Preview
Filed: 10/13/2020 3:53 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 47153923
By: Shailja Dixit
10/13/2020 3:59 PM
NO. 20-CV-0857
MATTHEW GLASS and § IN THE DISTRICT COURT
MADELINE GLASS, §
Plaintiffs, §
§
v. §
§
TAYLOR MORRISON OF TEXAS, INC. §
and TAYLOR WOODROW § GALVESTON COUNTY, TEXAS
COMMUNITIES – LEAGUE CITY, LTD., §
Defendants/Third-Party Plaintiffs, §
§
v. §
§
BIG TEX AIR CONDITIONING, INC., §
Third-Party Defendant. § 122ND JUDICIAL DISTRICT
DEFENDANTS’ THIRD-PARTY PETITION
NOW COME Defendants TAYLOR MORRISON OF TEXAS, INC. (“Taylor Morrison”)
and TAYLOR WOODROW COMMUNITIES-LEAGUE CITY, LTD. (“Taylor Woodrow”) and,
subject to and without waiving their special exceptions and their requests to compel arbitration
and to abate further proceedings in this Court, assert claims against Third-Party Defendant Big
Tex Air Conditioning, Inc. and would show the Court the following:
I. PARTIES
1.1 Plaintiffs Matthew and Madeline Glass (collectively, “Plaintiffs”) filed the above-
entitled lawsuit against Defendants. Plaintiffs own a home at 2135 Belcara View, League City,
Texas 77573 (“Home”). Plaintiffs allege that the Home was designed and built in 2010 by
Defendants and Defendants’ agents. Plaintiffs allege they purchased the Home in April 2014.
Plaintiffs further allege that the Home has “developed excessive moisture, humidity and significant
mold growth and mycotoxins resulting from multiple design and construction defects.”
DEFENDANTS’ THIRD-PARTY PETITION PAGE 1
Glass
1.2 Independent subcontractors, hired and paid by Defendant(s) under written contracts,
performed design and construction work for the Home. Big Tex Air Conditioning, Inc. is the
subcontractor that designed and installed the Home’s HVAC system and duct work.
1.3 Big Tex Air Conditioning, Inc. (“Big Tex A/C” or “Third-Party Defendant”) is a Texas
corporation doing business in Galveston County, Texas that Defendant(s) hired and paid for work
at the Home. Its registered agent for service of process is Rigsbee Ray Yates, who may be served
with process at Big Tex A/C’s registered office located at 9341 North Green River Drive, Houston,
Texas 77078. Attorney Amy Nilsen agreed to accept service on behalf of Big Tex A/C and, as
shown by the Certificate of Service, Defendants will serve DEFENDANTS’ THIRD-PARTY
PETITION upon Ms. Nilsen by e-service.
II. DENIAL OF PLAINTIFFS’ CLAIMS; ALTERNATIVE PLEADING
2.1 Defendants deny Plaintiffs’ allegations and claims.
2.2 Defendants assert their third-party claims in the alternative and fully incorporate herein
the PLAINTIFF’S ORIGINAL PETITION, including all Exhibits attached thereto. 1
III. FACTS
3.1 Thomas and Kittie Cart (“Carts”) purchased the Home in 2010 pursuant to a “Purchase
Agreement” with Taylor Morrison that contains a Paragraph 11 arbitration agreement. In 2014,
Plaintiffs purchased the Home from the Carts. Plaintiffs allege construction defects-failures in the
construction of the Home including, without limitation: failure/defects of the HVAC system;
failure/defect of the mechanical equipment; and failure/defect of the design and construction.
