INTRODUCTION

Defendant Summit Construction, LLC respectfully moves this Court, pursuant to Texas Rule of Civil Procedure 91a.1, to dismiss all causes of action asserted against it in Plaintiff Maria Rodriguez's Complaint. The Complaint was filed on June 27, 2026, more than four years after the December 1, 2021 completion date that Plaintiff herself identifies as the date by which she knew the renovation work was incomplete and the contract had not been performed. On the face of the pleading, Plaintiff's claims for breach of contract and fraud are time-barred by the applicable four-year limitations period. Independently, each of the six counts Plaintiff has pleaded fails to allege facts sufficient to give fair notice of a legally cognizable claim: the breach-of-contract count omits the contract's essential terms; the fraud count recites legal conclusions without identifying the specific statements, dates, or speakers required to plead fraud; the unjust-enrichment count is foreclosed by the existence of an express written contract; the civil-conspiracy count is derivative of the fraud claim and fails with it; the piercing-the-corporate-veil count pleads no independent cause of action; and the Texas Deceptive Trade Practices Act count omits any allegation that Plaintiff provided the sixty-day pre-suit notice required by Tex. Bus. & Com. Code § 17.505 and fails to plead consumer status with the specificity the statute demands. For these reasons, the Complaint should be dismissed in its entirety.

STATEMENT OF FACTS

Plaintiff alleges that in or around February 2021 she purchased a single-family residential property located at 123 Oak Drive, Houston, Texas, intending to perform substantial renovations before occupying it as her primary residence. (Compl. ¶¶ 6–7.) In or around April 2021, Plaintiff solicited bids for the renovation work and received a bid from Summit Construction, LLC in the amount of approximately $185,000. (Compl. ¶¶ 8–9.)

Plaintiff alleges that during the bidding process, Defendant Robert Chen represented that Summit had successfully completed numerous similar projects, held all required contractor licenses, and carried adequate insurance, and that Chen showed her photographs of purportedly completed projects and provided references. (Compl. ¶¶ 10–12.) In reliance on those representations, Plaintiff entered into a written contract with Summit on or about May 15, 2021, for renovation work to be completed by December 1, 2021. (Compl. ¶ 13.) The contract required an initial payment of $60,000 upon execution, with additional progress payments to follow. (Compl. ¶ 14.)

Plaintiff made the initial payment of $60,000 on May 16, 2021, and additional progress payments totaling approximately $95,000 between June and October 2021, for a total of approximately $155,000. (Compl. ¶¶ 15–16.) Plaintiff alleges that in or around November 2021 she discovered that the photographs Chen had shown her were of projects completed by a different contractor and that Summit's contractor license had expired in 2019 and had not been renewed. (Compl. ¶¶ 18–19.) By December 1, 2021, the contractually required completion date, the renovation work was approximately forty percent complete. (Compl. ¶ 21.) Plaintiff demanded that Defendants complete the work or refund her payments; Defendants refused. (Compl. ¶¶ 22–23.) Plaintiff then retained a different contractor to remedy the deficient work and complete the renovations at an additional cost of approximately $145,000. (Compl. ¶ 24.)

Plaintiff further alleges that Defendant Chen commingled corporate and personal funds, failed to maintain Summit as a separate corporate entity, and that Summit was undercapitalized at all relevant times. (Compl. ¶¶ 25–26.) Plaintiff filed this action on June 27, 2026, approximately four years and seven months after the December 1, 2021 completion date and after her own November 2021 discovery of the alleged license deficiency and photographic misrepresentations.

LEGAL STANDARD

Under Texas Rule of Civil Procedure 91a.1, a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded. Tex. R. Civ. P. 91a.1. The court decides the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59, and may not consider evidence. Tex. R. Civ. P. 91a.6.

Texas courts require that a pleading be sufficient for the court to ascertain, from an examination of the pleadings alone and without resort to information from another source, the elements of the plaintiff's cause of action and the relief sought with sufficient information on which to base a judgment. Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex. App.-Edinburg-Corpus Christi 1991). For a breach-of-contract claim specifically, the petition must allege a contractual relationship, set out every material part of the contract essential to the cause of action, and show a breach by the defendant; a petition that fails to do so is defective. Gonzalez, 814 S.W.2d at 112.

