Motion to Continue in Allen Soape, Et Al vs. DSW Homes, LLC, Et Al| Trellis.Law

On December 15, 2017 a Motion-Secondary was filed involving a dispute between Dsw Homes, Llc, Soape, Allen, Soape, Joy, and Barfield Home Inspections, Dsw Homes, Llc, for Injury/Damage - Other in the District Court of Galveston County.

Preview
Filed: 4/18/2019 4:19 PM
J OHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 32913143
By: Shailja Dixit
4/18/2019 4:26 PM

CAUSE NO. 17-CV-1506

ALLEN AND JOY SOAPE IN THE DISTRICT COURT OF

Vv.
GALVESTON COUNTY, TEXAS
DSW HOMES, LLC, AAK ELECTRIC,
LLC, and DALE'S WATER WELLS, LLC
405th JUDICIAL DISTRICT

DSW HOMES, LLC RESPONSE TO PLAINTIFFS’ MOTION FOR PARTIAL
SUMMARY JUDGMENT AS TO LIABILITY AGAINST DSW HOMES, LLC
SUBJECT TO ITS MOTION FOR CONTINUANCE

TO THE HONORABLE JUDGE OF SAID COURT:

Defendant, DSW Homes, LLC (hereinafter DSW), and subject to its motion for

continuance of the hearing on this motion, files this Response to Plaintiffs’ Motion for Partial

Summary Judgement as to liability against DSW Homes, LLC. While the motion seeks

judgment against DSW on “liability”, the motion seeks to hold DSW negligent. For the reasons

set forth below, Plaintiffs’ Motion for Partial Summary Judgment as to liability should be denied

in its entirety.

I
OBJECTIONS TO PLAINTIFF'S SUMMARY JUDGMENT EVIDENCE

Contemporaneously with this Response, Defendant has filed their Objections to the report of

Clayton & Assoc Consultants, which is attached as Exhibit G to Plaintiffs’ Motion for Summary

Judgment
as to Liability. Defendant hereby fully repeats and incorporate by reference those

objections.
Il.
FACTUAL BACKGROUND

This is a complex personal injury case. The Plaintiffs claim in 2008 they suffered severe

damage to their home due to Humicane Ike. In 2014, they applied for assistance through

DETCOG/HUD and were eventually qualified to have a new home built. DSW is a disaster

recovery company that focuses on residential rehabilitation and reconstruction. They act as a

general contractor
for various govemment
grant programs in storm damaged areas. DSW was

the general contractor for the Plaintiffs’ home and entered into a contract with Plaintiffs and

DETCOG for the construction of a new home.? DSW hired Dale’s Water Wells (“Dale's”) to

install the water well for the new home, and the associated electrical wiring/conduit
at issue in

this litigation? DSW dlso hired AAK Electric, also a defendant is in this case, who is also

licensed to perform electrical work.* Finally, DSW hired Barfield Home Inspections, to inspect

the home, prior to the time it was tumed over to the Plaintiffs. °

Plaintiffs claim that on or about September 21, 2016, Plaintiff Allen Soape was digging

in his flower beds when his shovel struck an underground electrical cable, buried approximately

3-5 inches below ground, running from the water well pump to the home. Unfortunately, it is

unclear who actually installed the electrical wire/conduit at issue in this litigation since Dale’s

denies performing the work they were specifically instructed to perform® Plaintiffs further

