Preview
FILED
6/29/2020 12:49PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO.,TEXAS
DEPUTY
Kellie Juricek
CAUSE NO. DC-18-08585
DALLAS COUNTY HOSPITAL IN THE DISTRICT COURT OF
DISTRICT d/b/a PARKLAND HEALTH &
HOSPITAL SYSTEM
VS.
BARA, A Joint Venture Comprised 0f WWWWWWWWWWWQWW
BALFOUR BEATTY CONSTRUCTION, DALLAS COUNTY, TEXAS
LLC, AUSTIN COMMERCIAL, LP,
H.J. RUSSELL & COMPANY and
AZTECA ENTERPRISES;
DECOCRETE, INC.; and DUDICK, INC. 44TH JUDICIAL DISTRICT
DEFENDANT DECOCRETE, INC’S
TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, DECOCRETE, INC. (“Decocrete”), a Defendant in the above numbered
and styled cause and files its Traditional and No—Evidence Motion for Summary Judgment against
Plaintiff pursuant t0 Rule 166a and Rule 166a(i) 0f the Texas Rules 0f Civil Procedure, and in
support thereof would respectfully show unto the Court the following:
I.
PRELIMINARY STATEMENT
Plaintiff, as named in the above—referenced cause, seeks t0 recover from Defendant
Decocrete certain property damages that allegedly arose from the improper installation of a
flooring system at the Parkland Hospital in Dallas, Texas. Plaintiff claims that the alleged improper
installation led t0 the failure 0f the flooring system and caused Plaintiff property damages.
Defendant now seeks summary judgment because Plaintiff is not a proper party t0 bring
certain Claims and Plaintiff produced n0 evidence that Decocrete improperly installed the flooring
DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY
JUDGMENT Page 1
system 0r that any 0f Decocrete’s actions and/or omissions caused any 0f the alleged damages t0
the Plaintiff. On the contrary, the evidence clearly show that Decocrete performed under its
contract With Defendant BARA by installing a flooring system that the Plaintiff chose t0 use for
its facility,per the manufacturer’ s methods and specifications. Decorete Will further show that any
issues with the failing 0f the flooring system are solely related to Plaintiff’s choice of the flooring,
Which had not been previously used in similar environment. Accordingly, Decocrete seeks
judgment as a matter 0f law 0n all 0f Plaintiff’s claims against it.
II.
STATEMENT OF FACTS
This case arises out 0f alleged construction defects related t0 the flooring system installed
at the New Parkland Hospital, located in Dallas, Texas, as described in the Plaintiff’s pleadings.
The flooring system, Steri-Soft, was manufactured by Dudick, Inc. and installed by Defendant
Decocrete, Inc.
Plaintiff alleges that the Project was substantially completed in October of 2014, and
Parkland obtained itscertificate 0f occupancy shortly thereaftefl Plaintiff further contends that it
began accepting patients in August 0f 2015. Plaintiff specifically pleads that itwas not until over
one year after occupancy that the floors in various locations Within Parkland began t0 show
distress?
According t0 Plaintiff’s pleadings, beginning 0f February 2016 the Steri—Soft flooring
system (manufactured by Dudick, Inc.) began t0 show distress, including random Circular
cracking, and continued crack propagation in high—traffic areas, straight cracks along and near
walls, and surface pinholing. The issues became widespread throughout several areas where the
1
Amended
Exhibit A- Plaintiff’s Third Petition atpage 7, par.15
2
Id.
DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY
JUDGMENT Page 2
Steri—Soft system had been installed, including the operating rooms, labor and delivery rooms,
trauma pods, and jail health areas 0f the h0spita1.3 Plaintiff also contends that as use of the flooring
continued, these cracks became larger and more noticeable and by mid-2016, it had become
4
apparent that the Steri—Soft flooring system throughout the hospital was failing.
Plaintiff alleges that DecoCrete, Inc. failed to install the flooring properly, resulting in
cracking, pinholing, and the ultimate failure 0f the Steri-Soft system. Plaintiff’s causes 0f action
against DecoCrete, Inc. include breach 0f contract, breach 0f warranty and negligence.
III.
SUMMARY JUDGMENT EVIDENCE
Decocrete’s Motion for Summary Judgment is based upon the pleadings 0n file and the
attached summary judgment evidence, Which are incorporated herein by reference for all purposes.
Exhibit A — Plaintiff’ s Third Amended Petition
Exhibit B — Plaintiff’s Original Petition
Exhibit C — Plaintiff’ s First Amended Petition
Exhibit D — Correspondence related t0 Notice 0f Defect
Exhibit E— Subcontractor Agreement
Exhibit F— Change Order
Exhibit G— Specifications for flooring system— bid approved
Exhibit H— One—year warranty
Exhibit I—Certificate 0f Completion
IV.
SUMMARY JUDGMENT STANDARD
A. Standard for Traditional Summary Judgment
3
Third
Plaintiff’s Amended Petition at page 7, par.16
4
Id. atpage 11, par.19
DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY
JUDGMENT Page 3
Traditional summary judgment is appropriate Where the moving party demonstrates that
there is n0 genuine issue 0f material fact for trial and that the movant isentitled t0 judgment as a
matter 0f law.
5
A defendant is entitled t0 summary judgment 0n a plaintiff’s cause 0f action if the
defendant can disprove at least one element 0f the plaintiff’s cause 0f action as a matter 0f 1aw.6
B. Standard for No-Evidence Summary Judgment
A no—eVidence motion for summary judgment is appropriate where the plaintiff has
produced n0 evidence in support 0f one 0r more essential elements 0f a Claim 0n which the plaintiff
bears the burden 0f proof at tria1.7 Once a no—eVidence motion for summary judgment is filed,the
non—moving party maintains the burden 0f presenting evidence that raises a material issue 0f fact
8
With regard t0 the challenged elements. If the non-moving party fails t0 produce such evidence,
9
the court must grant the motion.
A no-eVidence motion for summary judgment should be denied only if the non—moving
party produces more than a scintilla 0f probative evidence t0 raise a genuine issue 0f material fact
on the challenged elements.10 A no—evidence summary judgment is proper if the nonmovant fails
t0 bring forward more than a scintilla 0f probative evidence that raises a genuine issue 0f material
fact as t0 an essential element 0f the plaintiffs cause 0f action for Which the defendant contends
n0 evidence exists.“ “When the evidence offered t0 prove a Vital fact is so weak as to d0 n0 more
5
See Tex. R. Civ. P.166(a); Nixon v.Mr. Prop. Mgmt. Co.,690 S.W.2d 546, 548-49 (Tex. 1985)
6
Stanfield v.Neubaum, 494 S.W.3d 90,96 (Tex. 2016
7
See Tex. R. Civ. P. 166a(i)
8
Thomas v Omar lnvs., 156 S.W.3d 681, 684 (Tex. App.— Dallas 2005, no pet.)
