Preview
Filed: 1/13/2022 3:25 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 60805380
By: Rolande Kain
1/13/2022 3:28 PM
CAUSE NO. 20-CV-1704
RAYMOND D. JETT AND SUE E. JETT, § IN THE DISTRICT COURT OF
INDIVIDUALLY AND AS TRUSTEE OF §
THE SPARKS FAMILY LIVING TRUST §
§
Plaintiffs §
§
v. § GALVESTON COUNTY
§
WIMBISH KELLY CONSTRUCTION, LLC §
D/B/A PUTNAM BUILDERS §
§
Defendant 122ND DISTRICT COURT
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ OBJECTIONS TO SUMMARY
JUDGMENT EVIDENCE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendants Wimbish Kelly Construction, LLC d/b/a Putnam Builders;
Industrial Laminates Corporation, and Ilcor Homes, Inc., in the above referenced cause and files
their response to Plaintiffs’ Objections to Summary Judgment Evidence, and would respectfully
show unto the Court the following:
Arguments and Authorities
1. Plaintiffs object to Defendants’ summary judgment evidence specifically related to
excerpts of the deposition of the corporate representative of Defendant Wimbish Kelly
Construction, LLC d/b/a Putnam Builders, Kathy Wimbish. Plaintiffs’ objection acknowledges
and judicially admits that the deposition was of the corporate representative.1
2. Texas Rule of Civil Procedure 199.2(b)(1) allows and governs the depositions of
organizations. Rule 199.2(b)(1) states in pertinent part the following:
“ . . . If an organization is named as the witness, the notice must describe with
reasonable particularity the matters on which examination is requested. In
response, the organization named in the notice must - a reasonable time before
1
Plaintiffs’ Objection, paragraph 1.
1
the deposition - designate one or more individuals to testify on its behalf and set
forth, for each individual designated, the matters on which the individual will
testify. Each individual designated must testify as to matters that are known or
reasonably available to the organization. . .” (emphasis added)
3. The Rule does not limit or constrain what types of matters are known or reasonably
available to the organization. Had Ms. Wimbish been noticed to testify in her individual
capacity she would be bound to providing information within her own personal knowledge.
However, here the testimony complained of involved information that became known to the
organization Wimbish Kelly Construction, LLC through the subject site superintendent,
specifically regarding his conversations with Plaintiff Raymond D. Jett and substantively dealt
with statements and action of Plaintiff Raymond D. Jett. This information became known to the
corporation and its representative, Kathy Wimbish.
4. The Rule specifically states that the corporate representative “may testify” without
qualification as to the further use of that testimony. Further, the Deposition Topics for Corporate
Representative attached as an exhibit to the Notice of Deposition listed the following topics on
which examination was requested
“2. Conversations and communications between Putnam Builders and the Jetts
related to the demolition of the existing improvement and the construction of the
home on the real property located at 145 Mary Lane, Bacliff, Texas 77518 (the
“Property”).
3. Conversations and communications between Putnam Builders and the Jetts
related to the slab height of the Property and the new home to be constructed
pursuant to the Contract.
4. Documents, conversations, and communications related to Putnam Builders’s
contention that the improper slab elevation was “identified, negotiated, and
resolved.”2
2
“Plaintiffs’ Notice of Intention To Take The Oral Deposition of The Corporate Representative of Wimbish Kelly
Construction, LLC d/b/a Putnam Builders,” page 4 of 4, [attached hereto as Exhibit A, and incorporated for all
purposes.]
2
5. At the time of the deposition of the corporate representative, Plaintiffs’ counsel did not
object to the testimony now complained of in the instant motion. Nevertheless, if Plaintiffs’
objections to the testimony were granted, it would be defeating the purpose of the Rule of Civil
Procedure allowing the deposition of an organization. Further, granting Plaintiffs’ objections
would only be one-sided use of the evidence now complained of. (Plaintiffs attached the entirety
of Kathy Wimbish’s corporate representative deposition transcript as “Summary Judgment
Evidence” as Exhibit 4 to their Motion for Summary Judgment. Plaintiffs did not exclude the
testimony now complained of.)
6. As such, Plaintiffs’ Objections to Defendants’ Summary Judgment Evidence should be
overruled in its entirety.
WHEREFORE PREMISES CONSIDERED, Defendants request that this Court overrule
Plaintiffs’ Objections to Summary Judgment Evidence in their entirety, and for such other and
further relief as Defendants may be entitled.
