Preview
Filed: 7/25/2023 4:01 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 77873148
By: Shailja Dixit
7/25/2023 4:09 PM
NO. 22-CV-1731
WAYNE SUTHERLAND and TERRI § IN THE DISTRICT COURT
SUTHERLAND, §
Plaintiffs, §
§
v. §
§
TAYLOR MORRISON OF TEXAS, INC. §
and TAYLOR WOODROW § 10th JUDICIAL DISTRICT
COMMUNITIES – LEAGUE CITY, LTD. §
Defendants/Third-Party Plaintiffs, §
§
v. §
§
BIG TEX AIR CONDITIONING, INC., § GALVESTON COUNTY, TEXAS
Third-Party Defendants. §
§
THIRD-PARTY PLAINTIFF/FOURTH-PARTY PLAINTIFF, BIG TEX AIR
CONDITIONING’S RESPONSE TO FOURTH-PARTY DEFENDANT’S, BFS GROUP,
LLC, as successor in interest to BUILDERS FIRSTSOURCE-SOUTH TEXAS, LP’S NO-
EVIDENCE MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE:
COMES NOW, Third-Party Defendant Big Tex Air Conditioning, Inc. (“Big Tex”) files
this response to the No-Evidence Motion for Summary Judgment filed on behalf of Fourth Party
Defendant, BFS GROUP, LLC, as successor in interest to BUILDERS FIRSTSOURCE-SOUTH
TEXAS, LP (hereinafter referred to as “BFS”), and would respectfully show this Honorable
Court the following:
SUMMARY OF ARGUMENT
Plaintiffs have sued Taylor Morrison of Texas, Inc. and Taylor Woodrow Communities–
League City, Ltd. (collectively, “the Taylor Defendants”), the builder of their home, alleging that
construction and design defects led to water intrusion and extreme and inappropriate humidity and
moisture levels to develop in the home’s interior. This is a complex case involving not only the
builder, but also the various sub-contractors that provided materials and services during the home’s
construction, which raises issues that require extensive expert testimony. Adding to the
complexity is the fact that the builder has taken the position that this case should be arbitrated,
based on an agreement to arbitrate in the sales contract, and should not be before this Court. Thus,
due to pending motions to compel arbitration and the abatement of the case pending mediation,
the Court has not entered a Docket Control Order and no discovery has been conducted by any
party to this proceeding. Due to this procedural status, BFS’s no-evidence motion for summary
judgement is premature and unwarranted because no discovery whatsoever has been conducted to
date.
Accordingly, BFS cannot meet its burden under Rule 166a(i) to establish that its no-
evidence motion is proper because an adequate time for discovery has transpired. Under black
letter Texas law, the no-evidence rule, by its very language, is to be used only following an
adequate time for discovery and certainly not when, as here, no discovery has been conducted at
all. BFS cannot skirt this requirement or plausibly argue that an adequate time for discovery has
passed, therefore, BFS’s no-evidence motion for summary judgment must be denied.
FACTUAL AND PROCEDURAL BACKGROUND
This is a construction defect case that stems from the construction of a home located in the
Mar Bella subdivision at 4725 Isla Canela Lane, League City, Texas 77573 (the “Residence” or
“Home”). Plaintiffs Wayne Sutherland and Terri Sutherland purchased the Home from the original
owners Satya Ramadass and Radhika Jayanthi in October 2017. The construction of the home was
substantially complete in July 2015. The Taylor Defendants, the general contractor, constructed
the Home.1 Plaintiffs filed this lawsuit against the Taylor Defendants on September 7, 2022,
1
See Plaintiffs’ Original Petition, a true and correct copy of which is attached as Exhibit 1.
2
claiming construction defects consisting of a mold problem at the Residence. Plaintiffs brought
claims against the Taylor Defendants for negligent repair and remediation, breach of contract, and
violation of the Residential Construction Liability Act, negligent construction, breach of implied
warranties, and negligent construction.2 Plaintiffs allege “multiple design and construction
defects” in the Home which allegedly caused “excessive moisture, humidity and significant mold
growth.”3
In their petition, Plaintiffs pleaded defects with construction of their home, including, but
not limited to defects involving the framing, HVAC system, plumbing, insulation, roofing,
ventilation, thermal barrier, windows, sealing, building envelope and shower installation.
Plaintiffs allege construction defects in the home which purportedly caused “excessive moisture,
humidity, significant mold growth, and mycotoxins resulting in from multiple design and
construction defects. ” Id. The Taylor defendants hired a variety of subcontractors to participate
in the Home’s construction, including but not limited to Big Tex, BFS, City Framers, Arnulfo
Rodriguez Roofing, Installed Building Products of Houston, L&W Weatherstripping, LLC,
Wisenbaker Building Services, LTD, and Rosenberg Plumbing. Big Tex was hired by the Taylor
Defendants to install the HVAC system at the Residence.
On October 3, 2022, The Taylor Defendants filed their Original Answer, including a
Motion to Compel Arbitration, Plea in Abatement, and Special Exceptions. The Taylor
Defendants’ Motion to Compel Arbitration is based on the November 30, 2014, contract for the
construction and sale of 4725 Isa Canela Ln, League City, Texas 77573, which contains an
arbitration agreement.4 On October 6, 2022, the Taylor Defendants filed their Third-Party Petition
2
Id.
3
Id.
4
This agreement was not signed by Plaintiffs because they purchased the home from the original purchaser of the
home.
3
against Big Tex, subject to and without waiver of their requests to compel arbitration. The Taylor
Defendants claim that if they are found liable to Plaintiffs, they are entitled to contribution,
indemnity, and/or comparative responsibility from Big Tex pursuant to the Master Agreement for
Vertical Construction Services (Texas) (“Master Agreement”) with Big Tex.5
On October 10 , 2022, Big Tex filed its Original Answer, subject to arbitration, to the Taylor
Defendants’ Original Third-Party Petition, denying all allegations made by the Taylor Defendants.6
Big Tex then filed its own Third-Party Petition, joining the other subcontractor defendants, Arnulfo
Rodriguez Roofing Co., Inc., City Framers, LLC, Installed Building Products of Houston, LLC,
L&W Weatherstripping, LLC, Wisenbaker Builder Services, Inc., Rosenberg Plumbing Services,
Inc., and BFS (collectively, the “Fourth-Party Defendants”) in this lawsuit.7 Big Tex added the
Fourth-Party Defendants based on the allegations made by Plaintiffs in their Original Petition, as
well as the allegations set forth in Plaintiffs’ expert reports.
The Taylor Defendants filed their Motion to Compel Arbitration asking this Court to
compel arbitration of Plaintiffs’ claims and abate the lawsuit in its entirety pending the completion
of arbitration proceedings between Plaintiffs and Defendants and until this court lifts the
abatement.8 On January 30, 2023, this Court signed an agreed order staying all proceedings in this
Court and abating the action until the Court lifts the abatement order. 9 This order was based on
potentially applicable appeals before the Supreme Court of Texas and the parties’ agreement to
abate the action. BFS signed the agreed order. This matter was abated pending the final resolution
of: 10
5
See Taylor Defendants’ Third-Party Petition against Big Tex on file with the Court.
6
See Big Tex’s Third-Party Original Answer on file with the Court.
7
See Big Tex’s Fourth-Party Petition on file with the Court.
8
See Defendants’ Original Answer, Including Motion to Compel Arbitration, Pleas in Abatement and Special
Exceptions.
9
See Agreed Order dated January 30, 2023, on file with this Court.
10
Id.
4
The Court has not subsequently entered an order lifting the abatement in this matter.
Additionally, at the time of this Response, Plaintiffs in Kohlmeyer filed a Motion for pending and
is pending before the Supreme Court of Texas. Due to the pendency of the opinions, the Taylor
Defendants have not had a hearing on their Motion to Compel Arbitration. Additionally, the
Taylor Defendants have yet to file a motion to compel arbitration as to Big Tex. However, the
Taylor Defendants have indicated that they will file a motion to compel arbitration as to Big Tex
once the abatement is lifted. As the Court is aware, this case is one of over 45 lawsuits filed in
Galveston County regarding alleged design and construction defects in homes built by the Taylor
Defendants in the Mar Bella subdivision (hereinafter the “Mar Bella cases”). All the Mar Bella
cases involve similar facts, allege the same type of defects in design and construction, and include
many of the same subcontractors. In the Mar Bella cases, the Taylor Defendants have pleaded that
the original sale contracts for the Mar Bella homes each contained an arbitration clause. The Taylor
Defendants have moved to compel arbitration in the Mar Bella cases including this lawsuit.11 Big
Tex has also asserted that the third-party/fourth-party subcontractors are required to attend
arbitration due to the arbitration clauses in the subcontractors’ respective contracts with the Taylor
Defendants and, as explained more fully below, has moved to compel the other subcontractors to
arbitration.
11
See Taylor’s Motion to Compel Arbitration, on file with the Court.