9
See Tex. R. Civ. P. 166a(i)
1°
Forbes Granada
Inc. v. Biosciences, lnc., 124 S.W.3d 167, 172 (Tex. 2003)
11
Moore v.KMart Corp., 981 S.W.2d 266, 269 (Tex. App—San Antonio 1998, pet. denied); see Tex. R. Civ. P.
166a“)
DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY
JUDGMENT Page 4
than create a mere surmise 0r suspicion 0f itsexistence, the evidence is n0 more than a scintilla
and, in legal effect, is n0 evidence?”
C. Adequate time for Discovery
A motion for summary judgment based 0n no—evidence grounds is appropriate after
adequate time for discovery has passed.” Time for discovery can be adequate even ifdiscovery
14
remains incomplete.
When a no—evidence motion for summary judgment is filed before the end of the discovery
15
period, it isconsidered timely as long as the nonmovant had adequate time for discovery.
The court considers various factors in determining Whether sufficient time for discovery
has passed: (1) the nature of the plaintiff’s action, (2) the evidence required to oppose the n0—
evidence motion, (3) the length 0f time that the case has remained active, and (4) the amount 0f
16
discovery that has already occurred.
Plaintiff filed itsOriginal Petition on July 2, 2018 against Defendant BARA” and 0n June
20, 2019 Plaintiff amended itspetition and filed its claims against Decocrete.18 Hence, Plaintiff’s
lawsuit against Decocrete was filed more than a year and a half before the filing of this motion.
Courts have held that similar amounts 0f time can be considered adequate for the bringing of a n0—
evidence summary judgment motion.”
12
Kindred v.Con/Chem, /nc.,650 S.W.2d 61, 63 (Tex. 1983)
13
See Tex. R. Civ. P. 166a(i)
14
Specialty Retailers,Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.-Houston [14th District]2000, pet. denied) (”The
rule does not require that discovery must have been completed, only that there was ”adequate time”)
15
See Tex. R. Civ. P. 166a(i)
15
McMahan v Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston [14th 2003
District] pet. denied)
17
Exhibit B— Plaintiff’s Original Petition
18
Amended
Exhibit C— Plaintiff’s First Petition
19
Rankin v Union Pac. R.R. Co.,319 S.W.3d 58, 67—68 (Tex. App.— San Antonio 2010, no pet.) (finding that adequate
time for discovery inthe underlying case had passed when the no—evidence motion came about a year after the case
was filed)
DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY
JUDGMENT Page 5
In further support 0f the above, as evidenced by the Notice 0f construction defects served
upon Defendant BARA dated July 25, 201620 Plaintiff filed lawsuit approximately two years after
itdiscovered the alleged construction defects, Which supports the fact that Plaintiff engaged in pre-
suit investigation, at least two years prior t0 filing its pleadings. Thus, until the time of the filing
of this motion, it has been almost four years since Plaintiff has been investigating this matter, and
21
Plaintiff should be in a position t0 produce sufficient evidence t0 prove its case, yet Plaintiff has
failed t0 d0 so.
Because Plaintiff had adequate time t0 produce relevant evidence to prove itsclaims in this
lawsuit, Defendant’s no—evidence arguments are timely filed and it isappropriate for this court t0
determine summary judgment arguments at this time.
V.
ARGUMENT & AUTHORITIES
Plaintiff’s causes 0f action against Decocrete are breach 0f contract, breach 0f warranty,
and negligence. Although Plaintiff had sufficient time to produce evidence to prove its claims,
Plaintiff’ s claims are nothing more than unsupported, vague, general allegations against Decocrete,
and Plaintiff has produced no evidence of breach 0f any duties or warranties 0n behalf of
Decocrete. Furthermore, Plaintiff is not a proper party t0 bring a claim for breach 0f contract
against Decocrete, because Plaintiff and Decocrete have n0 valid enforceable contract between
them. More specifically:
A. Plaintiff has n0 breach 0f contract claim against Defendant Decocrete because Decocrete did
not contract With the Plaintiff and Plaintiff does not qualify as a third—partv beneficiary under the
Subcontractor Agreement between BARA and Decocrete.
2°
Exhibit D- Notice to BARA
21
Martinez v.City ofSan Antonio, 4O S.W.3d 587, 591 (Tex.App.-San Antonio 2001
DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY
JUDGMENT Page 6
T0 succeed in itsbreach 0f contract claim, Plaintiff must establish that: a) there is a valid,
enforceable contract; b) the Plaintiff is a proper party to bring suit for breach 0f the contract; c) the
Plaintiff performed, tendered performance, 0r was excused from performing its contractual
obligations; d) the Defendant breached itscontract; e) the Defendant’ s breach caused the Plaintiff’ s
injury.”
In the instant case, Plaintiff and Decocrete have n0 valid, enforceable contract and Plaintiff
is not a proper party t0 bring a breach 0f contract claim for an alleged breach 0f the subcontractor
agreement between Decocrete and Defendant BARA.
i.There is n0 valid, enforceable contract between Plaintiffand Decocrete
T0 succeed in a breach 0f contract cause 0f action, Plaintiff Will need t0 prove that there is
a valid, enforceable contract between the parties.”
Here, Defendant Decocrete did not contract With the Plaintiff. Per the Plaintiff’s own
pleadings, Plaintiff is the owner 0f the subject property that allegedly incurred damages due t0
improper work by Defendant Decocrete.24 Plaintiff contracted with BARA for the construction 0f
its hospita125 and BARA subcontracted With Decocrete for the installation 0f the flooring system? 6
N0 contract between Plaintiff and Decocrete was signed.
Absent valid contract between Plaintiff and Decocrete, Plaintiff has no claim for relief 0n
a breach 0f contract cause 0f action. Therefore, Plaintiff’s claim for breach 0f contract against
Decocrete should be dismissed.
22
E—Learning, LLC v.AT&TCorp., 517 S.W.3d 849, 858 (Tex.App.—San Antonio 2017, no pet.)(elements Zuniga
1,3,—5);
v.Wooster Ladder Co., 119 S.W.3d 856, 862 (Tex.App.—San Antonio 2003, no pet.) (element 2)
23
E—Learning LLC v. AT&TCorp., 517 S.W.3d 849, 858 (Tex. App.—San Antonio 2017, no pet.)
