Preview
Filed: 11/19/2021 2:01 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 59340454
By: Shailja Dixit
11/19/2021 2:07 PM
CAUSE NUMBER 19-CV-2191
SHARON DAVIS, and as ASSIGNEE § IN THE DISTRICT COURT
OF THE CITY OF GALVESTON §
Plaintiff, §
§
v. § GALVESTON COUNTY, TEXAS
§
QUALITY WORKS CONSTRUCTION, §
INC. and INSURORS INDEMNITY §
COMPANY §
Defendants. § 56th JUDICIAL DISTRICT
CITY OF GALVESTON’S THIRD PARTY PETITION FOR INTERPLEADER
COMES NOW, Third Party Defendant, City of Galveston, (the “City”), and files this Third
Party Petition naming Quality Works Construction, Inc. and Insurors Indemnity as necessary
parties.
A. PARTIES
1. Plaintiff Insurors Indemnity Company is a Texas corporate surety with its principal place of
business in Waco, McLennan County, Texas.
2. Defendant Quality Works Construction, Inc. (“Quality Works”) is a corporation in the State
of Texas and has appeared in this suit.
B. JURISDICTION AND VENURE
3. This court has personal jurisdiction, both specific and general, over Defendants because they
reside in and conduct business in Texas, avail themselves of Texas Laws and are amenable to
service by a Texas court.
4. The amount in controversy exceeds the minimum jurisdiction of this Court.
5. Venue is proper in Galveston County, as a substantial part of the events or omissions giving
rise to the parties’ claims occurred in Galveston County.
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6. As this Court currently has the underlying cause which gave rise to the settlement and
subsequent claim for funds, the City believes that this matter is best handled in this Court.
C. INTRODUCTION
7. Plaintiff is Sharon Davis, Individually and as Assignee of The City of Galveston. The
Defendants are Quality Works Construction (“QWC”) and Insurors Indemnity Company
(“Insurors”). The City of Galveston is a Third Party Defendant of claims made by Quality
Works Construction.
8. Plaintiff sued Defendants for damages arising from a construction contract to repair the
Plaintiff’s home. The contract was administered by the City of Galveston and paid by grant
funds. The City of Galveston was brought into this case in October 2020.
D. FACTS
9. On September 21, 2021, all parties attended a mediation. The City of Galveston reached a
settlement with Quality Works Construction, Inc. for the amount of $95.000.00. (See Exhibit
A). The City Council approved the settlement on October 28, 2021.
10. On October 26, 2021, Insurors made a claim in the amount of $79,693.88 from the any funds
to be paid to QWC (See sworn “Amounts Owed to Surety” – Exhibit B). Insurors asserted
that QWC and the City of Galveston had a duty to Insurors to make it whole to the extent we
may do so. The failure to do so would give rise to a cause of action against the City.
11. The City is unable to determine which party is the rightful owner of the funds.
12. The City is unconditionally tendering the fund in the amount of $79,693.88 to the registry of
the court. The remainder of the $95,000.00 settlement shall be paid directly to QWC and/or
its counsel for handling. The amount being paid directly to QWC, to which Insurors has no
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claim against the City, is $15,306.12. The City is in the process of obtaining information
necessary to issue the payment.
E. RIGHT TO INTERPLEADER
13. The City has agreed to settle QWC’s claim against it for the amount of $95,000.00. The
claims made by Insurors for the settlement funds present a bona fide controversy involving
questions of fact or law that places the City in doubt as which claimant is entitled to the
disputed property.
14. As stated in Insuror’s Claim to the City of Galveston:
Insurors, as the contractual and common law subrogee of Quality Works, is
entitled to that portion of any funds paid by the City of Galveston to Quality
Works up to the amount of Insurors’ claim. Insurors is a creditor as that
term is defined under multiple statues, including the Texas Uniform
Fraudulent Transfer Act. Consequently, Quality Works and the City of
Galveston owe a duty to Insuros to make it whole to the extent that they can
do so. As a matter of fact, the failure to do so may give rise to causes of
action against Quality Works and the City of Galveston in addition to the
breach of contract and associated claims Insurors would have against
Quality Works.
