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FILED
DALLAS COUNTY
8/29/2019 4:12 PM
FELICIA PITRE
DISTRICT CLERK
Veronica Vaughn
DC-l88—02358
CAUSE NO. DC-l -02358
MUSEUM TOWER, LP $
§ IN THE DISTRICT COURT
IN
$
§
Plaintiff
Plaintiff $
§
$
§
V
V. $
§
162ND
1 62ND JUDICIAL DISTRICT
$
§
AUSTIN BUILDING COMPANY
AUSTIN $
§
$
§
Third Party
Defendant and Third
Defendant Plaintiff
Party Plaintifl $
§ DALLAS COUNTY,
COLINTY, TEXAS
$
§
V
V- $
§
$
§
EGR CONSTRUCTION,
CONSTRUCTION, INC.
INC. $
§
$
§
Third Party
Third Party Defendant
Defendant $
§
DEFENDANT AUSTIN BUILDING COMPANY’S
COMPANY'S REPLY TO
MUSEUM TOWER RESPONSE TO AUSTIN'S TRADITIONAL
AUSTIN’S
NO.EVIDENCE MOTIONS FOR SUMMARY JUDGMENT,
AND NO-EVIDENCE
AND RESPONSE TO MUSEUM TOWER’S
TOWER'S MOTION FOR
CONTINUANCE OF NO-EVIDENCE
CONTINUANCE NO.EVIDENCE MSJ
COMES NOW, Defendant
Defendant Austin ("Austin"),
Building Company (“Austin”),
Austin Building files this,
and files this, its
its Reply
Reply
(the
(the “Reply”) to Museum
"Reply") to Museum Tower, L.P.'s (“Museum
Tower, L.P.’s ("Museum Tower") (the “Response”)
Response (the
Tower”) Response "Response") to
to
Austin's Traditional
Austin’s Traditional and
and No—Evidence Motions for
No-Evidence Motions for Summary
Summary Judgment (the “MSJ”),
Judgment (the "MSJ"), and in
and in
support thereof
support respectfully
thereof would respectfully Court as
the Court
show the follows.
as follows.
I.
I. REPLY SUMMARY
SUMMARY JUDGMENT EVIDENCE:
1.
1. offered by
evidence offered
The evidence by Austin
Austin in
in support of this
support of Reply is
this Reply is as follows
as follows:
Exhibit
Exhibit l:
1: of email
Copy of email dated 4, 2012
dated June 4, 2012 from
from Darren
Darren Lister of EGR to
Lister of to Dean Larson of
Larson of
BMCO regarding
BMCO regarding “edgebanding issue" authenticated
"edgebanding issue” by Affidavit
authenticated by of Kent
Affidavit of Kent
McNorton (“McNorton
McNorton Affi davit").
(" McNorton Affidavit”).
Exhibit 2:
Exhibit 2: Museum Tower,
Museum Tower, LP's Responses
LP’s to
Austin's Second
Responses to Austin’s Second and Third Sets
and Third of
Sets of
Interrogatories, true
Interrogatories, true correct copies
and correct of which are
copies of are attached Exhibit 2.
attached as Exhibit 2.
AusuN REPLY
AUSTIN ro MUSEUM TOWER’S
RepI.y To ToweR's RESPONSE ro AUSTIN’S
RespoNsn To AusrrN's MSJ Page
Page I
1
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4186985_1
Exhibit 3:
Exhibit 3: Ashley Cummings, attorney
Ashley for Plaintiff
attomey for Plaintiff Museum
Museum Tower, LP, email
Tower, LP, email confirming
confirming
"there
“therewas no assignment
was no from Museum
assignment from Museum Tower,
Tower, LP to Museum
LP to Museum Tower
Condominium Association,
Condominium Association, Inc.,” authenticated by Affidavit
Inc.," authenticated by of Paulo
Affidavit of Paulo Flores
Flores
("Flores Afiidavit”).
(“Flores Affidavit").
Exhibit 4:
Exhibit 4 Reporter’s of Deposition
Certification of
Reporter's Certification of
Deposition of Steven Carl Sandborg,
Steven Carl including Mr.
Sandborg, including Mr.
Sandborg's errata
Sandborg’s page, aatrue
ercatapage, correct copy
true and correct of which is
copy of is attached
attached as Exhibit 4.
as Exhibit 4.