24
Amended
Exhibit A— Plaintiff’s Third Petition atpage 4, par. 9
25
Id.at page 5, par.12
26
Id.;Exhibit E- Subcontractor Agreement
DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY
JUDGMENT Page 7
ii.Plaintiff is not a proper party t0 bring a breach of contract claim against Decocrete
because Plaintiffis not a third-party beneficiary t0 the subcontractor agreement between BARA
and Decocrete.
T0 prove an action for breach 0f contract, the Plaintiff must establish it isa proper party to
bring a suit. Proper parties are (1) parties t0 the contrac L27 (2) assignees 0f parties t0 the contrac L28
(3) agents entitled t0 sue 0n behalf 0f parties t0 the contract,” and (4) intended third—party
beneficiaries t0 the contract.”
In the instant case, there is n0 contract between Plaintiff and Defendant Decocrete.
Defendant Decocrete’s work for the installation 0f the flooring material relates t0 the
Subcontractor Agreement signed between Defendant BARA and Decocrete, signed on April 25,
2012, Which identified Decocrete’s scope 0f work as concrete floor polishing.“ Change Order #1
32
supplemented Decocrete’s scope 0f work t0 include the installation 0f resinous flooring and
33
more specifically, the installation 0f Dudick’s product that the Plaintiff chose for itsproperty.
Plaintiff is not a signatory t0 the subcontractor agreement and because Plaintiff does not
qualify as an assignee, an agent, 0r a third—party beneficiary t0 the contract, Plaintiff is not a proper
party t0 bring a breach 0f contract claim against Decocrete. No assignment 0f the subcontractor
agreement was performed from BARA t0 the Plaintiff, so as t0 qualify Plaintiff as an assignee, nor
was Plaintiff a third—party beneficiary under the Subcontractor Agreement between BARA and
27
Willisv. Donnely, 199 S.W.3d 262, 271 (Tex.2006)
28
Twelve Oaks Tower], Ltd.v.PremierA/lergy, Inc.,938 S.W.2d 102,113 (Tex.App.—Houston 1996, no writ)
[14th Dist.]
29
Perry v.Breland, 16 S.W.3d 182, 187 (Tex.App—Eastland 2000, pet. denied)
3°
FirstBank v.Brummitt, 519 S.W.3d 95, 102 (Tex.2017)
31
Exhibit E— Subcontractor Agreement
32
Exhibit F-Supplemental Exhibit N
33
Exhibit G- Installation specification bid
DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY
JUDGMENT Page 8
Decocrete. Although the subcontractor agreement between BARA and Decocrete related t0 work
t0 be performed at the property owned by Plaintiff, “a property owner is not a third—party
beneficiary 0f contract between general contractor and subcontractor simply because owner
benefited from the contract.”34 T0 qualify as a beneficiary a party must show that it was either a
“done” beneficiary 0r “creditor” beneficiary 0f the contract, 35
and Plaintiff is none 0f the above.
Because Plaintiff is not a proper party t0 bring a suit for breach 0f contract against
Decocrete, Plaintiff’s claims fail as a matter 0f law and Decocrete is entitled t0 a summary
judgment.
B. Plaintiff’s claims for express warranty fail because Defendant performed per itscontract With
BARA, provided a one—Vear warrantv per the contract and no issues were had prior t0 the
expiration 0f the warranty period
The elements 0f a cause 0f action for breach 0f express warranty for services are: a) the
Defendant sold services to Plaintiff; b) the Defendant made a representation t0 the Plaintiff about
the quality 0r characteristics 0f the services by a. affirmation 0f fact, 2. by promise 0r 3. by
description; c) the representation became part 0f the basis 0f the bargain; d) the Defendant
breached the warranty; e) the Plaintiff notified the Defendant of the breach (if required by the
36
parties’ agreement); f) the Plaintiff suffered injury.
T0 prove a breach 0f warranty for services under common law, the Plaintiff must establish
the services provided did not conform t0 the character and quality of the services promised.” In
breach-of—warranty case, the focus is 0n the way the services were t0 be performed.”
34
Raymond vRahme, 78 S.W.3d 552, 561 (Tex. App.—Austin 2002, no pet)
35
S. Tex.WaterAuth. v. Lomas, 223 S.W.3d 304, 306 (Tex.2007)
35
Southwestern Bell Tell. Co.
v.FDP Corp., 811 S.W.2d 572, 576—77 & n.3 (Tex. 1991) (elements 1—4,6)
37
Mills v.Pate, 225 S.W.3d 227, 289—90 (Tex.App.—E| Paso 2006, no pet.)
38
Brooks, Tartlton, Gilbert, Douglas & Kresslerv. US 832 F2d. 1358, 1375
Fire /ns., (5thCir.1987), supplemented,
832 F2d. 1378 (5th Cir.
1987)
DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY
JUDGMENT Page 9
Here, Plaintiff contends that Decocrete expressly warranted that it would perform all work
required 0r reasonably inferred under the best practices in the construction industry for a complete
and fully functional and operational system for the purposes intended.” Plaintiff further contends
that Decocrete breached its express warranties because the Steri—Soft flooring at the hospital was
installed improperly, resulting in cracking, pinholing, and ultimately the failure of the Steri—Soft
flooring system.“ Plaintiff relates the alleged breach 0f express warranty t0 the general
performance provisions 0f the subcontractor agreement, although not accurately referencing the
sub—contract’ s language.
Besides its general, vague, and unsubstantiated accusations, Plaintiff has produced n0
evidence t0 show that Decocrete breached any express warranty. Plaintiff purposefully omits from
its pleadings Decocrete’s one—year express warranty for the work itperformed at Parkland, which
had expired long before any alleged issues were observed in certain locations 0f the flooring
system. More specifically, upon completion 0f the Steri—Soft flooring system, Decocrete provided
its 1—year warranty“ which expired a year upon substantial completion 0f the whole Parkland
project, 0n October 31, 2015.42
For the duration 0f one year upon substantial completion 0f the project that Decocrete
warranted itswork, no issues were reported with the flooring, whether related t0 the installation 0r
the performance 0f the Steri-Soft system. The firstNotice related t0 any issues With the flooring
was served 0n July 25, 2016,43 almost nine months after the warranty had expired. Decocrete
39
Amended
Exhibit A— Plaintiff’s Third Petition atpage 16, par. 31.
40
Id.
41
Exhibit H— One—year warranty
42
Exhibit |- completion
Certificate of substantial
43
Exhibit D- Notice to BARA
DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY
JUDGMENT Page 10
provided n0 other warranties for the installation 0f the Steri—Soft system, hence, Plaintiff has no
claim for breach 0f an expressed warranty against this Defendant.
