SOUTHEAST TEXAS RECORD

A Houston company, seeking a foreclosure against a Jefferson County corporation after it claimed it was not paid for work it performed, is now the defendant in a lawsuit that alleges the issue has already been settled.

Eros Enterprises filed an application for bill of review Nov. 9 in Jefferson County District Court against Asco USA, doing business as Asco Environmental Services.

In its application, Eros alleges Asco performed services at one of its Beaumont properties. After the work, Asco filed a lien against Eros because it claims it was not paid for its job, according to the complaint.

In contrast to Asco’s assertions, however, Eros contends it should never have been named as a defendant in the case. It claims it was not the right corporation to face foreclosure.

Instead, J&J Construction, which was the general contractor of the site where the work was being performed, should be held responsible for monetary damages, according to the complaint.

“The problem, however, with the judgment that was obtained by ASCO, in addition to the fact that said judgment was obtained by either fraud, accident or wrongful act, is the fact that any claim for foreclosure of the Mechanic’s and Materialman’s lien that had existed against the property owned by Eros was compromised and settled by ASCO on March 18, 2003, a date subsequent to institution of the pending litigation, but prior to execution of the default judgment made the basis of the instant proceeding,” the suit states.

After Asco obtained the default judgment against Eros in 2003, the court forwarded notice of the judgment to the wrong address, the complaint says.

Therefore, Eros claims it never received the notice and could not appear at a subsequent hearing.

“At that hearing, Eros would have been in a position to advise the court not only of the fact of the previous compromise and settlement of the mechanic’s and materialman’s lien, but would also be able to contest any purported claim that Eros was ‘contractually obligated’ to Asco,” the suit states.

Had it known of the default judgment against it, Eros claims it could have either filed a motion asking the court to set aside the default or could have filed a notice of appeal.

In its current complaint, Eros seeks an appropriate order setting aside the default judgment, plus other relief the court deems just.

James E. Wimberley of McPherson, Hughes, Bradley, Wimberley, Steele and Chatelain in Port Arthur will be representing it.

Judge Donald Floyd, 172nd District Court, has been assigned to the case.

Case No. E193-289