Fraud requires proof that the defendant made a material representation that was false, that the defendant knew it was false or recklessly made the representation without knowledge of the truth and as a positive assertion, that the statement was made with the intention that it be acted upon by the plaintiff, that the plaintiff did act in reliance on it, and that the plaintiff suffered injury as a result. Fisher v. Yates, 953 S.W.2d 370, 376 (Tex. App.-Texarkana 1997). Civil conspiracy requires: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful acts; and (5) damages as a proximate result. Fisher, 953 S.W.2d at 376. Because civil conspiracy is a derivative tort that depends on participation in an underlying tort, it takes the limitations period of the underlying tort, and the two claims accrue simultaneously. Agar Corp., Inc. v. Electro Circuits Int'l, LLC, 580 S.W.3d 136 (Tex. 2019).

To have standing to pursue a DTPA cause of action, a plaintiff must be a consumer, and consumer status is an essential element of the claim. Lukasik v. San Antonio Blue Haven Pools, Inc., 21 S.W.3d 394, 400 (Tex. App.-San Antonio 2000). To qualify as a consumer, the plaintiff must (1) seek or acquire goods or services by purchase or lease, and (2) the goods or services purchased or leased must form the basis of the complaint. Lukasik, 21 S.W.3d at 401. Disregarding the corporate fiction is an equitable doctrine under which Texas courts take a flexible, fact-specific approach focusing on equity, and the purpose is to prevent use of the corporate entity as a cloak for fraud or illegality. Matthews Const. Co., Inc. v. Rosen, 796 S.W.2d 692, 694 (Tex. 1990). A constructive trust is a remedy, not a cause of action, and requires an underlying claim such as unjust enrichment or fraud. Freeman v. Harleton Oil & Gas, Inc., 528 S.W.3d 708 (Tex. App. 2017).

A claim whose own allegations establish that the limitations period has expired, that an essential element cannot be pleaded, or that a statutory prerequisite has not been satisfied has no basis in law within the meaning of Rule 91a.1 and is subject to dismissal on the face of the pleading.

ARGUMENT

I. PLAINTIFF'S BREACH-OF-CONTRACT AND FRAUD CLAIMS ARE BARRED BY THE FOUR-YEAR STATUTE OF LIMITATIONS.

Plaintiff filed this action on June 27, 2026, four years and seven months after December 1, 2021, the date her own complaint identifies as the contractually required completion date and the date by which she knew the renovation work had not been performed. Both the breach-of-contract and fraud claims are governed by a four-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.051 (general four-year residual period); see also Bomar Oil and Gas, Inc. v. Loyd, 381 S.W.3d 689, 696 (Tex. App.-Amarillo 2012) (fraud claim barred where more than four years elapsed since claimant knew of or could have reasonably discovered the alleged misrepresentation, citing Tex. Civ. Prac. & Rem. Code § 16.004(a)(4)). The complaint's own allegations fix the accrual date. By November 2021, Plaintiff had discovered that the photographs Chen showed her depicted projects completed by a different contractor and that Summit's contractor license had expired in 2019. (Compl. ¶¶ 18–19.) By December 1, 2021, Plaintiff knew the renovation work was only forty percent complete and that Defendants had refused to complete the work or refund her payments. (Compl. ¶¶ 21–23.) December 1, 2021 is the latest plausible accrual date; the November 2021 discoveries make the actual accrual date earlier still. From December 1, 2021 to June 27, 2026 is approximately four years and seven months. The four-year period expired on or about December 1, 2025. The complaint was filed seven months after that date.

