Preview
FILED
1-CIT-ESERVE DALLAS COUNTY
4/5/2018 1:05 PM
FELICIA PITRE
DISTRICT CLERK
Marcus Turner
CAUSENO.
CAUSE NO. DC-18-02358
DC-18-02358
DC-l 8-02358
MUSEUM TOWER, LP
MUSEUM $ IN THE DISTRICT COURT
COURT
$
Plaintiff
Plaintifi’ $
$
V
V.
v. 162M)
162ND
1 62ND JUDICIAL DISTRICT
$
$
AUSTIN BUILDING COMPANY
AUSTIN COMPANY $
$
mmflmmmmmmmmmmmm
Defendant Third Party
Defendant and Third Party Plaintiff
Plaintifl $ DALLAS COUNTY, TEXAS
$
V.
V. $
$
EGR CONSTRUCTION, INC. $
$
Third
Third Party
Party Defendant
Defendant $
AUSTIN COMPANY’S
BUILDING COMPANY'S
AUSTIN BUILDING IGINAI, THIRD PARTY PETITION
COMPANY'S ORIGINAL PETITTON
CONSTRUCTION. INC.
AGAINST EGR CONSTRUCTION,
AGAINST
Austin Building Company
Austin ("Austin") files
Company ("Austin")
(“Austin”) files this,
files this, its Third
this, its
its Third Party
Third Party Petition,
Party Petition, against
Petition, against EGR
against
Construction,
Construction, Inc. (“EGR”), and would show the
Inc. ("EGR"), the Court the following:
the following:
following:
I.
I.
NTROI, PLAN
DISCOVERY CONTROL
DISCOVERY PI,AN
1.
1.
I. Austin
Austin intends to conduct
intends to conduct discovery
discovery under Level 3
3 under Rule 190
under Rule 190 of the
the Texas Rule of
ofthe
Civil
Civil Procedure.
Procedure.
II.
II.
PARTIES
2.
2.
2. Austin is
Austin
Austin is aaa Delaware corporation,
is duly authorized
corporation, duly
duly authorized to
authorized do business
to do
d0 in the
business in
in the
the State
State of Texas,
State Texas,
Texas,
which has
has appeared and answered in
appeared and in this
this case.
case.
3.
3.
3. EGR is aa
EGR is
is foreign corporation
a foreign
foreign corporation authorized
corporation to do
authorized to
authorized t0 do business
d0 business in Texas
business in
in and
Texas and is
and is
is conducting
conducting
business
business in
business in
in Texas. EGR can
Texas. EGR
Texas. can be served
can be
be served through
served through its registered
through its
its registered agent
registered agent for service
agent for
for service in
service in
in Texas,
Texas,
Registered
Registered Agents,
Agents, Inc., at 700 Lavaca,
Inc., at Lavaca. Suite
Lavaca, Suite 1401,
1401, Austin, Texas 7870].
I401, Austin, 78701.
7870].
-AUS'I‘IN
AUSTIN BUILDING'S ORIGINAL
BUILDING'S
BUILDING’S PETITIO—N AGAINST EGR
ORIGINAL THIRD PARTY PETITION PiAGE I1 OF
PAGE l OF 88
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ilI.
III.
III.
JURISDICTION AND VENUE
VBNUE
| 4.+.
4. This Court has jurisdiction
jurisdiction over EGR because
has jurisdiction because EGR_is registered t0
EGR-is registered to do business in
d0 business in Texas
in Texas
I
I
and
and in fact, conducts business
in fact, business in
in Texas.
Texas. This Court has jurisdiction
jurisdiction over the
hasjurisdiction the controversy because
controversy because
the damages
the
the damages sought
sought by Austin,
by
sought by Austin, derivative
Austin, those sought
derivative of those
those by Plaintiff,
sought by
by Plaintiff, are
Plaintiff, are in excess
are in
in excess 0f the
excess of the
jurisdictional
jurisdictional
jurisdictional minimum of
0f this
this Court.
Court.
Court.
5.
5.
5. is proper
Venue is
Venue is in Dallas
proper in
in Dallas County,
Dallas County, Texas
County, Texas under
under Civil Practice
under Civil
Civil Practice and
Practice and Remedies
Remedies Code
Section
Section 15.002(1)
Section because Dallas
15.002(1) because
15.0020) County is
Dallas County is the
the county
county in which
county in
in which a substantial
substantial part
part of the
the events
ofthe events
giving rise to
giving rise t0 the
the claims
claims asserted herein occurred.
asserted herein occurred.
occurred.
