Preview
Filed: 7/25/2023 3:12 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 77869109
By: Shailja Dixit
7/25/2023 3:17 PM
NO. 22-CV-1743
ALEJANDRO MORALES and BROOK § IN THE DISTRICT COURT
MORALES §
Plaintiffs, §
§
v. §
§
TAYLOR MORRISON OF TEXAS, INC. §
and TAYLOR WOODROW § 1OTH JUDICIAL DISTRICT
COMMUNITIES – LEAGUE CITY, LTD. §
§
Defendants, §
§
v. §
§
BIG TEX AIR CONDITIONING, INC., §
§
§ GALVESTON COUNTY, TEXAS
Third-Party Defendant. §
§
THIRD-PARTY PLAINTIFF/FOURTH-PARTY PLAINTIFF, BIG TEX AIR
CONDITIONING’S RESPONSE TO FOURTH-PARTY DEFENDANT’S, BFS GROUP,
LLC’S, as successor in interest to BUILDERS FIRSTSOURCE-SOUTH TEXAS, LP,
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, 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
Plaintiffs filed this lawsuit against the Taylor Defendants on September 8, 2022, claiming
there were construction defects consisting of a mold problem in their home located at 4606
Hermosa Arroyo Drive, League City, Texas 77573 (the “Residence” or “Home”).1 The Residence
was constructed by the Taylor Defendants, and Plaintiffs purchased the Home from the original
owners Michael MaGee and Melissa Becker in November 2017. Plaintiffs brought claims against
the Taylor Defendants for breach of contract, negligent repair and remediation, RCLA violations,
1
See Plaintiffs’ Original Petition, attached hereto as Exhibit 1.
2
breach of implied warranties, and negligent construction. Plaintiffs allege “design and construction
defects” in the Home which allegedly caused “excessive moisture, humidity, and significant mold
growth and mycotoxins.”2 Plaintiffs further allege that the foregoing conditions within the Home
due to the alleged construction defects have caused “personal injury and sickness.” 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. ”4 The Taylor Defendants hired a variety of subcontractors to participate in
the Home’s construction, including but not limited to Big Tex, Arnulfo Rodriguez Roofing Col.,
Inc., City Framers, LLC, Chaparral Plumbing, L.P., L&W Weatherstripping, LLC, BFS Group,
LLC as successor in interest to Builders Firstsource – South Texas, L.P., erroneously sued as
ProBuild South, LP, All Star Plumbing Management, LLC, and Builder Services Group, Inc., DBA
Williams Insulation. Big Tex was hired by the Taylor Defendants to install the HVAC system at
the Residence.
On October 6, 2022, the Taylor Defendants (the general contractor for the construction of
the Home) filed their Third-Party Petition against Big Tex.5 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
(“Master Agreement”) with Big Tex.6 On October 10, 2022, the Taylor Defendants filed their
2
Id.
3
Id.
4
Id.
5
See the Taylor Defendants’ Third-Party Petition on file with this Court.
6
Id.
3
Original Answer, including Special Exceptions, Motion to Compel Arbitration, and Plea in
Abatement.7 The Taylor Defendants’ Motion to Compel Arbitration is based on the November
30, 2014, contract for the construction and sale of 4606 Hermosa Arroyo Drive, League City,
Texas 77573, which contains an arbitration agreement between the original purchasers and the
Taylor Defendants.8
Big Tex filed its Original Answer, subject to arbitration, to the Taylor Defendants’ Original
Third-Party Petition, on October 10, 2022, denying all allegations made by the Taylor Defendants.
Additionally, on October 21, 2022, Big Tex filed its Fourth-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. 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.
In their Motion to Compel Arbitration, the Taylor Defendants asked 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.
On January 30, 2023, this Court signed an agreed order abating all proceedings and abating the
action until the Court lifts the abatement order. The 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 the following
appeals:
7
See the Taylor Defendants' Original Answer, Including Special Exceptions, Motion to Compel Arbitration, and Plea
in Abatement on file with this Court.
8
This agreement was not signed by Plaintiffs because they purchased the home from the original purchaser.
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. 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.
Big Tex does not object to arbitration of this matter once the abatement is lifted. However,
if the Court compels Big Tex to arbitration, the Court should order all parties (including the Fourth-
5
Party Defendants) and claims to arbitration pursuant to the language of the Purchase Agreement,
as well as the Master Agreement between the Taylor Defendants and the subcontractors (Fourth-
Party Defendants). Accordingly, 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. The motion to compel should be granted because failure to order all the parties
to arbitration would result in unfair prejudice to Big Tex. Furthermore, several of the Fourth-Party
Defendants have filed motions for summary judgment in this Court. Big Tex asserts that the Court
needs to resolve this arbitration issue before any motions for summary judgment may be
considered, and requests that the Court do so.
