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Mowdy's Original July 22, 2013 Complaint to Gregg Abbott, the Texas Attorney General

                                                       Thomas C. Mowdy

Major, U.S. Army (Ret.)

1805 Carey Avenue, Taylor, TX 76574

(512) 565-1035 - tomm0425@sbcglobal.net

 

 

Office of the Attorney General

Consumer Protection Division

PO Box 12548

Austin, TX 78711-2548                   Certified Mail:  7011 0470 0002 4140 7903

 

 

Federal Bureau of Investigation

5740 University Heights Blvd.
San Antonio, TX 78249                  Certified Mail:  7011 470 0002 4140 7880

 

 

July 22, 2013

 

 

SUBJECT:   Deceptive Trade, Due Process and Course of Law Violations - American                                  Arbitration Association and Arbitrator Matthew Sullivan, and Misconduct,                                  and Ethics Violations Arbitrator Matthew Sullivan

 

Dear Sir:

 

This letter is filed as a Constitutional due "process" and "course of law" complaint and criminal deceptive trade complaints under the Texas Business and Commerce Code 17.46(b)(7) and (22), against the American Arbitration Association (AAA), 1750 Two Galleria Tower, 13455 Noel Road, Dallas, TX 75240, and Matthew Sullivan, DuBois, Bryant & Campbell, LLP, 700 Lavaca, Suite 1300, Austin, TX 78701,  an officer of Texas courts, a member of the Texas Bar Association, and the Arbitrator in AAA Case # 70 527 E 00416 12.

 

I further file this letter as a complaint of misconduct, obstruction of justice, and ethics violations against Arbitrator Matthew Sullivan.

 

 

I.  Introduction and Background

 

The deceptive trade complaints presented in this document are against the arbitration service purchased from the AAA and Arbitrator Matthew Sullivan.  The following background and circumstances, of the arbitration matter, are material to understanding the details of the deceptive trade complaints.  The Texas "course of law," and U.S. Constitutional "due process" violations are described within the detailed complaints.

 

In order to present the evidence of the deceptive trade acts and avoid confusion with exhibit numbering, the exhibits referenced in this letter maintain the same exhibit numbers as used in the arbitration case.  All exhibits and case documents for both, Plaintiff Hughes and Defendant Mowdy, are contained in the electronic flash drive enclosed with this correspondence. 

 

On November 12, 2010, Plaintiff John Hughes d/b/a Hughes Amalgamated filed a lien claim asserting Defendant Mowdy owed Hughes $113,914.11, for repairs to Mowdy's fired damaged homestead, Exhibit "1".

 

Hughes's based his claim on the 119 page, Exhibit "1", lien claim document that Hughes swore, by affidavit, was the contract for the work performed.  Hughes's affidavit is dated November 12, 2010, and was filed with the Exhibit "1", lien claim.  The 119 page document, that Hughes claimed was the contract, was actually a fraudulent "bill" that contained duplicate charges and charges for materials not provided and work not performed.  Hughes claimed Quantum Meruit, meaning there was no written contract.  Hughes did not file the true and correct written contract which had become missing from Mowdy's temporary apartment where Hughes had full access for maintenance.  Mowdy, and Mowdy's insurance company had both refused to pay Hughes's demand for duplicate and false charges contained within the Exhibit "1" fraudulent document, Exhibit " 2".

 

Mowdy did not owe Hughes, Exhibit "14".  Hughes was overpaid.  Mowdy had paid subcontractors, that Hughes refused to pay, and Mowdy purchased materials to the extent that Hughes was over compensated by at least $27,000 more than the maximum allowed by the true and correct, Exhibit "3" written contract.  With cancelled check evidence, Exhibit "14", Mowdy contended that Hughes was overpaid according to the cost plus and maximum payment terms of the missing true and correct August 18, 2009. 

 

Mowdy refused Hughes's fraudulent demands and made multiple requests, under provisions of Texas Property Code, for Hughes to produce the true and correct contract and provide a statement of work performed, Exhibits "58", "25", and "24".  Mowdy requested an audit, Exhibit "12".  Mowdy made all these requests more than 10 months before Hughes filed suit.  Hughes disregarded Mowdy's multiple certified requests for the missing contract, the sworn statement of work, and Mowdy's January 19, 2011, request for audit, Exhibit "12".

 

Hughes then filed suit on October 5, 2011, Exhibit "173", claiming that there was no written contract terms under a Quantum Meruit cause of action.  The lien claim and law suit were both filed in official proceedings with the fraudulent 119 page billing document Hughes swore was the contract.  Hughes's suit included Hughes's fraudulent, sworn and verified, "Suit On Account" claiming Mowdy owed the $113,914.11 for specific materials and work listed, Exhibit "1".  Hughes claimed payment for materials and work not provided, payment in excess of the true and correct contract terms, attorney fees, and sought to fix a lien on Mowdy's homestead for all amounts claimed.

 

Fortunately, Mowdy found a backup copy of the missing written contract.  Then, as a pro-se litigant, Mowdy denied all Hughes's claims, proved by cancelled checks that Hughes had been overpaid, and countered with 16 counter claims including breach of contract, common fraud, fraudulent lien claim, deceptive trade, negligence, and mental anguish. 

 

Mowdy found the missing contract, on a stored backup memory, and notified Hughes's attorney on November 2, 2011, Exhibit "61".  Hughes then filed a copy of the true and correct contract with the Williamson County Clerk, on November 22, 2011, Exhibit " 3".  Hughes filed a new affidavit, contradicting his previous sworn affidavit, now swearing a two page written contract document was the true and correct contract.  (See Hughes's conflicting affidavits Exhibit "1", and Exhibit "3")  Hughes filed the true and correct contract on a date after Mowdy found and revealed the true and correct contract.  Hughes previously refused a legal requirement to produce the true and correct contract when demanding payment, Exhibits "58, "24", "25". 