6.
6.
6. Joinder 0f EGR
Joinder of EGR is proper under Rule 38 of
is proper the Texas Rules of Civil
0f the Civil Procedure because
EGR is
EGR is liable
is to Austin
liable to
t0 Austin if, and
Austin if,
if, to the
and to
t0 the extent,
the that Austin
that
extent, that is found
Austin is
is found liable to Plaintiff
liable to
to Plaintiff Museum
Towers,
Towers, LP ("Museum Tower") or
(“Museum Tower”) or others for damages caused
others for by the
caused by the acts
acts or
0r omissions 0f EGR.
omissions of
This Third Party
This Party action
action is being filed
is being filed within
within 30 days
days of Austin's service
ofAustin’s service of
0f its Original Answer in
its Original
Original in
this
this case.
case.
7.
7.
7. Joinder of EGR
Joinder of
Joinder 0f is also
EGR is
is proper under
also proper
also under Rules 39 and
Rules 39 of
40 of
and 40 the Texas
0f the
the Texas Rules of Civil
Rules of Civil
Procedure. In EGR's
Procedure. In EGR’S absence,
absence, complete relief cannot be accorded among those
complete relief those already
already parties
parties to
t0
this suit.
this suit. The claims
suit. Thc claims in this matter
in this matter also
also arise
arise out
arise out of
0f the transactions which are
the same transactions
transactions are the
the basis
the basis of
0f
the
the claims asserted
asserted by Museum Tower and there
by Museum there
there are
are common questions 0f law and fact.
questions of fact. Joinder
Joinder
will also
will
will also help avoid
also help
help avoid the substantial
avoid the
the substantial possibility
substantial possibility of Austin
possibility of
0f Austin incurring
Austin incurring inconsistent
incurring inconsistent results
results with
results with
respect to
respect to its rights and obligations
its rights vis-ir-vis Museum Tower and EGR.
obligations vis-à-vis
vis-é-Vis EGR.
BUILDING'S ORIGINAL
AUSTIN BUILDING'S
BUILBING’S 'l‘IIIRD PARTY
ORIGINAL THIRD PETIIION AGAINST EGR
I’AR'I'Y PETITION
l’lé'l‘ITION PAGE 22 OF 88
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IV.
IV.
BACKGROUND FACTS
BACKGROUND FACTS
8.
8.
8. Museum Tower
Museum
Muscum filed suit
Tower filed
filed suit (the "Suit")
suit (the
(the “Suit”) against
against Austin on
against Austin on February 20, 2018
February 20,
20, 2018 asserting
asserting
asserting
claims for breach
claims for breach of express warranty/breach
0f express warranty/breach of contract, breach
of contract, implied warranty
breach of implied warranty of
of good and
workmanlike construction,
workmanlike construction, for attorney's
and for
construction, and for attorney's fees.
attorney’s fees. Tower's claims
Museum Tower's
fees. Museum Tower’s claims relate to the
relate to
claims relate to the
manufacture,
manufacture, construction,
manufacture, and installation
construction, and
construction, installation of kitchen
installation of
0f kitchen cabinets
kitchen cabinets in aaa high-rise
cabinets in
in high-rise residential
high—rise residential
condominium in Dallas,
condominium tower in Dallas, Dallas County, Texas,
Dallas County, Texas, known as (the "Project").
as Museum Tower (the "Project").
“Project”).
In the
In
In the Suit,
the Suit, Museum
Suit, Tower has
Museum Tower has asserted
has asserted certain
asserted certain of
certain 0f these
these kitchen
these kitchen cabinets have
kitchen cabinets
cabinets have experienced
have experienced
experienced
delamination
delamination of their metal edge banding.
their metal banding.
9.
9.
9. part
As part
part of
of the
the Project,
the Austin entered
Project, Austin
Austin entered into aaa Subcontract
entered into
into with
Subcontract Agreement with
with EGR for
for the
the
manufacture and
manufacture and installation 0f millwork
installation of millwork at
at the Project, including
the Project, including the kitchen cabinets
the kitchen cabinets that
that form
the basis of Museum Tower's
the basis Tower’s suit
suit (the “Subcontract Agreement").
