Supreme Court of the United States

APPENDIX TABLE OF CONTENTS

Order of the Supreme Court of Texas Denying Petition for Review (October 19, 2018)...... la

Majority Opinion of the Fourteenth Court of Appeals (December 21, 2017)...... 2a

Dissenting Opinion of Justice Tracy Christopher (December 21, 2017) ...... ha

Order Granting American Elevator Inspections, Inc.'s Unopposed Motion to Sever and Order of Final Dismissal (August 4, 2016) ...... 14a

Order Granting American Elevator Inspections, Inc.'s Traditional Motion for Summary Judgment (July 11, 2016)...... 18a

Order Granting American Elevator Inspections, Inc.'s No-Evidence Motion for Summary Judgment (July 11, 2016)...... 20a

Affidavit of Beau Harmer (June 28, 2016) ...... 22a

Affidavit of Cleveland Franklin (June 23, 2016) ...... 27a App.la

ORDER OF THE SUPREME COURT OF TEXAS DENYING PETITION FOR REVIEW (OCTOBER 19, 2018)

IN THE SUPREME COURT OF TEXAS

FRANKLIN,

AMERICAN ELEVATOR INSPECTIONS INC.,

COA #: 14-16-00684-CV TC#: 2014-54920A

RE: Case No. 18-0220 Today the Supreme Court of Texas denied the petition for review in the above-referenced case.

District Clerk Harris County Harris County Civil Courthouse P.O. Box 4651 Houston, TX 77210 * Delivered Via E-Mail * App.2a

MAJORITY OPINION OF THE FOURTEENTH COURT OF APPEALS (DECEMBER 21, 2017)

IN THE FOURTEENTH COURT OF APPEALS

CLEVELAND FRANKLIN,

Appellant,

AMERICAN ELEVATOR INSPECTIONS, INC.,

Appellee.

NO. 14-16-00684-CV On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2014-54920A Before: CHRISTOPHER, BUSBY, and JEWELL, Justices

Appellant Cleveland Franklin became trapped inside his residential elevator when it malfunctioned. Without a phone in the elevator or another way of calling for help, he beat his way out with his fists, sustain- ing injuries. He sued various parties for negligence, including appellee American Elevator Inspections, Inc., who inspected the elevator after it was installed by another company. The trial court granted summary judgment to American Elevator, and Franklin appeals. We conclude the trial court did not err in granting App. 3a

American Elevator's traditional motion for summary judgment because Franklin's evidence failed to raise a fact issue regarding whether the elevator lacked a phone at the time of the inspection. We therefore affirm.

BACKGROUND In September 2012, Franklin's residential elevator malfunctioned, trapping him between the first and second floors. Without a phone in the elevator or another way of calling for help, he beat the door with his fists to escape. After beating the door for two to three hours, Franklin was able to push open the door so that he could squeeze through and climb out onto the second floor landing. He sustained injuries from striking the door. The elevator was installed by Tejas Elevator Company in 2010, before Franklin bought the house. In early December 2010, American Elevator witnessed the residential elevator acceptance inspection.1 Accord- ing to the inspection report, the elevator was in com- pliance with all applicable City of Houston codes and standards, which required that a telephone be installed in the elevator. Franklin bought the house after the inspection and began living there sometime in 2011. After the incident, Franklin sued American Elev- ator and others for negligence. American Elevator filed both no-evidence and traditional motions for summary

