FILED
`DALLAS COUNTY
`1/31/2020 6:23 PM
`FELICIA PITRE
`DISTRICT CLERK
`
`CAUSE NO. DC-18-16397
`
`Treva Parker-Ayodele
`
`IN THE DISTRICT COURT OF
`
`DALLAS COUNTY, TEXAS
`
`193rd JUDICIAL DISTRICT
`
`§ § § § § § § §
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`§ § §
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`BORAL WINDOWS LLC F/K/A
`
`HEADWATERS WINDOWS, LLC;
`
`HEADWATERS WINDOWS, LLC
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`N/K/A BORAL WINDOWS LLC,
`
`Plaintiff,
`
`V.
`
`WILLIAM E. ROBINSON, JR.,
`
`Defendant.
`
`PLAINTIFF’S AMENDED MOTION TO RECONSIDER
`
`PORTION OF OCTOBER 41 2019 ORDER
`
`January 31, 2020
`
`Respectfully submitted,
`
`/s Stephanie D. Clouston
`Stephanie D. Clouston
`Texas State Bar No. 24002688
`
`stephanie.clouston@alston.com
`Newman A. Nahas
`
`State Bar No. 24091576
`
`newman.nahas@alston.com
`Heather C. Barger
`Texas State Bar No. 24089036
`
`heather.barger@a1ston.c0m
`ALSTON & BIRD LLP
`
`Chase Tower
`
`2200 Ross Avenue, Ste. 2300
`
`Dallas, Texas 75201
`(214) 922-3400 — Telephone
`(214) 922-3 899 — Facsimile
`
`ATTORNEYS FOR PLAINTIFFS
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`PLAINTIFFS’ AMENDED MOTION TO RECONSIDER - Page i
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`TABLE OF CONTENTS
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`I.
`
`Il.
`
`INTRODUCTION .............................................................................................................. 1
`
`BACKGROUND ................................................................................................................ l
`
`A.
`
`B.
`
`C.
`
`D.
`
`Defendant Makes Promises Not to Compete with Headwaters Windows,
`LLC in Connection with Receiving $240 Million in Consideration....................... 1
`
`Headwaters Windows, LLC Simply Changes Its Name to Boral Windows
`LLC. ........................................................................................................................ 2
`
`Despite The Clear Evidence Otherwise, Defendant Has Nonetheless
`Asserted That Boral Windows LLC Is An Entirely Distinct Entity From
`Headwaters Windows, LLC. ................................................................................... 3
`
`Misled by Defendant’s False Representation, This Court Erroneously
`Granted Defendant Summary Judgment on The Basis that Boral Windows
`LLC Lacked Standing. ............................................................................................ 3
`
`III.
`
`ARGUlVIENT AND AUTHORITIES ................................................................................. 4
`
`A.
`
`B.
`
`To Warrant Traditional Summary Judgment, Defendant Was Required to
`Conclusively Negate the Possibility that Boral Windows LLC Had
`Standing. ................................................................................................................. 4
`
`Defendant Does Not Come Close to Conclusively Negating Boral
`Windows LLC’s Standing and So Summary Judgment Was Erroneously
`Entered as to Standing. ........................................................................................... 5
`
`1.
`
`2.
`
`3.
`
`The Incontrovertible Facts and Settled Law Conclusively Establish
`That Boral Windows LLC Has Standing. ................................................... 5
`
`Defendant’s Entire Strategy Rests on Confusion ........................................ 9
`
`Defendant Is in any Case Estopped from Denying that Boral
`Windows LLC Has Standing. ................................................................... 10
`
`IV.