II.
II. SUMMARY
SUMMARY OF REPLY:
2.
2. of Limitations
Statute of
Statute Limitations case
case law and its
law its application
application to
to the underlying facts
the underlying facts compel a
finding that
finding that Museum Tower was on notice of Austin’s
notice of Austin's alleged
alleged breach of contract
breach 0f contract -- the Kitchen
the Kitchen
Cabinet Delamination
Cabinet Delamination - by
-
by February 25,2013;
February 25, four years
2013; four years after this date
after this 25,2017;
February 25,
date was February 2017;
the Tolling
the Tolling Agreement entered
Agreement into between
entered into between the
the Parties effective as to
Parties was effective of action
to causes of action existing
existing
of
as of
as August 1,
August 1,2017; Tower's breach
2017; and Museum Tower’s of contract
breach of contract cause of action
cause of by that
action by time was
that time
barred by limitations
barred by limitations as of law.
matter 0f
as a matter law.
3.
3. not presented
Museum Tower has not the Court
presented the with either
Court with either aa contract provision or
contract provision or a
warranty provision breached
warranty provision by Austin
breached by (no-evidence) and no express
Austin (no—evidence) warranty breached
express warranty Austin
by Austin
breached by
(traditional).
exists (traditional).
exists
4.
4. Museum Tower does not,
Museum not, and cannot, point this
cannot, point Trial Court
this Trial to any
Court to any Texas Supreme
Court or Dallas
Court 0r Dallas Court of Appeals
Court of of an
creation of
Appeals creation implied warranty
an implied of good
warranty of good and
and workmanlike
performance in new,
performance in new, commercial
commercial construction,
construction, as no such
as no such case,
case, or implied warranty,
or such implied warranty, exists
exists
in the
in the State
State of Texas.
of Texas.
5.
5. Museum Tower's Motion for
Tower’s Motion for Continuance on Austin’s
Austin's No-Evidence Motion
Motion for
for
Summary Judgment should
should be denied
denied on the ground that
the ground that clearly
clearly "adequate time for
“adequate time for discovery”
discovery" has
in this
passed in this case
case as
as to (1) breach
to (1) of contract;
breach of (2) breach
contract; (2) of warranty;
breach of (3) breach
warranty; (3) of implied
breach of implied
warranty; and (4)
warranty; (5) standing,
(a) and (5) standing, including liability to
including no liability homeowners. With respect
to homeowners. Austin's
to Austin’s
respect to
no-evidence
no-evidence MSJ as to damages, as
as to as set
set out in section
out in of its
section G 0f its MSJ, Austin acknowledges that
MSJ, Austin that
AusrrN REPLY
AUSTIN ro MUSEUM TOWER’S
Rept.y T0 Towen's RESPONSE ro AUSTIN’S
RpspoNsn T0 AusrrN's MSJ Page2
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expert depositions
expert depositions on damages have not yet taken
not yet place, and hereby
taken place, withdraws this
hereby withdraws ground, at
this ground, this
at this
time, without
time, prejudice to
without prejudice to re-urging
re-urging it after
it for expert
time for
after adequate time expert discovery passed.
discovery has passed.
6.
6. mis-states the
Museum Tower mis-states the elements of aa breach
elements of of implied
breach of implied warranty
warranty cause of
cause of
action;
action; it has not
it produced any
not produced any evidence of any
evidence of its alleged
of its
any element of alleged of action,
cause of action, as
as no such
of action
cause of
cause action exists
exists under Texas law.
law.
7.
7. Museum Tower
Museum produced no evidence,
Tower has produced or at
evidence, or best less
at best scintilla of
than a scintilla
less than of credible
credible
evidence, to support
evidence, to support its burden of
its proof to
of proof it has standing
to show it in this
standing in this case to
to represent individual
represent individual
homeowners.
8.
8. Museum Tower
Museum produced no evidence,
Tower has produced evidence, or
or at best less
at best scintilla of
than a scintilla
less than of credible
credible
to
evidence, to
evidence, show that
show all homeowners it
that all purports to
it purports to represent, with the
represent, with possible exception
the possible exception of Unit
of Unit
3403, potential actions
3403, potential actions against
against Museum Tower are not barred
are not by the
barred by the statute of limitations.
statute 0f limitations.
ilI.
