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- Raymond Rahme (pictured) and his brother Teddy own ZR Energy Raymond is currently implicated in two further lawsuits in the region. One over the death of American arms dealer Dale Stoffel, who was.
- Dec 31, 2018 by Derek Issacs 31 Dec 2018 According to news portal business.com.lb, ZR Group Holding, owned by Teddy and Raymond Rahme, is set to acquire Faqra Club Holding, which owns Faqra Club and Societe Libanaise Des projects Touristiques (Soloiporo), the Club's management company.
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MARILYN ABOUSSIE, Chief Justice.
Appellant Curtis Raymond ('Raymond') appeals from the trial court's judgment in favor of appellees Marcel Rahme and Williams Investments (collectively 'Rahme'). Raymond was the concrete
Rahme owns land in Pflugerville. He hired JMT, Inc. as a general contractor for a project to build a gas station on his property. JMT and Raymond entered into an oral contract for Raymond to do the concrete work on the project. Starting in September 1996, Raymond performed various work related to the concrete work. When JMT did not pay Raymond all of the fees he asserted he was owed, Raymond ceased work on the project. Raymond wrote Rahme a letter dated February 5, 1997, stating he was owed $15,211.85. On February 8, 1997, Raymond completed and signed a Mechanic's and Materialman's Lien Affidavit; however, that affidavit was not filed in the county records. On April 4, 1997, Raymond signed and filed a second affidavit, alleging a $15,211.85 lien, and sent a copy of the affidavit with a demand for payment to Rahme and JMT.
When Rahme and JMT did not pay, Raymond sued them for breach of contract and sought to foreclose on the lien. Rahme answered that Raymond had not used the proper grade or thickness of concrete and had improperly poured and graded the concrete. Rahme alleged that Raymond's poor work led to substantial pooling of rainwater and premature cracking and would necessitate the removal and replacement of the defective concrete. Rahme asserted counterclaims for breach of contract, breach of express and implied warranties, and DTPA violations. Raymond entered into an agreement with JMT under which JMT agreed to pay Raymond $6,900, nonsuited JMT, and proceeded to trial against Rahme.
After a bench trial, the trial court rendered a judgment that Raymond take nothing on his claims against Rahme and ordered Raymond's lien extinguished. Rahme was awarded $65,332 in damages and attorney's fees on his counterclaims, with further conditional attorney's fees to be awarded should Raymond appeal. On Raymond's request, the trial court filed findings of fact and conclusions of law, many of which Raymond attacks on appeal.
Standard of Review
A trial court's findings of fact in a bench trial are reviewed for legal and factual sufficiency under the same standards used to review a jury's verdict on jury questions. Anderson v. City of Seven Points,806 S.W.2d 791, 794 (Tex.1991); Westech Eng'g, Inc. v. Clearwater Constructors, Inc.,835 S.W.2d 190, 195 (Tex. App.-Austin 1992, no writ). In considering legal sufficiency, we consider all the evidence in the light most favorable to the prevailing party, indulging every inference in that party's favor. Associated Indem. Corp. v. CAT Contracting, Inc.,964 S.W.2d 276,
A trial court's conclusions of law are reviewed de novo and will be upheld if they can be sustained on any legal theory supported by the evidence. Cohn, 979 S.W.2d at 697; Westech Eng'g, 835 S.W.2d at 196. Even if we find a conclusion of law is incorrect, we will not reverse a judgment if it can be sustained by any correct legal theory supported by the evidence. Cohn, 979 S.W.2d at 697; Westech Eng'g, 835 S.W.2d at 196.
Summary of the Evidence
Raymond testified that in September 1996 he submitted a bid to JMT for concrete work that included erosion control, a retention pond, curbs and gutters, a dumpster enclosure, driveways, the slab, approaches, outlet structure, and sidewalks. However, JMT did the 'dirt work, the culverts, the approaches, and the retention pond.' Raymond testified that JMT was in charge of compacting the base materials over which the concrete was poured. Raymond did not contract with Rahme, but only with JMT.
