Preview
FILED
4/24/2024 9:42 AM
FELICIA PITRE
DISTRICT CLERK
3 CIT/ES DALLAS CO., TEXAS
Dominique Gadberry DEPUTY
DC-24-05962
CAUSE NO.
U.S. LIME & MINERALS, INC. D/B/A U.S. § IN THE DISTRICT COURT OF
LIME COMPANY D/B/A TEXAS LIME
COMPANY
eae DALLAS COUNTY, TEXAS
BUDTIME, LLC, FRANCISCO TORRES,
INDIVIDUALLY AND PHILADELPHIA 116th
INDEMNITY INSURANCE COMPANY JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION
Plaintiff, U.S. LIME & MINERALS, INC. D/B/A U.S. LIME COMPANY
D/B/A TEXAS LIME COMPANY, files this Original Petition against Defendants,
BUDTIME, LLC, FRANCISCO TORRES, Individually, and PHILADELPHIA
INDEMNITY INSURANCE COMPANY and would show the Court as follows:
PARTIES
1 Plaintiff, U.S. LIME & MINERALS, INC. D/B/A U.S. LIME
COMPANY D/B/A TEXAS LIME COMPANY (“U.S. Lime Company”), is a Delaware
corporation, registered to do business in Texas.
2. Defendant, BUDTIME, LLC (“Budtime’”), is a Texas limited liability
company and may be served with process by serving its registered agent for service:
Thomas McMurray
109 South Woodrow Lane, Suite 700
Denton, Texas 76205
or by serving any manager, member, or corporate officer of Budtime (wherever they
may be found) or the Secretary of the State of Texas.
4878-9886-8407, v. 1
2756.89
3. Defendant, FRANCISCO TORRES, (“Mr. Torres”) is a Texas resident
and he may be served with process by serving him at the following address:
4923 Crooked Lane
Dallas, Texas 75229
or wherever he may be found.
3 Defendant, PHILADELPHIA INDEMNITY INSURANCE COMPANY
(‘Philadelphia Indemnity”), is a foreign insurance company authorized to do
business within the State of Texas. Philadelphia Indemnity can be served through
its registered agent for service:
CT Corporation System
1999 Bryan Street, Suite 900
Dallas, Texas 75201-3136
or by serving any corporate officer of Philadelphia Indemnity wherever they may be
found.
JURISDICTION/VENUE
4 This Court has personal and subject matter jurisdiction over the
dispute and the parties. Venue is proper in Dallas County, Texas, as all of the
events and occurrences giving rise to Plaintiff's causes of action occurred in Dallas
County, Texas and venue is mandatory in Dallas County, Texas pursuant to TEXAS
GOVERNMENT CODE Section 2253.001 et. seq.
5 Plaintiff seeks only monetary relief of $250,000 or less. TEXAS RULES
OF CIVIL PROCEDURE 47(c)(1).
4878-9886-8407, v. 1
7323.1
6 Venue is proper in Dallas County, Texas pursuant to Sections
15.002(a)(2) and (3) of the TEXAS CIVIL PRACTICE & REMEDIES CODE and Budtime
agreed to venue in Dallas County per the terms of the credit agreement and a
portion Plaintiffs claims involve real property in Dallas County, Texas.
BACKGROUND
7 U.S. Lime Company is a commercial and residential lime and lime
slurry materials supplier with branch locations throughout the State of Texas. U.S.
Lime Company furnished construction materials to Budtime in connection with the
Dalview Estates project, located Dallas, Dallas County, Texas (herein referred to as
the “Project”).
8. U.S. Lime Company sold materials to Budtime for the Project pursuant
to an application for credit between U.S. Lime Company and Budtime (the
“Agreement”). A true and correct copy of the Agreement is attached hereto as
Exhibit A and incorporated herein by reference.
