McKinney/Pearl Restaurant Partners, L.P. v. Metropolitan Life Insurance Co.
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Full Opinion
MEMORANDUM OPINION AND ORDER
' Before the Court are Defendants Metropolitan Life Insurance Company (MetLife), OBRE, 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 Plaintiff
I.
BACKGROUND
A. Factual History
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. Sambu-ca 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).
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 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 Plaintiffs 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
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. ¶¶ 27-85.
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.” Pl.’s App. 2376-78.
Plaintiff contends that movement-related issues continued during the summer of 2012, and Plaintiff sent another letter expressing its position to MetLife on August 31, 2012. PL’s App. 77. MetLife agreed to pay for a soil analysis, which was conducted in February 2013. Doc. 202, Defs.’ App. 29-30. The results of that study indicated that all “observation wells were observed to be dry on each of the three consecutive weekly readings,” meaning that “either the source of water under the floor slab has been corrected or the available water under the slab has temporarily been distributed to the dryer surrounding area.” Defs.’ App. 1539. Thus, the results of soil testing were, yet again, inconclusive as to the cause of the movement.
Despite these ongoing issues, Plaintiff notified MetLife on March 22, 2013, of its intention to exercise the first five-year renewal option in the Lease. Doc. 280, PL’s CSF ¶¶ 39-40. The Lease provided that renewal rent would be determined by the “Market Rate” at the time of renewal, and it outlined a method for determining the Market Rate in the event that the parties disagreed on the rate. Lease Agreement, Ex. E ¶2. The parties were not able to agree on a Market Rate using the procedures provided in the Lease, so Plaintiff filed the current suit in state court in October 2013. Notwithstanding the pending lawsuit, the parties executed the Third
On October 23, 2015, MetLife transferred the leased premises to .MCPP as part of a larger transaction by which it transferred several real-estate assets to MCPP-affiliated entities across the country. Doc. 202, Defs.’ CSF 35. Defendants admit, however, that MetLife “continues to oversee the Premises on behalf óf MCPP,” and “CBRE continues to manage the Premises.” Id.
B. Procedural History
■ Plaintiff initially filed suit against only MetLife in Texas state court on October 7, 2013. Doc. 2, Notice of Removal, App. 4-17. The original state-court petition included only claims for breach of contract and repudiation/anticipatory breach of contract, as well as requests for specific performance and declaratory judgment. Id, at 12-15. Based on information received in discovery in the breach-of-contract suit, Plaintiff later amended the state-court petition on June 13, 2014, adding CBRE as a defendant and asserting the following tort causes of action against both CBRE and MetLife: (1) fraud; (2) negligent misrepresentation; (3) civil conspiracy; and (4) aiding and abetting.
CBRE timely removed the case to this Court based on diversity jurisdiction. Doc. 1, Notice of Removal. Plaintiff filed its Second Amended Complaint on August 11, 2014 (doc. 13), and its Third Amended Complaint on August 22, 2014 (doc, 17). The Third Amended Complaint added a request for rescission of the Lease renewal. Doc. 17, 3d Am. Compl. ¶ 82.
Because MetLife subsequently sold the leased premises to MCPP, Plaintiffs Fourth Amended Complaint added MCPP as a defendant on and asserted the following claims against it as the current property owner: (1) breach of contract; (2) repudiation/anticipatory breach of contract; and (3) breach of the warranty of quiet enjoyment. Doc. 120, 4th Am. Compl. ¶¶ 41-53. Plaintiff also requested specific performance and declaratory judgment regarding MCPP. Id. ¶¶ 79-84.
Defendants each filed motions for summary judgment on all claims asserted against them on June 17, 2016. Defendants filed a single consolidated statement of facts (doc. 202) and individual motions for summary judgment (docs. 194, 195, 196) with briefs in support (docs, 197, 198, 199). Plaintiff responded with a single consolidated statement of facts (doc. 280) and individual responses (docs. 277, 278, 279), and Defendants replied (docs. 294, 295). Defendants’ motions for summary judgment are ripe for review.
