Preview
Filed: 5/31/2023 3:49 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 76162558
By: Shailja Dixit
5/31/2023 4:08 PM
CAUSE NO. 22-CV-1740
RYAN PAVONE AND JANIN MONGAIO § IN THE DISTRICT COURT
URBINA §
§
V. §
§
TAYLOR MORRISON OF TEXAS, INC. AND §
TAYLOR WOODROW COMMUNITIES- §
LEAGUE CITY, LTD. §
§
V. §
§
BIG TEX AIR CONDITIONING, INC. § 56TTH JUDICIAL DISTRICT COURT
§
V. §
§
CHAPARRAL PLUMBING, LP, WILLIAMS §
INSULATION COMPANY, INC., CITY §
FRAMERS, LLC, ARNULFO RODRIGUEZ §
ROOFING CO., INC., ROYAL BATHS MFG §
CO. LTD, ABSOLUTE DRYWALL SERVICE, §
LLC AND BFS GROUP LLC § GALVESTON COUNTY, TEXAS
DEFENDANT ABSOLUTE DRYWALL SERVICE, LLC’S RESPONSE TO BIG TEX
AIR CONDITIONING, INC.’S MOTION TO COMPEL ARBITRATION, INCLUDING
ABSOLUTE DRYWALL’S FIRST AMENDED RESPONSE TO TAYLOR MORRISON
OF TEXAS, INC. AND TAYLOR WOODROW COMMUNITIES-LEAGUE CITY,
LTD’S MOTION FOR RECONSIDERATION,
ABSOLUTE DRYWALL’S FIRST AMENDED REPLY TO TAYLOR MORRISON’S
RESPONSE TO ABSOLUTE DRYWALL’S MOTION TO COMPEL DISCOVERY, AND
ABSOLUTE DRYWALL’S MOTION TO COMPEL DISCOVERY FROM BIG TEX AIR
CONDITIONING, INC.
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant Absolute Drywall Service, LLC (“Defendant” or “Absolute
Drywall”), and files this its Response to Third-Party Defendant/Fourth-Party Plaintiff Big Tex Air
Conditioning, Inc.’s (“Big Tex”) Motion to Compel Arbitration as to the Fourth-Party Defendants;
including Absolute Drywall’s First Amended Response to Taylor Morrison of Texas, Inc. and
Taylor Woodrow Communities-League City, LTD’s (“Taylor Morrison”) Motion for
Reconsideration; Absolute Drywall’s First Amended Reply to Taylor Morrison’s Response to
Absolute Drywall’s Motion to Compel Discovery; and Absolute Drywall’s Motion to Compel
Discovery from Big Tex Air Conditioning, Inc., and in support thereof, would respectfully show
the Court as follows:
I. SUMMARY OF RESPONSE/REPLY/MOTION
1. Big Tex’s Motion to Compel Arbitration should be denied, Taylor
Morrison’s Motion for Reconsideration should be denied, and both of Absolute
Drywall’s Motions to Compel Discovery should be granted;
2. Big Tex’s Motion to Compel Arbitration cites an agreement that the Fourth-
Party Defendants were not parties to, another agreement that Big Tex fails to attach
to its motion and which by the terms is not implicated, and a doctrine which may
not exist in Texas and which would not apply even if it did;
3. Taylor Morrison continues to refuse to produce documents allegedly
showing that Absolute Drywall performed weather-stripping services—the only
claim that has been made against Absolute Drywall—and has now filed a motion
for reconsideration of the arguments this Court has already rejected once before;
4. Taylor Morrison has still not shown any particular, specific, and
demonstrable injury that would result from complying with Absolute Drywall’s
discovery requests; their Motion for Protective Order was thus properly denied by
the Court;
5. Taylor Morrison’s over-reliance on the FAA and Texas case law applying
it to support the idea that abatement is required is undermined by an examination
of the case law and the fact that Taylor Morrison fails to correctly apply the test its
own motion lays out;
6. Accordingly, Taylor Morrison’s Motion for Reconsideration should be
denied, and Defendant Absolute Drywall Service’s Motions to Compel Discovery
should be granted because Defendant Absolute Drywall Service is entitled to
understand the allegations that have been brought against it.
II. FACTUAL AND PROCEDURAL BACKGROUND
This matter arises from an alleged claim that moisture and mold growth has developed in
Plaintiffs’ home due to several alleged design and construction defects on their property located at
4708 Serrano Drive, League City, Texas 77573 (“the Property”). Plaintiffs filed their Original
Petition on September 8, 2022, against Defendants, Taylor Morrison of Texas, Inc. and Taylor
Woodrow Communities—League City, LTD., (“Taylor Morrison”), who allegedly built the
Property in 2013.
On October 6, 2022, Taylor Morrison filed their Third-Party Petition naming Big Tex Air
Conditioning, Inc., (“Big Tex”) as the Third-Party Defendant who allegedly installed the HVAC
and duct system on Plaintiff’s property. Bix Tex was one of many subcontractors hired by Taylor
Morrison for construction work on the Property. Bix Tex then filed their Fourth-Party Petition
against other subcontractors that Taylor Morrison hired for construction work on the Property,
naming Absolute Drywall Services, LLC, (“Absolute Drywall”) as one of the Fourth-Party
Defendants based on the alleged provision of “weather stripping services.” Absolute Drywall asks
that the Court take judicial notice of the pleadings on file in this case.
A. Absolute Drywall provided drywall for the home, not weather-stripping services.
Fourth-Party Defendant Absolute Drywall has been sued by Third-Party
Defendant/Fourth-Party Plaintiff Big Tex in this case based on an allegation that Absolute Drywall
provided weather-stripping services for the construction of the Plaintiffs’ home. This is despite
there being no contractual relationship between Absolute Drywall and Big Tex in this matter. The
only contractual relationship related to this matter that Absolute Drywall entered into was with
Defendant/Third-Party Plaintiff Taylor Morrison. In Absolute Drywall’s contract with Taylor
Morrison, Absolute Drywall agreed to “complete the drywall of [the home] per the architectural
drawings and specifications provided by Taylor Morrison.” Nowhere in this contract did Absolute
Drywall’s scope of work extend to weather-stripping services.
B. Taylor Morrison refuses to show Absolute Drywall anything contradicting Absolute
Drywall’s position regarding its scope of work.
Absolute Drywall has consistently maintained that its scope of work was limited to
providing drywall for the Project. Absolute Drywall has attempted, through the discovery process,
to understand why Big Tex believes Absolute Drywall was responsible for weather-stripping
services in the construction of the Plaintiffs’ home. On information and belief, Third-Party
Defendant/Fourth-Party Plaintiff Big Tex is in possession of a document—which, on information
and belief, it obtained from Defendant/Third-Party Plaintiff Taylor Morrison pursuant to a rule 11
agreement between those two parties—which allegedly states that Absolute Drywall performed
weather-stripping services. Absolute Drywall attempted to obtain this purported document through
discovery requests to both Taylor Morrison and Big Tex.
Rather than provide that document in response to Absolute Drywall’s discovery requests,
Taylor Morrison moved for a protective order seeking to block Absolute Drywall from obtaining
what might be the only document showing any basis for the case against Fourth-Party Defendant
Absolute Drywall. This Court denied Taylor Morrison’s motion at an oral hearing on March 23,
2023, but Taylor Morrison continued to refuse to produce any documents pursuant to Absolute
Drywall’s discovery requests, leading Absolute Drywall to file its Motion to Compel Discovery
against Taylor Morrison on April 6, 2023.
Taylor Morrison has now moved for reconsideration, recycling its arguments from its
Motion for Protection and Plea in Abatement, albeit with additional citations to case law, to again
resist discovery of any documents that allegedly show why Absolute Drywall has been sued.
Despite the additional case citations, Taylor Morrison has yet to adequately show why injury
would result from it complying with Absolute Drywall’s discovery requests in this case or why
abatement of the entire case is necessary. Accordingly, Taylor Morrison’s Motion for
Reconsideration should be denied and Absolute Drywall’s Motion to Compel Discovery against
Taylor Morrison should be granted.
C. Big Tex refuses to show Absolute Drywall anything contradicting Absolute Drywall’s
position regarding its scope of work.
Big Tex has similarly refused to show any documents to Absolute Drywall which would
support the notion that Absolute Drywall provided weather-stripping services. For its part, Big
Tex, unlike Taylor Morrison, at least served Absolute Drywall with responses to the discovery
requests Absolute Drywall sent to Big Tex. However, Big Tex ultimately refused to provide
documents supporting its “weather-stripping services” accusation, claiming that responsive
documents from Taylor Morrison were “provided to [Big Tex] contingent upon a Confidentiality
Agreement with Taylor Morrison.” 1 Big Tex also refused to provide any information concerning
weather-stripping services in response to Absolute Drywall’s interrogatories, citing the same
Confidentiality Agreement. 2 After a recent conference with counsel for Big Tex regarding this
matter, a copy of said Confidentiality Agreement was provided to Absolute Drywall and is attached
to this Response.
Big Tex now seeks to compel Absolute Drywall and the rest of the Fourth-Party Defendants
in this case to arbitration. However, none of Big Tex’s arguments for compelling arbitration
survive a basic level of scrutiny, as Big Tex has not shown the existence of an arbitration agreement
which would bind Absolute Drywall. Moreover, Big Tex has not cited any precedent which would
allow a court to compel a non-signatory in Absolute Drywall’s position to arbitration. Therefore,
Big Tex’s Motion to Compel Arbitration should be denied.
III. RESPONSE TO BIG TEX’S MOTION TO COMPEL ARBITRATION
Big Tex’s Motion to Compel Arbitration as to the Fourth-Party Defendants should be
denied as to Absolute Drywall. Big Tex raises three arguments in its Motion to Compel Arbitration:
(1) that the purchase agreement between the Plaintiffs and Taylor Morrison require arbitration of
Big Tex’s claims against the Fourth-Party Defendants, (2) that the subcontracts between Taylor
Morrison and the Fourth-Party Defendants require arbitration of Big Tex’s claims against the
Fourth-Party Defendants, and (3) that the “intertwined claims” doctrine requires arbitration of Big
1
See Big Tex’s First Amended Responses to Absolute Drywall’s Requests for Production.
2
See Big Tex’s First Amended Answers to Absolute Drywall’s Interrogatories.
Tex’s claims against the Fourth-Party Defendants. Absolute Drywall will address each of these
arguments in turn.
A. Absolute Drywall was not a party to the purchase agreement between Plaintiffs and
Taylor Morrison.
