### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00609- CV

Burger Nat ion, L LC, Appellan t

v. Wukas ch P ropert ies, Ltd., LL P , Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -GN-1 2-0 0216 0, H ONO RAB LE O RLINDA NARANJO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Bur g er Nation, L L C, signe d an ag ree ment t o lease from Wukasch Properties, L td., L L P, two suites , 2328 Guada lupe and 2330 Guada lupe (the L ease d Premises), in the Var sity Building in Austin. Bur ger Nation subsequently sued Wukasch Properties asser ting

cause s of action for fra

udulent inducement, fra

ud in a rea l-estate transac tion, and brea ch of contra ct arising out of its con t enti on that the building’s elec trical sy stem was defe ctive and inadequa te to supply normal elec tric service to the L ease d Premises. The trial court g rante d Wukasch Properties’s motion for summary judgme nt and rende red judgme nt that Bur g er Nation take nothing by its claims.
I n two i s s u es on appea l, Bur g er Nation asser ts that (1) summary judgme nt was improper beca use there wer e fac t issues reg arding whether the building’s elec trical sy stem was defe ctive, and (2) the trial court er re d i n ex cludi ng the aff idavits of two of Bur g er Nation’s expert witnesses. We will affirm.The lease ag ree ment betwee n Wukasch Properties, the lessor, and Bur g er Nation, the

lessee, pr ovides:

11.1 L essor repr esents to L essee that L essor has no current actua l knowledg e of any materia l structura l, mecha nical, plumbing or other building s y s te m defe ct in or aff ecting the L ease d Premises as of the Effe ctive Date. For purposes of the fore g oing sentenc e, the “knowledg e” of L essor is limit ed to the curr ent actua l knowledg e of only Don K. Wukasch and Walter Wukasch, I I , g ener al partne rs of L essor.

I n its lawsuit , Bur g er Nation asser ted that Wukasch Properties brea ched section 11.1 of the lease beca use the elec trical sy stem in the L ease d Premises was defe ctive and Don Wukasch knew of this defe ct. Viewing the disputed and uncontrove rted evidenc e i n t h e l i ght most favor able to Bur g er

1
Nation as the non-movant, the rec ord shows as follows. The Var sity Building is more than 75 y ear s 2
old. I n 2003 and 2004, Wukasch Properties perf ormed a major renovation of the building, including chang es to its elec trical s y s t em. After the renovation was completed, eac h of the two suites comprising the L ease d Premises had a separ ate 200 amp elec trical meter. At the t i m e o f the

renova tions, the build i n g’s p ro p osed elec trical sy stem and metering desig n wer e approve d by the

I n the trial court, Bur g er Nation abandone d its claims of fra udulent inducement and fra ud 1 in a rea l-estate transac tion. I n this appea l, Bur g er Nation challeng es only the trial court’s summary judgme nt on its breach- of-c ontrac t claim and the e x clusion of its ex pert-w itness affidavits. The standards for revie wing a summary judgme nt are well established and undisputed on 2 appea l. See, e.g. , City of

Keller v. W

ilson , 168 S.W .3d 802, 827 (Tex. 2005); see also Goodye ar Tire & Rubber Co. v. Maye

s , 236 S.W .3d 754, 755 (Tex. 2007); Fort W ort h Os t eo

p a t h i c Hosp., Inc. v. Ree se , 148 S.W .3d 94, 99 (Tex. 2004); Ford Motor Co. v. Ridgway , 135 S.W .3d 598, 600 (Tex. 2004); see also Tex. R. Civ. P. 166a. Acc ording ly , we n ee d not repe at them for purposes of our ana ly sis. 2City of Austin and the city ’s elec tric utilit y , Austin Energy , as a condition of obtaining building

permits. The elec trical meters for the L ease d Premises wer e insta l led in acc ordanc e with those
approve d plans. After the renovations wer e completed, th e L ea s ed P remises wer e occupie d by a
tenant who operated its business using the two 200 amp meters with approva l of the City

. The same
two elec trical meters used by the previous tenant rema in and are available for use by Bur g er Nation. Another of the tenants in the Var sity Building operates a restaur ant in two suites with the addre sses 2324 Guada lupe and 2326 Guada lupe. These suites have an elec trical sy stem identical to that of the
L ease d Premises, i.e., two separ ate 200 amp meters, one in eac h suite. I t is undisputed that the two 200 amp meters in the L ease d Premises are still approve d by the City and ar e ava ilable for B urg er Nation’s use.
I n its brie f, Bur g er N ation states that “if the elec trical sy stem serving a commerc ial building is in such a c ondition that a tenant ca nnot obtain service from the utilit y , then t he sy stem is ‘def ect i v e. ’” Bur g er Nation asser ts that “the exis ting phy sical plant of the Var sity Building
prec ludes elec tric ser

vice to the leased premises” and that Bur g er N ation “ca nnot enjoy

the lease d premises without elec tricity .” The basis of Bur g er Nation’s claim of a building-sy stem defe ct is the City ’s ref usal to g rant Bur g er Nation’s reque st to combine the two separ ate 200 amp meters for the
L ease d Premises into a single 400 amp meter. The City ref used to approve the reque sted metering chang e based on its policy that making this chang e to the building’s elec trical sy stem would require

