Mckinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co.

• Decision Date: 15 March 2017
• Docket Number: CIVIL ACTION NO. 3:14–CV–2498–B
• Citation: 241 F.Supp.3d 737
• Parties: MCKINNEY/PEARL RESTAURANT PARTNERS, L.P., Plaintiff, v. METROPOLITAN LIFE INSURANCE COMPANY, CBRE, Inc., f/k/a CB Richard Ellis, Inc., and MCPP 2100 McKinney, LLC, Defendants.
• Court: U.S. District Court — Northern District of Texas

241 F.Supp.3d 737

MCKINNEY/PEARL RESTAURANT PARTNERS, L.P., Plaintiff,

v.METROPOLITAN LIFE INSURANCE COMPANY, CBRE, Inc., f/k/a CB Richard Ellis, Inc., and MCPP 2100 McKinney, LLC, Defendants.

CIVIL ACTION NO. 3:14–CV–2498–B

United States District Court, N.D. Texas, Dallas Division.

Signed March 15, 2017

Christopher R. Ward, Strasburger & Price LLP, Frisco, TX, Andrew F. Carter, Ryan Brent Delaune, Duncan Lawton Clore, Strasburger & Price LLP, Wesley Joseph Bailey, Coffin & Bailey PLLC, Dallas, TX, for Plaintiff.

Joel W. Reese, Katie Galaviz, Tyler J. Bexley, Reese Gordon Marketos LLP, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

JANE J. BOYLE, UNITED STATES DISTRICT JUDGE

Before the Court are Defendants Metropolitan Life Insurance Company (MetLife), CBRE, Inc., f/k/a CB Richard Ellis, Inc. (CBRE), and MCPP 2100 McKinney, LLC's (MCPP) Motions for Summary Judgment. Docs. 194, 195, and 196. For the reasons explained below, MetLife's and MCPP's motions are GRANTED in part and DENIED in part, and CBRE's motion is DENIED.

Also before the Court are (1) Defendants' motions to strike or exclude the testimony of fourteen experts designated by Plaintiff¹ and (2) Plaintiff's motions to exclude or limit the testimony of ten experts designated by Defendants.² As explained in Part III.A below, all motions to strike, exclude, or limit expert testimony filed by either side are DENIED without prejudice at this time.

I.BACKGROUND

A. Factual History³

This landlord–tenant dispute arises from the alleged breach of a lease agreement by the property owner. In short, Plaintiff contends MetLife, the property owner, failed to maintain and repair the structural system of the leased premises as required under the lease and—in conspiracy with CBRE, the property manager—made various misrepresentations regarding the cause of and efforts to remedy the structural issues.

Plaintiff McKinney/Pearl Restaurant Partners, L.P., d/b/a Sambuca (Plaintiff or Sambuca), operates a restaurant in the Uptown neighborhood of Dallas, Texas. Doc. 120, Pl.'s 4th Am. Compl. ¶ 8. Sambuca began as an upscale jazz restaurant in the Deep Ellum neighborhood of Dallas in 1991. Id. On October 6, 2003, Sambuca entered into a commercial lease agreement (Lease Agreement or Lease) with non-party 2100 Partners, L.P. for approximately 9,000 square feet of space to move its restaurant to Uptown. Id. The Lease was for an initial ten-year term with two five-year renewal options. Id. The Lease provided, among other things, that the landlord "shall keep and maintain in good condition and repair: (A) the roof and structural system of the Restaurant Building...." Defs.' App. 1855, Lease Agreement § 7(b)(ii).⁴

After signing the Lease, Plaintiff worked with 2100 Partners, L.P. to commence "the necessary work to finish-out and ready the building." Doc. 280, Pl.'s Consolidated Statement of Facts ¶ 9 [hereinafter Pl.'s CSF]. Aware that the previous tenant had experienced plumbing issues, Plaintiff engaged consultants to investigate and remedy these issues, which Plaintiff contends were resolved at that time. Id.

Less than a year into the Lease, on July 12, 2004, 2100 Partners, L.P. sold the property to MetLife. Doc. 202, Defs.' Consolidated Statement of Facts 10 [hereinafter Defs.' CSF]. Upon purchasing the property, MetLife contracted with the previous property manager—Trammell Crow Company, which merged with CB Richard Ellis, Inc. in December 2006 and later became CBRE—to continue managing the property. Doc. 202, Defs.' CSF 11; Doc. 280, Pl.'s CSF ¶ 11.

On June 2, 2009, Plaintiff notified CBRE that it was "seeing a TON of movement in the building lately," specifically complaining of drywall damage, an inoperable door, and an expanding crack in the concrete floor of the kitchen area. Defs.' App. 100. CBRE sent an employee to observe the damage, engaged a contractor to rule out the possibility that a leak under the building was causing the movement, and notified MetLife of the issue. Doc. 202, Defs.' CSF 12–13; Defs.' App. 1698. Having determined that the plumbing lines beneath the building were intact, CBRE hired a structural engineer to investigate the cause of the cracking. Doc. 202, Defs.' CSF 13. CBRE's structural engineer believed that soil expansion, or heave, under the east side of the building was the most likely cause. Id. Thus, in the summer of 2009, CBRE and MetLife began a "phased investigation" to determine the cause of the heave. Id. This so-called "phased investigation" is at the center of the dispute between the parties. Defendants contend that the "phased investigation" was necessary to systematically eliminate possible causes of the heave, starting with the most likely and moving to the least likely. Id. Plaintiff, on the other hand, argues the "phased investigation" was merely a ruse to delay necessary repairs and ultimately drive Sambuca out of the leased property in favor of a more profitable tenant. Doc. 280, Pl.'s CSF ¶¶ 17–18.