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`CONCLUSION ................................................................................................................. 1 1
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`PLAINTIFFS’ AMENDED MOTION TO RECONSIDER - Page ii
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`TABLE OF AUTHORITIES
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`Page(s)
`
`CASES
`
`ConocoPhillips Co. v. Koopmann,
`547 S.W.3d 858 (Tex. 2018) ......................................................................................................4
`Drennan v. Cmty. Health Inv. Corp,
`905 S.W.2d 81 1 (Tex. App—Amarillo 1995, writ denied) ...................................................... 5
`Harley-Davidson Motor Co. v. Young,
`720 S.W.2d 211 (Tex. App—Houston [14th Dist] 1986, no writ) .......................................... 5
`H0 Wah Genting Kintron Sdn Bhd v. Leviton Mfg. Co.,
`163 S.W.3d 120 (Tex. App—San Antonio 2005, no pet.) ........................................................ 6
`In re H&R Block Fin. Advisors, Inc.,
`235 S.W.3d 177 (Tex. 2007) ...................................................................................................... 6
`In re ReadyOne Indus, Inc.,
`294 S.W.3d 764 (Tex. App—E1 Paso 2009, no pet.) ............................................................ 7, 8
`Kassira v. RHE Hatco, Inc.,
`
`No. 2-09-295-CV, 2010 Tex. App. LEXIS 7799 (Tex. App—Fort Worth
`Sep. 23,2010, no pet.) ........................................................................................................... 7, 8
`N. Nat. Gas Co. v. Vanderburg,
`785 S.W.2d 415 (Tex. App—Amarillo 1990, no writ) ............................................................. 6
`Nelson v. Detroit & Sec. Tr. Co.,
`56 S.W.2d 860 (Tex. Comm’n App. 1933) ................................................................................ 6
`Randall’s Food Markets, Inc. v. Johnson,
`891 S.W.2d 640 (Tex. 1995) ..................................................................................................4, 5
`See Sanchez v. Deutsche Bank Nat ’l Tr. Co.,
`
`No. 14-13-00272-CV, 2014 Tex. App. LEXIS 13541 (Tex. App—Houston
`[14th Dist.] Dec. 18, 2014, no writ) ........................................................................................... 6
`ZTE Corp. v. Universal Tel. Exch, Inc.,
`No. 05-17-00781-CV, 2018 Tex. App. LEXIS 9436 (Tex. App—Dallas
`Nov. 19, 2018, pet. denied) ........................................................................................................4
`Zuniga v. Wooster Ladder Co.,
`119 S.W.3d 856 (Tex. App—San Antonio 2003, no pet.) ........................................................ 6
`
`PLAINTIFFS’ AMENDED MOTION TO RECONSIDER - Page iii
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`

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`I.
`
`INTRODUCTION
`
`Plaintiffs respectfully request that this Court reconsider its October 4, 2019 Order to the
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`extent that Order granted summary judgment as to Boral Windows LLC’S claim under the
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`Non-Competition and Non-Solicitation Agreement (the “Non-Compete Agreement”). The
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`hearing is scheduled on Plaintiffs’ Motion to Reconsider on Friday, February 7, 2020, at 11:15
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`am. In seeking summary judgment, Defendant misled this Court by falsely representing that
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`Headwaters Windows, LLC, the counter-signatory to the Non-Compete Agreement, is a distinct
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`legal entity from Boral Windows LLC. In fact, contrary to Defendant’s assertion otherwise,
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`Headwaters Windows, LLC simply changed its name to Boral Windows LLC. As a matter of
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`controlling Texas law, therefore, Boral Windows LLC is the same continuing legal entity as
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`Headwaters Windows, LLC and thus had and has standing (without need of assignment) to
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`enforce the Non—Compete Agreement, for which Defendant received over $240 million in
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`consideration.
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`Accordingly, since this Court’s October 4, 2019 Order granted summary judgment based
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`on the premise that Boral Windows LLC lacked standing, and since this is manifest error,
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`Plaintiffs respectfully request that this Court reconsider its ruling in relevant part to correct this
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`error.
`
`11.
`
`BACKGROUND
`
`A.
`
`Defendant Makes Promises Not to Compete with Headwaters Windows, LLC in
`Connection with Receiving $240 Million in Consideration.
`
`In 2016, Defendant sold his window-manufacturing company to Headwaters Windows,
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`LLC for more than $240 million. See Third Am. Pet. 11 10. As the windows industry is small
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`and relationship-driven, it was essential to the deal that Defendant agree not to compete with the
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`business after selling it. Indeed, it was hard for Boral to imagine how its new acquisition could
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`PLAINTIFFS’ AMENDED MOTION TO RECONSIDER - Page 1
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`survive (much less command $240 million) if Defendant—who had decades of experience and
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`the relationships that go with it—was intending to compete with his former business.
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`Accordingly, in connection with this sale and as part and parcel of the bargain for which
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`the parties negotiated, Defendant promised not to compete with Headwaters Windows, LLC and
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`also Signed two separate agreements restricting him to this effect. See EX. A, Non-Competition
`
`and Non—Solicitation Agreement (“Non-Compete Agreement”); Ex. B, Employment Agreement.