1
PLAINTIFFS’ ORIGINAL PETITION, filed 6/24/2020, (“Glass Petition”) consists of 165 pages and may be
downloaded from Galveston County’s public access website:
https://portal.galvestoncountytx.gov/portal/DocumentViewer/DownloadDocumentFile/Download?d=4YRz08CxO9
N025HMjR57Fw2&c=78vMESofuMsPjhkPwEgIzA2&l=vIObvOP44paWILGIRYqm1Q2&cn=LF2CVfj75MsVZw
wxZo4WgQ2&fileName=20-CV-0857%20-%20&docTypeId=916
DEFENDANTS’ THIRD-PARTY PETITION PAGE 2
Glass
Plaintiffs allege liability of Defendants and Defendants’ agents for alleged construction defects in
the Home, e.g.:
A. Failing to properly design, construct, install and inspect the building envelope,
roof, attic, HVAC system, showers, interiors and discover and remediate the
defective and/or dangerous conditions;
B. Failing to give adequate and understandable warnings to Plaintiffs of the unsafe
conditions of the building envelope, roof, attic, interior, HVAC System,
showers, interiors;
C. Failing to provide warnings to Plaintiffs of the unsafe conditions;
D. Withholding knowledge of the construction defects plaguing Plaintiffs’ and
neighbors’ home and causing personal injuries;
E. Failing to remove the excessive moisture, humidity, toxic mold and mycotoxins
causing injury;
F. Failing to design a full and complete remedy;
G. Failure in the design and defects in the construction process to properly separate
(including internal insulation and proper isolation) the conditioned spaces of
the home from the unconditioned spaces as well as to properly design and
construct the exterior building envelope to prevent outside conditions and
humidity from penetrating into the interior of the home.
Plaintiffs also allege that such acts and omissions of Defendants and Defendants’ agents
proximately caused severe personal injury to Plaintiffs, and damage to personal property in the
Home.
3.2 Defendant(s) utilized independent contractors, including Big Tex A/C, in construction
of the Home. Defendant(s) retained Big Tex A/C to design and install the Home’s HVAC system
and duct work, and Big Tex A/C had contractual obligations regarding its work on the Home. Big
Tex A/C held itself out as a qualified and reputable subcontractor with the requisite skills and
expertise necessary to perform its work on the Home. Big Tex A/C agreed to perform its work in
the manner required by its contract(s) with Defendant(s).
DEFENDANTS’ THIRD-PARTY PETITION PAGE 3
Glass
3.3 Big Tex A/C agreed to additional obligations within its contract(s) with Defendant(s)
including but not limited to warranties, correction of defective work, additional insured protection
of Defendant(s), indemnity, and payment of attorneys’ fees.
IV. CAUSES OF ACTION
4.1 Big Tex A/C breached its contract(s) and caused the claimed construction defects and
resulting damages claimed by Plaintiffs.
4.2 Big Tex A/C breached its contract(s) and caused Defendants’ damages and costs to,
without limitation: investigate the claimed construction defects and resulting damages; and defend
themselves against Plaintiffs’ claims.
4.3 Big Tex A/C breached its express and implied warranties to Defendant(s) and
proximately caused: the construction defects and resulting damages claimed by Plaintiffs; and
Defendants’ damages and costs.
4.4 Big Tex A/C’s negligent construction and/or negligent performance of its contract(s)
with Defendant(s) proximately caused: the construction defects and resulting damages claimed by
Plaintiffs, whom did not contract with Big Tex A/C; and Defendants’ damages and costs.
4.5 Plaintiffs’ claimed damages include, without limitation: reasonable cost of repairs
necessary to cure any design or construction defect; reasonable cost to remediate the excessive
moisture, humidity, mold and mycotoxins and rebuild following such remediations; reasonable
and necessary cost to replace or repair any damaged personal property in the home; reasonable and
necessary engineering and consulting fees; reasonable expenses of alternative housing during such
repair and remediation; reasonable and necessary attorneys’ fees; past reasonable and necessary
medical expenses; future reasonable and necessary medical expenses; past and, in all reasonable
DEFENDANTS’ THIRD-PARTY PETITION PAGE 4
Glass
probability, future physical pain and suffering; past and, in all reasonable probability, future
physical impairment; past and, in all reasonable probability, future mental anguish.