II.
LEGAL STANDARD
Summary judgment is .appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute “is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdicf for the
The burden is on the movant to prove that no genuine issue of material fact exists. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). Usually, this requires the movant to identify “those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). If the non-movant ultimately bears the burden of proof at trial, however, the movant may satisfy its burden just by pointing to the absence of evidence supporting the non-movant’s case. Id. at 322-23, 106 S.Ct. 2548.
If the movant meets, its burden, then the burden shifts to the non-movant to “show with significant probative evidence that there exists a genuine issue of material fact.” Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000) (internal quotation marks omitted) (citing Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994)). “[M]etaphysical doubt as to material facts,” “conclusory allegations,” “unsubstantiated assertions,” or a mere “scintilla of evidence” will not do. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (per curiam). Rather, “the non-mov-ant must go beyond the pleadings and present specific facts indicating a genuine issue for trial.” Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 276 (5th Cir. 2014) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548).
In determining whether a genuine issue exists, the Court views the evidence in the light most favorable to the non-movant. Munoz v. Orr, 200 F.3d 291, 302 (5th Cir. 2000). But .the Court need not “sift through the record in search of evidence to support a party’s opposition to summary-judgment.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)). Rather, the non-movant must “identify specific evidence in the record” and “articulate the precise manner in which that evidence supports [its] claim.” Id. If it cannot do so, then the Court must grant summary judgment. Little, 37 F.3d at 1076.
III.
ANALYSIS
Before getting to the summary judgment motions themselves, there are two preliminary matters the Court must address: (1) the motions to strike, exclude or limit the testimony of experts; and (2) each side’s evidentiary objections to the other’s summary-judgment evidence. •
A. Motions to Strike, Exclude, or Limit Expert Testimony
Defendants filed their motions for summary judgment on June 17, 2016. Docs. 194, 195, 196. Before Plaintiff could respond to the motions for summary judgment, Defendants filed motions to strike or exclude the testimony of fourteen of Plaintiffs designated experts. See supra note 1. Plaintiff responded to each motion, and Defendants replied in turn. After reviewing the vast summary judgment and expert-challenge record, the Court notes that Defendants’ summary-judgment motions are intertwined with, and in large part predicated upon, their challenges to Plaintiffs experts. For example, Defendants attack the causation and damages aspects of each cause of action, arguing that Plaintiff has no evidence of legally recoverable damages attributable to each cause of ac
In apparent response to Defendants’ barrage of expert challenges, Plaintiff launched its own attack on ten of Defendants’ experts. See supra note 2. Defendants responded to each motion, and Plaintiff replied in turn. In the interest of fairness, and because the Court determines these issues can be best handled at or shortly before the time of trial as noted above, Plaintiffs challenges to Defendants’ experts are likewise DENIED without prejudice at this time, subject to their being re-raised at trial.
B. Objections to Summary Judgment Evidence
Next, the Court turns to the parties’ evidentiary objections, beginning with Defendants’ objection to Plaintiffs summary-judgment evidence.
L Defendants’ Objection to Plaintiffs Summary-Judgment Evidence
Defendants’ sole objection to Plaintiffs summary-judgment evidence regards a single statement in the affidavit of Kim Forsythe, Sambuca’s founder and co-owner. Doc. 287, Defs.’ Obj. to Pl.’s Summ. J. Evid [hereinafter Defs.’ Obj.]. Defendants object to Forsythe’s statement that “[t]he economic damages suffered by Sambuca as a result of Defendants’ breach of contract and fraud through May 19, 2016, are set forth by year in Exhibit H hereto, which is incorporated herein by reference.” Doc. 287, Defs.’ Obj. 1. Defendants apparently find objectionable the insinuation that Sambuca’s damages were “a result of’ Defendants alleged conduct. They argue this causation opinion linking Sambuca’s economic damages to Defendants’ conduct is conelusory and unreliable and was not properly disclosed. See generally doc. 287. The Court, however, finds this objection redundant of Defendants’ Motion to Strike Plaintiffs Designation and Exclude Expert Testimony of Non-retained Experts Kim Forsythe, Debbie Barber, Laura Dalager, and Jamie Spurgeon (doc. 228), which the Court has already denied without prejudice above. Therefore, Defendants’ objection is OVERRULED at this time.
