Preview
m
FILED
DALLAS COUNTY
9/4/2019 12:22 PM
FELICIA PITRE
DISTRICT CLERK
Peckar 8
Peckar E Abramson
Corporation.° Attorneys
Professional Corporation
A Professional Attorneys & Counselors at Law
Counselors at
Rosa Delacerda
Flores
Paulo Flores
pflores@pecklaw.com
pflores@pecklaw.com
214.523.5146
214.523.5146
www.pecklawcom
www.pecklaw.com
September
September 3,2019
3,2019
North Central
8080 North Central Expressway
Suite 1600,
Suite LB 65
1600, LB Maricela Moore
Honorable Maricela
Honorable
Dallas,
Dallas, TX 75206-1819 162‘“ District Court
Judicial District
162"d Judicial Court Judge
tel
tel 214.523.5100
fax214.521.4601
fax 214.521.4601
Re
Re: No. DC-l
Case N0. DC-18-02358
8—02358
New York,
York, NY
Tower, L.P.
Museum Tower, L.P. v.
v. Austin Building Company v.
Austin Building v. EGR
Angeles, CA
Los Angeles,
Construction, Inc.
Construction, Inc.
Francisco Bay Area,
San Francisco Area, CA
Washington, D.C.
Washington,
Letter Brief Responding t0
Letter Brief to Carl
Carl M Archer Trust
M. Archer Trust N0. Three vv
No. Three
Tregallas
Tregallas
Miami, FL
Miami,
Chicago, |L
Chicago, lL Dear Judge Moore:
River Edge,
River Edge, NJ
Austin,
Austin, TX At the
At the conclusion of the
conclusion 0f the hearing,
hearing, yesterday, on Defendant
yesterday, 0n Austin Building
Defendant Austin Building
Dallas,
Dallas, TX Company’s ("Movant") Motion
Company's (“Movant”) Motion forfor Summary Judgment, Plaintiffls counsel
Judgment, Plaintiff’s counsel handed
Houston, TX
Houston, the Court the
the Court the Texas
Texas Supreme Court opinion,
Supreme Court opinion, delivered
delivered November 16, 16,2018, in Carl
2018, in Carl
Devon, PA M Archer Trust
M. Archer No. Three
Trust N0. Three vv Tregallas,
Tregallas,566 (Tex.2018).
281 (Tex.
566 S.W.3d 281 2018).
Preliminarily,
Preliminarily, Movant acknowledges that,
Movant for the
that, for first time,
the first time, as of November
as of November 16, 16,
lnternationa I
International
2018, the Texas
2018, the Texas Supreme Court has
Supreme Court applied the
has applied the discovery
discovery rule to aa breach
rule to breach 0fof
case. The balance
contract case.
contract of the
balance 0f the case is aa poster
case is child for
poster child for Why
why the discovery rule
the discovery rule
Alliances
Alliances
never be extended
would never by the
extended by the Texas
Texas Supreme CourtCourt t0to the
the facts
facts before this Court
before this Court
in our
in our case.
case.
Beijing
Bemng
It is clear
It is from reading
clear from the opinion,
reading the opinion, the
the Texas holding is
Court's holding
Texas Supreme Court’s is limited
limited
Bogota grystal clear,
case it is
Bogota
to the
to the specific
specific facts of the
facts 0f the case; in case
case; in is not
not crystal
it the Texas
clear, the Texas Supreme
Buenos Aires
Buenos Aires
Court drops
Court drops aa helpful footnote: “We
helpful footnote: limit our
"We limit our holding to this
holding t0 particular breach
this particular breach - -
Guatemala City
Guatemala City conveyance with no notice
with n0 of the
notice of the intent
intent to sell
to sell or
or the
the existence of an offer
existence of offer - 0f
-
of this
this
Lima particular type
particular type 0f right."r
of right?”
