ELECTRONICALLY FILED 2/18/2014 5:57 PM 01-CV-2013-902242.

00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA RYAN BRESETTE and HEATHER BRESETTE, Individually; RYAN BRESETTE, as Personal Representative and Administrator of the Estate of LUKE BRESETTE; and RYAN BRESETTE and HEATHER BRESETTE as Natural Parents and Next Friends of Their Minor Children, Anna Bresette, Joseph Bresette, Samuel Bresette, and Tyler Bresette ) ) ) ) ) ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) BRASFIELD & GORRIE GENERAL ) CONTRACTORS, INC.; BLOC GLOBAL ) SERVICES GROUP, LLC; KPS GROUP, INC.; ) A.G. GASTON CONSTRUCTION, ) COMPANY, INC.; SABER CONSTRUCTION, ) INC.; FISH CONSTRUCTION, INC.; ) MONUMENTAL CONTRACTING SERVICE, ) L.L.C.; and Fictitious Parties A ) through E, ) ) Defendants. )

Case No.:

CV-2013-902242

DEFENDANT MONUMENTAL CONTRACTING SERVICE, L.L.C.S MOTION FOR SUMMARY JUDGMENT COMES Defendant, MONUMENTAL CONTRACTING SERVICE, L.L.C., pursuant to Rule 56 of the Alabama Rules of Civil Procedure, and moves the Court to enter summary judgment in its favor on the ground that there is no genuine issue of any material fact, and Defendant is entitled to judgment as a matter of law. Defendant

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further moves the Court, pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure, to make said judgment in its favor final as there is no just reason for delay. In support of this Motion for Summary Judgment, Defendant Monumental Contracting Service, LLC (Monumental) says as follows:

NARRATIVE SUMMARY OF UNDISPUTED MATERIAL FACTS Introduction

This case arises out of an accident which occurred at the BirminghamShuttlesworth International Airport (Birmingham Airport) on March 22, 2013, in which a flight information sign (MUFIDS), located near the Southwest Airlines ticketing area, fell on certain members of the Bresette family, causing physical injuries to Plaintiffs, Heather Bresette, Samuel Bresette, and Tyler Bresette, and resulting in the death of Luke Bresette. (Plaintiffs Restated Complaint). Plaintiffs Ryan Bresette, Anna Bresette and Joseph Bresette contend that they were in the zone of danger at the time the MUFIDS fell. (Plaintiffs Restated Complaint, par. 4-6). The subject MUFIDS had been installed as part of phase 1 of a renovation project at the Birmingham Airport, as discussed more fully in the section below. (Plaintiffs Restated Complaint). Airport Renovation Project Plaintiffs Restated Complaint alleges that, prior to the subject accident, the Birmingham Airport Authority (Airport Authority) decided to renovate the Birmingham Airport, and following a bid selection process, hired (1) KPS Group
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as its architect-engineer; and (2) Brasfield & Gorrie General Contractors, Inc. and BLOC Global, a Joint Venture (the Joint Venture), as its general contractor. (Plaintiffs Restated Complaint, par. 22-24, 26). The renovation project plans for Phase 1 called for four (4) MUFIDS to be designed, constructed, and installed at different locations throughout the Birmingham Airport. (Plaintiffs Restated Complaint, par. 30; depo of Jeff Hart, pg. 26). The Joint Venture contracted with Fish Construction, Inc. (Fish), to manufacture, assemble and install the MUFIDS as part of the renovation project. (Plaintiffs Restated Complaint, par. 38; Depo of Chris Swain, pgs. 17-18). Monumental was hired by Fish to partially assemble and install the MUFIDS. (Plaintiffs Restated Complaint, par. 46; Depo of Chris Swain, pgs. 17, 23). The four (4) MUFIDS were manufactured and/or fabricated by Fish, and each MUFIDS unit was delivered in three pieces to the Birmingham Airport. As part of its agreement with Fish, upon the delivery of the units to the Birmingham Airport, Monumentals employees would assemble the MUFIDS units and place each MUFID at the designated location in the Birmingham Airport. (Depo of Chris Swain, pages 17-20). The first MUFIDS that Monumental began to assemble was to be located in Concourse A, which was not the location of the subject MUFIDS which fell. (Depo of Josh Aaron, pg. 27; Depo of Chris Swain, page 24). Accordingly, on January 7, 2013, Monumentals employees, including Josh Aaron, began assembling the Concourse A MUFIDS. However, prior to completing the
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assembly of the Concourse A MUFIDS, Josh Aaron and his crew became concerned about the top heaviness of the Concourse A MUFIDS, as it did not have any bracing or anchorage mechanism to secure it. (Depo of Josh Aron, page 36; Depo of Chris Swain, page 24, 25). Accordingly, on the same date,