4.6 Big Tex A/C is liable to Defendant(s) for contribution, indemnity, additional insured
protection and/or comparative responsibility pursuant to its contract(s), applicable statutes, and in
equity.
4.7 Defendant(s) incurred reasonable and necessary attorneys’ fees because of Big Tex
A/C’s conduct and Defendant(s) assert their entitlement to recovery of their attorneys’ fees.
V. CONDITIONS PRECEDENT, ETC.
5.1 All conditions precedent necessary to maintain this action have been performed or have
occurred. Alternatively, Big Tex A/C waived and/or is estopped to assert performance of
conditions precedent.
5.2 Big Tex A/C waived and/or is estopped from asserting its alleged defenses to liability
and its alleged defenses to claimed damages and attorneys’ fees.
5.3 Defendants assert that they did not and reasonably could not discover the claimed
construction defects and resulting damages in the Home before Defendants’ July 2020
investigation of the Home.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants Taylor Morrison of Texas, Inc.
and Taylor Woodrow Communities – League City, Ltd. pray that Third-Party Defendant Big Tex
A/C appear and answer herein, and Defendants receive an award against Big Tex A/C for:
contribution and/or indemnity for Plaintiffs’ damages, other costs, attorney’s fees, and interest;
Defendants’ damages; Defendants’ attorneys’ fees; Defendants’ experts’ fees; Defendants’ costs
of court and arbitration fees; interest on amounts awarded to Defendants at the maximum legal
DEFENDANTS’ THIRD-PARTY PETITION PAGE 5
Glass
rate; and for such other and further relief that Defendants may show themselves to be justly
entitled.
Respectfully submitted,
BUSH RUDNICKI SHELTON, P.C.
By: /s/ Carl J. Wilkerson
James Rudnicki
State Bar No. 24006148
james@brstexas.com
Diana Alcala
State Bar No. 24007590
dalcala@brstexas.com
Meghan Paulk-Ingle
State Bar No. 24036821
mpingle@brstexas.com
2508 Ashley Worth Blvd., Suite 200
Austin, Texas 78738
Telephone: 512-263-8408
Facsimile: 512-263-2562
and
Carl J. Wilkerson
State Bar No. 21478400
cwilkerson@brstexas.com
200 N. Mesquite St., Suite 200
Arlington, Texas 76011
Telephone: 817-274-5992
Facsimile: 817-261-1671
ATTORNEYS FOR DEFENDANTS
TAYLOR MORRISON OF TEXAS, INC.
AND TAYLOR WOODROW
COMMUNITIES – LEAGUE CITY,
LTD.
DEFENDANTS’ THIRD-PARTY PETITION PAGE 6
Glass
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document was delivered to all counsel
of record in accordance with Rule 21a of the Texas Rules of Civil Procedure, via electronic
delivery for those counsel available through the e-filing system on October 13, 2020.
A. Craig Eiland Shaun W. Hodge
Law Offices of A. Craig Eiland Hodge Law Firm, PLLC
2200 Market St., Suite 501 Old Galveston Square
Galveston, Texas 77550 2211 The Strand, Suite 302
ceiland@eilandlaw.com Galveston, Texas 77550
ATTORNEY FOR PLAINTIFFS shodge@hodgefirm.com
ATTORNEY FOR PLAINTIFFS
Dax O. Faubus Amy Nilsen
THE FAUBUS FIRM BAKER • WOTRING LLP
1001 Texas Avenue, 11th Floor 700 JPMorgan Chase Tower
Houston, Texas 77002 600 Travis Street
dax-notice@faubusfirm.com Houston, Texas 77002
ATTORNEY FOR PLAINTIFFS anilsen@bakerwotring.com
ATTORNEY FOR THIRD-PARTY
DEFENDANT BIG TEX AIR
CONDITIONING, INC.
