Preview
Filed: 6/29/2022 10:39 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 65878094
By: Rolande Kain
6/29/2022 10:46 AM
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, TEXAS
§
WIMBISH KELLY CONSTRUCTION, LLC §
D/B/A PUTNAM BUILDERS §
§
Defendant. § 122nd JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE AND OBJECTION TO THE
MOTION FOR LEAVE TO DESIGNATE RESPONSIBLE THIRD PARTIES OF
THIRD-PARTY DEFENDANT, VENTURA BERRONES D/B/A BERRONES MASONRY
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Plaintiffs, Raymond D. Jett and Sue E. Jett, Individually and as Trustee of
the Sparks Family Living Trust (“Plaintiffs” or the “Jetts”), with this Response and Objection to
the Motion for Leave to Designate Responsible Third Parties of Third-Party Defendant, Ventura
Berrones d/b/a Berrones Masonry (“Berrones Masonry”). In support thereof, Plaintiffs would
respectfully show this Court as follows:
I.
Introduction
1. Plaintiffs filed this suit against Wimbish Kelly Construction d/b/a Putnam
Builders (“Putnam Builders”) on November 12, 2020.1 Over a year later, on November 22, 2021,
the Builder Defendants filed a Third-Party Petition against their subcontractor, Berrones
Masonry. On November 24, 2022, Plaintiff filed a Motion to strike the Third-Party Petition
1
Plaintiffs later joined Putnam Builders’s affiliated entities, Ilcor Laminates Corporation d/b/a Ilcor Builders and
Ilcor Homes, Inc. (collectively the “Ilcor Entities”) after Plaintiffs learned that Putnam Builders holds no employees
and operates as one in the same with the Ilcor Entities. Putnam Builders and the Ilcor Entities are collectively
referred to herein as the “Builder Defendants.”
Page 1 of 8
Plaintiffs’ Response and Objection to Berrones Masonry’s
Motion for Leave to Designate Responsible Third Parties
4866-2875-6773v.1 S7201/00001
against Berrones Masonry.2 To date, Plaintiff has asserted no direct claims against Berrones
Masonry.
2. On April 11, 2022, Berrones Masonry served its First Amended Responses to
Requests for Disclosure in which it identified GeoSurv LLC (“GeoSurv”) and Galveston County
Building Department – Building Division (“Galveston County”) as potential responsible third
parties. On June 16, 2022, Berrones Masonry served its Second Amended Responses to Requests
for Disclosure, which is the first time it identified Studio G Design Group (“Studio G”) as a third
additional potential responsible third party.
3. There are no viable claims against these entities considering the facts and the
basis of Plaintiffs’ claims. Additionally, Berrones Masonry has failed to plead sufficient facts to
satisfy the fair notice pleading standard for designating responsible third parties. Even if the
foregoing were not true, the statute of limitations for these negligence claims have long since
passed.
4. For instance, Berrones Masonry states the following as the only grounds for
designating GeoSurv as a responsible third party: “GeoSurv was involved in setting the
benchmark with Putnam Builders.” GeoSurv is an entity that was engaged by the Builder
Defendants in or around August of 2018. GeoSurv’s sole connection to this suit is that it
provided the pre-construction elevation numbers. The elevation measurements obtained by
GeoSurv were communicated to the Builder Defendants in the email communication dated
August 30, 2018, a true and correct copy of which is attached hereto as Exhibit “1.” Berrones
Masonry has not challenged the elevation numbers, nor described how they could have
2
The Motion to Strike was set for submission on January 14, 2022, and to date, the Court has not ruled on the
Motion to Strike.
Page 2 of 8
Plaintiffs’ Response and Objection to Berrones Masonry’s
Motion for Leave to Designate Responsible Third Parties
4866-2875-6773v.1 S7201/00001
contributed to Plaintiffs’ injuries. Berrones Masonry has failed to pled facts sufficient to satisfy
the fair notice standard as to GeoSurv’s potential liability in this case.
5. Similarly, Berrones Masonry has only pled that “Studio G, as the architect, had a
duty to monitor construction.” Studio G is the design firm which prepared the AutoCAD
construction plans for the Home at issue prior to construction. Plaintiffs first met with Studio G
in the fall of 2018, and Studio G worked to finalize the design of the plans into the first couple of
months of 2019. Studio G is not an architect and had absolutely no obligation to supervise the
construction. More importantly, Plaintiffs have not asserted any claims relating to any
insufficiency of the design; rather, Plaintiffs’ claims are based on the fact that the construction
substantially deviated from the plans which were in accordance with Plaintiffs’ preferences and
the minimum elevation requirements of the Galveston County Floodplain Regulations. Berrones
Masonry has wholly failed to plead sufficient facts which would provide fair notice of how
Studio G may be liable in this case.
