Preview
FILED
DALLAS COUNTY
8/7/2019 3:16 PM
FELICIA PITRE
DISTRICT CLERK
Loaidi Grove
DC-I8.02358
CAUSE NO. DC-l 8-02358
MUSEUM TOWER, LP $
§ IN THE DISTRICT COURT
$
§
Plaintiff
Plaintiff $
§
$
§
V
V. $
§
162ND JUDICIAL DISTRICT
1 62ND JUDICIAL
$
§
AUSTIN BUILDING COMPANY
AUSTIN $
§
$
§
Third Party
Defendant and Third
Defendant Plaintiff
Party Plaintifl $
§ DALLAS COUNTY, TEXAS
$
§
V
V. $
§
$
§
EGR CONSTRUCTION, [NC.
CONSTRUCTION, INC. $
§
$
§
Third Party
Third Party Defendant
Defendant $
§
COMPANY'S TRADITIONAL
DEFENDANT AUSTIN BUILDING COMPANY’S TRADITIONAL AND
MOTIONS FOR SUMMARY
NO-EVIDENCE MOTIONS SUMMARY JUDGMENT AS TO
PLAINTIFF MUSEUM TOWER, L.P.
PLAINTIFF L.P.
COMES NOW, Defendant
COMES NOW, Defendant Austin Building Company
Austin Building ("Austin"), and
Company (“Austin”), files this,
and files this, its
its
Traditional and No-Evidence Motions
Traditional for
Motions for Plaintiff Museum Tower,
against Plaintiff
Summary Judgment against Tower,
L.P.
L.P. ("Museum Tower”),
(“Museum Tower"), and in support
an6 in support thereof respectfully show
thereof would respectfillly the Court
show the Court as follows.
as follows.
I.
I. SUMMARY
SUMMARY JUDGMENT
JUDGMENT STANDARDS:
1.
1. Traditional
Traditional -- Under traditional
-- traditional summary judgment standards,
summary judgment standards, aa party for
party moving for
judgment has
swnmary judgment
summary the burden
has the of establishing
burden of establishing as
as aa matter of law
matter of law that no genuine
that no genuine issue of
issue of
material fact
material fact exists
exists as to one
as to or
one or more essential
more essential elements of the
elements of the plaintiffs
plaintiff’s cause of
cause action.l The
of action.1
Defendant does not
Defendant not need
need to
to disprove all
disprove all the
the elements
elements of the
of the Plaintiff
Plaintiff‘ss of action;
cause of
cause action; it must
it
I Casso v.
1
Brand,776
v. Brand, 551, 556
776 S.W.2d 551, (Tex. 1989);
556 (Tex. Nixonv.
1989); Nixon Mr. Prop.
v. Mr. Prop. Mgmt. Co.,690
Mgmt. Co., 546,54849
690 S.W.2d 546, (Tex.
548—49 (Tex.
l98s).
1985).
AusuN TRADITIONAL
AUSTIN No-EvpeNcp MOTIONS
TRRoTUoNAL AND No-EVIDENCE MorroNS FOR JuocveNr
SuwrRRv JUDGMENT
FoR SUMMARY Page
Page I
1
4173706 I
4173706_1
disprove only one?
disprove only If the
one.2 If the defendant this burden,
meets this
defendant meets burden, the plaintiff must then
the plaintiff then raise genuine
raise aa genuine
issue of material fact
issue ofmaterial fact element.3
that element.3
on that If plaintiff fails
the plaintiff
If the fails to
to raise
raise a genuine issue of
genuine issue material fact,
of material fact,
then summary
then judgment must be granted
summary judgment granted by
by the
the Court.a traditional motion
Court.4 Under a traditional for
motion for summary
judgment, the
judgment, the defendant can establish
defendant can establish that no genuine
that no issue of
genuine issue material fact
of material fact exists that
exists and that it is
it is
entitled to
entitled to judgment as
judgment of law by
matter of
a matter
as a by either
either conclusively
conclusively disproving
disproving one of a cause
element of
one element
of action
of or by
action or by conclusively proving
conclusively proving all the
all the elements of an
elements of affirmative defense.
an affirmative defense.s5
A matter
matter is
is
conclusively established
conclusively if
established if reasonable people could
reasonable people could not differ as
not differ to the
as to to be
conclusion to
the conclusion be drawn
from the
from the evidence.6
2.