9. Budtime, as principal, and Philadelphia Indemnity, as surety,
executed a payment bond guaranteeing prompt payment in full to all claimants who
provided labor and/or materials related to the Project and who properly perfected a
claim (the “Bond”). Budtime failed to pay U.S. Lime Company. After the
application of payments, U.S. Lime Company has perfected a claim on the Bond in
the amount of $12,948.56, pursuant to TEXAS GOVERNMENT CODE Section 2253.001
et. seq. Despite this, Budtime and Philadelphia Indemnity have failed to pay U.S.
Lime Company’s perfected claim against the Bond.
4878-9886-8407, v. 1
7323.1
10. After all just and lawful offsets, payments, and credits have been
allowed, U.S. Lime Company remains unpaid in the total principal amount of
$12,948.56 for the materials it provided to Defendants and the Project, which is the
basis for its claims against Defendants and the Project.
FIRST CAUSE OF ACTION:
Sworn ACCOUNT
11. U.S. Lime Company furnished materials to Budtime, which are more
specifically described in the statement of account attached as Exhibit B-1 to the
Affidavit of Richard Fowler, CBF, U.S. Lime Company’s Credit Manager. The
Affidavit of Richard Fowler, CBF is attached as Exhibit B and incorporated herein
by reference.
12. In consideration of such sales, upon which a systematic record has
been kept, Budtime promised and became bound and liable to pay U.S. Lime
Company the principal amount of Twelve Thousand Nine Hundred Forty-Eight and
56/100 Dollars ($12,948.56), the total of the prices charged and agreed upon as
indicated on the account statement attached in Exhibit B-1 to the Affidavit of
Richard Fowler, CBF for the materials and the reasonable market value of the
materials.
13. Despite U.S. Lime Company’s demand for payment, Budtime has
refused to pay the amounts owed to U.S. Lime Company represented by the sworn
account. After all offsets and credits, $12,948.56 remains due and owing to U.S.
Lime Company on the sworn account.
4878-9886-8407, v. 1
7323.1
SECOND CAUSE OF ACTION:
BREACH OF FIDUCIARY DUTY, BREACH OF TRUST
14. Upon information and belief, payments made to Budtime by its
customers for the Project constitute construction trust funds under TEX. PROP. CODE
§ 162.001, et seg., otherwise known as the Texas Construction Trust Fund Statute.
Any payments or funds retained by Budtime and its officers and/or directors for the
materials U.S. Lime Company furnished to Budtime and the Project constitute
construction trust funds under TEX. PROP. CODE § 162.001, et seq. Budtime and its’
officers and/or directors are trustees of the construction trust funds and U.S. Lime
Company is a beneficiary of such trust funds. Budtime and its officers and directors
have misapplied said trust funds by knowingly, intentionally, and with the intent to
defraud, retaining these trust funds and refusing to pay them to U.S. Lime
Company.
15. Budtime and Mr. Torres are liable to U.S. Lime Company for
misapplication of these trust funds and for breach of their statutory duties to U.S.
Lime Company. U.S. Lime Company seeks the recovery of all trust funds
wrongfully retained by Budtime and Mr. Torres, Individually, plus exemplary
damages for the breach of their statutory fiduciary duties as trustees to U.S. Lime
Company.
THIRD CAUSE OF ACTION:
VIOLATION OF THE PROMPT Pay ACT
16. Budtime’s failure to timely pay U.S. Lime Company within 7 days after
Budtime received payment for the materials U.S. Lime Company furnished to
4878-9886-8407, v. 1
7323.1
Budtime and the Project violate Chapter 28 of the TEXAS PROPERTY CODE, otherwise
known as the “Prompt Pay Statute.” As a result, U.S. Lime Company is entitled to
recover interest on its unpaid invoices in the amount of one and one-half percent
(1.5%) per month or eighteen percent (18%) per annum from the date payment was
due.
