Preview
FILED
11/13/2023 5:36 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
John Bailey DEPUTY
Cause No. DC-20-07653
MONDARA CONDOMINIUMS IN THE DISTRICT COURT OF
ASSOCIATION, INC.
Plaintiff,
v.
STILLWATER ABBOTT DEVELOPMENT,
LLC, STILLWATER CAPITAL 95" JUDICIAL DISTRICT
INVESTMENTS, LLC, STILLWATER
ABBOTT MANAGEMENT, LLC,
STILLWATER GC, LLC, AND ROBERT
C. ELLIOTT, INDIVIDUALLY
Defendants. DALLAS COUNTY
PLAINTIFF MONDARA CONDOMINIUMS ASSOCIATION, INC.’S
SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC REPLY TO
PLAINTIFF RESPONSE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff, Mondara Condominiums Association, Inc. (“Mondara”),
and files this, its Sur-Reply to Defendant Cemplex Group Texas, LLC (“Cemplex” or
“Movant”) Reply to Mondara’s Response to Cemplex’s Traditional and No-Evidence
Motion for Summary Judgment, and in support thereof, respectfully shows the Court as
follows:
I OBJECTIONS
Mondara objects to Cemplex’s new exhibit attached to its Reply to Mondara’s
Response to Cemplex’s Traditional and No-Evidence Motion for Summary Judgment
(“Cemplex’s Reply”). The introduction of deposition excerpts with Cemplex’s Reply
runs afoul of Texas Rule of Civil Procedure 166a(d) requirement that notice of intent to
use discovery products is given “at least twenty-one days before hearing if such proofs
are to be used to support the summary judgment.” Tex. R. Civ. P. 166a(d). Here, Cemplex
PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC
MOTION FOR SUMMARY JUDGMENT
is attempting to introduce additional arguments and supporting evidence with the Kerry
Lee deposition excerpts five days before the hearing. These arguments and excerpts were
not included in Cemplex’s Motion for Summary Judgment, and Mondara was not given
the twenty-one day notice of intent of their use as required by Rule 166a. The Dallas Court
of Appeals has interpreted the deadlines in Rule 166a as implicitly requiring the movant
to “serve all summary judgment evidence upon which the movant's motion depends at
least twenty-one days prior to the hearing.” Extended Services Program, Inc. v. First
Extended Serv. Corp., 601 S.W.2d 469, 470 (Tex. App.—Dallas 1980, writ ref’d n.r.e.). The
Court went on to say that Rule 166a’s deadlines “pre-supposed” the non-movant has “at
least fourteen days to obtain and to file summary judgment evidence to refute the
movant's evidence” and “to hold otherwise would permit the movant to take unfair
advantage of the nonmovant.” Id.
The Movant is required to obtain leave of Court to file summary judgment
evidence within the twenty-one-day deadline. See Tex. R. Civ. P. 166a(c); Luna v. Estate of
Rodriguez, 906 S.W.2d 576, 582 (Tex. App.—Austin 1995, no writ). And because summary
judgment is a harsh remedy, the twenty-one-day deadline is “strictly construed.” Id.
Cemplex has not requested leave of Court to file the deposition excerpts from the Kerry
Lee Affidavit. Without leave of Court, Cemplex cannot introduce additional summary
judgment evidence within the twenty-one day deadline and so the deposition evidence
cannot be considered.
PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC
MOTION FOR SUMMARY JUDGMENT
Il. RESPONSE TO CEMPLEX’S OBJECTIONS
A. Response to Objections to the Affidavits of Kerry Lee and Bryan Byrd, the
Forensix Report, the Socotec Report, and the Conley/ABBAE Report
Kerry Lee’s Affidavit meets all the requirements of Tex. R. Civ. Proc. 166a(c). An
expert's affidavit offered to support or oppose a summary judgment motion must include
proof of the expert's qualifications. Green v. Brantley, 11 S.W.3d 259, 263 (Tex. App. 1999).
Besides demonstrating that the expert witness is qualified to testify, the proponent must
show that the expert’s testimony is both relevant to the issues and based on a reliable
foundation.
Both the affidavits of Kerry Lee and Bryan Byrd contain proof of their expert
qualifications. Green v. Brantley, 11 S.W.3d 259, 263 (Tex. App. 1999).
Both affidavits contain relevant evidence. Kerry Lee’s includes proof of failure to
follow design in a portion of the as-built acoustical soundproofing installations. Lee’s
affidavit and report specifically identify Cemplex for its work on the soundproofing
assemblies. Byrd’s affidavit specifically calculates the cost of repairing the defectively
installed soundproofing assemblies. Failure to follow acoustic design is also supported
by the Schoedel affidavit. Whether the failure to follow acoustic design is proven by Lee
and/or Schoedel, does not change the repair set out by Lee. Lee’s affidavit contains
relevant evidence of a repair.
Lee’s affidavit as an expert affidavit is allowed to rely on evidence that is otherwise
inadmissible, and specifically may rely on hearsay. In re Christus Spohn Hosp. Kleberg, 222
S.W.3d 434, 440 (Tex. 2007). Further, the Forensix Report is not hearsay, because it is
supported by a Business Records Affidavit.
PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC
MOTION FOR SUMMARY JUDGMENT
Byrd’s report is attached to a properly prepared affidavit indicating the copies are
“true and correct” and, thus, is sworn. Coastal Cement Sand Inc. v. First Interstate Credit
All., Inc., 956 $.W.2d 562, 567 (Tex. App. 1997). Further, Byrd’s affidavit, as an expert
affidavit, is allowed to rely on evidence that is hearsay. In re Christus Spohn Hosp. Kleberg,
222 S.W.3d 434, 440 (Tex. 2007).
The Conley/ABBAE Report, attaching Farnsworth Report and the Supplementary
Information, Site Drainage Report from Farnsworth are not hearsay, because they are
supported by a Business Records Affidavit. Further, Lee reviewed the information
contained in the Conley/ABBAE Report and Farnsworth Reports. Lee’s affidavit as an
expert affidavit is allowed to rely on evidence that is hearsay. In re Christus Spohn Hosp.
Kleberg, 222 S.W.3d 434, 440 (Tex. 2007).
B. Response to Objections to the Affidavit of Courtney Schoedel, Ms. Schoedel’s
CV and Rebuttal Report, and Idibri Documents
Courtney Schoedel is both a fact witness regarding the sound isolation system and
testing thereof, as well as a properly designated expert regarding the design and testing
of sound isolation systems in residential construction. Schoedel is able to speak to the
design of the Mondara’s sound isolation system because she had direct involvement with
its design as well as knowledge of the field changes made to it. Furthermore, she
performed testing in 2017 and 2021, analyzed the results of those tests, and created the
report conveying those results.
Schoedel was properly designated as an expert along with her areas of expertise
and expected topics of testimony. Cemplex had sufficient notice and opportunity to
schedule a deposition but failed to do so.
PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC
MOTION FOR SUMMARY JUDGMENT
Schoedel’s affidavit contains proof of her expert qualifications. Green v. Brantley,
11 S.W.3d 259, 263 (Tex. App. 1999). Schoedel’s rebuttal report is attached to a properly
prepared affidavit indicating the copies are “true and correct” and, thus, is sworn. Coastal
Cement Sand Inc. v. First Interstate Credit All., Inc., 956 S.W.2d 562, 567 (Tex. App. 1997).
Further, Schoedel’s affidavit, as an expert affidavit, is allowed to rely on evidence that is
hearsay. In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 (Tex. 2007).
C. Response to Objections that Certain Exhibits are Irrelevant and Immaterial
“Courts have often held that the general objection of both ‘immaterial and
irrelevant’ amounts to no objection at all.” Bridges v. City of Richardson, 349 S.W.2d 644,
648 (Tex. App.—Dallas 1961), writ ref'd n.r.e., 163 Tex. 292, 354 S.W.2d 366 (1962). The
exhibits offered by Plaintiff in response to Cemplex’s Motion for Summary Judgment are
relevant because they go to show more than a scintilla of evidence supporting Plaintiff's
allegations that Cemplex has injured Plaintiff. Cemplex installed the sound mat and
lightweight concrete which constitutes major components of the sound isolation system.
The Forensix Report, the Byrd Report, the Conley / ABBAE Report, the Schoedel Report,
and Idibri Reports all support the conclusion that Cemplex is responsible for Plaintiff's
injury and when that was first discovered. Furthermore, statements made in the
Affidavits are all supported by personal knowledge, expert opinion, reports, or
documents, and directly go to the issues in this case.