London
Managua That Tregallas
That Tregallas has bearing 0n
has no bearing on the
the fact pattern before
fact pattern before this Court
this is obvious
Court is obvious from
City
Mexico City the Texas
the Supreme
Supreme Court’s of its
quotation 0f
Court's quotation opinion in Via Net,
its opinion in Via Net, a case relied
a case relied upon
City
Panama City by ("Respondent") in
by Museum Tower (“Respondent”) in its
its Response, and heavily
heavily quoted
quoted by by Movant
Port of
Port 0f Spain
in its
in Reply and
its Reply and at yesterday: “An
hearing yesterday:
at hearing "An injury
injury is
is inherently
inherently undiscoverable
undiscoverable when
San Jose
San
it is
it is ‘unlikely
'unlikely t0
to be discovered within the
discovered within prescribed limitations
the prescribed period despite
limitations period despite due
Salvador
San Salvador
diligence."'2 The
diligence.”’2 The Texas
Texas Supreme Court proceeds
Supreme Court proceeds to to again
again describe
describe its prior two
its prior
Santiago
Sanfiago
opinions, as
opinions, as cited in Via
cited in Via Net, in which
Net, in which it it refused to apply
refused to apply aa discovery
discovery rule in a
rule in
Sao Paulo
Teg uc iga I pa
Tegucigalpa
I Tregallas
I
at292,
Tregallas at n. 10
292, n. 10 [emphasis in original].
original].
[emphasis in
Va n couver
Vancouver
2 Id.
2
Id, at290,
at citing, Via
290, citing, Viq Net v. TIG
Net v. Co.,2ll
Ins. Ca,
TIG Ins. S,W,3d 310,
211 S.W.3d 310, 313-314 (Tex. 2006)
313-314 (Tex. 2006) [emphasis
[emphasis
addedl.
added].
GONSIRULEGAL
ammo a (nonunion Inn m-
Peckar 8
Peckar
A
&. Abramson
A Professional
Professional Corporation
Corporation - Attorneys
Attorneys & Counselors at
& at Law
September
September 4,2019
4,20 9 1
Page2
Page 2
of contract
breach 0f
breach context. Admittedly,
contract context. Admittedly, it then, for the
then, for
it first time,
the first time, creates in a breach
rule in
creates such aa rule
of contract
of contract case,
case, but it bends
but it over backwards t0
bends over to make it it clear this is
that this
clear that is because the
the breach
breach 0fof
right 0f
the right
the of first
first refusal
refusal was inherently undiscoverable - its
inherently undiscoverable its not
- going to
not going to make such rightright holders
holders
search the real
search the property records
real property records every day to
every day to see of someone has
see 0f has sold property without
sold aa property without notice
notice
in Violation
in violation ofof the
the right first refusal.
of first
right 0f refusal, This
This fact
fact pattern
pattern has no bearing
has n0 bearing toto our pattern. In
fact pattern.
our fact In
fact pattern,
our fact not only
pattern, not only was the delamination
was the patently open and
delamination patently obvious; even
and obvious; even as
as to
to the
the scope
of the
of the breach (which case
breach (which law tells
case law tells us is any
us is any event
event 0fof n0
no relevance
relevance whatsoever in in aa breach of
breach of
contract case,
contract but Respondent
case, but Respondent continues
continues t0 to argue),
argue), Respondents
Respondents were fully fully aware
aware 0fof the
the scope ofof
within months of
the breach within
the of the
the alleged
alleged breach,
breach, well within the
well within prescribed limitations
the prescribed period 0f
limitations period of
four years. The Texas Supreme Court
four years. told us,
itself told
Court itself in Via
us, in Via Net: “Some contract
Net:'oSome contract breaches may be
inherently undiscoverable
inherently undiscoverable and and objectively verifiable. But
objectively verifiable. But those
those cases should
should be be rare,
rare, as diligent
as diligent
parties should
contracting parties
contracting generally discover
should generally discover any any breach the relatively
during the
breach during long four-year
relatively long four-year
limitations period
limitations provided for
period provided for such claims.”3
claims."3
Tregallas simply bolsters
Tregallas simply the argument
bolsters the argument Movant has
Movant made —- inherent
has made inherent undiscoverability
undiscoverability and,
and,
therefore, the discovery
therefore, the rule, simply
discovery rule, simply have n0
no bearing this case whatsoever,
bearing on this whatsoever, as of law.
matter 0f
as a matter law.