(the "Subcontract Agreement").
Agreement”).
10. EGR's
10.
10. EGR's scope
EGR’S of work
scope of
scope 0f work under the Subcontract
under the
the Subcontract Agreement included the manufacture,
included the
Agreement included the manufacture,
construction,
construction, and installation 0f the
installation of
installation kitchen cabinets
the kitchen forthe
cabinets for
for the Project. Museum Tower
the Project. has
has alleged
Towerhas alleged
in its petition
in its petition that
that the kitchen cabinets
the kitchen failed and has
cabinets have failed
failed has asserted claims for
asserted claims for damages related
related to
t0
those alleged
those failures. Austin wholly
alleged failures. wholly denies
wholly denies that it is
that it is responsible for those
responsible for those alleged
alleged failures.
failures.
failures.
11. Subject
11.
11. Subject to
t0 its
its denial 0f liability,
denial of liability, and
and to
to the extent that
the extent that Museum Tower proves
proves its
Towerproves its claims,
claims,
claims,
Austin
Austin pleads that EGR is
pleads that is liable
liable to Austin for
to Austin
Austin all or
for all
all part of
or part
part Tower’s alleged
0f Museum Tower's alleged damages
related to
related to the alleged failure
the alleged failure of
0f the kitchen cabinets.
the kitchen cabinets.
BUILDINGS TI-IIRD PARTY PETITION AGAINST EGR
ORICINAL THIRD
BUILDING'S ORIGINAL
AUSTIN BUILDING'S PAGE 33 OF 88
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V.
V.
V.
ACTI
CAUSBS OF ACTION
CAUSES
A.
A.
A. BRBncHopCoNrRacr
BREACH 0F CONTRACT
OF
12. Austin
12.
12. Austin re-pleads,
Austin re-states, and
re-pleads, re—states, and re-alleges the previous paragraphs
the previous
re—alleges the paragraphs above
above as
as if
as set forth
if set
set forth
fully herein.
fully herein.
13. IfIf itit isisis determined
13.
13. determined that
that Austin's
Austin’s acts or omissions caused
acts or
0r or contributed,
caused or
0r in whole or
contributed, in
in or in
or in
part, to
part, t0 the
the breaches 0f contract
breaches of contract alleged
contract by Museum Tower, Austin will
alleged by that EGR breached
will show that breached
by reason
Subcontract Agreement by
the Subcontract
the reason of its acts or
its acts or omissions.
omissions.
14. Austin
14.
14. any and all
Austin seeks any damages from
all damages fron-r EGR arising out of
arising out 0f or by EGR's
0r caused by EGR’s breach
breach of
the Subcontract
the as well
Subcontract Agreement, as well as any applicable
as any applicable express
express and/or implied warranties.
and/or implied warranties.
warranties.
B.
B. BRoacsor
BREACH 0F EXPRESS
OF WnRR,ttlt.Iy
Rss WARRANTY
15. Austin
15.
15. re-pleads, re-states, and
re-pleads, re-states,
Austin re-pleads, re-alleges the
re-alleges
and re—alleges previous paragraphs
the previous paragraphs above
above as
as if
as set forth
if set
set forth
fully herein.
fully
fully herein.
herein.
16. EGR
16.
16. EGR expressly
expressly warranted,
warranted, at
at Article 22
at Article
Article 22 of
22 the Subcontract
of the
the Subcontract Agreement,
Subcontract "to replace
Agreement, "to
“to replace
replace or
or
repair
repair any
any faulty 0r defective
faulty or material or
defective material workmanship.” EGR further
or workmanship." expressly warranted
further expressly warranted that,
that,
"In addition, Subcontractor
“In addition, shall be responsible
Subcontractor shall
Subcontractor responsible for
responsible pay for
for and pay for replacement
replacement or repair
replacement or repair of adjacent
adjacent
materials or work which may be
materials or or other
be damaged or
or which Contractor
for which
other amounts for Contractor may become
become
liable due
liable
liable to the
due to
to the failure
the of Subcontractor's
failure of material or work
material or
Subcontractor’s material 0r work and/or damage as
as result of
as aaa result
result 0f the
the
replacement or repairs
replacement or
replacement 0r repairs thereof"
thereof.” If and
thereof." If
If to the
and to
t0 the extent
the extent that is found
Austin is
that Austin
extent that is found liable
liable to Museum
liable to
t0
Tower or others
Tower or
0r for damages caused
others for
others for caused in whole
caused in
in or in
whole or
or in part by
in part
part by the
by the failure
the failure of EGR's
failure of
0f EGR’s goods
goods and
goods
services
services to meet
services to
to the contract
meet the
the contract specifications
contract specifications or aaa finding
specifications or
or finding that the
finding that
that the goods
the and services
goods and services were
services
otherwise
otherwise defective,
defective, then EGR breached
defective, then breached its express warranties.