 

Hughes then failed to meet discovery requirements, in 277th District Court, and failed to appear for deposition, Exhibit "7".  Mowdy motioned for a "No Evidence Summary Judgment", Exhibit "131".  However, one day before Mowdy's scheduled no evidence hearing, Hughes motioned for arbitration based on the arbitration clause in the contract Hughes previously concealed.  (See Exhibit "335", Mowdy's 3rd Amended Counterclaim" for details and circumstances of the concealed contract.) 

 

Hughes did not request arbitration until after filing suit and after Mowdy found and presented the missing written contract.  Hughes filed the law suit against Mowdy claiming Quantum Meruit before Mowdy revealed that Mowdy had found a copy of the true and correct written contract.  Quantum Meruit can only be a cause when there is no written contract.  Hughes's actions clearly indicate he was concealing the true and correct contract because he did not file it with the original lien claim or law suit, and then refused to produce the contract after three certified requests.  Hughes's actions were consistent with document concealment, a felony, and knowing that Mowdy did not have a copy.

 

The 277th District Court granted Hughes's arbitration motion based on State and Federal statutes which require arbitration if an arbitration clause exists, Exhibit "137, Arbitration Order."  An arbitration clause did exist in the true and correct August 18, 2009, contract, Exhibit "3".  It was a contract, created by Hughes's, with an arbitration clause.  And although Hughes filed the lawsuit claiming Quantum Meruit, meaning Hughes's claim was based on no written contract, the court was bound by law to order arbitration.  The contract's arbitration clause specifically required the arbitration be conducted through AAA using AAA Construction Rules, Exhibit "3".

 

The arbitration hearing was conducted in March 2013, and formally closed on April 8, 2013.  On May 8, 2013, the Arbitrator issued an order denying all Plaintiff Hughes's claims and granting Defendant Mowdy's breach of contract and one deceptive trade claim, Exhibit "331".  Defendant Mowdy prevailed against all Plaintiff Hughes's claims. 

 

But, Arbitrator Sullivan's order did not meet the requirements of State law, AAA Rules, the Arbitrator's sworn oath, or Texas and U.S. Constitutional requirements of "due course," and "due process."  Under appropriate AAA rules, Mowdy requested Arbitrator Sullivan modify, Exhibit "340".  But, Arbitrator Matthew Sullivan refused, Exhibit "341."  Arbitrator Sullivan refused to provide the form of award required by Texas law and AAA rules, and thereby denied Mowdy's process and course of law rights and minimized and provided protection for Hughes's criminal acts, which included felony crimes. 

 

By refusing to provide the "Facts and Conclusions of Law," and reasons, in compliance with State law and AAA Rules, Arbitrator Sullivan suppressed undeniable and material facts, including cancelled checks, which proved criminal behavior by Plaintiff Hughes.  Although sworn to the rules before the case began, Arbitrator Sullivan obviously and deliberately refused to provide the required form of award that was clearly defined by AAA rules and Texas law, Exhibit "341".  Arbitrator Sullivan's behavior was deceptive trade, misconduct, unethical, in violation of law and his sworn oath for the case, Exhibit "334", and served to shield Hughes's felony criminal behavior. 

 

Arbitrator Sullivan granted Mowdy a Breach of Contract claim.  But, Mowdy made two breach of contract claims and Arbitrator Sullivan, in violation of Texas law, refused to identify the particular granted breach claim or any specific reason for either of Mowdy's breach of contract claims.

 

Arbitrator Sullivan refused to, explain or account for Hughes's denied fraudulent $113,914.11 claim, and other Hughes claims, as required by AAA rules, Texas law, and the facts and conclusions of law "Form of Award" expense charged to Mowdy.  Arbitrator Sullivan refused to state a reason for all the claim awards as required by Texas law.  Mr. Sullivan refused to provide the accounting and explanations as required by AAA rule.  Arbitrator Sullivan's refusal to comply with the laws and rules was clearly an attempt to protect Hughes from possible criminal prosecution for felony crimes, and suggests corruption. 

 

Defendant Mowdy made proper request, under AAA rules, for modification of the Arbitrator's award to meet the standards required by Texas law and AAA rules, Exhibit "340."  The Arbitrator, Matthew Sullivan, refused Mowdy's modification request, Exhibit "341".   Mowdy complained to AAA, and AAA refused to enforce their documented rules and standards, and refused to require Mr. Sullivan's compliance with Texas law, AAA Rules, his sworn oath, the AAA Code of Ethics, Exhibit "334".  These refusals, to comply with Texas law and AAA's published rules, were a violation of Mowdy's Constitutional rights to due course and process of law, that were all particular standards promised for the arbitration service. 

 

The AAA and Arbitrator Matthew Sullivan made explicit, direct, and implied representation, and had a duty to ensure their arbitration services would comply with the legal requirements of Texas laws, the published AAA Construction Rules, the Texas Disciplinary Rules of Conduct, Arbitrator Sullivan's sworn oath, and the Texas and U.S. Constitutions.  Mowdy, a 66 year old senior citizen, paid in advance based on those representations and relied on AAA's and Arbitrator Sullivan's sworn oath and representations of standards and service, which were false, and therefore in violation of Texas Business and Commerce Code 17.46(b)(7) and (22).  The AAA and Arbitrator Sullivan charged and was paid $14,077.50, by Mowdy, for the promised arbitration with particular standards of service.

