Preview
FILED
3/4/2024 11:05 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Jamilyah Davenport DEPUTY
CAUSE NO. DC-22- 1 7322
§ IN THE DISTRICT COURT OF
§
ARTHUR BERWALD and ROSALEE M. §
BERWALD, §
Plaintiffs, g
v. DALLAS COUNTY, TEXAS
g
§
§
ATHENA CONDOMINIUM CO-OWNERS
ASSOCIATION, INTERCITY
INVESTMENTS, INC., Individually and/or 116th DISTRICT COURT
d/b/a ICI MANAGEMENT COMPANY
and/or INTERCITY MAINTENANCE, INC.,
Defendants.
DEFENDANT INTERCITY INVESTMENTS, INC.’S REPLY
IN FURTHER SUPPORT OF ITS
MOTION FOR SUMMARY JUDGMENT
Defendant Intercity Investments Inc. (“Intercity”), files this Reply in further support of its
Motion for Summary Judgment, pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure,
seeking dismissal of Plaintiffs’ Amended Petition, as follows:
ARGUMENT
I. Plaintiffs Are Not Creditor Beneficiaries to the Condominium Management Agreement
Plaintiffs claim, in opposition, that they qualify as creditor beneficiaries and are thus third-
party beneficiaries to the Condominium Management Agreement (CMA”) between Athena and
Intercity. They are mistaken.
155831045.1
“To enforce a contract in favor of a third-party beneficiary, the court must find a clear
intent to contract for a direct benefit to the third party.” Haile v. Disc. Shuttle, Ina, 2000 WL
1035752, at *2 (Tex. App—Dallas 2000)(citing MJR Corp. v. B&B Vending Co., 760 S.W.2d 4,
11 (Tex. App—Dallas 1988). “Further, the obligation must be clearly and fully spelled out 0r
enforcement will be denied.” Id. (Emphasis in Original).
There are two types of third-party beneficiaries: donees and creditors. “One is a donee
beneficiary if the performance promised will, when rendered, come to him as a pure donation.”
MCI Telecommunications Corp. v. Texas Utilities Elec. C0., 995 S.W.2d 647, 651 (Tex. 1999).
“If, on the other hand, that performance will come to him in satisfaction of a legal duty owed to
him by the promisee, he is a creditor beneficiary.” Id. “This duty may be an indebtedness,
contractual obligation, or other legally enforceable commitment owed to the third party.” Id.
“The very essence of the position as so-called ‘creditor beneficiary’ requires not only that
the bargain-seeking party intend to confer a benefit upon the third party; he must further intend
that the third party have the right to enforce the agreement.” MJR Corp, 760 S.W.2d at 16 (Tex.
App .—Da11as 1988)(Emphasis in Original). “Unless both intents were exhibited on his behalf, the
third party remains no more than an incidental beneficiary.” Id.
In opposition, Plaintiffs claim they are creditor beneficiaries under the theory that
Intercity’s performance of its duties pursuant to the CMA was necessary to satisfy Athena’s
contractual obligations to the Plaintiffs, contained in the Condominium Declaration and Bylaws.
’
See Plaintzfis Opposition, 1W 7
— 8. Even if taken as true, Plaintiffs have only satisfied the first
element—that it was envisioned that Plaintiffs would incidentally benefit from performance of the
agreement—while failing to assert that Athena and Intercity intended the Plaintiffs to have the
1558310451
right to enforce the agreement. Since Plaintiffs neither alleged, nor does the CMA contain any
provision granting Plaintiffs the right to enforce the agreement, Plaintiffs are merely incidental
beneficiaries. As a result, Plaintiffs claims must be dismissed.
II. Lemus Remains Controlling Authority Over the Disposition of Plaintiffs’ Claims Against
Intercity
As noted in Intercity’s moving papers, the holding in Lemus v. Cookscreek 255 LLC, 2018
WL 6259480 at *1 (Texas. App—Dallas 2018) acts as binding precedent since that case dealt with
precisely the question presented here, namely, whether a building tenant can claim third-party
beneficiary status to a property management agreement that does not expressly grant the tenant
rights as a claimant under the agreement.