“No party may be compelled to arbitrate unless they have agreed to arbitrate or are bound
by principles of agency or contract law to do so.” Jody James Farms, JV v. Altman Grp., Inc., 547
S.W.3d 624, 640 (Tex. 2018). Big Tex’s motion highlights language from the purchase agreement
between Plaintiffs and Taylor Morrison, which states in the arbitration clause that the parties to
the agreement “contemplate the inclusion of [subcontractors] in any arbitration of a dispute and
agree that the inclusion of such parties will not affect the enforceability of this arbitration
agreement.”
To put it plainly, the fact that parties to an arbitration clause “contemplate” third parties
joining an arbitration does not—and cannot—bind such third parties to arbitration. A party
attempting to enforce an arbitration agreement “must show the agreement meets all requisite
contract elements.” J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 228 (Tex. 2003). The
elements of a valid contract are “(1) an offer; (2) acceptance in strict compliance with the terms of
the offer; (3) a meeting of the minds; (4) each party’s consent to the terms; and (5) execution and
delivery of the contract with the intent that it be mutual and binding.” Wilburn v. Valliance Bank
& Coleman & Patterson LLC, No. 05-14-00965-CV, 2015 WL 9281271 at *5 (Tex. App.—Dallas
Dec. 21, 2015). Absolute Drywall was not a party to the purchase agreement, and thus there was
no meeting of the minds or consent to the terms as to Absolute Drywall. Ergo, Absolute Drywall
did not agree to the arbitration clause contained within the agreement. The fact that “a non-
signatory’s claim may relate to a contract containing an arbitration provision . . . does not, in itself,
bind the non-signatory to the arbitration provision.” In re Kellogg Brown & Root, Inc., 166 S.W.3d
732 (Tex. 2005). Big Tex’s argument based on the purchase agreement is thus grossly misplaced.
B. No subcontract provision requires Absolute Drywall to participate in arbitration in
this case.
Big Tex further argues that the Court should compel arbitration as to the Fourth-Party
Defendants based on purported contractual agreements between Taylor Morrison and Fourth-Party
Defendants. However, as Fourth-Party Defendant BFS Group has explained in its response to Big
Tex’s motion, no such agreement was attached to Big Tex’s motion. Big Tex has thus failed to
carry its burden to show that the claims against the Fourth-Party Defendants are arbitrable.
Regardless of whether the purported contractual agreements exist, the claims brought by
Big Tex against the Fourth-Party Defendants, by the express terms Big Tex cites within the
purported arbitration agreements, fall outside the scope of those arbitration clauses. Assuming that
Fourth-Party Defendants agreed to such arbitration clauses, the language of those clauses states
only that Fourth-Party Defendants—“contractors” in the language cited by Big Tex—agreed to
join arbitration “to resolve all outstanding issues, claims and defenses between Contractor and
Taylor Morrison in such arbitration” (all emphasis added). The Fourth-Party Defendants, all
subcontractors for the project underlying this lawsuit, never agreed to arbitrate “issues, claims and
defenses” between them and other subcontractors, including Big Tex.
Big Tex’s claims against Fourth-Party Defendants, including Absolute Drywall, thus fall
squarely outside the scope of the purported arbitration agreement which Big Tex claims Fourth-
Party Defendants agreed to. Because the sole claim against Absolute Drywall in this case has been
brought by Big Tex, no claim against Absolute Drywall falls within the scope of any arbitration
clause. Absolute Drywall asserts that the claim against it falls outside the scope of the cited
arbitration clause by that clause’s unambiguous terms. In the alternative, should the Court find that
the terms are ambiguous, Absolute Drywall hereby asks the Court to resolve such ambiguity
against the party responsible for drafting it and hold that the provision cannot be enforced against
Absolute Drywall in this factual context.
C. The intertwined claims doctrine is inapplicable in this factual context.
Fourth-Party Defendant BFS Group’s Response to Big Tex’s Motion to Compel
Arbitration as to the Fourth-Party Defendants is on file with the Court. Absolute Drywall hereby
adopts this filing by reference and incorporates its arguments regarding the intertwined claims
doctrine, found in subheading B of BFS Group’s Response, into this Response as permitted by
Rule 58 of the Texas Rules of Civil Procedure. See also Lockett v. HB Zachry Co., 285 S.W.3d
63, 72-73 (Tex. App.—Houston [1st Dist.] 2009, no pet.).
Absolute Drywall agrees with BFS Group’s response concerning the intertwined claims
doctrine and hereby asserts that its logic applies with equal weight to Big Tex’s claim against
Absolute Drywall. Absolute Drywall has no “close relationship” with Taylor Morrison or with Big
Tex; it is a wholly separate business entity that has no formal corporate relationship with any of
the other parties in this case. Similarly to BFS Group, the sole claim against Absolute Drywall in
this case is a contribution claim that has been brought by Big Tex, to whom Absolute Drywall
owes no contractual duties. Big Tex’s contribution claim cannot be based upon any breach of
contract claim under Texas law. Park v. Escalera Ranch Owners’ Ass’n, Inc., 457 S.W.3d 571,
602-03 (Tex. App.—Austin 2015, no pet.). Therefore, Big Tex’s claim against Absolute Drywall
is not “intimately founded in and intertwined with [any] underlying contract obligations” as would
be required under the intertwined claims doctrine.
In addition to the factual distinctions highlighted by BFS Group in its Response, it is worth
noting that only the two cases cited by Big Tex in its discussion of the intertwined claims doctrine
arose in procedural postures distinguishable from the present case. Both Quality Metrics Partners,
LLC v. Blasingame, No. 05-18-00394-CV, 2019 WL 4010773 (Tex. App.—Dallas Aug. 26, 2019)
and Cotton Com. USA, Inc. v. Clear Creek Indep. Sch. Dist., 387 S.W.3d 99 (Tex. App.—Houston
[14st Dist.] 2012) involved non-signatory defendants trying to enforce the arbitration of a
plaintiff’s claims against them based upon an arbitration agreement which the plaintiff was a party
to; in other words, a signatory to arbitration was seeking to avoid arbitration, which is the exact
opposite of the present facts. To whatever extent the intertwined claims doctrine may exist under
Texas law, Big Tex has cited no case precedent for applying it to a scenario where a non-signatory
seeks to avoid arbitration.
Big Tex has failed to prove the existence of any applicable arbitration agreement that would
bind Absolute Drywall to arbitration, and the intertwined claims doctrine does not apply to the
sole claim against Absolute Drywall. Accordingly, Big Tex’s Motion to Compel Arbitration
should be denied as to Absolute Drywall.
IV. FIRST AMENDED RESPONSE TO TAYLOR MORRISON’S MOTION FOR
RECONSIDERATION AS TO PROTECTIVE ORDER AND FIRST AMENDED
REPLY REGARDING ABSOLUTE DRYWALL’S MOTION TO COMPEL
DISCOVERY AGAINST TAYLOR MORRISON
Taylor Morrison now moves for reconsideration of the Court’s denial of a protective order
that would cover Absolute Drywall’s discovery requests to Taylor Morrison. “The party seeking a
protective order must show particular, specific and demonstrable injury by facts sufficient to
justify a protective order.” In re Wal-Mart Stores, Inc., 545 S.W.3d 626, 636 (Tex. App.—El Paso
2016, pet. denied) (citing In re Collins, 286 S.W.3d 911, 919 (Tex. 2009) (orig. proceeding)).
Taylor Morrison has not shown such injury would occur in this case. In Wal-Mart Stores, the
allegation that discovery would likely involve confidential and/or proprietary information was
insufficient grounds to justify a protective order, as such an allegation was not particular or
specific. Id. at 636–37. In the present case, Taylor Morrison has not even alleged in its Motion that
the documents sought by Absolute Drywall are confidential.
Taylor Morrison’s cites In re Houston Pipeline Co., 311 S.W.3d 449, 451-452 (Tex. 2007)
(per curiam) to argue that it would be error for the Court to order Taylor Morrison to comply with
Absolute Drywall’s discovery requests because Taylor Morrison the Court has ordered Taylor
Morrison to arbitration, based upon Taylor Morrison’s own motion to compel such arbitration.
Taylor Morrison overextends the actual holding of the Texas Supreme Court in Houston Pipeline
to try and apply it to a wholly distinguishable situation. When a claim is subject to arbitration, pre-
arbitration discovery regarding that claim can only concern the issue of arbitrability and not the
“merits of the underlying controversy.” Id. at 451. But this rule has no application to claims which
are not subject to arbitration in the first place.
Houston Pipeline is inapposite to the present case. Houston Pipeline involved a party who
had agreed to arbitration of their claim and was attempting to circumvent the general rule
prohibiting pre-arbitration discovery when it goes to the merits of the underlying controversy. Id.
(“a party cannot avoid its agreement to arbitrate merely by alleging that there may be other
potential defendants; it must link the identity of the defendants to an issue of arbitrability”). As
explained in Absolute Drywall’s response to Big Tex’s Motion to Compel Arbitration as to the
Fourth-Party Defendants, there has been no agreement to arbitrate the underlying controversy
between Big Tex and Absolute Drywall.
Taylor Morrison’s attempt to confuse the issue by saying that the underlying controversy
of the claim by Big Tex against Absolute Drywall would “affect” arbitration risks a dangerous
overextension of the FAA. To the extent that Taylor Morrison argues that a party’s “liability vel
non” regarding any claim in a given matter can be decided by arbitration when the party is not
subject to arbitration, Taylor Morrison’s argument would effectively force the non-signatory party
to attend arbitration to protect their rights. The FAA was not intended to have this effect, and any
argument to the contrary would pose serious conflict with the right to a trial by jury. See Volt Info.
Scis., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 474-75 (1989) (“the
FAA does not confer a right to compel arbitration of any dispute at any time; it confers only the
right to obtain an order directing that ‘arbitration proceed in the manner provided for in [the
parties’] agreement,’” emphasis in original); U.S. Const. amend. VII; Tex. Const. art. I, § 15.
Alternatively, to whatever extent the Court may be unconvinced that the claim against
Absolute Drywall is not subject to arbitration, Absolute Drywall’s discovery requests would
inform the issue of arbitrability. For example, if the Court finds that purported arbitration clauses
in subcontracts with Taylor Morrison, which Big Tex asserts the Fourth-Party Defendants’ agreed
to, 3 are ambiguous, discovery relating to those subcontracts and communications between the
subcontractors and Taylor Morrison would be relevant to determining the parties’ intent. Absolute
Drywall’s discovery requests would thus be authorized pre-arbitration discovery even under the
rule articulated in Houston Pipeline, which, as previously explained, does not apply to Absolute
Drywall’s discovery requests to Taylor Morrison.
