Preview
FILED
6/15/2023 4:07 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Margaret Thomas DEPUTY
Cause No. DC-21-09687
WELDON CONTRACTORS, LLC D/B/A § IN THE DISTRICT COURT OF
WELDON CONTRACTORS §
§
Plaintiff, §
v. §
§ 193rd JUDICIAL DISTRICT
CZOT/MGS LLC AND HARTFORD FIRE §
INSURANCE COMPANY §
§
Defendants. § DALLAS COUNTY, TEXAS
PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ AMENDED ANSWER AND
COUNTERCLAIMS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Plaintiff Weldon Contractors, LLC D/B/A Weldon Contractors,
(“Weldon”) and files this its Motion to Strike Defendants’ CZOT/MGS LLC
(“Construction Zone”) and Hartford Fire Insurance Company (“Hartford”) (collectively,
“Defendants”) Amended Answer and Counterclaims and in support thereof, would
respectfully show the Court as follows:
I. ARGUMENT
A. Defendants’ Amended Answer and Counterclaims are Untimely.
Defendants’ Amended Answer and Counterclaims are untimely. Weldon filed this
lawsuit on July 26, 2021. Defendants’ filed their Original Answer on August 31, 2021, with
no affirmative defenses and no counterclaims. On June 13, 2023, two years later and a
week before trial, Defendants untimely filed their Amended Answer and Counterclaims.
On September 1, 2021, the first Notice of Trial was sent along with a signed
Uniform Scheduling Order. The Uniform Scheduling Order provided a deadline of 120
days before the Initial Trial Setting for amended pleadings asserting new causes of action
PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’
AMENDED ANSWER AND COUNTERCLAIMS PAGE|1
or defenses. The “Initial Trial Setting” is defined as 05/03/2022. Thus, the deadline to
amend pleadings asserting new causes of action or defenses was January 3, 2022.
Accordingly, Defendants’ Amended Answer and Counterclaims have been filed over 18
months late.
This case has been re-set and continued multiple times. Notably, the Uniform
Scheduling Order states, “Reset or continuance of the Initial Trial Setting will not alter
any deadlines established in this Order or established by the Texas Rules of Civil
Procedure unless otherwise provided by order.” The Court has not entered and the
parties have not sought any other scheduling order in this case; thus, the deadlines have
not changed throughout the duration of this case.
Defendants filed their Amended Answer and Counterclaims on June 13, 2023 –
one week before the current trial setting, and 18 months after the deadline. Thus,
Defendants’ amended pleading should be stricken from the record.
B. Defendants’ Amended Pleading is Inconsistent with their Motion for
Continuance.
On June 12, 2023, one day before they filed their amended pleading, Defendants
filed a Motion for Continuance based in part on the ground that they are still recreating
and correcting their accounting. Despite allegedly not having an accurate accounting
record, Construction Zone now affirmatively pleads that it is entitled to damages or an
offset of $785,436.42. These two positions are incompatible and highlight that
Construction Zone is scrambling to find a way to delay the current trial setting. It does
not appear that Construction Zone has a good faith basis for making its counterclaim and
offset affirmative defenses.
Defendants’ amended pleading is inconsistent with their sworn representations to
the Court in their Motion for Continuance. In fact, Defendants’ Motion for Continuance
PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’
AMENDED ANSWER AND COUNTERCLAIMS PAGE|2
demonstrates that their amended pleading is baseless. Therefore, Defendants’ Amended
Answer and Counterclaims should be stricken from the record.
C. Weldon is Unfairly Surprised and Prejudiced
Weldon is unfairly surprised and prejudiced by Defendants’ Amended Answer
and Counterclaims. Weldon has conducted discovery, interviewed third parties and
prepared for trial while relying on the fact that there were no pleaded counterclaims or
affirmative defenses. This fact was made permanent when the deadline to file amended
pleadings passed at the beginning of last year. If the Defendants believed they had any
basis to do so, they have had plenty of time over the last 2 years to assert their
counterclaims and affirmative defenses.