Josh Aaron of Monumental notified Monumentals project manager, Chris Swain, of this concern. (Depo of Chris Swain, page 47; Depo of Josh Aaron, pages 3536). Likewise, on the same date, January 7, 2013, at approximately 2:45 p.m., Chris Swain of Monumental sent an email to Mike Shelley of Fish, with copies to Tony Williams of BLOC and Billy Mack Traywick of Brasfield & Gorrie, advising of major concerns about the top heaviness and weight component factor with the three-part MUFIDS once assembled, and requesting direction for Monumental to stabilize the MUFIDS for safety concerns. (Depo of Chris Swain, pages 43-46). Thereafter, on January 7, 2013, at approximately 3:31 p.m., Mike Shelley of Fish responded to Chris Swains emailed concern, by advising that he had reviewed the architectural and red line drawings of the MUFIDS, that there was nothing requesting floor anchorage, and that they were typically free standing. (Depo of Chris Swain, pages 55-56). Tony Williams of BLOC, Billy Mack Traywick of Brasfield & Gorrie, and Josh Aaron of Monumental were copied on Mike Shelleys January 7, 2013, 3:31 p.m. email. (Depo of Chris Swain, pages 60-61).
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At 4:16 p.m. on January 7, 2013, upon his receiving Mike Shelleys email referenced above, Josh Aaron of Monumental replied by advising that free standing would not work as the MUFIDS could be easily pushed over. (Depo of Chris Swain, pages 61-62; Depo of Josh Aaron, pages 47-48). At 4:33 p.m. on January 7, 2013, Mike Shelley of Fish responded directly to Josh Aarons 4:16 p.m. email, advising that he would send a message to the architect about the concern. (Depo of Chris Swain, pages 66-67; Depo of Josh Aaron, page 53). At 5:04 p.m. on January 7, 2013, Mike Shelly of Fish emailed the architect, Raphael Arsenian of KPS, advising of a concern regarding the MUFIDS being secured as the drawings did not request that they be secured. Shelleys email also references a safety concern in connection with the issue. (Depo of Chris Swain, pages 68-70; Depo of Josh Aaron, pages 54-56.) At 5:28 p.m. on January 7, 2013, Chris Swain of Monumental again emailed Mike Shelley of Fish, with copies to Adam Barringer and Adam Fish of Fish, and Josh Aaron of Monumental, reiterating his concerns about the stability of the MUFIDS, and instructing Josh Aaron of Monumental to lay the Concourse A MUFIDS on the ground the next morning and do not assemble any more in place until this issue is resolved. (Depo of Chris Swain, pages 72-73; Josh Aaron, pages 57-60). Josh Aaron of Monumental and his crew stayed with the