V. FIRST AMENDED RESPONSE TO TAYLOR MORRISON’S MOTION FOR
RECONSIDERATION AS TO ABATEMENT
Taylor Morrison’s Motion for Reconsideration cites the fact that the Court has ordered
arbitration of the claims between Plaintiffs and Taylor Morrison, as well as the claims between
Taylor Morrison and Big Tex, as the basis for its refusal to comply with discovery requests. Taylor
Morrison argues that abatement of this entire case was required upon the Court’s referral of the
above claims to arbitration. 4 Taylor Morrison cites the Section 3 of the FAA and the opinion of
the Texas Supreme Court in In re Merrill Lynch Tr. Co. FSB, 235 S.W.3d 185 (Tex. 2007) to
support this sweeping proposition. 5 But this proposition is false.
3
See supra, heading III.B.
4
See Exhibit B - Taylor Morrison’s Motion for Reconsideration, page 4.
5
Taylor Morrison also cites Rapid Settlements, Ltd. v. SSC Settlements, LLC, 251 S.W.3d 129, 142 (Tex. App.—Tyler
2008) in making its argument that the entire case must be stayed. But the Tyler Court of Appeals in that case clearly
did not intend to make that sweeping statement with respect to claims involving non-signatories to the arbitration
agreement. See id. at 143 (citing the test for staying claims involving non-signatories laid out in Waste Mgmt., Inc. v.
Residuos Industriales Multiquim, S.A. de C.V., 372 F.3d 339, 343 (5th Cir. 2004), which is discussed later in this
Response). That case is, therefore, inapplicable. And to whatever extent the opinion of court in Rapid Settlements
A. Section 3 of the FAA does not require the Court to stay this case.
Taylor Morrison’s proposed reading of the FAA is grossly inequitable and, moreover, is
contrary to the relevant case law applying the FAA. It is simply not true that the entirety of a case
has to be stayed based on any one issue within it being subject to arbitration. See Rainier DSC 1,
L.L.C. v. Rainier Cap. Mgmt., L.P., 828 F.3d 356, 359-61 (5th Cir. 2016) (holding that the trial
court did not err in declining to stay litigation of non-arbitrable claims under the FAA).
Taylor Morrison’s reliance on Section 3 of the FAA is also dubious in light of the fact
Absolute Drywall is not a party to the arbitration agreement which Taylor Morrison sought
enforcement of. “Although not expressly so limited, section 3 assumes and the case law holds that
the movant for a stay, in order to be entitled to a stay under the [FAA], must be a party to the
agreement to arbitrate, as must be the person sought to be stayed.” IDS Life Ins. Co. v. SunAmerica,
Inc., 103 F.3d 524, 529 (7th Cir. 1996) (emphasis added). 6 Taylor Morrison’s citation of Section
3 of the FAA is thus improper to the extent that it would have the Court order a stay against the
Fourth-Party Defendants in this matter when they are not parties to the agreement to arbitrate. If
Taylor Morrison’s position were the law, unsuspecting third parties (or, in this case, fourth parties)
with whom no applicable arbitration agreement exists could be brought into a lawsuit by a party
subject to arbitration and then get stuck in limbo as the claims against them were stayed. This is
precisely the result Taylor Morrison wants, and it is precisely the reason their Motion for
Reconsideration should be denied.
supports Taylor Morrison’s argument, the opinion of the Tyler Court of Appeals is an outlier that is contrary to other
applicable case law.
6
Although SunAmerica was an opinion out of the 7th Circuit Court of Appeals and not the 5th Circuit, the Texas
Supreme Court cited Judge Posner’s opinion in the case favorably. In re Merrill Lynch Tr. Co. FSB, 235 S.W.3d
185, 195 (Tex. 2007) (citing SunAmerica, Inc., 103 F.3d at 530 (distinguishing principles of abstention from Section
3 of the FAA)).
B. The case law does not support a stay in this case.
The Merrill Lynch case, cited by Taylor Morrison in its Motion for Reconsideration,
warrants some examination. In that case, the Texas Supreme Court recognized that the plaintiffs’
claims against a Merrill Lynch employee were referable to arbitration but that their claims against
Merrill Lynch’s affiliates were not. See Merrill Lynch, 235 S.W.3d at 191-195. The court went on
to state the following regarding the appropriateness of a stay: “Assuming the same issues must be
decided both in arbitration (against [Merrill Lynch’s employee]) and in court (against the
affiliates), we hold the latter must be stayed until the former is completed.” Id. at 195 (emphasis
added). In other words, the court did not actually consider whether the same issues had to be
decided in arbitration as in litigation.
Therein lies the question for this case: does the discovery requested by Absolute Drywall
go to an issue that must be decided both in arbitration and in court? Taylor Morrison’s Motion
cites the test that applies when a court considers whether claims involving a non-arbitrating party
must be stayed while arbitration proceeds regarding the claims of arbitrating parties: “The FAA’s
mandatory stay applies to a non-signatory to an arbitration agreement if (1) the arbitrated and
litigated disputes involve the same operative facts, (2) the claims asserted in the arbitration and
litigation are ‘inherently inseparable,’ and (3) the litigation has a ‘critical impact’ on the
arbitration.” In re Devon Energy Corp., 332 S.W.3d 543 (Tex. App.—Houston [1st Dist.] 2009
(citing Waste Mgmt., Inc. v. Residuos Industriales Multiquim, S.A. de C.V., 372 F.3d 339, 343 (5th
Cir. 2004))) (no pet.). For purposes of the present case, Absolute Drywall agrees that the three-
prong test laid out in Waste Management is appropriate to resolve the abatement question currently
before the Court. For the sake of judicial economy, Absolute Drywall will focus on the second and
third elements of this test.
As an initial matter, Absolute Drywall points out that the procedural posture of this case
sets it far apart from most of the applicable case law. Discussions of whether claims are “inherently
inseparable” usually revolve around factual scenarios where a litigant is in opposition to multiple
other parties and has arbitration agreements with some but not all of the opposing parties. See
Waste Mgmt., Inc., 372 F.3d 339 (plaintiff sued multiple defendants and only had an arbitration
agreement with one of them); In re Devon Energy Corp., 332 S.W.3d 543 (multiple plaintiffs sued
defendant but only one plaintiff had an arbitration agreement with the defendant). Another case
cited by Taylor Morrison, All Am. Excavation, Inc. v. Austin Materials, LLC, No. 04-15-000781-
CV, 2016 WL 1464409 (Tex. App.—San Antonio Apr. 13, 2016, no pet.), involved what the San
Antonio Court of Appeals considered to be “derivative claims” but failed to discuss any of the
Waste Management factors in deciding the appropriateness of a stay. Id. at *4. Moreover, Austin
Materials did not involve a scenario in which the claims against non-arbitrating parties were for
contribution under chapter 33 of the Texas Civil Practice and Remedies Code.
C. The Waste Management factors do not support a stay in this case.
Absolute Drywall’s discovery requests go to a very simple issue: did Absolute Drywall
perform any weather-stripping services in the construction of the home? This issue stems from the
sole claim that has been alleged against Absolute Drywall in this lawsuit—a claim by Big Tex that
Absolute Drywall performed weather stripping services and is liable for such services. As this
Court has previously ruled—and as Taylor Morrison has not contested—that claim is not referable
to arbitration.
i. Big Tex’s Fourth-Party claim against Absolute Drywall is not “inherently
inseparable” from Taylor Morrison’s claim against Big Tex.
Taylor Morrison’s conclusory assertion that this issue is “inherently inseparable” from the
issues in arbitration appears to turn on the idea of Big Tex’s contribution claims being “inherently
inseparable” from the causes of action from which they derive. For the sake of argument, this
might be true if Big Tex’s contribution claim had alleged Absolute Drywall performed work on
the HVAC system and duct work for the home—which would tie the claim to Taylor Morrison’s
claims against Big Tex. See In re Devon Energy Corp., 332 S.W.3d at 549 (noting, in holding
claims were inherently inseparable, that the arbitrating and litigating parties “filed their claims as
co-plaintiffs, allege nearly identical breach of contract claims, and seek one shared set of
declarations, including a shared declaration” on the same core issue). However, Big Tex’s only
claim against Absolute Drywall involves “weather stripping services.” This claim is not
“inherently inseparable” from a dispute about the HVAC system or duct work; the arbitration can
consider that dispute while the litigation handles issues of whether Absolute Drywall provided
weather stripping services.
ii. Big Tex’s Fourth-Party claim against Absolute Drywall will not have any “critical
impact” on the arbitration.
Regarding the “critical impact” element of the test, Taylor Morrison’s Motion for
Reconsideration does not clearly address what “critical impact” Taylor Morrison argues Absolute
Drywall’s discovery requests would have on the arbitration. This deficiency should be grounds for
denying Taylor Morrison’s motion regarding abatement. See Rainier DSC 1, 828 F.3d at 361
(noting that the appellants failed to discuss the Waste Management factors before holding that the
trial court did not abuse its discretion in declining to stay litigation).
Moreover, it is confusing why Taylor Morrison would be concerned about “sheetrock
issues” becoming mooted by Absolute Drywall’s discovery requests when the only claim that has
been alleged against Absolute Drywall concerns “weather stripping services.” Absolute Drywall’s
“liability vel non” therefore turns on such weather stripping services and whether Absolute
Drywall provided them. Despite this, Taylor Morrison inexplicably argues that Absolute Drywall’s
“pre-arbitration discovery”—regarding a claim not subject to arbitration—must be stayed.
D. A stay of the claim against Absolute Drywall is not equitable in this case.
In the Merryl Lynch case, which Taylor Morrison relies on so heavily in its Motion for
Reconsideration, the Texas Supreme Court cited Judge Posner’s opinion in SunAmerica favorably,
and cited portions of the following passage from SunAmerica:
Mages and McCowan are cases in which a party to an arbitration
agreement, trying to get around it, sues not only the other party to the agreement
but some related party with which it has no arbitration agreement, in the hope that
the claim against the other party will be adjudicated first and have preclusive
effect in the arbitration. Such a maneuver should not be allowed to succeed,
but it is blocked not by section 3 [of the FAA], which is not addressed to the
problem of parallel judicial/arbitral proceedings, but by the principles of parallel-
proceeding abstention, which in the case just put would require the court to stay
the proceedings before it and let the arbitration go forward unimpeded. . . .