If the
If the Court will pardon
Court will pardon further
further torture of this
torture of this dead horse, from one
horse, from of Respondents
one of Respondents owrl
own cases,
cases,
boldly cited
boldly in its
cited in its Response:
CMUD’s
CMUD's board
board began suit when they
discussing suit
began discussing they were
were aware of the
aware 0f the damage in
damage in
February 1987,
February 1987, but not to
but chose not file for
to file for over
over two years. Limitations
two years. Limitations ran
ran because
CMUD failed
failed t0 diligently investigate
to diligently prosecute its claim.4
investigate and prosecute claim.a its
Or, as
Or, as cited in Cornerstones:
cited in Cornerstones:
In another
In similarly decided
another similarly decided case, limitations began
case, limitations began when plaintiffs first
when plaintiffs first noticed
noticed
cracks in the
cracks in the sheetrock
sheetrock and bricks pulling loose,
bricks pulling though they
loose, even though they did not hire
did not hire an
to investigate
expert t0
expert the foundation
investigate the problems and
foundation problems file suit
and file until over
suit until five years
over five years
later. Polk Terrace,
later. Polk Inc. v.v. Curtis,
Terrace, Inc. Curtis,422 S.W.2d 603,
422 S.W.2d (Tex.Civ.App.-
604-05 (Tex.Civ.App.—
603, 604—05
Dallas 1967,
Dallas wrrt refd n.r.e.).
1967, writ ref‘d n.r.e.). The Dallas
Dallas court held that
court held that the
the cause
cause 0fof action
action could
could
discovered by
have been discovered by the
the exercise of reasonable
exercise 0f diligence more than
reasonable diligence years
than two years
before suit
before filed; therefore,
suit was filed; it was barred
therefore, it by limitations.
barred by limitations. Id.
Id, at
at 605.5
605.5
If the Court
If the Court needs
needs anything further, see
anything further, also Respondent’s
see also cited case
Respondent's cited of Bayou
case of Bend Towers
Council of Co-Owners
Council 0f Co-Owners v. Manhqttan Constr.
v. Manhattan Co., 866
Constr. C0,, S.W.2d 740
866 S.W.2d 740 (Tex. App. -- Houston
(Tex. App. p4th
Houston [14th
Dist.l 1993,
Dist] writ denied),
1993, writ denied), which contains lengthy, thorough
contains aa lengthy, thorough discussion of this
discussion of this requirement
requirement that
that
3 Via
3
Viq Net at 315.
at 315,
a Cornerstones
4
Mun.
Cornerstones Mun. Utility Dist. Co,,889
v. Monsanto C0., S.W.2d 570,
889 S.W.2d 577 (Tex.
570, 577 App. -- Houston
(Tex. App. Houston [14th Dist.] 1994,
1994,
Utility Dist. v. [14tt' Dist]
writ denied),
writ denied).
s
5
Id.
Id.
Peckar 8
A
€, Abramson
A Professional Corporation -. Attorneys
Professional Corporation Counselors at
Attorneys & Counselors at Law
September
September 4,2019
4,2019
Page 3
Page
the fact pattern
the fact pattern has to have
has t0 have been
been inherently undiscoverable during
inherently undiscoverable during the prescribed limitations
the prescribed limitations
period for
period for aa Court to invoke
Court t0 invoke the
the discovery
discovery rule.
rule.
There
There is nothing
is to set
nothing t0 set aside our fact
aside our fact pattern from that
pattern from of thousands
that 0f thousands 0fof other
other cases, and the
cases, and the
entirety
entiretyof Texas Supreme
of Supreme Court
Court jurisprudence,
jurisprudence, that a breach of contract
that a breach 0f contract cause of action
of action accrues
upon the breach.6
upon the breach.6 Movant hashas indisputably
indisputably shown
shown Respondent’s of contract
breach of
Respondent's breach contract cause of
cause 0f
MW
action
action is barred
is barred by limitations as
by limitations of law.
matter of
as a matter law.