FOURTH CAUSE OF ACTION:
BREACH OF CONTRACT
17. As stated above, Philadelphia Indemnity provided a payment bond for
Budtime in connection with the Project. U.S. Lime Company properly perfected a
claim against the Bond in the amount of $12,948.56, by timely sending notice of
unpaid materials it supplied to Budtime and to the Project. Budtime and
Philadelphia Indemnity have breached their obligations under the bond by failing
and refusing to pay U.S. Lime Company’s claim, despite repeated demands for the
payment by U.S. Lime Company. Budtime and Philadelphia Indemnity are jointly
and severally liable to U.S. Lime Company for the amount of $12,948.56, plus
interest and attorney’s fees.
18. All conditions precedent have been performed, have occurred, have
been satisfied, or have been waived in order for U.S. Lime Company to recover on
its suit against the bond provided by Philadelphia Indemnity.
ATTORNEY FEES, COSTS AND INTEREST
19. U.S. Lime Company is entitled to recover its attorneys’ fees from
Defendants, Budtime and Mr. Torres pursuant to Chapter 38 of the TEXAS CIVIL
4878-9886-8407, v. 1
7323.1
PRACTICES & REMEDIES CODE, Chapter 28 of the TEXAS PROPERTY CODE and the
Agreement.
20. U.S. Lime Company is entitled to recover contractual interest at a rate
of eighteen percent (18%) per annum from Defendants, Budtime and Mr. Torres,
pursuant to the Agreement.
21. U.S. Lime Company is also entitled to recover post-judgment interest
at the rate of eight and one-half percent (8.50%) per annum or the highest legal rate
from Defendants pursuant to applicable Texas law.
22. U.S. Lime Company is further entitled to recover statutory penalty
interest under Chapter 28 of the TEXAS PROPERTY CODE.
CONDITIONS SATISFIED
23. Pursuant to TEXAS RULE OF CIVIL PROCEDURE 54, U.S. Lime Company
pleads that all conditions precedent to the recovery of U.S. Lime Company’s
damages, including recovery of its attorneys’ fees, have occurred or been performed,
if not waived or otherwise excused.
PRAYER
For these reasons, Plaintiff, U.S. LIME & MINERALS, INC.
D/B/A U.S. LIME COMPANY D/B/A TEXAS LIME COMPANY asks that
Defendants, BUDTIME, LLC, FRANCISCO TORRES, Individually, and
PHILADELPHIA INDEMNITY INSURANCE COMPANY, be cited to appear and
answer and that Plaintiff have judgment against Defendants for:
a) All of Plaintiff's damages in the principal amount of $12,948.56;
4878-9886-8407, v. 1
7323.1
b) Contractual Interest pursuant to the Agreement at rate of 18%
per annum or the highest maximum legal rate as to Defendants,
Hutchinson Construction and Mr. Hutchinson;
°) Statutory penalty interest in the amount of 18% per annum
under Chapter 28 of the TEXAS PROPERTY CODE as to Budtime
and Mr. Torres;
dy Pre-judgment interest at the rate of eights and one-half percent
(8.50%) or the maximum amount as allowed by law as to
Philadelphia Indemnity;
e) Post-judgment interest at rate of eight and one-half percent
(8.50%) per annum or the highest maximum legal rate;
Court and all appellate courts;
8) All costs of court;
h) Collection costs; and
i) All other relief which Plaintiff may show itself to be justly
entitled at law or in equity.
Respectfully submitted,
ANDREWS MYERS, P.C.
By:
W. JASON WALKER
State Bar No. 00798568
JWalker@andrewsmyers.com
1885 Saint James Place, 15% Floor
Houston, Texas 77056
713-850-4200 — Telephone
713-850-4211 — Facsimile
ATTORNEYS FOR PLAINTIFF
U.S. LIME & MINERALS, INC. D/B/A U.S.
LIME COMPANY D/B/A TEXAS LIME
COMPANY
4878-9886-8407, v. 1
7323.1
CAUSE NO.