5
Big Tex does not object to arbitration. However, if the Court compels Big Tex to
arbitration, the Court should order all parties (including the Fourth-Party Defendants) and claims
to arbitration pursuant to the language of the Purchase Agreement, as well as the Master Agreement
for Vertical Construction Services (Texas) (“Master Agreement”) between the Taylor Defendants
and the subcontractors (Fourth-Party Defendants).12 On July 21, 2023, Big Tex filed its Motion
to Compel the Fourth-Party Defendants to arbitration pursuant to the language of the Purchase
Agreement, as well as the Master Agreement between the Taylor Defendants and the
subcontractors.13 The motion to compel should be granted because failure to order all the parties
to arbitration would result in unfair prejudice to Big Tex.14
It is the Taylor Defendants’ position that discovery should be postponed in the trial court
while arbitration is taking place, that all discovery should be performed in arbitration, and the
merits of the case adjudicated in arbitration.15 The Taylor Defendants filed motions for protection
and to abate this case and have not provided substantive response to any discovery requests. Id.
The Taylor Defendants have not produced to any party its design and construction file for the
Home, no depositions have taken place, and no expert discovery has been performed. The Taylor
Defendants’ refusal to engage in any discovery with Plaintiffs and subcontractors, including Big
Tex and BFS, precludes their ability to investigate, evaluate, and pursue claims and defenses,
including responding to BFS’s No-Evidence Motion for Summary Judgment.
Because the Taylor Defendants are the general contractor, they are in possession of
thousands of pages of documents related to the design and construction of the Mar Bella
12
Several of the Fourth-Party Defendants filed Motions for Summary Judgments in this Court. Big Tex believes the
Court needs to resolve this issue before the Motions for Summary Judgment can be considered.
13
See Third-Party Defendant/Fourth-Party Plaintiff Big Tex’s Motion to Compel Arbitration as to the Fourth-Party
Defendants, on file with this Court.
14
Big Tex filed the Motion to Compel Arbitration before the abatement was lifted because BFS filed its No-Evidence
Motion for Summary Judgment.
15
See Taylor’s Motion to Compel Arbitration and Motion for Protection, on file with the Court.
6
subdivision, including the Sutherlands’ home. All the subcontractors, including Big Tex and BFS,
have been denied access to these records by the Taylor Defendants. It should also be noted that
discovery in all the Mar Bella cases was placed on hold while the parties prepared for and attended
a global mediation, which occurred a few months ago.
Due to the complex nature of the alleged defects, the Mar Bella cases have generally relied
heavily on document production from the Taylor Defendants, deposition testimony of parties, fact
witnesses, and experts, and expert reports produced as part of expert designations. However,
because of the dispute over whether and which parties were to attend arbitration and whether
discovery should be performed at arbitration or at the trial court level, and as the Taylor
Defendants’ motions related to these issues were pending, such discovery has not taken place.
Consequently, an adequate opportunity and time for discovery has not taken place in this case.
If the Court grants Big Tex’s Motion to Compel Arbitration and orders all the Fourth-Party
Defendants to arbitration, it would be the arbitrator, and not this Court, that would have jurisdiction
to consider and rule upon discovery disputes and summary judgment motions, such as the one filed
by BFS.16
VERIFIED MOTION FOR CONTINUANCE
When a case is complex, and the motion for summary judgment challenges the merits of
the case, full discovery is necessary and warranted. See McClure v. Attebury, 20 S.W.3d 722, 729
(Tex. App.–Amarillo 1999, no pet.). BFS’s no-evidence motion for summary judgement is
premature because no discovery whatsoever has been conducted to date in this case.17 Specifically,
16
If the Court denies the Motion to Compel the Fourth-Party Defendants to Arbitration and grants the Taylor
Defendants’ Motion to Abate the case, the Court should still continue the Summary Judgment Hearing until the parties
have had an adequate time to conduct discovery.
17
Big Tex incorporates by reference the prior sections of this Response.
7
due to the Taylor Defendants’ refusal to respond to written discovery and the open issues related
to arbitration and abatement, there has not been an adequate time for discovery as the argument
and authorities discussed infra establish. A trial court may order a continuance of a summary
judgment hearing when there has not been an adequate time for discovery, and the non-movant
has submitted a verified affidavit in support of the motion.18 See Tenneco, Inc. v. Enter. Prods.,
Co., 925 S.W.2d 640, 647 (Tex. 1996); Kaldis v. Aurora Loan Servs., 424 S.W.3d 729, 736 (Tex.
App.—Houston [14th Dist.] 2014, no pet.).
Big Tex fully and reasonably expects that with written discovery, depositions, and expert
discovery, it will obtain evidence regarding BFS’s scope of work, that BFS breached its duty to
perform its work with reasonable care, skill, expedience, and faithfulness, and that BFS’s negligent
work caused or contributed to the damages alleged by Plaintiffs. The evidence related to the scope
of BFS’s work on Plaintiff’s home and whether that work was defective or negligently performed,
will be borne out in discovery. If Big Tex is not allowed to obtain this relevant discovery from the
Taylor Defendants, the plaintiffs, experts, and BFS, it will not have been afforded a fair and
reasonable opportunity to obtain the evidence necessary to respond to BFS’s motion. Therefore,
BFS’s No-Evidence Motion for Summary Judgment is premature, and the Court should grant the
motion for continuance.
Accordingly, Big Tex respectfully asks the Court to continue any hearing, submission, or
ruling on BFS’s No-Evidence Motion for Summary Judgment to allow an adequate time for
discovery, and for this Court to rule on Big Tex’s pending Motion to Compel Arbitration. This
request for a continuance is not sought for delay, but so that justice may be done.
18
See Affidavit of Amy Nilsen, filed in support of this motion.
8
OBJECTION AND RESPONSE TO BSF’S NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT
Subject to and without waiving its motion for continuance, Big Tex responds to BFS’s no-
evidence motion for summary judgment. Although Big Tex contends that the arbitrator is the
person with jurisdiction to evaluate and rule upon motions for summary judgment filed by BFS,
Big Tex nevertheless files this objection and response in the event the Court does not compel all
parties to attend arbitration and determines that it has jurisdiction to rule on BFS’s motion.
ARGUMENT & AUTHORITIES
A. NO-EVIDENCE SUMMARY JUDGMENT STANDARD.
For a properly pleaded no evidence motion for summary judgment, Rule 166a(i) of the
Texas Rules of Civil Procedure provides that:
After adequate time for discovery, a party without presenting summary judgment
evidence may move for summary judgment on the ground that there is no evidence
of one or more of the essential elements of a claim or defense on which an adverse
party would have the burden of proof at trial. The motion must state the element
as to which there is no evidence. The court must grant the motion unless the
respondent produces summary judgment evidence raising a genuine issue of
material fact.
TEX. R. CIV. P. 166a(i). In a no-evidence motion for summary judgment, the movant must only
state the elements for which there is no evidence. TEX. R. CIV. P. 166a(i).
If an adequate time for discovery has occurred, the Court must deny a no-evidence motion
for summary judgment if the non-movant produces summary judgment evidence raising a genuine
issue of material fact on the element challenged by the movant. See TEX. R. CIV. P. 166a(i). A
genuine issue of material fact exists if more than a scintilla of evidence establishing the existence
of the challenged element is produced. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600
(Tex. 2004). When determining if more than a scintilla of evidence has been produced in response
to a Rule 166a(i) motion for summary judgment, the evidence must be viewed in the light most
9
favorable to the non-movant. Ridgway, 135 S.W.3d at 601. The Supreme Court of Texas has
consistently held that more than a scintilla of evidence exists if the evidence rises to a level that
would enable reasonable and fair-minded people to differ in their conclusions. Id.
B. BSF’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT IS PREMATURE AND
IMPROPER BECAUSE THERE HAS NOT BEEN AN ADEQUATE TIME FOR DISCOVERY.
BFS’ Motion is premature not only because there has not been an adequate for discovery,
but because no discovery at all has been conducted in this case. As the Court’s record reflects, on
October 3, 2022, the Taylor Defendants filed their Original Answer, including Special Exceptions,
Motion to Compel Arbitration, and Plea in Abatement. This Court signed an order abating this
case on January 30, 2023. The abatement has not been lifted.
No discovery has taken place since the Court abated this case. Due to this procedural
impediment, and further delays set forth in the background portion of this response, BFS cannot
reasonably argue, much less establish, that an adequate time for discovery has taken place. BFS
cites to no legal authority that has held that a procedural history such as that experienced in this
case would constitute an adequate time for discovery—none exists.
The Texas courts have addressed this issue numerous times because it is a fundamental
requirement for a no-evidence summary judgment motion. The comment to rule 166a(i) provides
that, “[a] discovery period set by pre[-]trial order should be adequate opportunity for discovery
unless there is a showing to the contrary, and ordinarily a motion under paragraph (i) would be
permitted after the period but not before.” TEX. R. CIV. P. 166a(i) cmt. (Emphasis added); see
Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000,
pet. denied). The Specialty Retailers Court emphasized that, unlike other notes and comments in
the rules of civil procedure, this comment was specifically intended to inform the construction and
application of the rule. Specialty Retailers, Inc., 29 S.W.3d at 145. Thus, under the plain language
10
of the comment, a no-evidence summary judgment motion ordinarily is not permitted before the
expiration of the discovery period set by the pre-trial order. See McInnis v. Mallia, 261 S.W.3d
197, 200 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
In addition to the constraint imposed by the plain language of the comment, the courts have
designated the following factors that should be considered in an analysis of whether there has been
an adequate time for discovery: (1) the nature of the case, (2) the nature of the evidence necessary
to controvert the no-evidence motion, (3) the length of time the case was active, (4) the amount of
time the no-evidence motion was on file, (5) whether the movant had requested stricter deadlines for
discovery, (6) the amount of discovery that already had taken place, and (7) whether the discovery
deadlines in place were specific or vague. Id. at 200. However, in the McInnis case, unlike in the
instant case, discovery had already taken place. Here, these factors, other than “the amount of
discovery that already had taken place,” which in the instant case is none, have little applicability
because this case has not proceeded to the merits of Plaintiffs’ claims, and no discovery whatsoever
has occurred either with respect to Plaintiffs’ claims or the third-party or fourth-party claims.