 

Arbitrator Matthew Sullivan refused to provide the standard of service promised, committed acts of misconduct and obstruction of justice in violation of the Texas Disciplinary Rules of Conduct, Rule 4.01, Truthfulness in Statements to Others, Rule 8.04(3) A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation, and Rule 8.04(4) A lawyer shall not engage in conduct constituting obstruction of justice

 

All this behavior, by AAA and Matthew Sullivan, includes deceptive trade acts, criminal acts, violations of laws, rules, and Constitutional rights, and have caused Mowdy financial and mental anguish injury.  The blatant disregard for laws, rules, standards and oaths by those who provide the arbitration service, breaks the trust of citizens, degrades the legal profession, and threatens the use of arbitration as an acceptable means of justice within our society.  The complaints include, but are not limited to:

 

 

II.  Deceptive Trade Violation 17.46(b)(7) - Texas Civil

Practices and Remedies Code 172.141

 

 

Texas Business and Commerce Code (TBCC) 17.46(b)(7) states that it is a deceptive trade violation to represent a service meets a particular standard, or quality, or grade, when it does not.

 

Sec. 17.46.  DECEPTIVE TRADE PRACTICES UNLAWFUL.  (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:

 

(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;

 

AAA represented and Arbitrator Matthew Sullivan swore an oath and represented the arbitration case service would be provided according to particular standards and quality as described by AAA Construction Rules, Exhibit "338".  AAA Construction Rule R-44. "Form of Award", requires that:

 

(a) Any award shall be in writing and signed by a majority of the arbitrators. It shall be executed in the form and manner required by law.

 

The rule requires that any award shall be executed in the "form and manner required by law."  The arbitration award order signed by Arbitrator Matthew Sullivan, Exhibit "331"  and AAA case management violates TBCC 17.46(b)(7) because the service did not meet the legal requirements, or particular standard and quality, of Texas Rules of Civil Procedure (TRCP) 172.141(b), which requires the arbitration awards must be in a form and manner that states the reasons on which they are based:

 

"§ 172.141. FORM AND CONTENT OF ARBITRATION AWARD.  (b)  The arbitration award must state the reasons on which it is based, unless the parties have agreed that no reasons are to be given,"

           

Hughes made five separate arbitration claims, (1) Action to Foreclose Mechanic's and Materialman's Lien, (2) Suit on Account (sworn and verified), (3) Breach of Construction Contract, (4) Quantum Meruit, and (5) Attorney's fees.  Hughes was awarded a "DENIAL" for all Hughes's claims.  But, Arbitrator Sullivan did not state "the reasons" for all the denial awards. 

 

Mowdy made 12 precedent and 16 separate arbitration counter claims.  The counter claims were:

 

Count 1:    Breach of Contract Paragraph 4

Count 2:    Breach of Contract Paragraph 2

Count 3:    Negligence

Count 4:    Real Property Damage - Injury to Improvements and Vegetation

Count 5:    Common Law Fraud - Fraudulent Bill

Count 6:    Common Law Fraud - Contract Terms

Count 7:    Texas Civil Practices and Remedies Code 12.002 - Liability - Lien Claim

Count 8:    Texas Civil Practices and Remedies Code 12.002 - Liability - Lawsuit

Count 9:    Texas civil Practices and remedies Code 12.002 - Liability - Arbitration Claim

Count 10:  Texas Business and Commerce Code 17.46(b)(22)

Count 11:   Texas Business and commerce Code 17.46(b)(12) - Contract Paragraph 4

Count 12:   Texas Business and Commerce Code 17.46(b)(12) - Contract Paragraph 2

Count 13:   Removal / Release of Invalid Lien Claim

Count 14:   Determination of Violation of Texas Penal code 32.49

Count 15:   Texas Business and Commerce Code 17.46 - TX Property Code 41.007(b) (fraudulent contract)

Count 16:   Texas Business and Commerce Code 17.46 - TX Property Code 41.007(b) (true and correct contract)

 

Note:  Mowdy's deceptive trade claims included mental anguish under TBCC 17.50 RELIEF FOR CONSUMERS.

 

On June 8, 2013, Arbitrator Matthew Sullivan issued the Exhibit "331" arbitration award order.  Arbitrator Sullivan's order violates Texas Civil Practices and Remedies Code 172.141(b) because it does not state the reasons for all claims.  Some of those claims are key to Mowdy's other claims.  Specifically, while Arbitrator Sullivan grants Mowdy's a "Breach of Contract" claim, he avoids identifying Mowdy's specific breach claim or reason.  A material issue because Mowdy made two breach of contract claims. 

Mowdy's first breach claim was based on the paragraph 4, "cost plus", terms of the contract and proved Hughes was overpaid by $93,060.91, Exhibit "335, and "183".  Mowdy's second breach claim was based on the contract's paragraph 2, "maximum," charge terms and proved Hughes was overpaid by $27,216.30, Exhibit "14".  Mowdy was GRANTED a Breach of Contract claim, Exhibit "331". Yet, Arbitrator Sullivan refused to identify which claim, provide the required accounting, and Mowdy was awarded no damages.    

