The district court foreclosed Plaintiffs from presenting the substantial bulk of their claims at trial on the basis that they failed to comply with contractual pre-suit notice obligations.
Defendants, however, waived the right to assert non-compliance with the Claim Notice provision. Plaintiffs purchased Defendants' assets—machinery related to the manufacture of pneumatic motors and tools—through an Agreement executed on August 13, Relevant here, the Agreement included the following pre-suit Claim Notice provision:.
Two months after closing, on October 16, , Joseph Molino, the chief financial officer and chief operating officer of Plaintiffs' parent company, wrote to Defendant Rick Sabath, Defendant Air Tool's principal, raising concerns about certain asset deficiencies. Sabath did not timely respond. On October 24, Plaintiffs' counsel followed up, writing to Sabath about concerns over the purchased assets. After Sabath received counsel's communication, Molino and Sabath engaged in discussions regarding issues identified in the original letter and other concerns.
On November 18, Sabath wrote to Molino memorializing an earlier phone conversation and rejecting Plaintiffs' requests for payment.
Under the Agreement, in the event of a dispute, the parties were to rely on an arbitrator to pick an independent accountant to resolve the parties' dispute. Plaintiffs initiated such an arbitration proceeding. Defendants refused to participate. Plaintiffs then filed suit on August 10, , within one year of the warranty survivability period identified in the Agreement. In the course of the litigation, Defendants filed a Rule 12 motion, which did not raise defenses related to the Agreement's Claim Notice provision.
Defendants did raise a "breach of contract" affirmative defense in their answer, but they never specifically alleged a breach of the Claim Notice requirement.
Defendants did not file a motion for summary judgment. After the close of discovery, Defendants raised for the first time at the final pre-trial conference the argument that Plaintiffs had breached the Agreement's Claim Notice provision. At the final pre-trial conference, the district court continued the trial date and ordered the parties to submit supplemental briefing on the issue, planning to "set a new trial date, if needed" after ruling on the Claim Notice issue.
After receiving the supplemental briefing, the district court entered an order on December 20, , foreclosing Plaintiffs from presenting the substantial bulk of their claims at trial based on Plaintiffs' failure to comply with the Agreement's Claim Notice provision.
The order did not address what standard of review applied, analyze the Claim Notice provision's "material prejudice" prong, or meaningfully consider whether Plaintiffs were prejudiced in their ability to respond to the affirmative defense, which had not been raised in Defendants' Answer or other responsive pleading. Plaintiffs voluntarily dismissed their remaining claims to facilitate this appeal.
The court entered a final judgment on September 5, Corey Firmin March 9, , pm via Google. Very nice people. Friendly staff excellent service. Willie Rogers May 3, , am via Google. These guys have really been a great help in getting torque tools at a moments notice.
Show more 6 reviews. Other construction companies nearby. R C Services. Setzer Hardware Inc. Average rating - 4. Construction and finishing materials in Texas. Reviews for construction companies in Texas. Advertising for Business. Sizes 0. Sizes 2. Sizes Sizes 1. About the Brand Thaxton specializes in engineering and manufacturing high pressure hydrostatic test plugs.
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