The one and only issue addressed in this case has been a consideration of the arbitrability
of the disputes between the parties and an order to abate the proceeding. The Court has not entered
a docket control order at any time because it was forced to wait on the appellate courts to rule on
the issue of whether arbitration should be compelled. In sum, no party has had the opportunity to
conduct any discovery. See Fort Brown Villas III Condo. Ass'n v. Gillenwater, 285 S.W.3d 879,
882 (Tex. 2009) (“[T]he no-evidence rule, by its very language, is to be used following
discovery.”) (Emphasis added).
The overriding fact that no discovery has been conducted in this case supports a ruling
denying BFS’s No-Evidence Motion for Summary Judgment on the basis that there has not been
an adequate time for discovery.
11
CONCLUSION & PRAYER
BFS’s No-Evidence Motion for Summary Judgment is premature and without merit. An
adequate time for discovery has not occurred. Discovery has been delayed due to motions to
compel arbitration, the Taylor Defendants’ motion for protection, and a global mediation of the
Mar Bella cases. There has been no discovery in this matter.
WHEREFORE, Third-Party Defendant Big Tex Air Conditioning, Inc. respectfully
requests that the Court deny Fourth-Party Defendant BFS GROUP, LLC’s No-Evidence Motion
for Summary Judgment. In the alternative, Big Tex Air Conditioning, Inc. requests that the
Court grant its Motion for Continuance of the Hearing to allow an adequate time for discovery,
and grant all other relief, both special and general, at law and in equity, to which it may be justly
entitled.
Respectfully submitted,
JOHNSON, TRENT & TAYLOR, L.L.P.
By: /s/ Amy Nilsen
Amy Nilsen
State Bar No. 24027574
Erin Lockshin
State Bar No. 24102706
919 Milam, Suite 1500
Houston, Texas 77002
(713) 222-2323 – Telephone
(713) 222-2226 – Facsimile
Email: anilsen@johnsontrent.com
Email: elockshin@johnsontrent.com
ATTORNEYS FOR BIG TEX AIR
CONDITIONING, INC.
12
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing instrument
was forwarded on the 25th day of July 2023.
/s/ Amy Nilsen
AMY NILSEN
13
Filed: 9/7/2022 4:03 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 68036031
By: Shailja Dixit
9/8/2022 9:18 AM
22-CV-1731
CAUSE NO. _________________
WAYNE SUTHERLAND and TERRI §
SUTHERLAND, §
IN THE DISTRICT COURT OF
§
Plaintiffs, §
§
v. §
GALVESTON COUNTY, TEXAS
§
TAYLOR MORRISON OF TEXAS, INC., § Galveston County - 10th District Court
and TAYLOR WOODROW §
COMMUNITIES – LEAGUE CITY, LTD. §
____ JUDICIAL DISTRICT
§
Defendants. §
PLAINTIFFS’ ORIGINAL PETITION
______________________________________________________________________________
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES WAYNE SUTHERLAND and TERRI SUTHERLAND, (“Plaintiffs”),
complaining of Taylor Morrison of Texas, Inc., and Taylor Woodrow Communities – League City,
LTD, (“Defendants”), and for cause show the Court as follows:
DISCOVERY CONTROL PLAN
1. Plaintiffs intend that discovery in this case to be conducted under the provisions of Texas
Rule of Civil Procedure 190, Level 3, and requests that the Court enter an appropriate scheduling
order.
PARTIES
2. Plaintiffs are residents of Galveston County, Texas, and reside at 4725 Isla Canela Lane,
League City, Texas 77573.
3. Defendant Taylor Morrison of Texas, Inc. is a Domestic For-Profit Corporation that may
be served through its registered agent, Registered Agent Solutions, Inc., at Corporate Center One,
5301 Southwest Parkway, Suite 400, Austin, TX 78735.
PLAINTIFFS’ ORIGINAL PETITION
Sutherland PAGE 1
EXHIBIT
Status Conference - 12/08/2022
1
4. Defendant, Taylor Woodrow Communities-League City, Ltd. is a Domestic Limited
Partnership that may be served through its registered agent, Registered Agent Solutions, Inc., at
Corporate Center One, 5301 Southwest Parkway, Suite 400, Austin, TX 78735.
JURISDICTION AND VENUE
5. The subject matter in controversy is within the jurisdictional limits of this Court. Pursuant
to the Texas Rules of Civil Procedure §47, Plaintiffs seek monetary relief more than $250,000 but
less than 1,000,000.
6. This Court has personal jurisdiction of the parties because both Defendants are domestic
entities, and the Plaintiffs reside in Galveston County.
7. Venue is proper in Galveston County because the cause of action alleged arose in
Galveston County and the real property subject to this suit is sited in Galveston County.
FACTS
8. This case concerns design and construction defects and related fraud that have caused
excessive moisture, humidity, significant mold growth and mycotoxins causing personal injury
and sickness as well as damage to the Plaintiffs’ home and numerous other properties in their
neighborhood. Plaintiffs, Wayne and Terri Sutherland, purchased the home located in the Mar Bell
development at 4725 Isla Canela Lane in League City, TX (Home) in October 2017. The Home
was built by Defendants and sold to Satya Ramadass and Radhika Jayanthi and construction was
substantially complete on or after 07/07/2015. The Plaintiffs, Wayne and Terri Sutherland,
purchased the home from Satya Ramadass and Radhika Jayanthi. Defendants knew of excessive
moisture, humidity, significant mold and/or moisture problems that had occurred and were
developing in identical and/or similar homes and floorplans as the Plaintiffs’. Taylor Morrison
PLAINTIFFS’ ORIGINAL PETITION
Sutherland PAGE 2
apparently attempted to repair and remediate some problems with the home. However, Taylor
Morrison’s attempts fell short and/or failed.
9. The cornerstone of the American dream is homeownership. However, for this family, the
American dream has turned into a nightmare of personal injury, frustration, anxiety, and
uncertainty. Or as Taylor Morrison puts it, “inconvenient, frustrating and extremely stressful.” As
has been reported by the Houston Chronicle, Galveston Daily News, KHOU and numerous other
media outlets, Mar Bella is plagued with “moldy homes” because of an extensive list of
construction and design defects, which Defendants have now acknowledged exist and need to be
remedied in the Plaintiffs’ home.
10. The beautiful master-planned community on the eastern side of League City is
unfortunately now often referred to by residents as “Mold Bella”. Taylor Morrison describes the
community on their website as, “acres of lakes, preserves, greenbelts, parks and plenty of palm
trees, Mar Bella offers a slice of paradise”. Because of the Defendants multiple widespread
construction defects, including but not limited to the building envelope, roof, the attic, the HVAC
and shower installation, the paradise has been upended and the streets have become filled with
dumpsters sitting in front of empty homes.
11. Unfortunately, design and construction defect claims are not new to the Defendants and
the various associated entities, partnerships, subsidiaries and holding companies that make up
Taylor Morrison Home Corporation.
12. The Plaintiffs’ home has developed excessive moisture, humidity and significant mold
growth and mycotoxins resulting from multiple design and construction defects.
13. Taylor Morrison is well aware of the problem they created. On October 4, 2018, Taylor
Morrison sent a letter, allegedly to all Mar Bella homeowners, where they acknowledged the
PLAINTIFFS’ ORIGINAL PETITION
Sutherland PAGE 3
problems and admitted they were aware of for many months, and advised they did not know what
the solution was, but they were searching for an answer:
“October 4, 2018
Dear Mar Bella Homeowner,
We extend our sincerest apology for the negative experience and concerns you have faced as
we work to fix the moisture issues in the affected homes in Mar Bella-we know it has been
inconvenient, frustrating, and extremely stressful. We also recognize that you deserve to
be kept informed of the current situation in the community and we are moving forward with
a consistent communication plan. Today, we would like to provide you a real-time update.
First, we want to reassure you that Taylor Morrison stands behind its homes and will not
stop until the problem is solved. In our work toward a final solution, we have made
significant progress over the last few months with external, independent experts and will
continue to partner with industry experts within our organization and beyond to repair the
issues that exist within the affected homes today.