Concourse A MUFID that day, past their normal quitting time, until Brasfield & Gorrie personnel arrived and took control of the Concourse A MUFIDS.
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(Deposition of Josh Aaron, pages 64-65; depo of Jeff Hart, page 122). Thereafter, Monumental never installed any of the MUFIDS. (Depo of Tom Killingsworth, page 96; Depo of Josh Aaron, page 60; Depo of Billy Mack Traywick, pages 84-86). Following this string of emails and communications on January 7, 2013, there was discussion among Fish and KPS regarding possible solutions to secure the MUFIDS. However, Monumentals originally contemplated role of partially assembling and installing the MUFIDS ceased, and Brasfield & Gorries employees actually assembled the MUFIDS and installed them, including the subject MUFIDS which fell on March 22, 2013. (Depo of Chris Swain, pages 95-97; Depo of Josh Aaron, pages 77-78, 86; Depo of Tom Killingsworth, page 96; Depo of Jeff Hart, pages 28, 30; Depo of Billy Mack Traywick, pages 84-85, 90-91). Monumental went about completing its other work on the renovation project. (Depo of Chris Swain, pages 99-100). Monumental was never advised by the Joint Venture, KPS, Fish or any other person or entity that the MUFIDS, which were installed by Brasfield & Gorrie, were unanchored. (Depo of Chris Swain, pages 104-106; Depo of Josh Aaron, page 86). Plaintiffs Allegations Against Monumental Plaintiffs Restated Complaint, Count XVI, purports to state causes of action against Monumental for (1) negligence; (2) willful conduct; (3) wantonness; (4) breach of warranty; and (5) violation of Alabamas Extended Manufacturers Liability Doctrine for:
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a. Failing to design plans that required the MUFIDS to be properly anchored or tied to the floor, wall or ceiling; b. Installing the MUFIDS without anchoring or tying them to the floor; c. Designing, creating, assembling and/or installing the MUFIDS without a sufficient anchoring system; and d. Failing to take corrective action when it knew or should have known that the MUFIDS created a dangerous risk to the public. Monumentals Lack of Involvement with Regard to MUFIDS Despite the allegations in Plaintiffs Restated Complaint, the undisputed facts reveal that Monumental did not design or manufacture any of the MUFIDS which were part of the airport renovation project. (Monumentals Answers to Plaintiffs First Interrogatory Number 5; Depo of Josh Aaron, pgs 18-19). In fact, as outlined fully above, the undisputed material facts in this case reveal that Monumentals only role with regard to the four (4) MUFIDS contemplated in the airport renovation project was limited to partially assembling the Concourse A MUFIDS (which was not the MUFIDS which fell), notifying Fish, Brasfield & Gorrie, and BLOC of its concerns regarding the top-heaviness and weight component factors of the MUFIDS, and then instructing its employees not to assemble or install the MUFIDS until the stability issue was resolved. Thereafter, it had no further involvement with the MUFIDS, and it is undisputed that Brasfield & Gorrie completed assembling the MUFIDS on Concourse A and installed it, and then assembled and installed the remaining MUFIDS, including the MUFIDS
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at issue in this case. Monumental was never notified and had no knowledge that any of the MUFIDS were installed without anchoring or other means of securing them in place. (Depo of Chris Swain, pages 24-25, 43-47, 55-56, 60-62, 66-73, 95-97, 99-100, 104-106; Depo of Josh Aaron, pages 27, 35-36, 47-48, 57-60, 7578, 86; Depo of Jeff Hart, pages 28, 30; Depo of Tom Killingsworth, page 145). Standard of Review A court should grant a summary judgment when the moving party shows that no genuine issue of material fact exists. Ala. R. Civ. P. 56(c); S. Guar. Ins. Co. v. First Ala. Bank, 540 So.2d 732, 734 (Ala. 1989). The moving party bears the burden of making an initial showing to this effect. Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala. 1992). If the moving party shoulders its burden and makes this showing, the burden then shifts to the non-movant to rebut the prima facie showing by substantial evidence. Id. Under the substantial evidence rule, Ala. Code 12-21-12 (Ala. 1975), the movant would then have to present evidence of such weight and quality that fair minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved. West v. Founders Life Assurance Co. of Fla., 547 So.2d 870, 871 (Ala. 1989). Mere conclusory allegations or speculation that fact issues exist will not defeat a properly supported summary judgment motion and bare argument or conjecture does not satisfy the nonmoving partys burden to offer substantial evidence to defeat the motion. Ex parte Ala. Peace Officers Stds. & Training Commn, 34 So.3d 1248, 1252 (Ala. 2009) (internal citations omitted).
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Argument Monumental is entitled to summary judgment as to each cause of action stated against it in Plaintiffs Restated Complaint inasmuch as there is no genuine issue of any material fact, and Monumental is entitled to judgment as a matter of law.

I.

