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Filed: 7/25/2019 10:02 PM

Dana DeBeauvoir
Travis County Clerk
C-1-CV-19-006182
Cause No. ____________________ C-1-CV-19-006182
Erica Sanchez

DR. JOE HENRY RODRIGUEZ § IN THE COUNTY COURT


AND §
JOALLISON RODRIGUEZ, §
§
Plaintiffs §
v. § 1
§ COURT AT LAW ________
RESTORATION KING OF §
AMERICA LLC §
§
Defendant § TRAVIS COUNTY, TEXAS

ORIGINAL PETITION OF RODRIGUEZ V. RESTORATION KING

TO THE HONORABLE JUDGE:

Plaintiffs, Dr. Joe Henry Rodriguez and Mrs. JoAllison Rodriguez bring this

suit against Restoration King of America LLC whose president is Mike Erhardt and

allege as follows: Fraud, violation of the Deceptive Trade Practices Act, and breach

of contract.

A. DISCOVERY-CONTROL PLAN

1. Rodriguez intends to conduct discovery under Level 1 of Texas Rule of Civil

Procedure 190.2, and affirmatively pleads that this suit falls under the expedited

actions process of Texas Rule of Civil Procedure 169 because Rodriguez requests

monetary relief under $100,000.

B. RELIEF

2. Rodriguez seeks monetary relief of $99,000. Specifically, Rodriguez seeks

monetary relief for property damage, money taken for a service that was not

actually provided, and for fraud committed. Rodriguez also seeks recovery of

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reasonable attorney’s fees, exemplary damages, mental anguish, pre-judgment

interest, costs of court, and any other and further relief the Court deems just and

proper.

C. PARTIES

3. Rodriguez is an individual residing in Travis County at 20809 Meridian

Blvd, Pflugerville, TX 78660.

4. Restoration King of America is a company residing at 1106 Hollybrook

Cove, Cedar Park TX 78613. The registered agent is Michael Erhardt. The company

may be served by serving Erhardt.

D. JURISDICTION

5. The amount of damages sought in this suit are within the jurisdictional

limits of this Court.

6. The Court has personal jurisdiction over and Restoration King because it

resides within the State of Texas.

E. VENUE

7. Venue is proper in Travis County because the fraud and breach of contract

all concern a residential home located in whole within the State of Texas, Travis

County.

F. STATEMENT OF FACTS

8. The Rodriguez family lives in a 1 ½ story house consisting of Dr. Joe

Rodriguez, Mrs. JoAllison Rodriguez, and their 4 sons. On July 28, 2017, the

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Rodriguez family came home to discover the water heater that was located in the

upstairs attic had burst and their home was flooded.

9. Because of this incident, the Rodriguez family received some insurance

proceeds to hire a company to renovate the home. Due to the extensive damage in

the home, the Rodriguez family moved into an apartment complex in Hutto where

the six of them had to make do while waiting for their home to be repaired.

10. Recommended by a friend, Dwight McDuffie was introduced to the

Rodriguez family as someone that operated Restoration King of America. McDuffie

scheduled a time to inspect the home and that is when Erhardt first appeared.

Erhardt was the primary point of contact from this point forward and McDuffie was

only heard from one other time. McDuffie is not a party to this suit.

11. Erhardt made many false promises and took a payment of $8,000 up front

from Rodriguez. The upfront payment, which was a much higher percentage than

the standard deposit in the contracting world, was supposed to be to work on

restoring the water damaged home.

12. Restoration King hired subcontractors to work on the house, but they

were not experienced. This was not disclosed to the Rodriguez family upfront. The

subcontractors damaged much of the house and failed to do the work. The new

damage created by Restoration King in the house includes paint and texture on the

blinds and the cords of the custom blinds, paint and texture all over the ceiling fans,

all of the light fixtures, outlets and plugs, switch covers and walls damaged and not

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textured properly, vandalism in the house by the subcontractors, paint on carpet on

the stairs, the wood flooring being installed improperly, and much more.

13. The carpeting that Rodriguez paid for was never ordered despite Erhardt

saying he ordered it and that it was at the shop. Erhardt specifically and

intentionally committed fraud and lied to Rodriguez about ordering the supplies

with the money Erhardt was given.

14. Erhardt has claimed that he has earned all of the money he was given up

front, despite not doing the job. Erhardt never saw the horrid shape the home was

left in, nor did Erhardt provide many of the materials that were paid for, including

the carpet. Erhardt never returned to the home to check on the status.

15. Shortly after beginning on the Rodriguez house, Erhardt got a much

larger contract and pulled all of his subcontractors off of the Rodriguez job. No work

was done for months, until the Rodriguez family finally fired Erhardt.

16. Unfortunately, the Rodriguez family was forced to move back in to their

home, because their lease on the temporary apartment was up after nearly four

months. The Rodriguez family of 6 lived between one upstairs bedroom and a

hallway within their damaged home for many months until they could slowly get

their home repaired enough to spread out into more than the one bedroom.

