworn as the true and correct contract by Hughes, and Mowdy concurs that it is the only applicable written agreement or contract for the work performed at 1805 Carey Avenue, Taylor, TX 76574.  By filing the Exhibit "1" 119 page document, Hughes filed a document that is not the applicable written agreement or contract, and therefore, knowingly did not comply with the requirements of Texas Property Code 53.054(b).  Hughes's Exhibit "2" affidavit is Hughes's sworn evidence that the Exhibit "1", 119 page document Hughes identified as the contract for work performed at 1805 Carey Avenue, Taylor, TX 76574 is not the contract required by Texas Property Code 53.054(b), and therefore, the Exhibit "1" document is fraudulent, and, or, not what Hughes purported it to be on November 12, 2010.

27.  Mowdy sent Hughes three certified mail requests, Exhibit "10", on December 14, 2010, December 28, 2010, and January 7, 2010, all sent and received by Hughes prior to Hughes filing Hughes's lawsuit.  Each of those certified letters requested Hughes produce, under the provisions of Texas Property Codes 53.085, and 53.159, information to include a copy of the true and correct August 18, 2009, contract.  All of those requests were sent to Hughes before Mowdy found Mowdy's copy of the true and correct contract.  Hughes did not respond to any of Mowdy's three certified requests for the true and correct August 18, 2009, contract.

28.  Hughes presented the same, Exhibit "1",  documents Hughes claimed, on November 12, 2010, and October 5, 2011, to be the contract to Mowdy in a December 29, 2010 letter, Exhibit "6".  In that letter, Hughes identified the documents as "your bill and supporting estimates", not as a contract.  The documents Hughes presented to Mowdy as "your bill and supporting estimates", on December 29, 2010, could not also be the contract, as Hughes claimed, when filing the documents as the applicable written agreement or contract on November 12, 2010, a date less than 60 days prior, and on October 5, 2011, a date almost a year afterwards.

29.  Hughes's identification of the fraudulent contract, as the contract for the work performed, conflicts with his express written knowledge of the true and correct contract.  Hughes acknowledged a unique handwritten stipulation of the true and correct August 18, 2009, contract in a September 15, 2010, email, Exhibit "7", within 60 days before filing the November 12, 2010, lien claim.  The acknowledgement is contained in the September 15, 2010, email, Exhibit "7", from David Melvin to Mowdy.  David Melvin was an employee of Hughes, and Hughes's email address,  jhughes@emergenseal.com, was a party to the email.  The email from David Melvin cited the unique Exhibit "2", page two, handwritten true and correct contract stipulation in the email: "While it is a stipulation of our contract that we deliver to you lien releases for all subcontractors, it is not in accordance with our contract that you arbitrarily withhold all payment until you get them."  This reference to the true and correct contract is evidence that Hughes was aware of the true and correct August 18, 2009, contract before filing the November 12, 2010, lien claim with the Exhibit "1", fraudulent contract.

 

30.  The unique, true and correct August 18, 2009, page 2, handwritten stipulation, "2) Lien releases will be provided for subcontractors", was made in Hughes's handwriting and witnessed by a third party Exhibit "8", at the time Hughes wrote the stipulation.  Hughes's email, September 15, 2010, Exhibit "7", acknowledgement of the unique handwritten stipulation of the requirement to provide subcontractor lien releases is evidence that Hughes was aware of the true and correct August 18, 2009, contract, and it's specific details, prior to filing Hughes's November 12, 2010, affidavit claiming a lien in which Hughes swore the 119 page Exhibit "1" document was the contract for the work performed at 1805 Carey Avenue, Taylor, TX 76574.

 

31. Hughes again acknowledged the true and correct August 18, 2009, contract in Hughes's February 3, 2010, letter, Exhibit "9".  This acknowledgement happened after Hughes filed the lien claim, and before Hughes filed the lawsuit.  Hughes stated in the February 3, 2011, letter:

 

            "Please note that you have incorrectly interpreted our contract.  Our contract is for the total amount of the estimates for the repair of the damage caused by the lightning strike.  That amount is $454,431.83.  The provision you quote in your letter "...actual cost plus 10% overhead and 10% profit...", concerns supplements to the work, not the work itself.   That provision only applies to the charges for upgrading the chimneys: an amount equal to $4,421.44."