1 Tex. Health & Safety Code Ann. § 754.011(1) (West 2017) ("Accep- tance inspection" means an inspection performed at the completion of the initial installation or alteration of equipment and in accordance with the applicable [American Society of Mechanical ngineers] Code A1.7. 1.1. All elevators require an acceptance inspection before being placed into service. See ASME Code A17. 1, Rule 8.10.4.1 (2004). App. 4a judgment. Among other grounds, American Elevator argued in its traditional motion that it did not breach its duty in inspecting the elevator. American Elevator submitted an affidavit from the employee who witnessed the inspection, Mitchell Osina. Osina testified that there was a standard hand-held, hard- wired telephone sitting on the floor of the elevator cab at the time of inspection. According to Osina, this telephone dialed properly and met the City of Houston requirements. American Elevator's evidence also included an expert affidavit and report from an engineer, Patrick McPartland, who spoke with Osina and examined the elevator and the control room after the incident. McPartland explained in his affidavit and report that there were several pairs of telephone wires in the elevator control room, with one pair stripped as if it had been removed from terminals. McPartland stated in his report that wires from the elevator terminated inside the control room in two screw terminals, and that the unused wires were long enough to reach these terminals. McPartland concluded from these facts that the telephone on the floor of the elevator during the inspection had been removed. Franklin's response to American Elevator's traditional motion for summary judgment included testimony by deposition and affidavit from Franklin and by affidavit from Beau Harmer. Franklin testified that he visited the house before and after the inspection and did not observe any telephone in the elevator. Harmer testified in his affidavit that he installed a speaker phone in the wall of the elevator after the incident. According to Harmer, this was a new phone installation because he had to cut open the wail to install the App.5a phone. He also stated that the telephone wires did not run all the way into the elevator prior to his installation, and he had to run the wires through the panels in the elevator. The trial court granted American Elevator summary judgment on both no-evidence and traditional grounds. The trial court also granted American Ele- vator's unopposed motion to sever, making the trial court's orders granting summary judgment final and appealable. See Lehmann v. Hai- Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). This appeal followed.

ANALYSIS Franklin contends that American Elevator is not entitled to either no-evidence or traditional summary judgment. Franklin argues, among other things, that there are genuine issues of material fact as to each element of his negligence claim. American Elevator argues, among other things, that Franklin did not raise a fact issue as to whether American Elevator breached its duty in inspecting the elevator, and that even if it did breach its duty, American Elevator's conduct was not the proximate cause of Franklin's injuries. We first consider whether Franklin raised a genuine issue of material fact that American Elevator breached its duty in inspecting the elevator. We conclude Franklin's summary judgment evidence did not raise a fact issue on the element of breach. Because this issue is dispos- itive, we do not address Franklin's other issues. App.6a

I. The Trial Court Did Not Err in Granting American Elevator's Traditional Motion for Summary Judg- ment

A. Standard of Review and Applicable Law We review the trial court's grant of summary judgment de novo. See, e.g., Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We consider all of the summary judgment evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). When a party moves for summary judgment on both traditional and no-evidence grounds, we ordinarily address the no-evidence grounds first. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the trial court grants summary judgment without specifying the grounds, we affirm the judgment if any of the grounds presented are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). In a no-evidence motion for summary judgment, the movant represents that there is no evidence of one or more essential elements of the claims for which the nonmovant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i). The burden then shifts to the nonmovant to present evidence raising a genuine issue of material fact as to the elements specified in the motion. Tamez, 206 S.W.3d at 582. To prevail on a traditional motion for summary judgment,, , the movant must establish there is no genuine issue of material fact and it. is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). If App.7a the movant establishes its entitlement to judgment, then the burden shifts to the nonmovant to disprove or raise a genuine issue of material fact sufficient to defeat summary judgment. See MD. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). Evidence raises a genuine issue of material fact if reasonable and fair-minded jurors could differ in their conclusions in light of all the summary judgment evidence. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam). When the movant is a defendant, a trial court should grant summary judgment if the defendant negates at least one element of each of the plaintiffs causes of action. Clark v. ConocoPhillips Co., 465 S.W.3d 720, 724 (Tex. App.----Houston [14th Dist.] 2015, no pet.). The elements of negligence are a legal duty, breach of that duty, and damages proximately caused by the breach. IRS Cedars Treatment Or. of DeSoto, Tex., Inc. v. Mason., 143 S.W.3d 794, 798 (Tex. 2004). We need not address the different .theories of negligence that might apply in this case because our opinion focuses on the element of breach, which is an element of all potentially applicable theories.2 See Tamez, 206 S.W.3d at 582 (noting either producing or proximate