Respectfully submitted,
CHUNN PRICE & HARRIS, PLLC
1150 N. Loop 1604 W., Suite 108-467
San Antonio, Texas 78248
Phone: (210) 308-6677
Fax: (210 525-0960
_________________________________
DAVID G. HARRIS
State Bar No. 24029600
dharris@cphattorneys.com
ATTORNEYS FOR DEFENDANT
WIMBISH KELLY CONSTRUCTION,
LLC, D/B/A PUTNAM BUILDERS,
INDUSTRIAL LAMINATES
3
CORPORATION, AND ILCOR HOMES,
INC.
4
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument has
been served in accordance with Rule 21(a) of the Texas Rules of Civil Procedure to the
following:
J. Daniel Long VIA E-SERVICE
State Bar No. 24036985
Email: dlong@cjmlaw.com
Kendall Valenti Speer
State Bar No. 24077954
Email: kspeer@cjmlaw.com
CRADY JEWETT McCULLEY & HOUREN
LLP
2727 Allen Parkway, Suite 1700
Houston, Texas 77019-2125
(713) 739-7007 – Telephone
(713) 739-8403 – Facsimile
Attorneys for Plaintiffs, Raymond D. Jett
and Sue E. Jett, Individually and as
Trustee of the Sparks Family Trust
on this the 13th day of January, 2022.
_________________________________________
DAVID G. HARRIS
5
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.
David Harris on behalf of David Harris
Bar No. 24029600
dharris@cphattorneys.com
Envelope ID: 60805380
Status as of 1/13/2022 3:28 PM CST
Associated Case Party: The Sparks Family Living Trust
Name BarNumber Email TimestampSubmitted Status
Kendall V.Speer kspeer@cjmhlaw.com 1/13/2022 3:25:35 PM SENT
Minh X.Nguyen mnguyen@cjmlaw.com 1/13/2022 3:25:35 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Josephine Ybarra jybarra@cphattorneys.com 1/13/2022 3:25:35 PM SENT
Karla Strickland kstrickland@cphattorneys.com 1/13/2022 3:25:35 PM SENT
Associated Case Party: Wimbish Kelly Construction, LLC
Name BarNumber Email TimestampSubmitted Status
David Gregory Harris 24029600 dharris@cphattorneys.com 1/13/2022 3:25:35 PM SENT
Preview
Filed: 1/13/2022 3:25 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 60805380 By: Rolande Kain 1/13/2022 3:28 PM CAUSE NO. 20-CV-1704 RAYMOND D. JETT AND SUE E. JETT, § IN THE DISTRICT COURT OF INDIVIDUALLY AND AS TRUSTEE OF § THE SPARKS FAMILY LIVING TRUST § § Plaintiffs § § v. § GALVESTON COUNTY § WIMBISH KELLY CONSTRUCTION, LLC § D/B/A PUTNAM BUILDERS § § Defendant 122ND DISTRICT COURT DEFENDANTS’ RESPONSE TO PLAINTIFFS’ OBJECTIONS TO SUMMARY JUDGMENT EVIDENCE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendants Wimbish Kelly Construction, LLC d/b/a Putnam Builders; Industrial Laminates Corporation, and Ilcor Homes, Inc., in the above referenced cause and files their response to Plaintiffs’ Objections to Summary Judgment Evidence, and would respectfully show unto the Court the following: Arguments and Authorities 1. Plaintiffs object to Defendants’ summary judgment evidence specifically related to excerpts of the deposition of the corporate representative of Defendant Wimbish Kelly Construction, LLC d/b/a Putnam Builders, Kathy Wimbish. Plaintiffs’ objection acknowledges and judicially admits that the deposition was of the corporate representative.1 2. Texas Rule of Civil Procedure 199.2(b)(1) allows and governs the depositions of organizations. Rule 199.2(b)(1) states in pertinent part the following: “ . . . If an organization is named as the witness, the notice must describe with reasonable particularity the matters on which examination is requested. In response, the organization named in the notice must - a reasonable time before 1 Plaintiffs’ Objection, paragraph 1. 1 the deposition - designate one or more individuals to testify on its behalf and set forth, for each individual designated, the matters on which the individual will testify. Each individual designated must testify as to matters that are known or reasonably available to the organization. . .” (emphasis added) 3. The Rule does not limit or constrain what types of matters are known or reasonably available to the organization. Had Ms. Wimbish been noticed to testify in her individual capacity she would be bound to providing information within her own personal knowledge. However, here the testimony complained of involved information that became known to the organization Wimbish Kelly Construction, LLC through the subject site superintendent, specifically regarding his conversations with Plaintiff Raymond D. Jett and substantively dealt with statements and action of Plaintiff Raymond D. Jett. This information became known to the corporation and its representative, Kathy Wimbish. 