Res e Submitted,
fully Submitted,
PAUL
PA FLORES
RES
BOARD
H CERTIFIED“
CTRTIFIID-
Texas lipecializaliofl
of Legal Specialization
Texas Board 0f
_
CONSTRUCTION LAW
6
6
Id. at
See, Id.
See, at374, citing, Stine
314, citing, Stine Stewart, 80
v. Stewart,
v. S.W.3d 586,
S0 S.W.3d 592 (Tex.2002)("It
586, 592 well settled
is well
(Tex. 2002)(“It is settled law that of
that a breach of
contract claim accrues
contract claim accrues the contract
when the contract is breached.").
is breached”).
Preview
m FILED DALLAS COUNTY 9/4/2019 12:22 PM FELICIA PITRE DISTRICT CLERK Peckar 8 Peckar E Abramson Corporation.° Attorneys Professional Corporation A Professional Attorneys & Counselors at Law Counselors at Rosa Delacerda Flores Paulo Flores pflores@pecklaw.com pflores@pecklaw.com 214.523.5146 214.523.5146 www.pecklawcom www.pecklaw.com September September 3,2019 3,2019 North Central 8080 North Central Expressway Suite 1600, Suite LB 65 1600, LB Maricela Moore Honorable Maricela Honorable Dallas, Dallas, TX 75206-1819 162‘“ District Court Judicial District 162"d Judicial Court Judge tel tel 214.523.5100 fax214.521.4601 fax 214.521.4601 Re Re: No. DC-l Case N0. DC-18-02358 8—02358 New York, York, NY Tower, L.P. Museum Tower, L.P. v. v. Austin Building Company v. Austin Building v. EGR Angeles, CA Los Angeles, Construction, Inc. Construction, Inc. Francisco Bay Area, San Francisco Area, CA Washington, D.C. Washington, Letter Brief Responding t0 Letter Brief to Carl Carl M Archer Trust M. Archer Trust N0. Three vv No. Three Tregallas Tregallas Miami, FL Miami, Chicago, |L Chicago, lL Dear Judge Moore: River Edge, River Edge, NJ Austin, Austin, TX At the At the conclusion of the conclusion 0f the hearing, hearing, yesterday, on Defendant yesterday, 0n Austin Building Defendant Austin Building Dallas, Dallas, TX Company’s ("Movant") Motion Company's (“Movant”) Motion forfor Summary Judgment, Plaintiffls counsel Judgment, Plaintiff’s counsel handed Houston, TX Houston, the Court the the Court the Texas Texas Supreme Court opinion, Supreme Court opinion, delivered delivered November 16, 16,2018, in Carl 2018, in Carl Devon, PA M Archer Trust M. Archer No. Three Trust N0. Three vv Tregallas, Tregallas,566 (Tex.2018). 281 (Tex. 566 S.W.3d 281 2018). Preliminarily, Preliminarily, Movant acknowledges that, Movant for the that, for first time, the first time, as of November as of November 16, 16, lnternationa I International 2018, the Texas 2018, the Texas Supreme Court has Supreme Court applied the has applied the discovery discovery rule to aa breach rule to breach 0fof case. The balance contract case. contract of the balance 0f the case is aa poster case is child for poster child for Why why the discovery rule the discovery rule Alliances Alliances never be extended would never by the extended by the Texas Texas Supreme CourtCourt t0to the the facts facts before this Court before this Court in our in our case. case. Beijing Bemng It is clear It is from reading clear from the opinion, reading the opinion, the the Texas holding is Court's holding Texas Supreme Court’s is limited limited Bogota grystal clear, case it is Bogota to the to the specific specific facts of the facts 0f the case; in case case; in is not not crystal it the Texas clear, the Texas Supreme Buenos Aires Buenos Aires Court drops Court drops aa helpful footnote: “We helpful footnote: limit our "We limit our holding to this holding t0 particular breach this particular breach - - Guatemala City Guatemala City conveyance with no notice with n0 of the notice of the intent intent to sell to sell or or the the existence of an offer existence of offer - 0f - of this this Lima particular type particular type 0f right."r of right?” London Managua That Tregallas That Tregallas has bearing 0n has no bearing on the the fact pattern before fact pattern before this Court this is obvious Court is obvious from City Mexico City the Texas the Supreme Supreme Court’s of its quotation 0f Court's quotation opinion in Via Net, its opinion in Via Net, a case relied a case relied upon City Panama City by ("Respondent") in by Museum Tower (“Respondent”) in its its Response, and heavily heavily quoted quoted by by Movant Port of Port 0f Spain in its in Reply and its Reply and at yesterday: “An hearing yesterday: at hearing "An injury injury is is inherently inherently undiscoverable undiscoverable when San Jose San it is it is ‘unlikely 'unlikely t0 to be discovered within the discovered within prescribed limitations the prescribed period despite limitations period despite due Salvador San Salvador diligence."'2 The diligence.”’2 The Texas Texas Supreme Court proceeds Supreme Court proceeds to to again again describe describe its prior two its prior Santiago Sanfiago opinions, as opinions, as cited in Via cited in Via Net, in which Net, in which it it refused to apply refused to apply aa discovery discovery rule in a rule in Sao Paulo Teg uc iga I pa Tegucigalpa I Tregallas I at292, Tregallas at n. 10 292, n. 10 [emphasis in original]. original]. [emphasis in Va n couver Vancouver 2 Id. 2 Id, at290, at citing, Via 290, citing, Viq Net v. TIG Net v. Co.,2ll Ins. Ca, TIG Ins. S,W,3d 310, 211 S.W.3d 310, 313-314 (Tex. 2006) 313-314 (Tex. 2006) [emphasis [emphasis addedl. added]. GONSIRULEGAL ammo a (nonunion Inn m- Peckar 8 Peckar A &. Abramson A Professional Professional Corporation Corporation - Attorneys Attorneys & Counselors at & at Law September September 4,2019 4,20 9 1 Page2 Page 2 of contract breach 0f breach context. Admittedly, contract context. Admittedly, it then, for the then, for it first time, the first time, creates in a breach rule in creates such aa rule of contract of contract case, case, but it bends but it over backwards t0 bends over to make it it clear this is that this clear that is because the the breach breach 0fof right 0f the right the of first first refusal refusal was inherently undiscoverable - its inherently undiscoverable its not - going to not going to make such rightright holders holders search the real search the property records real property records every day to every day to see of someone has see 0f has sold property without sold aa property without notice notice in Violation in violation ofof the the right first refusal. of first right 0f refusal, This This fact fact pattern pattern has no bearing has n0 bearing toto our pattern. In fact pattern. our fact In fact pattern, our fact not only pattern, not only was the delamination was the patently open and delamination patently obvious; even and obvious; even as as to to the the scope of the of the breach (which case breach (which law tells case law tells us is any us is any event event 0fof n0 no relevance relevance whatsoever in in aa breach of breach of contract case, contract but Respondent case, but Respondent continues continues t0 to argue), argue), Respondents Respondents were fully fully aware aware 0fof the the scope ofof within months of the breach within the of the the alleged alleged breach, breach, well within the well within prescribed limitations the prescribed period 0f limitations period of four years. The Texas Supreme Court four years. told us, itself told Court itself in Via us, in Via Net: “Some contract Net:'oSome contract breaches may be inherently undiscoverable inherently undiscoverable and and objectively verifiable. But objectively verifiable. But those those cases should should be be rare, rare, as diligent as diligent parties should contracting parties contracting generally discover should generally discover any any breach the relatively during the breach during long four-year relatively long four-year limitations period limitations provided for period provided for such claims.”3 claims."3 Tregallas simply bolsters Tregallas simply the argument bolsters the argument Movant has Movant made —- inherent has made inherent undiscoverability undiscoverability and, and, therefore, the discovery therefore, the rule, simply discovery rule, simply have n0 no bearing this case whatsoever, bearing on this whatsoever, as of law. matter 0f as a matter law. If the If the Court will pardon Court will pardon further further torture of this