This is a detail, because, as we have said, an “evasion” case such as Mages
or McCowan would be decided the same way without section 3, only under the
doctrine of abstention applicable to parallel proceedings in judicial and
arbitral fora.
SunAmerica, Inc., 103 F.3d at 530 (all emphasis added).
Judge Posner expressly identified the reason why claims involving non-signatories may be
stayed under the FAA; it is not section 3 of the Act, but rather the “doctrine of abstention applicable
to parallel proceedings in judicial and arbitral fora.” Moreover, the language used makes it clear
that this judicial doctrine applies in “evasion” cases where the party trying to avoid the mandatory
stay of section 3 of the FAA is a party to the arbitration. Absolute Drywall is not a party to the
arbitration, and it has not brought any claims of affirmative relief, unlike the party in SunAmerica.
Thus, while Absolute Drywall agrees that the test laid out in Waste Management controls this
issue, to apply it in a way that stays the claim against Absolute Drywall would be an inequitable
application of the judicial abstention doctrine in play here. To stay the claim against Absolute
Drywall would leave it in limbo while it continues to believe that it only provided drywall for the
project underlying this lawsuit.
Crucially, Absolute Drywall filed the Motions to Compel Discovery that are before the
Court because it still has not been shown a single piece of evidence to support the accusation that
it provided weather stripping services. Taylor Morrison’s resistance to producing these documents
rests solely on the idea that it is a matter for the arbitrator to decide, even though that is clearly not
the case. It is not equitable to allow Taylor Morrison to refuse to provide discovery that may show
the only claim—or lack thereof—against Absolute Drywall. To grant Taylor Morrison’s Motion
for Reconsideration would be to delay justice based on an arbitration that Absolute Drywall is not
a party to. Because Taylor Morrison has shown no particular, specific, and demonstrable injury
that would result from complying with Absolute Drywall’s discovery requests, and because Taylor
Morrison has not shown that the issue Absolute Drywall seeks discovery for is inherently
inseparable from the arbitration, their Motion for Reconsideration should be denied, and Absolute
Drywall’s Motion to Compel Discovery should be granted.
VI. MOTION TO COMPEL DISCOVERY RESPONSES FROM BIG TEX AND
REQUEST FOR RELIEF FROM CONFIDENTIALITY
Absolute Drywall hereby moves to compel discovery responses from Big Tex to Absolute
Drywall’s discovery requests and, as may be necessary to protect Big Tex’s rights, asks the Court
to excuse Big Tex from compliance with any Confidentiality Agreement between Big Tex and
Taylor Morrison concerning documents which are responsive to Absolute Drywall’s discovery
requests. Such relief would allow Big Tex to adequately respond to Absolute Drywall’s discovery
requests without fear of reprisal from Taylor Morrison.
A. Attempts to Confer
Absolute Drywall contacted Big Tex regarding its objections and responses to Absolute
Drywall’s discovery requests on May 25, 2023, explaining Absolute Drywall’s concerns. 7 Big Tex
7
Initial Conference Email.
responded to Absolute Drywall’s concerns by supplementing its responses to most of Absolute
Drywall’s discovery requests and providing Absolute Drywall with a copy of the Confidentiality
Agreement which prohibits Big Tex from providing Absolute Drywall with documents that are
responsive to Absolute Drywall’s discovery requests. 8 Big Tex also contacted Taylor Morrison
inquiring whether Taylor Morrison would be willing to allow Big Tex to respond to Absolute
Drywall’s discovery requests despite this Confidentiality Agreement. 9 As of this Motion to
Compel being filed, Taylor Morrison has apparently not responded to Big Tex’s inquiry. 10
B. Motion to Compel
Absolute Drywall files this Motion to Compel Discovery against Big Tex with the
understanding that, but for the Confidentiality Agreement between Big Tex and Taylor Morrison,
Big Tex would provide responsive documents. Absolute Drywall reserves the right to argue any
other objections raised by Big Tex in response to Absolute Drywall’s requests for discovery while
focusing this Motion solely on the issue of the Confidentiality Agreement.
In Absolute Drywall’s response to Taylor Morrison’s Motion for Reconsideration
regarding its proposed protective order, 11 Absolute Drywall noted that Taylor Morrison had not
alleged that the documents it sought protection of were confidential. The Confidentiality
Agreement between Big Tex and Taylor Morrison does not indicate how the documents that Taylor
Morrison provided to Big Tex were confidential. The mere fact that two parties—Big Tex and
Taylor Morrison—agreed to keep the documents confidential is not a basis for holding that they
are protected from discovery. Thus, the same logic from Absolute Drywall’s Response regarding
Taylor Morrison’s protective order issue also applies here.
8
Confidentiality Agreement between Taylor Morrison and Big Tex.
9
Email to Taylor Morrison.
10
Email from Big Tex dated 5/30/2023.
11
See supra, heading IV.
The Confidentiality Agreement which Big Tex fears violating was a bold-faced attempt by
Taylor Morrison to avoid participating in any meaningful discovery in this case. Taylor Morrison
has no basis for refusing to allow Absolute Drywall to see the only documents which purportedly
support a claim for “weather stripping services” against Absolute Drywall. Absent any showing as
to why these documents require confidentiality, the Confidentiality Agreement is nothing more
than a way to circumvent the Texas Rules of Civil Procedure and prevent parties like Absolute
Drywall from obtaining discoverable material.
Accordingly, Absolute Drywall requests that this Court excuse Big Tex from complying
with the Confidentiality Agreement it has with Taylor Morrison for the purpose of allowing Big
Tex to comply with Absolute Drywall’s discovery requests to Big Tex. Pursuant to such excuse,
Absolute Drywall further requests that this Court compel Big Tex to produce responsive materials
to the following discovery requests from Absolute Drywall to Big Tex no later than seven (7) days
following the hearing on this motion:
• Absolute Drywall’s Requests for Production No. 1, 11, 12, and 13; and
• Absolute Drywall’s Interrogatory No. 3.
VII. CONCLUSION AND PRAYER
Absolute Drywall respectfully requests that this Court deny Big Tex’s Motion to Compel
Arbitration as to Absolute Drywall because there is no applicable arbitration agreement which
Absolute Drywall was a party to.
Absolute Drywall further requests that this Court deny Taylor Morrison’s Motion for
Reconsideration and subsequently compel Taylor Morrison’s responses to discovery as Absolute
Drywall is entitled to understand the allegations that have been brought against it. Absolute
Drywall’s discovery requests are appropriate and within the scope of discovery. However, Taylor
Morrison is unnecessarily delaying the search for truth by refusing to produce relevant responses
and documents and by refusing to allow Big Tex to produce such documents. For these reasons,
Defendant asks the Court to deny Taylor Morrison’s Motion for Reconsideration and compel
Taylor Morrison to produce responsive materials to Absolute Drywall’s discovery requests no later
than seven (7) days following the hearing on this motion.
Absolute Drywall further requests that this Court excuse Big Tex from its Confidentiality
Agreement agreement with Taylor Morrison and compel Big Tex to produce responsive materials
to Absolute Drywall’s discovery requests no later than seven (7) days following the hearing on
this motion.
Respectfully submitted,
LOPEZ LAW GROUP PLLC
By: _______________________
BRIAN C. LOPEZ
State Bar No. 24029693
brian@lopezlit.com
STEPHANIE A. STEELE
State Bar No. 24132371
stephanie@lopezlit.com
JEFFREY MYERS
State Bar No. 24131908
jeffrey@lopezlit.com
1502 Augusta Drive, Suite 100
Houston, Texas 77057
Phone: 713/275-9707
Fax: 713/275-9722
ATTORNEYS FOR DEFENDANT ABSOLUTE
DRYWALL SERVICE, LLC
CERTIFICATE OF CONFERENCE
I, Jeffrey Myers, certify that I have made an attempt to conference with Big Tex’s Counsel
regarding the above discovery discrepancies but have been unable to reach a solution.
Jeffrey Myers
CERTIFICATE OF SERVICE
I hereby certify that on this 31st day of May, 2023 a true and correct copy of the foregoing
was served on all counsel of record.
Jeffrey Myers
EXHIBIT A
NO. 22-CV-1740
RYAN PAVONE and § IN THE DISTRICT COURT
JANIN MONGAIO URNINA §
§
v. §
§ 56TH DISTRICT COURT
§
TAYLOR MORRISON OF TEXAS, INC. §
and TAYLOR WOODROW §
COMMUNITIES – LEAGUE CITY, LTD. § GALVESTON COUNTY, TEXAS
BIG TEX AIR CONDITIONING, INC.’S OBJECTIONS AND RESPOSNES TO
ABSOLUTE DRYWALL SERVICE, LLC’S FIRST REQUEST FOR PRODUCTION
TO: Fourth-Party Defendant, Absolute Drywall Service, LLC, by and through its attorneys of
record, Mr. Brian C. Lopez, Mr. Frank B. Lander, III, Lopez Law Group, PLLC, 1502
Augusta Drive, Suite 100, Houston, Texas 77057.
COMES NOW, Third-Party Defendant, BIG TEX AIR CONDITIONING INC., and serves
these First Amended Objections and Responses to Fourth-Party Defendant, Absolute Drywall
Service, LLC’s, First Request for Production pursuant to Rule 198 of the Texas Rules of Civil
Procedure.
Respectfully submitted,
JOHNSON, TRENT & TAYLOR, LLP
By: /s/ Amy Nilsen
Amy Nilsen
Texas Bar No. 24027574
Reagan Bibb
Texas Bar No. 24132169
919 Milam Street, Suite 1500
Houston, Texas 77002
Telephone: (713) 222-2323
Facsimile: (713) 222-2226
Email: anilsen@johnsontrent.com
Email: rbibb@johnsontrent.com
ATTORNEYS FOR BIG TEX AIR
CONDITIONING, INC.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing instrument
was forwarded to all counsel of record on the 30th day of May, 2023.
/s/ Amy Nilsen
AMY NILSEN
2
GENERAL OBJECTIONS
Third-Party Defendant/Fourth-Party Plaintiff Big Tex Air Conditioning, Inc. (“Big Tex”)
objects to the “INSTRUCTIONS” and “DEFINITIONS” proposed by Fourth-Party Defendant
Absolute Drywall Service, LLC (“Absolute Drywall”) in the preamble to its First Request for
Production because they are unduly burdensome, vague, overbroad, call for the disclosure of
information that is not relevant and not likely to lead to the discovery of admissible evidence, and
seek information that is protected by the attorney-client privilege and work product privilege.