4. The Rule specifically states that the corporate representative “may testify” without qualification as to the further use of that testimony. Further, the Deposition Topics for Corporate Representative attached as an exhibit to the Notice of Deposition listed the following topics on which examination was requested “2. Conversations and communications between Putnam Builders and the Jetts related to the demolition of the existing improvement and the construction of the home on the real property located at 145 Mary Lane, Bacliff, Texas 77518 (the “Property”). 3. Conversations and communications between Putnam Builders and the Jetts related to the slab height of the Property and the new home to be constructed pursuant to the Contract. 4. Documents, conversations, and communications related to Putnam Builders’s contention that the improper slab elevation was “identified, negotiated, and resolved.”2 2 “Plaintiffs’ Notice of Intention To Take The Oral Deposition of The Corporate Representative of Wimbish Kelly Construction, LLC d/b/a Putnam Builders,” page 4 of 4, [attached hereto as Exhibit A, and incorporated for all purposes.] 2 5. At the time of the deposition of the corporate representative, Plaintiffs’ counsel did not object to the testimony now complained of in the instant motion. Nevertheless, if Plaintiffs’ objections to the testimony were granted, it would be defeating the purpose of the Rule of Civil Procedure allowing the deposition of an organization. Further, granting Plaintiffs’ objections would only be one-sided use of the evidence now complained of. (Plaintiffs attached the entirety of Kathy Wimbish’s corporate representative deposition transcript as “Summary Judgment Evidence” as Exhibit 4 to their Motion for Summary Judgment. Plaintiffs did not exclude the testimony now complained of.) 6. As such, Plaintiffs’ Objections to Defendants’ Summary Judgment Evidence should be overruled in its entirety. WHEREFORE PREMISES CONSIDERED, Defendants request that this Court overrule Plaintiffs’ Objections to Summary Judgment Evidence in their entirety, and for such other and further relief as Defendants may be entitled. Respectfully submitted, CHUNN PRICE & HARRIS, PLLC 1150 N. Loop 1604 W., Suite 108-467 San Antonio, Texas 78248 Phone: (210) 308-6677 Fax: (210 525-0960 _________________________________ DAVID G. HARRIS State Bar No. 24029600 dharris@cphattorneys.com ATTORNEYS FOR DEFENDANT WIMBISH KELLY CONSTRUCTION, LLC, D/B/A PUTNAM BUILDERS, INDUSTRIAL LAMINATES 3 CORPORATION, AND ILCOR HOMES, INC. 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument has been served in accordance with Rule 21(a) of the Texas Rules of Civil Procedure to the following: J. Daniel Long VIA E-SERVICE State Bar No. 24036985 Email: dlong@cjmlaw.com Kendall Valenti Speer State Bar No. 24077954 Email: kspeer@cjmlaw.com CRADY JEWETT McCULLEY & HOUREN LLP 2727 Allen Parkway, Suite 1700 Houston, Texas 77019-2125 (713) 739-7007 – Telephone (713) 739-8403 – Facsimile Attorneys for Plaintiffs, Raymond D. Jett and Sue E. Jett, Individually and as Trustee of the Sparks Family Trust on this the 13th day of January, 2022. _________________________________________ DAVID G. HARRIS 5 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. David Harris on behalf of David Harris Bar No. 24029600 dharris@cphattorneys.com Envelope ID: 60805380 Status as of 1/13/2022 3:28 PM CST Associated Case Party: The Sparks Family Living Trust Name BarNumber Email TimestampSubmitted Status Kendall V.Speer kspeer@cjmhlaw.com 1/13/2022 3:25:35 PM SENT Minh X.Nguyen mnguyen@cjmlaw.com 1/13/2022 3:25:35 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Josephine Ybarra jybarra@cphattorneys.com 1/13/2022 3:25:35 PM SENT Karla Strickland kstrickland@cphattorneys.com 1/13/2022 3:25:35 PM SENT Associated Case Party: Wimbish Kelly Construction, LLC Name BarNumber Email TimestampSubmitted Status David Gregory Harris 24029600 dharris@cphattorneys.com 1/13/2022 3:25:35 PM SENT