U.S. LIME & MINERALS, INC. D/B/A U.S. IN THE DISTRICT COURT OF
LIME COMPANY D/B/A TEXAS LIME
COMPANY
eae DALLAS COUNTY, TEXAS
BUDTIME, LLC, FRANCISCO TORRES,
INDIVIDUALLY AND PHILADELPHIA
INDEMNITY INSURANCE COMPANY JUDICIAL DISTRICT
EXHIBIT A
APPLICATION FOR CREDIT AGREEMENT
4878-9886-8407, v. 1
7323.1
CAUSE NO.
U.S. LIME & MINERALS, INC. D/B/A U.S IN THE DISTRICT COURT OF
LIME COMPANY D/B/A TEXAS LIME
COMPANY
eae DALLAS COUNTY, TEXAS
BUDTIME, LLC, FRANCISCO TORRES,
INDIVIDUALLY AND PHILADELPHIA
INDEMNITY INSURANCE COMPANY JUDICIAL DISTRICT
EXHIBIT B
AFFIDAVIT OF RICHARD FOWLER, CBF
4878-9886-8407, v. 1
7323.1
CAUSE NO.
U.S. LIME & MINERALS, INC. D/B/A U.S IN THE DISTRICT COURT OF
LIME COMPANY D/B/A TEXAS LIME
COMPANY
eae DALLAS COUNTY, TEXAS
BUDTIME, LLC, FRANCISCO TORRES,
INDIVIDUALLY AND PHILADELPHIA
INDEMNITY INSURANCE COMPANY JUDICIAL DISTRICT
AFFIDAVIT OF RICHARD FOWLER, CBF
STATE OF TEXAS §
§
COUNTY OF DALLAS §
BEFORE ME, on this day personally appeared Richard Fowler, CBF, known
to me, and who being duly sworn upon oath deposed and said:
1 “My name is Richard Fowler, CBF. I am the Credit Manager
of U.S. LIME & MINERALS, INC. D/B/A U.S. LIME
COMPANY D/B/A TEXAS LIME COMPANY (“U.S. Lime
Company”) and I am authorized and competent to make this
affidavit. Through my position as Credit Manager of U.S.
Lime Company, I have personal knowledge of the facts stated
herein and they are true and correct.
U.S. Lime Company’s claims against Budtime and Mr. Torres
(“Defendants”) as stated in its Petition in the above-
referenced matter arise out of business transactions in Texas,
between Defendants and U.S. Lime Company and upon
which a systematic record has been kept. I am familiar with
indebtedness to U.S. Lime Company. Attached to this
Affidavit as Exhibit B-1 is a statement of account sent to
Defendants by U.S. Lime Company reflecting such
indebtedness.
The amount is just. The prices charged by U.S. Lime
Company were charged in accordance with an agreement
4878-9886-8407, v. 1
7323.1
between U.S. Lime Company and Defendants or, absent such
agreement, are the usual, customary and reasonable prices
for such goods. After all just and lawful offsets, payments,
and credits have been allowed, the sum of $12,948.56, plus
interest accruing at the highest legal rate, is due, owing and
unpaid.”
RICHARD FOWLER, CBF
SUBSCRIBED AND SWORN TO, BEFORE ME, by Richard Fowler, CBF, on
this day of April, 2024.
NOTARY PUBLIC, STATE OF TEXAS
4878-9886-8407, v. 1
7323.1
CAUSE NO.
