Preview
FILED
DALLAS COUNTY
8/28/2019 5:38 PM
FELICIA PITRE
DISTRICT CLERK
CAROLYN SELLERS
CAUSE
CAUSENO. DC-I8-02358
NO. DC-l 8-02358
MUSEUM TOWER, LP $
§ IN THE DISTRICT COURT
IN
$
§
Plaintiff
Plaintiff $
§
$
§
V
V. $
§
162ND JUDICIAL
1 62ND JUDICIAL DISTRICT
$
§
AUSTIN BUILDING COMPANY $
§
$
§
Defendant and Third
Defendant Party
Third Party Plaintiff
Plaintijj’ $
§ DALLAS COUNTY, TEXAS
$
§
V
V- $
§
$
§
EGR CONSTRUCTION, INC
CONSTRUCTION, INC. $
§
$
§
Third Party
Third Party Defendant
Defendant $
§
DEFENDANT AUSTIN BUILDING COMPANY’S
ATISTIN BUILDING TRADITIONAL AND
COMPANY'S TRADITIONAL
NO-EVIDENCE F'OR SUMMARY
NO.EVIDENCE MOTIONS FOR Y JUDGMENT AS TO THIRD
PARTY DEFENDANT EGR CONSTRUCTION
COMES NOW, Defendant
COMES NOW, Austin Building
Defendant Austin Building Company ("Austin"), and
Company (“Austin”), files this,
and files this, its
its
Traditional and No-Evidence
Traditional No-Evidence Motions for
Motions for Summary
Summary Judgment against Third Party
against Third Defendant EGR
Party Defendant
Construction, Inc.
Construction, ('.EGR"), and in
Inc. (“EGR”), in support
support thereof respectfully
thereof would respectfully Court as
the Court
show the follows.
as follows.
I.
I. SUMMARY
SUMMARY JUDGMENT STANDARDS:
1.
1. Traditional
Traditional -- Under traditional
-- traditional summary judgment standards,
summary judgment for
party moving for
standards, aa party
judgment has
summary judgment the burden
has the of establishing
burden of establishing as of law
matter of
as aa matter law that
that no genuine issue
no genuine of
issue of
material fact exists
material fact exists as to one
as to or
one or essential elements
more essential of the
elements of the plaintiffs
plaintiff’s cause of
cause action.l The
of action.‘
Defendant does
Defendant does not to disprove
not need to disprove all the
all the elements of the
elements of Plaintiff s cause
the Plaintiffs of action;
cause 0f it must
action; it
I Casso v.
1
Brand,776
v. Brand, 551, 556
S.W.2d 551,
776 S.W.2d (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.
1985).
1985).
AUSTIN MorroNs FOR
AusrrN MOTIONS FoR SUMMARY
SUMMARy JUDGMENT AcArNSr EGR
JUDGMENT AGAINST Page 1
4173706_1
4173706_1
disprove only one?
disprove only If the
one.2 If the defendant
defendant meets this burden,
meets this burden, the plaintiff must then
the plaintiff then raise genuine
raise aa genuine
of material
issue of
issue material fact
fact element.3
that element.3
on that If plaintiff fails
the plaintiff
If the fails t0
to raise genuine issue
raise a genuine material fact,
of material
issue of fact,
then summary
then judgment must be granted
summary judgment granted by
by the Court.a Under a traditional
the C0urt.4 for
motion for
traditional motion summary
judgment, the
judgment, the defendant
defendant can
can establish
establish that no genuine
that no genuine issue of material
issue of fact exists
material fact exists and that
and that it is
it is
entitled to
entitled to judgment as
judgment a matter
as a of law by
matter 0f by either conclusively disproving
either conclusively disproving one
one element of aa cause
element of
of action
of or by
action or by conclusively proving
conclusively proving all the
all the elements of an
elements of an affirmative defense.5 A matter
affirmative defense. matter is
5
is
conclusively established
conclusively if
established if reasonable people could
reasonable people could not differ as
not differ to the
as to the conclusion to be
conclusion t0 be drawn
the evidence.6
from the
2.