2. Plaintiffs Objections to Defendants’ Summary Judgment Evidence
Plaintiff raised numerous objections to Defendants’ summary-judgment evidence (doc. 263), to which Defendants responded (doc. 289). In reply, Plaintiff withdrew several objections but stood on a handful of others. Doc. 336, Pl.’s Reply. As to those remaining objections identified in Plaintiffs Reply (doc. 336), the Court agrees with the reasoning provided by Plaintiff for each objection and SUSTAINS the objection and STRIKES the evidence from the summary-judgment record with the following exceptions:
Plaintiff objected to three emails offered by Defendants. Doc. 263, PL’s Obj. 3. The emails were from Kari Delamore of CBRE to Jill Boyd of Sambuca and were sent in August 2011 and January 2012. Doc. 263, Pl.’s Obj. 3. The first email was from August 30, 2011, in which Delamore explained that Defendants were waiting on a response from their engineering team regarding whether they would be able to repair the “cosmetic” issues immediately after the drain-line replacement, or whether they would need to wait “to allow for settling.” Defs.’ App. 1118-19. Presumably having received a response, Delamore notified Boyd the following day that Defendants would need to wait until the ground dried out. Id. at 1118. The third email, dated January 21, 2012, confirms that the drain-line replacement project was scheduled to begin on January 29, 2012, and notes that Defendants would reassess what steps should be taken once the replacement was completed. Id. at 1120. Plaintiff argues these “emails contain hearsay statements which are not admissible without a hearsay exception.” Doc. 263, PL’s Obj. 3. However, Plaintiff submitted the exact same three emails in its own summary-judgment evidence. PL’s App. 3078 (Aug. 30, 2011 email), 3076 (Aug. 31, 2011 email), 2928 (Jan. 21, 2012 email). Therefore, Plaintiff’s objections to these emails are OVERRULED. See Dark. v. Hous. Methodist San Jacinto Hosp., No. H-14-3640, 2016 WL 2770545, at *2 n.13 & 14 (S.D. Tex. May 12, 2016).
ii. Daniel Cantu deposition excerpt
Next, Plaintiff objected to a portion of the deposition testimony of Daniel Cantu, former chief engineer at CBRE, in which Cantu answered a question posed by Plaintiffs counsel regarding why Defendants would have hired their own plumbing contractor to investigate the drain line if Plaintiffs plumber had already repaired the issue. Doc. 263, PL’s Obj. 4. At the deposition, Plaintiffs counsel asked Cantu the following question:
Q: Okay. Now, if — if EPS corrected and repaired the issues, then why would it be necessary for you to hire TDI to do additional investigation of the main drain line?
Defs.’ App. 361, Dep. of Daniel Cantu 87:3-6. And Cantu answered as follows:
A: It was because maybe the building was still moving. I — I don’t recall. I mean, it was — there was a reason why, but I just don’t recall right now. But if— if — if we have TD — TDI come back after those folks, it’s either I was inspecting EPS’ work to make sure everything was done right or maybe because the building was still moving and we need to do some more in-depth investigation on it.
Defs.’ App. 361, Dep. of Daniel Cantu 87:7-14.
Plaintiff objected that “[tjhese statements are impermissible speculations and are not based on personal knowledge.” Doc. 263, PL’s Obj. 5. Defendants responded that it was Plaintiffs own counsel who asked the question, and “[t]he fact that Sambuca did not like the answers it elicited is not a basis to exclude the testimony.” Doc. 289, Defs.’ Resp. to PL’s Obj. 11.