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Raymond said no inspector was present when the concrete was poured; only he, his crew, and Rahme were present. Raymond poured the building foundation and the sidewalk before beginning on the driveway and parking lot areas. At the time Raymond began pouring the driveway, he had not been furnished with any design plans or specifications for that area, so he 'just started out as a regular commercial job and set the forms right at 5 inches thick.' He said five inches is standard for this kind of job unless the concrete is poured over tanks or will sustain heavy truck traffic, in which case it should be thicker. When Raymond had almost completed the first pour of the driveway, Rahme complained that it was not thick enough and was not the 'proper strength of concrete.' Raymond said, 'Of course, I didn't know what he was talking about, so we finished that pour out and from that pour on, we did exactly what he told me to do. I made the concrete 6 inches thick, and I poured the 4000 [pounds per square inch ('psi')].' Raymond said when he realized the first section of the driveway was too thin, he told Rahme that '[i]nstead of the one year warranty after I was completed, I would give him an additional one year warranty in case-that would give him time for his store to be opened, and if any trucks came through there, I didn't know which way the trucks would be, you know, coming through to fill up. If the thing cracked or whatever, then I'd be responsible for it.'
Raymond testified that although photographs taken during various pours do not show spacers under the steel reinforcing bars (rebar) to keep the rebar from lying flat on the ground, the photographs were
Raymond said he did not know that Rahme was complaining about pooling or any other problems until after Raymond filed his lawsuit. Raymond said he met with Rahme 'to attempt to satisfy him and obtain payment,' and that at first Rahme only complained about pooling in one area. Raymond examined the '20 foot area' and said the low spot was between three-eights to one-half an inch lower than the surrounding areas; the normal tolerance on concrete is about one-quarter of an inch along ten feet of concrete. Raymond said the low spot was 'right on the line' of industry standards. Raymond also said the concrete 'has standard stressed cracks' that would occur in any kind of parking lot, not cracks that indicate the concrete is defective. Raymond offered to fix the defects and to extend an unconditional warranty at no charge to Rahme, but Rahme rejected the offer.
Raymond testified that he had an engineer take core samples from the concrete he poured. The samples showed the concrete's strength was between 6,540 and 8,190 psi, and it was mostly within a ten-percent tolerance of five inches, the industry standard, in the first driveway section poured, and between 5.7 and 6.4 inches deep in the other sections, within the tolerance for a six-inch pour. Raymond admitted that in a small area of the first section, the concrete was only 3.5 inches deep, well outside the ten-percent tolerance on five inches. Raymond offered an additional one-year warranty on the shallow portion.
Raymond testified that he quit when the job was about seventy-percent complete because JMT had not paid him. Rahme was on-site when Raymond quit and asked why Raymond was leaving. Raymond explained that he had not been paid. Rahme told Raymond '[t]hat he would get it straightened out,' but Raymond was never paid. Raymond was asked, 'Isn't it true that no work was performed on the job anytime after November?' He answered, 'I would assume.'
Rahme testified that he was on the site when Raymond and his crew began pouring the concrete. He said:
Although Raymond testified that his crew would have used spacers in the driveway and parking lot, Rahme testified that he witnessed the pours and that there were no spacers under those areas; Rahme did see Raymond's crew use spacers during the foundation pour. Rahme testified that most of the concrete was defective because there were water pools in the pump bays, in front of the store, and on the whole area south of the store where the concrete was poured five inches deep. Rahme said water collects around the pumps about three-quarters
Rahme said when he met with Raymond to show him the pooling, Raymond 'never offered to fix the [problem]. He want [sic] his money first and do some little job.' When Raymond told Rahme that he would score the concrete with drain lines, Rahme said, 'I asked him if we can put what he's saying in written contract [sic] and be legal, that if we damage more [sic] the concrete and he has to remove all the concrete and put [sic] new concrete. He didn't accept it. And his lawyer said that it's going to cost a lot of money.' Rahme said he refused to let Raymond attempt to fix the concrete because he was afraid that it would further damage the concrete. Rahme testified that several people told him that Raymond's proposal would not fix the pooling and that the concrete had to be removed and repoured. To repair the defective concrete, Rahme will have to close the store during the repairs. Rahme thought it would take about two weeks to do the repairs; Raymond thought it would take about four days.
Rahme testified that '[t]he last time that [Raymond] did work over there, it's November—late November not after that.' Rahme said he was not aware that Raymond had not been paid until 'after maybe February or May, something like that.' At the time Raymond quit, Rahme did not know that it was over a money dispute.