/s/ Carl J. Wilkerson
Carl J. Wilkerson
DEFENDANTS’ THIRD-PARTY PETITION PAGE 7
Glass
Preview
Filed: 10/13/2020 3:53 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 47153923 By: Shailja Dixit 10/13/2020 3:59 PM NO. 20-CV-0857 MATTHEW GLASS and § IN THE DISTRICT COURT MADELINE GLASS, § Plaintiffs, § § v. § § TAYLOR MORRISON OF TEXAS, INC. § and TAYLOR WOODROW § GALVESTON COUNTY, TEXAS COMMUNITIES – LEAGUE CITY, LTD., § Defendants/Third-Party Plaintiffs, § § v. § § BIG TEX AIR CONDITIONING, INC., § Third-Party Defendant. § 122ND JUDICIAL DISTRICT DEFENDANTS’ THIRD-PARTY PETITION NOW COME Defendants TAYLOR MORRISON OF TEXAS, INC. (“Taylor Morrison”) and TAYLOR WOODROW COMMUNITIES-LEAGUE CITY, LTD. (“Taylor Woodrow”) and, subject to and without waiving their special exceptions and their requests to compel arbitration and to abate further proceedings in this Court, assert claims against Third-Party Defendant Big Tex Air Conditioning, Inc. and would show the Court the following: I. PARTIES 1.1 Plaintiffs Matthew and Madeline Glass (collectively, “Plaintiffs”) filed the above- entitled lawsuit against Defendants. Plaintiffs own a home at 2135 Belcara View, League City, Texas 77573 (“Home”). Plaintiffs allege that the Home was designed and built in 2010 by Defendants and Defendants’ agents. Plaintiffs allege they purchased the Home in April 2014. Plaintiffs further allege that the Home has “developed excessive moisture, humidity and significant mold growth and mycotoxins resulting from multiple design and construction defects.” DEFENDANTS’ THIRD-PARTY PETITION PAGE 1 Glass 1.2 Independent subcontractors, hired and paid by Defendant(s) under written contracts, performed design and construction work for the Home. Big Tex Air Conditioning, Inc. is the subcontractor that designed and installed the Home’s HVAC system and duct work. 1.3 Big Tex Air Conditioning, Inc. (“Big Tex A/C” or “Third-Party Defendant”) is a Texas corporation doing business in Galveston County, Texas that Defendant(s) hired and paid for work at the Home. Its registered agent for service of process is Rigsbee Ray Yates, who may be served with process at Big Tex A/C’s registered office located at 9341 North Green River Drive, Houston, Texas 77078. Attorney Amy Nilsen agreed to accept service on behalf of Big Tex A/C and, as shown by the Certificate of Service, Defendants will serve DEFENDANTS’ THIRD-PARTY PETITION upon Ms. Nilsen by e-service. II. DENIAL OF PLAINTIFFS’ CLAIMS; ALTERNATIVE PLEADING 2.1 Defendants deny Plaintiffs’ allegations and claims. 2.2 Defendants assert their third-party claims in the alternative and fully incorporate herein the PLAINTIFF’S ORIGINAL PETITION, including all Exhibits attached thereto. 1 III. FACTS 3.1 Thomas and Kittie Cart (“Carts”) purchased the Home in 2010 pursuant to a “Purchase Agreement” with Taylor Morrison that contains a Paragraph 11 arbitration agreement. In 2014, Plaintiffs purchased the Home from the Carts. Plaintiffs allege construction defects-failures in the construction of the Home including, without limitation: failure/defects of the HVAC system; failure/defect of the mechanical equipment; and failure/defect of the design and construction. 