On September 07, 2022 a
Answer
was filed
involving a dispute between
Big Tex Air Conditioning, Inc.,
Taylor Morrison Of Texas, Inc.,
Taylor Woodrow Communities - League City, Ltd.,
Sutherland, Terri,
Sutherland, Wayne,
and
Arnulfo Rodriguez Roofing Co., Inc.,
Bfs Group, Llc As Successor In Interest To Builders Firstsource South Texas, Lp,
Big Tex Air Conditioning, Inc.,
City Framers, Llc,
Installed Building Products Of Houston, Llc,
L&W Weatherstripping, Llc,
Rosenberg Plumbing Service, Inc.,
Wisenbaker Builder Services, Ltd.,
Taylor Morrison Of Texas, Inc.,
Taylor Woodrow Communities - League City, Ltd.,
for Injury/Damage - Other
in the District Court of Galveston County.
Preview
Filed: 11/21/2022 9:43 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 70346570
By: Shailja Dixit
11/21/2022 9:53 AM
IBP.15688
CAUSE NO. 22-CV-1731
WAYNE SUTHERLAND and TERRI § IN THE DISTRICT COURT
SUTHERLAND, §
Plaintiffs §
§
v. §
§
TAYLOR MORRISON OF TEXAS, INC. §
and TAYLOR WOODROW §
COMMUNITIES-LEAGUE CITY, LTD., §
Defendants/Third-Party Plaintiffs §
§
v. §
§
BIG TEX AIR CONDITIONING, INC., § 10TH JUDICIAL DISTRICT
Third-Party Defendant/ §
Fourth-Party Plaintiff §
§
v. §
§
CITY FRAMERS, LLC, ARNULFO §
RODRIGUEZ ROOFING CO., INC., §
INSTALLED BUILDING PRODUCTS §
OF HOUSTON, LLC, L&W §
WEATHERSTRIPPING, LLC, §
WISENBARKER BUILDING §
SERVICES, LTD., ROSENBERG §
PLUMBING SERVICE, INC., and BFS §
GROUP, LLC § GALVESTON COUNTY, TEXAS
FOURTH-PARTY DEFENDANT INSTALLED BUILDING PRODUCTS OF HOUSTON,
LLC’S ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW INSTALLED BUILDING PRODUCTS OF HOUSTON, LLC, Fourth-
Party Defendant named in the above entitled and numbered cause, and files this its Original
Answer, and for same would respectfully show unto the Court as follows:
FOURTH-PARTY DEFENDANT’S ORIGINAL ANSWER & AFFIRMATIVE DEFENSES Page 1
I. GENERAL DENIAL
Fourth-Party Defendant denies each and every, all and singular, the material allegations
contained within Fourth-Party Plaintiff’s pleadings and demands strict proof thereof.
II. AFFIRMATIVE DEFENSES
Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Fourth-Party Defendant asserts
for further answer, if any there need be, the following affirmative defenses:
1. The injuries, damages, and claims of Plaintiffs, Defendants/Third-Party Plaintiffs, and
Fourth-Party Plaintiff, if any, were caused or contributed to in whole or in part by
the sole or contributory negligence of third parties over whom Fourth-Party
Defendant had no control or right of control. The negligence of such third parties was
the proximate and/or sole proximate, and/or producing and/or sole producing, and/or
new and independent cause of any injuries or damages. To the extent the injuries and
damages are the result of the negligent acts or omissions of third parties, Fourth-
Party Defendant specifically invokes and avails itself of all applicable provisions of
Chapter 33 of the Texas Civil Practice & Remedies Code.
2. Plaintiffs, Defendants/Third-Party Plaintiffs, and Fourth-Party Plaintiff’s damages, if
any, were proximately caused in whole or in part by its own acts or omissions of
negligence and other bad conduct and/or the acts or omissions of negligence of their
agents.
3. Plaintiffs failed to mitigate their damages.
4. Defendants/Third-Party Plaintiffs Taylor Morrison of Texas, Inc. and Taylor Woodrow
Communities-League City, Ltd. failed to mitigate its damages
5. Third-Party Defendant/Fourth-Party Plaintiff Big Tex Air Conditioning, Inc. failed to
mitigate its damages.
6. The injuries, damages and claims of Plaintiffs, Defendants/Third-Party Plaintiffs, and
Fourth-Party Plaintiff, if any, were caused or contributed to in whole or in part by
responsible third parties who may be liable for all or part of the claims involved in the
suit under Chapter 33.004 of the Texas Civil Practice & Remedies Code, including
without limitation the home builder, general contractors, architect, designer, and
home inspector.