2. No-Evidence -- Rule
No-Evidence -- Rule 166a(i) of the
166a(i) of the Texas Rules of
Rules 0f Civil Procedure authorizes
Civil Procedure authorizes a
party to
party to assert a
motion for
assert a motion for summary judgment based
summary judgment on the
based on the proposition,
proposition, after
after adequate
opportunity for
opportunity for discovery,
discovery, that
that there is no evidence
there is to support
evidence to or
support one or more elements of an adverse
elements 0f
party's claims
party’s or
claims or defenses.
defenses.T 7
The
The rule requires
rule that aa
requires that movant’s motion specifically
movant's motion specifically state
state the
the
for which
elements for
elements which there
there is no
is no evidence but does
evidence but not otherwise
does not require the
otherwise require the presentment of
presentment of
supporting summary judgment
supporting summary judgment evidence.8 filed, the
evidence.s Once filed, the burden of proof shifts
burden ofproof shifts to
to the non-movant
the non-movant
to present
to present to be entitled
evidence to
enough evidence trial and,
to a trial
entitled to and, ifunable to
if unable to do so, the court
so, the grant the
court must grant the
motion.e
motion.9 A no evidence
evidence motion for
motion judgment should
for summary judgment granted when any
be granted
should be any one of the
one of the
following situations
following situations exists: (1) there
exists: (1) there of evidence
is a complete absence of
is evidence of vital fact;
of a Vital (2) the
fact; (2) court
the court
2 Walker
2
lryalker v. Harris, 924
v. Harris, 924 S.W.2d 375,
375, 378 (Tex. 1996);
378 (Tex. 1996); Doe v.
v. Boys of Greater Dallas,
Boys Club ofGreater Dqllas, Inc.,
Inc., 907
907 S.W.2d 472,
472,
481-82 (Tex. 1995);
481-82 (Tex. andLearSiegler,Inc.v.Perez,8l9S.W.2d470,47l
1995); and (Tex. 1991).
Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991).
3
3
Gonzalezv.
Gonzalez City ofHarlingen,
v. City l09,ll2
of Harlingen 814 S.W.2d 109, 112 (Tex.
(Tex. App. -- Corpus Christi
Christi 1991, writ denied).
1991, writ denied).
a
4
Tex. R.
Tex. R. Civ.
Civ. P.
P. 166a(c).
l66a(c).
s Little
5
Little v.
v. Tex. Dep't of
Tex. Dep’t of Crim.
Crim. Justice, 374,381(Tex.2004).
148 S.W.3d 374,
Justice, 148 381 (Tex. 2004).
6
6
ofKeller
City ofKeller
City v. Wilson,
v. Wilson,163 (Tex. 2005).
802, 814 (Tex.
168 S.W.3d 802, 2005).
7
7
Tex. R.
Tex. R. Civ. l66a(i).
P. 166a(i).
Civ. P.
8 l66a(i); Denton Big Spring Hosp.
8
R. Civ.
Tex. R.
Tex. P. 166a(i);
Civ. P. v. Big
v. Corp.,998
Hosp. Corp., 294,298
998 S.W.2d 294, 298 (Tex. App.-Eastland 1999,
(Tex. App.—East1and 1999, no
pet.).
pet.).
e See App.-Houston
(Tex. App.—Houston [4th Dist.]
9
SeeLampasas v. Spring
Lampasas v. Spring Ctr. Inc., 988
Ctr. Inc., 988 S.W.2d 428,
428,432
432 (Tex. 1999,
[14th Dist.] 1999, pet.).
no pet.).
AusrIN TRADITIONAL
AUSTIN TReorrroNAL AND No-EVIDENCE MorroNS FOR
No-EvrpENCE MOTIONS FoR SUMMARY
SUMMARy JUDGMENT
JUDGMENT Page2
Page 2
4173706 1
4173706_1
is barred
is by rules
baned by of law 0r
rules of or of from giving
of evidence from giving weight
weight to
to the only evidence
the only offered to
evidence offered prove
to prove
vital fact;
a vital (3) the
fact; (3) the evidence
evidence offered prove a vital
to prove
offered to vital fact
fact is no more than
is than a mere scintilla; (4) the
scintilla; (4) the
evidence establishes
evidence conclusively the
establishes conclusively the opposite of the
opposite of the vital fact.r0
vital fact.”
II.
II. SUMMARY
SUMMARY JUDGMENT EVIDENCE:
EVIDENCE:
3.