 

 

32.  Hughes's February 3, 2011, Exhibit "9", signed letter contained Hughes's references to the true and correct Exhibit "2", August 18, 2009, contract terms that are contained in paragraph 4.) CONTRACTOR's FEE.  The true and correct August 18, 2009, contract paragraph 4.) CONTRACTOR's FEE, contains the exact words quoted by Hughes in his letter: "actual cost plus 10% overhead and 10% profit".  Those contract words cannot be found anywhere in Hughes's 119 page Exhibit "1" document.  The February 3, 2011, letter date is a date after Hughes filed Hughes's November 12, 2010, lien claim and before Hughes filed Hughes's October 5, 2011, lawsuit.  Therefore, by Hughes's own signed writing, Hughes was aware the Exhibit "1" document was not the true and correct contract after the November 12, 2010, lien claim was filed, and at the time the October 5, 2011, lawsuit was filed.  Hughes continues with that awareness and has failed to take any action to correct the fraudulent claim.

 

33. Mowdy sent Hughes three certified mail requests, Exhibit "10", prior to Hughes filing Hughes's October 5, 2011, lawsuit, requesting Hughes produce the true and correct August 18, 2009, contract under the provisions of Texas Property Code 53.159(d).  The statute was attached to the letter.  Hughes did not respond to any of Mowdy's requests with the contract as required by 53.159.  Hughes's failure to respond as required by Texas Property Code 53.159 makes Hughes's actions appear deliberate and calculated with a purpose to conceal the true and correct August 18, 2009, contract.

 

            Texas Property Code § 53.159. OBLIGATION TO FURNISH INFORMATION.... (d) Not later than the 30th day after the date a written request is received from the owner, the contractor under whom a claim of lien or under whom a bond is made, or a surety on a bond on which a claim is made, a claimant for a lien or under a bond shall furnish to the requesting person a copy of any applicable written agreement, purchase order, or contract and any billing, statement, or payment request of the claimant reflecting the amount claimed and the work performed by the claimant for which the claim is made. If requested, the claimant shall provide the estimated amount due for each calendar month in which the claimant has performed labor or furnished materials.

 

34.  On January 19, 2011, Mowdy requested Hughes submit to an audit to determine the true and correct amount due according to the true and correct contract, Exhibit "5".  That request was made after Mowdy's three certified requests for Hughes to produce the true and correct contract, Exhibit "10".  Hughes made no response and thereby refused to cooperate with Mowdy's request for an audit.  Hughes's failure to acknowledge and cooperate with the agreements and terms of the true and correct contract indicates, and continues to indicate, that Hughes deliberately concealed the true and correct contract, and knowingly filed the fraudulent contract in official proceedings.

 

35. Texas Penal Code 32.47 FRAUDULENT DESTRUCTION, REMOVAL, OR CONCEALMENT OF WRITING, prohibits the substitution, concealment, or the impairment of a writing with the intent to harm another if the writing is a writing for which the law provides public recording or filing.

            Texas Penal Code Section § 32.47. FRAUDULENT DESTRUCTION, REMOVAL, OR CONCEALMENT OF WRITING. (a) A person commits an offense if, with intent to defraud or harm another, he destroys, removes, conceals, alters, substitutes, or otherwise impairs the verity, legibility, or availability of a writing, other than a governmental record. (b) For purposes of this section, "writing" includes: (1) printing or any other method of recording information; (2) money, coins, tokens, stamps, seals, credit cards, badges, trademarks; (3) symbols of value, right, privilege, or identification; and (4) universal product codes, labels, price tags, or markings on goods. (c) Except as provided in Subsection (d), an offense under this section is a Class A misdemeanor. (d) An offense under this section is a state jail felony if the writing: (1) is a will or codicil of another, whether or not the maker is alive or dead and whether or not it has been admitted to probate; or (2) is a deed, mortgage, deed of trust, security instrument, security agreement, or other writing for which the law provides public recording or filing, whether or not the writing has been acknowledged.

36.  Substitution of, concealment, or otherwise making the true and correct August 18, 2009, contract unavailable is prohibited by Texas Penal Code 32.47.  Hughes cannot claim Hughes submitted the Exhibit "1" 119 page document as a substitution for the true and correct Exhibit "2", August 18, 2009, contract without being in violation of Texas Penal Code 32.47.  In addition, the writing was a writing for which the law provides public recording or filing, which is a more serious violation of Texas Penal Code 32.47. 