U.S, LIME & MINERALS, INC. D/B/A U.S IN THE DISTRICT COURT OF
LIME COMPANY D/B/A TEXAS LIME
COMPANY
aes DALLAS COUNTY, TEXAS
BUDTIME, LLC, FRANCISCO TORRES,
INDIVIDUALLY AND PHILADELPHIA
INDEMNITY INSURANCE COMPANY JUDICIAL DISTRICT
EXHIBIT B-1
STATEMENT OF ACCOUNT
4878-9886-8407, v. 1
7323.1
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Stephanie Rodriguez on behalf of William Walker
Bar No. 798568
srodriguez@andrewsmyers.com
Envelope ID: 86998214
Filing Code Description: Original Petition
Filing Description:
Status as of 4/29/2024 12:05 PM CST
Case Contacts
Name BarNumber | Email TimestampSubmitted | Status
Stephanie Rodriguez srodriguez@andrewsmyers.com | 4/24/2024 9:42:52 AM | SENT
William J.Walker jwalker@andrewsmyers.com 4/24/2024 9:42:52 AM | SENT
Preview
FILED 4/24/2024 9:42 AM FELICIA PITRE DISTRICT CLERK 3 CIT/ES DALLAS CO., TEXAS Dominique Gadberry DEPUTY DC-24-05962 CAUSE NO. U.S. LIME & MINERALS, INC. D/B/A U.S. § IN THE DISTRICT COURT OF LIME COMPANY D/B/A TEXAS LIME COMPANY eae DALLAS COUNTY, TEXAS BUDTIME, LLC, FRANCISCO TORRES, INDIVIDUALLY AND PHILADELPHIA 116th INDEMNITY INSURANCE COMPANY JUDICIAL DISTRICT PLAINTIFF’S ORIGINAL PETITION Plaintiff, U.S. LIME & MINERALS, INC. D/B/A U.S. LIME COMPANY D/B/A TEXAS LIME COMPANY, files this Original Petition against Defendants, BUDTIME, LLC, FRANCISCO TORRES, Individually, and PHILADELPHIA INDEMNITY INSURANCE COMPANY and would show the Court as follows: PARTIES 1 Plaintiff, U.S. LIME & MINERALS, INC. D/B/A U.S. LIME COMPANY D/B/A TEXAS LIME COMPANY (“U.S. Lime Company”), is a Delaware corporation, registered to do business in Texas. 2. Defendant, BUDTIME, LLC (“Budtime’”), is a Texas limited liability company and may be served with process by serving its registered agent for service: Thomas McMurray 109 South Woodrow Lane, Suite 700 Denton, Texas 76205 or by serving any manager, member, or corporate officer of Budtime (wherever they may be found) or the Secretary of the State of Texas. 4878-9886-8407, v. 1 2756.89 3. Defendant, FRANCISCO TORRES, (“Mr. Torres”) is a Texas resident and he may be served with process by serving him at the following address: 4923 Crooked Lane Dallas, Texas 75229 or wherever he may be found. 3 Defendant, PHILADELPHIA INDEMNITY INSURANCE COMPANY (‘Philadelphia Indemnity”), is a foreign insurance company authorized to do business within the State of Texas. Philadelphia Indemnity can be served through its registered agent for service: CT Corporation System 1999 Bryan Street, Suite 900 Dallas, Texas 75201-3136 or by serving any corporate officer of Philadelphia Indemnity wherever they may be found. JURISDICTION/VENUE 4 This Court has personal and subject matter jurisdiction over the dispute and the parties. Venue is proper in Dallas County, Texas, as all of the events and occurrences giving rise to Plaintiff's causes of action occurred in Dallas County, Texas and venue is mandatory in Dallas County, Texas pursuant to TEXAS GOVERNMENT CODE Section 2253.001 et. seq. 5 Plaintiff seeks only monetary relief of $250,000 or less. TEXAS RULES OF CIVIL PROCEDURE 47(c)(1). 4878-9886-8407, v. 1 7323.1 6 Venue is proper in Dallas County, Texas pursuant to Sections 15.002(a)(2) and (3) of the TEXAS CIVIL PRACTICE & REMEDIES CODE and Budtime agreed to venue in Dallas County per the terms of the credit agreement and a portion Plaintiffs claims involve real property in Dallas County, Texas. BACKGROUND 7 U.S. Lime Company is a commercial and residential lime and lime slurry materials supplier with branch locations throughout the State of Texas. U.S. Lime Company furnished construction materials to Budtime in connection with the Dalview Estates project, located Dallas, Dallas County, Texas (herein referred to as the “Project”). 