3. The evidence
The offered by
evidence offered Austin
by Austin in
in support of
this
support of this Motion
Motion for Partial
for Partial Summary
is as
Judgment is follows:
as follows:
Exhibit
Exhibit l:
1: Affidavit of
Affidavit Tyler Bems
of Tyler Berns (“Bems Affidavit")
("Berns Affidavit”)
Exhibit 2:
Exhibit 2: Affidavit of
Affidavit of Brian ("Martinelli Aflidavit”)
Martinelli (“Martinelli
Brian Martinelli Affidavit")
Exhibit 3:
Exhibit 3: Excerpts from the
Excerpts the Deposition of Steve
Deposition of Steve Sandborg
Sandborg (“Sandborg Deposition")
("Sandborg Deposition”)
Exhibit 4:
Exhibit 4: MT007130 -7132 -- Specification
MT007130-7132 Specification 123530 -- Residential
Residential Casework“
Caseworklr
Exhibit 5:
Exhibit 5: ABCOl
ABCO1 1880,
1880, 1912,011916,011948,
1885, 01 1912,
01 1885, 1951,011972
01 1916, 01 1948, 01 1951, 01 1972 - November 21,
-
21,
2012 email
2012 from Plummer to
email from to Manske, et with attached
al with
et a1 attached selected
selected pages of Owner
pages of
Architect Punchlistlz
Architect Punchlistl2
Exhibit 6:
Exhibit 6: MT003970 -- February
MT003970 25,2013
February 25, Jenny Moss
201 3 Jenny re: “metal
email re:
Moss email "metal edge banding at
edge banding at
kitchen cabinets
kitchen coming off'13
cabinets coming off’13
Exhibit 77:
Exhibit The Tolling Agreement
The Tolling Agreement entered into between Museum Tower
entered into Tower and Austin (and
and Austin (and
EGR), effective
EGR), effective August 1,1,201714
201714
Exhibit 8:
Exhibit 8: Tower's Third
Museum Tower’s Third Amended Disclosures
Disclosures inin this
this case
Exhibit 9:
Exhibit 9: Museum Tower's
Museum First Amended
Tower’s First Amended Answers to Austin's Interrogatories
to Austin’s in this
Interrogatories in this case
Exhibit 10:
Exhibit l0 MT000144, 148,
MT000144, I48, and 154 - Selected
and 154 - portions of
Selected portions of the
the A201
4,201 Contract
Contract Document
Document
between Museum Tower and Austin”Austinls
ilI.
III. SUMMARY OF ARGUMENT:
SUMMARY 0F ARGUMENT:
4.
4. Museum Tower has pled two
has pled two 0r
or three
three causes of action
causes of action against Austin. Museum
against Austin.
Tower’s firstpled
Tower's first of action
pled cause of action is for “Breach
is for of Contract/Breach
"Breach of of Warranty;”
Contract/Breach of Warranty;" its
its second cause
to
1°
City ofKeller
See City
See of Kellerv. Wilson,
v. Wilson,163 802, 810
168 S.W.3d 802, (Tex. 2005);
810 (Tex. 2005); Rawlins
Rowlins v. Health Servs.
of Charity Health
v. Daughters ofCharity of
Servs. 0f
Austin,20l
Austin, Tex.
2011 Tex.I App. LEXIS 6940,
App. 6940,*6
*6 (Tex. Austin Aug.
(Tex. App. Austin Aug.26,201l, pet.).
26, 201 1, no pet.).
II Authenticated
‘1
pursuant to
Authenticated pursuant to Tex.
Tex. R. Civ.
R. Civ. . 193 .7 .
P 193.7.
P.
12
12
Authenticated in
Authenticated Martinelli Aflidavit.
in Martinelli Affidwit.
13
13
Authenticated pursuant to
Authenticated pursuant to Tex.
Tex. R. Civ. P.
R. Civ. P. 193.7.
193.7.
14
‘4
Authenticated by
Authenticated by the Affidavit of
the Affidavit of Paulo Flores.
Flores.
15
15
Authenticated pursuant to
Authenticated pursuant Tex. R.
to Tex. R. Civ. P. 193.7.
Civ. P. 193.7.
TnapruoNAl AND
AusrrNr TRADITIONAL
AUSTIN MorroNS FOR
No-EvropNCE MOTIONS
AND No-EVIDENCE Jurcl,tpNr
SuuvRnv JUDGMENT
FoR SUMMARY Page 3
4173706 |
4173706_1
of action
of pled against
action pled Austin
against Austin is for breach 0f
is for of the implied warranty
the implied warranty of
of performance in a good and
performance in
performance. I 6
workmanlike performance.”
workmanlike
5.
5. Tower's breach of
Museum Tower’s of contract of action
contract cause of action is
is barred limitations.
by limitations.
barred by
6.
6. of a breach
evidence of
Museum Tower has no evidence of contract
breach of contract by Austin that
by Austin that forms
forms the
the
basis
basis of its
of of contract
its breach of of action.
contract cause of action.
7.
7. is no express
There is express warranty from Austin
warranty from Austin to
to Museum
Museum Tower covering
covering the kitchen
the kitchen
cabinet delamination
cabinet delamination that forms the
that forms the basis of Museum Tower's
basis of of warranty
breach of
Tower’s breach warranty cause of
of action.
action.