III. RELEVANT BACKGROUND FACTS:
RELEVANT
9.
9. only additional,
The only additional, relevant fact is
relevant fact follows:
is as follows:
10.
10. Museum Tower, in its
Tower, in its Response at
at page
page 14,
14, states, o'Perhaps
most damaging
the most
states, “Perhaps the
piece of evidence
piece of for Austin
evidence for Austin is the
is fact that
the fact Austin did
that Austin not even contact
did not its cabinet
contact its cabinet subcontractor
subcontractor
EGR regarding the issue
regarding the until September
issue until September 0f 2013." This
of 2013.” This is incorrect. Austin
is incorrect. Austin has documentary
documentary
evidence, which
evidence, long ago produced
was long produced t0
to Museum Tower,
Tower, that
that as early as
as early of 2012 Austin,
as June of Austin,
through its
through its subcontractor
subcontractor at time,
the time,
at the with EGR to
working with
BMCO, was working to correct
correct the kitchen cabinet
the kitchen cabinet
banding delaminations
aluminum edge banding delaminations complained of by
complained of by Museum Tower.l
Museum Tower.1
t Exhibit
I
Exhibit 1.
I
AusrrN REPLY
AUSTIN ro MUSEUM TOWER’S
Reply To TowsR's RESPONSE ro AUSTIN’S
RespoNse To AusrrN's MSJ Page 3
4186985 I
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IV.
IV. REPLY:
A.
A. Tower's breach
Museum Tower’s of contract
breach 0f contract cause of action
cause 0f action is barred by
is barred limitations
by limitations
matter of
as a matter
as law:
of law:
1 1.
11. law on the
Texas law the statute of limitations
statute of limitations as to of contract
to a breach of of action
contract cause of action is
is
well established
well established and set forth in
set forth in detail in the
detail in MSJ. Plaintiff
the MSJ. Plaintiff attempts to circumvent
attempts to circumvent the
the clear
clear case
law by arguing
law by arguing the Kitchen Cabinet
the Kitchen Cabinet Delamination "inherently undiscoverable,”
Delamination was “inherently undiscoverable," such as
as to
to
invoke a discovery
invoke discovery rule,
rule, which, by
which, by the way, does not
the way, currently exist
not currently for breach of
exist for of contract
contract causes
of action?
of action.2 One only
only has to look at
to look the two pictures
at the helpfully offered
pictures helpfully offered by Plaintiff at
by Plaintiff 2 and
at pages 2 and33
of its
of its Response3 to
to be able to determine,
able to determine, as a matter of law,
matter 0f law, that
that the Kitchen Cabinet
the Kitchen Delamination
Cabinet Delamination
was not inherently undiscoverable.
not inherently undiscoverable.
12.
12. One of Plaintiff’s
One of Plaintiff s own cited
cited cases
cases - Via
-
Net, US v. TIG Insurance
Via Net, Insurance Company4
v. Companya - -
inescapably shows the
inescapably the discovery rule simply
discovery rule not apply
simply does not to the
apply to breach ofcontract
the breach of contract action that
action that
is at
is at in this
issue in
issue part of
this part Austin's
of Austin’s MSJ. The Texas Supreme Court,
MSJ. Court, inVia
in Net,"tumfed]
Via Net, to
“turn[ed] to whether
whether
the discovery
the rule applies
discovery rule to contract
applies t0 contract claims like the
claims like the one
one asserted here."s
asserted here.”5 The Texas Supreme
Supreme
Court
Court initially noted,
initially noted, "Normally a cause of
“Normally of action
action accrues wrongful act
accrues when a wrongful legal
act causes some legal
injury."6 The
injury.“ Court, then
The Court, citing to
then citing to the
the Computer
Computer Assoc
Assoc's
’s
Altai case
v Altai
v case cited Austin's original
in Austin’s
cited in original
ooaccrual
noted that
MSJ, noted in some instances,
that in deferred
instances, “accrual may be deferred if 'the
if ‘the of the
nature of
nature injury incurred
the injury incurred is
is
inherently undiscoverable
inherently undiscoverable and the evidence of
the evidence injury
0f injury is objectively
is verifiable."7 The Court
objectively verifiable?” Court then
then
proceeded to note
proceeded t0 note the very restricted
the very applicability 0f
restricted applicability of the discovery
the discovery rule: “we
rule: "we have
have restricted
restricted the
the
2
2
Just like Plaintiff
Just like Plaintiff tries
tries to
to create law implied
create a new common law implied warranty, it tries
warranty, it to create
tries to discovery rule
create a discovery in a breach
rule in
of contract
of context. These creations
contract context. to be left
creations have to left to,
to, and are
are best left to,
best lefi to, the
the Texas Supreme Court to create.