1 See Exhibit A, page 27, line 22 - page 28, line 25.
2 See Exhibit
3 to ExhibitA; Exhibit A, page 51, lines 1-9.
3 See Exhibit A, page 80, lines 21-25, page 82, line 10 - page 84, line 16.; See also Exhibit 7 to Exhibit A, page
DSW 00287.; See also generally Exhibit A, pages 76-78.
4 See Exhibit
A, page 81, line 5-15; ExhibitA, page 89, line 24 - page 90, line 13; Exhibit 7 to Exhibit A, page
DSW 00305, 00329-00331; See also Exhibit D, page 16, line 21 - Page 17, line 17; See also generally Exhibit A,
pages 76-78.
° See Exhibit A, page 114, line 6 - page 115, line 10; See also Exhibit 12 attached to Exhibit A; See also Exhibit 7
to ExhibitA, pages DSW 00332-00334; See also generally ExhibitA, pages 76-78.
© See Exhibit A, page 80, lines 21-25, page 82, line 10 - page 84, line 16,; See also Exhibit 7 to Exhibit A,
DSW 00287; Exhibit C, page 100, lines 8-16; Exhibit C, page 50, lines 7-25; Exhibit C, page 99, lines 3-20; Exhibit
C, page 124, line 11- page 126, line 24; See also generally ExhibitA, pages 76-78.
claim that the resulting 220-volt shock rendered Mr. Soape unconscious. As a result of the

electrical shock Mr. Soape allegedly suffered significant and permanent injuries including nerve

damage in both legs, atrial fibrillation, uncontrolled blood pressure, syncope, and memory loss.

III. SUMMARY J UDGMENT EVIDENCE

In opposition to Plaintiffs’ Motion for Partial Summary Judgment, Defendant gives

notice of its intent to rely on unfiled discovery material in the above captioned lawsuit. Tex. R.

Civ. P. 166a(d). Defendant fully incorporates true and correct copies of the following summary

judgment evidence into this motion:

Exhibit Description

A Excerpts of the Deposition of Beau Y arborough with pertinent
portions of exhibits attached to same.

B Excerpts of the Deposition of Mason Grillo

Cc Excerpts of the Deposition of Dale Gore

D Excerpts of the Deposition of William Salmeron

In addition, the affidavit of Ms. Cully, one of the attomey’s for DSW is attached. DSW

serves this evidence on all parties coincident with filing this Response to Plaintiffs’ Motion.

IV. SUMMARY JUDGMENT STANDARD

Summary judgment is proper only when the movants demonstrate that there is no genuine

issue as to any material fact such that they are each entitled to judgment as a matter of law.

TEX. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 SW 3d 211, 215-216

(Tex. 2003); Nixon v. Mr. Property Management Co., 690 S.W. 2d 546, 548 (Tex. 1985). The

court can grant the motion only when the movant's evidence, as a matter of law, either proves all

the elements of a movant's claim or disproves the facts of at least one element of the nonmovant's

defense. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995). A trial cout
must (1) assume all the nonmovant's proof is true; (2) indulge every reasonable inference in

favor of the nonmovant; and (3) resolve all doubts about the existence of a genuine issue of

material fact against the movant. MD. Anderson Hosp. v. Willrich, 28 S.W.3d 22, 23

(Tex.2000). Further, a nonmovant in a traditional motion for summary judgment is not required

to produce summary judgment evidence until after the movant establishes it is entitled to

summary judgment
as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989).

Vv
ARGUMENT AND AUTHORITY

A Fact issues remain as to whether DSW retained a right of control over the work at
issue sufficient to impose a duty of care.

Plaintiffs have sought summary judgment solely on the issue of negligence. To prevail

on a negligence claim, Plaintiffs must establish (1) the existence of a legal duty owed by DSW,

(2) breach of that duty, and (3) damages proximately caused by the breach. See IHS Cedars

Treatment Ctr. of DeSoto, Tex. Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). The first

element—the existence of a duty—is the threshold inquiry for any negligence case. Nabors

Drilling, U.SA., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009). Absent
a duty, DSW cannot

be held liable for Plaintiffs’ injuries as a matter of law. See Kroger Co. v. Elwood, 197 S.W.3d

793, 794 (Tex.2006). Although the existence of a legal duty is often a question of law, it is one

that depends on “the facts surrounding the occurrence in question” Greater Houston Transp. Co.

v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Accordingly, “in some instances [the question of

duty] may require the resolution of disputed facts or inferences which are inappropriate for legal

resolution.” Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991).

Here, Plaintiffs maintain that “[t]he wire that electrocuted Mr. Soape, which was part of

DSW’s scope of work, was installed improperly and in violation of applicable building codes.”