2. No-Evidence
No-Evidence -- Rule
-- Rule 166a(i) of the
166a(i) of the Texas Rules
Rules 0f Civil Procedure
of Civil Procedure authorizes
authorizes a
party to
party to assert motion for
assert a motion a for judgment based
summary judgment
summary on the
based on the proposition,
proposition, after
after adequate
opportunity for
opportunity for discovery,
discovery,that there is
that there is no evidence to support
evidence to support one or
or more elements of an adverse
elements of adverse
party's claims
party’s or defenses.
claims or defenses.T 7
The
The rule that a
requires that
rule requires a movant’s motion specifically
movant's motion specifically state
state the
the
for which
elements for
elements which there
there is n0
is no evidence but does
evidence but not otherwise
does not the presentment
require the
otherwise require of
presentment of
supporting summary
supporting judgment evidence.8
summary judgment 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 entitled to trial and,
to a trial and, if to do so,
unable to
if unable the court
so, the grant the
court must grant the
motion.e
motion? A no evidence motion for
evidence motion judgment
for summary judgment should be
should granted
be granted any one
when any of the
one of the
following situations
following situations exists: (1) there
exists: (1) there is of evidence
is a complete absence of evidence of vital fact;
of a Vital (2) the
fact; (2) court
the court
2 Walker
2
Walkerv. Honis,9245.W.2d375,378
v. Harris, (Tex. 1996);
924 S.W.2d 375, 378 (Tex. Doev.
1996); Doe Club ofGreater
Boys Club
v. Boys lnc.,907
Dallas, Ina,
of Greater Dallas, 5.W.2d472,
907 S.W.2d 472,
(Tex. 1995);
481-82 (Tex.
481-82 1995); andLearSiegler,lnc.v.
and Lear Siegler, Inc. Perez,8l9
v. Perez, 470,471(Tex.
819 S.W.2d 470, l99l).
471 (Tex. 1991).
3
3
v. City
Gonzalez v.
Gonzalez of Harlingen 814
City ofl-larlingen, 814 S.W.2d 109,
109, 112 (Tex. App. -- Corpus Christi
112 (Tex. Christi 1991, writ denied).
1991, writ denied).
a
4
Tex. R.
Tex. Civ. P.
R. Civ. P. 166a(c).
166a(c).
5
5
Little v. Tex.
Little v. Dep't ofCrim.
Tex. Dep’t of Crim. Justice, l4S S.W.3d 374,
Justice, 148 374,381(Tex. 2004).
381 (Tex. 2004).
6
5
City of Kellerv.
Ctty ofKeller Wilson,l68
v. Wilson, 168 802,814
S.W.3d 802, (Tex.2005).
814 (Tex. 2005).
7
7
Tex. R.
Tex. Civ. P.
R. Civ. l66a(i).
P. 166a(i).
8 Tex. R. Civ. P.
8
l66a(i); Denton
Tex. R. Civ. P. 166a(i); v. Big
v. Big Spring Corp.,998
Hosp. Corp.,
Spring Hosp. 294,298
998 S.W.2d 294, 298 (Tex. App.-Eastland 1999,
(Tex. App.—Eastland 7999,no
no
pet.).
pet).
e
9
See Lampasas v. Spring Ctr.
v. Spring Ctr. Inc.,
Inc., 988
988 S.W.2d 428,
428,432
432 (Tex. App.-Houston
(Tex. App.—Houston Dist.] 1999,
[4th Dist]
[14th pet.).
1999, no pet).
Ausrn MOTIONS
AUSTIN MorroNs FOR
FoR SUMMARY
SUMMARy JUDGMENT Acamsr EGR
JUDGMENT AGAINST Page2
Page 2
41"13706 I
4173706_1
is barred
is by rules
barred by of law
rules of law or
or of
of evidence
evidence from giving weight
from giving weight to
to the only evidence
the only evidence offered prove
to prove
offered to
aavital
vital fact; (3) the
fact; (3) the evidence
evidence offered to prove
offered t0 vital fact
prove a vital fact is no more than
is (4) the
scintilla; (4)
than a mere scintilla; the
evidence establishes
evidence conclusively the
establishes conclusively the opposite of the
opposite of the vital fact.10
vital fact“)
II.
II. SUMMARY JUDGMENT EVIDENCE:
3.