Court to create.
3
3
found at
those found
Or those Exhibit A-2.
Response Exhibit
at Response
4
4
2l 1 S.W.3d
211 r0 (Tex.
S.W.3d 3 10 (Tex. 2006).
2006).
5 Via
5
via Net,
Net, at 313.
at 313.
6
6
Id., citing, Z v. R.
S. V. v.
Id., citing, S. V.,933
R. V.,933 S.W.2d 1, (Tex. 1996).
1,44 (Tex. 1996).
7
7
Id.,citing,ComputerAssoc's.
Id., citing, Int'l.,Inc.
Computer Assoc's. Int'l., Inc. v.
v. Altai,Inc.,9l8
Altai, S.W.2d 453,
Ina, 918 S.W.2d 453,456 (Tex.
456 (Tex. 1996).
1996).
AusrrN REPLY
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Rnpr.v T0 TownR's RESPONSE ro AUSTIN’S
RBspoNse T0 AusrIN's MSJ Page 4
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rule t0 exceptional
discovery rule
discovery to
exceptional cases avoid defeating
cases to avoid defeating the to
purposes behind
the purposes the limitations
behind the limitations
statutes.” Plaintiff, in
statutes."s Plaintiff, in its Response, cites
its to Via
cites t0 Net for
Via Net for the proposition that,
the proposition that, “Whether injury
'oWhether an injury
is inherently undiscoverable
is inherently is aa legal
undiscoverable is legal question
question that is ‘decided
that is categorical rather
'decided on a categorical rather than
than case-
specific basis;
specific the focus
basis; the focus is on
is whether aa type
on whether of injury
type 0f injury rather
rather than particular injury
than aa particular injury was
discoverable.” Plaintiff ignores
discoverable."e Plaintiff the language
ignores the language preceding following this
preceding and following this statement by the
statement by the Texas
Court, which is
Supreme Court, virtually dispositive
is virtually dispositive of
of this issue -- in
this issue Austin's favor:
in Austin’s favor:
"An injury
“An injury is inherently
inherently undiscoverable
is if it is,
undiscoverable if is, by its nature,
by its to be
unlikely to
nature, unlikely
it
within the
discovered within
discovered the prescribed
prescribed limitations period despite
limitations period due diligence.”
despite due diligence."
Wagner & Brown,
Brown, Ltd. Horwood,sS
Ltd. v. Harwood, 732,734-35
58 S.W.3d 732,
v. (Tex.2001). This
734—35 (Tex.2001). This legal
legal
question
question is decided
decided on a categorical
is rather than
categorical rather than case-specific
case-specihc basis; focus is
the focus
basis; the is on
whether a type
whether type of injury rather
of injury rather than particular injury
than a particular injury was discoverable. Id. at
discoverable. Id. at736;
736;
Apex Towing Co.Co. v. Tolin,4l
v. Tolin, 41 S.W.3d II8,l22
S.W.3d 118, (Tex.200l).
122 (Tex.2001).
"It is well-settled law
“It is well-settled law that
that aa breach of contract
breach of claim accrues
contract claim accnres when the contract
the contract rs
is
breached." Stine
breached.” Stine v. Stewart, 80
v. Stewart, S.W.3d 586,
S0 S.W.3d 586,592 (Tex.2002).10
592 (Tex.2002).10
This
This is a
is key distinction
a key wholly ignored
distinction wholly in Plaintiff’s
ignored in Response -- the
Plaintiff s Response injury has
the injury to have
has to have been
inherently undiscoverable,
inherently "within the
undiscoverable, “within prescribed limitations
the prescribed limitations period.”” period."ll We
We know the
the breach
began to manifest itself
to manifest itself to
to Museum Tower at least as
at least early as
as early Fall of
the Fall
as the of 2012, during the
2012, during the punch
list process
list process on the Project.l2 Four years
the Project.” years after
after the of 2012
Fall of
the Fall 2012 is
is the
the Fall of 2016.