George Pulliam, a licensed professional engineer, testified as an expert witness. Pulliam visited the site three times, once after a heavy rain, and reviewed concrete samples and plans, contracts, and photographs from the construction. Pulliam said there was a large pond of water in front of one bay, pools in front of three other bays, and uncompacted or improperly-compacted base material under the parking lot area. Pulliam said that Raymond's proposals to score drain lines or to pour self-leveling concrete would not cure the problem. He said self-leveling concrete would probably flake and crack along the edges and would only transfer the water to another area, 'from one pond, to another pond, to another pond.' Pulliam thought the whole driveway area would have to be removed and repoured. Pulliam said water pooling in the pump bays is especially hazardous because gasoline or oil spilled on top of water is very slippery. Pulliam said that there were insufficient spacers in the foundation and that there did not appear to be any spacers in the driveway and parking areas, which meant the concrete was not reinforced and would not perform properly. Pulliam said he had seen Raymond's work on other jobs, and '[g]enerally, he does excellent work.' On this job, however, Pulliam said Raymond's work did not meet the standards of good and workmanlike performance. Pulliam took issue with Raymond's decision to pour the concrete without first having an inspector or engineer ensure that the underlying base materials were properly compacted. He said the improperly compacted materials would damage the parking area 'within a relatively short period of time' because, as vehicles drive over it, the base will compact further and the concrete will start to disintegrate. Pulliam did not know whether Raymond ever saw the construction plans that indicated the compaction specifications, but from the photographs taken during the pours, 'it's obvious that the subgrade underneath the area where the concrete is being placed is not compacted properly. If it were, it would be virtually flat and no chunks of dirt visible and showing.' In Pulliam's opinion, Raymond should have waited until
Did Raymond Perfect His Lien?
In his first issue on appeal, Raymond argues that the trial court erred in concluding that he failed to perfect his lien, attacking the following conclusions of law: (1) Raymond failed to perfect his claimed liens; (2) his lien against Rahme's property is invalid; (3) Raymond is not entitled to a judgment foreclosing his alleged lien against Rahme's property; and (4) Raymond should take nothing from Rahme.
Chapter 53 of the Property Code governs mechanic's and materialman's liens. See Tex. Prop.Code Ann. §§ 53.001-.260 (West 1995 & Supp.2002).
To perfect a lien, a claimant must substantially comply with subchapter C of chapter 53. Tex. Prop.Code Ann. § 53.051 (West 1995); Sledge, 653 S.W.2d at 285. A subcontractor must give the property owner notice of the debt no later than 'the 15th day of the third month following each month' in which the subcontractor worked or provided materials. Act of May 26, 1983, 68th Leg., R.S., ch. 576, § 1, 1983 Tex. Gen. Laws 3475, 3540-41, amended in part by Act of May 28, 1989, 71st Leg., R.S., ch. 1138, § 8, 1989 Tex. Gen. Laws 4693, 4696 (amended 1997) (current version at Tex. Prop.Code Ann. § 53.056 (West Supp.2002)). The notice to the owner must include a warning stating that the owner may be held personally liable and his property subjected to a lien unless he withholds payments from the original contractor or the subcontractor's claim is paid or settled. Act of May 28, 1989, 71st Leg., R.S., ch. 1138, § 8, 1989 Tex. Gen. Laws 4693, 4696 (current version at Tex. Prop. Code Ann. § 53.056(d)). If the subcontractor does not give the owner timely notice containing the statutory warning, the lien is invalid. Act of May 26, 1983, 68th Leg., R.S., ch. 576, § 1, 1983 Tex. Gen. Laws 3475, 3540 (current version at Tex. Prop.Code Ann. § 53.056(a)); Sledge, 653 S.W.2d at 287; Brown v. Dorsett Bros. Concrete Supply, Inc.,705 S.W.2d 765, 766 (Tex.App.-Houston [14th Dist.] 1986, no writ).