3. The evidence
The evidence offered by Austin
offered by Austin in of
this
support of this
in support Motion
Motion for Partial
for Partial Summary
is as
Judgment is follows:
as follows:
Exhibit A:
Exhibit A: House Bill2093
Bill2093
Exhibit B:
Exhibit B: Page 1I and
Page the signature
and the signature pages to the
pages to the Original
Original Contract
Contract between Austin and
between Austin
Museum Tower
Museum
Exhibit C:
Exhibit C: The Subcontract Austin and EGR
Subcontract Agreement between Austin
Exhibit D:
Exhibit D: Affidavit of
The Affidavit McNorton authenticating
of Kent McNorton Exhibits B and C.
authenticating Exhibits C.
ilI.
III. SUMMARY
SUMMARY OF ARGUMENT:
ARGUMENT:
4.
4. EGR has pled
pled the following defenses to
the following Austin's causes 0f
to Austin’s of action against it in
action against in this
this it
in
case in
case its First
its First Amended Answer, filed With
Answer, filed with this
this Court by EGR on
Court by on February 28,2019;
February 28, this is
2019; this is
EGR's current,
EGR’s live defensive
current, live pleading in
defensive pleading this casezll
in this (A) estoppel,
case:lr (A) (B) waiver,
estoppel, (B) waiver, (C) of
(C) assumption of
the risk,
the (D) violation
risk, and (D) violation 0f
of Tex.
Tex. Ins.
Ins. Code $ 151.102.
§ 15 1.102.
5.
5. EGR has n0
no evidence in support
evidence in of its
support of its affirmative of estoppel
affirmative defense of Austin.
to Austin.
estoppel as to
6.
6. EGR has no evidence in support
evidence in of its
support of its affirmative
affirmative defense of
of waiver
waiver as to Austin.
as to Austin.
7.
7. recognizethe
not recognize
Texas law does not of “assumption
the defense of ofthe
"assumption ofthe risk," and has never
risk,” never
in the
recognized such defense in
recognized of contract/warranty
the breach of contract/warranty context.
context.
t0 See
1°
SeeCity of Kellerv. Ll/ilson,l68 S.W.3d802,810
168 S.W.3d (Tex.2005);
802, 810 (Tex. Rowlinsv. Healthservs.
of Charity Health
v. Daughters ofCharity of
City ofKeller v. Wilson, 2005); Rawlins Servs. of
Austin,20l
Austin, l App. LEXIS 6940,
Tex. App.
2011 Tex. 6940,*6
*6 (Tex. Austin Aug.
(Tex. App. Austin Aug.26,2011, pet.).
26, 201 1, no pet).
1r The Court
11
Court is
is requested to take
requested to judicial notice
take judicial of EGR’s
notice of EGR's First
First filed with
Answer, filed
Amended Answer, with this
this Court by EGR on
Court by
February 28,2019,
February 28, Plaintiffls current
2019, Plaintiff’s current live pleading in
live pleading in this
this case.
case.
AusrrN MOTIONS
AUSTIN MorroNs FOR
FoR SUMMARY AcATNST EGR
SUMMARy JUDGMENT AGAINST Page 3
4173706 |
4173706_1
8.
8. indemnification agreement
The indemnification agreement between Austin and EGR, which includes
between Austin includes a duty
duty to
to
defend,
defend, is not
is governed by
not governed by the
the Texas Anti-Indemnity Act found
Anti-Indemnity Act found at Tex. Ins.
at Tex. Ins. Code §$ 151.102,
151.102, as
this transaction
this pre-dates the
transaction pre-dates effective date
the effective date of such Act.
of Act.
IV. RELEVANT
IV. RELEVANT BACKGROUND FACTS:
9.
9. Effective June
Effective 23,2010,
June 23, Austin contracted
2010, Austin with Plaintiff
contracted with Plaintiff Museum Tower,
Museum L.P.
Tower, L.P.
Tower") for
(ooMuseum Tower”)
(“Museum for construction of the
construction 0f the Museum Tower Proj
Project.12 Effective August
ect.” Effective 30,2012,
August 30, 2012,
Austin subcontracted
Austin with
subcontracted with EGR to provide the
to provide kitchen cabinetry
the kitchen for the
cabinetry for the Museum Tower Proj
Project.13
ect.”