Fall of 2016. Museum Tower
itself
itself has admitted, in
admitted, in both
both its Petitions
its well as in
Petitions as well in its thatat
its Response, that 2013,
by December 2013,
least by
at least
8
8
Id., citing,
1d., citing,S. Z (“noting
S. V. ("noting that
that applications of the discovery
applications ofthe rule ‘should
discovery rule 'should be few and narrowly drawn"'); and
narrowly drawn’”); andComputer
Computer
Assoc's.
Assoc ’s. Int ("noting that
Int'1. (“noting
’l.
that discovery
discovery rule is “a
rule is very limited
"a very limited exception to statutes
exception to statutes of limitations' that
Preview
FILED DALLAS COUNTY 8/29/2019 4:12 PM FELICIA PITRE DISTRICT CLERK Veronica Vaughn DC-l88—02358 CAUSE NO. DC-l -02358 MUSEUM TOWER, LP $ § IN THE DISTRICT COURT IN $ § Plaintiff Plaintiff $ § $ § V V. $ § 162ND 1 62ND JUDICIAL DISTRICT $ § AUSTIN BUILDING COMPANY AUSTIN $ § $ § Third Party Defendant and Third Defendant Plaintiff Party Plaintifl $ § DALLAS COUNTY, COLINTY, TEXAS $ § V V- $ § $ § EGR CONSTRUCTION, CONSTRUCTION, INC. INC. $ § $ § Third Party Third Party Defendant Defendant $ § DEFENDANT AUSTIN BUILDING COMPANY’S COMPANY'S REPLY TO MUSEUM TOWER RESPONSE TO AUSTIN'S TRADITIONAL AUSTIN’S NO.EVIDENCE MOTIONS FOR SUMMARY JUDGMENT, AND NO-EVIDENCE AND RESPONSE TO MUSEUM TOWER’S TOWER'S MOTION FOR CONTINUANCE OF NO-EVIDENCE CONTINUANCE NO.EVIDENCE MSJ COMES NOW, Defendant Defendant Austin ("Austin"), Building Company (“Austin”), Austin Building files this, and files this, its its Reply Reply (the (the “Reply”) to Museum "Reply") to Museum Tower, L.P.'s (“Museum Tower, L.P.’s ("Museum Tower") (the “Response”) Response (the Tower”) Response "Response") to to Austin's Traditional Austin’s Traditional and and No—Evidence Motions for No-Evidence Motions for Summary Summary Judgment (the “MSJ”), Judgment (the "MSJ"), and in and in support thereof support respectfully thereof would respectfully Court as the Court show the follows. as follows. I. I. REPLY SUMMARY SUMMARY JUDGMENT EVIDENCE: 1. 1. offered by evidence offered The evidence by Austin Austin in in support of this support of Reply is this Reply is as follows as follows: Exhibit Exhibit l: 1: of email Copy of email dated 4, 2012 dated June 4, 2012 from from Darren Darren Lister of EGR to Lister of to Dean Larson of Larson of BMCO regarding BMCO regarding “edgebanding issue" authenticated "edgebanding issue” by Affidavit authenticated by of Kent Affidavit of Kent McNorton (“McNorton McNorton Affi davit"). (" McNorton Affidavit”). Exhibit 2: Exhibit 2: Museum Tower, Museum Tower, LP's Responses LP’s to Austin's Second Responses to Austin’s Second and Third Sets and Third of Sets of Interrogatories, true Interrogatories, true correct copies and correct of which are copies of are attached Exhibit 2. attached as Exhibit 2. AusuN REPLY AUSTIN ro MUSEUM TOWER’S RepI.y To ToweR's RESPONSE ro AUSTIN’S RespoNsn To AusrrN's MSJ Page Page I 1 4186985 1 4186985_1 Exhibit 3: Exhibit 3: Ashley Cummings, attorney Ashley for Plaintiff attomey for Plaintiff Museum Museum Tower, LP, email Tower, LP, email confirming confirming "there “therewas no assignment was no from Museum assignment from Museum Tower, Tower, LP to Museum LP to Museum Tower Condominium Association, Condominium Association, Inc.,” authenticated by Affidavit Inc.," authenticated by of Paulo Affidavit of Paulo Flores Flores ("Flores Afiidavit”). (“Flores Affidavit"). Exhibit 4: Exhibit 4 Reporter’s of Deposition Certification of Reporter's Certification of Deposition of Steven Carl Sandborg, Steven Carl including Mr. Sandborg, including Mr. Sandborg's errata Sandborg’s page, aatrue ercatapage, correct copy true and correct of which is copy of is attached attached as Exhibit 4. as Exhibit 4. II. II. SUMMARY SUMMARY OF REPLY: 2. 