Monumental is Entitled to Summary Judgment on Plaintiffs Claims of Negligence, Willfulness and Wantonness Plaintiffs Restated Complaint purports to state causes of action against

Monumental for negligence, willfulness and wantonness based on the following alleged conduct: a. Designing the MUFIDS without a sufficient anchoring system; b. Assembling the MUFIDS without a sufficient anchoring system; c. Installing the MUFIDS without a sufficient anchoring system; and/or d. Failing to take corrective action when it knew or should have known that the MUFIDS created a dangerous risk to the public. Despite these allegations, the undisputed facts, as set forth above, confirm that (a) Monumental did not design the MUFIDS; (b) Monumental only partially assembled the Concourse A MUFIDS and did not assemble the subject MUFIDS; (c) Monumental did not install the MUFIDS; and (d) Monumental notified Fish, Brasfield & Gorrie and BLOC of its concerns regarding the top heaviness and weight component safety issues with the MUFIDS, and was
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thereafter relieved of any obligation to assemble or install the MUFIDS. In fact, the MUFIDS were thereafter assembled and installed by Brasfield & Gorrie employees. Based on these undisputed material facts, Monumental is entitled to summary judgment with regard to Plaintiffs claims of negligence, willfulness and wantonness. A. Negligence 1. Lack of Duty To prove a negligence claim under Alabama law, one must show (1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury. Jones Food Co. v. Shipman, 981 So.2d 355, 361 (Ala. 2006). Mere proof that an accident and an injury occurred is generally insufficient to establish negligence. George v. Alabama Power Co., 13 So.3d 360, 365 (Ala. 2008) (internal citations omitted). Whether a duty exists is the threshold inquiry in a negligence case. Ledbetter v. United American Ins. Co., 624 So.2d 1371 (Ala. 1993). Where the plaintiffs fail to present substantial evidence of a duty owed by the defendant, claims for negligence cannot stand. Id. In this case, Monumental had no duty to design the MUFIDS, and did not design the MUFIDS. Additionally, after becoming concerned with the stability of the MUFIDS during the partial assembly of the first MUFIDS to arrive (which was not the MUFIDS that fell), Monumental reported its concerns up the proper chain of command. (Depo. Josh Aaron, p. 36; and Depo. Chris Swain, p. 44-47). Monumental then ceased the assembly and installation of the MUFIDS and
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waited for a solution to stabilize the MUFIDS. (Depo. Chris Swain, p. 78). However, the installation of the MUFIDS was taken out of Monumentals scope of work. Id. at 95-96. Accordingly, Monumental had no duty of design, assembly or installation as it pertained to the subject MUFIDS which fell. Without a duty on the part of Monumental relating to that MUFIDS, Plaintiffs claim of negligence must fail, and summary judgment should be granted in favor of Monumental as to that claim. 2. Lack of Negligence by Monumental The negligence claims against Monumental further fail because there is no evidence that Monumental acted negligently in any manner. First and foremost, with regard to the subject MUFIDS, Monumental had no involvement in the design, assembly or installation, and accordingly, could not have acted negligently with regard to that MUFIDS. Additionally, even with regard to the only MUFIDS which Monumental partially assembled, the one on Concourse A, Monumentals employees recognized stability issues prior to completing assembly and immediately reported those issues to Fish, Brasfield & Gorrie and BLOC. (Depo. Josh Aaron, p. 36; and Depo. Chris Swain, p. 44-47). The undisputed facts in this case make clear that Monumental did not act negligently with regard to the MUFIDS, and accordingly, summary judgment is due to be entered in favor of Monumental on Plaintiffs negligence claims.

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B. Willfulness and Wantonness Before a party can be found wanton, it must be shown that with reckless indifference to the consequences, the party consciously and intentionally did some wrongful act which produced injury. Hamme v. CSX Transportation, Inc., 621 So.2d 281 (Ala. 1993). (emphasis supplied). Willful conduct claims require an even higher burden than wantonness. To constitute willful or intentional injury, there must be knowledge of danger accompanied with a design or purpose to inflict injury, whether the act be one of omission or commission. Hooper v. Columbus Reg'l Healthcare Sys., Inc., 956 So. 2d 1135, 1140 (Ala. 2006). Given the heightened burden imposed by Alabama law, it is a rare personal injury case where the operative legal principles involve willfulness. Roberts & Cusimano, Ala. Tort Law 3.04 (5th ed. 2010). As demonstrated otherwise herein, the undisputed facts make clear that Monumental did not design, assemble or install the subject MUFIDS. It took no action or omitted any action, willfully or otherwise, with regard to that MUFIDS. There is certainly no evidence of intentional conduct on its part leading to the subject accident. Monumentals employee performed no work on the MUFIDS after its employees reported their concerns regarding the MUFIDS, and in fact, the installation and assembly of the remaining MUFIDS was removed from Monumentals scope of work. (Depo. Chris Swain, p. 78, 94-95). Plaintiffs simply cannot show that this Defendant intentionally acted in a way so as to harm any

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members of the Bresette family. Accordingly, summary judgment is due to be entered in favor of Monumental on Plaintiffs wanton and willful conduct claims.

