Preview
Filed: 12/29/2020 11:08 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 49269305
By: Shailja Dixit
12/29/2020 11:24 AM
Cause No. 19-CV-2191
SHARON DAVIS § IN THE DISTRICT COURT OF
Plaintiff §
§
v. § GALVESTON COUNTY, TEXAS
§
QUALITY WORKS CONSTRUCTION, INC. §
and INSURORS INDEMNITY COMPANY §
Defendants § 56th JUDICIAL DISTRICT
QUALITY WORKS CONSTRUCTION, INC.’S RESPONSE
TO PLAINTIFF’S MOTION TO SEVER PROCEEDINGS
________________________
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW QUALITY WORKS CONSTRUCTION, INC., Defendant in the above-styled
and numbered cause and files this its Response to Plaintiff’s Motion to Sever Proceedings, and in
support of same, would respectfully show as follows:
I. INTRODUCTION
The case at bar is a contract action, arising out of a three-way contract between Plaintiff,
SHARON DAVIS, Defendant QUALITY WORKS CONSTRUCTION, INC., (“QWC”), and the
CITY OF GALVESTON (”COG”). Plaintiff initially filed suit in late November, 2019 against
QWC, alleging breach of contract and other ancillary causes of action. The contract in question
between SHARON DAVIS, QUALITY WORKS CONSTRUCTION and CITY OF
GALVESTON relates to and arises out of construction repairs and remodeling arranged for and
approved by CITY OF GALVESTON pursuant to a federal grant program, for the improvement of
that home owned by SHARON DAVIS.
After exchanging discovery requests and taking the depositions of Plaintiff and a former
employee of Defendant COG, Assistant City Attorney Kim Coogan, Defendant QWC filed a third-
party petition against COG in October 2020, alleging that COG has breached its contract with
QWC by wrongfully withholding monies due and owing to QWC, despite demand by QWC on
COG, and COG has steadfastly refused to release those funds due and owing to QWC for those
repairs and remodeling services provided by QWC for the improvement of Plaintiff DAVIS’ home.
At such time, QWC also filed it’s Original Counterclaim against Plaintiff DAVIS, alleging DAVIS is
similarly responsible for breaching that contract between PLAINTIFF, QWC and COG, and those
monies owed to QWC by DAVIS and/or Third Party Defendant COG pursuant to the contract
between these parties have been wrongfully withheld and/or remain unpaid.
COG has appeared and answered, and the parties are prepared to undertake further discovery,
including depositions of COG employees, consultants and expert witnesses, prior to the current trial
setting in mid-April 2021.
II.
Plaintiff has filed her Motion to Sever Proceedings, asking the Court to sever Defendant QWC’s
Third Party Petition against COG from Plaintiff’s suit against QWC. While Plaintiff is correct that
this honorable Court certainly has the discretion and authority to sever a proceeding, under TEX. R.
CIV. P. 41, and DAVIS cites ample authority to support the Court’s authority to sever, Plaintiff does
not offer sufficient justification to support why the Court should sever these proceedings. In fact, in
her motion to sever, DAVIS misses the forest for the trees, by failing to acknowledge how
interwoven this dispute between herself and QWC necessarily involves COG.
The testimony of former Assistant City Attorney Coogan on October 1, 2020 revealed nearly
two years of interaction between QWC, DAVIS and staff in various COG departments, wherein
COG building inspectors and COG Department of Grants and Housing staff debated, changed and
modified the terms of the contract between the parties to ensure completion of repairs to DAVIS’
home. Testimony from multiple witnesses in these various COG departments will be crucial to the
defense of QWC against DAVIS’ claims, and will similarly be instrumental in proving QWC’s claims
against COG for payment in full for the work performed by QWC, at the direction of COG staffers.
Upon completion of Ms. Coogan’s deposition, QWC began drafting its third-party petition and
counterclaim, nine days later, underscoring the importance of her testimony and evidence linking the
actions by Coogan, and other employees of COG to QWC’s defenses to DAVIS’ claims, as well as
shoring up QWC’s claims against DAVIS and COG.
III. ARGUMENT
DAVIS argues in her motion to sever that “none of the matter (sic) asserted in the third party
petition are dependent upon proof from the Plaintiff,” yet the thirty-one exhibits to Ms. Coogan’s
deposition testimony are replete with email communications between DAVIS, Coogan, QWC
principal Misheck Kiragu, along with various COG employees and consultants, including COG City
_____________________
QWC, Inc.’s Response to
Page 2
P’s M/Sever Proceedings
Manager Brian Maxwell, former Executive Director of COG Grants and Housing Department
Sterling Patrick, COG consultant architect Brax Easterwood, COG electrical and building
inspectors, as well as multiple change orders to the repair project, inspection reports by COG
inspectors, expert witnesses, and correspondence between legal counsel prior to suit between
representatives for QWC, DAVIS and COG. All of this evidence, common to Plaintiff’s claims,
QWC’s defenses and now QWC’s claims, was explored in one five hour (plus) deposition that now
will require multiple depositions to clarify, corroborate and counter Ms. Coogan’s testimony.