10. The
10. The Subcontract
Subcontract Agreement
Agreement between and
Austin and
between Austin EGR contained
EGR contained an
oobroad form”
indemnification provision.la In
indemnification provision.” In the
the Subcontract, Austin included
Subcontract, Austin included a “broad form" indemnity
indemnity clause
clause
whereby EGR would assume an unqualified
unqualified obligation
obligation to hold Austin
to hold Austin harmless from
harmless from all liability
all liability
regardless of
regardless party
of which party fault, even as to
at fault,
was at to the
the sole negligence of Austin.”
negligence of Austin.ls EGR’s
EGR's counsel
red-lined the Subcontract
red-lined the Subcontract Agreement, the parties
and the
Agreement, and parties agreed First
agreed to a First to a Addendum
Addendum to the
to the
Agreement (the
Subcontract Agreement "First Addendum”)
(the “First Addendum") that
that contained
contained an “intermediate form" indemnity
"intermediate form” indemnity
clause,
clause, whereby EGR would assume
whereby all liability relating
all liability to the
relating to the subject
subject matter of the
matter of the agreement,
agreement,
for the
except for
except injury 0r
the injury or damages caused by Austin's sole
by Austin’s negligence.16
sole negligence.“ filed suit
Museum Tower filed suit
against Austin
against for
Austin for delamination the
delamination of the of aluminum edge
aluminum edge banding
banding to the
to the kitchen
kitchen cabinetry
cabinetry
manufactured and by
installed by
and installed EGR on 20,20I8.r7
February 20,
0n February 2018.17 Austin filed its
Austin filed its third—party
third-party action
action
t2
12
Exhibit B.
Exhibit B.
t3 Exhibit
13
Exhibit C.
t4 Exhibit
'4
Exhibit C,
C, at
atpara. 12.
para. 12.
ts 1d
15
Id.
t6
16
ld.at last
Id. at last page -- First
First Addendum to
to Subcontract Agreement.
Subcontract Agreement.
r7
‘7
Austin requests
Austin requests the Court take
the Court judicial notice
take judicial notice of
of the
the date of suit
date of filing and Plaintiff’s
suit filing Plaintiff s Original
Original Petition.
Petition.
MouoNs FOR SUMMARY JUDGMENT
AUSTIN MOTIONS AGAINST EGR
JUDGMENT AGAINST 4
Page 4
4t?3706*t
4173706_1
against April 5,
against EGR on April to which EGR filed
2018, to
5, 2018, filed it Original
it 3,2018,
Original Answer on May 3, 2018, and its
its
First
First Answer, its
Amended Answer, its current, live pleading,
current, live pleading, on February
February 28,
28,2019.18
2019.18
V.
V. ARGUMENT:
ARGUMENT:
A.
A. EGR has no evidence
has no in support
evidence in of its
support of its affirmative
affirmative defense of estoppel
defense of estoppel to
as to
as
Austin:
Austin:
1 1.
11. EGR defends
EGR on the
defends on the grounds of estoppel
grounds 0f in section
estoppel in II.2 of
section 11.2 its First
of its First Amended
Answer. The
Answer. elements of
The elements equitable estoppel
of equitable are
estoppel are (1) a false representation
(1) a false representation or of
or concealment of
material facts,
material (2)
facts, (2) with knowledge,
made with
made knowledge, actual or constructive,
actual or of those
constructive, of (3) with
facts, (3)
those facts, with the
the
intention that
intention that it should
it should be acted (4) to
on, (4)
acted on, party without
to a party without knowledge,
knowledge, or
or the of knowledge
the means of knowledge
of those
of those facts, (5) who detrimentally
facts, (5) relied upon
detrimentally relied upon the misrepresentation.le
the misrepresentation.”
12.
12. EGR can show
show no evidence (l) a false
of: (1)
evidence 0f: representation or
false representation of material
or concealment of material
facts
facts by Austin;
by (2) made
Austin; (2) with knowledge,
made with knowledge, actual or constructive,
actual 0r of those
constructive, of facts, by
those facts, Austin; (3)
by Austin; (3)
with the
with intention by
the intention Austin that
by Austin that it should
it should be
be acted (4) to
by EGR; (4)
acted on by without EGR having
to EGR without having
knowledge of those
knowledge of material facts,
those material or the
facts, or the means
means of of those
of knowledge of or that
facts; or
those facts; that (5) EGR
(5)
detrimentally relied
detrimentally relied misrepresentation.
any such misrepresentation.
upon any
B.