torture of this dead horse, from one horse, from of Respondents one of Respondents owrl own cases, cases, boldly cited boldly in its cited in its Response: CMUD’s CMUD's board board began suit when they discussing suit began discussing they were were aware of the aware 0f the damage in damage in February 1987, February 1987, but not to but chose not file for to file for over over two years. Limitations two years. Limitations ran ran because CMUD failed failed t0 diligently investigate to diligently prosecute its claim.4 investigate and prosecute claim.a its Or, as Or, as cited in Cornerstones: cited in Cornerstones: In another In similarly decided another similarly decided case, limitations began case, limitations began when plaintiffs first when plaintiffs first noticed noticed cracks in the cracks in the sheetrock sheetrock and bricks pulling loose, bricks pulling though they loose, even though they did not hire did not hire an to investigate expert t0 expert the foundation investigate the problems and foundation problems file suit and file until over suit until five years over five years later. Polk Terrace, later. Polk Inc. v.v. Curtis, Terrace, Inc. Curtis,422 S.W.2d 603, 422 S.W.2d (Tex.Civ.App.- 604-05 (Tex.Civ.App.— 603, 604—05 Dallas 1967, Dallas wrrt refd n.r.e.). 1967, writ ref‘d n.r.e.). The Dallas Dallas court held that court held that the the cause cause 0fof action action could could discovered by have been discovered by the the exercise of reasonable exercise 0f diligence more than reasonable diligence years than two years before suit before filed; therefore, suit was filed; it was barred therefore, it by limitations. barred by limitations. Id. Id, at at 605.5 605.5 If the Court If the Court needs needs anything further, see anything further, also Respondent’s see also cited case Respondent's cited of Bayou case of Bend Towers Council of Co-Owners Council 0f Co-Owners v. Manhqttan Constr. v. Manhattan Co., 866 Constr. C0,, S.W.2d 740 866 S.W.2d 740 (Tex. App. -- Houston (Tex. App. p4th Houston [14th Dist.l 1993, Dist] writ denied), 1993, writ denied), which contains lengthy, thorough contains aa lengthy, thorough discussion of this discussion of this requirement requirement that that 3 Via 3 Viq Net at 315. at 315, a Cornerstones 4 Mun. Cornerstones Mun. Utility Dist. Co,,889 v. Monsanto C0., S.W.2d 570, 889 S.W.2d 577 (Tex. 570, 577 App. -- Houston (Tex. App. Houston [14th Dist.] 1994, 1994, Utility Dist. v. [14tt' Dist] writ denied), writ denied). s 5 Id. Id. Peckar 8 A €, Abramson A Professional Corporation -. Attorneys Professional Corporation Counselors at Attorneys & Counselors at Law September September 4,2019 4,2019 Page 3 Page the fact pattern the fact pattern has to have has t0 have been been inherently undiscoverable during inherently undiscoverable during the prescribed limitations the prescribed limitations period for period for aa Court to invoke Court t0 invoke the the discovery discovery rule. rule. There There is nothing is to set nothing t0 set aside our fact aside our fact pattern from that pattern from of thousands that 0f thousands 0fof other other cases, and the cases, and the entirety entiretyof Texas Supreme of Supreme Court Court jurisprudence, jurisprudence, that a breach of contract that a breach 0f contract cause of action of action accrues upon the breach.6 upon the breach.6 Movant hashas indisputably indisputably shown shown Respondent’s of contract breach of Respondent's breach contract cause of cause 0f MW action action is barred is barred by limitations as by limitations of law. matter of as a matter law. Res e Submitted, fully Submitted, PAUL PA FLORES RES BOARD H CERTIFIED“ CTRTIFIID- Texas lipecializaliofl of Legal Specialization Texas Board 0f _ CONSTRUCTION LAW 6 6 Id. at See, Id. See, at374, citing, Stine 314, citing, Stine Stewart, 80 v. Stewart, v. S.W.3d 586, S0 S.W.3d 592 (Tex.2002)("It 586, 592 well settled is well (Tex. 2002)(“It is settled law that of that a breach of contract claim accrues contract claim accrues the contract when the contract is breached."). is breached”).