Some of the previous attempts to fix homes in Mar Bella with these excessive moisture
issues have not worked despite our efforts. Even though the symptoms are clear, the cause
of the problem is multifaceted, making it sometimes difficult to diagnose and determine the
appropriate repair. Also, each home or floorplan appears to have a slightly different cause or
combination of causes (e.g. ventilation, duct installation, system design, etc.). Second, the
experts have conducted and continue to perform onsite inspections and research over the
last several months to diagnose the specific causes and potential solutions. We are currently
evaluating new repair options and testing them in a sample of homes within Mar Bella to
ensure they are permanent, effective solutions before we begin installing them in the
impacted homes. The test cases will be monitored closely to determine their effectiveness.
Once the tests are concluded, we will provide you with detailed information about our plans
to repair the impacted homes. While we may not have all of the answers, we are committed
to ongoing, routine communication moving forward so you know where we stand at all
times.”
14. Taylor Morrison further acknowledged the problem a couple of weeks later:
“October 31, 2018
Dear Mar Bella Homeowner,
Taylor Morrison has continued its work with a team of experts to develop a remedy for the
excessive condensation and, in some cases, mold issues that you have been experiencing
with your home. Since our last communication, we have inspected many homes with experts
leading the way, installed and monitored various equipment options, and consulted with
PLAINTIFFS’ ORIGINAL PETITION
Sutherland PAGE 4
those same experts to finalize a repair protocol for Mar Bella. This effort has been focused
on both controlling the elevated humidity in your attic, which contributes to excessive
condensation, as well as reducing indoor humidity for your comfort. Those plans have now
been finalized and the experts are confident in the proposed solutions to fix the problem.
Please understand that every home in Mar Bella will not receive the same repair because
the severity of the condensation varies from mild to significant in the affected homes.
Also, the particular work needed to fix the problem depends on a variety of factors that
include, but are not limited to, the design, installation, and equipment selection of your
current HVAC system, the ventilation of the attic space, the design of the home, etc.
Therefore, we will not take a "one size fits all" approach when implementing the proper
repair. We will focus on you, your issue and provide a solution that is tailored to your
home.”
15. Taylor Morrison is further aware of the problems because of lawsuits, settlements, and
arbitration awards. In fact, a recent arbitration award from a similar property in the neighborhood
found:
“The overwhelming credible evidence establishes that the home was defectively designed
and/or constructed. All of the credible evidence establishes a breach of the implied warranty
of habitability and/or good workmanship. The defective design and construction of the
exterior walls and the attic ventilation, as well as the failure to properly install a properly
sized air condition ing system, all contributed to the high condensation and humidity levels
inside the home and prohibits the house from being properly dehumidified. Moreover, it is
these unacceptably high levels of humidity and moisture that caused the proliferation of
elevated and unacceptable levels of mold throughout the home. The evidence clearly and
persuas ively established that the home will require substantial work to cure the defects and
remediate the mold caused by the defects.”
16. The Final Judgement was entered June 10, 2020, awarding the Plaintiffs actual damages,
expert fees, attorney fees, plus an additional award of appellate attorney fees, interest, and
PLAINTIFFS’ ORIGINAL PETITION
Sutherland PAGE 5
arbitration fees with a combined sum of $517,098.01. Furthermore, the Plaintiffs were awarded
post-judgment interest.
17. A second recent arbitration award from a similar house in the neighborhood made a similar
finding:
“Claimants have presented substantial credible evidence of Respondents' breach of
the common law implied warranty of good and workmanlike construction. The elements
of this cause of action are as follows:
1. Respondents built residential property;
2. Claimants purchased the property;
3. Construction was not performed in a good and workmanlike manner;
4. Claimants suffered injury.
Throughout their briefing and in extensive credible evidence in the arbitration hearing,
Claimants presented testimony supporting their claims of a "defective house," which is simpler
way of saying that the house was not constructed in a good and workmanlike manner, and
thus they have pled and proven a viable cause of action under Texas law.”
18. Plaintiffs, Wayne and Terri Sutherland developed concerns about excessive moisture,
humidity and mold in his home.
19. In January 2020 Plaintiffs accept Taylor Morrison’s RCLA partial repair offer.
20. On October 27, 2020, Plaintiffs were provided with a Certificate of Mold Damage
Remediation.
21. However, these limited repairs did not address all problems and failed to fix the problem
and excessive humidity and mold continued in the home.
PLAINTIFFS’ ORIGINAL PETITION
Sutherland PAGE 6
22. In January 2019, Plaintiffs Wayne and Terri Sutherland retained Vanderford Air to perform
an inspection of their HVAC system. The results of the inspection were, no doubt, similar to what
Taylor Morrison already knew… there was mold in the attic and throughout the house.
Specifically, as it related to the HVAC system, Vanderford found and recommended:
The cost for total replacement of the system, along with a dedicated dehumidifier and UV light,
complete with duct system redesign and replacement, media filter, solar attic fan and professional
installation would be $28,570.00. It is important to note that Vanderford’s cost estimate does not
include any demolition, mold remediation, decontamination, or construction costs. Only
equipment and installation.
PLAINTIFFS’ ORIGINAL PETITION
Sutherland PAGE 7
23. An extensive mold assessment on the Plaintiffs’ home was performed by Texas Mold
Inspectors (TMI). The inspections and testing by TMI confirmed the presence of various mold and
mycotoxins within the Plaintiffs’ house. TMI prepared a mold remediation protocol which
requires extensive demolition, remediation and reconstruction.
24. All Disaster Claims (ADC) prepared a detailed line by line, 291-page mold repair estimate
to comply with the mold remediation protocol prepared by TMI.
25. In compliance with the Residential Construction Liability Act (RCLA), Plaintiffs sent all
reports and information to Taylor Morrison on or about August 5, 2019.
26. After receiving the RCLA Notice, Taylor Morrison had its mold inspections perform an
inspection. Mold Inspection Sciences came to the same conclusion as Plaintiffs’ experts. The house
is contaminated with mold.
27. At all times pertinent herein, Defendants, and any of Defendants’ agents, who were acting
in the scope of their employment, were guilty of negligent conduct toward the Plaintiffs by the
following:
A. Failing to properly design, construct, install and inspect the building envelope, roof,
attic, windows, 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, HVAC system, showers, interiors;
C. Failing to provide warnings to Plaintiffs of the unsafe conditions;
D. Withholding knowledge of the design and construction defects plaguing Plaintiffs’
and neighbors’ home and causing personal injuries;
E. Failing to remove the excessive moisture, humidity, toxic mold and mycotoxins
PLAINTIFFS’ ORIGINAL PETITION
Sutherland PAGE 8
causing injury;
F. Failing to design and implement a full and complete remedy to previously
disclosed problems;
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 failure to properly design and
construct the exterior building envelope to prevent outside conditions and
humidity from penetrating into the interior of the home.
H. Failing to design and implement a full and proper remediation and repair.
I. Failing to properly install the weather resistant barrier, violating the applicable
building code and manufacturers requirements.
J. Failing to install or construct a continuous thermal barrier of the home.
K. Filing to seal the top and bottom plates.
28. Defendants and Defendants’ agents knew, or in the exercise of reasonable care, had reason
to know that the excessive moisture, humidity and toxic mold and mycotoxins constituted an
unreasonable and/or dangerous condition to Plaintiffs.
29. Plaintiffs would show the Court that the above-described acts and omissions of negligent
conduct constituted the proximate cause of serious personal injury and other damages as detailed
below. Plaintiffs contend, and has attached relevant exhibits to this petition in support of said
contentions, the following construction defects-failures in the construction of Plaintiffs’ home
associated with Defendant’s acts and omissions:
a. failure/defects of the building envelope
b. failure/defects of the HVAC system
PLAINTIFFS’ ORIGINAL PETITION
Sutherland PAGE 9
c. failure/defects with the shower and tub installation and design
d. failure/defect of the water-proofing system
e. failure/defect of the insulation
f. failure/defect of the roofing system
g. failure/defect of the mechanical equipment
h. failure/defect of the design and construction
i. failure/defect in the separation of the conditioned and unconditioned areas of the
home.
j. failure/defect in the weather resistant barrier of the home.
k. failure to seal the top and bottom plates of the home.
l. failing to properly install the windows.
CAUSES OF ACTION
NEGLIGENT REPAIR AND REMEDIATION
The Defendants performed partial repairs and mold remediation on the home.
The Defendants had a duty to perform the repair and remediation as an ordinary and
reasonable homebuilder would. That requires that the repairs be done in such a
manner that the repairs would actually identify and remove the mold and its causes.
The Defendants breached that duty by failing to repair the causes of the mold and by
failing to remove the mold.
PLAINTIFFS’ ORIGINAL PETITION
Sutherland PAGE 10
BREACH OF CONTRACT
Plaintiff and Defendants had a valid, enforceable contract in place for the
accepted partial repairs issued by Defendant and agreed to by the Plaintiff. The
Plaintiff was the beneficiary of this contract.
The RCLA required The Sutherlands to present Taylor Morrison with their
claims. In return, the RCLA allows Taylor Morrison to make an offer of repair. That
offer of partial repairs was accepted by The Sutherlands, reserving the right to bring
claims of the unmitigated and repaired defects.
The Plaintiff fully performed by accepting the per diem, the scope of partial
repairs, and by allowing Taylor Morrison to coordinate and hire the contractors to
make the repairs.