To request, argue or even suggest the propriety of two separate trials of the same facts, witnesses
and evidence, which are common to Plaintiff’s claims and QWC’s claims would be throwing any
concept of judicial economy out the window, elevating and indulging Plaintiff’s singular desires over
logic, common sense and fundamental concepts of justice. For all of the foregoing reasons,
Defendant QWC has opposed Plaintiff’s Motion to Sever Proceedings, and respectfully urges this
Court to deny her motion in whole.
WHEREFORE, PREMISES CONSIDERED, QUALITY WORKS CONSTRUCTION, INC.,
Defendants and Third-Party Plaintiffs, respectfully prays that this Court deny Plaintiff’s Motion to
Sever Proceedings, that Plaintiff take nothing by her claims, that Defendant and Third Party Plaintiff
recover its damages, costs of court and attorney’s fees, and for such other and further relief, to
which your Defendant and Third Party Plaintiff might otherwise be justly entitled.
Respectfully submitted,
THE BARCLAY LAW FIRM
By: ___________________________________
Byron K. Barclay
State Bar No: 01720350
705 Chelsea Boulevard
Houston, Texas 77006-6205
Telephone: (713) 224-2334
Facsimile: (713) 758-0253
Email: BKBarclay@Lawyer.com
ATTORNEY FOR DEFENDANT/THIRD
PARTY PLAINTIFF QUALITY WORKS
CONSTRUCTION, INC.
_____________________
QWC, Inc.’s Response to
Page 3
P’s M/Sever Proceedings
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document was
served on all parties and/or their counsel of record, consistent with those requirements of Rule
21(a) of the TEXAS RULES OF CIVIL PROCEDURE, by hand delivery, and/or facsimile transmission,
and/or email, and/or United States Mail, via certified mail, return receipt delivery on this 29th day of
December 2020.
By: __________________________________________
Byron K. Barclay
_____________________
QWC, Inc.’s Response to
Page 4
P’s M/Sever Proceedings
Preview
Filed: 12/29/2020 11:08 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 49269305 By: Shailja Dixit 12/29/2020 11:24 AM Cause No. 19-CV-2191 SHARON DAVIS § IN THE DISTRICT COURT OF Plaintiff § § v. § GALVESTON COUNTY, TEXAS § QUALITY WORKS CONSTRUCTION, INC. § and INSURORS INDEMNITY COMPANY § Defendants § 56th JUDICIAL DISTRICT QUALITY WORKS CONSTRUCTION, INC.’S RESPONSE TO PLAINTIFF’S MOTION TO SEVER PROCEEDINGS ________________________ TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW QUALITY WORKS CONSTRUCTION, INC., Defendant in the above-styled and numbered cause and files this its Response to Plaintiff’s Motion to Sever Proceedings, and in support of same, would respectfully show as follows: I. INTRODUCTION The case at bar is a contract action, arising out of a three-way contract between Plaintiff, SHARON DAVIS, Defendant QUALITY WORKS CONSTRUCTION, INC., (“QWC”), and the CITY OF GALVESTON (”COG”). Plaintiff initially filed suit in late November, 2019 against QWC, alleging breach of contract and other ancillary causes of action. The contract in question between SHARON DAVIS, QUALITY WORKS CONSTRUCTION and CITY OF GALVESTON relates to and arises out of construction repairs and remodeling arranged for and approved by CITY OF GALVESTON pursuant to a federal grant program, for the improvement of that home owned by SHARON DAVIS. After exchanging discovery requests and taking the depositions of Plaintiff and a former employee of Defendant COG, Assistant City Attorney Kim Coogan, Defendant QWC filed a third- party petition against COG in October 2020, alleging that COG has breached its contract with QWC by wrongfully withholding monies due and owing to QWC, despite demand by QWC on COG, and COG has steadfastly refused to release those funds due and owing to QWC for those repairs and remodeling services provided by QWC for the improvement of Plaintiff DAVIS’ home. At such time, QWC also filed it’s Original Counterclaim against Plaintiff DAVIS, alleging DAVIS is similarly responsible for breaching that contract between PLAINTIFF, QWC and COG, and those monies owed to QWC by DAVIS and/or Third Party Defendant COG pursuant to the contract between these parties have been wrongfully withheld and/or remain unpaid. COG has appeared and answered, and the parties are prepared to undertake further discovery, including depositions of COG employees, consultants and expert witnesses, prior to the current trial setting in mid-April 2021. II. Plaintiff has filed her Motion to Sever Proceedings, asking the Court to sever Defendant QWC’s Third Party Petition against COG from