6. Finally, as to any alleged liability against Galveston County, Berrones Masonry
has only pled that “Galveston County approved the slab height despite it allegedly being below
the level required by the County.” Berrones Masonry has failed, however, to plead how the
County’s action in signing the Certificate of Completion on January 17, 2020, could have
impacted Berrones Masonry’s work on the foundation which was poured nearly six months
earlier. A true and correct copy of the Certificate of Completion is attached hereto as Exhibit
“2.”
7. In addition to the above, pursuant to the Docket Control Order for this case, the
deadline to add and serve any new parties was April 22, 2022. At this late stage of the
proceeding, Berrones Masonry should not be allowed to name alleged responsible third parties
Page 3 of 8
Plaintiffs’ Response and Objection to Berrones Masonry’s
Motion for Leave to Designate Responsible Third Parties
4866-2875-6773v.1 S7201/00001
because the vague and deficient claims asserted against these parties fail to satisfy the fair notice
standard, have no basis in law, and are entirely contradicted by the facts pled by all parties.
Because of these fatal flaws, Plaintiffs have no opportunity to investigate or join the potential
third parties, substantially prejudicing Plaintiffs’ ability to prosecute their claims.
II.
Arguments and Authorities
A. The Responsible Third Party Designations Are Untimely.
8. Section 33.004 (d) of the Texas Civil Practice & Remedies Code provides that a
defendant may not designate a person as a responsible third party after the applicable limitations
period has expired with respect to that claim if the defendant failed to timely disclose that the
person may be designated as a responsible third party. Tex. Civ. Prac. & Rem. Code § 33.004(d).
The Texas Supreme Court has explained the reasoning for some restraint on when a defendant
may undercut “the plaintiff’s case by belatedly pointing its finger at a time-barred responsible
third-party against whom the plaintiff has no possibility of recovery.” In re Dawson, 550 S.W.3d
625, 628 (Tex. 2018) (internal citations omitted).
A plaintiff has the option to counter the impact of a responsible third party’s
designation by joining the party as an additional defendant. In this way, all
potentially culpable parties appear before the court, defend themselves, and face
potential liability for their portion of responsibility. But a plaintiff may not join a
designated responsible third party outside the limitations period. And when a
plaintiff is so barred, an imbalance in the proportionate-responsibility framework
may arise. While the defendant may potentially cut down liability by blaming the
third party, the plaintiff is precluded by limitations from seeking recovery on the
basis of that third party’s fault.
Id. (emphasis added).
9. Here, Berrones Masonry identified GeoSurv and Galveston County as potential
responsible third parties in its First Amended Disclosure Responses served on April 11, 2022.
Page 4 of 8
Plaintiffs’ Response and Objection to Berrones Masonry’s
Motion for Leave to Designate Responsible Third Parties
4866-2875-6773v.1 S7201/00001
Berrones Masonry did not identify Studio G as a potential responsible third party until it served
its Second Amended Disclosure Responses on June 16, 2022. Any fathomable basis of liability
against these entities would sound in negligence. Negligence claims are governed by a two year
statute of limitations. Tex. Civ. Prac. & Rem. Code § 16.003; Sanders v. Constr. Equity, Inc., 42
S.W.3d 364, 367–68 (Tex. App.—Beaumont 2001, pet. denied).
10. Based on the foregoing, any potential claims against GeoSurv would have expired
several years ago in August of 2020; any potential claims against Studio G would have expired
over a year ago in May of 2021; and, any potential claims against Galveston County would have
expired six months ago on January 17, 2022.
11. Because Berrones Masonry failed to timely disclose GeoSurv and Galveston
County, and most certainly failed to timely disclose Studio G who was just recently disclosed as
a potential responsible third party, Berrones Masonry’s Motion for Leave to Designate
Responsible Third Parties should be denied.
B. Berrones Masonry Did Not Plead Sufficient Facts Concerning Alleged
Responsibility of GeoSurv, Studio G, or Galveston County to Satisfy the Pleading
Requirement of the Texas Rules of Civil Procedure.
12. The court must deny the motion for leave if “the objecting party establishes that
the defendant failed to adequately plead the facts establishing the third party’s responsibility.” In
re Gonzales, 619 S.W.3d 259, 262 (Tex. 2021); see Tex. Civ. P. & Rem. Code § 33.004(g).
While a fair notice pleading standard applies for designating a responsible third party at the
outset of a case, “as trial moves closer the requirement for sufficient evidence to support the
actual submission of a question on the responsibility of the designated third parties becomes
more demanding.” In re Greyhound Lines, Inc., No. 05-13-01646-CV, 2014 WL 1022329, at *2
(Tex. App. Feb. 21, 2014, orig. proceeding)(internal citations omitted).
Page 5 of 8
Plaintiffs’ Response and Objection to Berrones Masonry’s
Motion for Leave to Designate Responsible Third Parties
4866-2875-6773v.1 S7201/00001
13. Here, Berrones Masonry has not sufficiently alleged how each of the three parties
it seeks to designate as responsible third parties caused or contributed to the Plaintiffs’ injury in
this case. In place of the sufficient facts and allegations required under the rules, Berrones
Masonry has made only conclusory statements regarding their involvement.