7. IBP would show that Plaintiffs, Defendants/Third-Party Plaintiffs, and Fourth-Party
Plaintiff failed to exercise that degree of care and caution which would have been
exercised by persons of ordinary prudence and their acts and/or omissions constitute
FOURTH-PARTY DEFENDANT’S ORIGINAL ANSWER & AFFIRMATIVE DEFENSES Page 2
negligence and was a proximate cause, or in the alternative, the sole proximate
cause of the alleged injuries and damages related to this matter, if any.
III. NOTICE
Fourth-Party Defendant hereby gives notice of the intent to utilize items produced in
discovery in the trial of this matter and the authenticity of said items is self-proven under TRCP
193.7
IV. JURY DEMAND
In accordance with Rule 216 of the Texas Rules of Civil Procedure, Fourth-Party
Defendant demands a trial by jury. Simultaneously with the filing of this demand, a jury fee is
being paid on behalf of this Fourth-Party Defendant.
V. PRAYER
WHEREFORE, PREMISES CONSIDERED, Fourth-Party Defendant INSTALLED
BUILDING PRODUCTS OF HOUSTON, LLC prays that Fourth-Party Plaintiff take nothing
by this suit, that Fourth-Party Defendant go hence with its costs without delay, and for such other
and further relief, both general and special, at law and in equity, to which Fourth-Party Defendant
may show itself justly entitled.
Respectfully submitted,
FEE, SMITH & SHARP, L.L.P.
BRIAN G. CANO
State Bar No. 24045613
JUSTIN A. DIAZ
State Bar No. 24096695
2777 Allen Parkway, Suite 800
Houston, Texas 77019
FOURTH-PARTY DEFENDANT’S ORIGINAL ANSWER & AFFIRMATIVE DEFENSES Page 3
713-362-8300
713-362-8302 [Fax]
bcano@feesmith.com
jdiaz@feesmith.com
ATTORNEYS FOR FOURTH-PARTY DEFENDANT
INSTALLED BUILDING PRODUCTS OF HOUSTON,
LLC
CERTIFICATE OF SERVICE
THIS WILL CERTIFY that a true and correct copy of the foregoing instrument has been served
to all attorneys of record in this cause of action on the 21st day of November, 2022.
BRIAN G. CANO
FOURTH-PARTY DEFENDANT’S ORIGINAL ANSWER & AFFIRMATIVE DEFENSES Page 4
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Kourtney Mouton on behalf of Brian Cano
Bar No. 24045613
kmouton@feesmith.com
Envelope ID: 70346570
Status as of 11/21/2022 9:53 AM CST
Associated Case Party: Wayne Sutherland
Name BarNumber Email TimestampSubmitted Status
Dax O. Faubus 24010019 dax-notice@faubusfirm.com 11/21/2022 9:43:11 AM SENT
Shaun Hodge 24052995 shodge@hodgefirm.com 11/21/2022 9:43:11 AM SENT
Associated Case Party: Big Tex Air Conditioning, Inc.
Name BarNumber Email TimestampSubmitted Status
Carlos A.Balido BalidoEDocsNotifications@wbclawfirm.com 11/21/2022 9:43:11 AM SENT
Amy Nilsen anilsen@johnsontrent.com 11/21/2022 9:43:11 AM SENT
David Dennenberg 24120798 ddennenberg@johnsontrent.com 11/21/2022 9:43:11 AM SENT
Kimberly Lewis klewis@johnsontrent.com 11/21/2022 9:43:11 AM SENT
Alicia Freed freededocs@wbclawfirm.com 11/21/2022 9:43:11 AM SENT
Associated Case Party: City Framers, LLC
Name BarNumber Email TimestampSubmitted Status
Timothy D.McMurtrie eservtmcmurtrie@roystonlaw.com 11/21/2022 9:43:11 AM SENT
Maulik P.Shah maulik.shah@roystonlaw.com 11/21/2022 9:43:11 AM SENT
Timothy McMurtrie tim.mcmurtrie@roystonlaw.com 11/21/2022 9:43:11 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Diana MAlcala dalcala@brstexas.com 11/21/2022 9:43:11 AM SENT
Nicole Burrow nburrow@brstexas.com 11/21/2022 9:43:11 AM SENT
Suzanne Davis sdavis@brstexas.com 11/21/2022 9:43:11 AM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Kourtney Mouton on behalf of Brian Cano
Bar No. 24045613
kmouton@feesmith.com
Envelope ID: 70346570
Status as of 11/21/2022 9:53 AM CST
Case Contacts
James Rudnicki james@brstexas.com 11/21/2022 9:43:11 AM SENT
Carl Wilkerson cwilkerson@brstexas.com 11/21/2022 9:43:11 AM SENT
jessica fuller jfuller@brstexas.com 11/21/2022 9:43:11 AM SENT
Tayler Clendenen tclendenen@brstexas.com 11/21/2022 9:43:11 AM SENT
Kelli Mee kmee@brstexas.com 11/21/2022 9:43:11 AM SENT
Patrick Gurski pgurski@eilandlaw.com 11/21/2022 9:43:11 AM SENT
Cynthia Rice crice@eilandlaw.com 11/21/2022 9:43:11 AM SENT
A. CraigEiland ceiland@eilandlaw.com 11/21/2022 9:43:11 AM SENT
Tereasa Hardy thardy@eilandlaw.com 11/21/2022 9:43:11 AM SENT
David MJones djones@brstexas.com 11/21/2022 9:43:11 AM SENT
Jennifer Taylor jtaylor@brstexas.com 11/21/2022 9:43:11 AM SENT
Associated Case Party: L&W Weatherstripping, LLC
Name BarNumber Email TimestampSubmitted Status
Paul BStarr pstarr@germer-austin.com 11/21/2022 9:43:11 AM SENT
Associated Case Party: Wisenbaker Builder Services, Ltd.