Il. RESPONSE TO CEMPLEX’S ARGUMENTS
A. Mondara did not Produce the Stillwater Documents and Rule 193.7 does not
Apply
Merriam-Webster defines “produce” as “to cause to have existence or to happen,”
“to give being, form, or shape to, un to compose, create, or bring out by intellectual or
PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC
MOTION FOR SUMMARY JUDGMENT
physical effort.” Mondara did not create, giving being to, or cause to exist, the documents
produced by Stillwater that Cemplex is now relying on. Simply providing a storage
location and bates labeling is not the same as producing the documents. Mondara’s
attachment of bates labels on the Stillwater documents in not, and was never intended to
be, an authentication of the documents. Texas Rule of Civil Procedure 193.7 is very
specific about what documents and against whom self-authentication applies. Rule 193.7
says, “a party's production of a document in response to written discovery authenticates
the document for use against that party.” Tex. R. Civ. P. 193.7.
Mondara did not produce the Stillwater documents, from which Cemplex’s
Exhibits B and C come from, and under the plain language of Rule 193.7 those documents
are only authenticated against Stillwater because they’re the party that produced the
documents in response to a written discovery request. Cemplex’s interpretation of Rule
193.7 would have a chilling effect on multi-party litigation if hosting and labeling
documents produced by other parties for the convenience of all parties is enough to
authenticate the documents against the hosting party.
Cemplex also argues that Mondara only had ten days to object to its use in their
Motion for Summary Judgment under Texas Rule of Civil Procedure 193.7, that “Rule
193.7 contains no exception prohibiting authentication of documents based on prior
production from another party.” See Cemplex’s Reply p. 6. Rule 193.7 however only
applies to authentication of documents from the producing party, and only requires a
producing party to object, “within ten days or a longer or shorter time ordered by the
court, after the producing party has notice that the document will be used.” Tex. R. Civ. P.
193.7. Mondara was not the producing party of Exhibits B and C, and thus not limited to
the ten-day objection deadline.
PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC
MOTION FOR SUMMARY JUDGMENT
Lastly, Cemplex’s interpretation of the ten-day objection deadline conflicts with the
deadlines set out in Texas Rule of Civil Procedure 166a. Rule 166a says that adverse
parties must be given at least 21-days’ notice of the use of discovery before the hearing
for the Summary Judgment, and the adverse party has until seven days before the hearing
to response. See Tex. R. Civ. P. 166a(d). Assuming the best-case scenario, that means the
adverse party has 14 days to object to the use of discovery, in addition to its response.
Cemplex’s interpretation would require Mondara to have filed its objections within 10
days, four days before their response was due. In the worse-case scenario, it could be
weeks or even months before Mondara’s response would be due, since the deadlines for
notice and responses are all based on the summary judgment hearing date.
Texas Rule of Civil Procedure 1 says the rules should be given a “liberal construction”
so that “a just, fair, equitable and impartial adjudication” may be achieved “at the least
expense both to the litigants and to the state as may be practicable.” Tex. R. Civ. P. 1.
Cemplex’s interpretation would require multiple filings, potentially multiple hearings,
all requiring unnecessary time and expense for both the Court and adverse parties.
Mondara’s interpretation would apply uniformly to all motion for summary judgment
responses, minimizing confusion, the Court’s and party’s time, and expense.
IV. ARGUMENT AND AUTHORITIES
The resolution of discovery of a legal injury sufficient to cause accrual of a cause
of action is generally a fact question rather than as a matter of law. See LaTouche v. Perry
Homes, LLC, 606 S.W.3d 878, 884 (Tex. App.—Houston [14th Dist.] 2020, pet. denied).
Cemplex must prove conclusively that the cause of action accrued. Kazmir v. Suburban
Homes Realty, 824 S.W.2d 239, 242-43 (Tex. App.—Texarkana 1992, writ denied) (citing
Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983)); Swilley v. Hughes, 488 S.W.2d 64, 67
PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC
MOTION FOR SUMMARY JUDGMENT
(Tex.1972); Valdez v. Charles Orsinger Buick Co., 715 S.W.2d 126, 128 (Tex.App.—Texarkana
1986, no writ).
Cemplex has no admissible evidence to support its motion. It is undisputed that
the emails purportedly supporting the motion were not created by Mondara, but only
bates labeled after being produced as part of this lawsuit by another party in the case.
Using unproved emails from a third party as “authenticated” by Mondara does violence
to the entire concept of authentication.
Further, the emails offered by Cemplex are not conclusive. They mention
unidentified “sound issues” to be discussed. The communications offered by Cemplex
go so far as to indicate that the issue was not an issue but claim that construction was in
compliance with design requirements. The evidence produced by Mondara is that the
installation, when analyzed by a trained acoustic professional, was not in compliance
with design.
Ch ilds v. Haussecker, 974 S.W.2d 31, 45 (Tex. 1998), cited by Cemplex, supports the
foregoing as grounds to deny this Motion. In Childs, the court found a fact question
existed regarding whether the party should have sued over silicosis even after 20 years
of doctor’s visits, coughing up blood, and silicosis being found in fellow workers, when
medical experts repeatedly rejected his suspicions that his conditions were work related.
The court found that a fact question existed whether he knew or should have known
earlier. Likewise, it cannot be conclusive that Mondara knew or should have known that
there was a deficient installation of the acoustic design when the evidence is the
professionals were telling Plaintiff otherwise. That is particularly so in a specialized and
complex area like acoustics.
As shown by Mondara’s evidence acoustics is a specialized area requiring
specialized training to be able to evaluate acoustic issues. See Exhibit I at 3. Lay persons
PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC
MOTION FOR SUMMARY JUDGMENT
who own condominium units are not expected to possess master’s degrees in acoustic
engineering or to recognize whether an acoustic design has been properly installed in
accordance with design drawings or not. Because of the specialization required, it cannot
be “conclusively established” that lay persons without specialized training in
interpreting drawings or evaluating acoustic installations should have discovered a legal
injury.
In addition, Cemplex argues that limitations began running before construction
was even complete, citing to Lambert v. Wansbrough. See Cemplex Reply at p. 7. Lambert is
distinguishable from the facts in this case. Lambert v. Wansbrough, 783 S.W.2d 5 (Tex. App.
— Dallas 1989, writ denied). In Lambert a contractor installed the roof for the owner and
the defect in performance was discovered after the installation was fully completed. The
contractor made repairs and made assurances that the issue was resolved. The owner
experienced repeated subsequent leaks and called contractor up to ten times to return for
correction before ultimately hiring another contractor to replace the roof. The owner then
did not sue for six years.
Limitations not being delayed by the promise of remedial action is different from
work being performed as part of the original obligation to install in a good and
workmanlike manner.
Vv. CONCLUSION
Cemplex’s objections should be overruled and all of Mondara’s evidence should be
found to satisfy the requirement of establishing more than a scintilla of evidence in
support of its causes of action.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff Mondara Condominiums
Association, Inc. respectfully prays that Defendant’s objections be overruled in their
PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC
MOTION FOR SUMMARY JUDGMENT
entirety, that Plaintiff’s objections be sustained, that the Court deny Cemplex’s Motion
for Traditional and No Evidence Summary Judgment, and that Plaintiff have all other
relief, at law or in equity, to which it is justly entitled.
Respectfully submitted,
THOMAS, FELDMAN & WILSHUSEN, L.L.P.
By: [s/ Alan R. Phillips
FRED D. WILSHUSEN
State Bar No. 21665590
Email: fwilshusen@tfandw.com
MISTY H. GUTIERREZ
State Bar No. 24053616
Email: mgutierrez@tfandw.com
ALAN R. PHILLIPS
State Bar No. 24125829
Email: aphillips@tfandw.com
Merit Tower
12222 Merit Drive, Suite 1450
Dallas, TX 75251-3297
Telephone: (214) 369-3008
Telecopier: (214) 369-8393
COUNSEL FOR PLAINTIFF
MONDARA CONDOMINIUMS
ASSOCIATION, INC.
PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC 10
MOTION FOR SUMMARY JUDGMENT
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
document has been served upon all counsel of record on the 13th day of November
2023, in accordance with Rule 21a of the Texas Rules of Civil Procedure
/s/ Alan R. Phillip:
Alan R. Phillips
Via E-Mail: Attorney For Defendants
bwolf@wolf-law.com Stillwater Abbott Development, LLC, Stillwater
‘henderson@wolf-law.com Capital Investments, LLC, Stillwater Abbott
clarke@wolf-law.com Management, LLC, Stillwater GC, LLC, Robert
William “Bill” L. Wolf C. Elliott, Individually, Aaron Sherman a/k/a
State Bar No. 21854500 Robert A. Sherman, and Richard Coady
Wolf & Henderson, P.C.