Some reasons can be inferred from the "Facts and Conclusions of Law" listed by Arbitrator Sullivan.  But, the reasons are vague and not related to a specific claim.  Arbitrator Sullivan stated no discernible reasons and refused to provide the required itemized accounting or explanation for any of the following 17 claims:

1. DENIED Hughes (2) Suit on Account (sworn and verified),

2. DENIED Hughes (3) Breach of Construction Contract,

3. DENIED Hughes (4) Quantum Meruit

 

4. GRANTED ? Mowdy Count 1:    Breach of Contract Paragraph 4

5. GRANTED ? Mowdy Count 2:    Breach of Contract Paragraph 2

6. DENIED        Mowdy Count 3:    Negligence

7. DENIED        Mowdy Count 4:    Real Property Damage

8. DENIED        Mowdy Count 5:    Common Law Fraud - Fraudulent Bill

9. DENIED        Mowdy Count 6:    Common Law Fraud - Contract Terms

10. DENIED        Mowdy Count 7:    TCP&R Code 12.002 - Liability - Lien Claim

11. DENIED        Mowdy Count 8:    TCP&R Code 12.002 - Liability - Lawsuit

12. DENIED        Mowdy Count 9:    TCP&R Code 12.002 - Liability - Arbitration Claim

13. DENIED        Mowdy Count 10:  TBCC 17.46(b)(22) Representing performance

14. DENIED        Mowdy Count 11:  TBCC 17.46(b)(12) - Contract Paragraph 4

15. DENIED        Mowdy Count 12:  TBCC 17.46(b)(12) - Contract Paragraph 2

16. DENIED        Mowdy Count 14:   Determination of Violation of Texas Penal code                                                                       32.49

17. DENIED        Mowdy Count 15:   Texas Business and Commerce Code 17.46 - TX                                                                    Property Code 41.007(b) (fraudulent contract)

 

AAA had a case management responsibility, assured particular standards and quality, and had a duty to ensure their service complied with those standards, quality, and Texas laws.  Arbitrator Sullivan had a responsibility to make his order comply with the AAA rule standards, quality, Texas laws, and required processes.  Mowdy requested AAA and Arbitrator Sullivan correct the order to comply with AAA rules and Texas law standards and quality, Exhibit "340".  But, Mowdy was refused corrections to meet the particular standards and quality promised by AAA and Arbitrator Sullivan, Exhibit "341". 

AAA and Arbitrator Sullivan violated Texas State law that requires the statement of reasons for an arbitration claim award, as a particular standard and quality of service, that was due to Mowdy.  AAA and Arbitrator Sullivan deceived Mowdy into believing their services would comply with the legal standard established by TRCP 172.141(b), AAA Rules, and Mowdy's Constitutional rights.  AAA and Arbitrator Sullivan were paid for that particular standard of service, but, refused to provide that promised standard of service.  AAA and Arbitrator Sullivan violated TBCC Code 17.46(b)(7), causing financial and mental anguish injury to Mowdy.   

 

III.  Deceptive Trade 17.46(b)(7) - Violation of American Arbitration Association Construction Rule R-44(b)

Texas Business and Commerce Code (TBCC) 17.46(b)(7) states that it is a deceptive trade violation to represent a service meets a particular standard and quality when it does not.

 

Sec. 17.46.  DECEPTIVE TRADE PRACTICES UNLAWFUL.  (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:

 

(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;

 

AAA represented, and Arbitrator Matthew Sullivan represented and swore an oath, that the arbitration case would be administered according to AAA Construction Rules, Exhibit "334".  AAA Construction Rule R-44(b), requires that:

 

(b) In all cases, unless waived by agreement of the parties, the arbitrator shall provide a concise written financial breakdown of any monetary awards and, if there are non-monetary components of the claims or counterclaims, the arbitrator shall include a line item disposition of each non-monetary claim or counterclaim.

 

No party to the arbitration waived rule R-44(b).  The rule requires, in all cases, that the arbitrator shall provide a concise written financial breakdown of any monetary awards and line item disposition of each non-monetary claim or counterclaim.  Denial of a monetary or non-monetary claim is an award.  Granting a monetary or non-monetary claim is an award.  In either case, monetary or non-monetary, Arbitrator Sullivan and AAA case management each had an obligation to ensure the particular standard and quality of detailed accounting, or line item disposition, for each claim and counterclaim as required by AAA Construction Rule R-44(b) was met in the final arbitration order.  

 

Arbitrator Sullivan's failure to provide the service according to the promised standards is apparent, and so are his reasons.  Specifically, Arbitrator Sullivan's obvious reason is that he could not reconcile his awards with the facts and evidence presented.  If Arbitrator Sullivan complied with the R-44(b) standard, then he must explain Mowdy's 113 documented fraudulent and duplicate charges, totaling $138,168.06, made by Hughes in a sworn Suit on Account and itemized in Exhibit "151".  Hughes's $113,914.11 claim was denied without providing the required itemized accounting.   If Arbitrator Sullivan had accounted for Hughes's duplicate and fraudulent charges, then he could not explain denying Mowdy's fraud claims.  And, then he could not explain denying Mowdy's other claims associated with fraud. 

 

Arbitrator Sullivan refused to provide the service at the standard and quality promised and did so in a manner that questions his integrity.  AAA was clearly aware of the standard and quality failure and was paid to ensure the case was properly managed according to the rules.  Arbitrator Sullivan and AAA promised, but refused to perform their service at the standard and quality promised.