14. For instance, as to GeoSurv, the only information that has been provided is that
GeoSurv “surveyed elevation” and “was involved in setting the benchmark with Putnam
Builders.” This does not provide sufficient notice as to how GeoSurv contributed to the
Plaintiffs’ injury, what duty GeoSurv may have owed any party, or how GeoSurv’s alleged or
potential breach of that duty could have caused Plaintiffs’ damages, because Plaintiffs’ claims
are based on the fact that Putnam Builders failed to comply with the benchmarks established in
the Contract and in the Floodplain Regulations.
15. Similarly, as to the recent disclosure of Studio G, Berrones Masonry vaguely and
inaccurately described Studio G as the architect who “had a duty to monitor construction.” There
is no evidence to support this. Studio G’s sole involvement with the case was to design the Home
and provide the plans. Plaintiffs’ claims are based on the Builder Defendants’ failure to comply
with the plans that Studio G provided. Additionally, as to Galveston County, Berrones Masonry
simply provides that Galveston County “approved construction.” This is insufficient to
reasonably ascertain what duty Galveston County owed any party or how that duty was
breached.
16. Based on all of the foregoing, Berrones Masonry’s Motion for Leave to Designate
Responsible Third Parties should be denied as untimely or, at a minimum, Berrones Masonry
should be required to replead the purported claims and bases of liability it asserts against these
time-barred third parties so as to satisfy the fair notice standard.
Page 6 of 8
Plaintiffs’ Response and Objection to Berrones Masonry’s
Motion for Leave to Designate Responsible Third Parties
4866-2875-6773v.1 S7201/00001
III.
Prayer
WHEREFORE, PREMISES CONSIDERED, Plaintiffs, Raymond D. Jett and Sue E. Jett,
Individually and as Trustee of the Sparks Family Living Trust (“Plaintiffs”), pray that the Court
deny Third-Party Defendant, Ventura Berrones d/b/a Berrones Masonry’s (“Berrones Masonry”),
Motion for Leave to Designate Responsible Third Parties as untimely and insufficient, and grant
Plaintiffs all other relief, at law and in equity, to which they may be justly entitled.
Respectfully Submitted,
CRADY JEWETT McCULLEY & HOUREN LLP
By:/s/Kendall Valenti Speer
J. Daniel Long
State Bar No. 24036985
Email: dlong@cjmhlaw.com
Elizabeth A. Harris
State Bar No. 24074367
Email: eharris@cjmhlaw.com
Kendall Valenti Speer
State Bar No. 24077954
Email: kspeer@cjmhlaw.com
2727 Allen Parkway, Suite 1700
Houston, Texas 77019-2125
Telephone: (713) 739-7007
Facsimile: (713) 739-8403
Attorneys for Plaintiffs, Raymond D. Jett and Sue
E. Jett, Individually and as Trustee of the Sparks
Family Trust
Page 7 of 8
Plaintiffs’ Response and Objection to Berrones Masonry’s
Motion for Leave to Designate Responsible Third Parties
4866-2875-6773v.1 S7201/00001
CERTIFICATE OF SERVICE
I hereby certify that on this 30th day of June 2022, a true and correct copy of the above
and foregoing document was served by ECF, and/or email to the parties listed below:
David G. Harris
CHUNN PRICE & HARRIS, PLLC
1150 N. Loop 1604 W., Suite 108-467
San Antonio, Texas 79248
Email: dharris@cphattorneys.com
Attorneys for Defendant,
Wimbish Kelly Construction, LLC d/b/a Putnam Builders,
Industrial Laminates Corporation, and Ilcor Homes, Inc.
Alexander G. Almond
Ren Patrick Rigby, Jr.