4309 Irving Ave., Suite 200
Dallas, TX 75219
(214) 750-1395
Via Email: Montgomery Capital Advisers, LLC and Thomas
bryan.wick@wickphillips.com A. Montgomery,
aul. elkins@wi ickphillips.com
Bryan J. Wick
Paul T. Elkins
WICK PHILLIPS GOULD & MARTIN, LLP
3131 McKinney Avenue, Suite 500
Dallas, Texas 75204
Telephone: 214.692.6200
Fax: 214.692.6255
Via E-Mail. Attorneys For Defendants
Van@Shawlaw.net The Baumann Family Limited Partnership,
eau@Shawlaw.net Timothy S. Baumann, The King Family Limited
David@Shawlaw.ne: Partnership, Steven R. King, Savannah
Evan Lane (Van) Shaw Developers of Texas, LLC and Savannah
State Bar No. 18140500 Developers of Texas Urban, LLC
Jeremy B. (Beau) Powell
State Bar No. 24099163
David J. Welch
State Bar No. 24098593
Law Offices of Van Shaw
2723 Fairmount
Dallas, TX 75201
P: (214) 754-7110
F: (214) 754-7115
PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC 11
MOTION FOR SUMMARY JUDGMENT
Via E-Mail: Attorneys For Defendants Timothy S. Baumann,
cottsmithlawoffice@gmail.com Steven R. King, Savannah Developers of Texas,
Scott Smith LLC and Savannah Developers of Texas Urban,
State Bar No. 18613220 LLCO
Smith, Smith & Smith, L.L.P.
310 W. College Street
Terrell, TX 75160
P: (214) 734-9123
F: (972) 563-2705
Via E-Mail: Attorneys For Defendant Kirk
Rmontgomery@drmlawyers.com Concrete Construction, Inc.
Asmith@drmlawyers.com d/b/a Beam Concrete Construction, Inc.
rdelozier@drmlawyers.com
jkoester@drmlawyers.com
Abarreneche@drmlawyers.com
D. Randall Montgomery
State Bar No. 14289700
Ashley A. Smith
State Bar No. 24049385
D. Randall Montgomery & Associates, P.L.L.C.
12400 Coit Road, Suite 560
Dallas, TX 75251
P: (214) 292-2600
F: (469) 568-9323
Via E-Mail: sball@unitedfiregroup.com Attorneys for PFC Contracting, Inc.
LAW OFFICE OF SCOTT G. BALL
Scott G. Ball
State Bar No. 01639050
321 North Central Expressway, Suite 230
McKinney, Texas 75071
Direct Line: (214) 307-7953
Cellular: (214) 793-9686
Facsimile: (866) 781-2283
Via E-Mail: Attorneys For Defendant Silva Plumbing, Inc.
slawrence@kelleylawrencelaw.com
david@kelleylawrencelaw.com
Stephen D. Lawrence, Jr.
State Bar No. 24029331
David E. Kelley
State Bar No. 24002395
Kelley & Lawrence PC
4420 W. Vickery Blvd., Ste. 200
Fort Worth, Texas 76107
P: 817-377-0060
P: 817-922-0555
F: 817-377-1120
Via E-Mail: Attorneys For Defendant Classic Stone & Tile,
/maloney@thewillislawgroup.com LLC
PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC 12
MOTION FOR SUMMARY JUDGMENT
Service@Thewillislawgroup.com
lreynolds@thewillislawgroup.com Attorneys for Defendant Overhead Door
Linda L. Maloney Company of Dallas and Overhead Door
State Bar No. 00791166 Company of Fort Worth
Alex Mazero
Kirk D. Willis
State Bar No. 21648500
The Willis Law Group, LLC
1985 Forest Lane
Garland, TX 75042
(214) 736-9433
Via E-Mail: Pderks@Feesmith.com Attorney For Defendant Builder Services Group
Paul A. Derks d/b/a Williams Fireplaces and Gutters
State Bar No. 24033927
Fee, Smith, Sharp & Vitullo, L.L.P.
Three Galleria Tower
13155 Noel Road, Suite 1000
Dallas, TX 75240
972) 934-9100
Via E-Mail:Paciod1(@Nationwide.com Attorney For Defendant
David L. Pacione MLB Landscape & Stoneworks, LLC
State Bar No. 00794414
Law Offices of Lawrence & Martinez
105 Decker Court, Suite 150
Irving, TX 75062-2211
(972) 536-7302
Via E-Mail: malfred@verislaw.net Attorneys For Defendant Envirotec Construction
Michael S. Alfred Services, Inc.
State Bar No. 24014416
VerisLaw, PLLC
6508 Colleyville Blvd., Suite 100
Colleyville, Texas 76034
PH: (817) 678-4121
FX: (512) 717-7230
Via Email:Brian.berger@kaygriffin.com
Brian E. Berger
State Bar No. 24089985
KAY GRIFFIN, PLLC
2110 W. Slaughter Ln, Ste 107-679
Austin, TX 78748
(737) 301-8400
Via Email:Lfielder@Downsstanford.com Attorney For Defendant Metrotex Construction
R. Lynn Fielder Services, LLC
State Bar No. 06971100
Downs & Stanford, P.C.
2001 Bryan St., Suite 4000
Dallas, TX _75201
PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC 13
MOTION FOR SUMMARY JUDGMENT
(214) 748-7900
Via Email: bob@ssjmlaw.com
Via Email: van@ssjmlaw.com
Via Email: deidra( simlaw.com
Robert L. Kaminski
State Bar No. 00784367
Evan A. Johnston
State Bar No. 24084283
Savrick, Schumann, Johnson, McGarr, Kaminski
& Shirley, L.L.P
The Overlook at Gaines Ranch
4330 Gaines Ranch Loop, Suite 150
Austin, Texas 78735
(512) 347-1604
Via Email: Attorney For Defendant Performance Piping,
Keith. harrison@libertymutual.com Ine.
irvingcdmail@libertymutual.com
D. Keith Harrison
State Bar No. 09114000
Law Offices of Gallerson, Holder & Lawrence
8070 Park Lane, Suite 200
Dallas, TX 75231
(972) 580-1249
Via Email: Attorney For Defendant J&E
bgaswirth@canterburylaw.com Commercial Construction, Inc.
kmeclaine@canterbu ylaw.com
mcortimilia@canterburylaw.com
bcobb@canterbu: law.com
Brad W. Gaswirth,
Kaity M. McClaine
CANTERBURY, P.C.
4851 LBJ Freeway, Suite 301
Dallas, Texas 75244
(972) 239-7493 — Telephone
(972) 490-7739 — Facsimile
Via Email: screcelius@cokinoslaw.com Attorney for Defendant Aquatek Systems, Inc.
E. Samuel Crecelius TI
Texas Bar No. 24105757
Cokinos Young
One Galleria Tower
13355 Noel Road, Suite 1375
Dallas, Texas 75240
(T) 817-635-3600
(F) 817-635-3633
Via Email:
CPTarle@TarleLaw.com
gjgraham@tarlelaw.com
PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC 14
MOTION FOR SUMMARY JUDGMENT
njohnson@tarlelaw.com
Cynthia Pertile Tarle
State Bar No. 24060908
Alison J Graham
Nicole Johnson
TARLE LAW, P.C.
4301 Westbank Drive, Bldg. B, Suite 140
Austin, TX 78746
(T) 512-879-3677
(F) 512-306-19133
Via Email: Attorney for R.D. Moorman, Inc.
joseph.gregory@LibertyMutual.com
IrvingCDmail@LibertyMutual.com
Joseph M. Gregory
Texas Bar No. 08436525
Law Offices of Gallerson, Holder & Lawrence
PO Box 7217 (Mailing Address)
London, KY 40742
8070 Park Lane, Suite 200 (Physical Address)
Dallas, TX 75213
Telephone: (972) 580-1249
Via Email:
shall@unitedfiregroup.com
Scott G. Ball, Esq. Attorney for R.D. Moorman, Inc.