In their Motion to Continue, Defendants state that Weldon should not be unfairly
surprised or prejudiced by the amended pleading because counterclaims and defenses
“have been the subject of extensive back and forth between the parties.” It is more
accurate to describe the back and forth as being about Weldon’s claims for affirmative
relief and Defendants negative assessment of Weldon’s claims. There have been no
serious discussions about Defendants having unpled affirmative claims and defenses.
Weldon, in fact, is unfairly surprised by Construction Zone filing its counterclaim after
discovery has closed and mediation has occurred.
Additionally, even if taken as true (which it is not), Defendants’ assertion of
extensive back and forth of counterclaims and offset defenses reveals that Defendants
were aware of these counterclaims and defenses, yet apparently chose to wait until right
before trial to file or failed to timely file them. Because these claims and defenses were
allegedly known by Defendants well before the deadline to amend pleadings, Weldon, it
appears, was right to assume that Construction Zone was not going to assert affirmative
PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’
AMENDED ANSWER AND COUNTERCLAIMS PAGE|3
claims and defenses. It would be exceedingly unfair and prejudicial to Weldon to allow
Defendants to plead new causes of action and defenses right before trial.
If Construction Zone is allowed to proceed with its counterclaim and affirmative
defenses, Weldon will be unfairly prejudiced in its ability to defend itself. If Weldon
knew it would have to defend itself against counterclaims, it would have likely
conducted discovery differently. Most obviously, Weldon would have sought written
documents and deposition testimony to investigate and rebut the specific allegations
contained in the counterclaims. For instance, in its Counterclaim, Construction Zone
alleges that it sustained significant economic damages due to Weldon breaching its
subcontract by:
(i) failing to perform its work at the Ann Richards project pursuant to the plans and
specifications included as part of the Subcontractor Agreement, and
(ii) failing to supply the labor, materials, and equipment necessary to complete the
scope of work for the Ann Richards project pursuant to the Subcontractor
Agreement, and
(iii) failing to complete is work at Ann Richards by the completion deadlines.
To investigate and rebut these specific breach allegations and alleged damages, Weldon
would have sought to identify and depose all Construction Zone representatives and
third parties that would have relevant knowledge about the specific set of circumstances
on which these allegations and damage are based and potentially utilize the services of
an expert consultant to evaluate Construction Zone’s claims of delays to the completion
of the Project and increased overhead and supervision costs. In contrast, Weldon’s actual
discovery efforts were aimed at proving it substantially complied and performed its
contractual obligations, that Construction Zone’s termination was wrongful and the
accurate amount of unpaid contract balance to which it was entitled. While Weldon’s
discovery efforts likely uncovered some of the circumstances Construction Zone would
PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’
AMENDED ANSWER AND COUNTERCLAIMS PAGE|4
allege are the basis of its counterclaim, it cannot logically and genuinely argue that
Weldon would not have conducted different discovery if there had been a timely pled
counterclaim.
There is no justification for Defendants’ filing of an amended pleading so late in
the case. Once the deadline to file amended pleadings passed, Weldon focused its
discovery and trial preparation solely on proving its own properly pleaded claims, not
on defending against hypothetical, untimely and unpled counterclaims. If Defendants are
allowed to amend their answer and assert counterclaims, Weldon will be prejudiced not
only by not having the opportunity to conduct discovery directed at the counterclaim
and affirmative defenses, but also by incurring additional fees for having to undertake
expedient additional trial preparations to defend against Defendants’ counterclaims and
affirmative defenses.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Weldon respectfully asks the Court to
strike Defendants’ Amended Answer and Counterclaims as untimely and refrain from
considering any affirmative defenses and counterclaims asserted therein.
PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’
AMENDED ANSWER AND COUNTERCLAIMS PAGE|5
Respectfully Submitted,
THOMAS, FELDMAN & WILSHUSEN, LLP
By: /s/ Todd R. Nectoux
TODD R. NECTOUX
State Bar No. 24032899
Email: tnectoux@tfandw.com
SABRINA E. ALLEN
State Bar No. 24131223
Email: sallen@tfandw.com
Merit Tower
12222 Merit Drive, Suite 1450
Dallas, Texas 75251-3297
Telephone: (214) 369-3008
Fax: (214) 369-8393
ATTORNEYS FOR PLAINTIFF WELDON
CONTRACTORS, LLC D/B/A WELDON
CONTRACTORS
CERTIFICATE OF SERVICE
This is to certify that on this 15th day of June 2023, a true and correct copy of the
above and foregoing instruments was served upon all counsel of record pursuant to the
Rules of Civil Procedure by the electronic filing system.
/s/ Todd R. Nectoux
Todd R. Nectoux
PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’
AMENDED ANSWER AND COUNTERCLAIMS PAGE|6
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Mario Young on behalf of Todd Nectoux
Bar No. 24032899
myoung@tfandw.com
Envelope ID: 76673203
Filing Code Description: Motion - Strike
Filing Description: PLAINTIFF MTN STRIKE (DF) AMENDED ANSWER &
COUNTERCLAIMS
Status as of 6/16/2023 7:16 AM CST
Associated Case Party: WELDON CONTRACTORS, LLC D/B/A WELDON
CONTRACTORS
Name BarNumber Email TimestampSubmitted Status
Todd R.Nectoux tnectoux@tfandw.com 6/15/2023 4:07:58 PM SENT
TFW Court Admin tfwcourtadmin@tfandw.com 6/15/2023 4:07:58 PM SENT
Sabrina Allen 24131223 sallen@tfandw.com 6/15/2023 4:07:58 PM SENT
Associated Case Party: HARTFORD FIRE INSURANCE COMPANY
Name BarNumber Email TimestampSubmitted Status
Maribel Luzunaris Maribel.Luzunaris@thehartford.com 6/15/2023 4:07:58 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
W T Skip Leake skip@leakelaw.com 6/15/2023 4:07:58 PM SENT
Jonathan C.Conway cconway@leakelaw.com 6/15/2023 4:07:58 PM SENT
Preview
FILED 6/15/2023 4:07 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Margaret Thomas DEPUTY Cause No. DC-21-09687 WELDON CONTRACTORS, LLC D/B/A § IN THE DISTRICT COURT OF WELDON CONTRACTORS § § Plaintiff, § v. § § 193rd JUDICIAL DISTRICT CZOT/MGS LLC AND HARTFORD FIRE § INSURANCE COMPANY § § Defendants. § DALLAS COUNTY, TEXAS PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ AMENDED ANSWER AND COUNTERCLAIMS TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Plaintiff Weldon Contractors, LLC D/B/A Weldon Contractors, (“Weldon”) and files this its Motion to Strike Defendants’ CZOT/MGS LLC (“Construction Zone”) and Hartford Fire Insurance Company (“Hartford”) (collectively, “Defendants”) Amended Answer and Counterclaims and in support thereof, would respectfully show the Court as follows: I. ARGUMENT A. Defendants’ Amended Answer and Counterclaims are Untimely. Defendants’ Amended Answer and Counterclaims are untimely. Weldon filed this lawsuit on July 26, 2021. Defendants’ filed their Original Answer on August 31, 2021, with no affirmative defenses and no counterclaims. On June 13, 2023, two years later and a week before trial, Defendants untimely filed their Amended Answer and Counterclaims. On September 1, 2021, the first Notice of Trial was sent along with a signed Uniform Scheduling Order. The Uniform Scheduling Order provided a deadline of 120 days before the Initial Trial Setting for amended pleadings asserting new causes of action PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ AMENDED ANSWER AND COUNTERCLAIMS PAGE|1 or defenses. The “Initial Trial Setting” is defined as 05/03/2022. Thus, the deadline to amend pleadings asserting new causes of action or defenses was January 3, 2022. Accordingly, Defendants’ Amended Answer and Counterclaims have been filed over 18 months late. This case has been re-set and continued multiple times. Notably, the Uniform Scheduling Order states, “Reset or continuance of the Initial Trial Setting will not alter any deadlines established in this Order or established by the Texas Rules of Civil Procedure unless otherwise provided by order.” The Court has not entered and the parties have not sought any other scheduling order in this case; thus, the deadlines have not changed throughout the duration of