Defendants breached the contract by not performing the partial repairs in
accordance with the mold remediation protocol so that the home would be and
continue to be mold free. The actions by Defendants and their designated agents
constitute a material breach of Defendants’ contract with the Plaintiff. As a result of
this breach of contract, the Plaintiff has suffered the damages that are described in
this petition, the producing cause of which are Defendants’ actions.
RESIDENTIAL CONSTRUCTION LIABILITY ACT
Defendant violated Chapter 27 of the Texas Property Code. The Residential
Construction Liability Act (RCLA) permits recovery of damages or other relief arising
from construction defects. Plaintiffs complied with the Notice requirements of RCLA.
Defendants’ response was unreasonable because, among other things, Defendants
PLAINTIFFS’ ORIGINAL PETITION
Sutherland PAGE 11
failed to acknowledge all of the defects although they had acknowledged the exact
same defects on numerous prior occasions, failed to address all defects and damages.
BREACH OF IMPLIED WARRANTIES
30. Defendants breached the implied warranty of habitability. The excessive m
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Filed: 7/25/2023 4:01 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 77873148 By: Shailja Dixit 7/25/2023 4:09 PM NO. 22-CV-1731 WAYNE SUTHERLAND and TERRI § IN THE DISTRICT COURT SUTHERLAND, § Plaintiffs, § § v. § § TAYLOR MORRISON OF TEXAS, INC. § and TAYLOR WOODROW § 10th JUDICIAL DISTRICT COMMUNITIES – LEAGUE CITY, LTD. § Defendants/Third-Party Plaintiffs, § § v. § § BIG TEX AIR CONDITIONING, INC., § GALVESTON COUNTY, TEXAS Third-Party Defendants. § § THIRD-PARTY PLAINTIFF/FOURTH-PARTY PLAINTIFF, BIG TEX AIR CONDITIONING’S RESPONSE TO FOURTH-PARTY DEFENDANT’S, BFS GROUP, LLC, as successor in interest to BUILDERS FIRSTSOURCE-SOUTH TEXAS, LP’S NO- EVIDENCE MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE: COMES NOW, Third-Party Defendant Big Tex Air Conditioning, Inc. (“Big Tex”) files this response to the No-Evidence Motion for Summary Judgment filed on behalf of Fourth Party Defendant, BFS GROUP, LLC, as successor in interest to BUILDERS FIRSTSOURCE-SOUTH TEXAS, LP (hereinafter referred to as “BFS”), and would respectfully show this Honorable Court the following: SUMMARY OF ARGUMENT Plaintiffs have sued Taylor Morrison of Texas, Inc. and Taylor Woodrow Communities– League City, Ltd. (collectively, “the Taylor Defendants”), the builder of their home, alleging that construction and design defects led to water intrusion and extreme and inappropriate humidity and moisture levels to develop in the home’s interior. This is a complex case involving not only the builder, but also the various sub-contractors that provided materials and services during the home’s construction, which raises issues that require extensive expert testimony. Adding to the complexity is the fact that the builder has taken the position that this case should be arbitrated, based on an agreement to arbitrate in the sales contract, and should not be before this Court. Thus, due to pending motions to compel arbitration and the abatement of the case pending mediation, the Court has not entered a Docket Control Order and no discovery has been conducted by any party to this proceeding. Due to this procedural status, BFS’s no-evidence motion for summary judgement is premature and unwarranted because no discovery whatsoever has been conducted to date. Accordingly, BFS cannot meet its burden under Rule 166a(i) to establish that its no- evidence motion is proper because an adequate time for discovery has transpired. Under black letter Texas law, the no-evidence rule, by its very language, is to be used only following an adequate time for discovery and certainly not when, as here, no discovery has been conducted at all. BFS cannot skirt this requirement or plausibly argue that an adequate time for discovery has passed, therefore, BFS’s no-evidence motion for summary judgment must be denied. FACTUAL AND PROCEDURAL BACKGROUND This is a construction defect case that stems from the construction of a home located in the Mar Bella subdivision at 4725 Isla Canela Lane, League City, Texas 77573 (the “Residence” or “Home”). Plaintiffs Wayne Sutherland and Terri Sutherland purchased the Home from the original owners Satya Ramadass and Radhika Jayanthi in October 2017. The construction of the home was substantially complete in July 2015. The Taylor Defendants, the general contractor, constructed the Home.1 Plaintiffs filed this lawsuit against the Taylor Defendants on September 7, 2022, 1 See Plaintiffs’ Original Petition, a true and correct copy of which is attached as Exhibit 1. 2 claiming construction defects consisting of a mold problem at the Residence. Plaintiffs brought claims against the Taylor Defendants for negligent repair and remediation, breach of contract, and violation of the Residential Construction Liability Act, negligent construction, breach of implied warranties, and negligent construction.2 Plaintiffs allege “multiple design and construction defects” in the Home which allegedly caused “excessive moisture, humidity and significant mold growth.”3 In their petition, Plaintiffs pleaded defects with construction of their home, including, but not limited to defects involving the framing, HVAC system, plumbing, insulation, roofing, ventilation, thermal barrier, windows, sealing, building envelope and shower installation. Plaintiffs allege construction defects in the home which purportedly caused “excessive moisture, humidity, significant mold growth, and mycotoxins resulting in from multiple design and construction defects. ” Id. The Taylor defendants hired a variety of subcontractors to participate in the Home’s construction, including but not limited to Big Tex, BFS, City Framers, Arnulfo Rodriguez Roofing, Installed Building Products of Houston, L&W Weatherstripping, LLC, Wisenbaker Building Services, LTD, and Rosenberg Plumbing. Big Tex was hired by the Taylor Defendants to install the HVAC system at the Residence. On October 3, 2022, The Taylor Defendants filed their Original Answer, including a Motion to Compel Arbitration, Plea in Abatement, and Special Exceptions. The Taylor Defendants’ Motion to Compel Arbitration is based on the November 30, 2014, contract for the construction and sale of 4725 Isa Canela Ln, League City, Texas 77573, which contains an arbitration agreement.4 On October 6, 2022, the Taylor Defendants filed their Third-Party Petition 2 Id. 3 Id. 4 This agreement was not signed by Plaintiffs because they purchased the home from the original purchaser of the home. 3 against Big Tex, subject to and without waiver of their requests to compel arbitration. The Taylor Defendants claim that if they are found liable to Plaintiffs, they are entitled to contribution, indemnity, and/or comparative responsibility from Big Tex pursuant to the Master Agreement for Vertical Construction Services (Texas) (“Master Agreement”) with Big Tex.5 On October 10 , 2022, Big Tex filed its Original Answer, subject to arbitration, to the Taylor Defendants’ Original Third-Party Petition, denying all allegations made by the Taylor Defendants.6 Big Tex then filed its own Third-Party Petition, joining the other subcontractor defendants, Arnulfo Rodriguez Roofing Co., Inc., City Framers, LLC, Installed Building Products of Houston, LLC, L&W Weatherstripping, LLC, Wisenbaker Builder Services, Inc., Rosenberg Plumbing Services, Inc., and BFS (collectively, the “Fourth-Party Defendants”) in this lawsuit.7 Big Tex added the Fourth-Party Defendants based on the allegations made by Plaintiffs in their Original Petition, as well as the allegations set forth in Plaintiffs’ expert reports. The Taylor Defendants filed their Motion to Compel Arbitration asking this Court to compel arbitration of Plaintiffs’ claims and abate the lawsuit in its entirety pending the completion of arbitration proceedings between Plaintiffs and Defendants and until this court lifts the abatement.8 On January 30, 2023, this Court signed an agreed order staying all proceedings in this Court and abating the action until the Court lifts the abatement order. 9 This order was based on potentially applicable appeals before the Supreme Court of Texas and the parties’ agreement to abate the action. BFS signed the agreed order. This matter was abated pending the final resolution of: 10 5 See Taylor Defendants’ Third-Party Petition against Big Tex on file with the Court. 6 See Big Tex’s Third-Party Original Answer on file with the Court. 7 See Big Tex’s Fourth-Party Petition on file with the Court. 8 See Defendants’ Original Answer, Including Motion to Compel Arbitration, Pleas in Abatement and Special Exceptions. 9 See Agreed Order dated January 30, 2023, on file with this Court. 10 Id. 4 The Court has not subsequently entered an order lifting the abatement in this matter. Additionally, at the time of this Response, Plaintiffs in Kohlmeyer filed a Motion for pending and is pending before the Supreme Court of Texas. Due to the pendency of the opinions, the Taylor Defendants have not had a hearing on their Motion to Compel Arbitration. Additionally, the Taylor Defendants have yet to file a motion to compel arbitration as to Big Tex. However, the Taylor Defendants have indicated that they will file a motion to compel arbitration as to Big Tex once the abatement is lifted. As the Court is aware, this case is one of over 45 lawsuits filed in Galveston County regarding alleged design and construction defects in homes built by the Taylor Defendants in the Mar Bella subdivision (hereinafter the “Mar Bella cases”). All the Mar Bella cases involve similar facts, allege the same type of defects in design and construction, and include many of the same subcontractors. In the Mar Bella cases, the Taylor Defendants have pleaded that the original sale contracts for the Mar Bella homes each contained an arbitration clause. The Taylor Defendants have moved to compel arbitration in the Mar Bella cases including this lawsuit.11 Big Tex has also asserted that the third-party/fourth-party subcontractors are required to attend arbitration due to the arbitration clauses in the subcontractors’ respective contracts with the Taylor Defendants and, as explained more fully below, has moved to compel the other subcontractors to arbitration. 11 See Taylor’s Motion to Compel Arbitration, on file with the Court. 