A subcontractor must also file a lien affidavit with the clerk of the county in which the property is located no later than 'the 15th day of the fourth calendar month after the day on which the indebtedness accrues.' Act of May 28, 1989, 71st Leg., R.S., ch. 1138, § 4, 1989 Tex. Gen. Laws 4693, 4694 (amended 1997) (current version at Tex. Prop.Code Ann. § 53.052(a) (West Supp.2002)); Hadnot, 961 S.W.2d at 235. An indebtedness to a subcontractor accrues on 'the last day of the last month in which the labor was performed or the material furnished.'
Raymond contends that the evidence shows he provided work and materials 'between September 1996 and February 1997.' However, at trial Raymond was asked, 'Isn't it true that no work was performed on the job anytime after November?' Raymond answered, 'I would
Lebanese Protestors Determined To Root Out Longstanding ...
Raymond did not give Rahme timely notice of the debt that contained the required statutory warning and did not timely file his lien affidavit. The trial court did not err in concluding that Raymond failed to perfect his claimed lien. We overrule his first issue on appeal.
Rahme's Breach of Contract Claims
In his second issue on appeal, Raymond contends that the trial court erred in finding that he breached the underlying contract and failed to substantially complete the concrete work.
A person who is not party to a contract may not recover for breach of contract unless the person is a third-party beneficiary to the contract, meaning the contracting parties intended to secure some benefit to the third party and entered into the contract directly and primarily for the third party's benefit. Thomson v. Espey Huston & Assocs., Inc.,899 S.W.2d 415, 418 (Tex.App.-Austin 1995, no writ). The law provides a presumption against third-party beneficiary agreements, and any doubts must be resolved against finding a third-party beneficiary. Id. Contracts between property owners, general contractors, and subcontractors are governed by general contract principles; absent clear evidence to the contrary, a property owner is not considered a third-party beneficiary of a contract between a general contractor and a subcontractor. Id. at 419-20. Mere knowledge that the property owner will benefit from the contract is insufficient to establish a third-party beneficiary arrangement. Id. at 420.
Rahme did not have a contractual relationship with Raymond. JMT contracted with Raymond and Rahme in turn contracted with JMT. Rahme was not a party to and there is no evidence to support a finding that he was a third-party beneficiary of Raymond's contract with JMT. Rahme in fact denied having a contract with Raymond, and the trial court sustained Raymond's objection to Rahme's attempt to show he was a third-party beneficiary to Raymond's contract with JMT. Rahme could have sued JMT for breach of contract but did not do so.
Rahme's Express and Implied Warranty Claims
In his third issue on appeal, Raymond contends the trial court erred in finding that he made and then breached express and implied warranties to Rahme that the concrete work would be performed in a good and workmanlike manner, attacking the following findings of fact: (1) Raymond made express and implied warranties to Rahme that the concrete work would be performed in a good and workmanlike manner; (2) Rahme reasonably relied on Raymond's express and implied warranties; (3) Raymond failed to perform the concrete flatwork in a good and workmanlike manner; and (4) Raymond's conduct was a breach of the express and implied warranties with respect to his work.
An express warranty is created when a promise related to the goods is made by the seller to the buyer and becomes a part of the basis of the bargain. Harris Packaging Corp. v. Baker Concrete Constr. Co.,982 S.W.2d 62, 66 (Tex.App.-Houston [1st Dist.] 1998, pet. denied); see Chilton Ins. Co. v. Pate & Pate Enters., Inc.,930 S.W.2d 877, 890-91 (Tex.App.-San Antonio 1996, writ denied). An express warranty exists only 'if express representations form the basis of the bargain.' Harris Packaging, 982 S.W.2d at 66; see Chilton Ins. Co., 930 S.W.2d at 890-91. Generally, a statement made by a seller after a contract has been made is not an express warranty because the buyer has already agreed to the bargain and cannot argue that he relied on the statement in entering into the contract. Harris Packaging, 982 S.W.2d at 67. However, a post-contract statement that modifies a pre-existing contract may be considered an express warranty. Id.
Raymond gave JMT an express one-year warranty, and in December 1996 he wrote JMT a letter stating, 'I am willing to warrant the driveway against major cracking. It will be warranted for one year from date of pour. This warrant will not include stress cracks or other minor cracking.' Raymond admitted that he extended his normal one-year warranty period to two years after he realized the first section of driveway was not poured deep enough.