In their motion, however, Plaintiffs acknowledge that DSW hired several subcontractors to
4
perform various aspects of the project’s construction, including the installation of the water well,

the electrical pump, and the electrical feeder cable. Indeed, the contract between DSW and

Plaintiffs expressly contemplated DSW’s use of subcontractors on the project.” Accordingly, to

the extent any subcontractor performed the work that gave rise to the alleged defect that

purportedly caused Plaintiffs’ injuries, DSW’s rights and obligations are construed under the

“hybrid body of law’ goveming “the relationship between a general contractor and an

independent contractor[.]” Price Drilling Co. v. Zertuche, 147 S.W.3d 483, 486 (Tex. App.—

San Antonio 2004, no pet.).

As a general rule, there is no duty to control the conduct of third persons. Greater

Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Accordingly, a general

contractor is not ordinarily liable for defective conditions created by a subcontractor. See

Clayton W. Willians, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527-28 (Tex. 1997); Redinger
v. Living,

Inc., 689 S.W.2d 415, 418 (Tex. 1985); Gaspardv. DuPont Dow Elastomers, L.L.C., 140 S.W.3d

415, 418 (Tex. App.— Beaumont 2004, no pet.). However, a limited exception to this rule exists

when the general contractor “retains the control of any part of the [subcontractors] work{.]”

Redinger, 689 S.W.2d at 418 (citing RESTATEMENT (SECOND) Torts § 414 (1977)). In such

cases, the general contractor may be liable for injuries “caused by his failure to exercise his

control with reasonable care.” Id.; accord Gaspard, 140 S.W.3d at 419.

In order for liability to attach in these circumstances, the general contractor's retained

right of control must be “more than a general right to order the work to start or stop, to inspect

progress or receive repo! ” Redinger, 689 S.W.2d at 418; Johnson v. Scott Fetzer Co., 124

S.W.3d 257, 265-66 (Tex. App.—Fort Worth 2003, pet. denied). Rather, “[flor a general

7 See Exhibit 3 to Exhibit A at {19 (“It is understood and acknowledged by Owner [Plaintiffs] and Contractor [DSW]
that they have selected all ... subcontractors ... who will fumish labor, material or other services for the construction
of said improvements.”).
5
contractor to be liable for its independent contractor's acts, it must have the right to control the

means, methods, or details of the independent contractor’s work.” Dow Chem Co. v. Bright, 89

S.W.3d 602, 606 (Tex. 2002). In other words, the control must extend to the operative details of

the subcontractor’s work such that the subcontractor is not free to do the work in his own way.

Redinger, 689 S.W.2d at 418; Johnson, 124 S.W.3d 257, 265-66. Moreover, the general

contractor’s duty is commensurate with the degree of control retained. Clayton W. Williams, Jr.,

Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997); Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803

(Tex.1999). Therefore, liability results only when the general contractor's control relates to the

injury-producing defect itself. Id.

Here, DSW is neither a licensed electrician or well-installer and does not, itself, employ

any licensed electricians and/or well installers.® Additionally, neither DSW nor its

foreman/superintendent at the site (Mason Grillo), installed the wire/conduit at issue.? Instead,

DSW retained licensed and qualified subcontractors to perform the work at issue in this

litigation. Specifically, DSW contracted with and sent a purchase order and verbally instructed

to Dale’s Water Wells (“Dale's”) to install the water well and the conduit/wire from the well to

the home.!° Through
the purchase order DSW specifically instructed Dale's to install the

conduit.!! Likewise, DSW subcontracted with AAK Electric, LLC (“AAK”) to perform the

electrical work for the home.!? Plaintiff acknowledges these facts in its motion for summary