5 Big Tex does not object to arbitration. However, if the Court compels Big Tex to arbitration, the Court should order all parties (including the Fourth-Party Defendants) and claims to arbitration pursuant to the language of the Purchase Agreement, as well as the Master Agreement for Vertical Construction Services (Texas) (“Master Agreement”) between the Taylor Defendants and the subcontractors (Fourth-Party Defendants).12 On July 21, 2023, Big Tex filed its Motion to Compel the Fourth-Party Defendants to arbitration pursuant to the language of the Purchase Agreement, as well as the Master Agreement between the Taylor Defendants and the subcontractors.13 The motion to compel should be granted because failure to order all the parties to arbitration would result in unfair prejudice to Big Tex.14 It is the Taylor Defendants’ position that discovery should be postponed in the trial court while arbitration is taking place, that all discovery should be performed in arbitration, and the merits of the case adjudicated in arbitration.15 The Taylor Defendants filed motions for protection and to abate this case and have not provided substantive response to any discovery requests. Id. The Taylor Defendants have not produced to any party its design and construction file for the Home, no depositions have taken place, and no expert discovery has been performed. The Taylor Defendants’ refusal to engage in any discovery with Plaintiffs and subcontractors, including Big Tex and BFS, precludes their ability to investigate, evaluate, and pursue claims and defenses, including responding to BFS’s No-Evidence Motion for Summary Judgment. Because the Taylor Defendants are the general contractor, they are in possession of thousands of pages of documents related to the design and construction of the Mar Bella 12 Several of the Fourth-Party Defendants filed Motions for Summary Judgments in this Court. Big Tex believes the Court needs to resolve this issue before the Motions for Summary Judgment can be considered. 13 See Third-Party Defendant/Fourth-Party Plaintiff Big Tex’s Motion to Compel Arbitration as to the Fourth-Party Defendants, on file with this Court. 14 Big Tex filed the Motion to Compel Arbitration before the abatement was lifted because BFS filed its No-Evidence Motion for Summary Judgment. 15 See Taylor’s Motion to Compel Arbitration and Motion for Protection, on file with the Court. 6 subdivision, including the Sutherlands’ home. All the subcontractors, including Big Tex and BFS, have been denied access to these records by the Taylor Defendants. It should also be noted that discovery in all the Mar Bella cases was placed on hold while the parties prepared for and attended a global mediation, which occurred a few months ago. Due to the complex nature of the alleged defects, the Mar Bella cases have generally relied heavily on document production from the Taylor Defendants, deposition testimony of parties, fact witnesses, and experts, and expert reports produced as part of expert designations. However, because of the dispute over whether and which parties were to attend arbitration and whether discovery should be performed at arbitration or at the trial court level, and as the Taylor Defendants’ motions related to these issues were pending, such discovery has not taken place. Consequently, an adequate opportunity and time for discovery has not taken place in this case. If the Court grants Big Tex’s Motion to Compel Arbitration and orders all the Fourth-Party Defendants to arbitration, it would be the arbitrator, and not this Court, that would have jurisdiction to consider and rule upon discovery disputes and summary judgment motions, such as the one filed by BFS.16 VERIFIED MOTION FOR CONTINUANCE When a case is complex, and the motion for summary judgment challenges the merits of the case, full discovery is necessary and warranted. See McClure v. Attebury, 20 S.W.3d 722, 729 (Tex. App.–Amarillo 1999, no pet.). BFS’s no-evidence motion for summary judgement is premature because no discovery whatsoever has been conducted to date in this case.17 Specifically, 16 If the Court denies the Motion to Compel the Fourth-Party Defendants to Arbitration and grants the Taylor Defendants’ Motion to Abate the case, the Court should still continue the Summary Judgment Hearing until the parties have had an adequate time to conduct discovery. 17 Big Tex incorporates by reference the prior sections of this Response. 7 due to the Taylor Defendants’ refusal to respond to written discovery and the open issues related to arbitration and abatement, there has not been an adequate time for discovery as the argument and authorities discussed infra establish. A trial court may order a continuance of a summary judgment hearing when there has not been an adequate time for discovery, and the non-movant has submitted a verified affidavit in support of the motion.18 See Tenneco, Inc. v. Enter. Prods., Co., 925 S.W.2d 640, 647 (Tex. 1996); Kaldis v. Aurora Loan Servs., 424 S.W.3d 729, 736 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Big Tex fully and reasonably expects that with written discovery, depositions, and expert discovery, it will obtain evidence regarding BFS’s scope of work, that BFS breached its duty to perform its work with reasonable care, skill, expedience, and faithfulness, and that BFS’s negligent work caused or contributed to the damages alleged by Plaintiffs. The evidence related to the scope of BFS’s work on Plaintiff’s home and whether that work was defective or negligently performed, will be borne out in discovery. If Big Tex is not allowed to obtain this relevant discovery from the Taylor Defendants, the plaintiffs, experts, and BFS, it will not have been afforded a fair and reasonable opportunity to obtain the evidence necessary to respond to BFS’s motion. Therefore, BFS’s No-Evidence Motion for Summary Judgment is premature, and the Court should grant the motion for continuance. Accordingly, Big Tex respectfully asks the Court to continue any hearing, submission, or ruling on BFS’s No-Evidence Motion for Summary Judgment to allow an adequate time for discovery, and for this Court to rule on Big Tex’s pending Motion to Compel Arbitration. This request for a continuance is not sought for delay, but so that justice may be done. 18 See Affidavit of Amy Nilsen, filed in support of this motion. 8 OBJECTION AND RESPONSE TO BSF’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT Subject to and without waiving its motion for continuance, Big Tex responds to BFS’s no- evidence motion for summary judgment. Although Big Tex contends that the arbitrator is the person with jurisdiction to evaluate and rule upon motions for summary judgment filed by BFS, Big Tex nevertheless files this objection and response in the event the Court does not compel all parties to attend arbitration and determines that it has jurisdiction to rule on BFS’s motion. ARGUMENT & AUTHORITIES A. NO-EVIDENCE SUMMARY JUDGMENT STANDARD. For a properly pleaded no evidence motion for summary judgment, Rule 166a(i) of the Texas Rules of Civil Procedure provides that: After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more of the essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the element as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. TEX. R. CIV. P. 166a(i). In a no-evidence motion for summary judgment, the movant must only state the elements for which there is no evidence. TEX. R. CIV. P. 166a(i). If an adequate time for discovery has occurred, the Court must deny a no-evidence motion for summary judgment if the non-movant produces summary judgment evidence raising a genuine issue of material fact on the element challenged by the movant. See TEX. R. CIV. P. 166a(i). A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). When determining if more than a scintilla of evidence has been produced in response to a Rule 166a(i) motion for summary judgment, the evidence must be viewed in the light most 9 favorable to the non-movant. Ridgway, 135 S.W.3d at 601. The Supreme Court of Texas has consistently held that more than a scintilla of evidence exists if the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id. B. BSF’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT IS PREMATURE AND IMPROPER BECAUSE THERE HAS NOT BEEN AN ADEQUATE TIME FOR DISCOVERY. BFS’ Motion is premature not only because there has not been an adequate for discovery, but because no discovery at all has been conducted in this case. As the Court’s record reflects, on October 3, 2022, the Taylor Defendants filed their Original Answer, including Special Exceptions, Motion to Compel Arbitration, and Plea in Abatement. This Court signed an order abating this case on January 30, 2023. The abatement has not been lifted. No discovery has taken place since the Court abated this case. Due to this procedural impediment, and further delays set forth in the background portion of this response, BFS cannot reasonably argue, much less establish, that an adequate time for discovery has taken place. BFS cites to no legal authority that has held that a procedural history such as that experienced in this case would constitute an adequate time for discovery—none exists. The Texas courts have addressed this issue numerous times because it is a fundamental requirement for a no-evidence summary judgment motion. The comment to rule 166a(i) provides that, “[a] discovery period set by pre[-]trial order should be adequate opportunity for discovery unless there is a showing to the contrary, and ordinarily a motion under paragraph (i) would be permitted after the period but not before.” TEX. R. CIV. P. 166a(i) cmt. (Emphasis added); see Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). The Specialty Retailers Court emphasized that, unlike other notes and comments in the rules of civil procedure, this comment was specifically intended to inform the construction and application of the rule. Specialty Retailers, Inc., 29 S.W.3d at 145. Thus, under the plain language 10 of the comment, a no-evidence summary judgment motion ordinarily is not permitted before the expiration of the discovery period set by the pre-trial order. See McInnis v. Mallia, 261 S.W.3d 197, 200 (Tex. App.