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. As previously noted, the Taylor Defendants filed a
motion to abate this case, which the Court granted, and have not provided substantive responses
to any discovery requests. 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.
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
subdivision, including the Plaintiffs’ 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
6
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 occurred.
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. Consequently, an adequate opportunity and time for discovery has not taken place in
this case. Furthermore, 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. If, however, the Court denies the Motion to Compel the Fourth-
Party Defendants to Arbitration, the Court should continue the Summary Judgment Hearing in this
case until the parties have had an adequate time to conduct discovery.
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.). As Big Tex has explained in the prior sections of this
Response, BFS’s no-evidence motion for summary judgment is premature because no discovery
whatsoever has been conducted to date in this case. Specifically, 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
7
support of the motion. 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.); see also Affidavit of Amy Nilsen, filed in support of this Response.
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 Plaintiffs’ 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.
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.
8
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
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
9
October 10, 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. Thus, 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
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
10
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.
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 abatement, 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
11
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 to all counsel of record.
/s/ Amy Nilsen
AMY NILSEN
13
Filed: 9/8/2022 2:40 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 68072595
By: Shailja Dixit
22-CV-1743 9/8/2022 3:21 PM
CAUSE NO. _________________
ALEJANDRO MORALES and BROOKE §
MORALES, §
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 ALEJANDRO MORALES and BROOKE MORALES, (“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 4606 Hermosa Arroyo
Drive, 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
Morales
Status Conference - 12/08/2022
EXHIBIT
PAGE 1
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, Alejandro and Brooke Morales, purchased the home located in the Mar
Bella development at 4606 Hermosa Arroyo Drive in League City, TX (Home) in November 2017.
The Home was built by Defendants and sold to Michael MaGee and Melissa Becker and
construction was substantially complete on or after 06/16/2014. The Plaintiffs, Alejandro and
Brooke Morales, purchased the home from Michael MaGee and Melissa Becker. 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
PLAINTIFFS’ ORIGINAL PETITION
Morales PAGE 2
Morrison 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
Morales 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
Morales 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
Morales 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. In April 2019 Plaintiffs, Alejandro and Brooke Morales developed concerns about
excessive moisture, humidity, and mold in their home.
19. Plaintiffs Alejandro and Brooke Morales 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:
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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 $33,999. 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.
20. 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
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Morales PAGE 7
mycotoxins within the Plaintiffs’ house. TMI prepared a mold remediation protocol which
requires extensive demolition, remediation, and reconstruction.
21. Staples Consulting Group prepared a detailed line by line, 136-page mold repair estimate
to comply with the mold remediation protocol prepared by TMI.
22. In compliance with the Residential Construction Liability Act (RCLA), Plaintiffs sent all
reports and information to Taylor Morrison on or about August 16, 2019.
23. 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,
weather resistant barrier, thermal barrier, windows, roof, attic, HVAC system,
showers, interiors and discover and remediate the defective and/or dangerous
conditions;
B. Failing to give adequate and understandable warnings to Plaintiffs of the unsafe
conditions of the building envelope, roof, attic, 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
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
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Morales PAGE 8
(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. Failing to properly design and construct a home.
24. 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.
25. 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 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
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
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Morales PAGE 9
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.
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 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.
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 Morales 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 Morales, 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.
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Morales PAGE 10
Defendants breached the contract by not performing the partial repairs so that
the home would 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
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
26. Defendants breached the implied warranty of habitability. The excessive moisture,
humidity, mold, and mycotoxin growth, as well as the design and construction defects that caused
said excessive moisture, humidity, mold, and mycotoxin growth, are latent defects that rendered
the home unsafe, unsanitary, or otherwise unfit for living therein. These defects existed before
and after the proposed partial repairs offered by Defendants.
NEGLIGENT CONSTRUCTION
27. Defendants had a duty to Plaintiffs and others to exercise ordinary care and to provide a
reasonably safe constructed home.
28. Defendants breached said duty of reasonable care by allowing longstanding issues from
the design and construction of the home to remain unaddressed, allowing excessive moisture,
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humidity and the growth of toxic mold and mycotoxins, and by their failure to address known
issues and take other reasonable measures to remove the excessive moisture, humidity and toxic
mold and mycotoxins and make the premises reasonably safe for Plaintiffs and any other
occupants.
DISCOVERY RULE
29. Defendants are estopped from asserting the affirmative defense of limitations because
Plaintiffs did not discover, nor could Plaintiffs have discovered by the exercise of reasonable
diligence, the existence of their causes of action against Defendants until less than two years
prior to the date on which