37.  Hughes publicly filed the November 12, 2010, lien claim and attached the 119 page document, Exhibit "1", purporting it to be the applicable written agreement or contract in compliance with Texas Property Code 53.054(b).  In the affidavit Hughes filed for the lien claim, Hughes swore that "pursuant to a contract by and between Claimant, and Tom Mowdy, who is the owner", and also swore, "a copy of the contract with owner is attached hereto."  These two Hughes statements, within Hughes's November 12, 2010, sworn affidavit, were referring to 119 pages of estimates and invoices as shown in Exhibit "1", none of which, constitute a contract.  Hughes was identifying the 119 page document as the applicable written agreement or contract filed in compliance with Texas Property Code 53.054(b).  Hughes presented the 119 page document as the contract, and purported it to be the contract, for the work performed for Mowdy.  Hughes did not identify any document other than the 119 page Exhibit "1" document as the contract for the work.  However, as shown by Hughes's sworn statement in Exhibit "2", the 119 page document filed on November 12, 2010, by Hughes, is not the applicable written agreement or contract and is therefore fraudulent, and, or, not what Hughes purports it to be. 

38.  Texas Property Code, Section 53.254(a), and (b), establish the legal requirements for fixing a lien on a homestead:

Texas Property Code § 53.254. HOMESTEAD.  (a) To fix a lien on a homestead, the person who is to furnish material or perform labor and the owner must execute a written contract setting forth the terms of the agreement.

           

            (b)  The contract must be executed before the material is furnished or the labor is performed.

 

            (e)  The contract must be filed with the county clerk of the county in which the homestead is located.  The county clerk shall record the contract in records kept for that purpose.

 

39.  Texas Property Code Section 53.254 requires that Hughes, as "the person who is to furnish material or perform labor", and Mowdy, as the owner to execute a written contract that sets forth the terms of the agreement.  The 119 page Exhibit "1" purported contract, filed by Hughes, does not, and cannot meet the requirements of Texas Property Code 53.254(a) because it is not a written contract.  It contains no writing that express any terms of an agreement. It was not executed by the person furnishing material or performing labor and the owner, and is therefore not a contract as required by 53.254(a).  "A valid contract is formed by an offer, an acceptance, a meeting the minds, each party's consent to the terms, and, in the case of a written contract, execution and delivery of the contract with the intent that it be mutual and binding."  Baroid Equipment, Inc. v Odeco Drilling, Inc., 184 S.W.3d 1, 17 (Tex.App.-Houston[1st Dist.].  The document filed by Hughes does not contain an offer, an acceptance, a meeting of the minds, or any evidence of each party's consent to the terms.  The contract attached to Hughes's lien claim was not, and would not, be executed by Mowdy, nor was it executed by Hughes because there are no indications of execution, no signatures, or any other evidence indicating the execution as required by 53.254(a).  The contract is therefore fraudulent, and, or, not what Hughes purports it to be.

40.  Texas Property Code 53.254(b) requires that the contract, necessary to fix a lien, be executed before material is furnished, or labor is performed.  Hughes began repair work in 2009.  The earliest creation date shown on any of the 119 page Exhibit "1" document, filed as a contract by Hughes, is June 21, 2010, yet, work began on the homestead in the year 2009.  Therefore, none of the document(s) filed with Hughes's affidavit claiming a lien, and identified as the contract, existed prior to material being furnished and labor being performed.  It is obvious that the lien claim contract submitted by Hughes could not have been executed before material was furnished, or labor was performed and cannot be in compliance with Texas Property Code 53.254(b). The purported contract does not meet the requirements of Texas Property Code 53.254(b), which requires the contract must be executed prior to labor or material being furnished. The  document does not comply with the statutory requirement, is therefore fraudulent, and, or, not what Hughes purports it to be.