As Plaintiff notes, every witness must have personal knowledge of the matter about which they testify, regardless of who asks the question. See Fed. R. Evid. 602. However, the Court finds that, as chief engineer at CBRE, Cantu did have the requisite personal knowledge and was not speculating. Plaintiff asked why it would be necessary for CBRE to hire its own contractor; Cantu gave two reasons why it might be necessary: (1) to make sure the work was done right; or (2) because more investigation was needed.
Hi. Corporate representative deposition
Finally, Plaintiff objects to several excerpts from the deposition of its corporate representative, Debbie J, Barber, as being outside the scope of the Rule 30(b)(6) notice. Doc. 263, Pl.’s Obj. 6. For each objection, Plaintiff contends that, “[a]s objected to in the deposition, this line of questions seeks inquiry into topics outside those designated for the deposition. Consequently, the statements are made without sufficient personal knowledge and are speculative.” Id. Defendants responded that Barber was designated as Sambuca’s corporate representative on all topics related to damages and that all of the testimony to which Sambuca objects was within the scope of the noticed Rule 30(b)(6) topics. Doc. 289, Defs.’ Resp. to PL’s Obj. 12. In reply, Plaintiff argues that because the questions reference topics outside the 30(b)(6) notice “[n]one of those questions or corresponding answers from Ms. Barber’s corporate representative deposition can bind Sambu-ca,” and therefore “they all should be excluded from the summary judgment record.” Doe. 336, PL’s Reply to Defs.’ Resp. to PL’s Obj. 10-11. -
As an initial matter, Plaintiff has not directed the Court to the Rule 30(b)(6) deposition notice for the Court to determine whether the line of questioning was or was not within the scope of the notice. However, assuming that Barber was designated as Sambuca’s corporate representa-^ tive “on all topics related to damages” as Defendants allege (and Plaintiff did not dispute), it would appear to the Court that the questions and answers objected to fall within that general scope. Finally, even if the questioning was outside the scope of the 30(b)(6) notice, the Court is not convinced that excluding the evidence would be necessary. Plaintiff is correct that “questions and answers exceeding the scope of the 30(b)(6) notice will not bind the corporation.” United States ex rel. Fisher v. Ocwen Loan Servicing, LLC, 4:12-CV-543, 4:12-CV-461, 2016 WL 2997120, at *9 (E.D. Tex. May 24, 2016) (citing Falchenberg v. N.Y. State Dep’t of Educ., 642 F.Supp.2d 156, 164 (S.D.N.Y. 2008); Detoy v. City and Cty. of S.F., 196 F.R.D. 362, 367 (N.D. Cal. 2000); King v. Pratt & Whitney, a Div. of United Techs., Corp., 161 F.R.D. 475, 476 (S.D. Fla. 1995), aff'd sub nom, King v. Pratt & Whitney, 213 F.3d 646 (11th Cir. 2000)). Such questions and answers “are merely treated as the answers of the individual deponent.” Falchenberg, 642 F.Supp.2d at 164. Therefore, even if the questions and answers were outside the scope of the notice, they would merely be the answers of Debbie J. Barber. Thus, Plaintiffs objections to the questions and answers of its designated corporate representative are OVERRULED.