The discovery rule does not save these claims. The discovery rule postpones accrual only until the plaintiff knew or in the exercise of reasonable diligence should have known of the injury and its likely cause. Here, Plaintiff's own complaint forecloses any discovery-rule argument: Plaintiff alleges she personally discovered in November 2021 that the photographs were of another contractor's projects and that Summit's license had expired (Compl. ¶¶ 18–19), and she knew by December 1, 2021 that the work was forty percent complete and that Defendants had refused to perform or refund (Compl. ¶¶ 21–23). Plaintiff's own pleading establishes actual knowledge of both the injury and its cause before the limitations period began to run. No tolling theory is available on these facts. The complaint contains no allegation that Plaintiff was legally incapacitated or otherwise unable to manage her affairs during the limitations period. To the contrary, the complaint affirmatively alleges that Plaintiff retained a replacement contractor (Compl. ¶ 24) and, by filing this action, retained counsel, all within the period following the December 2021 accrual date. These are the acts of a plaintiff managing her affairs, not one whose capacity to sue was impaired. For these reasons, Plaintiff's breach-of-contract and fraud claims are time-barred on the face of the complaint and must be dismissed.

II. THE COMPLAINT FAILS TO ALLEGE FACTS SUFFICIENT TO STATE A LEGALLY COGNIZABLE CLAIM ON EACH OF THE SIX COUNTS.

Independent of the limitations bar, each count in the complaint fails to allege facts that, taken as true, entitle Plaintiff to the relief sought. The complaint recites the legal elements of each cause of action and appends conclusory characterizations of Defendants' conduct, but it does not supply the underlying factual scaffolding that Texas pleading standards require. A pleading must be sufficient for the court to ascertain, from the pleading alone, the elements of the cause of action and the relief sought. Gonzalez, 814 S.W.2d at 112. Each count is addressed in turn.

A. Count I, Breach of Contract.

To plead breach of contract, a petition must allege (1) a contractual relationship between the parties, (2) the substance of the contract that supports the pleader's right to recover, and (3) a breach of the contract by the defendant. Hur v. City of Mesquite, 893 S.W.2d 227, 233 (Tex. App.-Amarillo 1995). The petition must set out every material part of the contract essential to the cause of action; a petition that fails to show a breach by the defendant is defective. Gonzalez, 814 S.W.2d at 112. The complaint here alleges the existence of a written contract and an initial payment amount (Compl. ¶¶ 13–14), but it does not set out the material terms of the contract, the scope of work, the specifications, the payment schedule beyond the initial deposit, or the standards of performance against which Summit's work is to be measured. Count I alleges only that Summit "fail[ed] to complete the work as agreed and by performing the work in a deficient manner" (Compl. ¶ 30), without identifying which contractual provision was breached, what the agreed scope of work required, or how the work performed deviated from any specified term. That is a recitation of the breach element, not a pleading of it. Because the complaint does not supply the substance of the contract's material terms, the Court cannot ascertain from the pleading alone the basis for Plaintiff's right to recover, and Count I has no basis in law under Rule 91a.1.

B. Count II, Fraud.

Fraud requires that the defendant made a material representation that was false, that the defendant knew it was false or made it recklessly as a positive assertion, that the statement was made with the intention that the plaintiff act upon it, that the plaintiff did act in reliance on it, and that the plaintiff suffered injury as a result. Fisher, 953 S.W.2d at 376. Where the alleged misrepresentation concerns a future event, the plaintiff must also plead that the promise involved a definite commitment to perform a certain act and that, at the time the promise was made, the defendant did not intend to perform it. Fisher, 953 S.W.2d at 378. The complaint pleads none of these elements with factual specificity. Plaintiff alleges that "Defendants made material misrepresentations of fact" regarding Summit's experience, licensure, insurance coverage, and prior projects (Compl. ¶ 33), that Defendants "knew that these representations were false when made or made them with reckless disregard for their truth" (Compl. ¶ 34), and that Plaintiff "justifiably relied" upon them (Compl. ¶ 36). These are recitations of the fraud elements, not factual allegations supporting them. The complaint does not identify (1) the specific words spoken or written, (2) the date on which each statement was made, (3) the medium or occasion of each statement, or (4) the facts then known to the speaker that rendered each statement false at the time it was made. As to the license representation specifically, Plaintiff's own complaint concedes that she discovered Summit's license had expired in November 2021 (Compl. ¶ 19), yet the complaint does not allege what Chen said about licensure, when he said it, or what facts he then possessed that made the statement false. As to the photographs, the complaint alleges only that Chen "showed her photographs of purportedly completed projects" (Compl. ¶ 12) without identifying what representation accompanied the photographs or why that representation was false when made. Because the complaint supplies legal conclusions in place of the factual scaffolding each fraud element requires, Count II has no basis in law under Rule 91a.1.