Texas Bar No. 01639050
LAW OFFICE OF SCOTT G. BALL
321 N. Central Expressway, Suite 230
McKinney, Texas, 75070
Telephone: (214) 307-7953
Fax: (866) 781-2283
Via Email: Attorney for Stillwater GC, Outdoor Concepts
Steve.snelson@gstexlaw.com LLC, and Texas Masonry Co., LLC.
matthew.rindt@gstexlaw.com
jacy.johnson@gstexlaw.com
Steve Snelson
Matthew Rindt
Jacy Johnson
GERSTLE SNELSON, LLP
4949 Greenville Avenue, Suite 1500
Dallas, TX 75206
Via Email: Co-counsel for Plaintiff Mondara
Chad@jtlaw.com
Charles “Chad” Baruch
Texas Bar No. 01864300
JOHNSON TOBEY BARUCH PC
12377 Merit Drive, Ste. 880
Dallas, TX 75251
Telephone: (214) 741-6260
Fax: (214) 741-6248
PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC 15
MOTION FOR SUMMARY JUDGMENT
Via Email: Attorneys for Cemplex Group Texas, LLC.
ndean@raylaw.com
alaws@raylaw.com
Michael K. Dean
Austin Laws
RAY | PENA | McCHRISTIAN, P.C
101 Summit Avenue, Suite 705
Fort Worth, TX 76102
Telephone: (817) 335-7201
Fax: (817) 335-7335
Via Email: Attorneys for Vent Tech, LLC.
spolak@pandblaw.com
kcook@pandblaw.com
Samuel J. Polak
State Bar No. 00788210
Kevin J. Cook
State Bar No. 04738950
PAYNE & BLANCHARD, L.L.P.
717 N. Harwood Street, Ste. 2880
Dallas, Texas 75201
Telephone: (214) 231-3250
Fax: (214) 220-0439
PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC 16
MOTION FOR SUMMARY JUDGMENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Alan Phillips on behalf of Alan Phillips
Bar No. 24125829
aphillips@tfandw.com
Envelope ID: 81593306
Filing Code Description: Response
Filing Description: PLAINTIFF'S SUR-REPLY TO CEMPLEX MOTION
FOR SUMMARY JUDGMENT
Status as of 11/14/2023 10:18 AM CST
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PLLC
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Preview
FILED 11/13/2023 5:36 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS John Bailey DEPUTY Cause No. DC-20-07653 MONDARA CONDOMINIUMS IN THE DISTRICT COURT OF ASSOCIATION, INC. Plaintiff, v. STILLWATER ABBOTT DEVELOPMENT, LLC, STILLWATER CAPITAL 95" JUDICIAL DISTRICT INVESTMENTS, LLC, STILLWATER ABBOTT MANAGEMENT, LLC, STILLWATER GC, LLC, AND ROBERT C. ELLIOTT, INDIVIDUALLY Defendants. DALLAS COUNTY PLAINTIFF MONDARA CONDOMINIUMS ASSOCIATION, INC.’S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC REPLY TO PLAINTIFF RESPONSE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Plaintiff, Mondara Condominiums Association, Inc. (“Mondara”), and files this, its Sur-Reply to Defendant Cemplex Group Texas, LLC (“Cemplex” or “Movant”) Reply to Mondara’s Response to Cemplex’s Traditional and No-Evidence Motion for Summary Judgment, and in support thereof, respectfully shows the Court as follows: I OBJECTIONS Mondara objects to Cemplex’s new exhibit attached to its Reply to Mondara’s Response to Cemplex’s Traditional and No-Evidence Motion for Summary Judgment (“Cemplex’s Reply”). The introduction of deposition excerpts with Cemplex’s Reply runs afoul of Texas Rule of Civil Procedure 166a(d) requirement that notice of intent to use discovery products is given “at least twenty-one days before hearing if such proofs are to be used to support the summary judgment.” Tex. R. Civ. P. 166a(d). Here, Cemplex PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC MOTION FOR SUMMARY JUDGMENT is attempting to introduce additional arguments and supporting evidence with the Kerry Lee deposition excerpts five days before the hearing. These arguments and excerpts were not included in Cemplex’s Motion for Summary Judgment, and Mondara was not given the twenty-one day notice of intent of their use as required by Rule 166a. The Dallas Court of Appeals has interpreted the deadlines in Rule 166a as implicitly requiring the movant to “serve all summary judgment evidence upon which the movant's motion depends at least twenty-one days prior to the hearing.” Extended Services Program, Inc. v. First Extended Serv. Corp., 601 S.W.2d 469, 470 (Tex. App.—Dallas 1980, writ ref’d n.r.e.). The Court went on to say that Rule 166a’s deadlines “pre-supposed” the non-movant has “at least fourteen days to obtain and to file summary judgment evidence to refute the movant's evidence” and “to hold otherwise would permit the movant to take unfair advantage of the nonmovant.” Id. The Movant is required to obtain leave of Court to file summary judgment evidence within the twenty-one-day deadline. See Tex. R. Civ. P. 166a(c); Luna v. Estate of Rodriguez, 906 S.W.2d 576, 582 (Tex. App.—Austin 1995, no writ). And because summary judgment is a harsh remedy, the twenty-one-day deadline is “strictly construed.” Id. Cemplex has not requested leave of Court to file the deposition excerpts from the Kerry Lee Affidavit. Without leave of Court, Cemplex cannot introduce additional summary judgment evidence within the twenty-one day deadline and so the deposition evidence cannot be considered. PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC MOTION FOR SUMMARY JUDGMENT Il. RESPONSE TO CEMPLEX’S OBJECTIONS A. Response to Objections to the Affidavits of Kerry Lee and Bryan Byrd, the Forensix Report, the Socotec Report, and the Conley/ABBAE Report Kerry Lee’s Affidavit meets all the requirements of Tex. R. Civ. Proc. 166a(c). An expert's affidavit offered to support or oppose a summary judgment motion must include proof of the expert's qualifications. Green v. Brantley, 11 S.W.3d 259, 263 (Tex. App. 1999). Besides demonstrating that the expert witness is qualified to testify, the proponent must show that the expert’s testimony is both relevant to the issues and based on a reliable foundation. Both the affidavits of Kerry Lee and Bryan Byrd contain proof of their expert qualifications. Green v. Brantley, 11 S.W.3d 259, 263 (Tex. App. 1999). Both affidavits contain relevant evidence. Kerry Lee’s includes proof of failure to follow design in a portion of the as-built acoustical soundproofing installations. Lee’s affidavit and report specifically identify Cemplex for its work on the soundproofing assemblies. Byrd’s affidavit specifically calculates the cost of repairing the defectively installed soundproofing assemblies. Failure to follow acoustic design is also supported by the Schoedel affidavit. Whether the failure to follow acoustic design is proven by Lee and/or Schoedel, does not change the repair set out by Lee. Lee’s affidavit contains relevant evidence of a repair. Lee’s affidavit as an expert affidavit is allowed to rely on evidence that is otherwise inadmissible, and specifically may rely on hearsay. In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 (Tex. 2007). Further, the Forensix Report is not hearsay, because it is supported by a Business Records Affidavit. PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC MOTION FOR SUMMARY JUDGMENT Byrd’s report is attached to a properly prepared affidavit indicating the copies are “true and correct” and, thus, is sworn. Coastal Cement Sand Inc. v. First Interstate Credit All., Inc., 956 $.W.2d 562, 567 (Tex. App. 1997). Further, Byrd’s affidavit, as an expert affidavit, is allowed to rely on evidence that is hearsay. In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 (Tex. 2007). The Conley/ABBAE Report, attaching Farnsworth Report and the Supplementary Information, Site Drainage Report from Farnsworth are not hearsay, because they are supported by a Business Records Affidavit. Further, Lee reviewed the information contained in the Conley/ABBAE Report and Farnsworth Reports. Lee’s affidavit as an expert affidavit is allowed to rely