8 See Exhibit A, page 27, lines 22-25; Page, 48, lines 17- Page 50, line 14.
° See Exhibit B, page 48, lines 14-24; See Exhibit A, page 27, lines 22-25; Page, 48, lines 17- Page 50, line 14.
10 See Exhibit A, page 80, lines 21-25, page 82, line 10 - page 84, line 16.; See also Exhibit 7 to Exhibit A,
DSW 00287; Exhibit C, page 100, lines 6-17; Exhibit C, page 50, lines 7-25; Exhibit C, page 99, lines 3-20; Exhibit
C, page 124, line 11- page 126, line 24.
1 See Exhibit A, page 80, lines 21-25, page 82, line 10 - page 84, line 16.; See also Exhibit 7 to Exhibit A,
DSW 00287; Exhibit C, page 100, lines 8-16; Exhibit C, page 50, lines 7-25; Exhibit C, page 99, lines 3-20; Exhibit
C, page 124, line 11- page 126, line 24.
See Exhibit A, page 81, line 5-15; Exhibit A, page 89, line 24 - page 90, line 13; Exhibit
7 to Exhibit A, page
DSW 00305, 00329-00331; See also Exhibit D, page 16, line 21 - Page 17, line 17; See also generally Exhibit A,
pages 76-78.
6
judgment.°

Tt should be noted that both subcontractors—Dale’s and AAK—have denied that they

installed the wire/conduit associated with the water well. Thus, there is presently a factual

dispute as to which of the subcontractors is responsible for the defect at issue in this litigation.

Nevertheless, one thing that is abundantly clear from the record evidence is that DSW

emphatically did not perform this work itself but, instead, hired licensed independent contractors

to perform this work. Though, in its motion, Plaintiff appears to suggest (falsely) that DSW may

have performed the work itself, Plaintiff provides absolutely no evidence in support. To the

contrary, Plaintiff expressly acknowledges that “[i]t is disputed as to who actually installed and

buried the UF Cable—DSW itself, Dale’s Water Wells, or AAK Electric.” Thus, at a minimum,

fact issues exist as to whether the subject defect was attributable
to a subcontractor.

That being
the case, summary judgment as to liabilityis only appropriate
if Plaintiffs can

establish as a matter of law that DSW retained a right of control over the specific details of the

work at issue—namely, the installation of the electrical wire. See Olivo, 952 S.W.2d at 527-28;

Redinger, 689 S.W.2d at 418; Gaspard, 140 S.W.3d at 418. Unfortunately for Plaintiffs, they

have presented zero summary judgment evidence or argument addressing this issue. Indeed,

nowhere in their motion do Plaintiffs even mention a right of control by DSW—mutch less a right

of control that was specific to the installation of the wire and was so extensive that it covered the

“operative details” of such work. Redinger, 689 S.W.2d at 418; Johnson, 124 S.W.3d at 265-66.

For this reason alone, material fact issues exist as to liability, and Plaintiffs’ motion for summary

judgment should be denied.

13 See Plaintiffs’ MSJ at 915-7.
B. The contract language referencing an “absolute” obligation to perform does not
suffice for summary judgment.

Nevertheless, Plaintiffs point to the provision of their contract stating that “[DSW’s]

obligation to perform and complete the Work in a good and workmanlike manner herein shall be

absolute” as evidence of DSW’s liability. First and foremost, the contract in question is between

Plaintiffs
and DSW alone and cannot
serve to create any right of control between
DSW and its

subcontractors. Further, even to the extent the contract between Plaintiffs and DSW could

establish a right of control, the vague language on which Plaintiff's relies is not sufficient to do

so. Once again, the provision
in question “[does] not grant [DSW] the right to control the means,

methods, or details of the independent contractors' work and [is] not related to the condition . . .

that created the injury.” See Cardona v. Simmons Estate Homes I, LP, 05-14-00575-CV, 2016

WL 3014792, at *5 (Tex. App.—Dallas May 25, 2016, no pet.). Indeed, courts have held similar

provisions expressing a contractor's general responsibility for “all construction” insufficient to

establish liability for a subcontractor's acts. See id.; see also Diaz, 9 S.W.3d at 804 (contract

provision requiring general contractor to be “fully responsible for the actions of all employees

and contracted representatives” insufficient to create liability for personal injuries resulting from

subcontractor’ s work).