2 Given the facts alleged, possible negligence theories could include negligent undertaking, premises liability, and negligence per se. The parties address negligent undertaking in their briefs on appeal, but they do not address whether it is the only applicable theory. Additionally, the briefs address whether premises liability is a theory in the case, but Franklin made clear to the trial court he was not asserting a theory of premises liability. Negligence per se was brought up in the parties' summary judgment motions and responses, but American Elevator pointed out, that Franklin did not plead negligence.per se. me1 =1 cause was an element of each theory of negligence alleged in the case). Residential elevators must comply with standards set out in the American Society of Mechanical Engineers (ASME) Safety Code A17.1. Tex. Health & Safety Code Ann. § 754.0141(a) (West 2017). After the installation is complete, the elevator must be inspected by a registered inspector. Id. Rule 5.3.1.19 of the ASME Code A17.1 provides that "[a] telephone connected to a central telephone exchange shall be installed in the car and an emergency signaling device operable from inside the car and audible outside the hoistway shall be provided."

B. Franklin failed to raise a genuine issue of material fact that there was not a phone in the elevator at the time of inspection. Assuming, without deciding, that the trial court erred in granting, American Elevator's no-evidence motion for summary judgment; we conclude it did not err in granting the traditional motion. American Ele- vator's motion and accompanying evidence conclu- sively establish that it did not breach its duty in inspecting the elevator installed by Tejas Elevator Company. Osina stated in his affidavit that he witnessed the inspection and that there was a standard hard-wired, hand-held telephone on the floor of the elevator, which "complied with the applicable • ASME A17.1 standard." This evidence was corroborated by McPartland, American Elevator's expert, who spoke with Osina and conducted a site visit.: As, noted above, McPartland testified that in the control room for the elevator there were several pairs of telephone wires, one pair App.9a of which was stripped as if it had been removed from terminals. McPartland also stated that wires from the elevator terminated inside the control room in two screw terminals and that the stripped wires were long enough to reach these terminals. Based on the available information, McPartland opined that the hard-wired telephone that was on the floor during the inspection was removed thereafter. McPartland concluded that American Elevator properly witnessed the inspection and complied with rule 5.3.1.19 of the ASMEA17.1 Code. Franklin's evidence did not raise a fact issue that American Elevator breached its duty in inspecting the elevator. Franklin testified only that he did not observe a telephone in the elevator before or after the inspection. Franklin acknowledged that he was not present during the inspection, and American Elevator's duty was limited to inspecting the elevator for a working phone on that day. Our record contains no evidence that American Elevator had an obligation to verify that the phone was installed in a particular manner or ensure that it was not removed thereafter— as McPartland concluded it was. Franklin conceded that the builder had purchased a phone for the elevator and that he saw it in the house in a box. Harmer installed a wall-mounted speakerphone in the elevator, and he testified by affidavit that no phone had previously been installed there "because the wall of the elevator did not have any cut-out space for a telephone install." This evidence does not raise a factual dispute as to whether there was a standard, handheld telephone sitting on the floor of the elevator at the time of inspection. Further, Harmer's testimony that there were no wires running all the App.lOa way into the elevator is consistent with McPartland's testimony that one pair of wires in the control room was stripped but not attached to the terminals. Our dissenting colleague contends that the lack of a cut-out in the elevator wall shows there was no phone on the floor during the inspection, opining that "the telephone wires had to come through the wall." Post, at 2. But neither Harmer nor any other witness testified that telephone wires can only enter an elevator cab through a wall. Having considered Franklin's summary judgment evidence in the light most favorable to him, we conclude it does not contradict American Elevator's evidence that there was a working phone on the floor of the elevator during the inspection. We therefore hold Franklin failed to raise a genuine issue of material fact that American Elevator breached its duty in inspecting the elevator. We affirm the trial court's grant of American Elevator's traditional motion for summary judgment.

CONCLUSION • Having overruled Franklin's issue challenging the trial court's grant of American Elevator's traditional motion for summary judgment, we affirm the trial court's judgment.