on evidence that is hearsay. In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 (Tex. 2007). B. Response to Objections to the Affidavit of Courtney Schoedel, Ms. Schoedel’s CV and Rebuttal Report, and Idibri Documents Courtney Schoedel is both a fact witness regarding the sound isolation system and testing thereof, as well as a properly designated expert regarding the design and testing of sound isolation systems in residential construction. Schoedel is able to speak to the design of the Mondara’s sound isolation system because she had direct involvement with its design as well as knowledge of the field changes made to it. Furthermore, she performed testing in 2017 and 2021, analyzed the results of those tests, and created the report conveying those results. Schoedel was properly designated as an expert along with her areas of expertise and expected topics of testimony. Cemplex had sufficient notice and opportunity to schedule a deposition but failed to do so. PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC MOTION FOR SUMMARY JUDGMENT Schoedel’s affidavit contains proof of her expert qualifications. Green v. Brantley, 11 S.W.3d 259, 263 (Tex. App. 1999). Schoedel’s rebuttal report is attached to a properly prepared affidavit indicating the copies are “true and correct” and, thus, is sworn. Coastal Cement Sand Inc. v. First Interstate Credit All., Inc., 956 S.W.2d 562, 567 (Tex. App. 1997). Further, Schoedel’s affidavit, as an expert affidavit, is allowed to rely on evidence that is hearsay. In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 (Tex. 2007). C. Response to Objections that Certain Exhibits are Irrelevant and Immaterial “Courts have often held that the general objection of both ‘immaterial and irrelevant’ amounts to no objection at all.” Bridges v. City of Richardson, 349 S.W.2d 644, 648 (Tex. App.—Dallas 1961), writ ref'd n.r.e., 163 Tex. 292, 354 S.W.2d 366 (1962). The exhibits offered by Plaintiff in response to Cemplex’s Motion for Summary Judgment are relevant because they go to show more than a scintilla of evidence supporting Plaintiff's allegations that Cemplex has injured Plaintiff. Cemplex installed the sound mat and lightweight concrete which constitutes major components of the sound isolation system. The Forensix Report, the Byrd Report, the Conley / ABBAE Report, the Schoedel Report, and Idibri Reports all support the conclusion that Cemplex is responsible for Plaintiff's injury and when that was first discovered. Furthermore, statements made in the Affidavits are all supported by personal knowledge, expert opinion, reports, or documents, and directly go to the issues in this case. Il. RESPONSE TO CEMPLEX’S ARGUMENTS A. Mondara did not Produce the Stillwater Documents and Rule 193.7 does not Apply Merriam-Webster defines “produce” as “to cause to have existence or to happen,” “to give being, form, or shape to, un to compose, create, or bring out by intellectual or PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC MOTION FOR SUMMARY JUDGMENT physical effort.” Mondara did not create, giving being to, or cause to exist, the documents produced by Stillwater that Cemplex is now relying on. Simply providing a storage location and bates labeling is not the same as producing the documents. Mondara’s attachment of bates labels on the Stillwater documents in not, and was never intended to be, an authentication of the documents. Texas Rule of Civil Procedure 193.7 is very specific about what documents and against whom self-authentication applies. Rule 193.7 says, “a party's production of a document in response to written discovery authenticates the document for use against that party.” Tex. R. Civ. P. 193.7. Mondara did not produce the Stillwater documents, from which Cemplex’s Exhibits B and C come from, and under the plain language of Rule 193.7 those documents are only authenticated against Stillwater because they’re the party that produced the documents in response to a written discovery request. Cemplex’s interpretation of Rule 193.7 would have a chilling effect on multi-party litigation if hosting and labeling documents produced by other parties for the convenience of all parties is enough to authenticate the documents against the hosting party. Cemplex also argues that Mondara only had ten days to object to its use in their Motion for Summary Judgment under Texas Rule of Civil Procedure 193.7, that “Rule 193.7 contains no exception prohibiting authentication of documents based on prior production from another party.” See Cemplex’s Reply p. 6. Rule 193.7 however only applies to authentication of documents from the producing party, and only requires a producing party to object, “within ten days or a longer or shorter time ordered by the court, after the producing party has notice that the document will be used.” Tex. R. Civ. P. 193.7. Mondara was not the producing party of Exhibits B and C, and thus not limited to the ten-day objection deadline. PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC MOTION FOR SUMMARY JUDGMENT Lastly, Cemplex’s interpretation of the ten-day objection deadline conflicts with the deadlines set out in Texas Rule of Civil Procedure 166a. Rule 166a says that adverse parties must be given at least 21-days’ notice of the use of discovery before the hearing for the Summary Judgment, and the adverse party has until seven days before the hearing to response. See Tex. R. Civ. P. 166a(d). Assuming the best-case scenario, that means the adverse party has 14 days to object to the use of discovery, in addition to its response. Cemplex’s interpretation would require Mondara to have filed its objections within 10 days, four days before their response was due. In the worse-case scenario, it could be weeks or even months before Mondara’s response would be due, since the deadlines for notice and responses are all based on the summary judgment hearing date. Texas Rule of Civil Procedure 1 says the rules should be given a “liberal construction” so that “a just, fair, equitable and impartial adjudication” may be achieved “at the least expense both to the litigants and to the state as may be practicable.” Tex. R. Civ. P. 1. Cemplex’s interpretation would require multiple filings, potentially multiple hearings, all requiring unnecessary time and expense for both the Court and adverse parties. Mondara’s interpretation would apply uniformly to all motion for summary judgment responses, minimizing confusion, the Court’s and party’s time, and expense. IV. ARGUMENT AND AUTHORITIES The resolution of discovery of a legal injury sufficient to cause accrual of a cause of action is generally a fact question rather than as a matter of law. See LaTouche v. Perry Homes, LLC, 606 S.W.3d 878, 884 (Tex. App.—Houston [14th Dist.] 2020, pet. denied). Cemplex must prove conclusively that the cause of action accrued. Kazmir v. Suburban Homes Realty, 824 S.W.2d 239, 242-43 (Tex. App.—Texarkana 1992, writ denied) (citing Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983)); Swilley v. Hughes, 488 S.W.2d 64, 67 PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC MOTION FOR SUMMARY JUDGMENT (Tex.1972); Valdez v. Charles Orsinger Buick Co., 715 S.W.2d 126, 128 (Tex.App.