41.  The contract filed by Hughes is not an enforceable valid contract because it contains no signature, no offer, no acceptance, no terms, no consent, and no execution by any party. "A valid contract is formed by an offer, an acceptance, a meeting the minds, each party's consent to the terms, and, in the case of a written contract, execution and delivery of the contract with the intent that it be mutual and binding."  Baroid Equipment, Inc. v Odeco Drilling, Inc., 184 S.W.3d 1, 17 (Tex.App.-Houston[1st Dist.]. Hughes's lien claim, Exhibit "1" contract is not a valid contract.  Hughes presents the document as the contract required by Texas Property Code 53.254(a), however it does not meet any established standards of a contract, it does not meet the requirements of Texas Property Code 53.254(a), and does not have the consent or approval of Mowdy, and therefore cannot be what Hughes purports it to be.

 

42. Hughes and Mowdy are in agreement that the Exhibit "2", two page, August 18, 2009, contract, signed by Hughes and Mowdy, is the true and correct contract.  Therefore, the Exhibit "1" 119 page fraudulent contract that Hughes claimed to be the contract when Hughes filed Hughes's November 12, 2010, lien claim, and October 5, 2011, lawsuit, cannot be the true and correct contract required by Texas Property Code 53.254(a), and is therefore not the document Hughes purports it to be in Hughes's Exhibit "1" November 12, 2010, sworn lien claim affidavit.

43. Hughes's Exhibit "1" purported contract is excluded by terms agreed in the true and correct August 18, 2009, contract from being any part of the true and correct contract.  The Exhibit "2", true and correct contract, dated August 18, 2009, contains  contractual requirements for creating additions or modification to the true and correct contract. Hughes's Exhibit "1" document identifies itself as a supplemental estimate and presents no other identity.  The true and correct contract, Exhibit "2", paragraph 2.) WORK DESCRIPTION, contains the provision that estimate modifications can only become part of the contract by written agreement approved by both parties.  Hughes's Exhibit "1" document identifies itself as a supplemental estimate, not a contract, and does not contain any evidence of a written agreement, or approval, or consent by Mowdy, or Hughes.  The Exhibit "1" document Hughes purports to be a contract, identifies itself as an estimate, but, is excluded by paragraph 2 terms of the true and correct contract and therefore cannot be what Hughes purports it to be.   

 

44.  Paragraph 4.) CONTRACTOR's FEE, of the true and correct August 18, 2009, Exhibit "2", contract contains provisions requiring all supplemental documents be approved by both parties and signed.  The fraudulent contract identifies itself as a supplemental estimate, at approximately mid page on the first page of the document with the words, "This estimate is a supplemental estimate."  There are no signatures anywhere on the document Hughes purports to be the contract with Mowdy.  The document cannot be part of the true and correct contract because it is excluded by the terms of the true and correct contract.  Hughes's Exhibit "1", 119 page document purported to be the contract cannot be what Hughes purports it to be.

 

45.  There are no terms, or agreements, within the true and correct, Exhibit "2", contract, that Hughes would be compensated based on any estimate.  Terms addressing compensation are contained in paragraph 4, CONTRACTORS's FEE, which provides that all supplements would be based on actual cost plus 10% overhead and 10% profit, and paragraph 2, which limits the contractor's compensation to the amount allowed by the insurance carrier unless there are written and signed modifications and agreements.

 

46.  Hughes's fraudulent contract document contains false charges.  The Exhibit "1" fraudulent contract presents four "estimate" documents listing materials and labor charges claimed by Hughes.  The four documents include itemized totals for specific materials and labor Hughes claims he provided Mowdy and are:   

 

            a.  Hughes Supplemental Estimate dated 6/21/2010, $55,912.06.

 

            b.  Hughes Supplemental Estimate dated 9/28/2010, $4,421.44

 

            c.  Hughes Supplemental Estimate dated 6/22/2010, $50,719.78.

 

            d.  USAA loss estimate dated 7/22/2010, $377,018.40.

 

47.  Within the Exhibit "1", fraudulent contract documents, Hughes lists materials and labor Hughes claimed he provided.  Those claims are false.  Hughes's false and fraudulent charges include,  but are not limited to:

 

            a.  Fraudulent charges, totaling $5,762.61 for concrete materials and labor as shown by Exhibit "15", "18", which includes before and after photos, and "19".

 

            b.  Fraudulent charges, totaling $26,129.75, for lighting (light fixtures), flooring, audio visual and stone veneer materials as shown by Exhibit "16".