Further, there is record evidence that DSW fulfilled its obligations as general contractor

in a good and workmanlike
manner. As stated above, the contract between Plaintiffs and DSW

expressly permitted DSW to use subcontractors on the project.‘ To this end, DSW retained

licensed and qualified subcontractors to perform the work in question. In August 2015 Dale’s

had previously installed electrical lines/wiring/conduit from the pump to the outside of new

4 See Exhibit 3 to Exhibit A at {19 (“It is understood and acknowledged by Owner [Plaintiffs] and Contractor
[DSW] that they have selected
all ... subcontractors ... who will furnish labor, material or other services
for the
construction of said improvements.”).
15 See Exhibit C, page 26, lines 14-19, page 34, lines 8 - page 35, line 15. (setting forth Dale's licenses
and
qualifications); See Exhibit C, page 37, line 15 - page 38, line 22.
8
homes that had been constructed with DSW as the general contractor. To further ensure the

quality of the work, DSW hired Barfield Homes Inspections to perform multiple inspections on

the property.!’ They specifically performed electrical, plumbing and a final inspection at the

home before it was tumed over to the Plaintiffs.!® As such, a jury could easily determine
that

DSW acted as a reasonable and prudent general contractor in this case and performed their work

in.agood
and workmanlike manner.

Cc Section 424 of the Restatement (Second) of Torts does not salvage Plaintiffs’ claims.

Finally, Plaintiffs claim that Section 424 of the Restatement (Second) of Torts applies to

this case, and that it imposes a duty upon DSW for the acts of the independent contractors.

Section
424 does no such thing. Rather, Section
424 merely states that:

One who by statute or by administrative regulation is under a duty to provide
specified safeguards or precautions for the safety of others is subject to liability to
the others for whose protection the duty is imposed for harm caused by the failure
of acontractor employed by him to provide such safeguards or precautions.

RESTATEMENT (SECOND) Torts § 424 (1965) (emphasis added). In other words, “when a duty is

imposed by law on the basis of concems for public safety, the party bearing the duty cannot

escape it by delegating
it to an independent contractor.” MBankEl Paso, NA. v. Sanchez, 836

S.W.2d 151, 153 (Tex. 1992) (emphasis added).

The “statute or administrative regulatio Plaintiffs identify as part of their “Section 424”

argument consists of certain excerpts of the 2014 National Electrical Code, which Plaintiffs

maintain “requires
that any UF Cable that is not contained
in conduit . . . be buried
a minimum of

twenty-four (24) inches below the surface of the ground.” First and foremost, although plaintiffs

assert that the National Electric Code provisions to which they refer have been adopted by the

16 See Exhibit C, page 38, line 23 - page 39, line 18.
17 See Exhibit A, page 114, line 6- page 115, line 10; See also Exhibit 12 attached to Exhibit A; See also Exhibit 7
to Exhibit A, pages DSW 00332-00334.
18 See Exhibit A, page 114, line 6- page 115, line 10; See also Exhibit 12 attached to Exhibit A; See also Exhibit 7
to Exhibit A, pages DSW 00332-00334.
9
State of Texas, they have not cited to any actual code or regulatory provision that supports this

assertion. Further, even to the extent Plaintiffs are comect in this assertion, the National

Electrical Code does not specifically impose a duty upon general contractors.

Indeed, the very case Plaintiffs cite in support of their position shows the poverty of their

argument. Specifically, in Chapa v. Traciers & Associates, the parents of two young children

asserted claims against a financing company for mental anguish they allegedly sustained when

the financing company repossessed a vehicle while their children were still inside. 267 S.W.3d

386, 388 (Tex. App. 2008). These claims were based upon an alleged violation of Section 9.609

of the Business and Commence Code, which provided
in pertinent part :

(a) After default, a secured party:
(1) may take possession
of the collateral[.]
[ ]
(b) A secured party may proceed under Subsection (a)
[ ]
(2) without judicial process, if it proceeds without breach of the peace.

Id. at 390-91 (emphasis added). Unlike Chapa—in which the statute in question clearly applied

to the financing company as a “secured party’”— there is no similar statute and/or administrative

regulation cited by Plaintiffs in this case which specifically applies to a general contractor, such

as DSW. Thus Section 424 of the Second Restatement of Torts is inapplicable, and DSW is not

liable for the alleged negligent installation of the wire/conduit at issue by their subcontractors.