—Texarkana 1986, no writ). Cemplex has no admissible evidence to support its motion. It is undisputed that the emails purportedly supporting the motion were not created by Mondara, but only bates labeled after being produced as part of this lawsuit by another party in the case. Using unproved emails from a third party as “authenticated” by Mondara does violence to the entire concept of authentication. Further, the emails offered by Cemplex are not conclusive. They mention unidentified “sound issues” to be discussed. The communications offered by Cemplex go so far as to indicate that the issue was not an issue but claim that construction was in compliance with design requirements. The evidence produced by Mondara is that the installation, when analyzed by a trained acoustic professional, was not in compliance with design. Ch ilds v. Haussecker, 974 S.W.2d 31, 45 (Tex. 1998), cited by Cemplex, supports the foregoing as grounds to deny this Motion. In Childs, the court found a fact question existed regarding whether the party should have sued over silicosis even after 20 years of doctor’s visits, coughing up blood, and silicosis being found in fellow workers, when medical experts repeatedly rejected his suspicions that his conditions were work related. The court found that a fact question existed whether he knew or should have known earlier. Likewise, it cannot be conclusive that Mondara knew or should have known that there was a deficient installation of the acoustic design when the evidence is the professionals were telling Plaintiff otherwise. That is particularly so in a specialized and complex area like acoustics. As shown by Mondara’s evidence acoustics is a specialized area requiring specialized training to be able to evaluate acoustic issues. See Exhibit I at 3. Lay persons PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC MOTION FOR SUMMARY JUDGMENT who own condominium units are not expected to possess master’s degrees in acoustic engineering or to recognize whether an acoustic design has been properly installed in accordance with design drawings or not. Because of the specialization required, it cannot be “conclusively established” that lay persons without specialized training in interpreting drawings or evaluating acoustic installations should have discovered a legal injury. In addition, Cemplex argues that limitations began running before construction was even complete, citing to Lambert v. Wansbrough. See Cemplex Reply at p. 7. Lambert is distinguishable from the facts in this case. Lambert v. Wansbrough, 783 S.W.2d 5 (Tex. App. — Dallas 1989, writ denied). In Lambert a contractor installed the roof for the owner and the defect in performance was discovered after the installation was fully completed. The contractor made repairs and made assurances that the issue was resolved. The owner experienced repeated subsequent leaks and called contractor up to ten times to return for correction before ultimately hiring another contractor to replace the roof. The owner then did not sue for six years. Limitations not being delayed by the promise of remedial action is different from work being performed as part of the original obligation to install in a good and workmanlike manner. Vv. CONCLUSION Cemplex’s objections should be overruled and all of Mondara’s evidence should be found to satisfy the requirement of establishing more than a scintilla of evidence in support of its causes of action. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff Mondara Condominiums Association, Inc. respectfully prays that Defendant’s objections be overruled in their PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC MOTION FOR SUMMARY JUDGMENT entirety, that Plaintiff’s objections be sustained, that the Court deny Cemplex’s Motion for Traditional and No Evidence Summary Judgment, and that Plaintiff have all other relief, at law or in equity, to which it is justly entitled. Respectfully submitted, THOMAS, FELDMAN & WILSHUSEN, L.L.P. By: [s/ Alan R. Phillips FRED D. WILSHUSEN State Bar No. 21665590 Email: fwilshusen@tfandw.com MISTY H. GUTIERREZ State Bar No. 24053616 Email: mgutierrez@tfandw.com ALAN R. PHILLIPS State Bar No. 24125829 Email: aphillips@tfandw.com Merit Tower 12222 Merit Drive, Suite 1450 Dallas, TX 75251-3297 Telephone: (214) 369-3008 Telecopier: (214) 369-8393 COUNSEL FOR PLAINTIFF MONDARA CONDOMINIUMS ASSOCIATION, INC. PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC 10 MOTION FOR SUMMARY JUDGMENT CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document has been served upon all counsel of record on the 13th day of November 2023, in accordance with Rule 21a of the Texas Rules of Civil Procedure /s/ Alan R. Phillip: Alan R. Phillips Via E-Mail: Attorney For Defendants bwolf@wolf-law.com Stillwater Abbott Development, LLC, Stillwater ‘henderson@wolf-law.com Capital Investments, LLC, Stillwater Abbott clarke@wolf-law.com Management, LLC, Stillwater GC, LLC, Robert William “Bill” L. Wolf C. Elliott, Individually, Aaron Sherman a/k/a State Bar No. 21854500 Robert A. Sherman, and Richard Coady Wolf & Henderson, P.C. 4309 Irving Ave., Suite 200 Dallas, TX 75219 (214) 750-1395 Via Email: Montgomery Capital Advisers, LLC and Thomas bryan.wick@wickphillips.com A. Montgomery, aul. elkins@wi ickphillips.com Bryan J. Wick Paul T. Elkins WICK PHILLIPS GOULD & MARTIN, LLP 3131 McKinney Avenue, Suite 500 Dallas, Texas 75204 Telephone: 214.692.6200 Fax: 214.692.6255 Via E-Mail. Attorneys For Defendants Van@Shawlaw.net The Baumann Family Limited Partnership, eau@Shawlaw.net Timothy S. Baumann, The King Family Limited David@Shawlaw.ne: Partnership, Steven R. King, Savannah Evan Lane (Van) Shaw Developers of Texas, LLC and Savannah State Bar No. 18140500 Developers of Texas Urban, LLC Jeremy B. (Beau) Powell State Bar No. 24099163 David J. Welch State Bar No. 24098593 Law Offices of Van Shaw 2723 Fairmount Dallas, TX 75201 P: (214) 754-7110 F: (214) 754-7115 PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC 11 MOTION FOR SUMMARY JUDGMENT Via E-Mail: Attorneys For Defendants Timothy S. Baumann, cottsmithlawoffice@gmail.com Steven R. King, Savannah Developers of Texas, Scott Smith LLC and Savannah Developers of Texas Urban, State Bar No. 18613220 LLCO Smith, Smith & Smith, L.L.P. 310 W. College Street Terrell, TX 75160 P: (214) 734-9123 F: (972) 563-2705 Via E-Mail: Attorneys For Defendant Kirk Rmontgomery@drmlawyers.com Concrete Construction, Inc. Asmith@drmlawyers.com d/b/a Beam Concrete Construction, Inc. rdelozier@drmlawyers.com jkoester@drmlawyers.com Abarreneche@drmlawyers.com D. Randall Montgomery State Bar No. 14289700 Ashley A. Smith State Bar No. 24049385 D. Randall Montgomery & Associates, P.L.L.C. 12400 Coit Road, Suite 560 Dallas, TX 75251 P: (214) 292-2600 F: (469) 568-9323 Via E-Mail: sball@unitedfiregroup.com Attorneys for PFC Contracting, Inc. LAW OFFICE OF SCOTT G. BALL Scott G. Ball State Bar No. 01639050 321 North Central Expressway, Suite 230 McKinney, Texas 75071 Direct Line: (214) 307-7953 Cellular: (214) 793-9686 Facsimile: (866) 781-2283 Via E-Mail: Attorneys For Defendant Silva Plumbing, Inc. slawrence@kelleylawrencelaw.com david@kelleylawrencelaw.com Stephen D. Lawrence, Jr. State Bar No. 24029331 David E. Kelley State Bar No. 24002395 Kelley & Lawrence PC 4420 W. Vickery Blvd., Ste. 200 Fort Worth, Texas 76107 P: 817-377-0060 P: 817-922-0555 F: 817-377-1120 Via E-Mail: Attorneys For Defendant Classic Stone & Tile, /maloney@thewillislawgroup.com LLC PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC 12 MOTION FOR SUMMARY JUDGMENT Service@Thewillislawgroup.com lreynolds@thewillislawgroup.com Attorneys for Defendant Overhead Door Linda L. Maloney Company of Dallas and Overhead Door State Bar No. 00791166 Company of Fort Worth Alex Mazero