Name BarNumber Email TimestampSubmitted Status
Spencer Edwards sedwards@hudgins-law.com 11/21/2022 9:43:11 AM SENT
Stephanie Weiss sweiss@hudgins-law.com 11/21/2022 9:43:11 AM SENT
Mallorie Walker mwalker@hudgins-law.com 11/21/2022 9:43:11 AM SENT
Kevin Orr korr@hudgins-law.com 11/21/2022 9:43:11 AM SENT
Associated Case Party: BFS Group, LLC
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Kourtney Mouton on behalf of Brian Cano
Bar No. 24045613
kmouton@feesmith.com
Envelope ID: 70346570
Status as of 11/21/2022 9:53 AM CST
Associated Case Party: BFS Group, LLC
Name BarNumber Email TimestampSubmitted Status
Ian McLin imclin@langleybanack.com 11/21/2022 9:43:11 AM SENT
Maureen Purcell mpurcell@langleybanack.com 11/21/2022 9:43:11 AM SENT
Shawn Selvidge sselvidge@langleybanack.com 11/21/2022 9:43:11 AM SENT
Associated Case Party: Installed Building Products of Houston, LLC
Name BarNumber Email TimestampSubmitted Status
Christine Aylor caylor@feesmith.com 11/21/2022 9:43:11 AM SENT
Brian G.Cano bcano@feesmith.com 11/21/2022 9:43:11 AM SENT
Justin Diaz jdiaz@feesmith.com 11/21/2022 9:43:11 AM SENT
Megan Moore mmoore@feesmith.com 11/21/2022 9:43:11 AM SENT
Kourtney Mouton kmouton@feesmith.com 11/21/2022 9:43:11 AM SENT
Preview
Filed: 11/21/2022 9:43 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 70346570 By: Shailja Dixit 11/21/2022 9:53 AM IBP.15688 CAUSE NO. 22-CV-1731 WAYNE SUTHERLAND and TERRI § IN THE DISTRICT COURT SUTHERLAND, § Plaintiffs § § v. § § TAYLOR MORRISON OF TEXAS, INC. § and TAYLOR WOODROW § COMMUNITIES-LEAGUE CITY, LTD., § Defendants/Third-Party Plaintiffs § § v. § § BIG TEX AIR CONDITIONING, INC., § 10TH JUDICIAL DISTRICT Third-Party Defendant/ § Fourth-Party Plaintiff § § v. § § CITY FRAMERS, LLC, ARNULFO § RODRIGUEZ ROOFING CO., INC., § INSTALLED BUILDING PRODUCTS § OF HOUSTON, LLC, L&W § WEATHERSTRIPPING, LLC, § WISENBARKER BUILDING § SERVICES, LTD., ROSENBERG § PLUMBING SERVICE, INC., and BFS § GROUP, LLC § GALVESTON COUNTY, TEXAS FOURTH-PARTY DEFENDANT INSTALLED BUILDING PRODUCTS OF HOUSTON, LLC’S ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW INSTALLED BUILDING PRODUCTS OF HOUSTON, LLC, Fourth- Party Defendant named in the above entitled and numbered cause, and files this its Original Answer, and for same would respectfully show unto the Court as follows: FOURTH-PARTY DEFENDANT’S ORIGINAL ANSWER & AFFIRMATIVE DEFENSES Page 1 I. GENERAL DENIAL Fourth-Party Defendant denies each and every, all and singular, the material allegations contained within Fourth-Party Plaintiff’s pleadings and demands strict proof thereof. II. AFFIRMATIVE DEFENSES Pursuant to Rule 94 of the Texas Rules of Civil Procedure, Fourth-Party Defendant asserts for further answer, if any there need be, the following affirmative defenses: 1. The injuries, damages, and claims of Plaintiffs, Defendants/Third-Party Plaintiffs, and Fourth-Party Plaintiff, if any, were caused or contributed to in whole or in part by the sole or contributory negligence of third parties over whom Fourth-Party Defendant had no control or right of control. The negligence of such third parties was the proximate and/or sole proximate, and/or producing and/or sole producing, and/or new and independent cause of any injuries or damages. To the extent the injuries and damages are the result of the negligent acts or omissions of third parties, Fourth- Party Defendant specifically invokes and avails itself of all applicable provisions of Chapter 33 of the Texas Civil Practice & Remedies Code. 2. Plaintiffs, Defendants/Third-Party Plaintiffs, and Fourth-Party Plaintiff’s damages, if any, were proximately caused in whole or in part by its own acts or omissions of negligence and other bad conduct and/or the acts or omissions of negligence of their agents. 