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Vortek Aviation LLC v. Krachinski

Court of Appeals of Texas, First District

July 25, 2019


          On Appeal from the 165th District Court Harris County, Texas Trial Court Case No. 2017-58042.

          Panel consists of Justices Keyes, Kelly, and Goodman.


          Evelyn V. Keyes Justice.

         Appellees Zach Krachinski and Ark 84 LLC sued appellants Vortek Aviation LLC and Wayne Schmitz for breach of contract, fraud, and several other causes of action, alleging that Vortek and Schmitz had failed to provide repairs to Krachinski and Ark 84's aircraft as agreed between the parties. Neither Vortek nor Schmitz filed a timely answer, and the trial court rendered a default judgment in favor of Krachinski and Ark 84. Vortek and Schmitz filed a motion for new trial asserting that the judgment did not comport with Krachinski and Ark 84's pleadings. The trial court denied the motion for new trial by operation of law. Now, on appeal, Vortek and Schmitz argue: (1) the judgment rendered by the trial court did not conform to the pleadings; (2) the trial court failed to hold a hearing on unliquidated damages; and (3) Krachinski and Ark 84 failed to provide evidence of unliquidated damages.

         We affirm.


         Krachinski created Ark 84 LLC as a holding company for his 1984 Piper PA-46-310P Malibu aircraft (the Aircraft). Krachinski and Ark 84 (collectively, Krachinski) engaged Vortek to make some repairs to the Aircraft and paid $71, 100 in advance. Vortek is an FAA-Certified Repair Station that operates at David Wayne Hooks Airport in Harris County, Texas, and Schmitz is Vortek's president. Krachinski was unhappy with the work ultimately performed by Vortek because the repairs were incomplete and took many months longer than the time agreed to by the parties. Krachinski sought redress by engaging an attorney to seek completion of the repairs and/or return of the Aircraft. Krachinski was ultimately able to reclaim the Aircraft.

         Accordingly, on September 5, 2017, Krachinski filed suit against Vortek and Schmitz. His petition identified Vortek, Schmitz, and a Vortek employee named Ricardo Santiesteban as defendants.[1] Krachinski alleged that, in December 2015, "pursuant to a written proposal from Vortek (the 'Agreement'), the parties agreed that Vortek would install upgraded avionics in the Aircraft" for an "agreed price [of] $71, 100 for parts and labor." The petition further alleged that "Defendants required payment of $60, 900 immediately, allegedly to take advantage of a promotion being offered by the manufacturer," and that Krachinski was "told by Defendants, in writing, that the project would take '6 weeks or less.'" Krachinski paid the entire $71, 100 in advance and left the Aircraft with Vortek. However, according to the petition, "Defendants did not purchase the equipment [from the manufacturer] as they said they would." Krachinski alleged that Vortek and Schmitz used his money for other projects, causing him to miss the discounted price associated with the manufacturer's promotion, and gave "a steady stream of excuses" as to why the project was not proceeding despite the passage of several months.

         Krachinski alleged that Vortek eventually gave him "a written 'promissory,' signed by [Santiesteban] on Vortek letterhead, which was apparently intended to serve as a written assurance that the Aircraft would be ready 'by the end of August 2016.'" Despite this representation by Vortek, the work was not completed by August 2016, and "the parties agreed to have another facility at the airport perform an annual inspection, independent of the avionics work allegedly being performed on the Aircraft" by Vortek.

         Krachinski further alleged:

When the inspection was completed and it was time to return the Aircraft to Defendants' [Vortek and Schmitz's] facility, for reasons known only to Defendants, they told the inspection facility they did not want the Aircraft back in their hangar because Plaintiffs [Krachinski and Ark 84] were not paying their bills. This blatant lie caused Plaintiffs to have problems with several business at the airport.

         Krachinski alleged that, because of the problems that arose due to Vortek's "misrepresentations" about him and the extreme delays in completing the agreed-upon repairs, he retained an attorney. Ultimately, it took Krachinski "20 months from when the parties made the Agreement until the Aircraft was delivered" to him, and there were still problems with the work that had been performed. Krachinski alleged that, among other concerns, he had paid for work that was not done, he had paid for equipment that was not installed, and some equipment had been installed incorrectly and had to be corrected.

         Based on these facts, Krachinski alleged causes of action for breach of contract, breach of implied warranty of good and workmanlike performance of services, fraud, negligent misrepresentation, conversion, defamation, business disparagement, and conspiracy. Regarding his cause of action for breach of contract, Krachinski alleged:

Plaintiffs had a valid, enforceable written Agreement, supplemented by both written and oral amendments, which Defendants breached. Plaintiffs are the proper parties to sue for the breach of the contract, and have in every respect performed as agreed. Defendant Vortek breached the contract, which caused injury to Plaintiffs.

         Krachinski sought actual damages, including:

actual damages for difference in value between the avionics contracted for and avionics installed, lost rebates worth thousands of dollars, hangar expenses incurred by Plaintiffs in Indiana in anticipation of the return of the Aircraft and necessary to avoid forfeiting hangar space, insurance on the Aircraft while in Defendants' possession, travel expenses for a useless trip to Texas, expenses to perform work that Defendants were paid to do but did not do, expense[s] to correct problems with the avionics installed by Defendants, an annual inspection required because six weeks turned out to be 20 months, value of avionics removed from the Aircraft that are still the property of Plaintiffs, expenses incurred to have pilots repeatedly available to test fly the Aircraft and to diagnose and repair installation problems caused by Defendants, and reasonable attorney's fees required to convince Defendants that they had to get the project completed when they refused to respond to Plaintiffs' demands (which still took five more months).

         Krachinski also sought exemplary damages under Civil Practice and Remedies Code chapter 41.003, mental anguish damages, and "reasonable and necessary costs and attorney's fees pursuant to Texas Civil Practice and Remedies Code § 37.009 and § 38.001."

         In his petition, Krachinski also applied for a temporary restraining order and temporary injunction. Krachinski alleged, "Plaintiffs have just become aware that Defendants have shut down Vortek and chained the doors to the business. Upon information and belief, Defendants are in the process of selling Vortek, or the assets of Vortek, to a foreign entity." Krachinski sought a temporary restraining order and temporary injunction to protect Vortek's assets until a hearing could be held and he could obtain a judgment.

         On September 7, 2017, Vortek was served with the original petition through its registered agent, Thomas Kerr. The return of service was ...

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