`
`B.
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`Headwaters Windows, LLC Simply Changes Its Name to Boral Windows LLC.
`
`In September 2017, Headwaters Windows, LLC changed its name to Boral Windows
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`LLC. See EX. C, Sept. 2019 J. Charlton Aff. 11 5; EX. E, M. Mildenhall Aff. W 4, 5, EX. 1. The
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`only change that Headwaters Windows, LLC made to its charter was to amend its name. See
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`Ex. E, M. Mildenhall Aff. 1H] 4, 5, Ex. 1. Headwaters Windows, LLC did not unwind or
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`terminate its business. See EX. E, M. Mildenhall Aff. 11 4. Rather, it remained the same
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`continuing entity, simply doing business under a new name. See id.
`
`In changing its name to Boral Windows LLC, Headwaters Windows, LLC retained and
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`continued to perform all of its then-existing obligations and retained and continued to invoke all
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`of its then-existing rights. See id.; Ex. F, C. Clark Aff. Exs. 1, 2. Headwaters Windows, LLC
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`continued to use the same tax identification number after it changed its name to Boral Windows
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`LLC (and continues to use the same tax identification number to this day). See EX. E,
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`M. Mildenhall Aff. 11 4.
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`After Headwaters Windows, LLC changed its name to Boral Windows LLC, Defendant
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`continued to accept payment from Boral Windows LLC in satisfaction of agreements that were
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`signed in the name of Headwaters Windows, LLC. See EX. F, C. Clark Aff. Exs. 1, 2. And
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`Defendant has taken the view, when it is convenient for him, that Boral Windows LLC is the
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`obligor on any obligations that Headwaters Windows, LLC owed to him. See Defendant’s
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`PLAINTIFFS’ AMENDED MOTION TO RECONSIDER - Page 2
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`Motion for Summary Judgment (filed June 24, 2019) (“Defendant’s June Motion”), 12
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`(acknowledging that “Headwaters Windows, LLC [is] now known as Boral Windows LLC” to
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`further Defendant’s argument that Defendant was excused from performance because “Plaintiff
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`Boral Windows LLC breached the Employment Agreement”); see also Ex. E, M. Mildenhall
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`Aff. Ex. 2.
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`C.
`
`Despite The Clear Evidence Otherwise, Defendant Has Nonetheless Asserted That
`Boral Windows LLC Is An Entirely Distinct Entity From Headwaters Windows,
`LLC.
`
`When Boral Windows sued Defendant for his violations of his obligations, Defendant
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`moved for summary judgment on all of Boral Windows LLC’s claims, raising a number of
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`meritless arguments.1 Perhaps most striking in this regard, Defendant argued that Boral
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`Windows LLC could not enforce the Non-Compete Agreement because Boral Windows LLC
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`was not a party to that agreement.2 When Boral Windows LLC responded that it was the same
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`entity as Headwaters Windows, LLC, just with a new name,3 Defendant disingenuously denied
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`this and even accused Boral Windows LLC and its witnesses of perjury.
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`D.
`
`Misled by Defendant’s False Representation, This Court Erroneously Granted
`Defendant Summary Judgment on The Basis that Boral Windows LLC Lacked
`Standing.
`
`On October 4, 2019, this Court dismissed Boral Windows LLC’s breach-of-contract
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`claim related to the Non-Compete Agreement, on the ground that Boral Windows LLC lacked
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`standing to assert it.4 The Court denied the motion in all other respects.5
`
`
`
`' See Def’s June Mot.
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`2 See id.
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`3 See Pl.’s Resp. to Def.’s Mot. for Summ. J. (filed Sept. 19, 2019).
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`4 See Order on Def.’s Mot. for Summ. J. (signed Oct. 4, 2019).
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`5 See id.
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`PLAINTIFFS’ AMENDED MOTION TO RECONSIDER - Page 3
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`As explained herein, this Court was led into error by Defendant’s misrepresentations, and
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`Plaintiffs respectfully request that this Court reconsider its prior ruling to correct this error.
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`III.
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`ARGUMENT AND AUTHORITIES
`
`“Courts have inherent authority to change or modify any interlocutory order until the
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`judgment becomes final.” ZTE Corp. v. Universal Tel. Exch, Inc., No. 05-17-00781-CV, 2018
`
`Tex. App. LEXIS 9436, at *16 (Tex. App—Dallas Nov. 19, 2018, pet. denied). Here, this Court
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`should exercise that authority to correct the manifest error which Defendant’s misrepresentations
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`led it to make when it granted in part Defendant’s Motion for Summary Judgment in its October
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`2019 Order.
