Mowdy's Motion for Summary Judgement in 277th District Court

For background and understanding see Mowdy's Williamson County Culture of Corruption speech text.

The contractor filed a law suit against Mowdy with a false contract and then failed to meet discovery.

Mowdy motioned for a Summary Judgement. But, Ken Anderson, 277th District Court Judge at the time, ignored the missed discovery and the inequity, and sent the case to arbitration event though the contractor filed the lawsuit and claimed against Mowdy under "Quantum Meruit" a term that means "no written contract. (Note: The exhibit numbers in this motion were changed after the motion was filed.)

DOCKET # 11-1064-C277

JOHN HUGHES d/b/a hughes amalgamated

PLAINTIFF

THOMAS C. MOWDY

DEFENDANT

227th Judicial District

In and for Williamson County, Texas

DEFENDANT MOWDY'S MOTION FOR NO

EVIDENCE SUMMARY JUDGEMENT

Defendant asks the court to sign a no evidence summary judgment against Plaintiff on Defendant's affirmative defense.

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 answered 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.

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

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

6. 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.

7. Hughes filed a November 12, 2010, lien claim against Mowdy's homestead for materials and labor to repair fire damage. Then, on October 5, 2011, Hughes filed a breach of contract lawsuit to foreclose on Mowdy's homestead. Mowdy contends that Hughes was overpaid and knowingly filed a false and fraudulent lien claim and subsequent lawsuit, that Hughes submitted fraudulent documents, in official proceedings, claiming Mowdy owes Hughes. Mowdy contends Hughes was overpaid because of his fraudulent and deceptive acts, and Hughes has refused to, and cannot, present any evidence that Mowdy owes Hughes anything.

8. Hughes's swore in his November 12, 2010, lien claim affidavit, Exhibit "1", that the 119 page document attached to that affidavit was the contract for the work performed for Mowdy. That statement was false, the 119 page document was not the contract, and the claims were fraudulent. The October 5, 2011, lawsuit contained the same false affidavit, fraudulent contract, and fraudulent claims. Mowdy challenged the fraudulent contract and produced a copy of the true and correct two page August 18, 2009, contract in a November 2, 2011, email to Hughes attorney, Exhibit "13". Then, on November 22, 2011, Hughes filed the Exhibit "2", affidavit, with true and correct two page August 18, 2009, contract, with the Williamson County Clerk. That affidavit confirmed that Hughes's November 12, 2010, lien claim affidavit, made more than a year prior, was false and the 119 page document was fraudulent. Hughes did not file the true and correct contract with his lien claim, or file it with, or in any manner, amend his original lawsuit.

9. An obvious question and material contract issue is: 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 "3" 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 "4". 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 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 after Hughes filed his October 5, 2011, lawsuit to foreclose on Mowdy's property. Then, on November 22, 2011, within 20 days after Mowdy made Hughes's attorney aware that Mowdy had a copy of the true and correct contract, Hughes filed an 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. However, 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.

10. Although Hughes filed the October 5, 2011, lawsuit against Mowdy, his behavior can be characterized as legal avoidance and delay since October 31, 2011, when Mowdy made Hughes's attorney aware that Mowdy had a copy of the true and correct August 18, 2009, contract, Exhibit "5". That delay and avoidance has been evidenced by Hughes's actions. Specifically, Mowdy requested TRCP Rule 194.2 disclosure on October 24, 2011, within his Answer, that included a special exception requesting production of the true and correct August 18, 2009, contract. Hughes failed to provide disclosure as required by TRCP Rule 21a. Hughes has never produced the true and correct contract in his suit, or in any way amended his suit. Hughes failed to appear at a properly noticed deposition, Exhibit "6". Mowdy requested production discovery on January 24, 2012, by certified mail in compliance with TRCP Rule 21a. Hughes did not respond timely, and has not provided a single document requested by Mowdy. Although the production documents requested were not voluminous, they were not produced by Hughes. Mowdy was informed, by Hughes, that those documents that were available could only be viewed in San Antonio, TX, Exhibit "7". Finally, Hughes's attorney received a six week continuance, claiming medical reasons, after failing to appear at a properly noticed March 5, 2012, hearing. Hughes has demonstrated behavior and actions in violation of TRCP 215.3 which is directed at prohibiting discovery resistance. Hughes has had adequate time for disclosure and discovery.

11. 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".

12. 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".

B. Facts

13. Mowdy moves for no-evidence summary judgment based on Hughes's lack of evidence to support his breach of contract, quantum meruit, suit on account, and foreclosure claims.