its express warranties.
warranties.
17. Austin
17.
17. Austin seeks
seeks any and all
any and all damages against EGR arising
damages against out of
arising out 0f or by EGR's
0r caused by EGR’s breach
breach
the warranties
of the warranties in
in the Subcontract Agreement.
the Subcontract
Subcontract Agreement.
7
BUILEING'S ORIGINAL
BUILDlfiG’S
AUSTIN BUILDING'S {1RD PARTY PETITION AGAINST EGR
ORIGINAL THIRD
'l‘l
PAGE
PAGE 4 OF 88
3928433 1
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C.
C. BREACH
BRBacg OF
0F Iuplrno WARRANTY
or IMPLIED WIRRaNTY
18. Austin
18.
l8. Austin re-pleads,
Austin re-states, and
re-pleads, re-states,
re-pleads, re—states, re-alleges
and re—alleges the previous
the
re-alleges thc paragraphs above
previous paragraphs above as
as if set
as if
if set forth
set forth
fully herein.
fully herein.
19. Museum
19.
19. Tower has
Museum Tower pled aa cause
has pled
pled of action
cause of action against
action against Austin for breach
Austin for
for of the
breach of the implied
the implied
warranty
warranty of performance in
0f performance a good and
a good
in a manner. If
and workmanlike manner.
manner. and to
If and t0 the
the extent that Austin
extent that Austin is
is
found liable
liable to or others
Museum Tower or
to Museum others for damages caused in
for damages in whole or in part
or in part by
by the breach of
the breach 0f
this implied warranty,
this then EGR breached
warranty, then breached
breached its implied warranty
its implied warranty to
to Austin.
Austin.
Austin.
20. Austin
20.
20. Austin seeks
seeks any
any and all damages
and all against EGR arising
damages against arising out
out of or caused by
ofor by EGR's
EGR’s breach
breach
of the implied
ofthe implied warranty
warranty of
0f performance in aa good and workmanlike
performance in workmanlike manner.
manner.
D.
D.
D. DUTY ro DEFEND
Durv TO
To DBnBNo
21. Austin
21.
21. Austin re-pleads,
Austin re-states, and
re-pleads, re-states, the previous
re-alleges the
and re—alleges the paragraphs above
previous paragraphs above as
as if set
as if
if set forth
set forth
fully herein.
fully herein.
herein.
22.
22.
22‘ Paragraph 12
Paragraph 12 of
12 the Subcontract
0f the
the Subcontract Agreement between
Subcontract requires EGR to
between Austin and EGR requires t0
EGR's acts
for EGR’s
defend Austin for or omissions
acts or omissions related to the
related to the Project.
Project.
Project.
23.
23.
23. Austin hereby
Austin hereby asserts
asserts that
that EGR is contractually bound to
is contractually
contractually t0 defend Austin from and against
defend Austin against
claims by
claims that arise
Museum Tower that
by Museum arise out
out of or relate to
or relate EGR's work on
t0 EGR’s 0n the Project, even if
the Project, if Austin
Austin
0r Museum Tower were partially
or negligent.
partially negligent.
24. Austin's
24.
24. to aaa defense
right to
Austin’s right
right to defense from EGR includes
from EGR includes reimbursement for attorneys'
reimbursement for
includes reimbursement for attorneys' fees
attorneys’ fees and
fees
litigation expenses
litigation
litigation in the
incurred in
expenses incurred in Austin in
Austin
the defense of Austin in this
in matter and
matter
this matter and in pursuit of
in pursuit
pursuit this third-
ofthis third-
party action.
party action. Austin seeks
action. reimbursement 0f and
reimbursement of
seeks reimbursement and indemnity
and indemnity for
indemnity for all
all such fccs and costs.
such fees costs.