Email from Counsel for Insurors, dated 26 Oct 2021.
F. CONCLUSION
15. Third Party Interpleader, City of Galveston asks the Court to order the City of Galveston to
deposit the amount of $79,693.88 into the registry of the court and release the City of
Galveston from this suit, with prejudice, as it has settled all claims against it and tendered the
settlement fund to the registry of the court.
WHEREFORE, PREMISES CONSIDERED, the City requests that the Court continue
this case until a date suitable for the parties.
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Respectfully submitted,
OFFICE OF THE CITY ATTORNEY
DONALD GLYWASKY
/s/ Barry C. Willey
Barry C. Willey
Assistant City Attorney
State Bar No. 00788670
Beverly West
Assistant City Attorney
State Bar No. 24032459
823 Rosenberg, Suite 203
Galveston, Texas 77550
Phone: 409-797-3530
Fax: 409-877-1559
ATTORNEY FOR THIRD-PARTY DEFENDANT
CITY OF GALVESTON, TEXAS
CERTIFICATE OF SERVICE
I hereby certify that I served the above pleading on all counsel of record in this matter as
listed herein below through the Texas courts efile system on this the 19th day of November, 2021.
CALDWELL FLETCHER
CALDWELL FLETCHER, P.C.
State Bar No. 07141710
3401 Allen Parkway, Suite 100
Houston, Texas 77019
(713) 284-1624
(713) 583-9883 (fax)
caldwell@caldwellfletcherpc.com
Attorneys for Plaintiff
BYRON K. BARCLAY
THE BARCLAY LAW FIRM
State Bar No. 01720350
705 Chelsea Boulevard
Houston, Texas 77006-6205
(713) 2q24-2334
(713) 758-0253 (fax)
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BKBarclay@lawyer.com
Attorney for Quality Works Construction, Inc.
DAN MACLEMORE
BEARD KULDGEN BROPHY
BOSTWICK & DICKSON, PLLC
State Bar No. 24037013
220 South Fourth Street
Waco, Texas 76701
(254) 776-5500
(254) 776-3591 (fax)
MacLemore@thetexasfirm.com
Attorney for Insurors Indemnity Company
/s/Barry C. Willey
Barry C. Willey
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Exhibit A
Exhibit B
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Barry Willey on behalf of Barry Conrad Willey
Bar No. 788670
bwilley@galvestontx.gov
Envelope ID: 59340454
Status as of 11/19/2021 2:08 PM CST
Associated Case Party: Sharon Davis
Name BarNumber Email TimestampSubmitted Status
Caldwell Fletcher 7141710 caldwell@caldwellfletcherpc.com 11/19/2021 2:01:30 PM SENT
Caldwell Fletcher Caldwell@caldwellfletcherpc.com 11/19/2021 2:01:30 PM SENT
Associated Case Party: QUALITY WORKS CONSTRUCTION, INC.