B. EGR has no evidence
has no in support
evidence in of its
support of its affirmative
affirmative defense of waiver
defense of waiver as
as to
to
Austin:
Austin:
13.
13. EGR defends on the grounds ofwaiver
the grounds in section
of waiver in II.3 of
section 11.3 of its
its First
First Amended
Amended Answer.
Answer.
ooWaiver
“Waiver is defined
is 'an intentional
as ‘an
defined as intentional relinquishment of a
relinquishment of right or
a known right or intentional
intentional conduct
conduct
with claiming
inconsistent with
inconsistent claiming that right."'.20
that right.’”.2°
18
18
See,
See, Note I l.
Note 11.
te Schroeder v. Tex. Iron
19
Schroederv. Tex. IronWorl
Preview
FILED DALLAS COUNTY 8/28/2019 5:38 PM FELICIA PITRE DISTRICT CLERK CAROLYN SELLERS CAUSE CAUSENO. DC-I8-02358 NO. DC-l 8-02358 MUSEUM TOWER, LP $ § IN THE DISTRICT COURT IN $ § Plaintiff Plaintiff $ § $ § V V. $ § 162ND JUDICIAL 1 62ND JUDICIAL DISTRICT $ § AUSTIN BUILDING COMPANY $ § $ § Defendant and Third Defendant Party Third Party Plaintiff Plaintijj’ $ § DALLAS COUNTY, TEXAS $ § V V- $ § $ § EGR CONSTRUCTION, INC CONSTRUCTION, INC. $ § $ § Third Party Third Party Defendant Defendant $ § DEFENDANT AUSTIN BUILDING COMPANY’S ATISTIN BUILDING TRADITIONAL AND COMPANY'S TRADITIONAL NO-EVIDENCE F'OR SUMMARY NO.EVIDENCE MOTIONS FOR Y JUDGMENT AS TO THIRD PARTY DEFENDANT EGR CONSTRUCTION COMES NOW, Defendant COMES NOW, Austin Building Defendant Austin Building Company ("Austin"), and Company (“Austin”), files this, and files this, its its Traditional and No-Evidence Traditional No-Evidence Motions for Motions for Summary Summary Judgment against Third Party against Third Defendant EGR Party Defendant Construction, Inc. Construction, ('.EGR"), and in Inc. (“EGR”), in support support thereof respectfully thereof would respectfully Court as the Court show the follows. as follows. I. I. SUMMARY SUMMARY JUDGMENT STANDARDS: 1. 1. Traditional Traditional -- Under traditional -- traditional summary judgment standards, summary judgment for party moving for standards, aa party judgment has summary judgment the burden has the of establishing burden of establishing as of law matter of as aa matter law that that no genuine issue no genuine of issue of material fact exists material fact exists as to one as to or one or essential elements more essential of the elements of the plaintiffs plaintiff’s cause of cause action.l The of action.‘ Defendant does Defendant does not to disprove not need to disprove all the all the elements of the elements of Plaintiff s cause the Plaintiffs of action; cause 0f it must action; it I Casso v. 1 Brand,776 v. Brand, 551, 556 S.W.2d 551, 776 S.W.2d (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. 1985). 1985). AUSTIN MorroNs FOR AusrrN MOTIONS FoR SUMMARY SUMMARy JUDGMENT AcArNSr EGR JUDGMENT AGAINST Page 1 4173706_1 4173706_1 disprove only one? disprove only If the one.2 If the defendant defendant meets this burden, meets this burden, the plaintiff must then the plaintiff then raise genuine raise aa genuine of material issue of issue material fact fact element.3 that element.3 on that If plaintiff fails the plaintiff If the fails t0 to raise genuine issue raise a genuine material fact, of material issue of fact, then summary then judgment must be granted summary judgment granted by by the Court.a Under a traditional the C0urt.4 for motion for traditional motion summary judgment, the judgment, the defendant defendant can can establish establish that no genuine that no genuine issue of material issue of fact exists material fact exists and that and that it is it is entitled to entitled to judgment as judgment a matter as a of law by matter 0f by either conclusively disproving either conclusively disproving one one element of aa cause element of of action of or by action or by conclusively proving conclusively proving all the all the elements of an elements of an affirmative defense.5 A matter affirmative defense. matter is 5 is conclusively established conclusively if established if reasonable people could reasonable people could not differ as not differ to the as to the conclusion to be conclusion t0 be drawn the evidence.6 from the 2. 