C. Count III, Unjust Enrichment.

Plaintiff's unjust-enrichment claim fails as a matter of law because the parties' dispute is governed by an express written contract. When a valid, express contract covers the subject matter of the parties' dispute, there can be no recovery under a quasi-contract theory, because parties should be bound by their express agreements and recovery under an equitable theory is generally inconsistent with the express agreement. Freeman, 528 S.W.3d at 708. The doctrine of unjust enrichment does not operate to rescue a party from the consequences of a bad bargain, and "[t]he enrichment of one party at the expense of the other is not unjust where it is permissible under the terms of an express contract." Freeman, 528 S.W.3d at 708. Plaintiff's own complaint concedes the existence of a written contract executed on May 15, 2021, governing the renovation work and specifying the payment terms and completion date. (Compl. ¶¶ 13–14, 28.) The payments Plaintiff seeks to recover through unjust enrichment, totaling approximately $155,000 (Compl. ¶ 39), are the same payments made under that contract. Because the written contract covers the subject matter of the dispute, the equitable remedy of unjust enrichment is unavailable as a matter of law, and Count III has no basis in law under Rule 91a.1.

D. Count IV, Civil Conspiracy.

Count IV fails because civil conspiracy is a derivative tort that survives or fails alongside its underlying claim. Agar, 580 S.W.3d at 136. Plaintiff's conspiracy count rests entirely on the fraud alleged in Count II: the complaint charges that Defendants "combined and agreed with one another to defraud Plaintiff" and committed overt acts consisting of "the misrepresentations described above." (Compl. ¶¶ 43–44.) Because civil conspiracy "depends on participation in some underlying tort," its limitations period coincides with that of the underlying tort, and the two claims accrue simultaneously. Agar, 580 S.W.3d at 136. The conspiracy claim therefore shares the fraud claim's December 1, 2021 accrual date and is equally time-barred by the four-year limitations period. Independently, because the fraud allegations that supply the conspiracy's unlawful-act element are themselves legally insufficient for the reasons stated in Section II.B above, the conspiracy count has no basis in law on that ground as well. Agar, 580 S.W.3d at 136. A conspiracy claim may proceed only if it is based on an underlying tort that is itself not barred; where the underlying fraud fails, Count IV falls with it. Fisher, 953 S.W.2d at 381.

E. Count V, Piercing the Corporate Veil.

Count V does not state an independent cause of action. Texas courts have held that "the mere fact that a corporation operates as an alter ego does not give rise to a separate and independent cause of action." Matthews, 796 S.W.2d at 693. Piercing the corporate veil is an equitable remedy available to satisfy a judgment on an underlying claim; it is not itself a freestanding count that entitles a plaintiff to relief. Because the complaint pleads veil-piercing as a standalone count rather than as a theory of collection on a valid underlying judgment, Count V has no basis in law on its face.

Even if the Court treats Count V as a theory of liability rather than a standalone claim, the complaint's allegations are insufficient to support it. The equitable purpose of disregarding the corporate form is to prevent use of the corporate entity "as a cloak for fraud or illegality or to work an injustice." Matthews, 796 S.W.2d at 693. The complaint alleges in conclusory terms that Chen "used corporate funds for personal expenses," "failed to maintain Summit as a separate corporate entity," and that Summit "was undercapitalized at all relevant times." (Compl. ¶¶ 25–26, 48–49.) These are bare recitations of the factors courts consider; the complaint identifies no specific transaction in which corporate and personal funds were commingled, no amount, no date, and no account. Nor does it allege facts showing that the corporate form was used as a device to perpetrate the specific wrong alleged against Plaintiff, as distinguished from the general allegation that Chen managed Summit poorly. When the corporate form is disregarded, it is because it "is used as an essentially unfair device" and courts act in equity to avoid an inequitable result. Matthews, 796 S.W.2d at 693. The complaint's conclusory labels do not supply the factual predicate that equitable doctrine requires. Additionally, because Summit is a limited liability company, any personal liability of Chen as a member must be grounded in a provision applicable to limited liability companies. Absent that bridge, the corporate-liability standard invoked in Count V does not reach Chen as an LLC member on the face of the pleading. Furthermore, because the underlying fraud and breach-of-contract claims are time-barred and independently deficient as pleaded, there is no viable underlying claim on which a veil-piercing remedy could operate. Freeman, 528 S.W.3d at 708 (individual officers and members are not personally liable on corporate obligations absent sham, fraud, or similar exceptional circumstances). Count V should be dismissed.