II.

Monumental Is Entitled To Judgment In Its Favor As A Matter Of Law As To Plaintiffs AEMLD Claims In Casrell v. Altec Indus., Inc., the Alabama Supreme Court articulated the

prima facie elements for a claim under the AEMLD, which are as follows: To establish liability, a Plaintiff must show: (1) he suffered injury or damages to himself or his property by one who sells a product in a defective condition unreasonably dangerous to the Plaintiff as the ultimate user or consumer, if (a) the seller is engaged in the business of selling such a product, and it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(b)

Casrell v. Altec Indus., Inc., 335 So.2d 128, 132 (Ala. 1976). Rutledge v. Arrow Aluminum Indus., Inc., 733 So.2d 412, 417 (Ala.Civ.App.1998) is particularly instructive on this issue. In Rutledge, Rutledge filed an action against four named defendants: Woodmere Creek Apartments, Jackson Management Group, Inc., Arrow Aluminum Industries, Inc., and Foshee Builders, Inc. Arrow Aluminum and Foshee Builders were charged with negligence/wantonness, breach of warranty, and violation of the Alabama
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Extended Manufacturer's Liability Doctrine (AEMLD). Rutledge v. Arrow Aluminum Indus., Inc., 733 So. 2d at 414. Rutledge, who was a resident of Woodmere Creek Apartments, was attacked in her bed in her apartment and raped by an unidentified person. She had locked the sliding glass door leading from the outside into her apartment. Id. The attacker entered the apartment through the sliding glass door, without breaking the glass or the door. Id. at 1415. Arrow Aluminum designed and manufactured the door. Id. at 15. Foshee Builders constructed the apartments and procured the door, and a subcontractor installed the door. Id. The Court held that a builder who hired subcontractor to install door was not in the business of selling sliding glass doors, and, thus, was not the seller of door for purposes of establishing a violation of the AEMLD. Id. at 417. Similarly, Monumental was never in the business of selling MUFIDS and had only agreed to assemble and install the MUFIDS; however, it is undisputed that Monumentals contemplated role of assembling and installing the MUFIDS ceased after it reported concerns regarding the first MUFIDS assembled in Concourse A. Monumental was not the seller of the MUFIDS for purposes of establishing a violation of the AEMLD under the Rutledge Courts definition of a seller. See Rutledge, supra, 733 So.2d at 417. Thus, Plaintiffs AEMLD claim necessarily fails. Holding a subcontractor such as Monumental liable under the AEMLD would contravene the doctrines scope and purpose. The AEMLD is founded on
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broader moral notions of consumer protection and on economic and social grounds, placing the burden to compensate for loss incurred by defective products on the one best able to prevent the distribution of these products. Bloodsworth v. Smith & Nephew, CIV.A. 2:05CV622-D, 2005 WL 3470337 (M.D. Ala. Dec. 19, 2005) (quoting Atkins v. American Motors Corp., 335 So.2d 134, 139 (Ala. 1976)). It stands to reason that Monumental, a subcontractor who did not design, manufacture, or sell, nor ultimately install or assemble the subject MUFIDS, was in no position to prevent the distribution of the MUFIDS even if they were defective within the meaning of the AEMLD. Accordingly, summary judgment is due to be entered in favor of Monumental on Plaintiffs AEMLD claims. III. Monumental Is Entitled To Judgment In Its Favor As A Matter Of Law As To Plaintiffs Breach of Warranty Claims A breach of warranty claim is viable only against the seller of the goods. See Ala.Code 7-2-313(1), 7-2-314(1), 7-2-315(1) (express and implied warranty claims refer only to warranties created by the seller of a product). As discussed supra, Monumental was not a seller or even a manufacturer of the MUFIDS; rather, at best, Monumental was an agent of the seller in its originally contemplated role as the assembler and installer of the MUFIDS. Even if Monumental had assembled and installed the subject MUFIDs, which it was relieved of doing and did not do, Plaintiffs cannot maintain a breach of warranty claim against Monumental under Alabama law. Accordingly, summary judgment
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is due to be entered in favor of Monumental on Plaintiffs breach of warranty claims.