 

AAA and Arbitrator Sullivan violated TBCC Code 17.46(b)(7) by failing and refusing to provide their services at the particular standard and quality promised.  AAA and Arbitrator Sullivan deceived Mowdy into believing their services would comply with the Rule 44(b) standard and quality promised.  Mowdy, a senior citizen, paid for the service.  AAA and Arbitrator Sullivan refused to provide that promised standard and quality of service.  AAA and Arbitrator Sullivan violated TBCC Code 17.46(b)(7) causing financial and anguish injury to Mowdy

 

IV.  Deceptive Trade 17.46(b)(7) - Violation of Texas Constitution, Bill of Rights Sec. 13, Remedy by Due Course, and U.S. Constitutional Right to Due Process Standard

 

AAA and Arbitrator Sullivan marketed, promoted, represented they would provide their arbitration service at a particular standard and quality that would not violate Mowdy's Constitutional rights and property protection guarantees.  Arbitrator Sullivan swore an oath to follow AAA rules.  Mowdy paid for a reasonable, well defined and particular standard and quality of service.  AAA and Arbitrator Sullivan agreed by marketing their service and presentation of AAA Rule R-44 (a) to execute the arbitration award in a manner prescribed by law; and (b) to provide specific accounting and line item descriptions for each claim and counter claim.  AAA and Arbitrator Sullivan received payment for a particular standard and quality of service and then refused to provide that standard and quality of service causing Mowdy a loss of property and anguish.

 

The Texas Constitution, Bill of Rights, Section 13, guarantees that Mowdy shall have due course of law:

 

Sec. 13. ...REMEDY BY DUE COURSE OF LAW... All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

 

The 5th and 14th Amendments to the U.S. Constitution guarantees Mowdy cannot be deprived of property without due process, meaning according to applicable laws and the required procedures.    

 

Texas law, TRCP 172.141 is a law describing how an arbitration award must be written.  The law states:

 

"§ 172.141. FORM AND CONTENT OF ARBITRATION AWARD.  (b)  The arbitration award must state the reasons on which it is based, unless the parties have agreed that no reasons are to be given,"

 

AAA and Arbitrator Sullivan agreed to provide the service according to the AAA published rules which included Rule R-44:

 

R-44. Form of Award

 

(a) Any award shall be in writing and signed by a majority of the arbitrators. It shall be executed in the form and manner required by law.

 

(b) In all cases, unless waived by agreement of the parties, the arbitrator shall provide a concise written financial breakdown of any monetary awards and, if there are non-monetary components of the claims or counterclaims, the arbitrator shall include a line item disposition of each non-monetary claim or counterclaim.

 

 

Mowdy had a Texas and U.S. Constitutional right to the due course of all Texas laws and the AAA rules as a particular standard and quality of Arbitration service.  AAA and Arbitrator Sullivan received payment for the particular standard and quality of service and then refused to provide the service at the standard and quality promised.  AAA and Arbitrator Sullivan violated TBCC 17.46(b)(7) by representing their service would be a particular standard and quality when it was not.  AAA and Arbitrator Sullivan caused financial and anguish injury to Mowdy.

 

 

 

 V.  Deceptive Trade 17.46(b)(7) - Particular Standard and Quality - "Facts and Conclusions of Law"

 

AAA and Arbitrator Sullivan promised a product with a particular standard and quality, and then, after payment, refused to deliver the product at the particular standard and quality. 

 

AAA was contracted to case manage and Arbitrator Sullivan was contracted to determine "Facts and Conclusions of Law" which is a "Form" of arbitration award.  That Form is more detailed than any other Form and requires additional costs.  AAA and Arbitrator Sullivan charge a significantly higher price to the customer for the Facts and Conclusions of Law award Form.

 

Arbitrator Sullivan published an October 8, 2012, preliminary hearing order identifying his contractual responsibility to provide "Facts and Conclusions of Law", Exhibit "336, paragraph 9".  Arbitrator Sullivan also swore an oath to perform his duties according to the Code of Ethics and the rules of the American Arbitration Association, Exhibit " 334".  Case management was provided by AAA.  AAA and Arbitrator Sullivan were paid the additional charges for the particular "Facts and Conclusions of Law," standard and quality, but, refused to deliver the product at the standard and quality promised, Exhibit "331".

 

A "Fact" is defined as:

 

An incident, act, event, or circumstance. A fact is something that has already been done or an action in process. It is an event that has definitely and actually taken place, and is distinguishable from a suspicion, innuendo, or supposition. A fact is a truth as opposed to fiction or mistake.

 

A "Conclusion of Law" is defined as:

 

A finding as to the applicability of a rule of law to particular facts

 

Arbitrator Sullivan was contracted and became fully obligated, to determine the "Facts", and "Conclusions of Law" for each claim and counter claim and was required to include a written financial breakdown of any monetary awards and line item disposition of each non-monetary claim or counterclaim.  Arbitrator Sullivan swore to adhere to the AAA Rules, which required these particular standards and quality, including R-44(b), Exhibit "338, page 51", which required:

 

R-44. Form of Award

 

(b) In all cases, unless waived by agreement of the parties, the arbitrator shall provide a concise written financial breakdown of any monetary awards and, if there are non-monetary components of the claims or counterclaims, the arbitrator shall include a line item disposition of each non-monetary claim or counterclaim.

 

 

Arbitrator Sullivan was obligated by his oath, Exhibit "334", and to the AAA Rules and "Code of Ethics"  which state the arbitrator should decide all issues submitted for determination:

 

CANON V: AN ARBITRATOR SHOULD MAKE DECISIONS IN A JUST, INDEPENDENT AND DELIBERATE MANNER.

 

A. The arbitrator should, after careful deliberation, decide all issues submitted for determination. An arbitrator should decide no other issues.

 

 

Hughes claimed Mowdy owed Hughes $113,914.11.  Arbitrator Sullivan awarded a denial of that claim, Exhibit "331, Sec II, Item 51", stating the "Lien is incorrect, at best, for several reasons, including: it states that all of the attachments are the contract, and it does not provide just offsets and credits.