Similarly to the present matter, the Lemus plaintiff-tenants asserted they were creditor
beneficiaries to the property management agreement under the theory the owner had a legal duty
to the plaintiffs to install window locks, a duty which was satisfied by the property manager’s
performance of the agreement. See Lemus at *20. Nonetheless, without more, the Court held they
were not third-party beneficiaries, reasoning, “a third party may only enforce a contract when the
contracting parties themselves intend to secure some benefit for the third party and entered into
the contract directly for the third party's benefit.” Id. It is therefore respectfully requested that the
Court follow controlling precedent and dismiss Plaintiffs’ claims against Intercity.1
Plaintiffs, notably, did not attempt to distinguish Lemus in their opposition papers.
1
155831045.1
CONCLUSION AND PRAYER
For the above-stated reasons, Defendant, Intercity Investments Inc., prays that this Court
grant the within motion and dismiss Plaintiffs’ Amended Petition with prejudice, and grant any
and all further relief to which it may be justly entitled at law or in equity.
FOX ROTHSCHILD LLP
Brendan B. Gilmartin Esq.
Dan Madden Esq.
Saint Ann Court
2501 North Harwood Street
Suite 1800
Dallas, TX 75201
Tel: 972.991.0889
Fax: 972.404.0516
b2ilmartin@foxrothschildcom
Attorneys for Defendant
Intercity Investments, Inc.
Texas Bar No. 24126862
Texas Bar No. 24002513
155831045.1
CERTIFICATE OF SERVICE
I hereby certify that on March 4, 2024, a true and correct copy of the above and foregoing
document was served on all counsel of record, in accordance with the Texas Rules of Civil
Procedure:
Athena Condominium Co-Owners Association, by and through their attorneys, Hermes Law, P.C.,
2250 Pacific Avenue, Suite 700, Dallas, Texas 75226
Plaintiffs Arthur Berwald and Rosalee M. Berwald, by and through their attorney, Christopher A.
Payne PC, 9330 LBJ Freeway, Suite 1165, Dallas, Texas 75243
¢flu
Brendan B. Gilmartin Esq.
1558310451
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.
Tiffany Massey on behalf of Brendan Gilmartin
Bar No. 24126862
tmassey@foxrothschild.com
Envelope ID: 85149309
Filing Code Description: Response
Filing Description: RESPONSE TO MOTION FOR SUMMARY
JUDGMENT
Status as of 3/4/2024 3:07 PM CST
Associated Case Party: ARTHUR BERWALD
Name BarNumber Email TimestampSubmitted Status
Christina Alstrin Christina.alstrin@payne-alstrin.com 3/4/2024 11:05:31 AM SENT
CHRISTOPHER APAYNE CHRIS.PAYNE@PAYNE-ALSTRIN.COM 3/4/2024 11:05:31 AM SENT
Allie Payne allie@payne-alstrin.com 3/4/2024 11:05:31 AM SENT
Associated Case Party: ATHENA CONDOMINIUM CO-OWNERS ASSOCIATION
Name BarNumber Email TimestampSubmitted Status
Leslie Davis Ieslie.davis@hermes-Iaw.com 3/4/2024 11:05:31 AM SENT
Megan Simmons megan@hermes-law.com 3/4/2024 11:05:31 AM SENT
Hermes Law efiling@hermes-law.com 3/4/2024 11:05:31 AM SENT
Aisha Khan aisha@hermes-law.com 3/4/2024 11:05:31 AM SENT
Associated Case Party: INTERCITY INVESTMENTS, INC. Individually, and/or d/b/a
ICI MANAGEMENT COMPANY INTERCITY MAINTENANCE
Name BarNumber Email Timestam pSubmitted Status
Daniel Madden Dmadden@foxrothschild.com 3/4/202411:05:31 AM SENT
Daniel Joseph Madden 24002513 dmadden@foxrothschild.com 3/4/202411:05:31 AM SENT
Brendan Gilmartin bgilmartin@foxrothschild.com 3/4/202411:05:31 AM SENT
Case Contacts
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.