Laurie Gilmer Rigby
RIGBY & RIGBY
5615 Kirby Drive, Suite 550
Houston, Texas 77005
Email: aalmond@rigbylaw.com
Email: rigby@rigbylaw.com
Email: laurie@rigbylaw.com
Attorneys for Third-Party, Defendant,
Ventura Berrones d/b/a Berrones Masonry
/s/ Kendall Valenti Speer
Kendall Valenti Speer
Page 8 of 8
Plaintiffs’ Response and Objection to Berrones Masonry’s
Motion for Leave to Designate Responsible Third Parties
4866-2875-6773v.1 S7201/00001
Kathy Wimbish
From: Robert Kelly on behalf of Robert Kelly
Sent: Thursday, February 11, 2021 4:21 PM
To: kwimbish@ilcor.com
Subject: FW: Mary Lane Elevation Numbers
Attachments: putnam builders logo-1.fw.png; image001.jpg
] EXHIBIT
11
Flag Status: Flagged 8
&
From: Robert Kelly
Sent: Tuesday, February 9, 2021 9:58 AM
To: Robert Kelly
Subject: Fwd: Mary Lane Elevation Numbers
—mmmemeeen Forwarded message ---------
From: Putnam Bubba
Date: Fri, Aug 31, 2018 at 11:44 AM
Subject: Mary Lane Elevation Numbers
To: Grace Garza , Sue Jett , Dave Kehrer
, Kathy Wimbish , Rob Kelly Kelly
Grace,
Here are the elevation numbers from the surveyor...not sure why they sent it like this instead of an elevation
certificate?!?! Anyways it looks like the lot is about as flat as you can get, with it sitting 1’ below the CL of the road. So
Im gonna want to have the top of the slab under the house no less than 18” above the CL of the street. So that is going
to leave building up about a 2' high dirt pad and then a 12” high slab under house putting that FF around 18” will
probably be my goal. All depends on what the BFF is out there as well. We may need to go higher...but for now lets
work off of those numbers. That works out well and is going to look really nice and not like its sitting on top of an ant
hill.
The surveyor said once we get elevations to send them over and they will fill out or ECert for the proposed
construction. But until then, | guess this is all they are going to give us. Which | think is enough for what we need to
do. The only thing | don't see is what my BFF is...I have an email back into her asking for he to please include that
number along with where my MAG nail is and what the Bench mark number of it.
Good Morning Bubba,
Per our phone conversation regarding Lot 16 of Baycrest 2" Addition.
This property currently Flood Zone C without an associated Base o Elevation (BFE)
LAG 14.71
HAG 14.81
CL of road 15.81’
PUTNAM
PUTNAM 000376
000376
Please let me know your proposed elevations or provide building plans at your earliest convenience so
that | may complete your Pre-Construction Elevation Certificate.
Thank You and Have a great day!
Putnam » Builders
Office/Project Manager
C: 512-940-0570 0: 281-339-0838
F: 281-339-1964
www.putnambuilders.com
bubba@putnambuilders.com
114 Grand Ave. Bacliff, TX 77518
Begin forwarded message:
From: Brenda DuVerney
Subject: Mary Lane
Date: August 30, 2018 at 10:37:58 AM CDT
To: "bubba@putnambuilders.com"
Good Morning Bubba,
Per our phone conversation regarding Lot 16 of Baycrest 2"! Addition.
This property currently Flood Zone C without an associated Base o Elevation (BFE)
LAG 14.71
HAG 14.81 |
CL of road 15.81’
Please let me know your proposed elevations or provide building plans at your earliest convenience so
that | may complete your Pre-Construction Elevation Certificate.
Thank You and Have a great day!
PUTNAM
PUTNAM 000377
000377
Brenda DuVerney
GeaSury, LLC
Operations Director
{231} 554-7
brandadZgsosurvliccom
200 Houston Ave, Suite B
League City, TX 77573
http: fw geosurvllc.comy
PUTNAM
PUTNAM 000378
000378
GALVESTON COUNTY BUILDING PERMIT NO.
~ 3~fJ'-t-11
2
CERTIFICATE OF COMPLETION
This is to certify that a final inspection of a certain structure erected on the premises located at:
Reveals it is in accordance with the approved plans and that the Building Official is satisfied as to
substantial compliance with Galveston County Building Requirements. Any alterations or additions
done after the date on the Certificate of Completion is issued, without obtaining a new building
permit may result in denial or cancellation of flood insurance, as well as fines or imprisonment for
contempt of Commissioners' Court.
Date Authorized Representative
Building Official, County of Galveston,
Texas
PUTNAM 000103
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.