Raymond's express two-year warranty expired in December 1998. Raymond repeatedly testified that he did not become aware of any of Rahme's complaints until after he filed suit in March 1999, and Rahme did not testify to the contrary. Further, Rahme did not testify that he suffered major cracking within the two-year warranty period and, in fact, did not testify about cracking at all. Rahme testified only about water pooling and complained that he did not receive what he contracted for because the first section of
Raymond did not testify that he extended a blanket warranty; the letter written to JMT regarding the warranty explicitly warrants the concrete against 'major cracking.' Furthermore, the warranty was extended for two years, expiring in December 1998. There was no testimony about when Rahme began experiencing problems with the concrete, much less when any 'major cracking' occurred. Raymond's express warranty extended only as far as his 'express representation.' See Harris Packaging, 982 S.W.2d at 66. The evidence does not support a finding that Raymond breached an express warranty.
As for Rahme's implied warranty claims, we recently held that a property owner may not recover under an implied warranty theory from a subcontractor with whom the owner has no direct contractual relationship. Codner v. Arellano,40 S.W.3d 666, 672-74 (Tex.App.-Austin 2001, no pet.); see also Harris Packaging, 982 S.W.2d at 67 (no implied warranty for a particular purpose where no contract between parties). We held that because a property owner has recourse against the general contractor with whom he contracted, there is no compelling public policy reason to impose an implied warranty against a subcontractor. Codner, 40 S.W.3d at 674. The evidence does not support the trial court's finding of an implied warranty between Raymond and Rahme.
Because the evidence is legally insufficient to support the trial court's findings that Raymond made and breached express or implied warranties of good and workmanlike conduct, we sustain Raymond's third issue.
Rahme's DTPA Claims
In his fourth issue on appeal, Raymond argues the trial court erred in concluding that Rahme incurred damages under the DTPA, attacking the following findings of fact: (1) Raymond's breach of warranty and failure to perform was a producing cause of economic damages to Rahme; (2) the removal and replacement of 9,460 square feet of concrete is necessary as a result of Raymond's breach; and (3) Rahme suffered economic damages for the cost of repair and replacement of the concrete flatwork in the amount of $39,732.00 (using a stipulated cost of $4.20 a square foot).
The DTPA does not create a warranty; to recover under the DTPA, a complaining party must show a breach of an express or implied warranty recognized in common law or created by statute. Parkway Co. v. Woodruff,901 S.W.2d 434, 438 (Tex.1995); La Sara Grain Co. v. First Nat'l Bank,673 S.W.2d 558, 565 (Tex. 1984); Codner, 40 S.W.3d at 672. Having held that the record does not support findings that Raymond made implied warranties or breached an express warranty, we hold the trial court erred in finding Rahme was entitled to recover under the DTPA. We sustain Raymond's fourth issue.
Conclusion
We hold the trial court did not err in finding Raymond failed to perfect his claimed mechanic's lien but that the trial
Lebanese protesters have once again stopped Parliament from meeting by blockading roads heading to government buildings and clashing with riot police this week, aiming to push back a parliamentary session where demonstrators fear Lebanese lawmakers will hand corrupt actors amnesty. That session, which had already been pushed back once, has once again been delayed until next week, as activists formed a human chain to stop policymakers from reaching Parliament.
Tensions have run particularly high after a protester was shot dead last week by soldiers, the first casualty of a month-long period of widespread civil disobedience. Demonstrators have redoubled their efforts in the wake of the shooting, with President Michel Aoun callously scoffing that 'if people aren't satisfied with any of the decent leaders let them emigrate.' That flippant statement comes as yet more confirmation of protesters' fears that Lebanon's ruling elite are dangerously out of touch with reality.
The protests have paralyzed the country's day-to-day activities. Lebanon's main thoroughfares have been barricaded, banks and schools closed, and already inefficient water and electricity infrastructure hampered. With protesters now vowing that no parliamentary sessions will be held 'as long as the people control the street', there seems to be little chance of rapprochement between Lebanon's government and the people it serves.