/51J. Brett Busby Justice

Panel consists of Justices Christopher, Busby, and Jewell (Christopher, J., dissenting) App.1 la

DISSENTING OPINION OF JUSTICE TRACY CHRISTOPHER (DECEMBER 21, 2017)

IN THE FOURTEENTH COURT OF APPEALS

CLEVELAND FRANKLIN,

Appellant,

AMERICAN ELEVATOR INSPECTIONS, INC.,

Appellee.

NO. 14-16-00684-CV On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2014-54920A Before: CHRISTOPHER, BUSBY, and JEWELL, Justices

Franklin's summary judgment response raised a fact issue as to whether the elevator lacked a phone at the time of the inspection. Because the majority erroneously concludes otherwise, 1 respectfully dissent. The majority discounts Franklin's testimony because Franklin was not present at the time of the inspection. Franklin testified that he observed the elevator before and after the inspection and that it did not have a phone. This is circumstantial evidence App.12a that there was no phone in the elevator at the time of the inspection. See City of Houston v. Leach, 819 S.W.2d 185, 190-91 (Tex. App.—Houston [14th Dist.] 1991, no writ) ("Evidence which tends to prove or disprove a fact that is of consequence to the case is relevant. Facts existing both before and after an event in controversy are relevant to establishing the cause of that event."); Kroger Co. v. Milanes, 474 S.W. 3d 321, 342 (Tex. App.—Houston [14th Dist.] 2015, no pet.). The majority also discounts the affidavit of Harmer, the technician who actually installed a phone in the elevator after the accident. Harmer testified that his phone installation was "a new installation and not a replacement"; that he had "to cut open the wall of the elevator to install the telephone and run the wires through the panels in the elevator"; and that a phone could not have been installed prior to his own installation "because the wall of the elevator did not have any cut-out space for a telephone install, and the telephone wires were not run all the way into the elevator for a telephOne installation." The majority says Harmer's testimony does not contradict the possibility of a working phone on the floor of the elevator. But how could a phone line come through the walls of the elevator without a cut out of some sort? Even if the phone was on the floor of the elevator, the telephone wires had to come through the wall. The majority relies on the opinion of McPartland which in turn relies on the testimony of Osina. McPart- land's opinion that Osina properly witnessed the inspection is based on the contested fact as to whether or not a working phone was in the elevator. His inspec- App.13a tion did not independently verify the presence of a working phone on the date of inspection. Nor does his opinion state that the wires that he saw in the control room for the elevator were capable of reaching the floor of the elevator. He states, "I noticed several pairs of telephone wires with one pair of wires stripped as if they had been removed from terminals." I would hold that Franklin raised a fact issue on whether the elevator lacked a phone at the time of the inspection and, therefore, I respectfully dissent.

Is! Tracy Christopher Justice

Panel consists of Justices Christopher, Busby, and Jewell. (Busby, J., majority).

I. App. 14a

ORDER GRANTING AMERICAN ELEVATOR INSPECTIONS, INC.'S UNOPPOSED MOTION TO SEVER AND ORDER OF FINAL DISMISSAL (AUGUST 4, 2016)

IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS 11th Judicial District

CLEVELAND FRANKLIN,

Plain tiff,

TEJAS ELEVATOR COMPANY-HOUSTON, INC., AMERICAN HARRIS COUNTY, TEXAS ELEVATOR INSPECTIONS, INC., NATIONWIDE LiFTS OF TEXAS, MODIGLIANI PARTNERS LTD., K. HOVNANIAN OF HOUSTON LLC and IKON DEVELOPMENTS INC.,

Defendants.