8. U.S. Lime Company sold materials to Budtime for the Project pursuant to an application for credit between U.S. Lime Company and Budtime (the “Agreement”). A true and correct copy of the Agreement is attached hereto as Exhibit A and incorporated herein by reference. 9. Budtime, as principal, and Philadelphia Indemnity, as surety, executed a payment bond guaranteeing prompt payment in full to all claimants who provided labor and/or materials related to the Project and who properly perfected a claim (the “Bond”). Budtime failed to pay U.S. Lime Company. After the application of payments, U.S. Lime Company has perfected a claim on the Bond in the amount of $12,948.56, pursuant to TEXAS GOVERNMENT CODE Section 2253.001 et. seq. Despite this, Budtime and Philadelphia Indemnity have failed to pay U.S. Lime Company’s perfected claim against the Bond. 4878-9886-8407, v. 1 7323.1 10. After all just and lawful offsets, payments, and credits have been allowed, U.S. Lime Company remains unpaid in the total principal amount of $12,948.56 for the materials it provided to Defendants and the Project, which is the basis for its claims against Defendants and the Project. FIRST CAUSE OF ACTION: Sworn ACCOUNT 11. U.S. Lime Company furnished materials to Budtime, which are more specifically described in the statement of account attached as Exhibit B-1 to the Affidavit of Richard Fowler, CBF, U.S. Lime Company’s Credit Manager. The Affidavit of Richard Fowler, CBF is attached as Exhibit B and incorporated herein by reference. 12. In consideration of such sales, upon which a systematic record has been kept, Budtime promised and became bound and liable to pay U.S. Lime Company the principal amount of Twelve Thousand Nine Hundred Forty-Eight and 56/100 Dollars ($12,948.56), the total of the prices charged and agreed upon as indicated on the account statement attached in Exhibit B-1 to the Affidavit of Richard Fowler, CBF for the materials and the reasonable market value of the materials. 13. Despite U.S. Lime Company’s demand for payment, Budtime has refused to pay the amounts owed to U.S. Lime Company represented by the sworn account. After all offsets and credits, $12,948.56 remains due and owing to U.S. Lime Company on the sworn account. 4878-9886-8407, v. 1 7323.1 SECOND CAUSE OF ACTION: BREACH OF FIDUCIARY DUTY, BREACH OF TRUST 14. Upon information and belief, payments made to Budtime by its customers for the Project constitute construction trust funds under TEX. PROP. CODE § 162.001, et seg., otherwise known as the Texas Construction Trust Fund Statute. Any payments or funds retained by Budtime and its officers and/or directors for the materials U.S. Lime Company furnished to Budtime and the Project constitute construction trust funds under TEX. PROP. CODE § 162.001, et seq. Budtime and its’ officers and/or directors are trustees of the construction trust funds and U.S. Lime Company is a beneficiary of such trust funds. Budtime and its officers and directors have misapplied said trust funds by knowingly, intentionally, and with the intent to defraud, retaining these trust funds and refusing to pay them to U.S. Lime Company. 