Kirk D. Willis State Bar No. 21648500 The Willis Law Group, LLC 1985 Forest Lane Garland, TX 75042 (214) 736-9433 Via E-Mail: Pderks@Feesmith.com Attorney For Defendant Builder Services Group Paul A. Derks d/b/a Williams Fireplaces and Gutters State Bar No. 24033927 Fee, Smith, Sharp & Vitullo, L.L.P. Three Galleria Tower 13155 Noel Road, Suite 1000 Dallas, TX 75240 972) 934-9100 Via E-Mail:Paciod1(@Nationwide.com Attorney For Defendant David L. Pacione MLB Landscape & Stoneworks, LLC State Bar No. 00794414 Law Offices of Lawrence & Martinez 105 Decker Court, Suite 150 Irving, TX 75062-2211 (972) 536-7302 Via E-Mail: malfred@verislaw.net Attorneys For Defendant Envirotec Construction Michael S. Alfred Services, Inc. State Bar No. 24014416 VerisLaw, PLLC 6508 Colleyville Blvd., Suite 100 Colleyville, Texas 76034 PH: (817) 678-4121 FX: (512) 717-7230 Via Email:Brian.berger@kaygriffin.com Brian E. Berger State Bar No. 24089985 KAY GRIFFIN, PLLC 2110 W. Slaughter Ln, Ste 107-679 Austin, TX 78748 (737) 301-8400 Via Email:Lfielder@Downsstanford.com Attorney For Defendant Metrotex Construction R. Lynn Fielder Services, LLC State Bar No. 06971100 Downs & Stanford, P.C. 2001 Bryan St., Suite 4000 Dallas, TX _75201 PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC 13 MOTION FOR SUMMARY JUDGMENT (214) 748-7900 Via Email: bob@ssjmlaw.com Via Email: van@ssjmlaw.com Via Email: deidra( simlaw.com Robert L. Kaminski State Bar No. 00784367 Evan A. Johnston State Bar No. 24084283 Savrick, Schumann, Johnson, McGarr, Kaminski & Shirley, L.L.P The Overlook at Gaines Ranch 4330 Gaines Ranch Loop, Suite 150 Austin, Texas 78735 (512) 347-1604 Via Email: Attorney For Defendant Performance Piping, Keith. harrison@libertymutual.com Ine. irvingcdmail@libertymutual.com D. Keith Harrison State Bar No. 09114000 Law Offices of Gallerson, Holder & Lawrence 8070 Park Lane, Suite 200 Dallas, TX 75231 (972) 580-1249 Via Email: Attorney For Defendant J&E bgaswirth@canterburylaw.com Commercial Construction, Inc. kmeclaine@canterbu ylaw.com mcortimilia@canterburylaw.com bcobb@canterbu: law.com Brad W. Gaswirth, Kaity M. McClaine CANTERBURY, P.C. 4851 LBJ Freeway, Suite 301 Dallas, Texas 75244 (972) 239-7493 — Telephone (972) 490-7739 — Facsimile Via Email: screcelius@cokinoslaw.com Attorney for Defendant Aquatek Systems, Inc. E. Samuel Crecelius TI Texas Bar No. 24105757 Cokinos Young One Galleria Tower 13355 Noel Road, Suite 1375 Dallas, Texas 75240 (T) 817-635-3600 (F) 817-635-3633 Via Email: CPTarle@TarleLaw.com gjgraham@tarlelaw.com PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC 14 MOTION FOR SUMMARY JUDGMENT njohnson@tarlelaw.com Cynthia Pertile Tarle State Bar No. 24060908 Alison J Graham Nicole Johnson TARLE LAW, P.C. 4301 Westbank Drive, Bldg. B, Suite 140 Austin, TX 78746 (T) 512-879-3677 (F) 512-306-19133 Via Email: Attorney for R.D. Moorman, Inc. joseph.gregory@LibertyMutual.com IrvingCDmail@LibertyMutual.com Joseph M. Gregory Texas Bar No. 08436525 Law Offices of Gallerson, Holder & Lawrence PO Box 7217 (Mailing Address) London, KY 40742 8070 Park Lane, Suite 200 (Physical Address) Dallas, TX 75213 Telephone: (972) 580-1249 Via Email: shall@unitedfiregroup.com Scott G. Ball, Esq. Attorney for R.D. Moorman, Inc. Texas Bar No. 01639050 LAW OFFICE OF SCOTT G. BALL 321 N. Central Expressway, Suite 230 McKinney, Texas, 75070 Telephone: (214) 307-7953 Fax: (866) 781-2283 Via Email: Attorney for Stillwater GC, Outdoor Concepts Steve.snelson@gstexlaw.com LLC, and Texas Masonry Co., LLC. matthew.rindt@gstexlaw.com jacy.johnson@gstexlaw.com Steve Snelson Matthew Rindt Jacy Johnson GERSTLE SNELSON, LLP 4949 Greenville Avenue, Suite 1500 Dallas, TX 75206 Via Email: Co-counsel for Plaintiff Mondara Chad@jtlaw.com Charles “Chad” Baruch Texas Bar No. 01864300 JOHNSON TOBEY BARUCH PC 12377 Merit Drive, Ste. 880 Dallas, TX 75251 Telephone: (214) 741-6260 Fax: (214) 741-6248 PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC 15 MOTION FOR SUMMARY JUDGMENT Via Email: Attorneys for Cemplex Group Texas, LLC. ndean@raylaw.com alaws@raylaw.com Michael K. Dean Austin Laws RAY | PENA | McCHRISTIAN, P.C 101 Summit Avenue, Suite 705 Fort Worth, TX 76102 Telephone: (817) 335-7201 Fax: (817) 335-7335 Via Email: Attorneys for Vent Tech, LLC. spolak@pandblaw.com kcook@pandblaw.com Samuel J. Polak State Bar No. 00788210 Kevin J. Cook State Bar No. 04738950 PAYNE & BLANCHARD, L.L.P. 717 N. Harwood Street, Ste. 2880 Dallas, Texas 75201 Telephone: (214) 231-3250 Fax: (214) 220-0439 PLAINTIFF'S SUR-REPLY TO DEFENDANT CEMPLEX GROUP TEXAS, LLC 16 MOTION FOR SUMMARY JUDGMENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Alan Phillips on behalf of Alan Phillips Bar No. 24125829 aphillips@tfandw.com Envelope ID: 81593306 Filing Code Description: Response Filing Description: PLAINTIFF'S SUR-REPLY TO CEMPLEX MOTION FOR SUMMARY JUDGMENT Status as of 11/14/2023 10:18 AM CST Associated Case Party: MistyH.Gutierrez Name BarNumber Email TimestampSubmitted Status Craig PHenderson chenderson@wolf-law.com 11/13/2023 5:36:27 PM SENT Leticia Botello leticia@shawlaw.net 11/13/2023 5:36:27 PM SENT Ashley Smith 24049385 asmith@drmlawyers.com 11/13/2023 5:36:27 PM SENT Stewart Kelvin Smith 18685875 ssmith@dawray.com 11/13/2023 5:36:27 PM SENT Linda Lee Maloney 791166 Imaloney@thewillisawgroup.com 11/13/2023 5:36:27 PM SENT David Welch david@shawlaw.net 11/13/2023 5:36:27 PM SENT Evan Lane Shaw 18140500 van@shawlaw.net 11/13/2023 5:36:27 PM SENT Paul Anthony Derks. 24033927 pderks@feesmith.com 11/13/2023 5:36:27 PM SENT Beau Powell beau@shawlaw.net 11/13/2023 5:36:27 PM SENT Cody Hearrell 24118406 cwhearrell@gmail.com 11/13/2023 5:36:27 PM SENT NAINA DOSANI ndosani@tfandw.com 11/13/2023 5:36:27 PM SENT Ainsley Clarke aclarke@wolf-law.com 11/13/2023 5:36:27 PM SENT Alexander Mazero 24106967 alex.mazero@ryanlawyers.com 11/13/2023 5:36:27 PM SENT Amy Lorenz alorenz@popehardwicke.com 11/13/2023 5:36:27 PM SENT Evan Johnston evan@ssjmlaw.com 11/13/2023 5:36:27 PM SENT Robert Kaminski bob@ssjmlaw.com 11/13/2023 5:36:27 PM SENT Diedra Clark deidra@ssjmlaw.com 11/13/2023 5:36:27 PM SENT CD IrvingCD Mail IrvingCDMail@LibertyMutual.com 11/13/2023 5:36:27 PM SENT RYAN HARRISON RHARRISON@COKINOSLAW.COM 11/13/2023 5:36:27 PM SENT Thomas Stauch tstauch@ns-law.net 11/13/2023 5:36:27 PM SENT Alyssa Barreneche abarreneche@drmlawyers.com 11/13/2023 5:36:27 PM SENT William L.Wolf bwolf@wolf-law.com 11/13/2023 5:36:27 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Alan Phillips on behalf of Alan Phillips Bar No. 24125829 aphillips@tfandw.com Envelope ID: 81593306 Filing Code Description: Response Filing Description: PLAINTIFF'S SUR-REPLY TO CEMPLEX MOTION FOR SUMMARY JUDGMENT Status as of 11/14/2023 10:18 AM CST Associated Case Party: MistyH.Gutierrez William L.Wolf bwolf@wolf-law.com 11/13/2023 5:36:27 PM SENT APRIL SUMNER APRIL@SHAWLAW.NET 11/13/2023 5:36:27 PM SENT SCOTT SMITH ATTORNEYS@SMITHLAWTEXAS.COM 11/13/2023 5:36:27 PM ERROR SCOTT SMITH SMITHLAWFIRM@AOL.COM 11/13/2023 5:36:27 PM ERROR SCOTT SMTH THESMITHSLAWOFC@AOL.COM 11/13/2023 5:36:27 PM ERROR FRED DWILSHUSEN JWILSHUSEN@TFANDW.COM 11/13/2023 5:36:27 PM ERROR MICHEAL ALFRED MMANOR@HALLETTPERRIN.COM 11/13/2023 5:36:27 PM ERROR H. DUSTIN FILLMORE DFILLMORE@NS-LAW.NET 11/13/2023 5:36:27 PM ERROR Stacey Dosmann sdosmann@unitedfiregroup.com 11/13/2023 5:36:27 PM SENT Associated Case Party: PERFORMANCE PIPING, INC. Name BarNumber Email TimestampSubmitted | Status D. Keith Harrison keith. harrison@libertymutual.com 