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`To warrant traditional summary judgment, Defendant was required to proffer evidence
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`that conclusively negated the possibility that Boral Windows LLC had standing. Far from this
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`requirement being met, the exact opposite is true:
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`the incontrovertible evidence and settled law
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`conclusively confirms, rather than negates, that Boral Windows LLC does have standing. Thus,
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`entry of summary judgment on the basis that Boral Windows LLC lacks standing was plain error
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`and reconsideration is required to correct it.
`
`A.
`
`To Warrant Traditional Summary Judgment, Defendant Was Required to
`Conclusively Negate the Possibility that Boral Windows LLC Had Standing.
`
`To warrant traditional summary judgment, Defendant was required to “show that no
`
`genuine issue of material fact exists and that [he] is entitled to judgment as a matter of law.”
`
`ConocoPhillipS Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex. 2018). In deciding whether
`
`Defendant carried this burden, the Court “must accept as true evidence in favor of the non-
`
`movant, indulging every reasonable inference and resolving all doubts in his or her favor.”
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`Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Additionally, in
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`contrast to a no-evidence motion, motions for traditional summary judgment “must stand on their
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`PLAINTIFFS’ AMENDED MOTION TO RECONSIDER - Page 4
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`,
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`
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`own merits’
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`that is, the nonmovant’s failure to produce evidence “cannot supply by default the
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`summary judgment proof necessary to establish the movant’s right.” Harley-Davidson Motor
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`Co. v. Young, 720 S.W.2d 211, 213 (Tex. App—Houston [14th Dist] 1986, no writ). Thus,
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`even where a non—movant fails to come forward with evidence in favor of an element of its
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`claim, traditional summary judgment must still be denied unless the movant comes forward with
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`evidence or argument sufficient to “conclusively negate” the plaintiff’s right. Randall ’3 Food
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`Markets, 891 S.W.2d at 644.
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`Here, as shown, Defendant falls far short of carrying his summary judgment burden. In
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`fact, far from “conclusively negating” Boral Windows LLC’s standing, the incontrovertible
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`evidence and settled law conclusively confirm the opposite: that Headwaters Windows, LLC
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`simply changed its name to Boral Windows LLC, and, under controlling authority, a mere
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`change has no effect on the rights of the entity that has changed its name.
`
`B.
`
`Defendant Does Not Come Close to Conclusively Negating Boral Windows LLC’s
`Standing and So Summary Judgment Was Erroneously Entered as to Standing.
`
`1.
`
`The Incontrovertible Facts and Settled Law Conclusively Establish That
`Boral Windows LLC Has Standing.
`
`Defendant baselessly argued that the promises he made under the Non—Compete
`
`Agreement were made to Headwaters Windows, LLC (and not Boral Windows LLC), and so
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`Boral Windows LLC lacks standing to enforce those promises. This argument ignores the
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`elephant in the room—that Headwaters Windows, LLC merely underwent a name change to
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`Boral Windows LLC. The Certificate of Amendment,6 which shows the name change, is not just
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`probative but conclusive evidence of this fact. See, e.g, Drennan v. Cmty. Health Inv. Corp,
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`905 S.W.2d 811, 818 (Tex. App—Amarillo 1995, writ denied) (finding evidence in the form of
`
`6 EX. E, M. Mildenhall Aff. 1] 5, EX. 1.
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`PLAINTIFFS’ AMENDED MOTION TO RECONSIDER - Page 5
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`an “Amended and Restated Certificate of Incorporation” which did “nothing more than to effect
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`a change of the name of the corporation” to be dispositive and concluding that “[c]onsequently,
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`the issue of the name change is immaterial”). Thus, Headwaters Windows, LLC is the same
`
`entity as Boral Windows LLC as a matter oflaw. See, e.g., Ho Wah Genting Kintron Sdn Bhd
`
`v. Leviton Mfg. Co., 163 S.W.3d 120, 129 (Tex. App—San Antonio 2005, no pet.) (finding that
`
`“HWG Kintron was the same entity as Kintron Sdn Bhd because the company had merely
`
`undergone a name change”).