Conclusion There is no evidence that Monumental negligently, wantonly, wilfully or otherwise acted in violation of the laws of the State of Alabama. In sum, there is no evidence that Monumental designed, engineered, assembled, installed, manufactured, fabricated, or otherwise constructed the MUFIDS involved in the subject accident. In short, after numerous depositions and in excess of approximately fifty thousand (50,000+) pages of document production among the various parties, there is no evidence, much less substantial evidence, implicating Monumental in this case. Because the Plaintiffs cannot prove the necessary elements of their alleged causes of action, Monumental requests that this Court enter final summary judgment in its favor and dismiss all claims against Monumental with prejudice. WHEREFORE, premises considered, Defendant Monumental Contracting Services, L.L.C. moves the Court to enter a final Summary Judgment in its favor, dismissing the case with prejudice, pursuant to Rule 56 of the Alabama Rules of Civil Procedure, on the ground that there is no genuine issue as to any material fact and the Defendant is entitled to judgment as a matter of law. Defendant further moves the Court, pursuant to Rule 54(b) of the Alabama Rules of Civil

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Procedure, to make said judgment in its favor final, as there is no just reason for delay.

Respectively submitted,

/s/ Jack J. Hall Jack J. Hall (HAL035) /s/ Christy C. Glidewell Christy C. Glidewell (OSB014) Attorneys for Defendant, Monumental Contracting Services, L.L.C.

CERTIFICATE OF SERVICE I hereby certify that on this 18th day of February, 2014, a copy of the above pleading has been served on all counsel of record by filing same with the Courts electronic filing system / Alafile:
Jeff Friedman Attorney for Plaintiffs Friedman, Dazzio, Zulanas, & Bowlings, P.C. 3800 Corporate Woods Drive Birmingham, AL 35242 jfriedman@friedman-lawyers.com Tim Dollar Tim Becker Attorneys for Plaintiffs Dollar, Burns & Beckers, L.C. 1100 Main Street, Suite 2600 Kansas City, MO 64105
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timd@dollarlaw.com timb@dollarlaw.com Jody Peddy Todd Hamilton Robert Stewart Attorneys for Brasfield & Gorrie General Contractors, Inc. and Bloc Global Services Group, LLC Smith, Spires & Peddy, P.C. 2015 2nd Avenue North, Suite 200 Birmingham, AL 35203 joe@ssp-law.com todd@ssp-law.com rob@ssp-law.com Kathy Davis Thomas Creel Michael Renta Attorneys for KPS Group, Inc. Carr Allison 100 Vestavia Parkway Birmingham, AL 35216 krdavis@carrallison.com tcreel@carrallison.com mrenta@carrallison.com Robert Girardeau H. Lanier Brown, II Attorneys for A.G. Gaston Construction Company, Inc. and Saber Construction Company, Inc. Huie, Fernambucq & Stewart, LLP 2801 Highway 280 South, Suite 200 Birmingham, AL 35223 bgirardeau@huielaw.com hlb@huielaw.com James C. Gray, III James S. Lloyd Attorneys for A.G. Gaston Construction Company, Inc. and Saber Construction Company, Inc.
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Lloyd, Gray, Whitehead & Monroe 2501 20th Pl S # 300 Birmingham, AL 35223 jgray@lgwmlaw.com jlloyd@lgwmlaw.com Timothy P. Donahue Timothy P. Donahue, Jr. Attorneys for BLOC Global Services Group, LLC Donahue & Associates, LLC 1020 22nd Street South Birmingham, Alabama 35205 Roderick K. Nelson Attorney for Fish Construction, Inc. Spain & Gillon 2117 2nd Avenue North Birmingham, AL 35203 rkn@spain-gillon.com Ben Westcott Attorney for Fish Construction, Inc. Andrews Myers 3900 Essex Lane, Suite 800 Houston, TX 77027-5198 Ben.westcott@andrewsmyers.com

/s/ Jack J. Hall OF COUNSEL

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