17. Restoration King had from July 2017 until November 2017 to fix the

house, and there was less than two days’ worth of work performed on the job. The

second subcontractors informed Rodriguez that Erhardt was pulling them off the job

to go work on other jobs.

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18. To date, Restoration King has not repaid Rodriguez so that Rodriguez can

hire someone else to finish the job. Rodriguez received multiple quotes in the realm

of $10,000+ just to get the house back to livable conditions. When the news (KVUE

Defenders) interviewed Erhardt about this situation, Erhardt promised to refund

the Rodriguez family to make things at least somewhat right. A full refund would

not have covered the costs of the repairs needed and damage done, but it would

have been a start. Erhardt did not follow through with this promise.

19. As of the filing of this suit nearly two years later, the Rodriguez home is

still not repaired.

G. COUNT 1 – COMMON LAW FRAUD

20. In order to prove fraud, a plaintiff must show that (1) the defendant made

a material representation that was false, (2) the defendant knew the representation

was false or made it recklessly as a positive assertion without any knowledge of its

truth, (3) the defendant intended to induce the plaintiff to act upon the

representation, and (4) the plaintiff actually and justifiably relied on the

representation, which caused the injury. Ernst & Young, L.L.P. v. Pac. Mut. Life

Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001). Here, Restoration King through Erhardt

represented that the home would be repaired to a livable condition. Erhardt

represented that the carpet had been paid for, and that Erhardt would actually

perform the repairs listed in the contract estimate. Erhardt knew these

representations were false. Erhardt intended for Rodriguez to act upon this

representation. Rodriguez did in fact actually and justifiably rely on these

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representations in deciding to hire Erhardt to repair the home. Because Rodriguez

relied on the representations of Erhardt, Rodriguez was harmed.

H. COUNT 2 – VIOLATION OF THE TEXAS DECEPTIVE TRADE

PRACTICES ACT

21. The elements of a DTPA claim are: The plaintiff must be a consumer, the

defendant must have committed one of the prescribed acts under the DTPA, and the

defendant's actions must have been the producing cause of the plaintiff's harm.

(Texas Business and Commerce Code 17.50). Consumer is defined as an individual,

partnership, corporation, this state, or a subdivision or agency of this state who

seeks or acquires by purchase or lease, any goods or services, except that the term

does not include a business consumer that has assets of $25 million or more, or that

is owned or controlled by a corporation or entity with assets of $25 million or more.

(Texas Business and Commerce Code 17.45(4)). Here, the Rodriguez’s are

individuals who sought to acquire by purchase a home. Therefore, they are

consumers under the DTPA. The Rodriguez’s are not exempt business consumers

within this definition. Restoration King through Erhardt committed one or more of

the acts under the DTPA. Erhardt represented that goods or services were of a

particular standard, quality, or grade, when they were in fact of no quality at all.

(Id. At 17.46(7)). Erhardt also advertised services with intent not to sell them as

advertised. (Id. At 17.46(9)). Erhardt also represented that work or services had

been performed on the home when the work or services were not performed on the

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home. (Id. At 17.46(22)). Erhardt committed these acts intentionally as that term is

used in Texas Business and Commerce Code 17.45(13).

I. COUNT 3 – BREACH OF CONTRACT

22. The elements of a breach of contract claim are: 1) existence of a valid

contract; 2) performance or tendered performance by the plaintiff; 3) material

breach by the defendant; and 4) damages sustained by the plaintiff as a result of

that breach. Paragon Gen. Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876,

882 (Tex. App. – Dallas 2007, no pet.) Here, there was a contract between

Restoration King through Erhardt and the Rodriguez’s for the repair of their home.

The Rodriguez’s tendered a check for $8,000 for the repairs. Erhardt failed to

actually repair the home or to competently perform the majority of the work. To

date, the home is still in disrepair.

J. JURY TRIAL DEMAND

23. Rodriguez respectfully demands a jury trial at this time.

K. PRAYER

24. For these reasons, Rodriguez asks that the Court issue citation for

Restoration King of America to appear and answer, and that Rodriguez be awarded

a judgment for the following:

a. Fraud;

b. Violation of the Texas DTPA;

c. Breach of Contract;

d. Exemplary damages;

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e. Mental anguish damages;

f. Reasonable attorney’s fees;

g. Pre-judgment and post-judgment interest;

h. Costs of court; and

i. Any other and further relief the Court deems just and proper.

Dated: July 25, 2019. Respectfully Submitted,

Eric Hulin
Texas Bar No. 24093881
Hulin Law, PLLC
Attorney for Plaintiff
Mailing Address:
PO Box 782
Hutto, TX 78634
Eric@Hulinlaw.com
(512) 590-9427 (Phone)
(737) 200-7254 (Fax)