C. Summary Judgment Motions
The Court now turns to the substance of Defendants’ summary-judgment motions. As noted above, Plaintiff asserts both tort and contract-based claims against MetLife, only contract claims against MCPP, and only tort claims against CBRE. Doc. 120, PL’s 4th Am. Compl. Each defendant has moved for summary judgment on every claim asserted against it. The Court would normally proceed by addressing each defendant’s motion for summary judgment one by one, however, in this case it makes sense to organize the discussion based on cause of action rather than by' motion. Thus, the Court begins with a discussion of MetLife’s motion for summary judgment with regard to the contract-based claims asserted against it as the property owner at the time the alleged breach began. Then it will move to MCPP’s motion for summary judgment regarding the contract
L MetLife’s Motion for Summary Judgment on Plaintiffs Contract-based Claims
Plaintiff asserted three causes of action against MetLife stemming from the Lease Agreement: (1) breach of the agreement; (2) repudiation/anticipatory breach of the agreement; and (3) breach of the express warranty of quiet enjoyment in the Lease. Doc. 120, Pl.’s 4th Am. Compl. ¶¶ 41-53. .Though different causes of action with different elements, the allegations and evidence supporting all three claims are the same: that MetLife failed to “keep and maintain the structural system of the building in good condition and repair” as required under § 7(b)(ii) of the Lease. Id. ¶42. Under Texas law, “[t]he essential elements of a breach of contract action are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach.” Smith Int’l, Inc. v. Egle Grp., LLC, 490 F.3d 380, 387 (5th Cir. 2007) (citing Valero Mktg. & Supply Co. v. Kalama Int’l, L.L.C., 51 S.W.3d 345, 351 (Tex. App.-Houston [1st Dist.] 2001, no pet.)).
In support of its claim for repudiation/anticipatory breach of contract, Plaintiff contends that, following the renewal of the Lease, MetLife has taken the position that “certain language in the renewal option ... obviated ... any obligation to repair areas affected by the structural movement.” Doc. 120, Pl.’s 4th Am. Compl. ¶29. According to Plaintiff, MetLife has “made clear that [it] has no intention of complying with its Lease obligations.” Id. To prevail on a claim for anticipatory breach in Texas, a plaintiff must establish: (1) an absolute repudiation of the obligations; (2) a lack of just excuse for the repudiation; and (3) damage to the nonre-pudiating party. Narvaez v. Wilshire Credit Corp., 757 F.Supp.2d 621, 630 (N.D. Tex. 2010) (citing Gonzalez v. Denning, 394 F.3d 388, 394 (5th Cir. 2004)).
As to Plaintiffs third contract-based claim, Plaintiff contends MetLife’s failure to maintain the structural system of the premises violated the express warranty of quiet enjoyment in the Lease, which provides as follows:
Provided Tenant has performed all of the terms and conditions of this Lease to be performed by Tenant, Tenant shall peaceably and quietly hold and enjoy the Premises for the Term, without hindrance from Landlord or any party claiming by, through, or under Landlord, subject to the terms and conditions of this Lease.
Doc. 120, PL’s 4th Am. Compl. ¶ 50 (citing Lease Agreement § 23(h)). The elements of a traditional claim for breach of the covenant of quiet enjoyment are:
“(1) an intention on the part of the landlord that the tenant shall no longer enjoy the premises;, (2) a material.act by the landlord that substantially interferes with the tenant’s intended use and enjoyment of the premises; (3) an act that permanently deprives the' tenant of the use and enjoyment of the premises; and (4) abandonment of the premises by the tenant within a reasonable time after the commission of the act.” Lazell v. Stone, 123 S.W.3d 6, 11-12
(Tex. App.-Houston [1st Dist.] 2003, pet. denied) (holding that the elements of a breach of the warranty of quiet enjoyment
MetLife acknowledges that the “essence of all of Sambuca’s contract claims (whether styled as a breach of contract, repudiation, anticipatory breach, or breach of the express covenant of quiet enjoyment) is the same — that MetLife failed to make repairs to the Premises.” Doc. 197, Met-Life’s Br. in Supp. of Mot. for Summ. J. 23 [hereinafter MetLife’s Br.]. Instead of attacking specific elements of each contractual claim, however, MetLife asserts the affirmative defenses of waiver and ratification.
i. Consequential damages waiver
First, MetLife argues that § 17 of the Lease Agreement waives all damages other than actual, direct damages for any alleged breach of the Lease Agreement. Id. at 11-13. Plaintiff responds that § 17 is unenforceable as a damages waiver because it was not “conspicuous.” Doc. 278, PL’s Br. in Supp. of Resp. to MetLife’s Mot. for Summ. J. 16 [hereinafter Pl.’s Br.].