8.
8. Tower has no evidence
Museum Tower evidence that Austin warranted
that Austin warranted the kitchen cabinets
the kitchen cabinets against
against
delamination.
delamination.
9.
9. There
There is, under
is, under Texas
Texas law, no implied
law, no implied warranty of good
warranty of good and
and workmanlike
workmanlike
performance with
performance with respect to commercial
respect to commercial new construction.
construction.
10.
10. no evidence
has no
Museum Tower has evidence that Austin breached any
that Austin implied warranty
any implied with
warranty with
to the
respect to
respect kitchen cabinet
the kitchen cabinet delamination.
delamination.
Il.
11. Museum Tower is
Museum not entitled,
is not entitled, as of law,
matter of
as a matter law, to
to the
the cost of replacement
cost of all
of all
replacement of
cabinet with brand
faces with
cabinet faces brand new cabinet
new cabinet faces that have
faces that no basis
have no basis in any
in any Contract or Warranty
Contract or Wa:ranty
Document.
12.
12. Museum Tower has no evidence
Museum of standing
evidence of standing to maintain its
to maintain its suit behalf of
suit on behalf of units
units
that
that were not by
not owned by it at
it the time
at the it filed
time it filed suit.
suit.
16
16
The Court
The Court is requested
is to take
requested to judicial notice
take judicial of Plaintiff’s
notice of Plaintiff s First
First Amended Petition, filed on
Petition, filed March 30,
on March 30, 2018,
2018,
Plaintiff s current
Plaintiff’s pleading in
live pleading
current live in this
this case.
case.
Ausrm TRRorrroNAL
AUSTIN TRADITIONAL AND
AND No-EVIDENCE MorroNS FOR
No-EvroBNCE MOTIONS Suvveny JUDGMENT
FoR SUMMARY JuucvnNr Page 4
4173706_l
4173706_I
13.
13. Any derivative
Any derivative claims
claims carried
carried by in this
by Museum Tower in this case that arose
case that prior to
arose prior to
2017 and
August 2017 August 2015,
and August 2015, as applicable, are
as applicable, by limitations;
barred by
are barred limitations; Museum Tower has
has no
evidence of enforceable
evidence of enforceable liability to these
liability to these so
homeowners, so it cannot
it Austin for
cannot sue Austin for this
this derivative
derivative
liability as
liability as a matter of law.
matter of law.
IV.
IV. RELEVANT BACKGROUND FACTS:
RELEVANT
14. In
14. ln 2006, was considering
2006, Museum Tower was building aa residential
considering building residential condominium
project.lT
proj ect.
17
During that
During that process, with a German
it engaged with
process, it Bulthaup to
German company named Bulthaup provide the
to provide the
kitchen cabinetry
kitchen for the
cabinetry for project.r8 Austin
the project.” Austin had
had nothing to do
nothing to with the
do with project at
the project this time.”
at this time.re
Subsequently the
Subsequently the recession hit, and the
recession hit, project was shelved.”
the project In 2009,
shelved.20 In 2009,Museum Tower resurrected
Museum Tower resurrected
project (the
the project
the (the “Project”), with Austin
"Project"), with Austin as general contractor,
as general contractor, Andres Construction ("Andres") as
Construction (“Andres”)
Museum Tower's Construction
Museum Tower’s Construction Manager and agent,
Manager and and Gromatzky
agent, and Dupree
Gromatzky Dupree &
& Associates
Associates
("GDA") as
(“GDA”) Museum Tower's
as Museum architect.2l Importantly,
Tower’s architect.” Importantly, for our purposes,
for our the
pu{poses, the specification
specification
covering the
covering kitchen cabinetry
the kitchen cabinetry at issue in this suit,
at issue Specification 123530 -- Residential
in this suit, Specification Residential Casework
("specification 123530”),22
(“Specification 123530"),22 remained
remained unchanged from
unchanged from its date,
its April 29,
date, April 29, 2010,23 through
2010,23 through the
the
present.
present.
15.
15. Initially Museum Tower
Initially Tower re-engaged with Bulthaup
re-engaged with Bulthaup to provide the
to provide kitchen cabinetry
the kitchen cabinetry
for the Project;
for the Project; however, Bulthaup
however, Bulthaup not lower
would not lower its price, which
its price, which was
was approximately
approximately $4Yz
$41/2
t7
17
Exhibit 1,
Exhibit Affidavit at
7, Berns Affidavit atpara.3; Exhibit 3,
para. 3; Exhibit 3, Sandborg Deposition at
Sandborg Deposition pge. 12,
at pge. 12, lines 23-25 and
lines 23-25 pge. 13,
and pge. 13, lines l-7.
lines 1-7.
t8
18
Exhibit
Exhibit l, Berns
l, Affidovit at
Berns Aflidavit atpara.3.
para. 3.
te Exhibit l, Berns Exhibit 3, pge. 12,
19
Exhibit 1, Berns ffidovit atpara.3;
Aflidavit at para. 3; Exhibit 3, Sandborg Deposition at
Sandborg Deposition at pge. 23-25 and
lines 23-25
12, lines andpge.
pge. lines 1-7.