Cause No. 2014-54920

ON THIS DAY the Court considered Defendant American Elevator Inspections, Inc.'s Unopposed Motion to Sever. Considering the motion, the response, if any, and arguments of Counsel, the Court has decided

-- to GRANT the motion and ORDERS that Plaintiff, Cleveland Franklin's claims against Defendant, Amen- App.15a

can Elevator Inspections, Inc. are hereby SEVERED. It is therefore, ORDERED, ADJUDGED and DECREED that Plaintiff, Cleveland Franklin's claims against Defend- ant, American Elevator Inspections, Inc. are hereby SEVERED and said severed case against Defendant, American Elevator Inspections. Inc. will be numbered Cause No. 2014-54920-A; Cleveland Franklin v. Ameri- can Elevators Inspections, Inc.; In the 11th Judicial District Court. Harris County, Texas. It is further ORDERED that the following pleadings, motions. orders and other documents on file in Cause No. 2014-54920 be copied by the Clerk and Included in Cause No. 2014-549 20-A: Plaintiff's First Amended Petition (filed November 13, 2015); Defendant American Elevator Inspections, Inc.'s First Amended Answer to Plaintiffs First Amended Petition (filed December 3, 2015); Defendant's Motion for Leave to Designate Modigliani as a Responsible Third Party (With exhibits) (filed December 3, 2015); Order Granting Plaintiffs Motion for Contin- uance (signed January. 11, 2016); Defendant American Elevator Inspections, Inc.'s Traditional Motion for Summary Judg- ment (with exhibits A-E) (filed April 22, 2016);

- - - - - 6)-- Defendant American Elevator- Inspections, Inc.'s No Evidence Motion for Summary Judg- ment (filed April 22, 2016); App. 16a

Notice of Oral Hearing On American Eleva- tor's Traditional and No-Evidence Motions for Summary Judgment (filed April 22, 2016); Plaintiffs Response to American Elevators Inspections, Inc.'s No-Evidence Motion for Summary Judgment (With Exhibits A and B) (filed June 27, 2016); Plaintiffs Response to American Elevators Inspections, Inc.'s Traditional Motion for Summary Judgment (with Exhibits A, B and C) (filed July 4,2016); Supplement to Plaintiffs Response to Ameri- can Elevators Inspections, Inc.'s No-Evidence Motion for Summary Judgment (with Exhibit C) (filed July 4, 2016); ii) American Elevator Inspections, Inc.'s Reply to Plaintiffs Responses to its Traditional and No-Evidence Motions for Summary Judg ment (filed July 8, 2016); Plaintiffs Sur-Reply to Defendant's Reply to Plaintiffs Response to American Elevator Inspections, Inc.'s Traditional and No-Evi- dence Motions for Summary Judgment (filed July 8, 2016); Order Granting American Elevator Inspec- tions, Inc.'s No-Evidence Motion for Summary Judgment (signed July 11, 2016); Order Granting American Elevator Inspec- tions, Inc.'s Traditional Motion for Summary Judgment (signed July 11, 2016); Docket Sheet; App.17a

American Elevator Inspections. Inc.'s Motion to Sever; and The signed Order granting American Eleva- tor Inspections, Inc.'s Motion to Sever. It is further ORDERED that the Court's filing fee for filing the severed Cause No. 2014-54920-A and the Court's costs of copying the above pleadings, motions, orders and other documents to be placed in Cause No. 2014-54920-A are to be paid by Defendant, American Elevator Inspections, Inc.; It Is further ORDERED that the severed action disposes of all parties and claims in Cause No. 2014- 54920-A and that this is a Final. Judgment as to all claims and parties in Cause No. 2014-54920-A.

Is! [Illegible] Judge Presiding

8/4/2016 ORDER GRANTING AMERICAN ELEVATOR INSPECTIONS, INC.'S TRADITIONAL MOTION FOR SUMMARY JUDGMENT (JULY 11, 2016)

IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS 11th Judicial District

CLEVELAND FRANKLIN,

Plain tiff,

TEJAS ELEVATOR COMPANY-HOUSTON, INC., AMERICAN HARRIS COUNTY, TEXAS ELEVATOR INSPECTIONS, INC., NATIONWIDE LIFTS OF TEXAS. MODIGLIANI PARTNERS LTD., K. HOVNANIAN OF HOUSTON LLC and IKON DEVELOPMENTS INC.,

Defendants.