Section 17 of the Lease, titled “Landlord’s Default/Tenant’s Remedies,” provides in pertinent part as follows:
.Tenant’s remedies for default hereunder ■and for breach by Landlord of any of its obligations hereunder will be limited to a suit for actual and direct damages and/or injunction.... The liability of Landlord to Tenant for any default by Landlord under the terms of this Lease*755 shall be limited to only Tenant’s actual direct damages therefor.... In no event shall Landlord be liable to Tenant for consequential, punitive or special damages (or any similar types of damages) by reason of a failure to perform (or a default) by Landlord hereunder or otherwise.
Lease Agreement § 17, Plaintiff argues this provision is unenforceable because the “damages waiver is buried at the end of a page-long, uniform paragraph, generically entitled ‘Landlord’s Default/Tenant’s Remedies,’ with no (1) contrasting type, font or color; (2) capitalization; (3) no symbols or other marks to call attention to it; (4) and no heading that would attract the attention of a reasonable person.” Doc. 278, Pl.’s Br. 16.
“A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it.” Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d 170, 179 (5th Cir. 2016) (citing Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 511 (Tex. 1993)). “Whether a term is ‘conspicuous’ or not is a decision for the court.” Tex. Bus. & Com. Code Ann. § 1.201(b)(10). Conspicuous terms include “a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding test of the same or lesser size” or “language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.” Id.
The Court agrees that the waiver language in § 17 is not in contrasting type, color, or font compared to the surrounding text; it has no special symbols or marks; and it uses no special capitalization. It also comes on pages 24 and 25 of a 38-page Lease with almost 100 additional pages of exhibits and amendments. The Court therefore agrees with Plaintiff that' the waiver is not conspicuous. Cf. Yumilicious Franchise, L.L.C. v. Barrie, No. 3:13-CV-4841-L, 2015 WL 1856729, at *8-10 (N.D. Tex. Apr. 23, 2015), aff'd, 819 F.3d 170, 179 (5th Cir. 2016) (finding a damages waiver was conspicuous as a matter of law where the heading was in bold, all capitals, and underlined and where the waiver provision itself was in bold and all capitals).
“[0]nce a court determines that a disclaimer is not conspicuous ..., it may still give effect to. the disclaimer if it is shown that the [plaintiff] had actual knowledge of the disclaimer.” Am. Eagle Ins. Co. v. United Techs. Corp., 48 F.3d 142, 146 (5th Cir. 1995) (citing Cate v. Dover Corp., 790 S.W.2d 559, 561 (Tex. 1990)). “In other words, actual knowledge of the disclaimer overrides the. question of conspicuousness.” Id. MetLife argues that even if the waiver was not conspicuous, Plaintiff was represented by competent counsel and had actual knowledge of the waiver, evidenced by the fact that Plaintiffs previous counsel who negotiated the Lease, in a November 2011 email to Plaintiffs present counsel, acknowledged that “[t]he lease calls for limited remedies to the Tenant, specifically excluding consequential damages.” Doc. 294, MetLife’s Reply 11-12; Defs.’ App. 2013-14. Additionally, MetLife argues, Plaintiff twice acknowledged the consequential-damages waiver: once when it signed the First Amendment to the Lease in 2003, and again when it signed the Second Amendment in 2004. Doc. 294, MetLife’s Reply 12.
The First Amendment, executed on December 31, 2003, between Plaintiff and non-party 2100 Partners, L.P., is four pages long and ■ includes 11 numbered paragraphs. Lease Agreement, First
The Second Amendment, executed on July 8, 2004, again between Plaintiff and non-party 2100 Partn