13, lines
13, 1-7.
20
2°
Exhibit l, Berns
Exhibit 1, Affidnit
Berns Aflidavit Exhibit 3,
atpara.3; Exhibit
at para. 3; 3, Sandborg Deposition at
Sandborg Deposition pge. 12,
at pge. lines 23—25
12, l
Preview
FILED DALLAS COUNTY 8/7/2019 3:16 PM FELICIA PITRE DISTRICT CLERK Loaidi Grove DC-I8.02358 CAUSE NO. DC-l 8-02358 MUSEUM TOWER, LP $ § IN THE DISTRICT COURT $ § Plaintiff Plaintiff $ § $ § V V. $ § 162ND JUDICIAL DISTRICT 1 62ND JUDICIAL $ § AUSTIN BUILDING COMPANY AUSTIN $ § $ § Third Party Defendant and Third Defendant Plaintiff Party Plaintifl $ § DALLAS COUNTY, TEXAS $ § V V. $ § $ § EGR CONSTRUCTION, [NC. CONSTRUCTION, INC. $ § $ § Third Party Third Party Defendant Defendant $ § COMPANY'S TRADITIONAL DEFENDANT AUSTIN BUILDING COMPANY’S TRADITIONAL AND MOTIONS FOR SUMMARY NO-EVIDENCE MOTIONS SUMMARY JUDGMENT AS TO PLAINTIFF MUSEUM TOWER, L.P. PLAINTIFF L.P. COMES NOW, Defendant COMES NOW, Defendant Austin Building Company Austin Building ("Austin"), and Company (“Austin”), files this, and files this, its its Traditional and No-Evidence Motions Traditional for Motions for Plaintiff Museum Tower, against Plaintiff Summary Judgment against Tower, L.P. L.P. ("Museum Tower”), (“Museum Tower"), and in support an6 in support thereof respectfully show thereof would respectfillly the Court show the Court as follows. as follows. I. I. SUMMARY SUMMARY JUDGMENT JUDGMENT STANDARDS: 1. 1. Traditional Traditional -- Under traditional -- traditional summary judgment standards, summary judgment standards, aa party for party moving for judgment has swnmary judgment summary the burden has the of establishing burden of establishing as as aa matter of law matter of law that no genuine that no genuine issue of issue of material fact material fact exists exists as to one as to or one or more essential more essential elements of the elements of the plaintiffs plaintiff’s cause of cause action.l The of action.1 Defendant does not Defendant not need need to to disprove all disprove all the the elements elements of the of the Plaintiff Plaintiff‘ss of action; cause of cause action; it must it I Casso v. 1 Brand,776 v. Brand, 551, 556 776 S.W.2d 551, (Tex. 1989); 556 (Tex. Nixonv. 1989); Nixon Mr. Prop. v. Mr. Prop. Mgmt. Co.,690 Mgmt. Co., 546,54849 690 S.W.2d 546, (Tex. 548—49 (Tex. l98s). 1985). AusuN TRADITIONAL AUSTIN No-EvpeNcp MOTIONS TRRoTUoNAL AND No-EVIDENCE MorroNS FOR JuocveNr SuwrRRv JUDGMENT FoR SUMMARY Page Page I 1 4173706 I 4173706_1 disprove only one? disprove only If the one.2 If the defendant this burden, meets this defendant meets burden, the plaintiff must then the plaintiff then raise genuine raise aa genuine issue of material fact issue ofmaterial fact element.3 that element.3 on that If plaintiff fails the plaintiff If the fails to to raise raise a genuine issue of genuine issue material fact, of material fact, then summary then judgment must be granted summary judgment granted by by the the Court.a traditional motion Court.4 Under a traditional for motion for summary judgment, the judgment, the defendant can establish defendant can establish that no genuine that no issue of genuine issue material fact of material fact exists that exists and that it is it is entitled to entitled to judgment as judgment of law by matter of a matter as a by either either conclusively conclusively disproving disproving one of a cause element of one element of action of or by action or by conclusively proving conclusively proving all the all the elements of an elements of affirmative defense. an affirmative defense.s5 A matter matter is is conclusively established conclusively if established if reasonable people could reasonable people could not differ as not differ to the as to to be conclusion to the conclusion be drawn from the from the evidence.6 2. 