`
`Far from giving Defendant the right to breach his prior promises, the fact that the entity to
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`whom Defendant made those promises changed its name is of no import. “A corporate name
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`change has no eflect on the identity of the company or its rights and liabilities.” Zuniga v. Wooster
`
`Ladder Co., 119 S.W.3d 856, 862 (Tex. App—San Antonio 2003, no pet). This is true as a matter
`
`of law. See N. Nat. Gas Co. v. Vanderburg, 785 S.W.2d 415, 421 (Tex. App—Amarillo 1990, no
`
`writ) (“As a matter of law, a corporate name change does not affect its identity, property rights, or
`
`liabilities”).7
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`Thus, as a matter of controlling law, Boral Windows LLC has standing to seek redress for
`
`the injuries Defendant caused when it was doing business as Headwaters Windows, LLC, and
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`Defendant’s suggestion otherwise is frivolous. See Sanchez v. Deutsche Bank Nat’l Tr. Co., No.
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`14-13-00272-CV, 2014 Tex. App. LEXIS 13541, at *15 (Tex. App—Houston [14th Dist.] Dec.
`
`18, 2014, no writ) (“Homeward Residential was not required to substitute itself as a party because
`
`its corporate name change had no effect on the proceedings”); see also In re H&R Block Fin.
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`7 Indeed, the premise that Defendant’s Motion flouts is not only well—settled but is long—settled.
`See, e.g., Nelson v. Detroit & Sec. Tr. Co., 56 S.W.2d 860, 862 (Tex. Comm’n App. 1933) (“The mere
`change of name has no effect whatever upon the identity of a corporation, or upon its property rights or
`liabilities”).
`
`PLAINTIFFS’ AMENDED MOTION TO RECONSIDER - Page 6
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`Advisors, Inc., 235 S.W.3d 177, 178 (Tex. 2007) (finding that H&R Block had standing to assert
`
`the rights of Olde without an assignment because “H&R Block tendered affidavits and a Certificate
`
`of Amendment showing that Olde .
`
`.
`
`. changed its name to H&R Block”); In re ReadyOne Indus,
`
`Inc., 294 S.W.3d 764, 771 (Tex. App—El Paso 2009, no pet.) (“It is clear that in Texas a corporate
`
`name change does not affect the contractual obligations of parties existing prior to the name
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`change, so a business entity with a new name may invoke an arbitration agreement that was signed
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`by the same company prior to the name change”).8
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`In fact, Plaintiffs are unaware of a single decision in which any court has held that a
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`corporate name change deprives the entity that changed its name of standing to sue for redress of
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`injuries that were suffered prior to the name change. Likewise, Plaintiffs are unaware of a single
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`decision in which any court has held that an entity that changes its name must assign to itself its
`
`prior rights. On the contrary, Defendant’s argument has been uniformly rejected by courts and
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`unequivocally so.
`
`For example,
`
`in Kassira v. RHE Hatco, Inc., the defendant, Kassira, argued that the
`
`plaintiff, Hatco, lacked standing to enforce a credit agreement because “the name listed on the
`
`credit agreement that he signed on behalf of Western Fashion shows Hat Brands, Inc. as the
`
`creditor entity and not Hatco.” No. 2-09-295-CV, 2010 Tex. App. LEXIS 7799, at *7 (Tex. App.—
`
`Fort Worth Sep. 23, 2010, no pet). The plaintiff insisted that, because its original counterparty to
`
`the credit agreement had changed its name, an assignment was necessary. See id. at *8—9 (“Kassira
`
`argue[d] that Hatco has failed to establish standing because it has provided no proof of an
`
`
`
`8 See also Pl.’s Resp. to Def.’s Mot. for Summ. J. Ex. A W 2—3, 5 (defining “Boral” and
`“Headwaters” to mean Boral Windows LLC and Headwaters Windows, LLC, and providing that, “[i]n
`September 2017, Headwaters changed its name to Boral. Boral is the same entity as Headwaters, just with
`a new name”); Ex. E, M. Mildenhall Aff. ll 5, Ex. 1 (Certificate of Amendment showing that Headwaters
`Windows, LLC underwent a name change to “Boral Windows LLC”).
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`PLAINTIFFS’ AMENDED MOTION TO RECONSIDER - Page 7
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`assignment of the credit agreement from Hat Brands, Inc.