Specifically, Big Tex objects to the proposed definitions of “you”, “your”, “document”,
“documents”, “tangible things”, and “statement” as the proposed definitions improperly expand
the definitions of words beyond their common English usage or beyond the definition provided
by the Texas Rules of Civil Procedure.
3
BIG TEX AIR CONDITIONING, INC.’S OBJECTIONS AND RESPONSES TO
ABSOLUTE DRYWALL SERVICE, LLC’S FIRST REQUEST FOR PRODUCTION
REQUEST NO.1: Please produce any and all documents supporting your allegation that Absolute
Drywall Service, LLC provided “weather stripping services” for Plaintiff’s property as plead in
your Fourth-Party Petition for this Lawsuit.
RESPONSE:
Defendant objects to
Preview
Filed: 5/31/2023 3:49 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 76162558 By: Shailja Dixit 5/31/2023 4:08 PM CAUSE NO. 22-CV-1740 RYAN PAVONE AND JANIN MONGAIO § IN THE DISTRICT COURT URBINA § § V. § § TAYLOR MORRISON OF TEXAS, INC. AND § TAYLOR WOODROW COMMUNITIES- § LEAGUE CITY, LTD. § § V. § § BIG TEX AIR CONDITIONING, INC. § 56TTH JUDICIAL DISTRICT COURT § V. § § CHAPARRAL PLUMBING, LP, WILLIAMS § INSULATION COMPANY, INC., CITY § FRAMERS, LLC, ARNULFO RODRIGUEZ § ROOFING CO., INC., ROYAL BATHS MFG § CO. LTD, ABSOLUTE DRYWALL SERVICE, § LLC AND BFS GROUP LLC § GALVESTON COUNTY, TEXAS DEFENDANT ABSOLUTE DRYWALL SERVICE, LLC’S RESPONSE TO BIG TEX AIR CONDITIONING, INC.’S MOTION TO COMPEL ARBITRATION, INCLUDING ABSOLUTE DRYWALL’S FIRST AMENDED RESPONSE TO TAYLOR MORRISON OF TEXAS, INC. AND TAYLOR WOODROW COMMUNITIES-LEAGUE CITY, LTD’S MOTION FOR RECONSIDERATION, ABSOLUTE DRYWALL’S FIRST AMENDED REPLY TO TAYLOR MORRISON’S RESPONSE TO ABSOLUTE DRYWALL’S MOTION TO COMPEL DISCOVERY, AND ABSOLUTE DRYWALL’S MOTION TO COMPEL DISCOVERY FROM BIG TEX AIR CONDITIONING, INC. TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendant Absolute Drywall Service, LLC (“Defendant” or “Absolute Drywall”), and files this its Response to Third-Party Defendant/Fourth-Party Plaintiff Big Tex Air Conditioning, Inc.’s (“Big Tex”) Motion to Compel Arbitration as to the Fourth-Party Defendants; including Absolute Drywall’s First Amended Response to Taylor Morrison of Texas, Inc. and Taylor Woodrow Communities-League City, LTD’s (“Taylor Morrison”) Motion for Reconsideration; Absolute Drywall’s First Amended Reply to Taylor Morrison’s Response to Absolute Drywall’s Motion to Compel Discovery; and Absolute Drywall’s Motion to Compel Discovery from Big Tex Air Conditioning, Inc., and in support thereof, would respectfully show the Court as follows: I. SUMMARY OF RESPONSE/REPLY/MOTION 1. Big Tex’s Motion to Compel Arbitration should be denied, Taylor Morrison’s Motion for Reconsideration should be denied, and both of Absolute Drywall’s Motions to Compel Discovery should be granted; 2. Big Tex’s Motion to Compel Arbitration cites an agreement that the Fourth- Party Defendants were not parties to, another agreement that Big Tex fails to attach to its motion and which by the terms is not implicated, and a doctrine which may not exist in Texas and which would not apply even if it did; 3. Taylor Morrison continues to refuse to produce documents allegedly showing that Absolute Drywall performed weather-stripping services—the only claim that has been made against Absolute Drywall—and has now filed a motion for reconsideration of the arguments this Court has already rejected once before; 4. Taylor Morrison has still not shown any particular, specific, and demonstrable injury that would result from complying with Absolute Drywall’s discovery requests; their Motion for Protective Order was thus properly denied by the Court; 5. Taylor Morrison’s over-reliance on the FAA and Texas case law applying it to support the idea that abatement is required is undermined by an examination of the case law and the fact that Taylor Morrison fails to correctly apply the test its own motion lays out; 6. Accordingly, Taylor Morrison’s Motion for Reconsideration should be denied, and Defendant Absolute Drywall Service’s Motions to Compel Discovery should be granted because Defendant Absolute Drywall Service is entitled to understand the allegations that have been brought against it. II. FACTUAL AND PROCEDURAL BACKGROUND This matter arises from an alleged claim that moisture and mold growth has developed in Plaintiffs’ home due to several alleged design and construction defects on their property located at 4708 Serrano Drive, League City, Texas 77573 (“the Property”). Plaintiffs filed their Original Petition on September 8, 2022, against Defendants, Taylor Morrison of Texas, Inc. and Taylor Woodrow Communities—League City, LTD., (“Taylor Morrison”), who allegedly built the Property in 2013. On October 6, 2022, Taylor Morrison filed their Third-Party Petition naming Big Tex Air Conditioning, Inc., (“Big Tex”) as the Third-Party Defendant who allegedly installed the HVAC and duct system on Plaintiff’s property. Bix Tex was one of many subcontractors hired by Taylor Morrison for construction work on the Property. Bix Tex then filed their Fourth-Party Petition against other subcontractors that Taylor Morrison hired for construction work on the Property, naming Absolute Drywall Services, LLC, (“Absolute Drywall”) as one of the Fourth-Party Defendants based on the alleged provision of “weather stripping services.” Absolute Drywall asks that the Court take judicial notice of the pleadings on file in this case. A. Absolute Drywall provided drywall for the home, not weather-stripping services. Fourth-Party Defendant Absolute Drywall has been sued by Third-Party Defendant/Fourth-Party Plaintiff Big Tex in this case based on an allegation that Absolute Drywall provided weather-stripping services for the construction of the Plaintiffs’ home. This is despite there being no contractual relationship between Absolute Drywall and Big Tex in this matter. The only contractual relationship related to this matter that Absolute Drywall entered into was with Defendant/Third-Party Plaintiff Taylor Morrison. In Absolute Drywall’s contract with Taylor Morrison, Absolute Drywall agreed to “complete the drywall of [the home] per the architectural drawings and specifications provided by Taylor Morrison.” Nowhere in this contract did Absolute Drywall’s scope of work extend to weather-stripping services. B. Taylor Morrison refuses to show Absolute Drywall anything contradicting Absolute Drywall’s position regarding its scope of work. Absolute Drywall has consistently maintained that its scope of work was limited to providing drywall for the Project. Absolute Drywall has attempted, through the discovery process, to understand why Big Tex believes Absolute Drywall was responsible for weather-stripping services in the construction of the Plaintiffs’ home. On information and belief, Third-Party Defendant/Fourth-Party Plaintiff Big Tex is in possession of a document—which, on information and belief, it obtained from Defendant/Third-Party Plaintiff Taylor Morrison pursuant to a rule 11 agreement between those two parties—which allegedly states that Absolute Drywall performed weather-stripping services. Absolute Drywall attempted to obtain this purported document through discovery requests to both Taylor Morrison and Big Tex. Rather than provide that document in response to Absolute Drywall’s discovery requests, Taylor Morrison moved for a protective order seeking to block Absolute Drywall from obtaining what might be the only document showing any basis for the case against Fourth-Party Defendant Absolute Drywall. This Court denied Taylor Morrison’s motion at an oral hearing on March 23, 2023, but Taylor Morrison continued to refuse to produce any documents pursuant to Absolute Drywall’s discovery requests, leading Absolute Drywall to file its Motion to Compel Discovery against Taylor Morrison on April 6, 2023. Taylor Morrison has now moved for reconsideration, recycling its arguments from its Motion for Protection and Plea in Abatement, albeit with additional citations to case law, to again resist discovery of any documents that allegedly show why Absolute Drywall has been sued. Despite the additional case citations, Taylor Morrison has yet to adequately show why injury would result from it complying with Absolute Drywall’s discovery requests in this case or why abatement of the entire case is necessary. Accordingly, Taylor Morrison’s Motion for Reconsideration should be denied and Absolute Drywall’s Motion to Compel Discovery against Taylor Morrison should be granted. C. Big Tex refuses to show Absolute Drywall anything contradicting Absolute Drywall’s position regarding its scope of work. Big Tex has similarly refused to show any documents to Absolute Drywall which would support the notion that Absolute Drywall provided weather-stripping services. For its part, Big Tex, unlike Taylor Morrison, at least served Absolute Drywall with responses to the discovery requests Absolute Drywall sent to Big Tex. However, Big Tex ultimately refused to provide documents supporting its “weather-stripping services” accusation, claiming that responsive documents from Taylor Morrison were “provided to [Big Tex] contingent upon a Confidentiality Agreement with Taylor Morrison.” 1 Big Tex also refused to provide any information concerning weather-stripping services in response to Absolute Drywall’s interrogatories, citing the same Confidentiality Agreement. 2 After a recent conference with counsel for Big Tex regarding this matter, a copy of said Confidentiality Agreement was provided to Absolute Drywall and is attached to this Response. Big Tex now seeks to compel Absolute Drywall and the rest of the Fourth-Party Defendants in this case to arbitration. However, none of Big Tex’s arguments for compelling arbitration survive a basic level of scrutiny, as Big Tex has not shown the existence of an arbitration agreement which would bind Absolute Drywall. Moreover, Big Tex has not cited any precedent which would allow a court to compel a non-signatory in Absolute Drywall’s position to arbitration. Therefore, Big Tex’s Motion to Compel Arbitration should be denied. III. RESPONSE TO BIG TEX’S MOTION TO COMPEL ARBITRATION Big Tex’s Motion to Compel Arbitration as to the Fourth-Party Defendants should be denied as to Absolute Drywall. Big Tex raises three arguments in its Motion to Compel Arbitration: (1) that the purchase agreement between the Plaintiffs and Taylor Morrison require arbitration of Big Tex’s claims against the Fourth-Party Defendants, (2) that the subcontracts between Taylor Morrison and the Fourth-Party Defendants require arbitration of Big Tex’s claims against the Fourth-Party Defendants, and (3) that the “intertwined claims” doctrine requires arbitration of Big 1 See Big Tex’s First Amended Responses to Absolute Drywall’s Requests for Production. 