2. No-Evidence -- Rule No-Evidence -- Rule 166a(i) of the 166a(i) of the Texas Rules of Rules 0f Civil Procedure authorizes Civil Procedure authorizes a party to party to assert a motion for assert a motion for summary judgment based summary judgment on the based on the proposition, proposition, after after adequate opportunity for opportunity for discovery, discovery, that that there is no evidence there is to support evidence to or support one or more elements of an adverse elements 0f party's claims party’s or claims or defenses. defenses.T 7 The The rule requires rule that aa requires that movant’s motion specifically movant's motion specifically state state the the for which elements for elements which there there is no is no evidence but does evidence but not otherwise does not require the otherwise require the presentment of presentment of supporting summary judgment supporting summary judgment evidence.8 filed, the evidence.s Once filed, the burden of proof shifts burden ofproof shifts to to the non-movant the non-movant to present to present to be entitled evidence to enough evidence trial and, to a trial entitled to and, ifunable to if unable to do so, the court so, the grant the court must grant the motion.e motion.9 A no evidence evidence motion for motion judgment should for summary judgment granted when any be granted should be any one of the one of the following situations following situations exists: (1) there exists: (1) there of evidence is a complete absence of is evidence of vital fact; of a Vital (2) the fact; (2) court the court 2 Walker 2 lryalker v. Harris, 924 v. Harris, 924 S.W.2d 375, 375, 378 (Tex. 1996); 378 (Tex. 1996); Doe v. v. Boys of Greater Dallas, Boys Club ofGreater Dqllas, Inc., Inc., 907 907 S.W.2d 472, 472, 481-82 (Tex. 1995); 481-82 (Tex. andLearSiegler,Inc.v.Perez,8l9S.W.2d470,47l 1995); and (Tex. 1991). Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). 3 3 Gonzalezv. Gonzalez City ofHarlingen, v. City l09,ll2 of Harlingen 814 S.W.2d 109, 112 (Tex. (Tex. App. -- Corpus Christi Christi 1991, writ denied). 1991, writ denied). a 4 Tex. R. Tex. R. Civ. Civ. P. P. 166a(c). l66a(c). s Little 5 Little v. v. Tex. Dep't of Tex. Dep’t of Crim. Crim. Justice, 374,381(Tex.2004). 148 S.W.3d 374, Justice, 148 381 (Tex. 2004). 6 6 ofKeller City ofKeller City v. Wilson, v. Wilson,163 (Tex. 2005). 802, 814 (Tex. 168 S.W.3d 802, 2005). 7 7 Tex. R. Tex. R. Civ. l66a(i). P. 166a(i). Civ. P. 8 l66a(i); Denton Big Spring Hosp. 8 R. Civ. Tex. R. Tex. P. 166a(i); Civ. P. v. Big v. Corp.,998 Hosp. Corp., 294,298 998 S.W.2d 294, 298 (Tex. App.-Eastland 1999, (Tex. App.—East1and 1999, no pet.). pet.). e See App.-Houston (Tex. App.—Houston [4th Dist.] 9 SeeLampasas v. Spring Lampasas v. Spring Ctr. Inc., 988 Ctr. Inc., 988 S.W.2d 428, 428,432 432 (Tex. 1999, [14th Dist.] 1999, pet.). no pet.). AusrIN TRADITIONAL AUSTIN TReorrroNAL AND No-EVIDENCE MorroNS FOR No-EvrpENCE MOTIONS FoR SUMMARY SUMMARy JUDGMENT JUDGMENT Page2 Page 2 4173706 1 4173706_1 is barred is by rules baned by of law 0r rules of or of from giving of evidence from giving weight weight to to the only evidence the only offered to evidence offered prove to prove vital fact; a vital (3) the fact; (3) the evidence evidence offered prove a vital to prove offered to vital fact fact is no more than is than a mere scintilla; (4) the scintilla; (4) the evidence establishes evidence conclusively the establishes conclusively the opposite of the opposite of the vital fact.r0 vital fact.” II. II. SUMMARY SUMMARY JUDGMENT EVIDENCE: EVIDENCE: 3. 3. The evidence The offered by evidence offered Austin by Austin in in support of this support of this Motion Motion for Partial for Partial Summary is as Judgment is follows: as follows: Exhibit Exhibit l: 1: Affidavit of Affidavit Tyler Bems of Tyler Berns (“Bems Affidavit") ("Berns Affidavit”) Exhibit 2: Exhibit 2: Affidavit of Affidavit of Brian ("Martinelli Aflidavit”) Martinelli (“Martinelli Brian Martinelli Affidavit") Exhibit 3: Exhibit 3: Excerpts from the Excerpts the Deposition of Steve Deposition of Steve Sandborg Sandborg (“Sandborg Deposition") ("Sandborg Deposition”) Exhibit 4: Exhibit 4: MT007130 -7132 -- Specification MT007130-7132 Specification 123530 -- Residential Residential Casework“ Caseworklr Exhibit 5: Exhibit 5: ABCOl ABCO1 1880, 1880, 1912,011916,011948, 1885, 01 1912, 01 1885, 1951,011972 01 1916, 01 1948, 01 1951, 01 1972 - November 21, - 21, 2012 email 2012 from Plummer to email from to Manske, et