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`to Hatco”). The Kassira court
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`summarily rejected this argument—the same argument that Defendant makes here. Specifically,
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`the court concluded: “Because Hatco is the same entity as Hat Brands, Inc., the debt owed by
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`Kassira for the Western Fashion account is owed to Hatco” and “Hatco has standing to sue Kassira”
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`without any need for an assignment.
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`Id. at *9. The same is true here. Because Boral Windows
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`LLC is the same entity as Headwaters Windows, LLC, Defendant owes to Boral Windows LLC
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`the same promises he made to Headwaters Windows, LLC, and Boral Windows LLC has standing
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`to sue Defendant for his violation of these promises without any need for an assignment.
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`A mere name change does not even come close to excusing Defendant from his obligations.
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`As the court in In re ReadyOne Indus. explained, anything short of a windup does not extinguish
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`an entity’s rights or create the need for an assignment. 294 S.W.3d at 771 (finding that despite “a
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`series of amendments or restatements of corporate purpose” the company “still exists” because “to
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`terminate a corporate existence, the business entity must conduct a windup”) (emphasis added)).
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`Here, not only does Defendant fail to offer a shred of evidence that Headwaters Windows, LLC
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`was wound up, but the evidence is conclusive that it was not. See Ex. C, Sept. 2019 J. Charlton
`
`Aff. W 2—3, 5; Ex. E, M. Mildenhall Aff. fl 4, 5, Ex. 1; Ex. D, Dec. 2019 J. Charlton Aff. 1111 5—6.
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`And Defendant knows this.9
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`Accordingly, Boral Windows LLC has standing to assert (without assignment)
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`contractual rights under agreements it entered when it was doing business as Headwaters
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`9 In fact, the only change to the corporate family that took place after Headwaters Windows, LLC
`entered the agreements with Defendant was that Headwaters Windows, LLC came to have a new corporate
`grandparent, Boral Industries, Inc, when Boral Industries, Inc. on May 2017 purchased Headwaters
`Incorporated (the parent of Headwaters Windows, LLC). Coming to have a new corporate grandparent is
`not a windup, of course, and does not cause an entity to lose standing or trigger the need for for an
`assignment. Indeed, to suggest that a change in the identity of a legal entity’s ownership causes a change
`in the identity of the legal entity itself runs afoul of the most basic tenets of the law governing business
`organizations.
`
`PLAINTIFFS’ AMENDED MOTION TO RECONSIDER - Page 8
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`Windows, LLC. Far from warranting summary judgment, Defendant’s standing arguments are
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`frivolous.
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`2.
`
`Defendant ’s Entire Strategy Rests on Confusion.
`
`Given the overwhelming legal authority and factual evidence supporting that Boral
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`Windows LLC has standing to assert the rights of Headwaters Windows, LLC, Defendant
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`unsurprisingly resorts to deliberate equivocation. He asserts that it is a “bold—faced [sic] lie” that
`
`Headwaters Windows, LLC changed its name to Boral Windows LLC, Def.’s Am. Mot. for
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`Trad’l Summ. .I. on Remaining Claims (filed Dec. 19, 2019) 11 50, and he cites the fact that
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`“Boral” acquired “Headwaters” as proof that the latter did not simply change its name to the
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`former, id. 11 14 (arguing that “Boral solidifies its propensity to mislead this Court by falsely
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`claiming Boral and Headwaters have always been one in the same. As has been made
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`abundantly clear, Boral's initial acquisition of Headwaters in May 2017, is more than a mere
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`name swap”). But notice that Defendant deliberately avoids specifying which Boral and which
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`Headwaters entity he is referring to but uses the shorthand “Boral” and “Headwaters” in this
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`instance.10 This is no accident.
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`Using the precise names reveals Defendant’s sleight of hand for what it is. On May
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`2017, Boral Industries, Inc. purchased Headwaters Incorporated. But Boral Industries, Inc. is
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`not Boral Windows LLC, and Headwaters Incorporated is not Headwaters Windows, LLC.
`
`'0 See also Mot. for Summ. J. Hr’g (Sept. 26, 2019) at 13 (“They want you to believe that he was
`dealing with Boral and that’s who the noncompetition agreement was with. The reason being was because
`they — Billy had to assign it and they couldn’t do that. And he didn’t give written consent which was
`required and I will show that you [sic] in just a bit. But they want you to believe now that at all times, and
`we know that’s not true. And we know that as of May 8th, 2017 Boral and Headwaters were still two
`separate companies, although Boral owned Headwaters but they were not one and [sic] the same”)
`(emphasis added).