Hayley Gentile on behalf of Kendall Speer
Bar No. 24077954
hgentile@cjmhlaw.com
Envelope ID: 65878094
Status as of 6/29/2022 10:47 AM CST
Associated Case Party: Wimbish Kelly Construction, LLC
Name BarNumber Email TimestampSubmitted Status
David Gregory Harris 24029600 dharris@cphattorneys.com 6/29/2022 10:39:53 AM SENT
Associated Case Party: The Sparks Family Living Trust
Name BarNumber Email TimestampSubmitted Status
Kendall ValentiSpeer kspeer@cjmhlaw.com 6/29/2022 10:39:53 AM SENT
Minh X.Nguyen mnguyen@cjmlaw.com 6/29/2022 10:39:53 AM SENT
Associated Case Party: Ventura Berrones
Name BarNumber Email TimestampSubmitted Status
Laurie Gilmer Rigby laurie@rigbylaw.com 6/29/2022 10:39:53 AM SENT
Ren PatrickRigby, Jr. rigby@rigbylaw.com 6/29/2022 10:39:53 AM SENT
Alexander G.Almond alexander@rigbylaw.com 6/29/2022 10:39:53 AM SENT
Estela Byers byers@rigbylaw.com 6/29/2022 10:39:53 AM SENT
Becky Abercrombie becky@rigbylaw.com 6/29/2022 10:39:53 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Karla Strickland kstrickland@cphattorneys.com 6/29/2022 10:39:53 AM SENT
Josephine Ybarra jybarra@cphattorneys.com 6/29/2022 10:39:53 AM SENT
Preview
Filed: 6/29/2022 10:39 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 65878094 By: Rolande Kain 6/29/2022 10:46 AM 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, TEXAS § WIMBISH KELLY CONSTRUCTION, LLC § D/B/A PUTNAM BUILDERS § § Defendant. § 122nd JUDICIAL DISTRICT PLAINTIFFS’ RESPONSE AND OBJECTION TO THE MOTION FOR LEAVE TO DESIGNATE RESPONSIBLE THIRD PARTIES OF THIRD-PARTY DEFENDANT, VENTURA BERRONES D/B/A BERRONES MASONRY TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Plaintiffs, Raymond D. Jett and Sue E. Jett, Individually and as Trustee of the Sparks Family Living Trust (“Plaintiffs” or the “Jetts”), with this Response and Objection to the Motion for Leave to Designate Responsible Third Parties of Third-Party Defendant, Ventura Berrones d/b/a Berrones Masonry (“Berrones Masonry”). In support thereof, Plaintiffs would respectfully show this Court as follows: I. Introduction 1. Plaintiffs filed this suit against Wimbish Kelly Construction d/b/a Putnam Builders (“Putnam Builders”) on November 12, 2020.1 Over a year later, on November 22, 2021, the Builder Defendants filed a Third-Party Petition against their subcontractor, Berrones Masonry. On November 24, 2022, Plaintiff filed a Motion to strike the Third-Party Petition 1 Plaintiffs later joined Putnam Builders’s affiliated entities, Ilcor Laminates Corporation d/b/a Ilcor Builders and Ilcor Homes, Inc. (collectively the “Ilcor Entities”) after Plaintiffs learned that Putnam Builders holds no employees and operates as one in the same with the Ilcor Entities. Putnam Builders and the Ilcor Entities are collectively referred to herein as the “Builder Defendants.” Page 1 of 8 Plaintiffs’ Response and Objection to Berrones Masonry’s Motion for Leave to Designate Responsible Third Parties 4866-2875-6773v.1 S7201/00001 against Berrones Masonry.2 To date, Plaintiff has asserted no direct claims against Berrones Masonry. 2. On April 11, 2022, Berrones Masonry served its First Amended Responses to Requests for Disclosure in which it identified GeoSurv LLC (“GeoSurv”) and Galveston County Building Department – Building Division (“Galveston County”) as potential responsible third parties. On June 16, 2022, Berrones Masonry served its Second Amended Responses to Requests for Disclosure, which is the first time it identified Studio G Design Group (“Studio G”) as a third additional potential responsible third party. 3. There are no viable claims against these entities considering the facts and the basis of Plaintiffs’ claims. Additionally, Berrones Masonry has failed to plead sufficient facts to satisfy the fair notice pleading standard for designating responsible third parties. Even if the foregoing were not true, the statute of limitations for these negligence claims have long since passed. 4. For instance, Berrones Masonry states the following as the only grounds for designating GeoSurv as a responsible third party: “GeoSurv was involved in setting the benchmark with Putnam Builders.” GeoSurv is an entity that was engaged by the Builder Defendants in or around August of 2018. GeoSurv’s sole connection to this suit is that it provided the pre-construction elevation numbers. The elevation measurements obtained by GeoSurv were communicated to the Builder Defendants in the email communication dated August 30, 2018, a true and correct copy of which is attached hereto as Exhibit “1.” Berrones Masonry has not challenged the elevation numbers, nor described how they could have 2 The Motion to Strike was set for submission on January 14, 2022, and to date, the Court has not ruled on the Motion to Strike. Page 2 of 8 Plaintiffs’ Response and Objection to Berrones Masonry’s Motion for Leave to Designate Responsible Third Parties 4866-2875-6773v.1 S7201/00001 contributed to Plaintiffs’ injuries. Berrones Masonry has failed to pled facts sufficient to satisfy the fair notice standard as to GeoSurv’s potential liability in this case. 5. Similarly, Berrones Masonry has