this case. Defendants filed their Amended Answer and Counterclaims on June 13, 2023 – one week before the current trial setting, and 18 months after the deadline. Thus, Defendants’ amended pleading should be stricken from the record. B. Defendants’ Amended Pleading is Inconsistent with their Motion for Continuance. On June 12, 2023, one day before they filed their amended pleading, Defendants filed a Motion for Continuance based in part on the ground that they are still recreating and correcting their accounting. Despite allegedly not having an accurate accounting record, Construction Zone now affirmatively pleads that it is entitled to damages or an offset of $785,436.42. These two positions are incompatible and highlight that Construction Zone is scrambling to find a way to delay the current trial setting. It does not appear that Construction Zone has a good faith basis for making its counterclaim and offset affirmative defenses. Defendants’ amended pleading is inconsistent with their sworn representations to the Court in their Motion for Continuance. In fact, Defendants’ Motion for Continuance PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ AMENDED ANSWER AND COUNTERCLAIMS PAGE|2 demonstrates that their amended pleading is baseless. Therefore, Defendants’ Amended Answer and Counterclaims should be stricken from the record. C. Weldon is Unfairly Surprised and Prejudiced Weldon is unfairly surprised and prejudiced by Defendants’ Amended Answer and Counterclaims. Weldon has conducted discovery, interviewed third parties and prepared for trial while relying on the fact that there were no pleaded counterclaims or affirmative defenses. This fact was made permanent when the deadline to file amended pleadings passed at the beginning of last year. If the Defendants believed they had any basis to do so, they have had plenty of time over the last 2 years to assert their counterclaims and affirmative defenses. In their Motion to Continue, Defendants state that Weldon should not be unfairly surprised or prejudiced by the amended pleading because counterclaims and defenses “have been the subject of extensive back and forth between the parties.” It is more accurate to describe the back and forth as being about Weldon’s claims for affirmative relief and Defendants negative assessment of Weldon’s claims. There have been no serious discussions about Defendants having unpled affirmative claims and defenses. Weldon, in fact, is unfairly surprised by Construction Zone filing its counterclaim after discovery has closed and mediation has occurred. Additionally, even if taken as true (which it is not), Defendants’ assertion of extensive back and forth of counterclaims and offset defenses reveals that Defendants were aware of these counterclaims and defenses, yet apparently chose to wait until right before trial to file or failed to timely file them. Because these claims and defenses were allegedly known by Defendants well before the deadline to amend pleadings, Weldon, it appears, was right to assume that Construction Zone was not going to assert affirmative PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ AMENDED ANSWER AND COUNTERCLAIMS PAGE|3 claims and defenses. It would be exceedingly unfair and prejudicial to Weldon to allow Defendants to plead new causes of action and defenses right before trial. If Construction Zone is allowed to proceed with its counterclaim and affirmative defenses, Weldon will be unfairly prejudiced in its ability to defend itself. If Weldon knew it would have to defend itself against counterclaims, it would have likely conducted discovery differently. Most obviously, Weldon would have sought written documents and deposition testimony to investigate and rebut the specific allegations contained in the counterclaims. For instance, in its Counterclaim, Construction Zone alleges that it sustained significant economic damages due to Weldon breaching its subcontract by: (i) failing to perform its work at the Ann Richards project pursuant to the plans and specifications included as part of the Subcontractor Agreement, and (ii) failing to supply the