14. 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 "8", which is the maximum compensation possibly due to Hughes under the contract's paragraph 2 terms, Exhibit "2." 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 and Hughes owes Mowdy.

15. Mowdy directly paid Hughes $312,621.50 as evidenced by Hughes letter dated February 3, 2011, Exhibit "10", and cancelled checks, Exhibit "11".

16. Mowdy's just offsets and credits equal at least $87,269.73, as show by item "g.", Exhibit "9".

17. Mowdy's direct $312,621.50 payments to Hughes plus Mowdy's just offsets and credits $87,269.73, amount to $399,891.23. Hughes was therefore overpaid, by at least the difference of $22,872.83, under the contract's paragraph 2 terms limiting maximum compensation to the $377,018.40 amount allowed by the insurance carrier, Exhibit "9". While this overpayment is based on the maximum possibly due, Hughes was only due his actual cost plus 10% overhead and 10% profit. Exhibit "12" proves Hughes actual costs would show that he was paid significantly more than due under the contract's paragraph 2 terms. Hughes has refused to provide production evidence proving his actual costs and permit the calculation of his fee according to paragraph 4 of the contract.

18. Mowdy attaches affidavits to the motion as Exhibits "1" through "13", to establish facts in support of this motion and incorporates the affidavits by reference.

C. Arguments & Authorities

19. A court may grant a no-evidence motion for summary judgment if the movant can show that adequate time for discovery has passed and the nonmovant has no evidence to support one or more essential elements of its claim or defense. Tex. R. Civ. P. 166a(i).

20. Adequate time for discovery has passed since Hughes filed suit and Hughes has resisted Mowdy's discovery efforts during that time. Mowdy requested disclosure from Hughes on October 24, 2011, in Mowdy's Answer to Hughes Original Petition. As of April 23, 2012, Hughes has failed to provide disclosure as required by Tex. R. Civ. P. 194.2. Mowdy reminded Hughes in an October 31, 2011, letter, Exhibit "5", 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. Mowdy asserts that more than adequate time and effort has been expended for Hughes to present evidence. The continued delay of this case is financialy harmful to Mowdy, and causes Mowdy extreme stress and mental anguish.

21. Mowdy is entitled to summary judgment because Hughes cannot, by depositions, answers to interrogatories, admissions on file, or other admissible evidence, demonstrate there is any evidence to support his breach of contract, quantum meruit, suit on account, or foreclosure causes of action.

22. Hughes breach of contract claim requires proof that Mowdy breached an obligation, or promise. Hughes's only claim of breach is that Mowdy did not pay the amount Hughes demanded and that claim is based on an invalid, unenforceable, and fraudulent contract which has no terms that could have been breached by Mowdy. Hughes cannot prove that Mowdy breached any contract.

23. Hughes cannot provide any evidence to support his claim that Mowdy breached any agreement. Hughes's lien claim is based on an invalid and unenforceable contract that has no terms of agreement, no offer, no consideration, no evidence of an agreement, and no evidence of consent by either party, Exhibit "1". The contract presented by Hughes is invalid and unenforceable and that fact cannot change. Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex.2007) (element 3).

24. Hughes has no cause of action to foreclose a lien on Mowdy's homestead. Hughes has no injury or basis for a foreclosure action because there was no breach of contract, and Hughes suffered no injury, and Hughes was overpaid according the terms of the true and correct written contract. Hughes cannot prove a basis for a foreclosure action.

25. Hughes cannot prove compliance with Texas Property Code 53.254 requirements and therefore has no cause of action to foreclose a lien on Mowdy's homestead. Hughes cannot meet the Texas Property Code 53.254(a) requirements necessary to fix and foreclose a lien on Mowdy's homestead. Texas Property Code 53.254 establishes the requirements necessary to fix a lien on a homestead as:

Texas Property Code - Section 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."

a. The fraudulent contract Hughes filed, with his lien claim, to fix a lien fails to meet the "execution" and "written" terms requirements of 53.254(a). The fraudulent contract has no execution by Hughes or Mowdy, and does not have any written terms of agreement and therefore does not meet the requirements of 53.254(a) and Hughes cannot prove otherwise, and remedy that defect and therefore cannot encumber Mowdy's homestead.

b. The fraudulent contract Hughes filed to fix a lien fails to meet the execution before materials were furnished or labor performed requirement of 53.254(b). The fraudulent contract Hughes filed to fix the lien was not executed by anyone at any time, and is dated at least six months after materials were furnished and labor performed. Work began on the house in the year 2009. None of the fraudulent contract documents are dated earlier than June, 2010, Exhibit "1", and Hughes cannot remedy that defect and therefore cannot encumber Mowdy's homestead.

c. Texas Property Code 53.254(e) requires the written contract, meeting the requirements of 53.254(a), and (b) to be filed with the County Clerk. A contract meeting the requirements of 53.254(e) was not filed with the Williamson County Clerk prior to the lawsuit and has never been filed, by Hughes, in association with the lien claim or lawsuit. The fraudulent contract cannot meet the requirements of 53.254(e) and that defect cannot be remedied.