Cause No. 2014-54920

Came on to be heard by the Court, Defendant American Elevator Inspections, Inc.'s Traditional Motion for Summary Judgment. After reviewing said Motion, as well as the evidence and responses filed

-- - by the parties, if any, the Court finds that Defendant, American Elevator Inspections, Inc.'s Traditional Mo- App. 19a tion for Summary Judgment should be, and is hereby, GRANTED. It Is therefore ORDERED that Summary Judg- ment is GRANTED and that Plaintiff TAKES NOTH- ING against Defendant, American Elevator Inspec- tions, Inc. It is further, ORDERED, ADJUDGED and DECREED that Plaintiff pay all taxable costs Incurred by Defendant American Elevator Inspections, Inc. All relief requested by Plaintiff against Defendant, American Elevator Inspections, Inc. not expressly granted herein, is denied. SIGNED this 11th day of July, 2015. 2016

Is! [Illegible] Judge Presiding App .20a

ORDER GRANTING AMERICAN ELEVATOR INSPECTIONS, INC.'S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT (JULY 11, 2016)

IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS 11th Judicial District

CLEVELAND FRANKLIN,

Plain tiff,

TEJAS ELEVATOR COMPANY-HOUSTON, INC., AMERICAN HARRIS COUNTY, TEXAS ELEVATOR INSPECTIONS, INC., NATIONWIDE LIFTS OF TEXAS, MODIGLIANI PARTNERS LTD., K. HOVNANIAN OF HOUSTON LLC and IKON DEVELOPMENTS INC.,

Defendants.

Cause No. 2014-54920

Came on to be heard by the Court, Defendant, American Elevator Inspections, Inc.'s No-Evidence Motion for Summary Judgment. After reviewing said Motion, as well as the evidence and responses filed by the parties, if any, the Court finds that Defendant, American Elevator Inspections, Inc.'s No-Evidence Mo- App .21 a tion for Summary Judgment should be, and is hereby, GRANTED. It is therefore ORDERED that Summary Judg- ment is GRANTED and that Plaintiff Cleveland Franklin TAKES NOTHING against American Eleva- tor Inspections, Inc. It is further, ORDERED, ADJUDGED and DECREED that Plaintiff pay all taxable costs incurred by Defendant American, Elevator Inspections, Inc. All relief requested by Plaintiff against Defendant, American Elevator Inspections, Inc. not expressly granted herein, is denied. SIGNED this 11 day of July, 2016.

Is! [Illegible] Judge Presiding App.22a

AFFIDAVIT OF BEAU HARMER (JUNE 28, 2016)

IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS 11TH JUDICIAL DISTRICT

CLEVELAND FRANKLIN,

Plain tiff,

TEJAS ELEVATOR COMPANY HOUSTON, INC., ET AL,

Defendants.

Cause No. 2014-54920

STATE OF TEXAS COUNTY OF HARRIS BEFORE ME, the undersigned Notary Public, on this day personally appeared BEAU HARMER, the affiant, a person whose identity is known to me. After administering an oath to affiant, affiant testified: 1. "My name is BEAU HARMER. I am over 18 years of age, of sound mind, and capable of making this affidavit. I am an elevator installation technician and I work for Home elevator of Houston, 11020 Katy Freeway, • Suite 205, Houston, Texas 77043, Telephone 713-360-7353. The facts stated in this affi- App.23a

davit are within my personal knowledge and I believe them to be true and correct. I have been an elevator installation technician for the past 15 years. I installed a new telephone in the elevator at Mr. Cleveland Franklin's residential property located at 3010 Soutine, Houston, Texas, in October 14, 2014. The installation was a new installation and not a replacement. There was no telephone in the elevator when I installed the new telephone in October 2014. I had to cut open the wall of the elevator to install the telephone and run the wires through the panels in the elevator. There was no telephone installed in the elevator prior to me doing this new installation because the wall of the elevator did not have any cut-out space for a telephone install, and the. telephone wires were not run all the way into the elevator for a telephone installation. Attached to this affidavit is a true and correct picture of the telephone I installed in the elevator in October 2014." FURTHER Affiant sayeth not.