labor, materials, and equipment necessary to complete the scope of work for the Ann Richards project pursuant to the Subcontractor Agreement, and (iii) failing to complete is work at Ann Richards by the completion deadlines. To investigate and rebut these specific breach allegations and alleged damages, Weldon would have sought to identify and depose all Construction Zone representatives and third parties that would have relevant knowledge about the specific set of circumstances on which these allegations and damage are based and potentially utilize the services of an expert consultant to evaluate Construction Zone’s claims of delays to the completion of the Project and increased overhead and supervision costs. In contrast, Weldon’s actual discovery efforts were aimed at proving it substantially complied and performed its contractual obligations, that Construction Zone’s termination was wrongful and the accurate amount of unpaid contract balance to which it was entitled. While Weldon’s discovery efforts likely uncovered some of the circumstances Construction Zone would PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ AMENDED ANSWER AND COUNTERCLAIMS PAGE|4 allege are the basis of its counterclaim, it cannot logically and genuinely argue that Weldon would not have conducted different discovery if there had been a timely pled counterclaim. There is no justification for Defendants’ filing of an amended pleading so late in the case. Once the deadline to file amended pleadings passed, Weldon focused its discovery and trial preparation solely on proving its own properly pleaded claims, not on defending against hypothetical, untimely and unpled counterclaims. If Defendants are allowed to amend their answer and assert counterclaims, Weldon will be prejudiced not only by not having the opportunity to conduct discovery directed at the counterclaim and affirmative defenses, but also by incurring additional fees for having to undertake expedient additional trial preparations to defend against Defendants’ counterclaims and affirmative defenses. PRAYER WHEREFORE, PREMISES CONSIDERED, Weldon respectfully asks the Court to strike Defendants’ Amended Answer and Counterclaims as untimely and refrain from considering any affirmative defenses and counterclaims asserted therein. PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ AMENDED ANSWER AND COUNTERCLAIMS PAGE|5 Respectfully Submitted, THOMAS, FELDMAN & WILSHUSEN, LLP By: /s/ Todd R. Nectoux TODD R. NECTOUX State Bar No. 24032899 Email: tnectoux@tfandw.com SABRINA E. ALLEN State Bar No. 24131223 Email: sallen@tfandw.com Merit Tower 12222 Merit Drive, Suite 1450 Dallas, Texas 75251-3297 Telephone: (214) 369-3008 Fax: (214) 369-8393 ATTORNEYS FOR PLAINTIFF WELDON CONTRACTORS, LLC D/B/A WELDON CONTRACTORS CERTIFICATE OF SERVICE This is to certify that on this 15th day of June 2023, a true and correct copy of the above and foregoing instruments was served upon all counsel of record pursuant to the Rules of Civil Procedure by the electronic filing system. /s/ Todd R. Nectoux Todd R. Nectoux PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ AMENDED ANSWER AND COUNTERCLAIMS PAGE|6 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Mario Young on behalf of Todd Nectoux Bar No. 24032899 myoung@tfandw.com Envelope ID: 76673203 Filing Code Description: Motion - Strike Filing Description: PLAINTIFF MTN STRIKE (DF) AMENDED ANSWER & COUNTERCLAIMS Status as of 6/16/2023 7:16 AM CST Associated Case Party: WELDON CONTRACTORS, LLC D/B/A WELDON CONTRACTORS Name BarNumber Email TimestampSubmitted Status Todd R.Nectoux tnectoux@tfandw.com 6/15/2023 4:07:58 PM SENT TFW Court Admin tfwcourtadmin@tfandw.com 6/15/2023 4:07:58 PM SENT Sabrina Allen 24131223 sallen@tfandw.com 6/15/2023 4:07:58 PM SENT Associated Case Party: HARTFORD FIRE INSURANCE COMPANY Name BarNumber Email TimestampSubmitted Status Maribel Luzunaris Maribel.Luzunaris@thehartford.com 6/15/2023 4:07:58 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status W T Skip Leake skip@leakelaw.com 6/15/2023 4:07:58 PM SENT Jonathan C.Conway cconway@leakelaw.com 6/15/2023 4:07:58 PM SENT