only pled that “Studio G, as the architect, had a duty to monitor construction.” Studio G is the design firm which prepared the AutoCAD construction plans for the Home at issue prior to construction. Plaintiffs first met with Studio G in the fall of 2018, and Studio G worked to finalize the design of the plans into the first couple of months of 2019. Studio G is not an architect and had absolutely no obligation to supervise the construction. More importantly, Plaintiffs have not asserted any claims relating to any insufficiency of the design; rather, Plaintiffs’ claims are based on the fact that the construction substantially deviated from the plans which were in accordance with Plaintiffs’ preferences and the minimum elevation requirements of the Galveston County Floodplain Regulations. Berrones Masonry has wholly failed to plead sufficient facts which would provide fair notice of how Studio G may be liable in this case. 6. Finally, as to any alleged liability against Galveston County, Berrones Masonry has only pled that “Galveston County approved the slab height despite it allegedly being below the level required by the County.” Berrones Masonry has failed, however, to plead how the County’s action in signing the Certificate of Completion on January 17, 2020, could have impacted Berrones Masonry’s work on the foundation which was poured nearly six months earlier. A true and correct copy of the Certificate of Completion is attached hereto as Exhibit “2.” 7. In addition to the above, pursuant to the Docket Control Order for this case, the deadline to add and serve any new parties was April 22, 2022. At this late stage of the proceeding, Berrones Masonry should not be allowed to name alleged responsible third parties Page 3 of 8 Plaintiffs’ Response and Objection to Berrones Masonry’s Motion for Leave to Designate Responsible Third Parties 4866-2875-6773v.1 S7201/00001 because the vague and deficient claims asserted against these parties fail to satisfy the fair notice standard, have no basis in law, and are entirely contradicted by the facts pled by all parties. Because of these fatal flaws, Plaintiffs have no opportunity to investigate or join the potential third parties, substantially prejudicing Plaintiffs’ ability to prosecute their claims. II. Arguments and Authorities A. The Responsible Third Party Designations Are Untimely. 8. Section 33.004 (d) of the Texas Civil Practice & Remedies Code provides that a defendant may not designate a person as a responsible third party after the applicable limitations period has expired with respect to that claim if the defendant failed to timely disclose that the person may be designated as a responsible third party. Tex. Civ. Prac. & Rem. Code § 33.004(d). The Texas Supreme Court has explained the reasoning for some restraint on when a defendant may undercut “the plaintiff’s case by belatedly pointing its finger at a time-barred responsible third-party against whom the plaintiff has no possibility of recovery.” In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (internal citations omitted). A plaintiff has the option to counter the impact of a responsible third party’s designation by joining the party as an additional defendant. In this way, all potentially culpable parties appear before the court, defend themselves, and face potential liability for their portion of responsibility. But a plaintiff may not join a designated responsible third party outside the limitations period. And when a plaintiff is so barred, an imbalance in the proportionate-responsibility framework may arise. While the defendant may potentially cut down liability by blaming the third party, the plaintiff is precluded by limitations from seeking recovery on the basis of that third party’s fault. Id. (emphasis added). 9. Here, Berrones Masonry identified GeoSurv and Galveston County as potential responsible third parties in its First Amended Disclosure Responses served on April 11, 2022. Page 4 of 8 Plaintiffs’ Response and Objection to Berrones Masonry’s Motion for Leave to Designate Responsible Third Parties 4866-2875-6773v.1 S7201/00001 Berrones Masonry did not identify Studio G as a potential responsible third party until it served its Second Amended Disclosure Responses on June 16, 2022. Any fathomable basis of liability against these entities would sound in negligence. Negligence claims are governed by a two year statute of limitations. Tex. Civ. Prac. & Rem. Code § 16.003; Sanders v. Constr. Equity, Inc., 42 S.W.3d 364, 367–68 (Tex. App.—Beaumont 2001, pet. denied). 10. Based on the foregoing, any potential claims against GeoSurv would have expired several years ago in August of 2020; any potential claims against Studio G would have expired over a year ago in May of 2021; and, any potential claims against Galveston County would have expired six months ago on January 17, 2022. 11. Because Berrones Masonry failed to timely disclose GeoSurv and Galveston County, and most certainly failed to timely disclose Studio G who was just recently disclosed as a potential responsible third party, Berrones Masonry’s Motion for Leave to Designate Responsible Third Parties should be denied. B. Berrones Masonry Did Not Plead Sufficient Facts Concerning Alleged Responsibility of GeoSurv, Studio G, or Galveston County to Satisfy the Pleading Requirement of the Texas Rules of Civil Procedure. 