Because Plaintiff has failed t0 produce any evidence t0 show any breach 0f any express
warranty provided by Decocrete, Plaintiff’s claims fail as a matter 0f law and Decocrete is entitled
t0 a summary judgment.
C. Plaintiff’s claims for negligence fail because Plaintiff cannot prove that Decocrete breached
any dutV 0r that anV such breach caused anV 0f the Plaintiff’s alleged damages
T0 succeed on its negligence claim, Plaintiff must establish that a) the Defendant owed a
legal duty t0 the Plaintiff; b) the Defendant breached the duty; and c) the breach proximately
44
caused the Plaintiff’s injury.
i.There is n0 evidence that Decocrete breached any duty t0 Plaintiff
According t0 Plaintiff’s most recent amended pleadings, Plaintiff contends that Decocrete
had a common—law duty t0 Plaintiff, that Decocrete breached its duty by failing t0 install the
flooring properly, and that Decocrete’s breach of said duty caused Plaintiff’s alleged damages.45
T0 prove an action for negligence, the plaintiff must establish the defendant breached its
legal duty.46 A legal duty is breached When a defendant does not meet the required standard 0f
care. Here, Plaintiff has produced no evidence t0 show that Decocrete breached any duty 0r that it
improperly installed Dudick’s product. In addition, following the application 0f the flooring, n0
punch lists 0r other notes were made as t0 any issues With the installation 0f the product, as
evidenced by the complete lack 0f any such documents produced in the voluminous 200,000+
pages 0f responsive documents produced by the parties in this case.
44
Nabors Drilling,USA, Inc. v.Escoto, 288 S.W.3d 401, 404 (Tex. 2009); Western Invs.v.Urena, 162 S.W.3d 547,
550 (Tex. 2005).
45
Exhibit A- ThirdAmended Petition atpage 17, par. 33.
46
Nabors at 404
DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY
JUDGMENT Page 11
Plaintiff has failed t0 produce a single document 0r any other evidence that shows any
improper installation 0f the flooring by Decocrete at the time of the installation, following
installation and until the time that this motion is being filed. Not a single action and/or inaction 0n
behalf 0f Decocrete has been identified as non—compliant With the guides and specifications 0f the
instructions provided by the manufacturer Dudickm as t0 the installation of their product.
Because there is n0 evidence that Decocrete breached any duty, therefore, Plaintiff’s
negligence claim fails as a matter 0f law.
ii.There is n0 evidence that any action and/or omission 0n behalf ofDecocrete caused
any 0f the Plaintiff’s alleged damages
Finally, t0 prove an action for negligence, the plaintiff must establish the defendant’s
breach of duty proximately caused the Plaintiff’s injury.47 As analyzed above, Plaintiff had plenty
0f time t0 prove its case and produce sufficient evidence t0 establish itsnegligence Claim against
Decocrete, yet Plaintiff has produced absolutely n0 evidence t0 support that any action 0r omission
on behalf of Decocrete proximately caused the Plaintiff’s alleged damages. In the four years that
Plaintiff has been investigating its case there is not a single document that proves that anything
that Decocrete did at Parkland’s property contributed t0 Plaintiff’s alleged damages.
Because Plaintiff failed to produce any evidence t0 show that Decocrete caused any 0f its
alleged damages, Decocrete is entitled t0 a summary judgment.
VI. CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant Decocrete, LLC prays that this
Court grant its Traditional and No—EVidence Motion for Summary Judgment in all respects and
enter judgment that Plaintiff take nothing against Defendant Decocrete 0n all Plaintiff’s Claims
47
Nabors Drilling,USA, Inc. at 404; Western Invs. at550.
DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY
JUDGMENT Page 12
against it,and for such other and further relief t0 Which Defendant Decocrete may be justly entitled
and will every pray.
Respectfully submitted,
WALTERS, BALIDO & CRAH\I, L.L.P.
a—AT'L/
CARLOS A. BALIDO
State Bar N0. 0163 1230
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, TX 75231
Tel: 214-749-4805
Fax: 214-760— 1 670
balidoedocsnotifications @ wbclawfirm.com
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy 0f the foregoing document has been mailed,
faxed, emailed or hand delivered to all parties 0f record, in compliance with Rule 21a of the Texas
Rules 0f Civil Procedure, on June 29, 2020.
CARLOS A. BALIDO
DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY
JUDGMENT Page 13
Exhibit
Exhibit A
CAUSE NO. DC-18-O8585
DALLAS COUNTY HOSPITAL § IN THE DISTRICT COURT
DISTRICT d/b/a PARKLAND HEALTH §
& HOSPITAL SYSTEM §
§
V. §
§ DALLAS COUNTY, TEXAS
BARA, A Joint Venture comprised of §
BALFOUR BEATTY CONSTRUCTION, §
LLC, AUSTIN COMMERCIAL LP, HJ. §
RUSSELL 8t COMPANY and AZTECA §
ENTERPRISES; DECOCRETE, INC; §
and DUDICK, INC. § 44th JUDICIAL DISTRICT
PLAINTIFF’S THIRD AMENDED PETITION
Dallas County Hospital District d/b/a Parkland Health 82; Hospital System
(”Parkland”), files this itsThird Amended Petition complaining of BARA, a Joint Venture
(”BARA”) comprised of Balfour Beatty Construction, LLC, Austin Commercial LP, HJ.
Russell 8: Company, and Azteca Enterprises, and DecoCrete, Inc. (”DecoCrete”), and
Dudick, Inc. (”Dudick”) (collectively, ”Defendants”), as follows:
DISCOVERY CONTROL PLAN AND RULE 47 DISCLOSURE
1. Parkland intends to conduct discovery pursuant to Texas Rule of Civil
Procedure 190.3 (Level 3).
2. Pursuant to Texas Rule of Civil Procedure 47, Parkland states that it seeks
monetary relief of over $1 million.
PLAINTIFF’S THIRD AMENDED PETITION — PAGE 1
JURISDICTION AND
JURISDICTION AND VENUE
VENUE
3.
3. This
This Court
Court has
has subject
subject matter
matter jurisdiction
jurisdiction inin that
that the
the amount
amount in in controversy
controversy
exceeds
exceeds the minimum jurisdictional limits
the minimum limits of
of the
the Court.
Court.
4.