The investigation started with the excavation of two test pits to observe the voids underneath the grade beam in July 2009. Doc. 202, Defs.' CSF 13; Doc. 280, Pl.'s CSF ¶ 18. The following month, CBRE's structural engineer also ordered the excavation and examination of the flume trench drain. Doc. 202, Defs.' CSF 14. Neither revealed the cause of the heave, and in August 2009, CBRE's structural engineer recommended additional geotechnical testing. Id. In September 2009, Sambuca experienced a partial drain-line collapse, which it attributed to the "movement" issues previously reported to CBRE. Doc. 280, Pl.'s CSF ¶¶ 19–21; Doc. 202, Defs.' CSF 18–19. Sambuca hired a plumber to replace the collapsed portion of the drain line, and upon CBRE's recommendation, MetLife reimbursed Sambuca for the repair. Doc. 280, Pl.'s CSF ¶¶ 19–21; Doc. 202, Defs.' CSF 18–19. Sambuca's plumber recommended replacing additional portions of the drain lines, as did Defendants' own contractor, but "CBRE decided to continue the ongoing investigation that [Defendants] had started in June" instead. Doc. 202, Defs.' CSF 16–17.

Sambuca "continued to experience significant structural movement and related distress" throughout the fall of 2009 and, on November 3, 2009, sent a letter to CBRE detailing the ongoing issues. Doc. 280, Pl.'s CSF ¶ 21; Pl.'s App. 2445. Plaintiff sent an additional letter noting "increasing foundation issues and expenses incurred ... in relation to such" on December 8, 2009. Doc. 280, Pl.'s CSF ¶ 21; Pl.'s App. 2471. In February 2010, CBRE ordered the geotechnical tests previously recommended by its structural engineer. However, the additional testing did not reveal the cause of the structural movement. Doc. 280, Pl.'s CSF ¶ 23; Doc 202, Defs.' CSF 19–20. CBRE also retested the plumbing lines for leaks in March 2010—and found none—and sent cameras down the grease-drain lines. Doc 202, Defs.' CSF 19–20. CBRE's structural engineer also recommended a zip elevation survey, which MetLife paid for in June 2010. Id. Although both Plaintiff's and Defendants' consultants recommended replacing additional sections of the drain lines, MetLife "decided to hold off on replacing the main drain lines" because these "geotechnical tests did not indicate that drain lines were leaking and causing the heave." Id.

In July 2010, Sambuca again notified CBRE that it was experiencing building distress. Id. at 21. CBRE's structural engineer inspected the building again in August 2010 but was still unable to locate the cause of the movement. Id. at 22. He recommended waiting another six months to conduct a second elevation survey. Id. In the meantime, CBRE hired a contractor to apply epoxy to fill the cracks in the floor. Id. In March and April 2011, MetLife paid for the second floor elevation survey and hired a contractor to re-camera the drain lines, which revealed broken and missing sections of pipe in the lines. Id.

During the summer of 2011, Plaintiff sent several additional notices to MetLife and CBRE documenting the issues it continued to experience and complaining about the length of the investigation. Id. On August 22, 2011, CBRE responded by letter that the drainage and foundation issues at the property were "one-in-the-same" and that CBRE planned to completely replace the two primary drain lines at Sambuca beginning in January 2012 to "correct defects caused by movements in foundation." Defs.' App. 744. Later, on November 8, 2011, Defendants' counsel also informed Plaintiff that after the drain line replacement project was completed, it would take 12 to 18 months for the ground to "fully settle," after which "the remaining repairs to the structural system of the building [would] then be completed." Doc. 280, Pl.'s CSF ¶ 30. Plaintiffs contend such representations were made to them repeatedly by various representatives of both CBRE and MetLife. Id. Although Plaintiff expressed doubt—both before and after the drain line replacement project—that the drainage and plumbing issues were causing the foundation movement, Plaintiff contends it went along with the repair plan with the understanding that all of the structural issues would eventually be addressed after the ground "settled." Id. ¶¶ 27–35.

The drain-line replacement project began in January 2012 and was completed in March 2012. Id. ¶ 37. MetLife paid for the project, which was completed after hours so Sambuca did not have to shut down the restaurant. Doc. 202, Defs.' CSF 25–26. On April 19, 2012, Sambuca reiterated to CBRE by email that it did not believe the drainage issues were causing the foundation movement. Defs.' App. 304–08. In response, MetLife sent a letter on May 3, 2012, stating it was "confident, although unable to guaranty, that the primary source of moisture under the foundation [had] been remedied" and that Defendants were "past the stage of expending additional time and money on further research and work unless and until it is determined that the work performed to date does not solve the problem."...