1 PLAINTIFFS’ ORIGINAL PETITION, filed 6/24/2020, (“Glass Petition”) consists of 165 pages and may be downloaded from Galveston County’s public access website: https://portal.galvestoncountytx.gov/portal/DocumentViewer/DownloadDocumentFile/Download?d=4YRz08CxO9 N025HMjR57Fw2&c=78vMESofuMsPjhkPwEgIzA2&l=vIObvOP44paWILGIRYqm1Q2&cn=LF2CVfj75MsVZw wxZo4WgQ2&fileName=20-CV-0857%20-%20&docTypeId=916 DEFENDANTS’ THIRD-PARTY PETITION PAGE 2 Glass Plaintiffs allege liability of Defendants and Defendants’ agents for alleged construction defects in the Home, e.g.: A. Failing to properly design, construct, install and inspect the building envelope, roof, attic, HVAC system, showers, interiors and discover and remediate the defective and/or dangerous conditions; B. Failing to give adequate and understandable warnings to Plaintiffs of the unsafe conditions of the building envelope, roof, attic, interior, HVAC System, showers, interiors; C. Failing to provide warnings to Plaintiffs of the unsafe conditions; D. Withholding knowledge of the construction defects plaguing Plaintiffs’ and neighbors’ home and causing personal injuries; E. Failing to remove the excessive moisture, humidity, toxic mold and mycotoxins causing injury; F. Failing to design a full and complete remedy; G. Failure in the design and defects in the construction process to properly separate (including internal insulation and proper isolation) the conditioned spaces of the home from the unconditioned spaces as well as to properly design and construct the exterior building envelope to prevent outside conditions and humidity from penetrating into the interior of the home. Plaintiffs also allege that such acts and omissions of Defendants and Defendants’ agents proximately caused severe personal injury to Plaintiffs, and damage to personal property in the Home. 3.2 Defendant(s) utilized independent contractors, including Big Tex A/C, in construction of the Home. Defendant(s) retained Big Tex A/C to design and install the Home’s HVAC system and duct work, and Big Tex A/C had contractual obligations regarding its work on the Home. Big Tex A/C held itself out as a qualified and reputable subcontractor with the requisite skills and expertise necessary to perform its work on the Home. Big Tex A/C agreed to perform its work in the manner required by its contract(s) with Defendant(s). DEFENDANTS’ THIRD-PARTY PETITION PAGE 3 Glass 3.3 Big Tex A/C agreed to additional obligations within its contract(s) with Defendant(s) including but not limited to warranties, correction of defective work, additional insured protection of Defendant(s), indemnity, and payment of attorneys’ fees. IV. CAUSES OF ACTION 4.1 Big Tex A/C breached its contract(s) and caused the claimed construction defects and resulting damages claimed by Plaintiffs. 4.2 Big Tex A/C breached its contract(s) and caused Defendants’ damages and costs to, without limitation: investigate the claimed construction defects and resulting damages; and defend themselves against Plaintiffs’ claims. 4.3 Big Tex A/C breached its express and implied warranties to Defendant(s) and proximately caused: the construction defects and resulting damages claimed by Plaintiffs; and Defendants’ damages and costs. 4.4 Big Tex A/C’s negligent construction and/or negligent performance of its contract(s) with Defendant(s) proximately caused: the construction defects and resulting damages claimed by Plaintiffs, whom did not contract with Big Tex A/C; and Defendants’ damages and costs. 4.5 Plaintiffs’ claimed damages include, without limitation: reasonable cost of repairs necessary to cure any design or construction defect; reasonable cost to remediate the excessive moisture, humidity, mold and mycotoxins and rebuild following such remediations; reasonable and necessary cost to replace or repair any damaged personal property in the home; reasonable and necessary engineering and consulting fees; reasonable expenses of alternative housing during such repair and remediation; reasonable and necessary attorneys’ fees; past reasonable and necessary medical expenses; future reasonable and necessary medical expenses; past and, in all reasonable DEFENDANTS’ THIRD-PARTY PETITION PAGE 4 Glass probability, future physical pain and suffering; past and, in all reasonable probability, future physical impairment; past and, in all reasonable probability, future mental anguish. 