4. Venue
Venue is
is appropriate
appropriate in
in Dallas
Dallas County,
County, Texas
Texas because
because all
all matters
matters in
in
controversy
controversy occurred
occurred within
within the
the county, BARA resides
county, BARA resides within
within the
the county,
county, and
and the BARA
the BARA
and
and Parkland
Parkland agreed
agreed that
that jurisdiction
jurisdiction and
and venue
venue for
for any
any action
action arising
arising out
out of
of the
the
Agreement
Agreement (defined
(defined below)
below) would
would lie lie exclusively
exclusively in in the
the State
State District
Preview
FILED 6/29/2020 12:49PM FELICIA PITRE DISTRICT CLERK DALLAS CO.,TEXAS DEPUTY Kellie Juricek CAUSE NO. DC-18-08585 DALLAS COUNTY HOSPITAL IN THE DISTRICT COURT OF DISTRICT d/b/a PARKLAND HEALTH & HOSPITAL SYSTEM VS. BARA, A Joint Venture Comprised 0f WWWWWWWWWWWQWW BALFOUR BEATTY CONSTRUCTION, DALLAS COUNTY, TEXAS LLC, AUSTIN COMMERCIAL, LP, H.J. RUSSELL & COMPANY and AZTECA ENTERPRISES; DECOCRETE, INC.; and DUDICK, INC. 44TH JUDICIAL DISTRICT DEFENDANT DECOCRETE, INC’S TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, DECOCRETE, INC. (“Decocrete”), a Defendant in the above numbered and styled cause and files its Traditional and No—Evidence Motion for Summary Judgment against Plaintiff pursuant t0 Rule 166a and Rule 166a(i) 0f the Texas Rules 0f Civil Procedure, and in support thereof would respectfully show unto the Court the following: I. PRELIMINARY STATEMENT Plaintiff, as named in the above—referenced cause, seeks t0 recover from Defendant Decocrete certain property damages that allegedly arose from the improper installation of a flooring system at the Parkland Hospital in Dallas, Texas. Plaintiff claims that the alleged improper installation led t0 the failure 0f the flooring system and caused Plaintiff property damages. Defendant now seeks summary judgment because Plaintiff is not a proper party t0 bring certain Claims and Plaintiff produced n0 evidence that Decocrete improperly installed the flooring DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY JUDGMENT Page 1 system 0r that any 0f Decocrete’s actions and/or omissions caused any 0f the alleged damages t0 the Plaintiff. On the contrary, the evidence clearly show that Decocrete performed under its contract With Defendant BARA by installing a flooring system that the Plaintiff chose t0 use for its facility,per the manufacturer’ s methods and specifications. Decorete Will further show that any issues with the failing 0f the flooring system are solely related to Plaintiff’s choice of the flooring, Which had not been previously used in similar environment. Accordingly, Decocrete seeks judgment as a matter 0f law 0n all 0f Plaintiff’s claims against it. II. STATEMENT OF FACTS This case arises out 0f alleged construction defects related t0 the flooring system installed at the New Parkland Hospital, located in Dallas, Texas, as described in the Plaintiff’s pleadings. The flooring system, Steri-Soft, was manufactured by Dudick, Inc. and installed by Defendant Decocrete, Inc. Plaintiff alleges that the Project was substantially completed in October of 2014, and Parkland obtained itscertificate 0f occupancy shortly thereaftefl Plaintiff further contends that it began accepting patients in August 0f 2015. Plaintiff specifically pleads that itwas not until over one year after occupancy that the floors in various locations Within Parkland began t0 show distress? According t0 Plaintiff’s pleadings, beginning 0f February 2016 the Steri—Soft flooring system (manufactured by Dudick, Inc.) began t0 show distress, including random Circular cracking, and continued crack propagation in high—traffic areas, straight cracks along and near walls, and surface pinholing. The issues became widespread throughout several areas where the 1 Amended Exhibit A- Plaintiff’s Third Petition atpage 7, par.15 2 Id. DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY JUDGMENT Page 2 Steri—Soft system had been installed, including the operating rooms, labor and delivery rooms, trauma pods, and jail health areas 0f the h0spita1.3 Plaintiff also contends that as use of the flooring continued, these cracks became larger and more noticeable and by mid-2016, it had become 4 apparent that the Steri—Soft flooring system throughout the hospital was failing. Plaintiff alleges that DecoCrete, Inc. failed to install the flooring properly, resulting in cracking, pinholing, and the ultimate failure 0f the Steri-Soft system. Plaintiff’s causes 0f action against DecoCrete, Inc. include breach 0f contract, breach 0f warranty and negligence. III. SUMMARY JUDGMENT EVIDENCE Decocrete’s Motion for Summary Judgment is based upon the pleadings 0n file and the attached summary judgment evidence, Which are incorporated herein by reference for all purposes. Exhibit A — Plaintiff’ s Third Amended Petition Exhibit B — Plaintiff’s Original Petition Exhibit C — Plaintiff’ s First Amended Petition Exhibit D — Correspondence related t0 Notice 0f Defect Exhibit E— Subcontractor Agreement Exhibit F— Change Order Exhibit G— Specifications for flooring system— bid approved Exhibit H— One—year warranty Exhibit I—Certificate 0f Completion IV. SUMMARY JUDGMENT STANDARD A. Standard for Traditional Summary Judgment 3 Third Plaintiff’s Amended Petition at page 7, par.16 4 Id. atpage 11, par.19 DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY JUDGMENT Page 3 Traditional summary judgment is appropriate Where the moving party demonstrates that there is n0 genuine issue 0f material fact for trial and that the movant isentitled t0 judgment as a matter 0f law. 5 A defendant is entitled t0 summary judgment 0n a plaintiff’s cause 0f action if the defendant can disprove at least one element 0f the plaintiff’s cause 0f action as a matter 0f 1aw.6 B. Standard for No-Evidence Summary Judgment A no—eVidence motion for summary judgment is appropriate where the plaintiff has produced n0 evidence in support 0f one 0r more essential elements 0f a Claim 0n which the plaintiff bears the burden 0f proof at tria1.7 Once a no—eVidence motion for summary judgment is filed,the non—moving party maintains the burden 0f presenting evidence that raises a material issue 0f fact 8 With regard t0 the challenged elements. If the non-moving party fails t0 produce such evidence, 9 the court must grant the motion. A no-eVidence motion for summary judgment should be denied only if the non—moving party produces more than a scintilla 0f probative evidence t0 raise a genuine issue 0f material fact on the challenged elements.10 A no—evidence summary judgment is proper if the nonmovant fails t0 bring forward more than a scintilla 0f probative evidence that raises a genuine issue 0f material fact as t0 an essential element 0f the plaintiffs cause 0f action for Which the defendant contends n0 evidence exists.