Name BarNumber Email TimestampSubmitted Status
Byron KBarclay BKBarclay@Lawyer.com 11/19/2021 2:01:30 PM SENT
Associated Case Party: City of Galveston
Name BarNumber Email TimestampSubmitted Status
Donald Glywasky Glywaskydon@cityofgalveston.org 11/19/2021 2:01:30 PM SENT
Beverly DianeWest bwest@galvestontx.gov 11/19/2021 2:01:30 PM SENT
Barry C.Willey bwilley@galvestontx.gov 11/19/2021 2:01:30 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Callye Berry berry@thetexasfirm.com 11/19/2021 2:01:30 PM SENT
Dan MacLemore maclemore@thetexasfirm.com 11/19/2021 2:01:30 PM SENT
Associated Case Party: JohnP.Cahill
Name
Lanza Law Firm Eservice
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Barry Willey on behalf of Barry Conrad Willey
Bar No. 788670
bwilley@galvestontx.gov
Envelope ID: 59340454
Status as of 11/19/2021 2:08 PM CST
Associated Case Party: JohnP.Cahill
John PCahill jcahill@lanzalawfirm.com 11/19/2021 2:01:30 PM SENT
Preview
Filed: 11/19/2021 2:01 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 59340454 By: Shailja Dixit 11/19/2021 2:07 PM CAUSE NUMBER 19-CV-2191 SHARON DAVIS, and as ASSIGNEE § IN THE DISTRICT COURT OF THE CITY OF GALVESTON § Plaintiff, § § v. § GALVESTON COUNTY, TEXAS § QUALITY WORKS CONSTRUCTION, § INC. and INSURORS INDEMNITY § COMPANY § Defendants. § 56th JUDICIAL DISTRICT CITY OF GALVESTON’S THIRD PARTY PETITION FOR INTERPLEADER COMES NOW, Third Party Defendant, City of Galveston, (the “City”), and files this Third Party Petition naming Quality Works Construction, Inc. and Insurors Indemnity as necessary parties. A. PARTIES 1. Plaintiff Insurors Indemnity Company is a Texas corporate surety with its principal place of business in Waco, McLennan County, Texas. 2. Defendant Quality Works Construction, Inc. (“Quality Works”) is a corporation in the State of Texas and has appeared in this suit. B. JURISDICTION AND VENURE 3. This court has personal jurisdiction, both specific and general, over Defendants because they reside in and conduct business in Texas, avail themselves of Texas Laws and are amenable to service by a Texas court. 4. The amount in controversy exceeds the minimum jurisdiction of this Court. 5. Venue is proper in Galveston County, as a substantial part of the events or omissions giving rise to the parties’ claims occurred in Galveston County. 1 6. As this Court currently has the underlying cause which gave rise to the settlement and subsequent claim for funds, the City believes that this matter is best handled in this Court. C. INTRODUCTION 7. Plaintiff is Sharon Davis, Individually and as Assignee of The City of Galveston. The Defendants are Quality Works Construction (“QWC”) and Insurors Indemnity Company (“Insurors”). The City of Galveston is a Third Party Defendant of claims made by Quality Works Construction. 8. Plaintiff sued Defendants for damages arising from a construction contract to repair the Plaintiff’s home. The contract was administered by the City of Galveston and paid by grant funds. The City of Galveston was brought into this case in October 2020. D. FACTS 9. On September 21, 2021, all parties attended a mediation. The City of Galveston reached a settlement with Quality Works Construction, Inc. for the amount of $95.000.00. (See Exhibit A). The City Council approved the settlement on October 28, 2021. 10. On October 26, 2021, Insurors made a claim in the amount of $79,693.88 from the any funds to be paid to QWC (See sworn “Amounts Owed to Surety” – Exhibit B). Insurors asserted that QWC and the City of Galveston had a duty to Insurors to make it whole to the extent we may do so. The failure to do so would give rise to a cause of action against the City. 11. The City is unable to determine which party is the rightful owner of the funds. 12. The City is unconditionally tendering the fund in the amount of $79,693.88 to the registry of the court. The remainder of the $95,000.00 settlement shall be paid directly to QWC and/or its counsel for handling. The amount being paid directly to QWC, to which Insurors has no 2 claim against the City, is $15,306.12. The City is in the process of obtaining information necessary to issue the payment. E. RIGHT TO INTERPLEADER 13. The City has agreed to settle QWC’s claim against it for the amount of $95,000.00. The claims made by Insurors for the settlement funds present a bona fide controversy involving questions of fact or law that places the City in doubt as which claimant is entitled to the disputed property. 