2. No-Evidence No-Evidence -- Rule -- Rule 166a(i) of the 166a(i) of the Texas Rules Rules 0f Civil Procedure of Civil Procedure authorizes authorizes a party to party to assert motion for assert a motion a for judgment based summary judgment summary on the based on the proposition, proposition, after after adequate opportunity for opportunity for discovery, discovery,that there is that there is no evidence to support evidence to support one or or more elements of an adverse elements of adverse party's claims party’s or defenses. claims or defenses.T 7 The The rule that a requires that rule requires a movant’s motion specifically movant's motion specifically state state the the for which elements for elements which there there is n0 is no evidence but does evidence but not otherwise does not the presentment require the otherwise require of presentment of supporting summary supporting judgment evidence.8 summary judgment 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 entitled to trial and, to a trial and, if to do so, unable to if unable the court so, the grant the court must grant the motion.e motion? A no evidence motion for evidence motion judgment for summary judgment should be should granted be granted any one when any of the one of the following situations following situations exists: (1) there exists: (1) there is of evidence is a complete absence of evidence of vital fact; of a Vital (2) the fact; (2) court the court 2 Walker 2 Walkerv. Honis,9245.W.2d375,378 v. Harris, (Tex. 1996); 924 S.W.2d 375, 378 (Tex. Doev. 1996); Doe Club ofGreater Boys Club v. Boys lnc.,907 Dallas, Ina, of Greater Dallas, 5.W.2d472, 907 S.W.2d 472, (Tex. 1995); 481-82 (Tex. 481-82 1995); andLearSiegler,lnc.v. and Lear Siegler, Inc. Perez,8l9 v. Perez, 470,471(Tex. 819 S.W.2d 470, l99l). 471 (Tex. 1991). 3 3 v. City Gonzalez v. Gonzalez of Harlingen 814 City ofl-larlingen, 814 S.W.2d 109, 109, 112 (Tex. App. -- Corpus Christi 112 (Tex. Christi 1991, writ denied). 1991, writ denied). a 4 Tex. R. Tex. Civ. P. R. Civ. P. 166a(c). 166a(c). 5 5 Little v. Tex. Little v. Dep't ofCrim. Tex. Dep’t of Crim. Justice, l4S S.W.3d 374, Justice, 148 374,381(Tex. 2004). 381 (Tex. 2004). 6 5 City of Kellerv. Ctty ofKeller Wilson,l68 v. Wilson, 168 802,814 S.W.3d 802, (Tex.2005). 814 (Tex. 2005). 7 7 Tex. R. Tex. Civ. P. R. Civ. l66a(i). P. 166a(i). 8 Tex. R. Civ. P. 8 l66a(i); Denton Tex. R. Civ. P. 166a(i); v. Big v. Big Spring Corp.,998 Hosp. Corp., Spring Hosp. 294,298 998 S.W.2d 294, 298 (Tex. App.-Eastland 1999, (Tex. App.—Eastland 7999,no no pet.). pet). e 9 See Lampasas v. Spring Ctr. v. Spring Ctr. Inc., Inc., 988 988 S.W.2d 428, 428,432 432 (Tex. App.-Houston (Tex. App.—Houston Dist.] 1999, [4th Dist] [14th pet.). 1999, no pet). Ausrn MOTIONS AUSTIN MorroNs FOR FoR SUMMARY SUMMARy JUDGMENT Acamsr EGR JUDGMENT AGAINST Page2 Page 2 41"13706 I 4173706_1 is barred is by rules barred by of law rules of law or or of of evidence evidence from giving weight from giving weight to to the only evidence the only evidence offered prove to prove offered to aavital vital fact; (3) the fact; (3) the evidence evidence offered to prove offered t0 vital fact prove a vital fact is no more than is (4) the scintilla; (4) than a mere scintilla; the evidence establishes evidence conclusively the establishes conclusively the opposite of the opposite of the vital fact.10 vital fact“) II. II. SUMMARY JUDGMENT EVIDENCE: 3. 3. The evidence The evidence offered by Austin offered by Austin in of this support of this in support Motion Motion for Partial for Partial Summary is as Judgment is follows: as follows: Exhibit A: Exhibit A: House Bill2093 Bill2093 Exhibit B: Exhibit B: Page 1I and Page the signature and the signature pages to the pages to the Original Original Contract Contract between Austin and between Austin Museum Tower Museum Exhibit C: Exhibit C: The Subcontract Austin and EGR Subcontract Agreement between Austin Exhibit D: Exhibit D: Affidavit of The Affidavit McNorton authenticating of Kent McNorton Exhibits B and C. authenticating Exhibits C. ilI. III. SUMMARY SUMMARY OF ARGUMENT: ARGUMENT: 4. 