Levco Construction, Inc. v. Cleveland Construction Inc.Whole Foods Market, Inc.

Opinion

ACCEPTED 01-15-00620-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 9/21/2015 4:18:46 PM CHRISTOPHER PRINE CLERK

NO. 10-15-00620 - CV

IN THE COURT OF APPEALS FILED IN 1st COURT OF APPEALS FOR THE 1ST JUDICIAL DISTRICT OF TEXASHOUSTON, TEXAS AT HOUSTON 9/21/2015 4:18:46 PM CHRISTOPHER A. PRINE Clerk LEVCO CONSTRUCTION, INC. Appellant,

v. CLEVELAND CONSTRUCTION, INC. and WHOLE FOODS MARKET, INC. Appellees.

FROM THE 270TH JUDICIAL DISTRICT COURT OF HARRIS COUNTY, TEXAS

APPELLANT’S NOTICE OF INDIGENCE AND FOR EXTENSION OF TIME

Gregory N. Jones SBN 10889450 Law Office of Gregory N. Jones 2323 S. Shepherd, 14th Fl. Houston, Texas 77019 (713) 979-4691 (713) 979-4440- fax Counsel for Appellant Proper notice of appeal has been filed by Appellant Levco, Plaintiff in

the case below, and Appellee Whole Foods, a Defendant below. This Court

is currently awaiting the trial and reporter's record, the cost for which is in

excess of $23,000. As established by the affidavit attached hereto,

Appellant Levco does not have the resources to pay the costs associated

with the record. Which has necessitated the filing of this notice of indigence.

If necessary, Levco includes with this notice a request for extension of time

in order to deal with the issue.

BACKGROUND FACTS 1. This case relates to the construction of a Whole Foods Market in

that was completed in mid-2012. On May 10, 2010, CCI, the general

contractor, and Whole Foods, the owner of the project, entered into a general

construction contract.

2. Levco and CCI thereafter entered into a subcontract in which

Levco agreed to perform certain tasks relating to the construction of the

project. The project was delayed by nearly a year as a result of incomplete

and inaccurate plans and specifications, among other things. Consequently,

Levco was not paid for its additional work performed on the project, which

ultimately led to this litigation and Levco's failure as an on-going enterprise. 2 Accordingly, Levco is unable to pay any portion of the costs associated with

this appeal and has been forced to file this notice of indigency in order to

continue its appeal.

PRAYER/RELIEFREQUESTED

For the foregoing reasons, appellant Levco requests that this Court

take notice of its financial situation, issue a thirty (30) day extension of the

deadlines to file briefs, if necessary, and such other relief to which it

determines the parties are entitled.

Respectfully submitted, LAW OFFICE OF GREGORY N. JONES

/s/ Gregory N. Jones Gregory N.Jones 2323 S. Shepherd, 14th Fl. Houston, Texas 77019 (713) 979-4691 (713) 979-4440 - fax gjones@gnjlaw.net Counsel for Appellant

3 CERTIFICATE OF CONFERENCE

I certify to the Court that I have conferred with counsel for Appellee Whole Foods who indicated that it is opposed to the relief sought by this motion.

/s/ Gregory N. Jones

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing document has been electronically

served on all counsel of record on September 21st, 2015.

4 AFFIDAVIT OF LUKE SONSEL

STATE OF TEXAS § § COUNTY OF HARRIS §

BEFORE ME, the undersigned authority, on this day personally appeared Luke Sonsel,

who, upon being sworn, did depose and state as follows:

1. "My name is Luke Sonsel. I am over twenty-one years of age. I am of sound mind and am competent and capable of making this Affidavit. I have obtained personal knowledge of the facts set forth herein, all of which are true and correct.

2. I was the president of Levco Construction, Inc., a Texas corporation, at the time it was in business. Levco was a constmction company that 9perated in Texas as a subcontractor on commercial projects. Levco never had any individuals or affiliates that conducted operations on its behalf.

3. During the pendency of the suit between Levco and Cleveland Construction, Inc. and Whole Foods Market, Inc., Levco ran out of money and ceased operations. Levco has not been an operating entity since 2013 and has no assets. Levco, is now a defunct company and has no funds or assets to pay for expenses of liti atio or an appeal.

Further, affiant sayeth not."

SUBSCRIBED AND SWORN TO before me, on this the day of September, 2015, witness my hand and seal of office.

(;;/uLeUJ NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS

/Jl''f5} CATHERINE LEAVELL TABOR \ ]ir,J•l MV COMMIS ION EXPIFIES . '•i'l,f.Nr.;.l' FEBRUARY 25,:Z018