with attached al with et a1 attached selected selected pages of Owner pages of Architect Punchlistlz Architect Punchlistl2 Exhibit 6: Exhibit 6: MT003970 -- February MT003970 25,2013 February 25, Jenny Moss 201 3 Jenny re: “metal email re: Moss email "metal edge banding at edge banding at kitchen cabinets kitchen coming off'13 cabinets coming off’13 Exhibit 77: Exhibit The Tolling Agreement The Tolling Agreement entered into between Museum Tower entered into Tower and Austin (and and Austin (and EGR), effective EGR), effective August 1,1,201714 201714 Exhibit 8: Exhibit 8: Tower's Third Museum Tower’s Third Amended Disclosures Disclosures inin this this case Exhibit 9: Exhibit 9: Museum Tower's Museum First Amended Tower’s First Amended Answers to Austin's Interrogatories to Austin’s in this Interrogatories in this case Exhibit 10: Exhibit l0 MT000144, 148, MT000144, I48, and 154 - Selected and 154 - portions of Selected portions of the the A201 4,201 Contract Contract Document Document between Museum Tower and Austin”Austinls ilI. III. SUMMARY OF ARGUMENT: SUMMARY 0F ARGUMENT: 4. 4. Museum Tower has pled two has pled two 0r or three three causes of action causes of action against Austin. Museum against Austin. Tower’s firstpled Tower's first of action pled cause of action is for “Breach is for of Contract/Breach "Breach of of Warranty;” Contract/Breach of Warranty;" its its second cause to 1° City ofKeller See City See of Kellerv. Wilson, v. Wilson,163 802, 810 168 S.W.3d 802, (Tex. 2005); 810 (Tex. 2005); Rawlins Rowlins v. Health Servs. of Charity Health v. Daughters ofCharity of Servs. 0f Austin,20l Austin, Tex. 2011 Tex.I App. LEXIS 6940, App. 6940,*6 *6 (Tex. Austin Aug. (Tex. App. Austin Aug.26,201l, pet.). 26, 201 1, no pet.). II Authenticated ‘1 pursuant to Authenticated pursuant to Tex. Tex. R. Civ. R. Civ. . 193 .7 . P 193.7. P. 12 12 Authenticated in Authenticated Martinelli Aflidavit. in Martinelli Affidwit. 13 13 Authenticated pursuant to Authenticated pursuant to Tex. Tex. R. Civ. P. R. Civ. P. 193.7. 193.7. 14 ‘4 Authenticated by Authenticated by the Affidavit of the Affidavit of Paulo Flores. Flores. 15 15 Authenticated pursuant to Authenticated pursuant Tex. R. to Tex. R. Civ. P. 193.7. Civ. P. 193.7. TnapruoNAl AND AusrrNr TRADITIONAL AUSTIN MorroNS FOR No-EvropNCE MOTIONS AND No-EVIDENCE Jurcl,tpNr SuuvRnv JUDGMENT FoR SUMMARY Page 3 4173706 | 4173706_1 of action of pled against action pled Austin against Austin is for breach 0f is for of the implied warranty the implied warranty of of performance in a good and performance in performance. I 6 workmanlike performance.” workmanlike 5. 5. Tower's breach of Museum Tower’s of contract of action contract cause of action is is barred limitations. by limitations. barred by 6. 6. of a breach evidence of Museum Tower has no evidence of contract breach of contract by Austin that by Austin that forms forms the the basis basis of its of of contract its breach of of action. contract cause of action. 7. 7. is no express There is express warranty from Austin warranty from Austin to to Museum Museum Tower covering covering the kitchen the kitchen cabinet delamination cabinet delamination that forms the that forms the basis of Museum Tower's basis of of warranty breach of Tower’s breach warranty cause of of action. action. 8. 8. Tower has no evidence Museum Tower evidence that Austin warranted that Austin warranted the kitchen cabinets the kitchen cabinets against against delamination. delamination. 9. 9. There There is, under is, under Texas Texas law, no implied law, no implied warranty of good warranty of good and and workmanlike workmanlike performance with performance with respect to commercial respect to commercial new construction. construction. 10. 10. no evidence has no Museum Tower has evidence that Austin breached any that Austin implied warranty any implied with warranty with to the respect to respect kitchen cabinet the kitchen cabinet delamination. delamination. Il. 11. Museum Tower is Museum not entitled, is not entitled, as of law, matter of as a matter law, to to the the cost of replacement cost of all of all replacement of cabinet with brand faces with cabinet faces brand new cabinet new cabinet faces that have faces that no basis have no basis in any in any Contract or Warranty Contract or Wa:ranty Document. 