4. EGR has pled pled the following defenses to the following Austin's causes 0f to Austin’s of action against it in action against in this this it in case in case its First its First Amended Answer, filed With Answer, filed with this this Court by EGR on Court by on February 28,2019; February 28, this is 2019; this is EGR's current, EGR’s live defensive current, live pleading in defensive pleading this casezll in this (A) estoppel, case:lr (A) (B) waiver, estoppel, (B) waiver, (C) of (C) assumption of the risk, the (D) violation risk, and (D) violation 0f of Tex. Tex. Ins. Ins. Code $ 151.102. § 15 1.102. 5. 5. EGR has n0 no evidence in support evidence in of its support of its affirmative of estoppel affirmative defense of Austin. to Austin. estoppel as to 6. 6. EGR has no evidence in support evidence in of its support of its affirmative affirmative defense of of waiver waiver as to Austin. as to Austin. 7. 7. recognizethe not recognize Texas law does not of “assumption the defense of ofthe "assumption ofthe risk," and has never risk,” never in the recognized such defense in recognized of contract/warranty the breach of contract/warranty context. context. t0 See 1° SeeCity of Kellerv. Ll/ilson,l68 S.W.3d802,810 168 S.W.3d (Tex.2005); 802, 810 (Tex. Rowlinsv. Healthservs. of Charity Health v. Daughters ofCharity of City ofKeller v. Wilson, 2005); Rawlins Servs. of Austin,20l Austin, l App. LEXIS 6940, Tex. App. 2011 Tex. 6940,*6 *6 (Tex. Austin Aug. (Tex. App. Austin Aug.26,2011, pet.). 26, 201 1, no pet). 1r The Court 11 Court is is requested to take requested to judicial notice take judicial of EGR’s notice of EGR's First First filed with Answer, filed Amended Answer, with this this Court by EGR on Court by February 28,2019, February 28, Plaintiffls current 2019, Plaintiff’s current live pleading in live pleading in this this case. case. AusrrN MOTIONS AUSTIN MorroNs FOR FoR SUMMARY AcATNST EGR SUMMARy JUDGMENT AGAINST Page 3 4173706 | 4173706_1 8. 8. indemnification agreement The indemnification agreement between Austin and EGR, which includes between Austin includes a duty duty to to defend, defend, is not is governed by not governed by the the Texas Anti-Indemnity Act found Anti-Indemnity Act found at Tex. Ins. at Tex. Ins. Code §$ 151.102, 151.102, as this transaction this pre-dates the transaction pre-dates effective date the effective date of such Act. of Act. IV. RELEVANT IV. RELEVANT BACKGROUND FACTS: 9. 9. Effective June Effective 23,2010, June 23, Austin contracted 2010, Austin with Plaintiff contracted with Plaintiff Museum Tower, Museum L.P. Tower, L.P. Tower") for (ooMuseum Tower”) (“Museum for construction of the construction 0f the Museum Tower Proj Project.12 Effective August ect.” Effective 30,2012, August 30, 2012, Austin subcontracted Austin with subcontracted with EGR to provide the to provide kitchen cabinetry the kitchen for the cabinetry for the Museum Tower Proj Project.13 ect.” 10. The 10. The Subcontract Subcontract Agreement Agreement between and Austin and between Austin EGR contained EGR contained an oobroad form” indemnification provision.la In indemnification provision.” In the the Subcontract, Austin included Subcontract, Austin included a “broad form" indemnity indemnity clause clause whereby EGR would assume an unqualified unqualified obligation obligation to hold Austin to hold Austin harmless from harmless from all liability all liability regardless of regardless party of which party fault, even as to at fault, was at to the the sole negligence of Austin.” negligence of Austin.ls EGR’s EGR's counsel red-lined the Subcontract red-lined the Subcontract Agreement, the parties and the Agreement, and parties agreed First agreed to a First to a Addendum Addendum to the to the Agreement (the Subcontract Agreement "First Addendum”) (the “First Addendum") that that contained contained an “intermediate form" indemnity "intermediate form” indemnity clause, clause, whereby EGR would assume whereby all liability relating all liability to the relating to the subject subject matter of the matter of the agreement, agreement, for the except for except injury 0r the injury or damages caused by Austin's sole by Austin’s negligence.16 sole negligence.