2 See Big Tex’s First Amended Answers to Absolute Drywall’s Interrogatories. Tex’s claims against the Fourth-Party Defendants. Absolute Drywall will address each of these arguments in turn. A. Absolute Drywall was not a party to the purchase agreement between Plaintiffs and Taylor Morrison. “No party may be compelled to arbitrate unless they have agreed to arbitrate or are bound by principles of agency or contract law to do so.” Jody James Farms, JV v. Altman Grp., Inc., 547 S.W.3d 624, 640 (Tex. 2018). Big Tex’s motion highlights language from the purchase agreement between Plaintiffs and Taylor Morrison, which states in the arbitration clause that the parties to the agreement “contemplate the inclusion of [subcontractors] in any arbitration of a dispute and agree that the inclusion of such parties will not affect the enforceability of this arbitration agreement.” To put it plainly, the fact that parties to an arbitration clause “contemplate” third parties joining an arbitration does not—and cannot—bind such third parties to arbitration. A party attempting to enforce an arbitration agreement “must show the agreement meets all requisite contract elements.” J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 228 (Tex. 2003). The elements of a valid contract are “(1) an offer; (2) acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each party’s consent to the terms; and (5) execution and delivery of the contract with the intent that it be mutual and binding.” Wilburn v. Valliance Bank & Coleman & Patterson LLC, No. 05-14-00965-CV, 2015 WL 9281271 at *5 (Tex. App.—Dallas Dec. 21, 2015). Absolute Drywall was not a party to the purchase agreement, and thus there was no meeting of the minds or consent to the terms as to Absolute Drywall. Ergo, Absolute Drywall did not agree to the arbitration clause contained within the agreement. The fact that “a non- signatory’s claim may relate to a contract containing an arbitration provision . . . does not, in itself, bind the non-signatory to the arbitration provision.” In re Kellogg Brown & Root, Inc., 166 S.W.3d 732 (Tex. 2005). Big Tex’s argument based on the purchase agreement is thus grossly misplaced. B. No subcontract provision requires Absolute Drywall to participate in arbitration in this case. Big Tex further argues that the Court should compel arbitration as to the Fourth-Party Defendants based on purported contractual agreements between Taylor Morrison and Fourth-Party Defendants. However, as Fourth-Party Defendant BFS Group has explained in its response to Big Tex’s motion, no such agreement was attached to Big Tex’s motion. Big Tex has thus failed to carry its burden to show that the claims against the Fourth-Party Defendants are arbitrable. Regardless of whether the purported contractual agreements exist, the claims brought by Big Tex against the Fourth-Party Defendants, by the express terms Big Tex cites within the purported arbitration agreements, fall outside the scope of those arbitration clauses. Assuming that Fourth-Party Defendants agreed to such arbitration clauses, the language of those clauses states only that Fourth-Party Defendants—“contractors” in the language cited by Big Tex—agreed to join arbitration “to resolve all outstanding issues, claims and defenses between Contractor and Taylor Morrison in such arbitration” (all emphasis added). The Fourth-Party Defendants, all subcontractors for the project underlying this lawsuit, never agreed to arbitrate “issues, claims and defenses” between them and other subcontractors, including Big Tex. Big Tex’s claims against Fourth-Party Defendants, including Absolute Drywall, thus fall squarely outside the scope of the purported arbitration agreement which Big Tex claims Fourth- Party Defendants agreed to. Because the sole claim against Absolute Drywall in this case has been brought by Big Tex, no claim against Absolute Drywall falls within the scope of any arbitration clause. Absolute Drywall asserts that the claim against it falls outside the scope of the cited arbitration clause by that clause’s unambiguous terms. In the alternative, should the Court find that the terms are ambiguous, Absolute Drywall hereby asks the Court to resolve such ambiguity against the party responsible for drafting it and hold that the provision cannot be enforced against Absolute Drywall in this factual context. C. The intertwined claims doctrine is inapplicable in this factual context. Fourth-Party Defendant BFS Group’s Response to Big Tex’s Motion to Compel Arbitration as to the Fourth-Party Defendants is on file with the Court. Absolute Drywall hereby adopts this filing by reference and incorporates its arguments regarding the intertwined claims doctrine, found in subheading B of BFS Group’s Response, into this Response as permitted by Rule 58 of the Texas Rules of Civil Procedure. See also Lockett v. HB Zachry Co., 285 S.W.3d 63, 72-73 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Absolute Drywall agrees with BFS Group’s response concerning the intertwined claims doctrine and hereby asserts that its logic applies with equal weight to Big Tex’s claim against Absolute Drywall. Absolute Drywall has no “close relationship” with Taylor Morrison or with Big Tex; it is a wholly separate business entity that has no formal corporate relationship with any of the other parties in this case. Similarly to BFS Group, the sole claim against Absolute Drywall in this case is a contribution claim that has been brought by Big Tex, to whom Absolute Drywall owes no contractual duties. Big Tex’s contribution claim cannot be based upon any breach of contract claim under Texas law. Park v. Escalera Ranch Owners’ Ass’n, Inc., 457 S.W.3d 571, 602-03 (Tex. App.—Austin 2015, no pet.). Therefore, Big Tex’s claim against Absolute Drywall is not “intimately founded in and intertwined with [any] underlying contract obligations” as would be required under the intertwined claims doctrine. In addition to the factual distinctions highlighted by BFS Group in its Response, it is worth noting that only the two cases cited by Big Tex in its discussion of the intertwined claims doctrine arose in procedural postures distinguishable from the present case. Both Quality Metrics Partners, LLC v. Blasingame, No. 05-18-00394-CV, 2019 WL 4010773 (Tex. App.—Dallas Aug. 26, 2019) and Cotton Com. USA, Inc. v. Clear Creek Indep. Sch. Dist., 387 S.W.3d 99 (Tex. App.—Houston [14st Dist.] 2012) involved non-signatory defendants trying to enforce the arbitration of a plaintiff’s claims against them based upon an arbitration agreement which the plaintiff was a party to; in other words, a signatory to arbitration was seeking to avoid arbitration, which is the exact opposite of the present facts. To whatever extent the intertwined claims doctrine may exist under Texas law, Big Tex has cited no case precedent for applying it to a scenario where a non-signatory seeks to avoid arbitration. Big Tex has failed to prove the existence of any applicable arbitration agreement that would bind Absolute Drywall to arbitration, and the intertwined claims doctrine does not apply to the sole claim against Absolute Drywall. Accordingly, Big Tex’s Motion to Compel Arbitration should be denied as to Absolute Drywall. IV. FIRST AMENDED RESPONSE TO TAYLOR MORRISON’S MOTION FOR RECONSIDERATION AS TO PROTECTIVE ORDER AND FIRST AMENDED REPLY REGARDING ABSOLUTE DRYWALL’S MOTION TO COMPEL DISCOVERY AGAINST TAYLOR MORRISON Taylor Morrison now moves for reconsideration of the Court’s denial of a protective order that would cover Absolute Drywall’s discovery requests to Taylor Morrison. “The party seeking a protective order must show particular, specific and demonstrable injury by facts sufficient to justify a protective order.” In re Wal-Mart Stores, Inc., 545 S.W.3d 626, 636 (Tex. App.—El Paso 2016, pet. denied) (citing In re Collins, 286 S.W.3d 911, 919 (Tex. 2009) (orig. proceeding)). Taylor Morrison has not shown such injury would occur in this case. In Wal-Mart Stores, the allegation that discovery would likely involve confidential and/or proprietary information was insufficient grounds to justify a protective order, as such an allegation was not particular or specific. Id. at 636–37. In the present case, Taylor Morrison has not even alleged in its Motion that the documents sought by Absolute Drywall are confidential. Taylor Morrison’s cites In re Houston Pipeline Co., 311 S.W.3d 449, 451-452 (Tex. 2007) (per curiam) to argue that it would be error for the Court to order Taylor Morrison to comply with Absolute Drywall’s discovery requests because Taylor Morrison the Court has ordered Taylor Morrison to arbitration, based upon Taylor Morrison’s own motion to compel such arbitration. Taylor Morrison overextends the actual holding of the Texas Supreme Court in Houston Pipeline to try and apply it to a wholly distinguishable situation. When a claim is subject to arbitration, pre- arbitration discovery regarding that claim can only concern the issue of arbitrability and not the “merits of the underlying controversy.” Id. at 451. But this rule has no application to claims which are not subject to arbitration in the first place. Houston Pipeline is inapposite to the present case. Houston Pipeline involved a party who had agreed to arbitration of their claim and was attempting to circumvent the general rule prohibiting pre-arbitration discovery when it goes to the merits of the underlying controversy. Id. (“a party cannot avoid its agreement to arbitrate merely by alleging that there may be other potential defendants; it must link the identity of the defendants to an issue of arbitrability”). As explained in Absolute Drywall’s response to Big Tex’s Motion to Compel Arbitration as to the Fourth-Party Defendants, there has been no agreement to arbitrate the underlying controversy between Big Tex and Absolute Drywall. Taylor Morrison’s attempt to confuse the issue by saying that the underlying controversy of the claim by Big Tex against Absolute Drywall would “affect” arbitration risks a dangerous overextension of the FAA. To the extent that Taylor Morrison argues that a party’s “liability vel non” regarding any claim in a given matter can be decided by arbitration when the party is not subject to arbitration, Taylor Morrison’s argument would effectively force the non-signatory party to attend arbitration to protect their rights. The FAA was not intended to have this effect, and any argument to the contrary would pose serious conflict with the right to a trial by jury. See Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 474-75 (1989) (“the FAA does not confer a right to compel arbitration of any dispute at any time; it confers only the right to obtain an order directing that ‘arbitration proceed in the manner provided for in [the parties’] agreement,’” emphasis in original); U.S. Const. amend. VII; Tex. Const. art. I, § 15. Alternatively, to whatever extent the Court may be unconvinced that the claim against Absolute Drywall is not subject to arbitration, Absolute Drywall’s discovery requests would inform the issue of arbitrability. For example, if the Court finds that purported arbitration clauses in subcontracts with Taylor Morrison, which Big Tex asserts the Fourth-Party Defendants’ agreed to, 3 are ambiguous, discovery relating to those subcontracts and communications between the subcontractors and Taylor Morrison would be relevant to determining the parties’ intent. Absolute Drywall’s discovery requests would thus be authorized pre-arbitration discovery even under the rule articulated in Houston Pipeline, which, as previously explained, does not apply to Absolute Drywall’s discovery requests to Taylor Morrison. V. FIRST AMENDED RESPONSE TO TAYLOR MORRISON’S MOTION FOR RECONSIDERATION AS TO ABATEMENT Taylor Morrison’s Motion for Reconsideration cites the fact that the Court has ordered arbitration of the claims between Plaintiffs and Taylor Morrison, as well as the claims between Taylor Morrison and Big Tex, as the basis for its refusal to comply with discovery requests. Taylor Morrison argues that abatement of this entire case was required upon the Court’s referral of the above claims to arbitration. 