12. 12. Museum Tower has no evidence Museum of standing evidence of standing to maintain its to maintain its suit behalf of suit on behalf of units units that that were not by not owned by it at it the time at the it filed time it filed suit. suit. 16 16 The Court The Court is requested is to take requested to judicial notice take judicial of Plaintiff’s notice of Plaintiff s First First Amended Petition, filed on Petition, filed March 30, on March 30, 2018, 2018, Plaintiff s current Plaintiff’s pleading in live pleading current live in this this case. case. Ausrm TRRorrroNAL AUSTIN TRADITIONAL AND AND No-EVIDENCE MorroNS FOR No-EvroBNCE MOTIONS Suvveny JUDGMENT FoR SUMMARY JuucvnNr Page 4 4173706_l 4173706_I 13. 13. Any derivative Any derivative claims claims carried carried by in this by Museum Tower in this case that arose case that prior to arose prior to 2017 and August 2017 August 2015, and August 2015, as applicable, are as applicable, by limitations; barred by are barred limitations; Museum Tower has has no evidence of enforceable evidence of enforceable liability to these liability to these so homeowners, so it cannot it Austin for cannot sue Austin for this this derivative derivative liability as liability as a matter of law. matter of law. IV. IV. RELEVANT BACKGROUND FACTS: RELEVANT 14. In 14. ln 2006, was considering 2006, Museum Tower was building aa residential considering building residential condominium project.lT proj ect. 17 During that During that process, with a German it engaged with process, it Bulthaup to German company named Bulthaup provide the to provide the kitchen cabinetry kitchen for the cabinetry for project.r8 Austin the project.” Austin had had nothing to do nothing to with the do with project at the project this time.” at this time.re Subsequently the Subsequently the recession hit, and the recession hit, project was shelved.” the project In 2009, shelved.20 In 2009,Museum Tower resurrected Museum Tower resurrected project (the the project the (the “Project”), with Austin "Project"), with Austin as general contractor, as general contractor, Andres Construction ("Andres") as Construction (“Andres”) Museum Tower's Construction Museum Tower’s Construction Manager and agent, Manager and and Gromatzky agent, and Dupree Gromatzky Dupree & & Associates Associates ("GDA") as (“GDA”) Museum Tower's as Museum architect.2l Importantly, Tower’s architect.” Importantly, for our purposes, for our the pu{poses, the specification specification covering the covering kitchen cabinetry the kitchen cabinetry at issue in this suit, at issue Specification 123530 -- Residential in this suit, Specification Residential Casework ("specification 123530”),22 (“Specification 123530"),22 remained remained unchanged from unchanged from its date, its April 29, date, April 29, 2010,23 through 2010,23 through the the present. present. 15. 15. Initially Museum Tower Initially Tower re-engaged with Bulthaup re-engaged with Bulthaup to provide the to provide kitchen cabinetry the kitchen cabinetry for the Project; for the Project; however, Bulthaup however, Bulthaup not lower would not lower its price, which its price, which was was approximately approximately $4Yz $41/2 t7 17 Exhibit 1, Exhibit Affidavit at 7, Berns Affidavit atpara.3; Exhibit 3, para. 3; Exhibit 3, Sandborg Deposition at Sandborg Deposition pge. 12, at pge. 12, lines 23-25 and lines 23-25 pge. 13, and pge. 13, lines l-7. lines 1-7. t8 18 Exhibit Exhibit l, Berns l, Affidovit at Berns Aflidavit atpara.3. para. 3. te Exhibit l, Berns Exhibit 3, pge. 12, 19 Exhibit 1, Berns ffidovit atpara.3; Aflidavit at para. 3; Exhibit 3, Sandborg Deposition at Sandborg Deposition at pge. 23-25 and lines 23-25 12, lines andpge. pge. lines 1-7. 13, lines 13, 1-7. 20 2° Exhibit l, Berns Exhibit 1, Affidnit Berns Aflidavit Exhibit 3, atpara.3; Exhibit at para. 3; 3, Sandborg Deposition at Sandborg Deposition pge. 12, at pge. lines 23—25 12, l