4.6 Big Tex A/C is liable to Defendant(s) for contribution, indemnity, additional insured protection and/or comparative responsibility pursuant to its contract(s), applicable statutes, and in equity. 4.7 Defendant(s) incurred reasonable and necessary attorneys’ fees because of Big Tex A/C’s conduct and Defendant(s) assert their entitlement to recovery of their attorneys’ fees. V. CONDITIONS PRECEDENT, ETC. 5.1 All conditions precedent necessary to maintain this action have been performed or have occurred. Alternatively, Big Tex A/C waived and/or is estopped to assert performance of conditions precedent. 5.2 Big Tex A/C waived and/or is estopped from asserting its alleged defenses to liability and its alleged defenses to claimed damages and attorneys’ fees. 5.3 Defendants assert that they did not and reasonably could not discover the claimed construction defects and resulting damages in the Home before Defendants’ July 2020 investigation of the Home. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants Taylor Morrison of Texas, Inc. and Taylor Woodrow Communities – League City, Ltd. pray that Third-Party Defendant Big Tex A/C appear and answer herein, and Defendants receive an award against Big Tex A/C for: contribution and/or indemnity for Plaintiffs’ damages, other costs, attorney’s fees, and interest; Defendants’ damages; Defendants’ attorneys’ fees; Defendants’ experts’ fees; Defendants’ costs of court and arbitration fees; interest on amounts awarded to Defendants at the maximum legal DEFENDANTS’ THIRD-PARTY PETITION PAGE 5 Glass rate; and for such other and further relief that Defendants may show themselves to be justly entitled. Respectfully submitted, BUSH RUDNICKI SHELTON, P.C. By: /s/ Carl J. Wilkerson James Rudnicki State Bar No. 24006148 james@brstexas.com Diana Alcala State Bar No. 24007590 dalcala@brstexas.com Meghan Paulk-Ingle State Bar No. 24036821 mpingle@brstexas.com 2508 Ashley Worth Blvd., Suite 200 Austin, Texas 78738 Telephone: 512-263-8408 Facsimile: 512-263-2562 and Carl J. Wilkerson State Bar No. 21478400 cwilkerson@brstexas.com 200 N. Mesquite St., Suite 200 Arlington, Texas 76011 Telephone: 817-274-5992 Facsimile: 817-261-1671 ATTORNEYS FOR DEFENDANTS TAYLOR MORRISON OF TEXAS, INC. AND TAYLOR WOODROW COMMUNITIES – LEAGUE CITY, LTD. DEFENDANTS’ THIRD-PARTY PETITION PAGE 6 Glass CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was delivered to all counsel of record in accordance with Rule 21a of the Texas Rules of Civil Procedure, via electronic delivery for those counsel available through the e-filing system on October 13, 2020. A. Craig Eiland Shaun W. Hodge Law Offices of A. Craig Eiland Hodge Law Firm, PLLC 2200 Market St., Suite 501 Old Galveston Square Galveston, Texas 77550 2211 The Strand, Suite 302 ceiland@eilandlaw.com Galveston, Texas 77550 ATTORNEY FOR PLAINTIFFS shodge@hodgefirm.com ATTORNEY FOR PLAINTIFFS Dax O. Faubus Amy Nilsen THE FAUBUS FIRM BAKER • WOTRING LLP 1001 Texas Avenue, 11th Floor 700 JPMorgan Chase Tower Houston, Texas 77002 600 Travis Street dax-notice@faubusfirm.com Houston, Texas 77002 ATTORNEY FOR PLAINTIFFS anilsen@bakerwotring.com ATTORNEY FOR THIRD-PARTY DEFENDANT BIG TEX AIR CONDITIONING, INC. /s/ Carl J. Wilkerson Carl J. Wilkerson DEFENDANTS’ THIRD-PARTY PETITION PAGE 7 Glass