14. As stated in Insuror’s Claim to the City of Galveston: Insurors, as the contractual and common law subrogee of Quality Works, is entitled to that portion of any funds paid by the City of Galveston to Quality Works up to the amount of Insurors’ claim. Insurors is a creditor as that term is defined under multiple statues, including the Texas Uniform Fraudulent Transfer Act. Consequently, Quality Works and the City of Galveston owe a duty to Insuros to make it whole to the extent that they can do so. As a matter of fact, the failure to do so may give rise to causes of action against Quality Works and the City of Galveston in addition to the breach of contract and associated claims Insurors would have against Quality Works. Email from Counsel for Insurors, dated 26 Oct 2021. F. CONCLUSION 15. Third Party Interpleader, City of Galveston asks the Court to order the City of Galveston to deposit the amount of $79,693.88 into the registry of the court and release the City of Galveston from this suit, with prejudice, as it has settled all claims against it and tendered the settlement fund to the registry of the court. WHEREFORE, PREMISES CONSIDERED, the City requests that the Court continue this case until a date suitable for the parties. 3 Respectfully submitted, OFFICE OF THE CITY ATTORNEY DONALD GLYWASKY /s/ Barry C. Willey Barry C. Willey Assistant City Attorney State Bar No. 00788670 Beverly West Assistant City Attorney State Bar No. 24032459 823 Rosenberg, Suite 203 Galveston, Texas 77550 Phone: 409-797-3530 Fax: 409-877-1559 ATTORNEY FOR THIRD-PARTY DEFENDANT CITY OF GALVESTON, TEXAS CERTIFICATE OF SERVICE I hereby certify that I served the above pleading on all counsel of record in this matter as listed herein below through the Texas courts efile system on this the 19th day of November, 2021. CALDWELL FLETCHER CALDWELL FLETCHER, P.C. State Bar No. 07141710 3401 Allen Parkway, Suite 100 Houston, Texas 77019 (713) 284-1624 (713) 583-9883 (fax) caldwell@caldwellfletcherpc.com Attorneys for Plaintiff BYRON K. BARCLAY THE BARCLAY LAW FIRM State Bar No. 01720350 705 Chelsea Boulevard Houston, Texas 77006-6205 (713) 2q24-2334 (713) 758-0253 (fax) 4 BKBarclay@lawyer.com Attorney for Quality Works Construction, Inc. DAN MACLEMORE BEARD KULDGEN BROPHY BOSTWICK & DICKSON, PLLC State Bar No. 24037013 220 South Fourth Street Waco, Texas 76701 (254) 776-5500 (254) 776-3591 (fax) MacLemore@thetexasfirm.com Attorney for Insurors Indemnity Company /s/Barry C. Willey Barry C. Willey 5 Exhibit A Exhibit B Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Barry Willey on behalf of Barry Conrad Willey Bar No. 788670 bwilley@galvestontx.gov Envelope ID: 59340454 Status as of 11/19/2021 2:08 PM CST Associated Case Party: Sharon Davis Name BarNumber Email TimestampSubmitted Status Caldwell Fletcher 7141710 caldwell@caldwellfletcherpc.com 11/19/2021 2:01:30 PM SENT Caldwell Fletcher Caldwell@caldwellfletcherpc.com 11/19/2021 2:01:30 PM SENT Associated Case Party: QUALITY WORKS CONSTRUCTION, INC. Name BarNumber Email TimestampSubmitted Status Byron KBarclay BKBarclay@Lawyer.com 11/19/2021 2:01:30 PM SENT Associated Case Party: City of Galveston Name BarNumber Email TimestampSubmitted Status Donald Glywasky Glywaskydon@cityofgalveston.org 11/19/2021 2:01:30 PM SENT Beverly DianeWest bwest@galvestontx.gov 11/19/2021 2:01:30 PM SENT Barry C.Willey bwilley@galvestontx.gov 11/19/2021 2:01:30 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Callye Berry berry@thetexasfirm.com 11/19/2021 2:01:30 PM SENT Dan MacLemore maclemore@thetexasfirm.com 11/19/2021 2:01:30 PM SENT Associated Case Party: JohnP.Cahill Name Lanza Law Firm Eservice Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Barry Willey on behalf of Barry Conrad Willey Bar No. 788670 bwilley@galvestontx.gov Envelope ID: 59340454 Status as of 11/19/2021 2:08 PM CST Associated Case Party: JohnP.Cahill John PCahill jcahill@lanzalawfirm.com 11/19/2021 2:01:30 PM SENT