26. Hughes cannot prove compliance with Texas Property Code 53.254(a), (b) and (e), and can provide no evidence disputing that fact. Hughes cannot foreclose a lien on Mowdy's homestead and cannot remedy the defect.

27. Hughes cannot prove compliance with Texas Property Code 41.001(b)(3) which exempts a homestead from encumbrances for work and material if the work and material was not contracted for in writing as provided by 53.254(a), and (b):

§ 41.001. INTERESTS IN LAND EXEMPT FROM SEIZURE. (a) A homestead and one or more lots used for a place of burial of the dead are exempt from seizure for the claims of creditors except for encumbrances properly fixed on homestead property.

(b) Encumbrances may be properly fixed on homestead property for:

(1) purchase money;

(2) taxes on the property;

(3) work and material used in constructing improvements on the property if contracted for in writing as provided by Sections 53.254(a), (b), and (c);

a. The fraudulent contract Hughes filed to encumber Mowdy's homestead property is not a written contract setting forth the terms of the agreement as required by 41.001(b)(3) and 53.254 (a). 53.254(a) requires a written agreement setting forth the terms of the agreement. There are no written terms or comprehensible elements of an agreement in the fraudulent contract and Hughes cannot remedy that defect.

b. 53.254(b) requires the written contract to be executed prior to materials or labor being provided. Materials were provided and work began in the year 2009. The fraudulent contract has no creation date earlier than June, 2010, Exhibit "1". The fraudulent contract cannot meet the requirement of 53.254(b) because it did not exist prior to materials being provided and work being performed and that defect cannot be remedied.

c. 53.254(b) requires the contract to be executed by the person furnishing materials and labor and the owner. The fraudulent contract Hughes filed to encumber Mowdy's homestead property was not executed by anyone. There are no party identities, signatures, or dates, or other evidence of execution. The fraudulent contract cannot meet the requirements of 53.254(b), and that defect cannot be remedied.

28. Hughes cannot prove he met the requirements of Texas Property Code Texas Property Code 41.001(b)(3), and cannot remedy the defects.

29. Hughes cannot prove compliance with Texas Property Code 41.007 which requires a specific warning notice for homestead contracts. Hughes's fraudulent contract did not meet the warning content requirements established by Texas Property Code - Section 41.007(b), and that defect cannot be remedied.

§ 41.007. HOME IMPROVEMENT CONTRACT. (a) A contract described by Section 41.001(b)(3) must contain the following warning conspicuously printed, stamped, or typed in a size equal to at least 10-point bold type or computer equivalent, next to the owner's signature line on the contract:

"IMPORTANT NOTICE: You and your contractor are responsible for meeting the terms and conditions of this contract. If you sign this contract and you fail to meet the terms and conditions of this contract, you may lose your legal ownership rights in your home. KNOW YOUR RIGHTS AND DUTIES UNDER THE LAW."

(b) A violation of Subsection (a) of this section is a false, misleading, or deceptive act or practice within the meaning of Section 17.46, Business & Commerce Code, and is actionable in a public or private suit brought under the provisions of the Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business & Commerce Code).

30. Texas Property Code 41.007 requires that a contract necessary to encumber a homestead must contain specific warning wording conspicuously printed, stamped, or typed in a size equal to at least 10-point bold type. If the contract does not contain the specific wording as required by 41.007(a), then the contract does not meet the encumbrance requirement established by Texas Property Code 41.001(b)(3). The required wording is specific and contained in the 41.007, extract shown above. The required wording must be positioned on the contract next to the owner's signature line in 10-point bold lettering. Hughes's fraudulent contract does not contain the required wording, or the required signature line, Exhibit "1".

31. Hughes's fraudulent contract fails to comply with the warning notice precedent required by Texas Property Code - Section 41.007, and the defect cannot be remedied. The court is requested to note that Texas Property Code 41.007(b) identifies the failure to include the statement required by Texas Property Code Section 41.007 subsection (a) in the contract as a "false, misleading, or deceptive act or practice within the meaning of section 17.46, Business & Commerce Code." Hughes has not met the contract notice precedent required by Texas Property Code 41.007 and therefore has no right, entitlement, or cause for Hughes's foreclosure action and cannot remedy the defect.