BUILDING'S ORIGINAL
BUILDING’S
AUSTIN BUILDING'S ORIGINAL THIRD PETITION AGAINST EGR
'I'IHRI) PARTY PETITION OF 888
PAGE 55 OF
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E.
E.
E. Ii,lopnaNtrv
INDEMNITY
25. Austin
25.
25. Austin re-pleads,
Austin re-pleads, re-states,
re—pleads, rc—states, and
and re—alleges the previous
re-alleges the
the paragraphs above
previous paragraphs above as
as if set
as if set forth
set forth
fully
fully herein.
herein.
26.
26.
26. Paragraph
Paragraph 12
Paragraph of the
12 of
12 the as modified
Subcontract Agreement, as
the Subcontract as modified by the First
by the First Addendum dated
dated
Septem
Preview
FILED 1-CIT-ESERVE DALLAS COUNTY 4/5/2018 1:05 PM FELICIA PITRE DISTRICT CLERK Marcus Turner CAUSENO. CAUSE NO. DC-18-02358 DC-18-02358 DC-l 8-02358 MUSEUM TOWER, LP MUSEUM $ IN THE DISTRICT COURT COURT $ Plaintiff Plaintifi’ $ $ V V. v. 162M) 162ND 1 62ND JUDICIAL DISTRICT $ $ AUSTIN BUILDING COMPANY AUSTIN COMPANY $ $ mmflmmmmmmmmmmmm Defendant Third Party Defendant and Third Party Plaintiff Plaintifl $ DALLAS COUNTY, TEXAS $ V. V. $ $ EGR CONSTRUCTION, INC. $ $ Third Third Party Party Defendant Defendant $ AUSTIN COMPANY’S BUILDING COMPANY'S AUSTIN BUILDING IGINAI, THIRD PARTY PETITION COMPANY'S ORIGINAL PETITTON CONSTRUCTION. INC. AGAINST EGR CONSTRUCTION, AGAINST Austin Building Company Austin ("Austin") files Company ("Austin") (“Austin”) files this, files this, its Third this, its its Third Party Third Party Petition, Party Petition, against Petition, against EGR against Construction, Construction, Inc. (“EGR”), and would show the Inc. ("EGR"), the Court the following: the following: following: I. I. NTROI, PLAN DISCOVERY CONTROL DISCOVERY PI,AN 1. 1. I. Austin Austin intends to conduct intends to conduct discovery discovery under Level 3 3 under Rule 190 under Rule 190 of the the Texas Rule of ofthe Civil Civil Procedure. Procedure. II. II. PARTIES 2. 2. 2. Austin is Austin Austin is aaa Delaware corporation, is duly authorized corporation, duly duly authorized to authorized do business to do d0 in the business in in the the State State of Texas, State Texas, Texas, which has has appeared and answered in appeared and in this this case. case. 3. 3. 3. EGR is aa EGR is is foreign corporation a foreign foreign corporation authorized corporation to do authorized to authorized t0 do business d0 business in Texas business in in and Texas and is and is is conducting conducting business business in business in in Texas. EGR can Texas. EGR Texas. can be served can be be served through served through its registered through its its registered agent registered agent for service agent for for service in service in in Texas, Texas, Registered Registered Agents, Agents, Inc., at 700 Lavaca, Inc., at Lavaca. Suite Lavaca, Suite 1401, 1401, Austin, Texas 7870]. I401, Austin, 78701. 7870]. -AUS'I‘IN AUSTIN BUILDING'S ORIGINAL BUILDING'S BUILDING’S PETITIO—N AGAINST EGR ORIGINAL THIRD PARTY PETITION PiAGE I1 OF PAGE l OF 88 3928433_1 3928433 | 3928433 l ilI. III. III. JURISDICTION AND VENUE VBNUE | 4.+. 4. This Court has jurisdiction jurisdiction over EGR because has jurisdiction because EGR_is registered t0 EGR-is registered to do business in d0 business in Texas in Texas I I and and in fact, conducts business in fact, business in in Texas. Texas. This Court has jurisdiction jurisdiction over the hasjurisdiction the controversy because controversy because the damages the the damages sought sought by Austin, by sought by Austin, derivative Austin, those sought derivative of those those by Plaintiff, sought by by Plaintiff, are Plaintiff, are in excess are in in excess 0f the excess of the jurisdictional jurisdictional jurisdictional minimum of 0f this this Court. Court. Court. 5. 5. 5. is proper Venue is Venue is in Dallas proper in in Dallas County, Dallas County, Texas County, Texas under under Civil Practice under Civil Civil Practice and Practice and Remedies Remedies Code Section Section 15.002(1) Section because Dallas 15.002(1) because 15.0020) County is Dallas County is the the county county in which county in in which a substantial substantial part part of the the events ofthe events giving rise to giving rise t0 the the claims claims asserted herein occurred. asserted herein occurred. occurred. 