10 F.3d 300 (5th Cir. 1994), 91-6035, Harvey Const. Co. v. Robertson-CECO Corp.

Docket Nº:91-6035.
Citation:10 F.3d 300
Party Name:HARVEY CONSTRUCTION COMPANY, Plaintiff-Appellant, v. ROBERTSON-CECO CORPORATION, Defendant-Appellee.
Case Date:January 03, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 300

10 F.3d 300 (5th Cir. 1994)




No. 91-6035.

United States Court of Appeals, Fifth Circuit

January 3, 1994

Page 301

J. Mark Brewer, Patrick E. Gaas, Brewer & Pritchard, Houston, TX, for plaintiff-appellant.

Blake Tartt, Fulbright & Jaworski, Houston, TX, for Robertson.

Gary T. Carr, Charles A. Weiss, Bryan Cave, St. Louis, MO, for Robertson-Ceco Corp.

Appeal from the United States District Court for the Southern District of Texas.

Before JOHNSON, GARWOOD, and WIENER, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Harvey Construction Company (Harvey) appeals the district court's order dismissing its complaint pursuant to 28 U.S.C. Sec. 1359 for want of subject matter jurisdiction. Harvey also appeals the denial of its motions for summary judgment and for default judgment and contests the district court's grant of certain discovery motions of defendant-appellee Robertson-Ceco Corporation (Robertson). We reverse and remand the jurisdictional issue. We decline to address the remaining issues.

Facts and Proceedings Below

In March 1978, Harvey became the general contractor for the construction of the 3D/International Office Tower, a multi-story office building in Houston (the 3D building). The owners of the 3D building were Gerald Hines and 3D Tower, Limited, a Texas limited partnership, one of the partners of which

Page 302

was Gerald D. Hines Interests. 1 Gerald Hines is the father of Jeff Hines, one of Harvey's directors and its current sole shareholder.

In August 1978, Harvey subcontracted with Robertson, 2 to design, construct, and install the 3D building's curtain wall system, the nonstructural stainless steel and glass exterior "skin" of the building. The subcontract and the general contract were completed on time, and the 3D building was occupied by June 1979. The $2,425,800.00 subcontract price was timely paid.

In 1987, 3DT commenced negotiations to sell the building to a third party. At issue in these negotiations were defects in the exterior curtain constructed by Robertson. Some of the stainless steel panels were "buckling or delaminating." Robertson declined to take responsibility for these defects as the warranty for its work had expired. 3DT refused Robertson's offer to construct, for new consideration, an overlay to conceal the damage.

In June 1989, 3DT sued Harvey, Robertson, and Hexcel Corporation (Hexcel), one of Robertson's suppliers of materials, in state court in Houston. The damages alleged in this suit arose out of the work covered by Robertson's subcontract.

The subcontract between Harvey and Robertson contained a provision in which Robertson agreed to indemnify and/or defend Harvey for claims arising out of its subcontract work. 3 On September 5, 1990, Harvey sent a written demand to Robertson for indemnification in the suit by 3DT. 4 On September 21, 1990, Robertson sent a reply in which it stated that it could not then agree to indemnify Harvey but would reassess the request at a later time. Robertson claims that it was unsure about the extent of the indemnity request and was waiting for Harvey to clarify its request. Harvey did not file a cross-action for indemnification in 3DT's state court suit, nor did Robertson ever offer to indemnify or to defend Harvey in the 3DT suit.

On January 22, 1991, in the state court suit 3DT dismissed without prejudice all its claims against Robertson and Hexcel, without notice to either, and entered into a settlement agreement and an agreed judgment with Harvey whereby Harvey assumed liability for $3,950,000.00 for breach of contract. As part of the settlement agreement, 3DT assigned to Harvey all of its claims against Robertson arising out of 3DT's suit. On January 29, Harvey brought this action against Robertson in the United States District Court for the Southern District of Texas on the basis of diversity of citizenship, claiming damages for breach of contract, negligence, fraud, negligent misrepresentation...

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