3construction of an elec trical “vault.” The Ci ty informed Burg er N ation that without construction 3
of the “ vault,” no cha

ng es to the existi ng meter de sign w ould be appr oved.
I t is undisputed that Bur g er N ation could have continued to use t he ex isting power supply to the L ease d Premises in the condition in which it exis ted when the lease was signe d. The evidenc e conclu sively established that at the time the lease was signe d, the Var sity Building ’s elec trical sy stem was o p er at i v e, was of a desig n approve d by the City , was supporting another
restaur ant occupy

ing adjac ent suites in the building, and was available for Bur g er Nation’s use. We

ar e u npersua ded by Bur g er Nation’s contention that Austin Energ y ’s require ment that it bu i l d a “vault” in order to make its desired alterations to the power supply in the L ease d Premises rende red the building’s elec trical sy stem “de fe ct i ve.” Absent from the summary -judg ment rec ord is any evidenc e that cre ates a fa ct issue reg arding whether the Var sity Building ’s elec trical sy stem was defe ctive. We over

rule B urg er N ation’s first appe llate issue. Wit h reg ard to the trial court’s exclusion of the aff idavits proff

ere d by Bur g er Nation,
any err or in such exclusion was harmless beca use nei t her aff

idavit contains any evidenc e that the
L ease d Premises did not ha ve an oper ating elec trical powe r supply approve d by

the City available for Burg er Nation to use. The affidavit of Gre g ory W. Miller, P.E., states t hat he i s fa m i l i ar wi t h “the installation or upg rade of elec t ri ca l p o we r distribution sy stems.” Miller aver red that any “re model or upg rade of exis ting elec trical fac iliti es would tri gger t h e require ment for those

Acc ording to Austin Energ y ’s Design Crit eria , a “vault” i s a securable concr ete room or 3 enclosure installed by the customer on the customer’ s proper ty

. The vault is to be secur ed with a n Austin Energ y lock and acc essible only to Austin Energ y

personne l. I t is used for housing Austin Energ y equipment and tra

nsformer s used to supply

power to the customer’ s building. 4g randf

ather ed fac iliti es to be broug ht into compliance with curr ent national and local elec trical codes” and that Bur g er Nation’s reque st to rec onfi g ure the meters in the L ease d Premises did not “see k or require to exceed or overloa d t h e installed capa city of the exis ting Austin Energ y utilit y service lines.” These opinions do not constitute any evidenc e cre ating a fac t issue as to whether the
Var sity Buildi n g’s elec trical sy stem was defe ctive. Nor does Miller’s aff idavit controve rt the undisputed evidenc e that the L ease d Premises had elec trical service available to Bur g er Nation. Rather, Miller simply confirms that any chang es to the exis ting buildin g m et ers would require building the “vault” that the City had informed Bur g er Nation would be neede d in order to make any chang es to the Va

rsity Building ’s elec trical sy stem.
L ikewise, in his aff

idavit Ray mond Thadde us H e nry , J r., P.E., opines that, as of 2011, when one of the Var sity Building ’s tenants remode led its lease d space , the resulting elec tric-se rvice installation was not in compliance with the applicable version of the Austin Energ y Desig n Criteria in effe ct at that time. The summar y -judg ment evidenc e, howe ver, de monstrates that the electrica l service to the Var sity Building as rec onfig ured by the 2011 remode l had been approve d by the City
at that time, that power was being provided to all the tenants of that building, and that power would be p rovided to Bur g er Nation throug h the meters as prese ntly config ured. The fac t that Bur g er Nation’s desired altera tions to the elec trical sy stem would cause the City to require the construction of upg rade s—i.e., building a “vault”—doe s not render the sy stem as it exi sted “de fec tive.”
We also observe that the lease itself provides that the L essee and the L essor expressly disclaimed any implied war ranty that the L ease d Premises would be suitable for the L essee ’s intended commercial purpose and that the i ntention of t he parties to the l ease was that t h e L ease d

5Premises would be lease d “in their then condition and state of repa ir ‘as is,’ ‘whe re is,’ and ‘with all

faults.’” Thus, any

err or in excluding Miller’s a nd Henr y ’s af fidavits was ha

rmless. We overr

ule
Bur g er N ation’s sec ond appellate issue.

CONCLUSION

We affir m the trial court’ s judgme nt.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: Oc tober 29, 2014

6