Tiffany Massey on behalf of Brendan Gilmartin
Bar No. 24126862
tmassey@foxrothschild.com
Envelope ID: 85149309
Filing Code Description: Response
Filing Description: RESPONSE TO MOTION FOR SUMMARY
JUDGMENT
Status as of 3/4/2024 3:07 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Christopher APayne chris.payne@payne-alstrin.com 3/4/2024 11:05:31 AM SENT
Christopher APayne cpayne@cappc.com 3/4/2024 11:05:31 AM SENT
Daniel Jones djones@danielbjones.com 3/4/2024 11:05:31 AM SENT
Allie Payne Allie@cappc.com 3/4/2024 11:05:31 AM SENT
Preview
FILED 3/4/2024 11:05 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Jamilyah Davenport DEPUTY CAUSE NO. DC-22- 1 7322 § IN THE DISTRICT COURT OF § ARTHUR BERWALD and ROSALEE M. § BERWALD, § Plaintiffs, g v. DALLAS COUNTY, TEXAS g § § ATHENA CONDOMINIUM CO-OWNERS ASSOCIATION, INTERCITY INVESTMENTS, INC., Individually and/or 116th DISTRICT COURT d/b/a ICI MANAGEMENT COMPANY and/or INTERCITY MAINTENANCE, INC., Defendants. DEFENDANT INTERCITY INVESTMENTS, INC.’S REPLY IN FURTHER SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Defendant Intercity Investments Inc. (“Intercity”), files this Reply in further support of its Motion for Summary Judgment, pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure, seeking dismissal of Plaintiffs’ Amended Petition, as follows: ARGUMENT I. Plaintiffs Are Not Creditor Beneficiaries to the Condominium Management Agreement Plaintiffs claim, in opposition, that they qualify as creditor beneficiaries and are thus third- party beneficiaries to the Condominium Management Agreement (CMA”) between Athena and Intercity. They are mistaken. 155831045.1 “To enforce a contract in favor of a third-party beneficiary, the court must find a clear intent to contract for a direct benefit to the third party.” Haile v. Disc. Shuttle, Ina, 2000 WL 1035752, at *2 (Tex. App—Dallas 2000)(citing MJR Corp. v. B&B Vending Co., 760 S.W.2d 4, 11 (Tex. App—Dallas 1988). “Further, the obligation must be clearly and fully spelled out 0r enforcement will be denied.” Id. (Emphasis in Original). There are two types of third-party beneficiaries: donees and creditors. “One is a donee beneficiary if the performance promised will, when rendered, come to him as a pure donation.” MCI Telecommunications Corp. v. Texas Utilities Elec. C0., 995 S.W.2d 647, 651 (Tex. 1999). “If, on the other hand, that performance will come to him in satisfaction of a legal duty owed to him by the promisee, he is a creditor beneficiary.” Id. “This duty may be an indebtedness, contractual obligation, or other legally enforceable commitment owed to the third party.” Id. “The very essence of the position as so-called ‘creditor beneficiary’ requires not only that the bargain-seeking party intend to confer a benefit upon the third party; he must further intend that the third party have the right to enforce the agreement.” MJR Corp, 760 S.W.2d at 16 (Tex. App .—Da11as 1988)(Emphasis in Original). “Unless both intents were exhibited on his behalf, the third party remains no more than an incidental beneficiary.” Id. In opposition, Plaintiffs claim they are creditor beneficiaries under the theory that Intercity’s performance of its duties pursuant to the CMA was necessary to satisfy Athena’s contractual obligations to the Plaintiffs, contained in the Condominium Declaration and Bylaws. ’ See Plaintzfis Opposition, 1W 7 — 8. Even if taken as true, Plaintiffs have only satisfied the first element—that it was envisioned that Plaintiffs would incidentally benefit from performance of the agreement—while failing to assert that Athena and Intercity intended the Plaintiffs to have the 1558310451 right to enforce the agreement. Since Plaintiffs neither alleged, nor does the CMA contain any provision granting Plaintiffs the right to enforce the agreement, Plaintiffs are merely incidental beneficiaries. As a result, Plaintiffs claims must be dismissed. II. Lemus Remains Controlling Authority Over the Disposition of Plaintiffs’ Claims Against Intercity As noted in Intercity’s moving papers, the holding in Lemus v. Cookscreek 255 LLC, 2018 WL 6259480 at *1 (Texas. App—Dallas 2018) acts as binding precedent since that case