12. The court must deny the motion for leave if “the objecting party establishes that the defendant failed to adequately plead the facts establishing the third party’s responsibility.” In re Gonzales, 619 S.W.3d 259, 262 (Tex. 2021); see Tex. Civ. P. & Rem. Code § 33.004(g). While a fair notice pleading standard applies for designating a responsible third party at the outset of a case, “as trial moves closer the requirement for sufficient evidence to support the actual submission of a question on the responsibility of the designated third parties becomes more demanding.” In re Greyhound Lines, Inc., No. 05-13-01646-CV, 2014 WL 1022329, at *2 (Tex. App. Feb. 21, 2014, orig. proceeding)(internal citations omitted). Page 5 of 8 Plaintiffs’ Response and Objection to Berrones Masonry’s Motion for Leave to Designate Responsible Third Parties 4866-2875-6773v.1 S7201/00001 13. Here, Berrones Masonry has not sufficiently alleged how each of the three parties it seeks to designate as responsible third parties caused or contributed to the Plaintiffs’ injury in this case. In place of the sufficient facts and allegations required under the rules, Berrones Masonry has made only conclusory statements regarding their involvement. 14. For instance, as to GeoSurv, the only information that has been provided is that GeoSurv “surveyed elevation” and “was involved in setting the benchmark with Putnam Builders.” This does not provide sufficient notice as to how GeoSurv contributed to the Plaintiffs’ injury, what duty GeoSurv may have owed any party, or how GeoSurv’s alleged or potential breach of that duty could have caused Plaintiffs’ damages, because Plaintiffs’ claims are based on the fact that Putnam Builders failed to comply with the benchmarks established in the Contract and in the Floodplain Regulations. 15. Similarly, as to the recent disclosure of Studio G, Berrones Masonry vaguely and inaccurately described Studio G as the architect who “had a duty to monitor construction.” There is no evidence to support this. Studio G’s sole involvement with the case was to design the Home and provide the plans. Plaintiffs’ claims are based on the Builder Defendants’ failure to comply with the plans that Studio G provided. Additionally, as to Galveston County, Berrones Masonry simply provides that Galveston County “approved construction.” This is insufficient to reasonably ascertain what duty Galveston County owed any party or how that duty was breached. 16. Based on all of the foregoing, Berrones Masonry’s Motion for Leave to Designate Responsible Third Parties should be denied as untimely or, at a minimum, Berrones Masonry should be required to replead the purported claims and bases of liability it asserts against these time-barred third parties so as to satisfy the fair notice standard. Page 6 of 8 Plaintiffs’ Response and Objection to Berrones Masonry’s Motion for Leave to Designate Responsible Third Parties 4866-2875-6773v.1 S7201/00001 III. Prayer WHEREFORE, PREMISES CONSIDERED, Plaintiffs, Raymond D. Jett and Sue E. Jett, Individually and as Trustee of the Sparks Family Living Trust (“Plaintiffs”), pray that the Court deny Third-Party Defendant, Ventura Berrones d/b/a Berrones Masonry’s (“Berrones Masonry”), Motion for Leave to Designate Responsible Third Parties as untimely and insufficient, and grant Plaintiffs all other relief, at law and in equity, to which they may be justly entitled. Respectfully Submitted, CRADY JEWETT McCULLEY & HOUREN LLP By:/s/Kendall Valenti Speer J. Daniel Long State Bar No. 24036985 Email: dlong@cjmhlaw.com Elizabeth A. Harris State Bar No. 24074367 Email: eharris@cjmhlaw.com Kendall Valenti Speer State Bar No. 24077954 Email: kspeer@cjmhlaw.com 2727 Allen Parkway, Suite 1700 Houston, Texas 77019-2125 Telephone: (713) 739-7007 Facsimile: (713) 739-8403 Attorneys for Plaintiffs, Raymond D. Jett and Sue E. Jett, Individually and as Trustee of the Sparks Family Trust Page 7 of 8 Plaintiffs’ Response and Objection to Berrones Masonry’s Motion for Leave to Designate Responsible Third Parties 4866-2875-6773v.1 S7201/00001 CERTIFICATE OF SERVICE I hereby certify that on this 30th day of June 2022, a true and correct copy of the above and foregoing document was served by ECF, and/or email to the parties listed below: David G. Harris CHUNN PRICE & HARRIS, PLLC 1150 N. Loop 1604 W., Suite 108-467 San Antonio, Texas 79248 Email: dharris@cphattorneys.com Attorneys for Defendant, Wimbish Kelly Construction, LLC d/b/a Putnam Builders, Industrial Laminates Corporation, and Ilcor Homes, Inc. Alexander G. Almond Ren Patrick Rigby, Jr. Laurie Gilmer Rigby RIGBY & RIGBY 5615 Kirby Drive, Suite 550 Houston, Texas 77005 Email: aalmond@rigbylaw.com Email: rigby@rigbylaw.com Email: laurie@rigbylaw.com Attorneys for Third-Party, Defendant, Ventura Berrones d/b/a Berrones Masonry /s/ Kendall Valenti Speer Kendall Valenti Speer Page 