/s Beau Harmer App.24a

Sworn to and subscribed before me on June, 2016

Is! Melanie Knapp Notary Public in and for the State of Texas Commission Expires 01-26-2020 Notary ID 12886739-6 App.25a

- •''.'' ..•..y, • S • • _• • • ' S • •. - 8-

•

' f • •

- I - - App.27a

AFFIDAVIT OF CLEVELAND FRANKLIN (JUNE 23, 2016)

IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS 11TH JUDICIAL DISTRICT

CLEVELAND FRANKLIN,

Plain tiff,

TEJAS ELEVATOR COMPANY HOUSTON, INC., ET AL,

Defendants.

Cause No. 2014-54920

STATE OF TEXAS COUNTY OF HARRIS BEFORE ME, the undersigned Notary Public, on this day personally appeared CLEVELAND FRANK- LIN, the affiant, a person whose identity is known to me. After administering an oath to affiant, affiant testified: 1. "My name is CLEVELAND FRANKLIN. I am over 18 years of age, of sound mind, and capable of making this affidavit. I am the plaintiff named in the lawsuit styled above. The facts stated in this affidavit are within App.28a my personal knowledge and I believe them to be true and correct. I bought my residential property located at 3010 Soutine, Houston, Texas, a townhome in the Village of S. Macgregor community, at around December 17, 2010 ("the Property"). The Property was developed and/or constructed by Defendants Modigliani Partners and the elevator in the Property was constructed and/or installed by Defendants Nationwide Lifts and Tejas Elevator Company-Houston, Inc. and inspected by American Elevator In- spections, Inc. When I purchased the property there was an option for a four stop residential elevator. Due to a history of knee problems I have as a result of my career as a professional football player, I selected the elevator option. The elevator in the Property which is the 4-, subject of this lawsuit, ("the Elevator") was installed in late 2010 by Defendants Tejas Elevator and Nationwide Lifts. The final inspection of the Elevator was completed on or about December 13, 2010. I visited the Property before and after Decem- ber 13, 2010, and I did not observe any telephone in the Elevator.

When I moved into the Property in January 2011,1 also noticed that there was no telephone in the Elevator. I discovered a telephone set sitting in the garage of the Property, but was hot installed. in the Elevator. App .29a

On the morning of September 24, 2012, I used the Elevator to take the trash from the second floor to the ground floor. On my return trip, I entered the elevator, closed the hoist way door, shut the cab door, and pressed the button for the second floor. The Elevator began its ascent but after traveling only four or five feet it came to an unexpected stop. I lived alone and did not have any means of personal communication on me. I became trapped inside the Elevator with no way out and no means to call for assistance. Since I lived alone nobody was expected to return to the Property who could assist him. The interlock to release the second floor hatch door was out of reach due to the position of the Elevator in the hoist way. I was left. with no other option for escape other than to attempt to open the second floor hatch door by repeatedly striking the door with my fists. It took approximately three hours of striking the door until I was finally able to break the frame of the second floor hatch door out of the wall. I was then able to push the frame of the second floor hatch door far enough out of the wall to permit my body to squeeze through after pulling himself. up approximately four to five feet to the second floor landing. . . In the process of striking and opening my escape route to the second floor, I damaged the tendons and ligaments in my right wrist. I incurred significant personal injuries, which are ongoing. . . . App.30a

11. I have since hired Mr. Beau Harner of Home Elevator of Houston to install, a new telephone in the Elevator in October 2014. Attached is a true and correct picture of the telephone I installed in the elevator in October 2014. The picture was taken by me October 2014." FURTHER Affiant sayeth not.

Is! Cleveland Franklin

Sworn to and subscribed before me on June, 2016

Is! Chidi D. Anunobi Notary Public in and for the

• • State of Texas • •

My Commission Expires. • ,. . . .

December 10,2018 . . . ., App.31a