“ “When the evidence offered t0 prove a Vital fact is so weak as to d0 n0 more 5 See Tex. R. Civ. P.166(a); Nixon v.Mr. Prop. Mgmt. Co.,690 S.W.2d 546, 548-49 (Tex. 1985) 6 Stanfield v.Neubaum, 494 S.W.3d 90,96 (Tex. 2016 7 See Tex. R. Civ. P. 166a(i) 8 Thomas v Omar lnvs., 156 S.W.3d 681, 684 (Tex. App.— Dallas 2005, no pet.) 9 See Tex. R. Civ. P. 166a(i) 1° Forbes Granada Inc. v. Biosciences, lnc., 124 S.W.3d 167, 172 (Tex. 2003) 11 Moore v.KMart Corp., 981 S.W.2d 266, 269 (Tex. App—San Antonio 1998, pet. denied); see Tex. R. Civ. P. 166a“) DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY JUDGMENT Page 4 than create a mere surmise 0r suspicion 0f itsexistence, the evidence is n0 more than a scintilla and, in legal effect, is n0 evidence?” C. Adequate time for Discovery A motion for summary judgment based 0n no—evidence grounds is appropriate after adequate time for discovery has passed.” Time for discovery can be adequate even ifdiscovery 14 remains incomplete. When a no—evidence motion for summary judgment is filed before the end of the discovery 15 period, it isconsidered timely as long as the nonmovant had adequate time for discovery. The court considers various factors in determining Whether sufficient time for discovery has passed: (1) the nature of the plaintiff’s action, (2) the evidence required to oppose the n0— evidence motion, (3) the length 0f time that the case has remained active, and (4) the amount 0f 16 discovery that has already occurred. Plaintiff filed itsOriginal Petition on July 2, 2018 against Defendant BARA” and 0n June 20, 2019 Plaintiff amended itspetition and filed its claims against Decocrete.18 Hence, Plaintiff’s lawsuit against Decocrete was filed more than a year and a half before the filing of this motion. Courts have held that similar amounts 0f time can be considered adequate for the bringing of a n0— evidence summary judgment motion.” 12 Kindred v.Con/Chem, /nc.,650 S.W.2d 61, 63 (Tex. 1983) 13 See Tex. R. Civ. P. 166a(i) 14 Specialty Retailers,Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.-Houston [14th District]2000, pet. denied) (”The rule does not require that discovery must have been completed, only that there was ”adequate time”) 15 See Tex. R. Civ. P. 166a(i) 15 McMahan v Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston [14th 2003 District] pet. denied) 17 Exhibit B— Plaintiff’s Original Petition 18 Amended Exhibit C— Plaintiff’s First Petition 19 Rankin v Union Pac. R.R. Co.,319 S.W.3d 58, 67—68 (Tex. App.— San Antonio 2010, no pet.) (finding that adequate time for discovery inthe underlying case had passed when the no—evidence motion came about a year after the case was filed) DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY JUDGMENT Page 5 In further support 0f the above, as evidenced by the Notice 0f construction defects served upon Defendant BARA dated July 25, 201620 Plaintiff filed lawsuit approximately two years after itdiscovered the alleged construction defects, Which supports the fact that Plaintiff engaged in pre- suit investigation, at least two years prior t0 filing its pleadings. Thus, until the time of the filing of this motion, it has been almost four years since Plaintiff has been investigating this matter, and 21 Plaintiff should be in a position t0 produce sufficient evidence t0 prove its case, yet Plaintiff has failed t0 d0 so. Because Plaintiff had adequate time t0 produce relevant evidence to prove itsclaims in this lawsuit, Defendant’s no—evidence arguments are timely filed and it isappropriate for this court t0 determine summary judgment arguments at this time. V. ARGUMENT & AUTHORITIES Plaintiff’s causes 0f action against Decocrete are breach 0f contract, breach 0f warranty, and negligence. Although Plaintiff had sufficient time to produce evidence to prove its claims, Plaintiff’ s claims are nothing more than unsupported, vague, general allegations against Decocrete, and Plaintiff has produced no evidence of breach 0f any duties or warranties 0n behalf of Decocrete. Furthermore, Plaintiff is not a proper party t0 bring a claim for breach 0f contract against Decocrete, because Plaintiff and Decocrete have n0 valid enforceable contract between them. More specifically: A. Plaintiff has n0 breach 0f contract claim against Defendant Decocrete because Decocrete did not contract With the Plaintiff and Plaintiff does not qualify as a third—partv beneficiary under the Subcontractor Agreement between BARA and Decocrete. 2° Exhibit D- Notice to BARA 21 Martinez v.City ofSan Antonio, 4O S.W.3d 587, 591 (Tex.App.-San Antonio 2001 DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY JUDGMENT Page 6 T0 succeed in itsbreach 0f contract claim, Plaintiff must establish that: a) there is a valid, enforceable contract; b) the Plaintiff is a proper party to bring suit for breach 0f the contract; c) the Plaintiff performed, tendered performance, 0r was excused from performing its contractual obligations; d) the Defendant breached itscontract; e) the Defendant’ s breach caused the Plaintiff’ s injury.” In the instant case, Plaintiff and Decocrete have n0 valid, enforceable contract and Plaintiff is not a proper party t0 bring a breach 0f contract claim for an alleged breach 0f the subcontractor agreement between Decocrete and Defendant BARA. i.There is n0 valid, enforceable contract between Plaintiffand Decocrete T0 succeed in a breach 0f contract cause 0f action, Plaintiff Will need t0 prove that there is a valid, enforceable contract between the parties.” Here, Defendant Decocrete did not contract With the Plaintiff. Per the Plaintiff’s own pleadings, Plaintiff is the owner 0f the subject property that allegedly incurred damages due t0 improper work by Defendant Decocrete.24 Plaintiff contracted with BARA for the construction 0f its hospita125 and BARA subcontracted With Decocrete for the installation 0f the flooring system? 6 N0 contract between Plaintiff and Decocrete was signed. Absent valid contract between Plaintiff and Decocrete, Plaintiff has no claim for relief 0n a breach 0f contract cause 0f action. Therefore, Plaintiff’s claim for breach 0f contract against Decocrete should be dismissed. 22 E—Learning, LLC v.AT&TCorp., 517 S.W.3d 849, 858 (Tex.App.—San Antonio 2017, no pet.)(elements Zuniga 1,3,—5); v.Wooster Ladder Co., 119 S.W.3d 856, 862 (Tex.App.