8 of 8 Plaintiffs’ Response and Objection to Berrones Masonry’s Motion for Leave to Designate Responsible Third Parties 4866-2875-6773v.1 S7201/00001 Kathy Wimbish From: Robert Kelly on behalf of Robert Kelly Sent: Thursday, February 11, 2021 4:21 PM To: kwimbish@ilcor.com Subject: FW: Mary Lane Elevation Numbers Attachments: putnam builders logo-1.fw.png; image001.jpg ] EXHIBIT 11 Flag Status: Flagged 8 & From: Robert Kelly Sent: Tuesday, February 9, 2021 9:58 AM To: Robert Kelly Subject: Fwd: Mary Lane Elevation Numbers —mmmemeeen Forwarded message --------- From: Putnam Bubba Date: Fri, Aug 31, 2018 at 11:44 AM Subject: Mary Lane Elevation Numbers To: Grace Garza , Sue Jett , Dave Kehrer , Kathy Wimbish , Rob Kelly Kelly Grace, Here are the elevation numbers from the surveyor...not sure why they sent it like this instead of an elevation certificate?!?! Anyways it looks like the lot is about as flat as you can get, with it sitting 1’ below the CL of the road. So Im gonna want to have the top of the slab under the house no less than 18” above the CL of the street. So that is going to leave building up about a 2' high dirt pad and then a 12” high slab under house putting that FF around 18” will probably be my goal. All depends on what the BFF is out there as well. We may need to go higher...but for now lets work off of those numbers. That works out well and is going to look really nice and not like its sitting on top of an ant hill. The surveyor said once we get elevations to send them over and they will fill out or ECert for the proposed construction. But until then, | guess this is all they are going to give us. Which | think is enough for what we need to do. The only thing | don't see is what my BFF is...I have an email back into her asking for he to please include that number along with where my MAG nail is and what the Bench mark number of it. Good Morning Bubba, Per our phone conversation regarding Lot 16 of Baycrest 2" Addition. This property currently Flood Zone C without an associated Base o Elevation (BFE) LAG 14.71 HAG 14.81 CL of road 15.81’ PUTNAM PUTNAM 000376 000376 Please let me know your proposed elevations or provide building plans at your earliest convenience so that | may complete your Pre-Construction Elevation Certificate. Thank You and Have a great day! Putnam » Builders Office/Project Manager C: 512-940-0570 0: 281-339-0838 F: 281-339-1964 www.putnambuilders.com bubba@putnambuilders.com 114 Grand Ave. Bacliff, TX 77518 Begin forwarded message: From: Brenda DuVerney Subject: Mary Lane Date: August 30, 2018 at 10:37:58 AM CDT To: "bubba@putnambuilders.com" Good Morning Bubba, Per our phone conversation regarding Lot 16 of Baycrest 2"! Addition. This property currently Flood Zone C without an associated Base o Elevation (BFE) LAG 14.71 HAG 14.81 | CL of road 15.81’ Please let me know your proposed elevations or provide building plans at your earliest convenience so that | may complete your Pre-Construction Elevation Certificate. Thank You and Have a great day! PUTNAM PUTNAM 000377 000377 Brenda DuVerney GeaSury, LLC Operations Director {231} 554-7 brandadZgsosurvliccom 200 Houston Ave, Suite B League City, TX 77573 http: fw geosurvllc.comy PUTNAM PUTNAM 000378 000378 GALVESTON COUNTY BUILDING PERMIT NO. ~ 3~fJ'-t-11 2 CERTIFICATE OF COMPLETION This is to certify that a final inspection of a certain structure erected on the premises located at: Reveals it is in accordance with the approved plans and that the Building Official is satisfied as to substantial compliance with Galveston County Building Requirements. Any alterations or additions done after the date on the Certificate of Completion is issued, without obtaining a new building permit may result in denial or cancellation of flood insurance, as well as fines or imprisonment for contempt of Commissioners' Court. Date Authorized Representative Building Official, County of Galveston, Texas PUTNAM 000103 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. Hayley Gentile on behalf of Kendall Speer Bar No. 24077954 hgentile@cjmhlaw.com Envelope ID: 65878094 Status as of 6/29/2022 10:47 AM CST Associated Case Party: Wimbish Kelly Construction, LLC Name BarNumber Email TimestampSubmitted Status David Gregory Harris 24029600 dharris@cphattorneys.com 6/29/2022 10:39:53 AM SENT Associated Case Party: The Sparks Family Living Trust Name BarNumber Email TimestampSubmitted Status Kendall ValentiSpeer kspeer@cjmhlaw.com 6/29/2022 10:39:53 AM SENT Minh X.Nguyen mnguyen@cjmlaw.com 6/29/2022 10:39:53 AM SENT Associated Case Party: Ventura Berrones Name BarNumber Email TimestampSubmitted Status Laurie Gilmer Rigby laurie@rigbylaw.com 6/29/2022 10:39:53 AM SENT Ren PatrickRigby, Jr. rigby@rigbylaw.com 6/29/2022 10:39:53 AM SENT Alexander G.Almond alexander@rigbylaw.com 6/29/2022 10:39:53 AM SENT Estela Byers byers@rigbylaw.com 6/29/2022 10:39:53 AM SENT Becky Abercrombie becky@rigbylaw.com 6/29/2022 10:39:53 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Karla Strickland kstrickland@cphattorneys.com 6/29/2022 10:39:53 AM SENT Josephine Ybarra jybarra@cphattorneys.com 6/29/2022 10:39:53 AM SENT