4 Taylor Morrison cites the Section 3 of the FAA and the opinion of the Texas Supreme Court in In re Merrill Lynch Tr. Co. FSB, 235 S.W.3d 185 (Tex. 2007) to support this sweeping proposition. 5 But this proposition is false. 3 See supra, heading III.B. 4 See Exhibit B - Taylor Morrison’s Motion for Reconsideration, page 4. 5 Taylor Morrison also cites Rapid Settlements, Ltd. v. SSC Settlements, LLC, 251 S.W.3d 129, 142 (Tex. App.—Tyler 2008) in making its argument that the entire case must be stayed. But the Tyler Court of Appeals in that case clearly did not intend to make that sweeping statement with respect to claims involving non-signatories to the arbitration agreement. See id. at 143 (citing the test for staying claims involving non-signatories laid out in Waste Mgmt., Inc. v. Residuos Industriales Multiquim, S.A. de C.V., 372 F.3d 339, 343 (5th Cir. 2004), which is discussed later in this Response). That case is, therefore, inapplicable. And to whatever extent the opinion of court in Rapid Settlements A. Section 3 of the FAA does not require the Court to stay this case. Taylor Morrison’s proposed reading of the FAA is grossly inequitable and, moreover, is contrary to the relevant case law applying the FAA. It is simply not true that the entirety of a case has to be stayed based on any one issue within it being subject to arbitration. See Rainier DSC 1, L.L.C. v. Rainier Cap. Mgmt., L.P., 828 F.3d 356, 359-61 (5th Cir. 2016) (holding that the trial court did not err in declining to stay litigation of non-arbitrable claims under the FAA). Taylor Morrison’s reliance on Section 3 of the FAA is also dubious in light of the fact Absolute Drywall is not a party to the arbitration agreement which Taylor Morrison sought enforcement of. “Although not expressly so limited, section 3 assumes and the case law holds that the movant for a stay, in order to be entitled to a stay under the [FAA], must be a party to the agreement to arbitrate, as must be the person sought to be stayed.” IDS Life Ins. Co. v. SunAmerica, Inc., 103 F.3d 524, 529 (7th Cir. 1996) (emphasis added). 6 Taylor Morrison’s citation of Section 3 of the FAA is thus improper to the extent that it would have the Court order a stay against the Fourth-Party Defendants in this matter when they are not parties to the agreement to arbitrate. If Taylor Morrison’s position were the law, unsuspecting third parties (or, in this case, fourth parties) with whom no applicable arbitration agreement exists could be brought into a lawsuit by a party subject to arbitration and then get stuck in limbo as the claims against them were stayed. This is precisely the result Taylor Morrison wants, and it is precisely the reason their Motion for Reconsideration should be denied. supports Taylor Morrison’s argument, the opinion of the Tyler Court of Appeals is an outlier that is contrary to other applicable case law. 6 Although SunAmerica was an opinion out of the 7th Circuit Court of Appeals and not the 5th Circuit, the Texas Supreme Court cited Judge Posner’s opinion in the case favorably. In re Merrill Lynch Tr. Co. FSB, 235 S.W.3d 185, 195 (Tex. 2007) (citing SunAmerica, Inc., 103 F.3d at 530 (distinguishing principles of abstention from Section 3 of the FAA)). B. The case law does not support a stay in this case. The Merrill Lynch case, cited by Taylor Morrison in its Motion for Reconsideration, warrants some examination. In that case, the Texas Supreme Court recognized that the plaintiffs’ claims against a Merrill Lynch employee were referable to arbitration but that their claims against Merrill Lynch’s affiliates were not. See Merrill Lynch, 235 S.W.3d at 191-195. The court went on to state the following regarding the appropriateness of a stay: “Assuming the same issues must be decided both in arbitration (against [Merrill Lynch’s employee]) and in court (against the affiliates), we hold the latter must be stayed until the former is completed.” Id. at 195 (emphasis added). In other words, the court did not actually consider whether the same issues had to be decided in arbitration as in litigation. Therein lies the question for this case: does the discovery requested by Absolute Drywall go to an issue that must be decided both in arbitration and in court? Taylor Morrison’s Motion cites the test that applies when a court considers whether claims involving a non-arbitrating party must be stayed while arbitration proceeds regarding the claims of arbitrating parties: “The FAA’s mandatory stay applies to a non-signatory to an arbitration agreement if (1) the arbitrated and litigated disputes involve the same operative facts, (2) the claims asserted in the arbitration and litigation are ‘inherently inseparable,’ and (3) the litigation has a ‘critical impact’ on the arbitration.” In re Devon Energy Corp., 332 S.W.3d 543 (Tex. App.—Houston [1st Dist.] 2009 (citing Waste Mgmt., Inc. v. Residuos Industriales Multiquim, S.A. de C.V., 372 F.3d 339, 343 (5th Cir. 2004))) (no pet.). For purposes of the present case, Absolute Drywall agrees that the three- prong test laid out in Waste Management is appropriate to resolve the abatement question currently before the Court. For the sake of judicial economy, Absolute Drywall will focus on the second and third elements of this test. As an initial matter, Absolute Drywall points out that the procedural posture of this case sets it far apart from most of the applicable case law. Discussions of whether claims are “inherently inseparable” usually revolve around factual scenarios where a litigant is in opposition to multiple other parties and has arbitration agreements with some but not all of the opposing parties. See Waste Mgmt., Inc., 372 F.3d 339 (plaintiff sued multiple defendants and only had an arbitration agreement with one of them); In re Devon Energy Corp., 332 S.W.3d 543 (multiple plaintiffs sued defendant but only one plaintiff had an arbitration agreement with the defendant). Another case cited by Taylor Morrison, All Am. Excavation, Inc. v. Austin Materials, LLC, No. 04-15-000781- CV, 2016 WL 1464409 (Tex. App.—San Antonio Apr. 13, 2016, no pet.), involved what the San Antonio Court of Appeals considered to be “derivative claims” but failed to discuss any of the Waste Management factors in deciding the appropriateness of a stay. Id. at *4. Moreover, Austin Materials did not involve a scenario in which the claims against non-arbitrating parties were for contribution under chapter 33 of the Texas Civil Practice and Remedies Code. C. The Waste Management factors do not support a stay in this case. Absolute Drywall’s discovery requests go to a very simple issue: did Absolute Drywall perform any weather-stripping services in the construction of the home? This issue stems from the sole claim that has been alleged against Absolute Drywall in this lawsuit—a claim by Big Tex that Absolute Drywall performed weather stripping services and is liable for such services. As this Court has previously ruled—and as Taylor Morrison has not contested—that claim is not referable to arbitration. i. Big Tex’s Fourth-Party claim against Absolute Drywall is not “inherently inseparable” from Taylor Morrison’s claim against Big Tex. Taylor Morrison’s conclusory assertion that this issue is “inherently inseparable” from the issues in arbitration appears to turn on the idea of Big Tex’s contribution claims being “inherently inseparable” from the causes of action from which they derive. For the sake of argument, this might be true if Big Tex’s contribution claim had alleged Absolute Drywall performed work on the HVAC system and duct work for the home—which would tie the claim to Taylor Morrison’s claims against Big Tex. See In re Devon Energy Corp., 332 S.W.3d at 549 (noting, in holding claims were inherently inseparable, that the arbitrating and litigating parties “filed their claims as co-plaintiffs, allege nearly identical breach of contract claims, and seek one shared set of declarations, including a shared declaration” on the same core issue). However, Big Tex’s only claim against Absolute Drywall involves “weather stripping services.” This claim is not “inherently inseparable” from a dispute about the HVAC system or duct work; the arbitration can consider that dispute while the litigation handles issues of whether Absolute Drywall provided weather stripping services. ii. Big Tex’s Fourth-Party claim against Absolute Drywall will not have any “critical impact” on the arbitration. Regarding the “critical impact” element of the test, Taylor Morrison’s Motion for Reconsideration does not clearly address what “critical impact” Taylor Morrison argues Absolute Drywall’s discovery requests would have on the arbitration. This deficiency should be grounds for denying Taylor Morrison’s motion regarding abatement. See Rainier DSC 1, 828 F.3d at 361 (noting that the appellants failed to discuss the Waste Management factors before holding that the trial court did not abuse its discretion in declining to stay litigation). Moreover, it is confusing why Taylor Morrison would be concerned about “sheetrock issues” becoming mooted by Absolute Drywall’s discovery requests when the only claim that has been alleged against Absolute Drywall concerns “weather stripping services.” Absolute Drywall’s “liability vel non” therefore turns on such weather stripping services and whether Absolute Drywall provided them. Despite this, Taylor Morrison inexplicably argues that Absolute Drywall’s “pre-arbitration discovery”—regarding a claim not subject to arbitration—must be stayed. D. A stay of the claim against Absolute Drywall is not equitable in this case. In the Merryl Lynch case, which Taylor Morrison relies on so heavily in its Motion for Reconsideration, the Texas Supreme Court cited Judge Posner’s opinion in SunAmerica favorably, and cited portions of the following passage from SunAmerica: Mages and McCowan are cases in which a party to an arbitration agreement, trying to get around it, sues not only the other party to the agreement but some related party with which it has no arbitration agreement, in the hope that the claim against the other party will be adjudicated first and have preclusive effect in the arbitration. Such a maneuver should not be allowed to succeed, but it is blocked not by section 3 [of the FAA], which is not addressed to the problem of parallel judicial/arbitral proceedings, but by the principles of parallel- proceeding abstention, which in the case just put would require the court to stay the proceedings before it and let the arbitration go