`
`PLAINTIFFS’ AMENDED MOTION TO RECONSIDER - Page 9
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`Boral Windows LLC did not purchase Headwaters Windows, LLC. What is a bald—faced lie is
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`Defendant’s knowing conflation of different legal entities.
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`Thus, Headwaters Incorporated is the corporate parent of Headwaters Windows, LLC.
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`And Boral Industries purchased Headwaters Incorporated in May 2017, becoming the corporate
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`grandparent of Headwaters Windows, LLC. See Ex. D, Dec. 2019 J. Charlton Aff. 1] 4. But,
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`contrary to Defendant’s statements otherwise, Boral Windows LLC did not purchase Headwaters
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`Windows, LLC—rather, as the evidence conclusively establishes, Headwaters Windows, LLC
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`changed its name to Boral Windows LLC in September 2017. See id, at W 4-6.
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`3.
`
`Defendant Is in any Case Estoppedfrom Denying that Boral Windows
`LLC Has Standing.
`
`Not only is Defendant’s challenge to Boral Windows LLC’s standing doctrinally baseless
`
`but it is striking in its sheer cynicism. When convenient, Defendant has been quick to affirm that
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`Boral Windows LLC is the same continuing legal entity as Headwaters Windows, LLC. For
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`example, in a November 21, 2018, letter that Defendant sent to Boral Windows LLC, Defendant
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`admitted that his non—compete obligations were owed to Boral Windows LLC. Specifically,
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`Defendant referred to the agreements at issue “the agreements I have with Boral Windows” and
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`referenced “my noncompete with Boral Windows.”11 And in a previous letter to the General
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`Counsel of Boral Windows LLC, Defendant expressly ratified what he now denies, stating that
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`Headwaters Windows, LLC is “now known as Boral Windows LLC.”12
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`But it is not only Defendant’s words that betray the cynicism of his position—so too do
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`Defendant’s actions. For example, Defendant has accepted payments from Boral Windows LLC
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`11 EX. E, M. Mildenhall Aff. EX. 3.
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`12 EX. E, M. Mildenhall Aff. EX. 2.
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`PLAINTIFFS’ AMENDED MOTION TO RECONSIDER - Page 10
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`in satisfaction of obligations that arise under contracts signed by Headwaters Windows, LLC,13
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`and Defendant has affirmatively argued in this Court that Boral Windows LLC is the obligor on
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`Headwaters Windows, LLC’s contractual obligations.14 Thus, Defendant has been happy to
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`benefit from the fact that Boral Windows LLC is the same continuing legal entity as Headwaters
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`Windows, LLC; and so he is now estopped from turning around now and denying that same
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`premise.
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`Finally, Defendant’s equivocations would lead to flagrantly inequitable results.
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`According to Defendant, simply because Headwaters Windows, LLC changed its name to Boral
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`Windows LLC, all contract rights that Headwaters Windows, LLC had are now gone—they can
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`be asserted neither in the name of Headwaters Windows, LLC nor Boral Windows LLC. This is
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`not only plainly contrary to controlling Texas law, but it is simply absurd. By Defendant’s logic,
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`a woman who takes her husband’s last name would lose all rights under any previously entered
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`contracts.
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`Accordingly, Defendant was not entitled to summary judgment on the ground that
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`Headwaters Windows, LLC lost its contractual rights when it changed its name to Boral
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`Windows LLC.
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`IV.
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`CONCLUSION
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`For the foregoing reasons, Plaintiffs Boral Windows LLC f/k/a Headwaters Windows,
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`LLC and Headwaters Windows, LLC n/k/a Boral Windows LLC respectfully request that this
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`Court (i) reconsider its October 4, 2019 Order denying in part and granting in part Defendant’s
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`Motion for Summary Judgment; (ii) vacate the portion of its Order granting Defendant summary
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`13 Ex. F, C. Clark Aff. Exs. 1, 2.
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`14 See, e.g., Def’s June Mot. 12 (arguing that Boral Windows LLC is the obligor on Headwaters
`Windows, LLC’s contract because “Headwaters Windows, LLC [is] now known as Boral Windows LLC”).
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`PLAINTIFFS’ AMENDED MOTION TO RECONSIDER - Page 11
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`judgment; (iii) enter a superseding Order denying Defendant’s Motion for Summary Judgment in
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`its entirety; and (iv) grant Plaintiffs any additional relief to which they may be entitled.