 

But, Arbitrator Sullivan is required by law to state all the "several" reasons and is required by contract, oath, cannon, and AAA Rule R-44(b) to itemize all monetary and non monetary awards providing a disposition for all claims and counter claims.  Arbitrator Sullivan indicates the lien claim "does not provide just offsets and credits."  Arbitrator Sullivan was obligated to itemize the monetary amounts showing the offsets and credits discrepancies.

 

Mowdy countered that Hughes's $113,914.11 claim included duplicate charges and charges for materials and work not performed in two separate breach claims, Exhibit "335".  Arbitrator Sullivan granted Mowdy's claim, but refused to identify which of the two claims and refused to provide the facts and conclusions of law.   Arbitrator Sullivan's refusal to comply with the particular standards and required quality leaves Mowdy vulnerable and subject to additional litigation from Hughes.  Hughes could argue against the arbitration award in court.  Therefore, every fact and conclusion of law, according to the particular standards and quality promised, is critically important to Mowdy.      

 

As shown by Mowdy's 2nd Amended Answer, Exhibit "339",  and 3rd Amended Counterclaim, Exhibit "335", Mowdy presented the following claims, and counterclaims for "Facts and Conclusions of Law" determination:

1.  Precedent:  No TRCP 194.2(d) disclosure - Method of calculating economic damage.  Texas Rules of Civil Procedure, Rule 194.2(d) requires Hughes to disclose the amount and method of calculating the damages he claimed.  Hughes claimed damages of $113,914.11, but refused to provide any method for calculation.  Arbitrator Sullivan refused to require Hughes to show his method of calculating damages and refused to address Mowdy's arbitration "No Evidence" of economic damage motion, Exhibit "317"

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

 

3. Precedent: Texas Property Code 53.054(b).  Hughes failed to file the applicable written agreement or contract as required by Texas Property Code 53.054(b). 

4. Precedent: Texas Property Code 53.254 and 53.158.  Hughes failed to meet Texas Property Code 53.254 requirements necessary to fix a lien on a homestead:   

5. Precedent: Texas Property Code 41.001(b)(3).  Mowdy's homestead is exempt and cannot be encumbered unless Hughes filed a  contract that can meet the requirements of Texas Property Code 41.001(b)(3).

 

6. Precedent: Texas Property Code 41.007.  Hughes's fraudulent contract did not meet the warning content requirements established by Texas Property Code - Section 41.007.

 

7. Precedent: Texas Property Code 53.085.  Hughes  has not met precedents required by Texas Property Code - Section 53.085. AFFIDAVIT REQUIRED:

 

8. Precedent: Texas Property Code 53.159.  Hughes failed to comply with Texas Property Code 53.159. OBLIGATION TO FURNISH INFORMATION, after three certified requests.     

 

9. Precedent: Texas Property Code 53.256.  HUGHES  has not met precedent required by Texas Property Code - 53.256:

10. Precedent: Texas Property Code 53.259.  Hughes  failed to meet the final bills paid affidavit precedent required by Texas Property Code - 53.259:

11.  Precedent:  TX Property Code 53.255 Disclosure and Contract Lien Release Provision.   Hughes has not met the release of lien provisions of the contract, Exhibit "3", which states that lien releases will be provided for subcontractors. 

12. Precedent:  Texas Property Code 53.051.  TX Property Code 53.051 requires compliance with the laws contained in the chapter for the perfection of a lien:

13. Affirmative Defense:  Suit On Account.  Hughes claims Mowdy owes Hughes for goods or services furnished to Mowdy.  Hughes is obligated to prove seven essential elements for Hughes's cause as established by Airborne Freight Corp. v. CRB Mktg., Inc., 566 S.W.2d 573, 574 (Tex.1978):

14.  Breach of Construction Contract.  Hughes claims breach of contract and Hughes must therefore prove four essential elements as established by Valero Marketing & Supply v. Kalama International, 51 S.W.3d 345, 351 (Tex.App.-Houston [1st Dist.] 2001, no pet.) to sustain Hughes's breach of contract cause. 

15. Quantum Meruit.  Hughes alleges equitable action for quantum meruit and that Mowdy was unjustly enriched.  Mowdy was not unjustly enriched, Exhibit "183", and Hughes has no basis or right for equitable action such as Quantum Meruit.  Quantum Meruit is an equitable theory that applies only when there was no express contract.  There was an express written contract for the material and labor provided, the contract contained in Exhibit "3". 

16.  Attorney's Fees.  Hughes has no claim, suffered no injury, and no entitlement to attorney fees. 

 

17.  Foreclosure.  Hughes has no basis for foreclosure action, is unharmed, and cannot meet the requirements of Texas Property Code 55.051 which requires compliance with the applicable laws of the subchapter in order to perfect a lien.  Hughes cannot comply with the necessary procedures as shown by all Mowdy's presentations.

18.  Counter Claim Count 1.  Breach of Contract Paragraph 4.

 

19.  Counter Claim Count 2.  Breach of Contract Paragraph 2.

Count 3:    Negligence

 

20. Counter Claim Count 4.  Real Property Damage - Injury to Improvements and Vegetation.

 

21. Counter Claim Count 5.  Common Law Fraud - Fraudulent Bill.

 

22. Counter Claim Count 6.  Common Law Fraud - Contract Terms.

 

23. Counter Claim Count 7.  Texas Civil Practices and Remedies Code 12.002 - Liability - Lien Claim.

 

24. Counter Claim Count 8.  Texas Civil Practices and Remedies Code 12.002 - Liability - Lawsuit.

 

25. Counter Claim Count 9.  Texas civil Practices and remedies Code 12.002 - Liability - Arbitration Claim.

 

26. Counter Claim Count 10. Texas Business and Commerce Code 17.46(b)(22).

 

27. Counter Claim Count 11.  Texas Business and commerce Code 17.46(b)(12) - Contract Paragraph 4.

 

28. Counter Claim Count 12.  Texas Business and Commerce Code 17.46(b)(12) - Contract Paragraph 2.

 

29. Counter Claim Count 13.  Removal / Release of Invalid Lien Claim.

 

30. Counter Claim Count 14.  Determination of Violation of Texas Penal code 32.49.

 

31. Counter Claim Count 15.  Texas Business and Commerce Code 17.46 - TX Property Code 41.007(b) (fraudulent contract).

 

32. Counter Claim Count 16.  Texas Business and Commerce Code 17.46 - TX Property Code 41.007(b) (true and correct contract).