dealt with precisely the question presented here, namely, whether a building tenant can claim third-party beneficiary status to a property management agreement that does not expressly grant the tenant rights as a claimant under the agreement. Similarly to the present matter, the Lemus plaintiff-tenants asserted they were creditor beneficiaries to the property management agreement under the theory the owner had a legal duty to the plaintiffs to install window locks, a duty which was satisfied by the property manager’s performance of the agreement. See Lemus at *20. Nonetheless, without more, the Court held they were not third-party beneficiaries, reasoning, “a third party may only enforce a contract when the contracting parties themselves intend to secure some benefit for the third party and entered into the contract directly for the third party's benefit.” Id. It is therefore respectfully requested that the Court follow controlling precedent and dismiss Plaintiffs’ claims against Intercity.1 Plaintiffs, notably, did not attempt to distinguish Lemus in their opposition papers. 1 155831045.1 CONCLUSION AND PRAYER For the above-stated reasons, Defendant, Intercity Investments Inc., prays that this Court grant the within motion and dismiss Plaintiffs’ Amended Petition with prejudice, and grant any and all further relief to which it may be justly entitled at law or in equity. FOX ROTHSCHILD LLP Brendan B. Gilmartin Esq. Dan Madden Esq. Saint Ann Court 2501 North Harwood Street Suite 1800 Dallas, TX 75201 Tel: 972.991.0889 Fax: 972.404.0516 b2ilmartin@foxrothschildcom Attorneys for Defendant Intercity Investments, Inc. Texas Bar No. 24126862 Texas Bar No. 24002513 155831045.1 CERTIFICATE OF SERVICE I hereby certify that on March 4, 2024, a true and correct copy of the above and foregoing document was served on all counsel of record, in accordance with the Texas Rules of Civil Procedure: Athena Condominium Co-Owners Association, by and through their attorneys, Hermes Law, P.C., 2250 Pacific Avenue, Suite 700, Dallas, Texas 75226 Plaintiffs Arthur Berwald and Rosalee M. Berwald, by and through their attorney, Christopher A. Payne PC, 9330 LBJ Freeway, Suite 1165, Dallas, Texas 75243 ¢flu Brendan B. Gilmartin Esq. 1558310451 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. Tiffany Massey on behalf of Brendan Gilmartin Bar No. 24126862 tmassey@foxrothschild.com Envelope ID: 85149309 Filing Code Description: Response Filing Description: RESPONSE TO MOTION FOR SUMMARY JUDGMENT Status as of 3/4/2024 3:07 PM CST Associated Case Party: ARTHUR BERWALD Name BarNumber Email TimestampSubmitted Status Christina Alstrin Christina.alstrin@payne-alstrin.com 3/4/2024 11:05:31 AM SENT CHRISTOPHER APAYNE CHRIS.PAYNE@PAYNE-ALSTRIN.COM 3/4/2024 11:05:31 AM SENT Allie Payne allie@payne-alstrin.com 3/4/2024 11:05:31 AM SENT Associated Case Party: ATHENA CONDOMINIUM CO-OWNERS ASSOCIATION Name BarNumber Email TimestampSubmitted Status Leslie Davis Ieslie.davis@hermes-Iaw.com 3/4/2024 11:05:31 AM SENT Megan Simmons megan@hermes-law.com 3/4/2024 11:05:31 AM SENT Hermes Law efiling@hermes-law.com 3/4/2024 11:05:31 AM SENT Aisha Khan aisha@hermes-law.com 3/4/2024 11:05:31 AM SENT Associated Case Party: INTERCITY INVESTMENTS, INC. Individually, and/or d/b/a ICI MANAGEMENT COMPANY INTERCITY MAINTENANCE Name BarNumber Email Timestam pSubmitted Status Daniel Madden Dmadden@foxrothschild.com 3/4/202411:05:31 AM SENT Daniel Joseph Madden 24002513 dmadden@foxrothschild.com 3/4/202411:05:31 AM SENT Brendan Gilmartin bgilmartin@foxrothschild.com 3/4/202411:05:31 AM SENT Case Contacts 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. Tiffany Massey on behalf of Brendan Gilmartin Bar No. 24126862 tmassey@foxrothschild.com Envelope ID: 85149309 Filing Code Description: Response Filing Description: RESPONSE TO MOTION FOR SUMMARY JUDGMENT Status as of 3/4/2024 3:07 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Christopher APayne chris.payne@payne-alstrin.com 3/4/2024 11:05:31 AM SENT Christopher APayne cpayne@cappc.com 3/4/2024 11:05:31 AM SENT Daniel Jones djones@danielbjones.com 3/4/2024 11:05:31 AM SENT Allie Payne Allie@cappc.com 3/4/2024 11:05:31 AM SENT