32. Hughes cannot provide any evidence to support his quantum meruit cause. Quantum meruit is an equitable theory of recovery that is intended to prevent unjust enrichment when there is an implied agreement to pay for benefits received. Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 817. There was no implied agreement for any work performed by Hughes. There was a written contract for all work performed, the contract was signed by Hughes and Mowdy on August 18, 2009 before any work was performed. An action for quantum meruit cannot be brought when an express contract covers the materials or services provided. Kellog Brown & Root, 166 S.W.3d at 740: Vortt Expl., 787 S.W.2d at 944.

33. Hughes cannot provide any evidence to support his quantum meruit claim because his own affidavit filed with the Williamson County Clerk on November 22, 2011, identified a two page written contract as the contract for all work performed for Mowdy. The sworn affidavit clearly states: "This contract was for repairs to Mr. Mowdy's home". Hughes's affidavit makes no exclusions, and no provisions or claims that any other work was performed. Hughes's sworn affidavit was filed with the Williamson County Clerk on November 22, 2011, and is inclusive of all work performed by Hughes at any time prior to the filing. All work performed by Hughes was performed under the terms of a written contract.

34. Hughes cannot support his claim for quantum meruit. There was a valid written contract, and therefore Hughes has no cause for a Quantum Meruit claim, Black Lake, 538 S.W.2d at 86. Hughes cannot remedy this defect.

35. Hughes cannot prove a cause for 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): Hughes cannot prove at least three of the elements:

a. That Hughes's charges were just and true and made according to the terms of the contract for the work performed;

b. That all lawful offsets, payments, and credits have been applied to the account;

c. That the account remains unpaid;

36. Hughes cannot prove the charges were just and true. Hughes charged $454,431.83, an amount in violation of the contract. The contract, Paragraph 2.) WORK DESCRIPTION, limited Hughes's maximum compensation to the "amount allowed by the insurance carrier", unless Hughes modified the work scope or invoked the termination clause. Hughes did not modify the work, and did not invoke the termination clause of the true and correct contract and has presented no evidence of such acts. Hughes is therefore limited to a maximum charge that is equal to the amount allowed by the insurance carrier. The amount allowed by the insurance carrier was $377,018.40. The maximum amount Hughes could charge $377,018.40. Hughes charged $454,431.83, Exhibit "12", (Hughes Schedule of Values). Hughes made unjust and false charges because he charged $77,413.43, more than maximum he agreed. Hughes's charges were not just and true and Hughes cannot remedy this defect.

37. Hughes cannot prove all lawful offsets, payments, and credits have been applied to the account. Mowdy was due lawful offsets, payments, and credits and Hughes failed to allow those offsets and credits.

38. Hughes cannot prove that he was not paid according to the CONTRACTOR's FEE terms of the true and correct contract. Mowdy has presented valid proof of payments, just offsets, and just credits, amounting to more than the maximum amount due to Hughes according to the paragraph 2 terms of the contract. Mowdy has proven that amount is in excess of the amount due under the paragraph 4 "CONTRACTOR's FEE" terms, Exhibit "12". Hughes promised to charge his actual costs plus 10% overhead and 10% profit and cannot prove that he was not paid that amount. Hughes cannot remedy this defect.

39. Hughes cannot prove the account remains unpaid. By terms of the written contract, Hughes agreed to a maximum compensation of $377,018.40. Allowing for just offsets and credits, Hughes was paid more than the maximum amount allowed by the contract. Hughes cannot remedy this defect.

D. Attorney Fees

40. Mowdy is entitled to reasonable and necessary attorney fees if they were incurred in the defense of this suit and attorney fees for appeal in the event of an appeal. Mowdy is a pro-se litigant and claims no attorney fees. However, Mowdy may elect to retain an attorney at any time and reserves all rights to attorney fees in that event.

E. Conclusion

41. Mowdy's evidence presents facts that show Hughes cannot prove the stated specific elements necessary for his causes. Adequate discovery time and efforts have been expended and additional time and efforts will not change the facts. Hughes would be required to prove those elements at trial and cannot do so. Hughes cannot remedy his element defects and Mowdy is therefore entitled to Texas Rules of Civil Procedure Rule 166a(i) summary judgment.

42. Mowdy asks for summary judgment on all issues, all claims, all theories of recovery, and all parties.

F. Prayer

43. For these reasons Mowdy asks the court to grant this motion and sign an order for final summary judgment.

Respectfully Submitted,

THOMAS C. MOWDY

1805 Carey Avenue

Taylor, TX 76574

(512) 565-1035

369

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