—San Antonio 2003, no pet.) (element 2) 23 E—Learning LLC v. AT&TCorp., 517 S.W.3d 849, 858 (Tex. App.—San Antonio 2017, no pet.) 24 Amended Exhibit A— Plaintiff’s Third Petition atpage 4, par. 9 25 Id.at page 5, par.12 26 Id.;Exhibit E- Subcontractor Agreement DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY JUDGMENT Page 7 ii.Plaintiff is not a proper party t0 bring a breach of contract claim against Decocrete because Plaintiffis not a third-party beneficiary t0 the subcontractor agreement between BARA and Decocrete. T0 prove an action for breach 0f contract, the Plaintiff must establish it isa proper party to bring a suit. Proper parties are (1) parties t0 the contrac L27 (2) assignees 0f parties t0 the contrac L28 (3) agents entitled t0 sue 0n behalf 0f parties t0 the contract,” and (4) intended third—party beneficiaries t0 the contract.” In the instant case, there is n0 contract between Plaintiff and Defendant Decocrete. Defendant Decocrete’s work for the installation 0f the flooring material relates t0 the Subcontractor Agreement signed between Defendant BARA and Decocrete, signed on April 25, 2012, Which identified Decocrete’s scope 0f work as concrete floor polishing.“ Change Order #1 32 supplemented Decocrete’s scope 0f work t0 include the installation 0f resinous flooring and 33 more specifically, the installation 0f Dudick’s product that the Plaintiff chose for itsproperty. Plaintiff is not a signatory t0 the subcontractor agreement and because Plaintiff does not qualify as an assignee, an agent, 0r a third—party beneficiary t0 the contract, Plaintiff is not a proper party t0 bring a breach 0f contract claim against Decocrete. No assignment 0f the subcontractor agreement was performed from BARA t0 the Plaintiff, so as t0 qualify Plaintiff as an assignee, nor was Plaintiff a third—party beneficiary under the Subcontractor Agreement between BARA and 27 Willisv. Donnely, 199 S.W.3d 262, 271 (Tex.2006) 28 Twelve Oaks Tower], Ltd.v.PremierA/lergy, Inc.,938 S.W.2d 102,113 (Tex.App.—Houston 1996, no writ) [14th Dist.] 29 Perry v.Breland, 16 S.W.3d 182, 187 (Tex.App—Eastland 2000, pet. denied) 3° FirstBank v.Brummitt, 519 S.W.3d 95, 102 (Tex.2017) 31 Exhibit E— Subcontractor Agreement 32 Exhibit F-Supplemental Exhibit N 33 Exhibit G- Installation specification bid DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY JUDGMENT Page 8 Decocrete. Although the subcontractor agreement between BARA and Decocrete related t0 work t0 be performed at the property owned by Plaintiff, “a property owner is not a third—party beneficiary 0f contract between general contractor and subcontractor simply because owner benefited from the contract.”34 T0 qualify as a beneficiary a party must show that it was either a “done” beneficiary 0r “creditor” beneficiary 0f the contract, 35 and Plaintiff is none 0f the above. Because Plaintiff is not a proper party t0 bring a suit for breach 0f contract against Decocrete, Plaintiff’s claims fail as a matter 0f law and Decocrete is entitled t0 a summary judgment. B. Plaintiff’s claims for express warranty fail because Defendant performed per itscontract With BARA, provided a one—Vear warrantv per the contract and no issues were had prior t0 the expiration 0f the warranty period The elements 0f a cause 0f action for breach 0f express warranty for services are: a) the Defendant sold services to Plaintiff; b) the Defendant made a representation t0 the Plaintiff about the quality 0r characteristics 0f the services by a. affirmation 0f fact, 2. by promise 0r 3. by description; c) the representation became part 0f the basis 0f the bargain; d) the Defendant breached the warranty; e) the Plaintiff notified the Defendant of the breach (if required by the 36 parties’ agreement); f) the Plaintiff suffered injury. T0 prove a breach 0f warranty for services under common law, the Plaintiff must establish the services provided did not conform t0 the character and quality of the services promised.” In breach-of—warranty case, the focus is 0n the way the services were t0 be performed.” 34 Raymond vRahme, 78 S.W.3d 552, 561 (Tex. App.—Austin 2002, no pet) 35 S. Tex.WaterAuth. v. Lomas, 223 S.W.3d 304, 306 (Tex.2007) 35 Southwestern Bell Tell. Co. v.FDP Corp., 811 S.W.2d 572, 576—77 & n.3 (Tex. 1991) (elements 1—4,6) 37 Mills v.Pate, 225 S.W.3d 227, 289—90 (Tex.App.—E| Paso 2006, no pet.) 38 Brooks, Tartlton, Gilbert, Douglas & Kresslerv. US 832 F2d. 1358, 1375 Fire /ns., (5thCir.1987), supplemented, 832 F2d. 1378 (5th Cir. 1987) DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY JUDGMENT Page 9 Here, Plaintiff contends that Decocrete expressly warranted that it would perform all work required 0r reasonably inferred under the best practices in the construction industry for a complete and fully functional and operational system for the purposes intended.” Plaintiff further contends that Decocrete breached its express warranties because the Steri—Soft flooring at the hospital was installed improperly, resulting in cracking, pinholing, and ultimately the failure of the Steri—Soft flooring system.“ Plaintiff relates the alleged breach 0f express warranty t0 the general performance provisions 0f the subcontractor agreement, although not accurately referencing the sub—contract’ s language. Besides its general, vague, and unsubstantiated accusations, Plaintiff has produced n0 evidence t0 show that Decocrete breached any express warranty. Plaintiff purposefully omits from its pleadings Decocrete’s one—year express warranty for the work itperformed at Parkland, which had expired long before any alleged issues were observed in certain locations 0f the flooring system. More specifically, upon completion 0f the Steri—Soft flooring system, Decocrete provided its 1—year warranty“ which expired a year upon substantial completion 0f the whole Parkland project, 0n October 31, 2015.42 For the duration 0f one year upon substantial completion 0f the project that Decocrete warranted itswork, no issues were reported with the flooring, whether related t0 the installation 0r the performance 0f the Steri-Soft system. The firstNotice related t0 any issues With the flooring was served 0n July 25, 2016,43 almost nine months after the warranty had expired. Decocrete 39 Amended Exhibit A— Plaintiff’s Third Petition atpage 16, par. 31. 