6. 6. 6. Joinder 0f EGR Joinder of EGR is proper under Rule 38 of is proper the Texas Rules of Civil 0f the Civil Procedure because EGR is EGR is liable is to Austin liable to t0 Austin if, and Austin if, if, to the and to t0 the extent, the that Austin that extent, that is found Austin is is found liable to Plaintiff liable to to Plaintiff Museum Towers, Towers, LP ("Museum Tower") or (“Museum Tower”) or others for damages caused others for by the caused by the acts acts or 0r omissions 0f EGR. omissions of This Third Party This Party action action is being filed is being filed within within 30 days days of Austin's service ofAustin’s service of 0f its Original Answer in its Original Original in this this case. case. 7. 7. 7. Joinder of EGR Joinder of Joinder 0f is also EGR is is proper under also proper also under Rules 39 and Rules 39 of 40 of and 40 the Texas 0f the the Texas Rules of Civil Rules of Civil Procedure. In EGR's Procedure. In EGR’S absence, absence, complete relief cannot be accorded among those complete relief those already already parties parties to t0 this suit. this suit. The claims suit. Thc claims in this matter in this matter also also arise arise out arise out of 0f the transactions which are the same transactions transactions are the the basis the basis of 0f the the claims asserted asserted by Museum Tower and there by Museum there there are are common questions 0f law and fact. questions of fact. Joinder Joinder will also will will also help avoid also help help avoid the substantial avoid the the substantial possibility substantial possibility of Austin possibility of 0f Austin incurring Austin incurring inconsistent incurring inconsistent results results with results with respect to respect to its rights and obligations its rights vis-ir-vis Museum Tower and EGR. obligations vis-à-vis vis-é-Vis EGR. BUILDING'S ORIGINAL AUSTIN BUILDING'S BUILBING’S 'l‘IIIRD PARTY ORIGINAL THIRD PETIIION AGAINST EGR I’AR'I'Y PETITION l’lé'l‘ITION PAGE 22 OF 88 3928433 I 3928433_1 3928433| IV. IV. BACKGROUND FACTS BACKGROUND FACTS 8. 8. 8. Museum Tower Museum Muscum filed suit Tower filed filed suit (the "Suit") suit (the (the “Suit”) against against Austin on against Austin on February 20, 2018 February 20, 20, 2018 asserting asserting asserting claims for breach claims for breach of express warranty/breach 0f express warranty/breach of contract, breach of contract, implied warranty breach of implied warranty of of good and workmanlike construction, workmanlike construction, for attorney's and for construction, and for attorney's fees. attorney’s fees. Tower's claims Museum Tower's fees. Museum Tower’s claims relate to the relate to claims relate to the manufacture, manufacture, construction, manufacture, and installation construction, and construction, installation of kitchen installation of 0f kitchen cabinets kitchen cabinets in aaa high-rise cabinets in in high-rise residential high—rise residential condominium in Dallas, condominium tower in Dallas, Dallas County, Texas, Dallas County, Texas, known as (the "Project"). as Museum Tower (the "Project"). “Project”). In the In In the Suit, the Suit, Museum Suit, Tower has Museum Tower has asserted has asserted certain asserted certain of certain 0f these these kitchen these kitchen cabinets have kitchen cabinets cabinets have experienced have experienced experienced delamination delamination of their metal edge banding. their metal banding. 9. 9. 9. part As part part of of the the Project, the Austin entered Project, Austin Austin entered into aaa Subcontract entered into into with Subcontract Agreement with with EGR for for the the manufacture and manufacture and installation 0f millwork installation of millwork at at the Project, including the Project, including the kitchen cabinets the kitchen cabinets that that form the basis of Museum Tower's the basis Tower’s suit suit (the “Subcontract Agreement"). (the "Subcontract Agreement"). Agreement”). 10. EGR's 10. 