3. Plaintiffs failed to mitigate their damages. 4. Defendants/Third-Party Plaintiffs Taylor Morrison of Texas, Inc. and Taylor Woodrow Communities-League City, Ltd. failed to mitigate its damages 5. Third-Party Defendant/Fourth-Party Plaintiff Big Tex Air Conditioning, Inc. failed to mitigate its damages. 6. The injuries, damages and claims of Plaintiffs, Defendants/Third-Party Plaintiffs, and Fourth-Party Plaintiff, if any, were caused or contributed to in whole or in part by responsible third parties who may be liable for all or part of the claims involved in the suit under Chapter 33.004 of the Texas Civil Practice & Remedies Code, including without limitation the home builder, general contractors, architect, designer, and home inspector. 7. IBP would show that Plaintiffs, Defendants/Third-Party Plaintiffs, and Fourth-Party Plaintiff failed to exercise that degree of care and caution which would have been exercised by persons of ordinary prudence and their acts and/or omissions constitute FOURTH-PARTY DEFENDANT’S ORIGINAL ANSWER & AFFIRMATIVE DEFENSES Page 2 negligence and was a proximate cause, or in the alternative, the sole proximate cause of the alleged injuries and damages related to this matter, if any. III. NOTICE Fourth-Party Defendant hereby gives notice of the intent to utilize items produced in discovery in the trial of this matter and the authenticity of said items is self-proven under TRCP 193.7 IV. JURY DEMAND In accordance with Rule 216 of the Texas Rules of Civil Procedure, Fourth-Party Defendant demands a trial by jury. Simultaneously with the filing of this demand, a jury fee is being paid on behalf of this Fourth-Party Defendant. V. PRAYER WHEREFORE, PREMISES CONSIDERED, Fourth-Party Defendant INSTALLED BUILDING PRODUCTS OF HOUSTON, LLC prays that Fourth-Party Plaintiff take nothing by this suit, that Fourth-Party Defendant go hence with its costs without delay, and for such other and further relief, both general and special, at law and in equity, to which Fourth-Party Defendant may show itself justly entitled. Respectfully submitted, FEE, SMITH & SHARP, L.L.P. BRIAN G. CANO State Bar No. 24045613 JUSTIN A. DIAZ State Bar No. 24096695 2777 Allen Parkway, Suite 800 Houston, Texas 77019 FOURTH-PARTY DEFENDANT’S ORIGINAL ANSWER & AFFIRMATIVE DEFENSES Page 3 713-362-8300 713-362-8302 [Fax] bcano@feesmith.com jdiaz@feesmith.com ATTORNEYS FOR FOURTH-PARTY DEFENDANT INSTALLED BUILDING PRODUCTS OF HOUSTON, LLC CERTIFICATE OF SERVICE THIS WILL CERTIFY that a true and correct copy of the foregoing instrument has been served to all attorneys of record in this cause of action on the 21st day of November, 2022. BRIAN G. CANO FOURTH-PARTY DEFENDANT’S ORIGINAL ANSWER & AFFIRMATIVE DEFENSES Page 4 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Kourtney Mouton on behalf of Brian Cano Bar No. 24045613 kmouton@feesmith.com Envelope ID: 70346570 Status as of 11/21/2022 9:53 AM CST Associated Case Party: Wayne Sutherland Name BarNumber Email TimestampSubmitted Status Dax O. Faubus 24010019 dax-notice@faubusfirm.com 