15. Budtime and Mr. Torres are liable to U.S. Lime Company for misapplication of these trust funds and for breach of their statutory duties to U.S. Lime Company. U.S. Lime Company seeks the recovery of all trust funds wrongfully retained by Budtime and Mr. Torres, Individually, plus exemplary damages for the breach of their statutory fiduciary duties as trustees to U.S. Lime Company. THIRD CAUSE OF ACTION: VIOLATION OF THE PROMPT Pay ACT 16. Budtime’s failure to timely pay U.S. Lime Company within 7 days after Budtime received payment for the materials U.S. Lime Company furnished to 4878-9886-8407, v. 1 7323.1 Budtime and the Project violate Chapter 28 of the TEXAS PROPERTY CODE, otherwise known as the “Prompt Pay Statute.” As a result, U.S. Lime Company is entitled to recover interest on its unpaid invoices in the amount of one and one-half percent (1.5%) per month or eighteen percent (18%) per annum from the date payment was due. FOURTH CAUSE OF ACTION: BREACH OF CONTRACT 17. As stated above, Philadelphia Indemnity provided a payment bond for Budtime in connection with the Project. U.S. Lime Company properly perfected a claim against the Bond in the amount of $12,948.56, by timely sending notice of unpaid materials it supplied to Budtime and to the Project. Budtime and Philadelphia Indemnity have breached their obligations under the bond by failing and refusing to pay U.S. Lime Company’s claim, despite repeated demands for the payment by U.S. Lime Company. Budtime and Philadelphia Indemnity are jointly and severally liable to U.S. Lime Company for the amount of $12,948.56, plus interest and attorney’s fees. 18. All conditions precedent have been performed, have occurred, have been satisfied, or have been waived in order for U.S. Lime Company to recover on its suit against the bond provided by Philadelphia Indemnity. ATTORNEY FEES, COSTS AND INTEREST 19. U.S. Lime Company is entitled to recover its attorneys’ fees from Defendants, Budtime and Mr. Torres pursuant to Chapter 38 of the TEXAS CIVIL 4878-9886-8407, v. 1 7323.1 PRACTICES & REMEDIES CODE, Chapter 28 of the TEXAS PROPERTY CODE and the Agreement. 20. U.S. Lime Company is entitled to recover contractual interest at a rate of eighteen percent (18%) per annum from Defendants, Budtime and Mr. Torres, pursuant to the Agreement. 21. U.S. Lime Company is also entitled to recover post-judgment interest at the rate of eight and one-half percent (8.50%) per annum or the highest legal rate from Defendants pursuant to applicable Texas law. 22. U.S. Lime Company is further entitled to recover statutory penalty interest under Chapter 28 of the TEXAS PROPERTY CODE. CONDITIONS SATISFIED 23. Pursuant to TEXAS RULE OF CIVIL PROCEDURE 54, U.S. Lime Company pleads that all conditions precedent to the recovery of U.S. Lime Company’s damages, including recovery of its attorneys’ fees, have occurred or been performed, if not waived or otherwise excused. PRAYER For these reasons, Plaintiff, U.S. LIME & MINERALS, INC. D/B/A U.S. LIME COMPANY D/B/A TEXAS LIME COMPANY asks that Defendants, BUDTIME, LLC, FRANCISCO TORRES, Individually, and PHILADELPHIA INDEMNITY INSURANCE COMPANY, be cited to appear and answer and that Plaintiff have judgment against Defendants for: a) All of Plaintiff's damages in the principal amount of $12,948.56; 4878-9886-8407, v. 1 7323.1 b) Contractual Interest pursuant to the Agreement at rate of 18% per annum or the highest maximum legal rate as to Defendants, Hutchinson Construction and Mr. Hutchinson; °) Statutory penalty interest in the amount of 18% per annum under Chapter 28 of the TEXAS PROPERTY CODE as to Budtime and Mr. Torres; dy Pre-judgment interest at the rate of eights and one-half percent (8.50%) or the maximum amount as allowed by law as to Philadelphia Indemnity; e) Post-judgment interest at rate of eight and one-half percent (8.50%) per annum or the highest maximum legal rate; Court and all appellate courts; 8) All costs of court; h) Collection costs; and i) All other relief which Plaintiff may show itself to