2. of Limitations Statute of Statute Limitations case case law and its law its application application to to the underlying facts the underlying facts compel a finding that finding that Museum Tower was on notice of Austin’s notice of Austin's alleged alleged breach of contract breach 0f contract -- the Kitchen the Kitchen Cabinet Delamination Cabinet Delamination - by - by February 25,2013; February 25, four years 2013; four years after this date after this 25,2017; February 25, date was February 2017; the Tolling the Tolling Agreement entered Agreement into between entered into between the the Parties effective as to Parties was effective of action to causes of action existing existing of as of as August 1, August 1,2017; Tower's breach 2017; and Museum Tower’s of contract breach of contract cause of action cause of by that action by time was that time barred by limitations barred by limitations as of law. matter 0f as a matter law. 3. 3. not presented Museum Tower has not the Court presented the with either Court with either aa contract provision or contract provision or a warranty provision breached warranty provision by Austin breached by (no-evidence) and no express Austin (no—evidence) warranty breached express warranty Austin by Austin breached by (traditional). exists (traditional). exists 4. 4. Museum Tower does not, Museum not, and cannot, point this cannot, point Trial Court this Trial to any Court to any Texas Supreme Court or Dallas Court 0r Dallas Court of Appeals Court of of an creation of Appeals creation implied warranty an implied of good warranty of good and and workmanlike performance in new, performance in new, commercial commercial construction, construction, as no such as no such case, case, or implied warranty, or such implied warranty, exists exists in the in the State State of Texas. of Texas. 5. 5. Museum Tower's Motion for Tower’s Motion for Continuance on Austin’s Austin's No-Evidence Motion Motion for for Summary Judgment should should be denied denied on the ground that the ground that clearly clearly "adequate time for “adequate time for discovery” discovery" has in this passed in this case case as as to (1) breach to (1) of contract; breach of (2) breach contract; (2) of warranty; breach of (3) breach warranty; (3) of implied breach of implied warranty; and (4) warranty; (5) standing, (a) and (5) standing, including liability to including no liability homeowners. With respect to homeowners. Austin's to Austin’s respect to no-evidence no-evidence MSJ as to damages, as as to as set set out in section out in of its section G 0f its MSJ, Austin acknowledges that MSJ, Austin that AusrrN REPLY AUSTIN ro MUSEUM TOWER’S Rept.y T0 Towen's RESPONSE ro AUSTIN’S RpspoNsn T0 AusrrN's MSJ Page2 Page 2 4 I 86985_l 4186985_1 expert depositions expert depositions on damages have not yet taken not yet place, and hereby taken place, withdraws this hereby withdraws ground, at this ground, this at this time, without time, prejudice to without prejudice to re-urging re-urging it after it for expert time for after adequate time expert discovery passed. discovery has passed. 6. 6. mis-states the Museum Tower mis-states the elements of aa breach elements of of implied breach of implied warranty warranty cause of cause of action; action; it has not it produced any not produced any evidence of any evidence of its alleged of its any element of alleged of action, cause of action, as as no such of action cause of cause action exists exists under Texas law. law. 7. 7. Museum Tower Museum produced no evidence, Tower has produced or at evidence, or best less at best scintilla of than a scintilla less than of credible credible evidence, to support evidence, to support its burden of its proof to of proof it has standing to show it in this standing in this case to to represent individual represent individual homeowners. 8. 8. Museum Tower Museum produced no evidence, Tower has produced evidence, or or at best less at best scintilla of than a scintilla less than of credible credible to evidence, to evidence, show that show all homeowners it that all purports to it purports to represent, with the represent, with possible exception the possible exception of Unit of Unit 3403, potential actions 3403, potential actions against against Museum Tower are not barred are not by the barred by the statute of limitations. statute 0f limitations. ilI. III. RELEVANT BACKGROUND FACTS: RELEVANT 9. 9. only additional, The only additional, relevant fact is relevant fact follows: is as follows: 10. 