11/13/2023 5:36:27 PM | SENT Associated Case Party: MONDARA CONDOMINIUMS ASSOCIATION, INC Name BarNumber Email TimestampSubmitted Status Fred D.Wilshusen fwilshusen@tfandw.com 11/13/2023 5:36:27 PM SENT Misty H.Gutierrez mgutierrez@tfandw.com 11/13/2023 5:36:27 PM SENT Chad Baruch chad@jtlaw.com 11/13/2023 5:36:27 PM SENT Jacqueline Jaramillo jacqueline@jtlaw.com 11/13/2023 5:36:27 PM SENT TFW Court Admin tfwcourtadmin@tfandw.com 11/13/2023 5:36:27 PM SENT Alan R.Phillips aphillips@tfandw.com 11/13/2023 5:36:27 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Alan Phillips on behalf of Alan Phillips Bar No. 24125829 aphillips@tfandw.com Envelope ID: 81593306 Filing Code Description: Response Filing Description: PLAINTIFF'S SUR-REPLY TO CEMPLEX MOTION FOR SUMMARY JUDGMENT Status as of 11/14/2023 10:18 AM CST Associated Case Party: STILLWATER GC, LLC Name BarNumber Email TimestampSubmitted Status Steve Snelson steve.snelson@gstexlaw.com 11/13/2023 5:36:27 PM SENT Matthew Rindt matthew.rindt@gstexlaw.com 11/13/2023 5:36:27 PM SENT Jacy Johnson jacy.johnson@gstexlaw.com 11/13/2023 5:36:27 PM SENT Melissa Lientz-Green melissa.lientz-green@gstexlaw.com 11/13/2023 5:36:27 PM SENT Associated Case Party: KIRK CONCRETE CONSTRUCTION, INC. Name BarNumber Email TimestampSubmitted Status Randy Montgomery Rmontgomery@drmlawyers.com 11/13/2023 5:36:27 PM SENT Renay Delozier rdelozier@drmlawyers.com 11/13/2023 5:36:27 PM SENT Jill Koester jkoester@drmlawyers.com 11/13/2023 5:36:27 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Karin Alonzo kalonzo@dallascourts.org 11/13/2023 5:36:27 PM SENT Linda Maloney service@thewillislawgroup.com 11/13/2023 5:36:27 PM SENT Brian Berger Brian.Berger@kaygriffin.com 11/13/2023 5:36:27 PM SENT Thomas Stauch tstauch@ns-law.net 11/13/2023 5:36:27 PM SENT Calise Perry calise.perry@gstexlaw.com 11/13/2023 5:36:27 PM SENT Michael Alfred malfred@verislaw.net 11/13/2023 5:36:27 PM SENT Scott Smith scottsmithlawoffice@gmail.com 11/13/2023 5:36:27 PM SENT Stephen DLawrence slawrence@kelleylawrencelaw.com 11/13/2023 5:36:27 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Alan Phillips on behalf of Alan Phillips Bar No. 24125829 aphillips@tfandw.com Envelope ID: 81593306 Filing Code Description: Response Filing Description: PLAINTIFF'S SUR-REPLY TO CEMPLEX MOTION FOR SUMMARY JUDGMENT Status as of 11/14/2023 10:18 AM CST Case Contacts Stephen DLawrence slawrence@kelleylawrencelaw.com 11/13/2023 5:36:27 PM | SENT Stephanie Merck stephaniem@kelleylawrencelaw.com 11/13/2023 5:36:27 PM | SENT Associated Case Party: MONTGOMERY CAPITAL ADVISERS LLC Name BarNumber | Email TimestampSubmitted Status Paul T.Elkins paul.elkins@wickphillips.com 11/13/2023 5:36:27 PM SENT Bryan J.Wick bryan.wick@wickphillips.com 11/13/2023 5:36:27 PM SENT McKenzie Farley McKenzie.Farley@WickPhillips.com 11/13/2023 5:36:27 PM SENT Associated Case Party: METROTEX CONSTRUCTION SERVICES Name BarNumber | Email TimestampSubmitted Status Robert Louis Kaminski 784367 bob@ssjmlaw.com 11/13/2023 5:36:27 PM SENT Deidra Clark deidra@ssjmlaw.com 11/13/2023 5:36:27 PM SENT Evan Johnston evan@ssjmlaw.com 11/13/2023 5:36:27 PM SENT Sarah Wade sarah@ssjmlaw.com 11/13/2023 5:36:27 PM SENT Associated Case Party: BUILDER SERVICES GROUP, INC. Name BarNumber | Email TimestampSubmitted Status Arti Jariwala ajariwala@feesmith.com 11/13/2023 5:36:27 PM SENT Paul Derks pderks@feesmith.com 11/13/2023 5:36:27 PM SENT Angelina Chairez achairez@feesmith.com 11/13/2023 5:36:27 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Alan Phillips on behalf of Alan Phillips Bar No. 24125829 aphillips@tfandw.com Envelope ID: 81593306 Filing Code Description: Response Filing Description: PLAINTIFF'S SUR-REPLY TO CEMPLEX MOTION FOR SUMMARY JUDGMENT Status as of 11/14/2023 10:18 AM CST Associated Case Party: R.D. MOORMAN, INCORPORATED Name BarNumber | Email TimestampSubmitted | Status Joseph MGregory Joseph.Gregory@libertymutual.com 11/13/2023 5:36:27 PM | SENT Associated Case Party: STOCKER HOESTEREY MONTENEGRO ARCHITECTS PLLC Name BarNumber | Email TimestampSubmitted | Status Chaunte Busby cbusby@cobbmartinez.com | 11/13/2023 5:36:27 PM | SENT Associated Case Party: RUMSEY CONSTRUCTION, LLC Name BarNumber | Email TimestampSubmitted Status Olga Barrio obarrio@unitedfiregroup.com 11/13/2023 5:36:27 PM SENT Associated Case Party: TIMOTHYS.BAUMANN Name BarNumber | Email TimestampSubmitted Status RAE DIAZ RAEANNA@SHAWLAW.NET 11/13/2023 5:36:27 PM SENT Associated Case Party: AQUATEK SYSTEMS, INC. Name BarNumber | Email TimestampSubmitted Status Joan Burnett jburnett@tarlelaw.com 11/13/2023 5:36:27 PM SENT Samuel Crecelius III screcelius@cokinoslaw.com 11/13/2023 5:36:27 PM SENT Nicole Johnson NJohnson@TarleLaw.com 11/13/2023 5:36:27 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Alan Phillips on behalf of Alan Phillips Bar No. 24125829 aphillips@tfandw.com Envelope ID: 81593306 Filing Code Description: Response Filing Description: PLAINTIFF'S SUR-REPLY TO CEMPLEX MOTION FOR SUMMARY JUDGMENT Status as of 11/14/2023 10:18 AM CST Associated Case Party: AQUATEK SYSTEMS, INC. Nicole Johnson NJohnson@TarleLaw.com 11/13/2023 5:36:27 PM SENT Kathleen Knuth kknuth@cokinoslaw.com 11/13/2023 5:36:27 PM SENT Cynthia PertileTarle CPTarle@tarlelaw.com 11/13/2023 5:36:27 PM SENT Erica Martinez emartinez@tarlelaw.com 11/13/2023 5:36:27 PM SENT Christina Rodriguez CRodriguez@TarleLaw.com 11/13/2023 5:36:27 PM SENT Rohit Dhar rdhar@tarlelaw.com 11/13/2023 5:36:27 PM SENT Associated Case Party: OUTDOOR CONCEPTS, LLC Name BarNumber | Email TimestampSubmitted Status MATTHEW RINDT MATTHEW.RINDT@GSTEXLAW.COM 11/13/2023 5:36:27 PM SENT JACY JOHNSON JACY.JOHNSON@GSTEXLAW.COM 11/13/2023 5:36:27 PM SENT MATTHEW RINDT MATTHEW.RINDT@GSTEXLAW.COM 11/13/2023 5:36:27 PM SENT Associated Case Party: TEXAS MASONRY COMPANY, LLC Name BarNumber | Email TimestampSubmitted Status MATTHEW RINDT MATTHEW.RINDT@GSTEXLAW.COM 11/13/2023 5:36:27 PM SENT JACY JOHNSON JACY.JOHNSON@GSTEXLAW.COM 11/13/2023 5:36:27 PM SENT MATTHEW RINDT MATTHEW.RINDT@GSTEXLAW.COM 11/13/2023 5:36:27 PM SENT Associated Case Party: CEMPLEX GROUP TEXAS, LLC Name BarNumber Email TimestampSubmitted | Status Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Alan Phillips on behalf of Alan Phillips Bar No. 24125829 aphillips@tfandw.com Envelope ID: 81593306 Filing Code Description: Response Filing Description: PLAINTIFF'S SUR-REPLY TO CEMPLEX MOTION FOR SUMMARY JUDGMENT Status as of 11/14/2023 10:18 AM CST Associated Case Party: CEMPLEX GROUP TEXAS, LLC Name BarNumber | Email TimestampSubmitted Status Kerry Morris kmorris@raylaw.com 11/13/2023 5:36:27 PM SENT Michael K.Dean mdean@raylaw.com 11/13/2023 5:36:27 PM SENT Veronica Perez vperez@raylaw.com 11/13/2023 5:36:27 PM SENT Austin Laws alaws@raylaw.com 11/13/2023 5:36:27 PM SENT Associated Case Party: J&E COMMERCIAL CONSTRUCTION, INC. Name BarNumber | Email TimestampSubmitted Status DaNae Couch DCouch@CanterburyLaw.Com 11/13/2023 5:36:27 PM SENT Brad Gaswirth bgaswirth@canterburylaw.com 11/13/2023 5:36:27 PM SENT Becky Cobb bcobb@canterburylaw.com 11/13/2023 5:36:27 PM SENT Mary Lou Cortimilia mcortimilia@canterburylaw.com 11/13/2023 5:36:27 PM SENT Katy McClaine kmeclaine@canterburylaw.com 11/13/2023 5:36:27 PM SENT Associated Case Party: PFC CONTRACTING, INC. Name BarNumber | Email TimestampSubmitted | Status Scott G. Ball sball@unitedfiregroup.com 11/13/2023 5:36:27 PM | SENT Luz KLoree lloree@unitedfiregroup.com 11/13/2023 5:36:27 PM | SENT