11/21/2022 9:43:11 AM SENT Shaun Hodge 24052995 shodge@hodgefirm.com 11/21/2022 9:43:11 AM SENT Associated Case Party: Big Tex Air Conditioning, Inc. Name BarNumber Email TimestampSubmitted Status Carlos A.Balido BalidoEDocsNotifications@wbclawfirm.com 11/21/2022 9:43:11 AM SENT Amy Nilsen anilsen@johnsontrent.com 11/21/2022 9:43:11 AM SENT David Dennenberg 24120798 ddennenberg@johnsontrent.com 11/21/2022 9:43:11 AM SENT Kimberly Lewis klewis@johnsontrent.com 11/21/2022 9:43:11 AM SENT Alicia Freed freededocs@wbclawfirm.com 11/21/2022 9:43:11 AM SENT Associated Case Party: City Framers, LLC Name BarNumber Email TimestampSubmitted Status Timothy D.McMurtrie eservtmcmurtrie@roystonlaw.com 11/21/2022 9:43:11 AM SENT Maulik P.Shah maulik.shah@roystonlaw.com 11/21/2022 9:43:11 AM SENT Timothy McMurtrie tim.mcmurtrie@roystonlaw.com 11/21/2022 9:43:11 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Diana MAlcala dalcala@brstexas.com 11/21/2022 9:43:11 AM SENT Nicole Burrow nburrow@brstexas.com 11/21/2022 9:43:11 AM SENT Suzanne Davis sdavis@brstexas.com 11/21/2022 9:43:11 AM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Kourtney Mouton on behalf of Brian Cano Bar No. 24045613 kmouton@feesmith.com Envelope ID: 70346570 Status as of 11/21/2022 9:53 AM CST Case Contacts James Rudnicki james@brstexas.com 11/21/2022 9:43:11 AM SENT Carl Wilkerson cwilkerson@brstexas.com 11/21/2022 9:43:11 AM SENT jessica fuller jfuller@brstexas.com 11/21/2022 9:43:11 AM SENT Tayler Clendenen tclendenen@brstexas.com 11/21/2022 9:43:11 AM SENT Kelli Mee kmee@brstexas.com 11/21/2022 9:43:11 AM SENT Patrick Gurski pgurski@eilandlaw.com 11/21/2022 9:43:11 AM SENT Cynthia Rice crice@eilandlaw.com 11/21/2022 9:43:11 AM SENT A. CraigEiland ceiland@eilandlaw.com 11/21/2022 9:43:11 AM SENT Tereasa Hardy thardy@eilandlaw.com 11/21/2022 9:43:11 AM SENT David MJones djones@brstexas.com 11/21/2022 9:43:11 AM SENT Jennifer Taylor jtaylor@brstexas.com 11/21/2022 9:43:11 AM SENT Associated Case Party: L&W Weatherstripping, LLC Name BarNumber Email TimestampSubmitted Status Paul BStarr pstarr@germer-austin.com 11/21/2022 9:43:11 AM SENT Associated Case Party: Wisenbaker Builder Services, Ltd. Name BarNumber Email TimestampSubmitted Status Spencer Edwards sedwards@hudgins-law.com 11/21/2022 9:43:11 AM SENT Stephanie Weiss sweiss@hudgins-law.com 11/21/2022 9:43:11 AM SENT Mallorie Walker mwalker@hudgins-law.com 11/21/2022 9:43:11 AM SENT Kevin Orr korr@hudgins-law.com 11/21/2022 9:43:11 AM SENT Associated Case Party: BFS Group, LLC Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Kourtney Mouton on behalf of Brian Cano Bar No. 24045613 kmouton@feesmith.com Envelope ID: 70346570 Status as of 11/21/2022 9:53 AM CST Associated Case Party: BFS Group, LLC Name BarNumber Email TimestampSubmitted Status Ian McLin imclin@langleybanack.com 11/21/2022 9:43:11 AM SENT Maureen Purcell mpurcell@langleybanack.com 11/21/2022 9:43:11 AM SENT Shawn Selvidge sselvidge@langleybanack.com 11/21/2022 9:43:11 AM SENT Associated Case Party: Installed Building Products of Houston, LLC Name BarNumber Email TimestampSubmitted Status Christine Aylor caylor@feesmith.com 11/21/2022 9:43:11 AM SENT Brian G.Cano bcano@feesmith.com 11/21/2022 9:43:11 AM SENT Justin Diaz jdiaz@feesmith.com 11/21/2022 9:43:11 AM SENT Megan Moore mmoore@feesmith.com 11/21/2022 9:43:11 AM SENT Kourtney Mouton kmouton@feesmith.com 11/21/2022 9:43:11 AM SENT