 

            c.  Fraudulent charges, totaling $27,518.20 for electrical and Heating Ventilation and Air Conditioning work (HVAC) as shown by Exhibit "17".

 

            d.  Fraudulent charges that are suspected but cannot be determined because Hughes has refused all discovery attempts by Mowdy that could prove Hughes's actual costs and permit calculation of his true and correct compensation.

 

48.  The Exhibit "1" documentation or instrument attached thereto and presented by Hughes as the contract for work performed on Mowdy's property is presumed fraudulent, as defined by Texas Government Code Section 51.901(c)(2), because it does not and never has had, in any form, the consent and, or, approval of Mowdy, the property owner, and that the document is fraudulent, and, or, is not what PLAINTIFF purports it to be, and should therefore, not be accorded lien status.

 

 

D. Conclusion

49. Hughes filed a lien claim and lawsuit and was required, by statute, to include the true and correct contract as part of those processes and actions against Mowdy.   Hughes did not file the true and correct contract with Hughes's lien claim, or lawsuit.  Hughes filed a document that is not the true and correct contract, and was not approved and agreed to by Mowdy, as required by law.  Hughes's 119 page Exhibit "1" document, filed and sworn by Hughes to be the contract, cannot meet any of the statutory requirements established by Texas Property Codes 53.052, 53.054, 53.254, or the inclusion provisions contained in the true and correct August 18, 2009, contract.  Hughes planned to deny Mowdy the terms of the true and correct contract, to Mowdy's detriment, by presenting a fraudulent document that is not what Hughes purports it to be.  After confrontation and exposure by Mowdy, Hughes swore, in Exhibit "2", that a completely different document, a two page document signed by Hughes and Mowdy is the true and correct contract.  Hughes has never submitted that true and correct August 18, 2009, contract in Hughes's cause or otherwise to the court.  Hughes's sworn statement, filed with the Williamson County Clerk on November 22, 2011, Exhibit "2", excludes the fraudulent contract which Hughes presented to the court as the contract for the work at 1805 Carey Avenue, Taylor, TX 76574.  The Exhibit "1" document was not created by Mowdy's express, or implied consent, and by Hughes's own sworn admission, which Hughes filed with the Williamson County Clerk on November 22, 2011, the Exhibit "1" document is not the contract.  The Exhibit "1" 119 page document sworn by Hughes, on November 12, 2010, to be the contract for the work performed at Mowdy's property is fraudulent, and, or, not what it is purported to be.

50.  Hughes had reason to file the Exhibit "1" document instead of the true and correct August 18, 2009 contract, Exhibit "2".  The Exhibit "1" contract does not set forth any terms of agreement as required by Texas Property Code 53.254.(a).  The Exhibit "1" contract contains no offer, no acceptance, and no conditions or basis for compensation. It does not contain any of the terms and conditions accepted by Mowdy on August 18, 2009, Exhibit "2" which limited Hughes's compensation to Hughes's actual cost plus 10% overhead and 10% profit, or a maximum of the insurance carriers allowance.  Hughes made claims for payment that were excessive, false, and in violation of the terms of the true and correct contract.  Hughes has attempted to deny Mowdy the agreed terms.  Therefore by presenting the fraudulent contract, and concealing the true and correct contract, Hughes has threatened Mowdy with the loss of Mowdy's home, through court action, unless Mowdy succumbed to Hughes's excessive and fraudulent demands for payment.  Hughes planned and executed a means of enriching Hughes through false and fraudulent presentation which is unfair and unjust to Mowdy.     

 

 

E. Prayer

 

51. Mowdy request the court consider Mowdy's allegations, and the evidence presented by Mowdy, and review the attached Exhibit "1", documentation or instrument and enter an order determining whether it is the contract for the work at 1805 Carey Avenue, Taylor, TX. 76574, that Hughes purports it to be, and whether it should be accorded lien status, together with such other orders as the court deems appropriate.

 

52. Mowdy request the court declare Hughes's Exhibit "1" document purported to be a contract to be fraudulent, and, or not what it is purported to be.

 

53. Mowdy request the court sign the attached order consistent with Mowdy's prayer and issue any other orders as determined warranted and appropriate by the court.

THOMAS C. MOWDY

1805 Carey Avenue

Taylor, TX 76574

(512) 565-1035

033

669

 


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                   by Tom Mowdy
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