Taking a stand against corruption
Originally sparked by a clumsy attempt to impose a tax on calls made through WhatsApp, the protests are in fact the culmination of years of frustration with crumbling infrastructure, governmental ineptitude, and—most seriously—rampant corruption. Demonstrations of this scale haven't been seen since the 'Cedar' revolution in 2005, which was thought to have ushered in a new, more transparent era of governance. Sadly, in the intervening years, cronyism and nepotism have become even more commonplace in state institutions and the private sector alike.
Interestingly, although sectarianism is part and parcel of Lebanon's political framework, protestors appear to be drawn from different religious sects and political parties. Socio-economic factors, rather than sectarian identities, are driving their movement. One of the uprising's mantras—'All of them means all of them'—blames the entire political class for the crisis, with many calling for the establishment of a new secular, meritocratic government.
Too little, too late?
This stark economic polarization of Lebanon's population isn't surprising. According to senior economists, a quarter of the nation's income is controlled by the top one percent of its citizens. Meanwhile, one-fourth of its workforce is unemployed and debt stands at 150 percent of GDP—the third highest in the world. The International Monetary Fund (IMF) has forecasted a double-digit fiscal deficit next year. Although the chief of Lebanon's central bank recently made a statement denying that capital controls would be imposed, the local currency is already sliding against the US dollar on the black market, despite being officially pegged to the greenback.
Concessions offered by the government have been labeled 'too little, too late', and trust in the Lebanese financial system has all but evaporated. The international community has urged Lebanese leaders to implement widespread structural reforms that would clear the way for $11 billion in soft loans and grants that could re-start the economy. An aid package proposed by France, for example, specifies that the government will have to transform its corrupt 'patronage' system that sees billions siphoned from state coffers.
Root and branch reform is needed
Despite pressure from without and within, the Lebanese government has yet to grasp that piecemeal reforms won't stabilize the situation. The bad actors who have been allowed to permeate Lebanon's political and financial systems will need to be fully and transparently exorcised before public trust can be re-established. These actors, unfortunately, include some of the most prominent members of Lebanon's business community.
Businessman Raymond Rahme Zayna has been connected to cases as sordid as the murder of a prominent US contractor, Dale Stoffel, in Iraq although Zayna has denied any involvement whatsoever in the crime. A major legal case against the Iraqi government has also claimed that the funds intended to pay Stoffel for refurbishing military equipment were transferred to Rahme Zayna. However, Zayna has denied any wrongdoing with respect to his dealings with the Iraqi Ministry of Defence and Wye Oak.
The Lebanese businessman has also been accused of a laundry list of other transgressions. His investment in Iraqi mobile telecoms operator Korek has come under particular scrutiny, with Rahme Zayna allegedly failing to disclose his substantial interest in one of Korek's competitors and contracting deals between Korek and other companies in which he has sizeable personal interests. He also allegedly colluded with Lebanon's IBL Bank to obtain a $150 million loan for Korek, before misleading other shareholders about the terms of the loan. Korek's directors and Zayna have denied these accusations after a claim was filed by Agility and Orange.
In another instance, despite receiving generous funds from the municipal budget, private firm Sukleen utterly failed to manage its waste contracts with the city of Beirut, contributing to the mountains of waste 'drowning' Lebanese streets for several years running.
Politicians from across the political spectrum lined up to accuse the 'mafia-like' company, whose owners are connected to leading Lebanese politicians, of corruption. Lebanese Democratic Party leader Talal Arslan was particularly harsh, remarking that the government in Beirut had allowed Sukleen's corruption to 'exceed all limits' and that 'unfortunately, Sukleen […] became stronger than the government itself.' While Sukleen's contract was terminated in 2018, the stink surrounding the company's tenure wasn't just confined to rotting garbage bags in the streets of Beirut.
What's next?
Lebanon's government has so far struggled to formulate a response to the civil unrest that threatens to irrevocably damage its reputation. The government has so far been unwilling to engage with the root causes of the demonstrations but, if it wants to unblock the badly needed economic assistance pledged by international donors, will need to make important reforms.
Does Lebanon's fragile coalition government have the political capital to face the challenge head on? While demonstrators in the streets of Beirut have demonstrated their courage, Lebanon's sclerotic political system has yet to do the same.
(Disclaimer: The opinions expressed are the personal views of the author. The facts and opinions appearing in the article do not reflect the views of Devdiscourse and Devdiscourse does not claim any responsibility for the same.)