 

33. Counter Claim.  Mowdy's deceptive trade claims included mental anguish under TBCC 17.50 RELIEF FOR CONSUMERS.

 

 

Arbitrator Sullivan did not provide the particular standard and quality of service promised for Mowdy's claims and counter claims.  Mowdy claimed Hughes charged Mowdy more than $138,000.00, in false, duplicate, and fraudulent charges and provided undeniable proof in Exhibit "151". The insurance company, USAA, refused to pay Hughes stating the charges he filed were duplicate, Exhibit "2".  The duplicate and false charges were itemized and presented for comparison in Exhibit "151".  The itemization used Hughes's documents and was available to Arbitrator Sullivan.  Arbitrator Sullivan's promised standard and quality of service for all Mowdy's claims is clearly defined by State law and AAA Construction Rule 44(b).  Arbitrator Sullivan and AAA promised, but refused, to provide itemized accounting and disposition of Mowdy's claims and provide finding of facts and conclusions of law.      

 

For example, In item 21 above, Mowdy claimed Hughes's bill was fraudulent demanding payment for materials and services Hughes did not provide.  A fact conclusively proven, in a single instance, by the Exhibit "173" Suit on Account" bill.  A bill, in which Hughes charged Mowdy twice for repairing cracked concrete.  But, Exhibit "17" conclusively proved, with photos of the cracks, that the concrete was never replaced whatsoever.

 

In another example, item 7 above, Mowdy claimed Hughes failed to meet the Precedent requirements of Texas Property Code 53.085.   Arbitrator Sullivan refused to provide a fact and conclusion of law for Mowdy's claim.   Texas Property Code 53.085 is a law Mowdy used, prior to Hughes filing suit, that requires Hughes to provide Mowdy a copy of the true and correct contract and a sworn affidavit stating the materials provided and work performed.  Hughes refused Mowdy's three certified requests for Hughes to meet the legal precedent,  Exhibits "58, 24, 25".   This claim, by Mowdy, shows that Hughes maintained his false claims and refused to produce the contract many months before filing suit.  Arbitrator Sullivan was obligated to determine the facts and conclusions of law presented for item 7, and all other items.  But, Arbitrator Sullivan refused to provide the standard and quality of service promised.   

 

Mowdy provided other conclusive proof that Hughes's bill was fraudulent as shown in Exhibit "335" for all Mowdy's counter claims.  Arbitrator Sullivan had the evidence available and was paid to determine the facts and the conclusions of law for each claim and counter claim.  But, Arbitrator Sullivan refused his sworn oath and refused to provide the service at the particular standard promised.  AAA case management was advised and refused to enforce AAA Construction rules.

 

While refusing to determine the facts of the duplicate and fraudulent charges, or perform any accounting, as required by rule R-44(b), Arbitrator Sullivan falsely concluded Hughes provided Mowdy with a substantial free roof and other upgrades in his Facts and Conclusions, Exhibit "331, Sec II, item 41".  But, when making that false finding,  Arbitrator Sullivan clearly omitted the fact that Hughes refused to pay the roofer and Mowdy paid the roofer for more than the roof upgrade value, Exhibit "14".  Mowdy made that presentation in his counter claim, Exhibit "335".  And, Arbitrator Sullivan refused to provide any accounting or calculations to support his false conclusion that Mowdy received free upgrades.  If Arbitrator Sullivan had performed his duty at the standard and quality required by AAA Rule R-44(b), for Mowdy's counter claim, Sullivan would not have made the false conclusion. 

 

Mowdy relied on AAA and Arbitrator Sullivan's promises to manage and conduct the arbitration according to their particular documented standards and quality.  AAA had a case management contract responsibility.  Arbitrator Sullivan had a contractual, sworn, an order published by his own hand, a legal, and an ethical duty to adhere to particular standards  and quality to determine all the material facts of each of Mowdy's defenses, claims, and counter claims.  And then to make a conclusion of law based on the facts and applicability of the law. 

 

Arbitrator Sullivan swore an oath to follow the AAA Rules.  Arbitrator Sullivan swore to abide by the AAA Rules and AAA "Code of Ethics" (Exhibit "337" which required him to follow the rules and do no less than his complete duty, Exhibit "334".  Arbitrator Sullivan awarded Mowdy "Breach of Contract,"  but stated no reason for the award, gave Mowdy no damages, and refused to provide any of the required accounting or itemized disposition.   AAA was advised of that particular standard and quality failure and refused to enforce any correction.  Arbitrator Sullivan's and AAA's failure leaves Mowdy vulnerable to further litigation difficulties and caused Mowdy financial and anguish harm.

 

 

 

VI.  Deceptive Trade 17.46(b)(22) -

Representing Service Provided.