40 Id. 41 Exhibit H— One—year warranty 42 Exhibit |- completion Certificate of substantial 43 Exhibit D- Notice to BARA DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY JUDGMENT Page 10 provided n0 other warranties for the installation 0f the Steri—Soft system, hence, Plaintiff has no claim for breach 0f an expressed warranty against this Defendant. Because Plaintiff has failed t0 produce any evidence t0 show any breach 0f any express warranty provided by Decocrete, Plaintiff’s claims fail as a matter 0f law and Decocrete is entitled t0 a summary judgment. C. Plaintiff’s claims for negligence fail because Plaintiff cannot prove that Decocrete breached any dutV 0r that anV such breach caused anV 0f the Plaintiff’s alleged damages T0 succeed on its negligence claim, Plaintiff must establish that a) the Defendant owed a legal duty t0 the Plaintiff; b) the Defendant breached the duty; and c) the breach proximately 44 caused the Plaintiff’s injury. i.There is n0 evidence that Decocrete breached any duty t0 Plaintiff According t0 Plaintiff’s most recent amended pleadings, Plaintiff contends that Decocrete had a common—law duty t0 Plaintiff, that Decocrete breached its duty by failing t0 install the flooring properly, and that Decocrete’s breach of said duty caused Plaintiff’s alleged damages.45 T0 prove an action for negligence, the plaintiff must establish the defendant breached its legal duty.46 A legal duty is breached When a defendant does not meet the required standard 0f care. Here, Plaintiff has produced no evidence t0 show that Decocrete breached any duty 0r that it improperly installed Dudick’s product. In addition, following the application 0f the flooring, n0 punch lists 0r other notes were made as t0 any issues With the installation 0f the product, as evidenced by the complete lack 0f any such documents produced in the voluminous 200,000+ pages 0f responsive documents produced by the parties in this case. 44 Nabors Drilling,USA, Inc. v.Escoto, 288 S.W.3d 401, 404 (Tex. 2009); Western Invs.v.Urena, 162 S.W.3d 547, 550 (Tex. 2005). 45 Exhibit A- ThirdAmended Petition atpage 17, par. 33. 46 Nabors at 404 DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY JUDGMENT Page 11 Plaintiff has failed t0 produce a single document 0r any other evidence that shows any improper installation 0f the flooring by Decocrete at the time of the installation, following installation and until the time that this motion is being filed. Not a single action and/or inaction 0n behalf 0f Decocrete has been identified as non—compliant With the guides and specifications 0f the instructions provided by the manufacturer Dudickm as t0 the installation of their product. Because there is n0 evidence that Decocrete breached any duty, therefore, Plaintiff’s negligence claim fails as a matter 0f law. ii.There is n0 evidence that any action and/or omission 0n behalf ofDecocrete caused any 0f the Plaintiff’s alleged damages Finally, t0 prove an action for negligence, the plaintiff must establish the defendant’s breach of duty proximately caused the Plaintiff’s injury.47 As analyzed above, Plaintiff had plenty 0f time t0 prove its case and produce sufficient evidence t0 establish itsnegligence Claim against Decocrete, yet Plaintiff has produced absolutely n0 evidence t0 support that any action 0r omission on behalf of Decocrete proximately caused the Plaintiff’s alleged damages. In the four years that Plaintiff has been investigating its case there is not a single document that proves that anything that Decocrete did at Parkland’s property contributed t0 Plaintiff’s alleged damages. Because Plaintiff failed to produce any evidence t0 show that Decocrete caused any 0f its alleged damages, Decocrete is entitled t0 a summary judgment. VI. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant Decocrete, LLC prays that this Court grant its Traditional and No—EVidence Motion for Summary Judgment in all respects and enter judgment that Plaintiff take nothing against Defendant Decocrete 0n all Plaintiff’s Claims 47 Nabors Drilling,USA, Inc. at 404; Western Invs. at550. DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO—EVIDENCE MOTION FOR SUMMARY JUDGMENT Page 12 against it,and for such other and further relief t0 Which Defendant Decocrete may be justly entitled and will every pray. Respectfully submitted, WALTERS, BALIDO & CRAH\I, L.L.P. a—AT'L/ CARLOS A. BALIDO State Bar N0. 0163 1230 Meadow Park Tower, Suite 1500 10440 North Central Expressway Dallas, TX 75231 Tel: 214-749-4805 Fax: 214-760— 1 670 balidoedocsnotifications @ wbclawfirm.com ATTORNEY FOR DEFENDANT CERTIFICATE OF SERVICE This is to certify that a true and correct copy 0f the foregoing document has been mailed, faxed, emailed or hand delivered to all parties 0f record, in compliance with Rule 21a of the Texas Rules 0f Civil Procedure, on June 29, 2020. CARLOS A. BALIDO DEFENDANT DECOCRETE, INC.’S TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT Page 13 Exhibit Exhibit A CAUSE NO. DC-18-O8585 DALLAS COUNTY HOSPITAL § IN THE DISTRICT COURT DISTRICT d/b/a PARKLAND HEALTH § & HOSPITAL SYSTEM § § V. § § DALLAS COUNTY, TEXAS BARA, A Joint Venture comprised of § BALFOUR BEATTY CONSTRUCTION, § LLC, AUSTIN COMMERCIAL LP, HJ. § RUSSELL 8t COMPANY and AZTECA § ENTERPRISES; DECOCRETE, INC; § and DUDICK, INC. § 44th JUDICIAL DISTRICT PLAINTIFF’S THIRD AMENDED PETITION Dallas County Hospital District d/b/a Parkland Health 82; Hospital System (”Parkland”), files this itsThird Amended Petition complaining of BARA, a Joint Venture (”BARA”) comprised of Balfour Beatty Construction, LLC, Austin Commercial LP, HJ. Russell 8: Company, and Azteca Enterprises, and DecoCrete, Inc. (”DecoCrete”), and Dudick, Inc. (”Dudick”) (collectively, ”Defendants”), as follows: DISCOVERY CONTROL PLAN AND RULE 47 DISCLOSURE 1. Parkland intends to conduct discovery pursuant to Texas Rule of Civil Procedure 190.3 (Level 3). 2. Pursuant to Texas Rule of Civil Procedure 47, Parkland states that it seeks monetary relief of over $1 million. PLAINTIFF’S THIRD AMENDED PETITION — PAGE 1 JURISDICTION AND JURISDICTION AND VENUE VENUE 3. 3. This This Court Court has has subject subject matter matter jurisdiction jurisdiction inin that that the the amount amount in in controversy controversy exceeds exceeds the minimum jurisdictional limits the minimum limits of of the the Court. Court. 4. 4. Venue Venue is is appropriate appropriate in in Dallas Dallas County, County, Texas Texas because because all all matters matters in in controversy controversy occurred occurred within within the the county, BARA resides county, BARA resides within within the the county, county, and and the BARA the BARA and and Parkland Parkland agreed agreed that that jurisdiction jurisdiction and and venue venue for for any any action action arising arising out out of of the the Agreement Agreement (defined (defined below) below) would would lie lie exclusively exclusively in in the the State State District