—Houston [14th Dist.] 2008, no pet.). In addition to the constraint imposed by the plain language of the comment, the courts have designated the following factors that should be considered in an analysis of whether there has been an adequate time for discovery: (1) the nature of the case, (2) the nature of the evidence necessary to controvert the no-evidence motion, (3) the length of time the case was active, (4) the amount of time the no-evidence motion was on file, (5) whether the movant had requested stricter deadlines for discovery, (6) the amount of discovery that already had taken place, and (7) whether the discovery deadlines in place were specific or vague. Id. at 200. However, in the McInnis case, unlike in the instant case, discovery had already taken place. Here, these factors, other than “the amount of discovery that already had taken place,” which in the instant case is none, have little applicability because this case has not proceeded to the merits of Plaintiffs’ claims, and no discovery whatsoever has occurred either with respect to Plaintiffs’ claims or the third-party or fourth-party claims. The one and only issue addressed in this case has been a consideration of the arbitrability of the disputes between the parties and an order to abate the proceeding. The Court has not entered a docket control order at any time because it was forced to wait on the appellate courts to rule on the issue of whether arbitration should be compelled. In sum, no party has had the opportunity to conduct any discovery. See Fort Brown Villas III Condo. Ass'n v. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009) (“[T]he no-evidence rule, by its very language, is to be used following discovery.”) (Emphasis added). The overriding fact that no discovery has been conducted in this case supports a ruling denying BFS’s No-Evidence Motion for Summary Judgment on the basis that there has not been an adequate time for discovery. 11 CONCLUSION & PRAYER BFS’s No-Evidence Motion for Summary Judgment is premature and without merit. An adequate time for discovery has not occurred. Discovery has been delayed due to motions to compel arbitration, the Taylor Defendants’ motion for protection, and a global mediation of the Mar Bella cases. There has been no discovery in this matter. WHEREFORE, Third-Party Defendant Big Tex Air Conditioning, Inc. respectfully requests that the Court deny Fourth-Party Defendant BFS GROUP, LLC’s No-Evidence Motion for Summary Judgment. In the alternative, Big Tex Air Conditioning, Inc. requests that the Court grant its Motion for Continuance of the Hearing to allow an adequate time for discovery, and grant all other relief, both special and general, at law and in equity, to which it may be justly entitled. Respectfully submitted, JOHNSON, TRENT & TAYLOR, L.L.P. By: /s/ Amy Nilsen Amy Nilsen State Bar No. 24027574 Erin Lockshin State Bar No. 24102706 919 Milam, Suite 1500 Houston, Texas 77002 (713) 222-2323 – Telephone (713) 222-2226 – Facsimile Email: anilsen@johnsontrent.com Email: elockshin@johnsontrent.com ATTORNEYS FOR BIG TEX AIR CONDITIONING, INC. 12 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing instrument was forwarded on the 25th day of July 2023. /s/ Amy Nilsen AMY NILSEN 13 Filed: 9/7/2022 4:03 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 68036031 By: Shailja Dixit 9/8/2022 9:18 AM 22-CV-1731 CAUSE NO. _________________ WAYNE SUTHERLAND and TERRI § SUTHERLAND, § IN THE DISTRICT COURT OF § Plaintiffs, § § v. § GALVESTON COUNTY, TEXAS § TAYLOR MORRISON OF TEXAS, INC., § Galveston County - 10th District Court and TAYLOR WOODROW § COMMUNITIES – LEAGUE CITY, LTD. § ____ JUDICIAL DISTRICT § Defendants. § PLAINTIFFS’ ORIGINAL PETITION ______________________________________________________________________________ TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES WAYNE SUTHERLAND and TERRI SUTHERLAND, (“Plaintiffs”), complaining of Taylor Morrison of Texas, Inc., and Taylor Woodrow Communities – League City, LTD, (“Defendants”), and for cause show the Court as follows: DISCOVERY CONTROL PLAN 1. Plaintiffs intend that discovery in this case to be conducted under the provisions of Texas Rule of Civil Procedure 190, Level 3, and requests that the Court enter an appropriate scheduling order. PARTIES 2. Plaintiffs are residents of Galveston County, Texas, and reside at 4725 Isla Canela Lane, League City, Texas 77573. 3. Defendant Taylor Morrison of Texas, Inc. is a Domestic For-Profit Corporation that may be served through its registered agent, Registered Agent Solutions, Inc., at Corporate Center One, 5301 Southwest Parkway, Suite 400, Austin, TX 78735. PLAINTIFFS’ ORIGINAL PETITION Sutherland PAGE 1 EXHIBIT Status Conference - 12/08/2022 1 4. Defendant, Taylor Woodrow Communities-League City, Ltd. is a Domestic Limited Partnership that may be served through its registered agent, Registered Agent Solutions, Inc., at Corporate Center One, 5301 Southwest Parkway, Suite 400, Austin, TX 78735. JURISDICTION AND VENUE 5. The subject matter in controversy is within the jurisdictional limits of this Court. Pursuant to the Texas Rules of Civil Procedure §47, Plaintiffs seek monetary relief more than $250,000 but less than 1,000,000. 6. This Court has personal jurisdiction of the parties because both Defendants are domestic entities, and the Plaintiffs reside in Galveston County. 7. Venue is proper in Galveston County because the cause of action alleged arose in Galveston County and the real property subject to this suit is sited in Galveston County. FACTS 8. This case concerns design and construction defects and related fraud that have caused excessive moisture, humidity, significant mold growth and mycotoxins causing personal injury and sickness as well as damage to the Plaintiffs’ home and numerous other properties in their neighborhood. Plaintiffs, Wayne and Terri Sutherland, purchased the home located in the Mar Bell development at 4725 Isla Canela Lane in League City, TX (Home) in October 2017. The Home was built by Defendants and sold to Satya Ramadass and Radhika Jayanthi and construction was substantially complete on or after 07/07/2015. The Plaintiffs, Wayne and Terri Sutherland, purchased the home from Satya Ramadass and Radhika Jayanthi. Defendants knew of excessive moisture, humidity, significant mold and/or moisture problems that had occurred and were developing in identical and/or similar homes and floorplans as the Plaintiffs’. Taylor Morrison PLAINTIFFS’ ORIGINAL PETITION Sutherland PAGE 2 apparently attempted to repair and remediate some problems with the home. However, Taylor Morrison’s attempts fell short and/or failed. 9. The cornerstone of the American dream is homeownership. However, for this family, the American dream has turned into a nightmare of personal injury, frustration, anxiety, and uncertainty. Or as Taylor Morrison puts it, “inconvenient, frustrating and extremely stressful.” As has been reported by the Houston Chronicle, Galveston Daily News, KHOU and numerous other media outlets, Mar Bella is plagued with “moldy homes” because of an extensive list of construction and design defects, which Defendants have now acknowledged exist and need to be remedied in the Plaintiffs’ home. 10. The beautiful master-planned community on the eastern side of League City is unfortunately now often referred to by residents as “Mold Bella”. Taylor Morrison describes the community on their website as, “acres of lakes, preserves, greenbelts, parks and plenty of palm trees, Mar Bella offers a slice of paradise”. Because of the Defendants multiple widespread construction defects, including but not limited to the building envelope, roof, the attic, the HVAC and shower installation, the paradise has been upended and the streets have become filled with dumpsters sitting in front of empty homes. 11. Unfortunately, design and construction defect claims are not new to the Defendants and the various associated entities, partnerships, subsidiaries and holding companies that make up Taylor Morrison Home Corporation. 12. The Plaintiffs’ home has developed excessive moisture, humidity and significant mold growth and mycotoxins resulting from multiple design and construction defects. 13. Taylor Morrison is well aware of the problem they created. On October 4, 2018, Taylor Morrison sent a letter, allegedly to all Mar Bella homeowners, where they acknowledged the PLAINTIFFS’ ORIGINAL PETITION Sutherland PAGE 3 problems and admitted they were aware of for many months, and advised they did not know what the solution was, but they were searching for an answer: “October 4, 2018 Dear Mar Bella Homeowner, We extend our sincerest apology for the negative experience and concerns you have faced as we work to fix the moisture issues in the affected homes in Mar Bella-we know it has been inconvenient, frustrating, and extremely stressful. We also recognize that you deserve to be kept informed of the current situation in the community and we are moving forward with a consistent communication plan. Today, we would like to provide you a real-time update. First, we want to reassure you that Taylor Morrison stands behind its homes and will not stop until the problem is solved. In our work toward a final solution, we have made significant progress over the last few months with external, independent experts and will continue to partner with industry experts within our organization and beyond to repair the issues that exist within the affected homes today. Some of the previous attempts to fix homes in Mar Bella with these excessive moisture issues have not worked despite our efforts. Even though the symptoms are clear, the cause of the problem is multifaceted, making it sometimes difficult to diagnose and determine the appropriate repair. Also, each home or floorplan appears to have a slightly different cause or combination of causes (e.g. ventilation, duct installation, system design, etc.). Second, the experts have conducted and continue to perform onsite inspections and research over the last several months to diagnose the specific causes and potential solutions. We are currently evaluating new repair options and testing them in a sample of homes within Mar Bella to ensure they are permanent, effective solutions before we begin installing them in the impacted homes. The test cases will be monitored closely to determine their effectiveness. Once the tests are concluded, we will provide you with detailed information about our plans to repair the impacted homes. While we may not have all of the answers, we are committed to ongoing, routine communication moving forward so you know where we stand at all times.” 