F. Count VI, Violation of Texas Consumer Protection Statute (DTPA).

Count VI fails on two independent grounds: Plaintiff did not plead the sixty-day pre-suit notice that the DTPA requires as a condition of suit, and the complaint does not adequately plead consumer status as to the goods or services that form the basis of her complaint. Tex. Bus. & Com. Code § 17.505(a) requires a consumer to give written notice to the defendant at least sixty days before filing suit, advising the defendant in reasonable detail of the specific complaint and the amount of economic damages, mental-anguish damages, and expenses sought. The complaint contains no allegation that Plaintiff provided this notice before filing on June 27, 2026. Because the pre-suit notice requirement is a statutory prerequisite to a suit for damages under Tex. Bus. & Com. Code § 17.50(b)(1), a complaint that omits any allegation of compliance with § 17.505 presents a claim with no basis in law on the face of the pleading under Rule 91a.1. The remedy prescribed by § 17.505 for a defendant who did not receive the required notice is abatement, not dismissal; Summit therefore requests, in the alternative, that the Court abate Count VI until Plaintiff complies with the notice requirement.

Independently, the complaint does not adequately plead consumer status. To qualify as a consumer under the DTPA, a plaintiff must (1) seek or acquire goods or services by purchase or lease, and (2) the goods or services purchased or leased must form the basis of the complaint. Lukasik, 21 S.W.3d at 401. The second requirement is not satisfied by pointing to any purchase the plaintiff has made; the specific goods or services that are the subject of the DTPA complaint must themselves be what the plaintiff acquired. Lukasik, 21 S.W.3d at 403 (plaintiff's purchase of a pool did not confer consumer status with respect to a pool alarm that was the actual basis of the complaint). Here, the complaint alleges that Plaintiff entered into a written contract for renovation services and paid approximately $155,000 for those services. (Compl. ¶¶ 13–16.) Count VI alleges in conclusory terms that "[t]he transaction at issue is governed by Texas's consumer protection statute" and that Defendants engaged in "unfair and deceptive acts and practices" by "misrepresenting their qualifications, licensure, and experience." (Compl. ¶¶ 52–53.) The complaint does not identify which specific provision of the DTPA's laundry list of prohibited acts Defendants allegedly violated, nor does it allege facts showing that the renovation services Plaintiff purchased form the basis of a DTPA complaint as distinguished from a common-law fraud or breach-of-contract claim. Consumer status is an essential element of a DTPA cause of action and is a question of law for the court. Lukasik, 21 S.W.3d at 400. The complaint's bare assertion that the transaction "is governed by" the DTPA is a legal conclusion, not a factual allegation, and does not supply the element. Count VI should be dismissed.

III. THE COURT SHOULD AWARD SUMMIT CONSTRUCTION, LLC ITS REASONABLE ATTORNEY FEES AND COSTS.

Texas Rule of Civil Procedure 91a.7 provides that, except in an action by or against a governmental entity or a public official acting in an official capacity or under color of law, the court may award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court, and any award must be based on evidence. Tex. R. Civ. P. 91a.7. This action is not brought by or against a governmental entity or public official. If the Court grants the foregoing motion, Summit Construction, LLC respectfully requests that the Court exercise its discretion under Rule 91a.7 to award Summit its reasonable and necessary attorney fees and costs incurred in connection with this motion, based on evidence to be submitted at the appropriate time.

CONCLUSION

For the foregoing reasons, Defendant Summit Construction, LLC respectfully requests that this Court dismiss all causes of action asserted against it in Plaintiff Maria Rodriguez's Complaint with prejudice, award Summit Construction, LLC its reasonable and necessary attorney fees and costs under Texas Rule of Civil Procedure 91a.7, and grant such other and further relief as the Court deems just and proper.

CERTIFICATE OF SERVICE