“ filed suit Museum Tower filed suit against Austin against for Austin for delamination the delamination of the of aluminum edge aluminum edge banding banding to the to the kitchen kitchen cabinetry cabinetry manufactured and by installed by and installed EGR on 20,20I8.r7 February 20, 0n February 2018.17 Austin filed its Austin filed its third—party third-party action action t2 12 Exhibit B. Exhibit B. t3 Exhibit 13 Exhibit C. t4 Exhibit '4 Exhibit C, C, at atpara. 12. para. 12. ts 1d 15 Id. t6 16 ld.at last Id. at last page -- First First Addendum to to Subcontract Agreement. Subcontract Agreement. r7 ‘7 Austin requests Austin requests the Court take the Court judicial notice take judicial notice of of the the date of suit date of filing and Plaintiff’s suit filing Plaintiff s Original Original Petition. Petition. MouoNs FOR SUMMARY JUDGMENT AUSTIN MOTIONS AGAINST EGR JUDGMENT AGAINST 4 Page 4 4t?3706*t 4173706_1 against April 5, against EGR on April to which EGR filed 2018, to 5, 2018, filed it Original it 3,2018, Original Answer on May 3, 2018, and its its First First Answer, its Amended Answer, its current, live pleading, current, live pleading, on February February 28, 28,2019.18 2019.18 V. V. ARGUMENT: ARGUMENT: A. A. EGR has no evidence has no in support evidence in of its support of its affirmative affirmative defense of estoppel defense of estoppel to as to as Austin: Austin: 1 1. 11. EGR defends EGR on the defends on the grounds of estoppel grounds 0f in section estoppel in II.2 of section 11.2 its First of its First Amended Answer. The Answer. elements of The elements equitable estoppel of equitable are estoppel are (1) a false representation (1) a false representation or of or concealment of material facts, material (2) facts, (2) with knowledge, made with made knowledge, actual or constructive, actual or of those constructive, of (3) with facts, (3) those facts, with the the intention that intention that it should it should be acted (4) to on, (4) acted on, party without to a party without knowledge, knowledge, or or the of knowledge the means of knowledge of those of those facts, (5) who detrimentally facts, (5) relied upon detrimentally relied upon the misrepresentation.le the misrepresentation.” 12. 12. EGR can show show no evidence (l) a false of: (1) evidence 0f: representation or false representation of material or concealment of material facts facts by Austin; by (2) made Austin; (2) with knowledge, made with knowledge, actual or constructive, actual 0r of those constructive, of facts, by those facts, Austin; (3) by Austin; (3) with the with intention by the intention Austin that by Austin that it should it should be be acted (4) to by EGR; (4) acted on by without EGR having to EGR without having knowledge of those knowledge of material facts, those material or the facts, or the means means of of those of knowledge of or that facts; or those facts; that (5) EGR (5) detrimentally relied detrimentally relied misrepresentation. any such misrepresentation. upon any B. B. EGR has no evidence has no in support evidence in of its support of its affirmative affirmative defense of waiver defense of waiver as as to to Austin: Austin: 13. 13. EGR defends on the grounds ofwaiver the grounds in section of waiver in II.3 of section 11.3 of its its First First Amended Amended Answer. Answer. ooWaiver “Waiver is defined is 'an intentional as ‘an defined as intentional relinquishment of a relinquishment of right or a known right or intentional intentional conduct conduct with claiming inconsistent with inconsistent claiming that right."'.20 that right.’”.2° 18 18 See, See, Note I l. Note 11. te Schroeder v. Tex. Iron 19 Schroederv. Tex. IronWorl