 

Texas Business and Commerce Code 17.46(b)(22) states that representing service has been performed when the service was not performed is a violation of Texas law:

 

 

Sec. 17.46.  DECEPTIVE TRADE PRACTICES UNLAWFUL.  (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:

 

 

(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;

 

 

AAA and Arbitrator Sullivan charged Mowdy $14,037.50 for arbitration services that were clearly defined and which were to be performed, and include the determination of "Facts and Conclusions of Law" and itemized calculations and dispositions for all claims and counterclaims made by either party, Exhibit "316, 334, 338".  Mowdy notified AAA and Arbitrator Sullivan that the service they represented as being performed were not actually performed, Exhibit "332".  AAA and Arbitrator Sullivan continued to represent the service was provided, Exhibit "341".  The completion of service promised was represented by AAA and Arbitrator Sullivan's demands for payment.  However, the service was not provided.   AAA and Arbitrator Sullivan violated TBCC 17.46(b)(22) by representing they provided a service when they had not.  

 

 

 

 

 

 

VII.  Arbitrator Sullivan, Misconduct and Ethics

 

Although it is not a matter of deceptive trade, I'm compelled to address the manner in which this arbitration case was handled by Arbitrator Sullivan.  It can only be viewed as misconduct, prejudice, ethical violations, and with suspicion of corruption. 

 

Arbitrator Sullivan suppressed undeniable facts and issues he was paid to determine.  Specifically, the fraudulent billing filed by Hughes as a lien claim and court document.  That "Suit on Account" document was sworn and verified.  Yet, Sullivan refused to hear Mowdy's claim that they contained false and fraudulent claims.   Sullivan refused to account for those charges as required by AAA rules.  He did so even though Mowdy provided conclusive evidence, such as Exhibit "17", and itemized and detailed catalog of duplicate, false and fraudulent charges contained in the sworn "Suit on Account", Exhibit "151".   

 

The evidence and behavior of Plantiff Hughes clearly indicated he concealed the true and correct contract for an extended period of time, until Mowdy found a copy.  Hughes filed a Quantum Meruit claim, without citing any breach of contract details.   Arbitrator Sullivan was shown indisputable evidence that Hughes refused an audit and refused to provide the true and correct contract and the affidavit of work performed as required by Texas Property Code 53.085, Exhibits "24, 25, 58".  Arbitrator Sullivan suppressed that evidence and refused to make any determination of "Facts and Conclusions of Law", on that critical issue.  Arbitrator misrepresented the facts by deliberate omission.  The evidence showed that Hughes maintained a false claim against Mowdy for an extended period of time.  And, because Mowdy defended his rights, Arbitrator Sullivan then claimed Mowdy was adversarial, Exhibit "331, Sec II, Item 61"

 

 Arbitrator Sullivan misrepresents facts and created facts that simply don't exist.  In item 59, Exhibit "331" Arbitrator Sullivan states Mowdy has provided "some evidence that Hughes's cost of performing the work was considerably less than the amount of compensation received by Hughes."  This is a misleading statement because Arbitrator Sullivan ordered Hughes to produce his costs, Exhibit "344, paragraph 5-4."  Hughes refused to provide the cost data and was compelled to produce.  The cost evidence was produced on Arbitrator Sullivan's order and clearly showed Hughes made an excessive profit, Exhibit "182". 

 

Although Arbitrator Sullivan determined Hughes's  sworn Suit on Account  were "incorrect at best," and the document filed was not the contract as Hughes swore, he then described Mowdy as engaging in a "particularly adversarial campaign against Hughes", Exhibit "331, Sec II, item 61".  Sullivan suppressed and gave no consideration to the duplicate and fraudulent claims, and subsequent lien claim and lawsuit filed against Mowdy by Hughes.  Mowdy is a retired senior citizen who lives on fixed pensions and was put in a position of unable to afford a lawyer and fighting for financial survival and his home against false claims. 

 

When Mowdy motioned, by Special Exception, to require Hughes to cite a specific breach claim, Exhibit "342", Arbitrator Sullivan refused to respond to Mowdy's motion.  By such refusal, Arbitrator Sullivan refused to require Plaintiff Hughes to state the precise nature of his claim against Mowdy.  Mowdy was forced to defend against an unspecified claim of breach of contract and a claimant who was not required to show he suffered any damage, Exhibit "317".

 

The above behavior, by Arbitrator Sullivan can be easily proven.  And, it is extremely discouraging to absolutely know that such behavior can be so blatantly displayed in the legal system.  Arbitrator Matthew Sullivan, committed acts of misconduct and obstruction of justice in violation of the Texas Disciplinary Rules of Conduct, Rule 4.01, Truthfulness in Statements to Others, Rule 8.04(3) A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation, and Rule 8.04(4) A lawyer shall not engage in conduct constituting obstruction of justice.  

 

 

VIII.  Summary

 

I prevailed in my arbitration against Plaintiff Hughes.  However, I have been left extremely vulnerable through the deceptive trade violations by AAA and Arbitrator Sullivan.  There was clear and uncontestable evidence of serious crime suppression and unfair confiscation of my property, through overpayments to Hughes, because Arbitrator Sullivan and AAA refused to provide the service they promised.  Their refusal to provide the promised service is a violation of State law, AAA Rules, the Arbitrator's sworn oath, and my rights to Texas and U.S. Constitutional protection of my property through due course and process of law.  AAA and Arbitrator Sullivan committed deceptive trade in violation of Texas law and AAA Rules and caused financial and anguish harm to me. 

 

I request you investigate and appropriately pursue my complaints against the American Arbitration Association and Arbitrator Matthew Sullivan.

 

Sincerely,

 

Thomas C. Mowdy

Major, U.S. Army (Ret.)

 

 

 

 


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                   by Tom Mowdy
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