10. Museum Tower, in its Tower, in its Response at at page page 14, 14, states, o'Perhaps most damaging the most states, “Perhaps the piece of evidence piece of for Austin evidence for Austin is the is fact that the fact Austin did that Austin not even contact did not its cabinet contact its cabinet subcontractor subcontractor EGR regarding the issue regarding the until September issue until September 0f 2013." This of 2013.” This is incorrect. Austin is incorrect. Austin has documentary documentary evidence, which evidence, long ago produced was long produced t0 to Museum Tower, Tower, that that as early as as early of 2012 Austin, as June of Austin, through its through its subcontractor subcontractor at time, the time, at the with EGR to working with BMCO, was working to correct correct the kitchen cabinet the kitchen cabinet banding delaminations aluminum edge banding delaminations complained of by complained of by Museum Tower.l Museum Tower.1 t Exhibit I Exhibit 1. I AusrrN REPLY AUSTIN ro MUSEUM TOWER’S Reply To TowsR's RESPONSE ro AUSTIN’S RespoNse To AusrrN's MSJ Page 3 4186985 I 4186985_1 IV. IV. REPLY: A. A. Tower's breach Museum Tower’s of contract breach 0f contract cause of action cause 0f action is barred by is barred limitations by limitations matter of as a matter as law: of law: 1 1. 11. law on the Texas law the statute of limitations statute of limitations as to of contract to a breach of of action contract cause of action is is well established well established and set forth in set forth in detail in the detail in MSJ. Plaintiff the MSJ. Plaintiff attempts to circumvent attempts to circumvent the the clear clear case law by arguing law by arguing the Kitchen Cabinet the Kitchen Cabinet Delamination "inherently undiscoverable,” Delamination was “inherently undiscoverable," such as as to to invoke a discovery invoke discovery rule, rule, which, by which, by the way, does not the way, currently exist not currently for breach of exist for of contract contract causes of action? of action.2 One only only has to look at to look the two pictures at the helpfully offered pictures helpfully offered by Plaintiff at by Plaintiff 2 and at pages 2 and33 of its of its Response3 to to be able to determine, able to determine, as a matter of law, matter 0f law, that that the Kitchen Cabinet the Kitchen Delamination Cabinet Delamination was not inherently undiscoverable. not inherently undiscoverable. 12. 12. One of Plaintiff’s One of Plaintiff s own cited cited cases cases - Via - Net, US v. TIG Insurance Via Net, Insurance Company4 v. Companya - - inescapably shows the inescapably the discovery rule simply discovery rule not apply simply does not to the apply to breach ofcontract the breach of contract action that action that is at is at in this issue in issue part of this part Austin's of Austin’s MSJ. The Texas Supreme Court, MSJ. Court, inVia in Net,"tumfed] Via Net, to “turn[ed] to whether whether the discovery the rule applies discovery rule to contract applies t0 contract claims like the claims like the one one asserted here."s asserted here.”5 The Texas Supreme Supreme Court Court initially noted, initially noted, "Normally a cause of “Normally of action action accrues wrongful act accrues when a wrongful legal act causes some legal injury."6 The injury.“ Court, then The Court, citing to then citing to the the Computer Computer Assoc Assoc's ’s Altai case v Altai v case cited Austin's original in Austin’s cited in original ooaccrual noted that MSJ, noted in some instances, that in deferred instances, “accrual may be deferred if 'the if ‘the of the nature of nature injury incurred the injury incurred is is inherently undiscoverable inherently undiscoverable and the evidence of the evidence injury 0f injury is objectively is verifiable."7 The Court objectively verifiable?” Court then then proceeded to note proceeded t0 note the very restricted the very applicability 0f restricted applicability of the discovery the discovery rule: “we rule: "we have have restricted restricted the the 2 2 Just like Plaintiff Just like Plaintiff tries tries to to create law implied create a new common law implied warranty, it tries warranty, it to create tries to discovery rule create a discovery in a breach rule in of contract of context. These creations contract context. to be left creations have to left to, to, and are are best left to, best lefi to, the the Texas Supreme Court to create. Court to create. 