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`w
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`A hearing has been set on Plaintiffs’ Motion to Reconsider on the 7th day of February,
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`2020, at 11:15 am. in the 193rd Judicial District Court of Dallas County, Texas.
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the foregoing has been
`served in accordance with the Texas Rules of Civil Procedure on this 3 lst day of January 2020,
`to the following:
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`Donald E. Godwin
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`W. Ira Bowman
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`Stefanie M. McGregor
`Laurel L. Hoisager
`dgodwin@g0dwinb0wman.com
`ibowman@godwinbowman.com
`smcgregor@godwinbowman.com
`1hoisager@godwinbowman.com
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`Godwin Bowman PC
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`1201 Elm Street Suite 1700
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`Dallas, Texas 75270
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`(214) 939-4400 — Telephone
`(214) 939—4803 — Facsimile
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`ATTORNEYS FOR DEFENDANT
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`WILLIAM E. ROBINSON, JR.
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`/S Stephanie D. Clouston
`Stephanie D. Clouston
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`PLAINTIFFS’ AMENDED MOTION TO RECONSIDER - Page 12
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`EXHIBIT A
`EXHIBIT A
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`Execution Version
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`NON-COMPETITION AND NON-SOLICITATION AGREEMENT
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`THIS NON-COMPETITION AND NON-SOLICITATION AGREEMENT (this
`“‘Agreement”) is made as of August 19, 2016, by and between William E. Robinson, Jr. (the
`“Restricted Party”), and Headwaters Windows, LLC, a Utah limited liability company
`(“Purchaser”).
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`WHEREAS:
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`Pursuant to that certain Asset Purchase Agreement, dated August 1, 2016, by and
`A.
`among Krestmark Industries, LP, a Texas limited partnership, Crest Vinyl Extrusions, LLC, a
`Texas limited liability company, and Legacy Vinyl Windows, LP, a Texas limited partnership
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`(each a “Seller” and collectively, “Sellers”), the Restricted Party, Purchaser, and Headwaters
`Incorporated, a Delaware corporation (the “Purchase Agreement”), Sellers are selling to Purchaser,
`and Purchaser is purchasing from Sellers, including the Restricted Party, the Purchased Assets (as
`defined in the Purchase Agreement) (such purchase and sale, the “‘Transaction”). Such Purchased
`Assets represent the assets of the Sellers, which are in the business of manufacturing and selling
`premium vinyl and aluminum windows (the “Business”);
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`The Restricted Party owns directly/indirectly the equity in Sellers and by virtue of
`B.
`such ownership and the Transaction, the Restricted Party will receive substantial consideration
`from Purchaser in connection with the closing of the Transaction; and
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`The execution and delivery of this Agreement by the Restricted Party is required in
`C.
`connection with the closing of the Transaction pursuant to the Purchase Agreement, and the
`Restricted Party is executing and delivering this Agreement to satisfy such requirement and,
`further, to induce Purchaser to consummate the Transaction.
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`in consideration of the mutual covenants and agreements
`NOW, THEREFORE,
`contained herein and in the Purchase Agreement, subject to the terms and conditions set forth
`herein, and for other good and valuable consideration, the receipt and sufficiency of which are
`hereby acknowledged, the parties hereto hereby agree as follows.
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`1 .
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`Definitions.
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`“Affiliate” as used herein means, with respect to any specified Person, any other Person
`directly or indirectly controlling, controlled by, or under common control with, such specified
`Person at any time during the period for which the determination of affiliation is being made,
`where the term “control” (including, with correlative meaning, the terms “controlling”, “controlled
`by” and “under common control wit ”), as used with respect to any specified Person, means the
`possession, directly or indirectly, of the power to elect a majority of the board of directors (or other
`governing body) or to direct or cause the direction of the management and policies of such Person,
`whether through the ownership of voting securities, by contract, agreement or otherwise.
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`“Client” as used herein means any Person to whom services have been provided or products
`have been sold by the Sellers during the two (2) year period immediately prior to the date hereof.
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`149893
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`“Competitive Activities” as used herein means engaging in the business of marketing,
`manufacturing and selling of vinyl and aluminum windows. For clarification, “Competitive
`Activities” shall not include the loan made by William E. Robinson, Jr. to Martin Cook to establish
`an Arizona distributor of windows.
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`“Person” as used herein means an individual