14. Taylor Morrison further acknowledged the problem a couple of weeks later: “October 31, 2018 Dear Mar Bella Homeowner, Taylor Morrison has continued its work with a team of experts to develop a remedy for the excessive condensation and, in some cases, mold issues that you have been experiencing with your home. Since our last communication, we have inspected many homes with experts leading the way, installed and monitored various equipment options, and consulted with PLAINTIFFS’ ORIGINAL PETITION Sutherland PAGE 4 those same experts to finalize a repair protocol for Mar Bella. This effort has been focused on both controlling the elevated humidity in your attic, which contributes to excessive condensation, as well as reducing indoor humidity for your comfort. Those plans have now been finalized and the experts are confident in the proposed solutions to fix the problem. Please understand that every home in Mar Bella will not receive the same repair because the severity of the condensation varies from mild to significant in the affected homes. Also, the particular work needed to fix the problem depends on a variety of factors that include, but are not limited to, the design, installation, and equipment selection of your current HVAC system, the ventilation of the attic space, the design of the home, etc. Therefore, we will not take a "one size fits all" approach when implementing the proper repair. We will focus on you, your issue and provide a solution that is tailored to your home.” 15. Taylor Morrison is further aware of the problems because of lawsuits, settlements, and arbitration awards. In fact, a recent arbitration award from a similar property in the neighborhood found: “The overwhelming credible evidence establishes that the home was defectively designed and/or constructed. All of the credible evidence establishes a breach of the implied warranty of habitability and/or good workmanship. The defective design and construction of the exterior walls and the attic ventilation, as well as the failure to properly install a properly sized air condition ing system, all contributed to the high condensation and humidity levels inside the home and prohibits the house from being properly dehumidified. Moreover, it is these unacceptably high levels of humidity and moisture that caused the proliferation of elevated and unacceptable levels of mold throughout the home. The evidence clearly and persuas ively established that the home will require substantial work to cure the defects and remediate the mold caused by the defects.” 16. The Final Judgement was entered June 10, 2020, awarding the Plaintiffs actual damages, expert fees, attorney fees, plus an additional award of appellate attorney fees, interest, and PLAINTIFFS’ ORIGINAL PETITION Sutherland PAGE 5 arbitration fees with a combined sum of $517,098.01. Furthermore, the Plaintiffs were awarded post-judgment interest. 17. A second recent arbitration award from a similar house in the neighborhood made a similar finding: “Claimants have presented substantial credible evidence of Respondents' breach of the common law implied warranty of good and workmanlike construction. The elements of this cause of action are as follows: 1. Respondents built residential property; 2. Claimants purchased the property; 3. Construction was not performed in a good and workmanlike manner; 4. Claimants suffered injury. Throughout their briefing and in extensive credible evidence in the arbitration hearing, Claimants presented testimony supporting their claims of a "defective house," which is simpler way of saying that the house was not constructed in a good and workmanlike manner, and thus they have pled and proven a viable cause of action under Texas law.” 18. Plaintiffs, Wayne and Terri Sutherland developed concerns about excessive moisture, humidity and mold in his home. 19. In January 2020 Plaintiffs accept Taylor Morrison’s RCLA partial repair offer. 20. On October 27, 2020, Plaintiffs were provided with a Certificate of Mold Damage Remediation. 21. However, these limited repairs did not address all problems and failed to fix the problem and excessive humidity and mold continued in the home. PLAINTIFFS’ ORIGINAL PETITION Sutherland PAGE 6 22. In January 2019, Plaintiffs Wayne and Terri Sutherland retained Vanderford Air to perform an inspection of their HVAC system. The results of the inspection were, no doubt, similar to what Taylor Morrison already knew… there was mold in the attic and throughout the house. Specifically, as it related to the HVAC system, Vanderford found and recommended: The cost for total replacement of the system, along with a dedicated dehumidifier and UV light, complete with duct system redesign and replacement, media filter, solar attic fan and professional installation would be $28,570.00. It is important to note that Vanderford’s cost estimate does not include any demolition, mold remediation, decontamination, or construction costs. Only equipment and installation. PLAINTIFFS’ ORIGINAL PETITION Sutherland PAGE 7 23. An extensive mold assessment on the Plaintiffs’ home was performed by Texas Mold Inspectors (TMI). The inspections and testing by TMI confirmed the presence of various mold and mycotoxins within the Plaintiffs’ house. TMI prepared a mold remediation protocol which requires extensive demolition, remediation and reconstruction. 24. All Disaster Claims (ADC) prepared a detailed line by line, 291-page mold repair estimate to comply with the mold remediation protocol prepared by TMI. 25. In compliance with the Residential Construction Liability Act (RCLA), Plaintiffs sent all reports and information to Taylor Morrison on or about August 5, 2019. 26. After receiving the RCLA Notice, Taylor Morrison had its mold inspections perform an inspection. Mold Inspection Sciences came to the same conclusion as Plaintiffs’ experts. The house is contaminated with mold. 27. At all times pertinent herein, Defendants, and any of Defendants’ agents, who were acting in the scope of their employment, were guilty of negligent conduct toward the Plaintiffs by the following: A. Failing to properly design, construct, install and inspect the building envelope, roof, attic, windows, 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, HVAC system, showers, interiors; C. Failing to provide warnings to Plaintiffs of the unsafe conditions; D. Withholding knowledge of the design and construction defects plaguing Plaintiffs’ and neighbors’ home and causing personal injuries; E. Failing to remove the excessive moisture, humidity, toxic mold and mycotoxins PLAINTIFFS’ ORIGINAL PETITION Sutherland PAGE 8 causing injury; F. Failing to design and implement a full and complete remedy to previously disclosed problems; 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 failure to properly design and construct the exterior building envelope to prevent outside conditions and humidity from penetrating into the interior of the home. H. Failing to design and implement a full and proper remediation and repair. I. Failing to properly install the weather resistant barrier, violating the applicable building code and manufacturers requirements. J. Failing to install or construct a continuous thermal barrier of the home. K. Filing to seal the top and bottom plates. 28. Defendants and Defendants’ agents knew, or in the exercise of reasonable care, had reason to know that the excessive moisture, humidity and toxic mold and mycotoxins constituted an unreasonable and/or dangerous condition to Plaintiffs. 29. Plaintiffs would show the Court that the above-described acts and omissions of negligent conduct constituted the proximate cause of serious personal injury and other damages as detailed below. Plaintiffs contend, and has attached relevant exhibits to this petition in support of said contentions, the following construction defects-failures in the construction of Plaintiffs’ home associated with Defendant’s acts and omissions: a. failure/defects of the building envelope b. failure/defects of the HVAC system PLAINTIFFS’ ORIGINAL PETITION Sutherland PAGE 9 c. failure/defects with the shower and tub installation and design d. failure/defect of the water-proofing system e. failure/defect of the insulation f. failure/defect of the roofing system g. failure/defect of the mechanical equipment h. failure/defect of the design and construction i. failure/defect in the separation of the conditioned and unconditioned areas of the home. j. failure/defect in the weather resistant barrier of the home. k. failure to seal the top and bottom plates of the home. l. failing to properly install the windows. CAUSES OF ACTION NEGLIGENT REPAIR AND REMEDIATION The Defendants performed partial repairs and mold remediation on the home. The Defendants had a duty to perform the repair and remediation as an ordinary and reasonable homebuilder would. That requires that the repairs be done in such a manner that the repairs would actually identify and remove the mold and its causes. The Defendants breached that duty by failing to repair the causes of the mold and by failing to remove the mold. PLAINTIFFS’ ORIGINAL PETITION Sutherland PAGE 10 BREACH OF CONTRACT Plaintiff and Defendants had a valid, enforceable contract in place for the accepted partial repairs issued by Defendant and agreed to by the Plaintiff. The Plaintiff was the beneficiary of this contract. The RCLA required The Sutherlands to present Taylor Morrison with their claims. In return, the RCLA allows Taylor Morrison to make an offer of repair. That offer of partial repairs was accepted by The Sutherlands, reserving the right to bring claims of the unmitigated and repaired defects. The Plaintiff fully performed by accepting the per diem, the scope of partial repairs, and by allowing Taylor Morrison to coordinate and hire the contractors to make the repairs. Defendants breached the contract by not performing the partial repairs in accordance with the mold remediation protocol so that the home would be and continue to be mold free. The actions by Defendants and their designated agents constitute a material breach of Defendants’ contract with the Plaintiff. As a result of this breach of contract, the Plaintiff has suffered the damages that are described in this petition, the producing cause of which are Defendants’ actions. RESIDENTIAL CONSTRUCTION LIABILITY ACT Defendant violated Chapter 27 of the Texas Property Code. The Residential Construction Liability Act (RCLA) permits recovery of damages or other relief arising from construction defects. Plaintiffs complied with the Notice requirements of RCLA. Defendants’ response was unreasonable because, among other things, Defendants PLAINTIFFS’ ORIGINAL PETITION Sutherland PAGE 11 failed to acknowledge all of the defects although they had acknowledged the exact same defects on numerous prior occasions, failed to address all defects and damages. BREACH OF IMPLIED WARRANTIES 30. Defendants breached the implied warranty of habitability. The excessive m