be justly entitled at law or in equity. Respectfully submitted, ANDREWS MYERS, P.C. By: W. JASON WALKER State Bar No. 00798568 JWalker@andrewsmyers.com 1885 Saint James Place, 15% Floor Houston, Texas 77056 713-850-4200 — Telephone 713-850-4211 — Facsimile ATTORNEYS FOR PLAINTIFF U.S. LIME & MINERALS, INC. D/B/A U.S. LIME COMPANY D/B/A TEXAS LIME COMPANY 4878-9886-8407, v. 1 7323.1 CAUSE NO. U.S. LIME & MINERALS, INC. D/B/A U.S. IN THE DISTRICT COURT OF LIME COMPANY D/B/A TEXAS LIME COMPANY eae DALLAS COUNTY, TEXAS BUDTIME, LLC, FRANCISCO TORRES, INDIVIDUALLY AND PHILADELPHIA INDEMNITY INSURANCE COMPANY JUDICIAL DISTRICT EXHIBIT A APPLICATION FOR CREDIT AGREEMENT 4878-9886-8407, v. 1 7323.1 CAUSE NO. U.S. LIME & MINERALS, INC. D/B/A U.S IN THE DISTRICT COURT OF LIME COMPANY D/B/A TEXAS LIME COMPANY eae DALLAS COUNTY, TEXAS BUDTIME, LLC, FRANCISCO TORRES, INDIVIDUALLY AND PHILADELPHIA INDEMNITY INSURANCE COMPANY JUDICIAL DISTRICT EXHIBIT B AFFIDAVIT OF RICHARD FOWLER, CBF 4878-9886-8407, v. 1 7323.1 CAUSE NO. U.S. LIME & MINERALS, INC. D/B/A U.S IN THE DISTRICT COURT OF LIME COMPANY D/B/A TEXAS LIME COMPANY eae DALLAS COUNTY, TEXAS BUDTIME, LLC, FRANCISCO TORRES, INDIVIDUALLY AND PHILADELPHIA INDEMNITY INSURANCE COMPANY JUDICIAL DISTRICT AFFIDAVIT OF RICHARD FOWLER, CBF STATE OF TEXAS § § COUNTY OF DALLAS § BEFORE ME, on this day personally appeared Richard Fowler, CBF, known to me, and who being duly sworn upon oath deposed and said: 1 “My name is Richard Fowler, CBF. I am the Credit Manager of U.S. LIME & MINERALS, INC. D/B/A U.S. LIME COMPANY D/B/A TEXAS LIME COMPANY (“U.S. Lime Company”) and I am authorized and competent to make this affidavit. Through my position as Credit Manager of U.S. Lime Company, I have personal knowledge of the facts stated herein and they are true and correct. U.S. Lime Company’s claims against Budtime and Mr. Torres (“Defendants”) as stated in its Petition in the above- referenced matter arise out of business transactions in Texas, between Defendants and U.S. Lime Company and upon which a systematic record has been kept. I am familiar with indebtedness to U.S. Lime Company. Attached to this Affidavit as Exhibit B-1 is a statement of account sent to Defendants by U.S. Lime Company reflecting such indebtedness. The amount is just. The prices charged by U.S. Lime Company were charged in accordance with an agreement 4878-9886-8407, v. 1 7323.1 between U.S. Lime Company and Defendants or, absent such agreement, are the usual, customary and reasonable prices for such goods. After all just and lawful offsets, payments, and credits have been allowed, the sum of $12,948.56, plus interest accruing at the highest legal rate, is due, owing and unpaid.” RICHARD FOWLER, CBF SUBSCRIBED AND SWORN TO, BEFORE ME, by Richard Fowler, CBF, on this day of April, 2024. NOTARY PUBLIC, STATE OF TEXAS 4878-9886-8407, v. 1 7323.1 CAUSE NO. U.S, LIME & MINERALS, INC. D/B/A U.S IN THE DISTRICT COURT OF LIME COMPANY D/B/A TEXAS LIME COMPANY aes DALLAS COUNTY, TEXAS BUDTIME, LLC, FRANCISCO TORRES, INDIVIDUALLY AND PHILADELPHIA INDEMNITY INSURANCE COMPANY JUDICIAL DISTRICT EXHIBIT B-1 STATEMENT OF ACCOUNT 4878-9886-8407, v. 1 7323.1 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Stephanie Rodriguez on behalf of William Walker Bar No. 798568 srodriguez@andrewsmyers.com Envelope ID: 86998214 Filing Code Description: Original Petition Filing Description: Status as of 4/29/2024 12:05 PM CST Case Contacts Name BarNumber | Email TimestampSubmitted | Status Stephanie Rodriguez srodriguez@andrewsmyers.com | 4/24/2024 9:42:52 AM | SENT William J.Walker jwalker@andrewsmyers.com 4/24/2024 9:42:52 AM | SENT