10. EGR's scope EGR’S of work scope of scope 0f work under the Subcontract under the the Subcontract Agreement included the manufacture, included the Agreement included the manufacture, construction, construction, and installation 0f the installation of installation kitchen cabinets the kitchen forthe cabinets for for the Project. Museum Tower the Project. has has alleged Towerhas alleged in its petition in its petition that that the kitchen cabinets the kitchen failed and has cabinets have failed failed has asserted claims for asserted claims for damages related related to t0 those alleged those failures. Austin wholly alleged failures. wholly denies wholly denies that it is that it is responsible for those responsible for those alleged alleged failures. failures. failures. 11. Subject 11. 11. Subject to t0 its its denial 0f liability, denial of liability, and and to to the extent that the extent that Museum Tower proves proves its Towerproves its claims, claims, claims, Austin Austin pleads that EGR is pleads that is liable liable to Austin for to Austin Austin all or for all all part of or part part Tower’s alleged 0f Museum Tower's alleged damages related to related to the alleged failure the alleged failure of 0f the kitchen cabinets. the kitchen cabinets. BUILDINGS TI-IIRD PARTY PETITION AGAINST EGR ORICINAL THIRD BUILDING'S ORIGINAL AUSTIN BUILDING'S PAGE 33 OF 88 3928433 1I 3928433 392843371 V. V. V. ACTI CAUSBS OF ACTION CAUSES A. A. A. BRBncHopCoNrRacr BREACH 0F CONTRACT OF 12. Austin 12. 12. Austin re-pleads, Austin re-states, and re-pleads, re—states, and re-alleges the previous paragraphs the previous re—alleges the paragraphs above above as as if as set forth if set set forth fully herein. fully herein. 13. IfIf itit isisis determined 13. 13. determined that that Austin's Austin’s acts or omissions caused acts or 0r or contributed, caused or 0r in whole or contributed, in in or in or in part, to part, t0 the the breaches 0f contract breaches of contract alleged contract by Museum Tower, Austin will alleged by that EGR breached will show that breached by reason Subcontract Agreement by the Subcontract the reason of its acts or its acts or omissions. omissions. 14. Austin 14. 14. any and all Austin seeks any damages from all damages fron-r EGR arising out of arising out 0f or by EGR's 0r caused by EGR’s breach breach of the Subcontract the as well Subcontract Agreement, as well as any applicable as any applicable express express and/or implied warranties. and/or implied warranties. warranties. B. B. BRoacsor BREACH 0F EXPRESS OF WnRR,ttlt.Iy Rss WARRANTY 15. Austin 15. 15. re-pleads, re-states, and re-pleads, re-states, Austin re-pleads, re-alleges the re-alleges and re—alleges previous paragraphs the previous paragraphs above above as as if as set forth if set set forth fully herein. fully fully herein. herein. 16. EGR 16. 16. EGR expressly expressly warranted, warranted, at at Article 22 at Article Article 22 of 22 the Subcontract of the the Subcontract Agreement, Subcontract "to replace Agreement, "to “to replace replace or or repair repair any any faulty 0r defective faulty or material or defective material workmanship.” EGR further or workmanship." expressly warranted further expressly warranted that, that, "In addition, Subcontractor “In addition, shall be responsible Subcontractor shall Subcontractor responsible for responsible pay for for and pay for replacement replacement or repair replacement or repair of adjacent adjacent materials or work which may be materials or or other be damaged or or which Contractor for which other amounts for Contractor may become become liable due liable liable to the due to to the failure the of Subcontractor's failure of material or work material or Subcontractor’s material 0r work and/or damage as as result of as aaa result result 0f the the replacement or repairs replacement or replacement 0r repairs thereof" thereof.” If and thereof." If If to the and to t0 the extent the extent that is found Austin is that Austin extent that is found liable liable to Museum liable to t0 Tower or others Tower or 0r for damages caused others for others for caused in whole caused in in or in whole or or in part by in part part by the by the failure the failure of EGR's failure of 0f EGR’s goods goods and goods services services to meet services to to the contract meet the the contract specifications contract specifications or aaa finding specifications or or finding that the finding that that the goods the and services goods and services were services otherwise otherwise defective, defective, then EGR breached defective, then breached its express warranties. its express warranties. warranties. 