Reyelts v. Cross

968 F. Supp. 2d 835, 2013 U.S. Dist. LEXIS 105320, 2013 WL 3870285
CourtDistrict Court, N.D. Texas
DecidedJuly 26, 2013
DocketCivil Action No. 4:12-CV-0112-BJ
StatusPublished
Cited by9 cases

This text of 968 F. Supp. 2d 835 (Reyelts v. Cross) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reyelts v. Cross, 968 F. Supp. 2d 835, 2013 U.S. Dist. LEXIS 105320, 2013 WL 3870285 (N.D. Tex. 2013).

Opinion

Memorandum Opinion and Order and Findings of Fact and Conclusions of Law

JEFFREY L. CURETON, United States Magistrate Judge.

On April 23, 2013, the Court entered its Order Granting Plaintiffs’ Motion for Default Judgment and Setting Hearing on Damages and Denying Defendants’ Motion to Set Aside Clerk’s Entry of Default and Motion for Leave to File Amended Answer (“April 23 Order”), which such order is incorporated herein for all purposes. Pursuant to the notice given in the Court’s April 23 Order, this Court held a hearing on the issue of damages on May 28, 2013.

At the hearing on May 28, Plaintiffs Gerald and Beatriz Reyelts (“Gerald,” “Beatriz,” or collectively, “the Reyelts”) appeared in person and by and through their counsel of record, H. Dustin Fillmore III and Charles W. Fillmore of The Fillmore Law Firm. Defendants Cary Jay Cross and Cary Jay Cross, P.C. (“Cross Defendants”) appeared in person by and through Cary Jay Cross. Defendants Lon Smith & Associates Inc. and A-l Systems, Inc. d/b/a Lon Smith Roofing and Construction (“Lon Smith Defendants”) appeared by and through their counsel of record, Kathryn Shilling, and their corporate representative, Chief Executive Officer David Cox.1

After all parties made opening remarks, the Court heard evidence on the two remaining issues before the Court, namely, (1) the amount, if any, that would reasonably compensate Plaintiffs for their actual damages caused by Defendants’ unlawful conduct as already determined by the Court; and (2) the amount of Plaintiffs’ attorneys’ fees. With the Court having taken judicial notice of its file in this matter, Plaintiffs called three witnesses (Gerald, Beatriz, and their counsel H. Dustin Fillmore III), and the Court admitted without objection Plaintiffs’ Exhibits 1 though 14. Defendants called two witnesses (Cary Jay Cross and David Cox), and the Court admitted without objection Defendants’ Exhibits 1 and 2.

Pursuant to an order dated May 29, Plaintiffs submitted a proposed Final Judgment2 to the Court, which has not been objected to by the Defendants, and Defendants filed a trial brief on damages [doc. # 42] and objections to Plaintiffs’ attorneys’ fees [doc. #43]. The Court is now ready to enter its findings of fact and conclusions of law in this matter. A separate Final Judgment will be entered this same day.

Accordingly, the Court, after having considered, inter alia, the Clerk’s Entry of Default, the Court’s prior orders and docket in this matter, the evidence before the [839]*839Court, the arguments of counsel, and all law applicable thereto, is of the opinion and so finds that Plaintiffs are entitled to final judgment from and against Defendants as follows.

I. FINDINGS OF FACT

Accepting as true the well-pleaded facts in Plaintiffs’ First Amended Complaint, see Nishimatsu Constr. Co. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir.1975); see also Motley v. Rundle, 340 F.Supp. 807, 809 (E.D.Pa.1972), and the evidence adduced at the May 28 hearing, the Court finds as follows:

In or around May 2011, hail damaged the roof on the home of the Reyelts. Soon after, a representative of the Lon Smith Defendants visited the Reyelts’ home and offered their roofing services, including assessment of the damage to the Reyelts’ roof caused by the hail.

Beatriz is a 69-year-old, retired first grade school teacher who does not possess any special knowledge or expertise regarding assessing roof damage caused by hail or estimating the materials, services, and costs needed to repair such damage. At all times relevant to this matter, the Reyelts relied upon the Lon Smith Defendants’ knowledge and expertise to determine the extent of the repairs, if any, that were necessary to protect their roof from future damage and whether any proposed upgrades would be reasonable in light of the cost.

After assessing the damage to the roof, the Lon Smith Defendants recommended to Beatriz that the Reyelts replace the roof on their home. On June 27, 2011, Beatriz signed an “Agreement” that the Lon Smith Defendants had prepared and furnished to her that day. Beatriz signed the “Agreement” relying upon the Lon Smith Defendants’ representations, including the representations and promises set forth in the “Agreement.” A true and correct copy of the “Agreement” is attached to Plaintiffs’ First Amended Original Complaint as Exhibit A and was admitted into evidence at the May 28, 2013 hearing.

The “Agreement” provides, among other things, the following:

This Agreement is for FULL SCOPE OF INSURANCE ESTIMATE AND UPGRADES and is subject to insurance company approval. By signing this agreement homeowner [the Reyelts] authorizes Lon Smith Roofing and Construction (“LSRC”) to pursue homeowners[’] best interest for all repairs, at a price agreeable to the insurance company and LSRC, and at NO ADDITIONAL COST TO HOMEOWNER EXCEPT THE INSURANCE DEDUCTIBLE AND UPGRADES. The final price agreed to between the insurance company and LSRC shall be the final contract price.

By signing the “Agreement,” Beatriz purportedly authorized the following: “I hereby authorize my insurance company and/or mortgage company to make payment for completed repairs directly to LSRC and mail directly to same.”

At all times relevant to this cause, the Lon Smith Defendants were aware that the Reyelts’ roof was covered by a homeowners insurance policy insured by Farmers Insurance Group (“Farmers”), which insured the Reyelts’ property for losses caused by events such as hail. The Lon Smith Defendants, as part of their practice and routine in the roofing construction business, were experienced and knowledgeable in working with various insurance carriers to secure payment for their services from clients’ homeowners insurance policies.

Beatriz was not experienced or sophisticated in terms of knowing how to secure [840]*840Farmers’ agreement to pay the Lon Smith Defendants for the roof repairs that the Lon Smith Defendants had said were necessary. By signing the “Agreement,” Beatriz reasonably believed that she had authorized the Lon Smith Defendants to act on the Reyelts’ behalf in coming to an agreement with Farmers concerning the price Farmers would pay for the repairs to the Reyelts’ roof. By signing the “Agreement,” Beatriz reasonably believed that she had authorized Farmers to make payment for completed repairs directly to the Lon Smith Defendants. The “Agreement” purported to give the Lon Smith Defendants, in exchange for compensation, the authority and obligation to act on behalf of the Reyelts in negotiating for or effecting the settlement of a claim for the loss or damage to the Reyelts’ roof under the Farmers’ homeowners insurance policy covering their home.

On June 27, 2011, the day Beatriz signed the “Agreement” with the Lon Smith Defendants, Chris Cook (“Cook”), a representative of the Lon Smith Defendants, was present in the Reyelts’ home. In all of his dealings with Beatriz, Cook was acting in the course and scope of his employment for the Lon Smith Defendants. While present in the Reyelts’ home, Cook requested Beatriz to call her Farmers agent and request a claim number.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
968 F. Supp. 2d 835, 2013 U.S. Dist. LEXIS 105320, 2013 WL 3870285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reyelts-v-cross-txnd-2013.