forward unimpeded. . . . This is a detail, because, as we have said, an “evasion” case such as Mages or McCowan would be decided the same way without section 3, only under the doctrine of abstention applicable to parallel proceedings in judicial and arbitral fora. SunAmerica, Inc., 103 F.3d at 530 (all emphasis added). Judge Posner expressly identified the reason why claims involving non-signatories may be stayed under the FAA; it is not section 3 of the Act, but rather the “doctrine of abstention applicable to parallel proceedings in judicial and arbitral fora.” Moreover, the language used makes it clear that this judicial doctrine applies in “evasion” cases where the party trying to avoid the mandatory stay of section 3 of the FAA is a party to the arbitration. Absolute Drywall is not a party to the arbitration, and it has not brought any claims of affirmative relief, unlike the party in SunAmerica. Thus, while Absolute Drywall agrees that the test laid out in Waste Management controls this issue, to apply it in a way that stays the claim against Absolute Drywall would be an inequitable application of the judicial abstention doctrine in play here. To stay the claim against Absolute Drywall would leave it in limbo while it continues to believe that it only provided drywall for the project underlying this lawsuit. Crucially, Absolute Drywall filed the Motions to Compel Discovery that are before the Court because it still has not been shown a single piece of evidence to support the accusation that it provided weather stripping services. Taylor Morrison’s resistance to producing these documents rests solely on the idea that it is a matter for the arbitrator to decide, even though that is clearly not the case. It is not equitable to allow Taylor Morrison to refuse to provide discovery that may show the only claim—or lack thereof—against Absolute Drywall. To grant Taylor Morrison’s Motion for Reconsideration would be to delay justice based on an arbitration that Absolute Drywall is not a party to. Because Taylor Morrison has shown no particular, specific, and demonstrable injury that would result from complying with Absolute Drywall’s discovery requests, and because Taylor Morrison has not shown that the issue Absolute Drywall seeks discovery for is inherently inseparable from the arbitration, their Motion for Reconsideration should be denied, and Absolute Drywall’s Motion to Compel Discovery should be granted. VI. MOTION TO COMPEL DISCOVERY RESPONSES FROM BIG TEX AND REQUEST FOR RELIEF FROM CONFIDENTIALITY Absolute Drywall hereby moves to compel discovery responses from Big Tex to Absolute Drywall’s discovery requests and, as may be necessary to protect Big Tex’s rights, asks the Court to excuse Big Tex from compliance with any Confidentiality Agreement between Big Tex and Taylor Morrison concerning documents which are responsive to Absolute Drywall’s discovery requests. Such relief would allow Big Tex to adequately respond to Absolute Drywall’s discovery requests without fear of reprisal from Taylor Morrison. A. Attempts to Confer Absolute Drywall contacted Big Tex regarding its objections and responses to Absolute Drywall’s discovery requests on May 25, 2023, explaining Absolute Drywall’s concerns. 7 Big Tex 7 Initial Conference Email. responded to Absolute Drywall’s concerns by supplementing its responses to most of Absolute Drywall’s discovery requests and providing Absolute Drywall with a copy of the Confidentiality Agreement which prohibits Big Tex from providing Absolute Drywall with documents that are responsive to Absolute Drywall’s discovery requests. 8 Big Tex also contacted Taylor Morrison inquiring whether Taylor Morrison would be willing to allow Big Tex to respond to Absolute Drywall’s discovery requests despite this Confidentiality Agreement. 9 As of this Motion to Compel being filed, Taylor Morrison has apparently not responded to Big Tex’s inquiry. 10 B. Motion to Compel Absolute Drywall files this Motion to Compel Discovery against Big Tex with the understanding that, but for the Confidentiality Agreement between Big Tex and Taylor Morrison, Big Tex would provide responsive documents. Absolute Drywall reserves the right to argue any other objections raised by Big Tex in response to Absolute Drywall’s requests for discovery while focusing this Motion solely on the issue of the Confidentiality Agreement. In Absolute Drywall’s response to Taylor Morrison’s Motion for Reconsideration regarding its proposed protective order, 11 Absolute Drywall noted that Taylor Morrison had not alleged that the documents it sought protection of were confidential. The Confidentiality Agreement between Big Tex and Taylor Morrison does not indicate how the documents that Taylor Morrison provided to Big Tex were confidential. The mere fact that two parties—Big Tex and Taylor Morrison—agreed to keep the documents confidential is not a basis for holding that they are protected from discovery. Thus, the same logic from Absolute Drywall’s Response regarding Taylor Morrison’s protective order issue also applies here. 8 Confidentiality Agreement between Taylor Morrison and Big Tex. 9 Email to Taylor Morrison. 10 Email from Big Tex dated 5/30/2023. 11 See supra, heading IV. The Confidentiality Agreement which Big Tex fears violating was a bold-faced attempt by Taylor Morrison to avoid participating in any meaningful discovery in this case. Taylor Morrison has no basis for refusing to allow Absolute Drywall to see the only documents which purportedly support a claim for “weather stripping services” against Absolute Drywall. Absent any showing as to why these documents require confidentiality, the Confidentiality Agreement is nothing more than a way to circumvent the Texas Rules of Civil Procedure and prevent parties like Absolute Drywall from obtaining discoverable material. Accordingly, Absolute Drywall requests that this Court excuse Big Tex from complying with the Confidentiality Agreement it has with Taylor Morrison for the purpose of allowing Big Tex to comply with Absolute Drywall’s discovery requests to Big Tex. Pursuant to such excuse, Absolute Drywall further requests that this Court compel Big Tex to produce responsive materials to the following discovery requests from Absolute Drywall to Big Tex no later than seven (7) days following the hearing on this motion: • Absolute Drywall’s Requests for Production No. 1, 11, 12, and 13; and • Absolute Drywall’s Interrogatory No. 3. VII. CONCLUSION AND PRAYER Absolute Drywall respectfully requests that this Court deny Big Tex’s Motion to Compel Arbitration as to Absolute Drywall because there is no applicable arbitration agreement which Absolute Drywall was a party to. Absolute Drywall further requests that this Court deny Taylor Morrison’s Motion for Reconsideration and subsequently compel Taylor Morrison’s responses to discovery as Absolute Drywall is entitled to understand the allegations that have been brought against it. Absolute Drywall’s discovery requests are appropriate and within the scope of discovery. However, Taylor Morrison is unnecessarily delaying the search for truth by refusing to produce relevant responses and documents and by refusing to allow Big Tex to produce such documents. For these reasons, Defendant asks the Court to deny Taylor Morrison’s Motion for Reconsideration and compel Taylor Morrison to produce responsive materials to Absolute Drywall’s discovery requests no later than seven (7) days following the hearing on this motion. Absolute Drywall further requests that this Court excuse Big Tex from its Confidentiality Agreement agreement with Taylor Morrison and compel Big Tex to produce responsive materials to Absolute Drywall’s discovery requests no later than seven (7) days following the hearing on this motion. Respectfully submitted, LOPEZ LAW GROUP PLLC By: _______________________ BRIAN C. LOPEZ State Bar No. 24029693 brian@lopezlit.com STEPHANIE A. STEELE State Bar No. 24132371 stephanie@lopezlit.com JEFFREY MYERS State Bar No. 24131908 jeffrey@lopezlit.com 1502 Augusta Drive, Suite 100 Houston, Texas 77057 Phone: 713/275-9707 Fax: 713/275-9722 ATTORNEYS FOR DEFENDANT ABSOLUTE DRYWALL SERVICE, LLC CERTIFICATE OF CONFERENCE I, Jeffrey Myers, certify that I have made an attempt to conference with Big Tex’s Counsel regarding the above discovery discrepancies but have been unable to reach a solution. Jeffrey Myers CERTIFICATE OF SERVICE I hereby certify that on this 31st day of May, 2023 a true and correct copy of the foregoing was served on all counsel of record. Jeffrey Myers EXHIBIT A NO. 22-CV-1740 RYAN PAVONE and § IN THE DISTRICT COURT JANIN MONGAIO URNINA § § v. § § 56TH DISTRICT COURT § TAYLOR MORRISON OF TEXAS, INC. § and TAYLOR WOODROW § COMMUNITIES – LEAGUE CITY, LTD. § GALVESTON COUNTY, TEXAS BIG TEX AIR CONDITIONING, INC.’S OBJECTIONS AND RESPOSNES TO ABSOLUTE DRYWALL SERVICE, LLC’S FIRST REQUEST FOR PRODUCTION TO: Fourth-Party Defendant, Absolute Drywall Service, LLC, by and through its attorneys of record, Mr. Brian C. Lopez, Mr. Frank B. Lander, III, Lopez Law Group, PLLC, 1502 Augusta Drive, Suite 100, Houston, Texas 77057. COMES NOW, Third-Party Defendant, BIG TEX AIR CONDITIONING INC., and serves these First Amended Objections and Responses to Fourth-Party Defendant, Absolute Drywall Service, LLC’s, First Request for Production pursuant to Rule 198 of the Texas Rules of Civil Procedure. Respectfully submitted, JOHNSON, TRENT & TAYLOR, LLP By: /s/ Amy Nilsen Amy Nilsen Texas Bar No. 24027574 Reagan Bibb Texas Bar No. 24132169 919 Milam Street, Suite 1500 Houston, Texas 77002 Telephone: (713) 222-2323 Facsimile: (713) 222-2226 Email: anilsen@johnsontrent.com Email: rbibb@johnsontrent.com ATTORNEYS FOR BIG TEX AIR CONDITIONING, INC. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing instrument was forwarded to all counsel of record on the 30th day of May, 2023. /s/ Amy Nilsen AMY NILSEN 2 GENERAL OBJECTIONS Third-Party Defendant/Fourth-Party Plaintiff Big Tex Air Conditioning, Inc. (“Big Tex”) objects to the “INSTRUCTIONS” and “DEFINITIONS” proposed by Fourth-Party Defendant Absolute Drywall Service, LLC (“Absolute Drywall”) in the preamble to its First Request for Production because they are unduly burdensome, vague, overbroad, call for the disclosure of information that is not relevant and not likely to lead to the discovery of admissible evidence, and seek information that is protected by the attorney-client privilege and work product privilege. Specifically, Big Tex objects to the proposed definitions of “you”, “your”, “document”, “documents”, “tangible things”, and “statement” as the proposed definitions improperly expand the definitions of words beyond their common English usage or beyond the definition provided by the Texas Rules of Civil Procedure. 3 BIG TEX AIR CONDITIONING, INC.’S OBJECTIONS AND RESPONSES TO ABSOLUTE DRYWALL SERVICE, LLC’S FIRST REQUEST FOR PRODUCTION REQUEST NO.1: Please produce any and all documents supporting your allegation that Absolute Drywall Service, LLC provided “weather stripping services” for Plaintiff’s property as plead in your Fourth-Party Petition for this Lawsuit. RESPONSE: Defendant objects to