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Everyone Understands Pizza: How the use of a simple analogy helped secure summary judgment from the bench in a construction defect lawsuit.

12.01.2023

Sheehy, Ware, Pappas & Grubbs, PC attorneys, David Wright, Brian Tagtmeier, and Tina Gutierrez represented a window and door supplier that was sued as a third-party defendant in a construction defect case. The general contractor brought claims of negligence, breach of an implied warranty, contribution, and proportionate responsibility against their client, Centex Sash & Door LP.

After failed attempts to confer with the general contractor defendant/third-party plaintiff regarding Centex’s extremely limited role in the completion of the property at the center of the lawsuit, Ms. Gutierrez moved for summary judgment on traditional and no evidence grounds. While many arguments were raised to support the motions, Centex’s involvement with the completion of the property at issue in the lawsuit had to be boiled down to a simple analogy to thwart the general contractor’s attempts to (as the judge called it) “muddy the waters.”

 

At the hearing on the summary judgment motions, Ms. Gutierrez painted a simple picture for the judge at the start: when one orders a pizza from company X through a third-party supplier like Door Dash or Grub Hub these days, and the pizza comes without sauce, clearly, a grave error has occurred. But who would be responsible for making that error? The third-party supplier had no hand in making the pizza; it is company X that would have to remake the pizza and is responsible for the omission. 

With the scene set, Ms. Gutierrez launched into her procedural and substantive arguments. When it was time for the defense counsel to respond, all they could argue was that there was evidence in the record that the windows and doors Centex delivered had issues according to the homeowner plaintiff’s experts. But the judge was not to be distracted and brought defense counsel back to the simple question that was, “But do you have any evidence that Centex’s order and delivery caused those defects or had a role in the manufacture or installation of those items?” After a long pause, the defense counsel was forced to admit, no. 

Defense counsel then tried to argue it was too early to rule on the motions with depositions being set for later that week. On reply, Ms. Gutierrez pointed out that an inspection, disclosures, expert disclosures, and the exchange of written discovery had already been completed by the parties. The fact that the defendant had not served discovery requests on Centex to date should not be used as a shield from summary judgment. 

In the end, the judge was very receptive to Ms. Gutierrez’s presentation and the points made. It was clear to the judge that at a minimum the no-evidence motion for summary judgment had to prevail and announced she was granting the motions. 

Starting with the analogy and weaving it through the presentation clearly had an effect on the judge as she brought it up several times when questioning the defense counsel and praised its use after ruling. The analogy served as a clear fixture to always come back to when defense counsel tried to distract the judge with arguments about defects in the windows, the discovery rule, or the claimed lack of time to fully investigate Centex’s scope of work. 

Judge Madeleine Connor of the 353rd Civil District Court of Travis County heard and ruled on the motions on the spot from the bench.