3 3 found at those found Or those Exhibit A-2. Response Exhibit at Response 4 4 2l 1 S.W.3d 211 r0 (Tex. S.W.3d 3 10 (Tex. 2006). 2006). 5 Via 5 via Net, Net, at 313. at 313. 6 6 Id., citing, Z v. R. S. V. v. Id., citing, S. V.,933 R. V.,933 S.W.2d 1, (Tex. 1996). 1,44 (Tex. 1996). 7 7 Id.,citing,ComputerAssoc's. Id., citing, Int'l.,Inc. Computer Assoc's. Int'l., Inc. v. v. Altai,Inc.,9l8 Altai, S.W.2d 453, Ina, 918 S.W.2d 453,456 (Tex. 456 (Tex. 1996). 1996). AusrrN REPLY AUSTIN ro MUSEUM TOWER’S Rnpr.v T0 TownR's RESPONSE ro AUSTIN’S RBspoNse T0 AusrIN's MSJ Page 4 4 I 86985_l 4186985_1 rule t0 exceptional discovery rule discovery to exceptional cases avoid defeating cases to avoid defeating the to purposes behind the purposes the limitations behind the limitations statutes.” Plaintiff, in statutes."s Plaintiff, in its Response, cites its to Via cites t0 Net for Via Net for the proposition that, the proposition that, “Whether injury 'oWhether an injury is inherently undiscoverable is inherently is aa legal undiscoverable is legal question question that is ‘decided that is categorical rather 'decided on a categorical rather than than case- specific basis; specific the focus basis; the focus is on is whether aa type on whether of injury type 0f injury rather rather than particular injury than aa particular injury was discoverable.” Plaintiff ignores discoverable."e Plaintiff the language ignores the language preceding following this preceding and following this statement by the statement by the Texas Court, which is Supreme Court, virtually dispositive is virtually dispositive of of this issue -- in this issue Austin's favor: in Austin’s favor: "An injury “An injury is inherently inherently undiscoverable is if it is, undiscoverable if is, by its nature, by its to be unlikely to nature, unlikely it within the discovered within discovered the prescribed prescribed limitations period despite limitations period due diligence.” despite due diligence." Wagner & Brown, Brown, Ltd. Horwood,sS Ltd. v. Harwood, 732,734-35 58 S.W.3d 732, v. (Tex.2001). This 734—35 (Tex.2001). This legal legal question question is decided decided on a categorical is rather than categorical rather than case-specific case-specihc basis; focus is the focus basis; the is on whether a type whether type of injury rather of injury rather than particular injury than a particular injury was discoverable. Id. at discoverable. Id. at736; 736; Apex Towing Co.Co. v. Tolin,4l v. Tolin, 41 S.W.3d II8,l22 S.W.3d 118, (Tex.200l). 122 (Tex.2001). "It is well-settled law “It is well-settled law that that aa breach of contract breach of claim accrues contract claim accnres when the contract the contract rs is breached." Stine breached.” Stine v. Stewart, 80 v. Stewart, S.W.3d 586, S0 S.W.3d 586,592 (Tex.2002).10 592 (Tex.2002).10 This This is a is key distinction a key wholly ignored distinction wholly in Plaintiff’s ignored in Response -- the Plaintiff s Response injury has the injury to have has to have been inherently undiscoverable, inherently "within the undiscoverable, “within prescribed limitations the prescribed limitations period.”” period."ll We We know the the breach began to manifest itself to manifest itself to to Museum Tower at least as at least early as as early Fall of the Fall as the of 2012, during the 2012, during the punch list process list process on the Project.l2 Four years the Project.” years after after the of 2012 Fall of the Fall 2012 is is the the Fall of 2016. Fall of 2016. Museum Tower itself itself has admitted, in admitted, in both both its Petitions its well as in Petitions as well in its thatat its Response, that 2013, by December 2013, least by at least 8 8 Id., citing, 1d., citing,S. Z (“noting S. V. ("noting that that applications of the discovery applications ofthe rule ‘should discovery rule 'should be few and narrowly drawn"'); and narrowly drawn’”); andComputer Computer Assoc's. Assoc ’s. Int ("noting that Int'1. (“noting ’l. that discovery discovery rule is “a rule is very limited "a very limited exception to statutes exception to statutes of limitations' that