17. Austin 17. 17. Austin seeks seeks any and all any and all damages against EGR arising damages against out of arising out 0f or by EGR's 0r caused by EGR’s breach breach the warranties of the warranties in in the Subcontract Agreement. the Subcontract Subcontract Agreement. 7 BUILEING'S ORIGINAL BUILDlfiG’S AUSTIN BUILDING'S {1RD PARTY PETITION AGAINST EGR ORIGINAL THIRD 'l‘l PAGE PAGE 4 OF 88 3928433 1 3928433 3928431 11 C. C. BREACH BRBacg OF 0F Iuplrno WARRANTY or IMPLIED WIRRaNTY 18. Austin 18. l8. Austin re-pleads, Austin re-states, and re-pleads, re-states, re-pleads, re—states, re-alleges and re—alleges the previous the re-alleges thc paragraphs above previous paragraphs above as as if set as if if set forth set forth fully herein. fully herein. 19. Museum 19. 19. Tower has Museum Tower pled aa cause has pled pled of action cause of action against action against Austin for breach Austin for for of the breach of the implied the implied warranty warranty of performance in 0f performance a good and a good in a manner. If and workmanlike manner. manner. and to If and t0 the the extent that Austin extent that Austin is is found liable liable to or others Museum Tower or to Museum others for damages caused in for damages in whole or in part or in part by by the breach of the breach 0f this implied warranty, this then EGR breached warranty, then breached breached its implied warranty its implied warranty to to Austin. Austin. Austin. 20. Austin 20. 20. Austin seeks seeks any any and all damages and all against EGR arising damages against arising out out of or caused by ofor by EGR's EGR’s breach breach of the implied ofthe implied warranty warranty of 0f performance in aa good and workmanlike performance in workmanlike manner. manner. D. D. D. DUTY ro DEFEND Durv TO To DBnBNo 21. Austin 21. 21. Austin re-pleads, Austin re-states, and re-pleads, re-states, the previous re-alleges the and re—alleges the paragraphs above previous paragraphs above as as if set as if if set forth set forth fully herein. fully herein. herein. 22. 22. 22‘ Paragraph 12 Paragraph 12 of 12 the Subcontract 0f the the Subcontract Agreement between Subcontract requires EGR to between Austin and EGR requires t0 EGR's acts for EGR’s defend Austin for or omissions acts or omissions related to the related to the Project. Project. Project. 23. 23. 23. Austin hereby Austin hereby asserts asserts that that EGR is contractually bound to is contractually contractually t0 defend Austin from and against defend Austin against claims by claims that arise Museum Tower that by Museum arise out out of or relate to or relate EGR's work on t0 EGR’s 0n the Project, even if the Project, if Austin Austin 0r Museum Tower were partially or negligent. partially negligent. 24. Austin's 24. 24. to aaa defense right to Austin’s right right to defense from EGR includes from EGR includes reimbursement for attorneys' reimbursement for includes reimbursement for attorneys' fees attorneys’ fees and fees litigation expenses litigation litigation in the incurred in expenses incurred in Austin in Austin the defense of Austin in this in matter and matter this matter and in pursuit of in pursuit pursuit this third- ofthis third- party action. party action. Austin seeks action. reimbursement 0f and reimbursement of seeks reimbursement and indemnity and indemnity for indemnity for all all such fccs and costs. such fees costs. BUILDING'S ORIGINAL BUILDING’S AUSTIN BUILDING'S ORIGINAL THIRD PETITION AGAINST EGR 'I'IHRI) PARTY PETITION OF 888 PAGE 55 OF 3928433 I 3928433.1 3928433I E. E. E. Ii,lopnaNtrv INDEMNITY 25. Austin 25. 25. Austin re-pleads, Austin re-pleads, re-states, re—pleads, rc—states, and and re—alleges the previous re-alleges the the paragraphs above previous paragraphs above as as if set as if set forth set forth fully fully herein. herein. 26. 26. 26. Paragraph Paragraph 12 Paragraph of the 12 of 12 the as modified Subcontract Agreement, as the Subcontract as modified by the First by the First Addendum dated dated Septem