Plaintiff’s suit against QWC. While Plaintiff is correct that this honorable Court certainly has the discretion and authority to sever a proceeding, under TEX. R. CIV. P. 41, and DAVIS cites ample authority to support the Court’s authority to sever, Plaintiff does not offer sufficient justification to support why the Court should sever these proceedings. In fact, in her motion to sever, DAVIS misses the forest for the trees, by failing to acknowledge how interwoven this dispute between herself and QWC necessarily involves COG. The testimony of former Assistant City Attorney Coogan on October 1, 2020 revealed nearly two years of interaction between QWC, DAVIS and staff in various COG departments, wherein COG building inspectors and COG Department of Grants and Housing staff debated, changed and modified the terms of the contract between the parties to ensure completion of repairs to DAVIS’ home. Testimony from multiple witnesses in these various COG departments will be crucial to the defense of QWC against DAVIS’ claims, and will similarly be instrumental in proving QWC’s claims against COG for payment in full for the work performed by QWC, at the direction of COG staffers. Upon completion of Ms. Coogan’s deposition, QWC began drafting its third-party petition and counterclaim, nine days later, underscoring the importance of her testimony and evidence linking the actions by Coogan, and other employees of COG to QWC’s defenses to DAVIS’ claims, as well as shoring up QWC’s claims against DAVIS and COG. III. ARGUMENT DAVIS argues in her motion to sever that “none of the matter (sic) asserted in the third party petition are dependent upon proof from the Plaintiff,” yet the thirty-one exhibits to Ms. Coogan’s deposition testimony are replete with email communications between DAVIS, Coogan, QWC principal Misheck Kiragu, along with various COG employees and consultants, including COG City _____________________ QWC, Inc.’s Response to Page 2 P’s M/Sever Proceedings Manager Brian Maxwell, former Executive Director of COG Grants and Housing Department Sterling Patrick, COG consultant architect Brax Easterwood, COG electrical and building inspectors, as well as multiple change orders to the repair project, inspection reports by COG inspectors, expert witnesses, and correspondence between legal counsel prior to suit between representatives for QWC, DAVIS and COG. All of this evidence, common to Plaintiff’s claims, QWC’s defenses and now QWC’s claims, was explored in one five hour (plus) deposition that now will require multiple depositions to clarify, corroborate and counter Ms. Coogan’s testimony. To request, argue or even suggest the propriety of two separate trials of the same facts, witnesses and evidence, which are common to Plaintiff’s claims and QWC’s claims would be throwing any concept of judicial economy out the window, elevating and indulging Plaintiff’s singular desires over logic, common sense and fundamental concepts of justice. For all of the foregoing reasons, Defendant QWC has opposed Plaintiff’s Motion to Sever Proceedings, and respectfully urges this Court to deny her motion in whole. WHEREFORE, PREMISES CONSIDERED, QUALITY WORKS CONSTRUCTION, INC., Defendants and Third-Party Plaintiffs, respectfully prays that this Court deny Plaintiff’s Motion to Sever Proceedings, that Plaintiff take nothing by her claims, that Defendant and Third Party Plaintiff recover its damages, costs of court and attorney’s fees, and for such other and further relief, to which your Defendant and Third Party Plaintiff might otherwise be justly entitled. Respectfully submitted, THE BARCLAY LAW FIRM By: ___________________________________ Byron K. Barclay State Bar No: 01720350 705 Chelsea Boulevard Houston, Texas 77006-6205 Telephone: (713) 224-2334 Facsimile: (713) 758-0253 Email: BKBarclay@Lawyer.com ATTORNEY FOR DEFENDANT/THIRD PARTY PLAINTIFF QUALITY WORKS CONSTRUCTION, INC. _____________________ QWC, Inc.’s Response to Page 3 P’s M/Sever Proceedings CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was served on all parties and/or their counsel of record, consistent with those requirements of Rule 21(a) of the TEXAS RULES OF CIVIL PROCEDURE, by hand delivery, and/or facsimile transmission, and/or email, and/or United States Mail, via certified mail, return receipt delivery on this 29th day of December 2020. By: __________________________________________ Byron K. Barclay _____________________ QWC, Inc.’s Response to Page 4 P’s M/Sever Proceedings