Vv
ConcLusion

As pennitted under its contract with Plaintiffs, DSW used various subcontractors to

complete construction of the Soape’s home, including the work that purportedly caused

Plaintiffs’ injuries. Plaintiffs have produced no evidence that DSW retained a right of control

over these subcontractors’ work sufficient to establish a duty of care under Texas law. Further,
10
there is available record evidence showing that DSW discharged its existing duties under the

contract in a good and workmanlike manner. Accordingly, genuine issues of material fact exist

on the question of liability, and thus, Plaintiffs motion for summary judgment should be

denied.

WHEREFORE, PREMISES CONSIDERED, Defendant DSW prays that;

1. Continue the hearing on this motion for partial summary judgment until after the

discovery referenced in the contemporaneously filed motion for continuance is

completed; and in the altemative;

the Court deny Plaintiffs’ Partial Motion for Summary Judgment as to the alleged

negligence of DSW in its entirety and for all other relief the Court finds Defendant

may be justly entitled.

Respectfully submitted,

SHEEHY, WARE & PAPPAS, P.C.

By:
GEO. -”APPAS
SBN 15454800
gpappas@ sheehyware.com
JENNIFER D. CULLY
SBN 24030026
jcully@ sheehyware.com
909 Fannin Street, Suite 2500
Houston, Texas 77010-1003
Telephone: (713) 951-1000
Facsimile: (713) 951-1199

ATTORNEYS FOR DEFENDANT
DSW HOMES, LLC

11
CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing instrument has
been forwarded to all counsel of record in accordance with the Texas Rules of Civil Procedure
on Apnil 18, 2019.

Joshua N. Bowlin
Nathaniel J. Alford, III
WALSTON BOWLIN, LLP
4299 San Felipe Street, Suite 300
Houston, TX 77027
-AND-
Kutt Amold
J. Kyle Findley
ARNOLD & ITKIN, LLP
6009 Memorial Drive
Houston, TX 77007

Linda Johnson White
ALLEN, KILLGORE & WHITE, P.C.
2323 South Voss Road, Suite 230
Houston, Texas 77057
-AND-
Robbie A. Moehlmann
Mike Prather
Natasha Bahri
WALKER WILCOX MATOUSEK LLP
1001 McKinney Street, Suite 2000
Houston, Texas 77002

Marshall G. Rosenberg
Kevin B. Tompkins
Hartline, Dacus, Barger, Dreyer LLP
1980 Post Oak Blvd, Suite 1800
Houston, Texas 77056

12
CAUSE NO. 17-CV-1506

ALLEN AND JOY SOAPE IN THE DISTRICT COURT OF

Vv.

GALVESTON COUNTY, TEXAS
DSW HOMES, LLC, AAK ELECTRIC,
LLC, and DALE’S WATER WELLS, LLC
405th JUDICIAL DISTRICT

VERIFICATION OF JENNIFER D. CULLY

STATE OF TEXAS §
§
COUNTY OF HARRIS §
BEFORE ME, the undersigned authority, on this day personally appeared, Jennifer D.
Cully, who, being duly sworn upon oath, deposes as follows:

1 My name is Jennifer D. Cully. I am a resident of Harris County, Texas, over the age of
18 years of age and have I personal knowledge of the facts set forth herein. I have never
been convicted of a felony or crime of moral turpitude. I am one of the attorneys for
Defendant DSW Homes, LLC. In this litigation.

Exhibits A is a true and correct copy of Excerpts of the Deposition of Beau Yarborough
with true and correct copies of portions of the applicable exhibits from this deposition.
Exhibits B is a true and correct copy of excerpts of the deposition of Mason Grillo.
Exhibit C is a true and correct copy of excerpts of the deposition of Dale Gore. Finally,
Exhibit D is a true and correct copy of excerpts of the deposition of William Salmeron.
All of these depositions were taken as part of this litigation.

SUBSCRIBED AND SWORN TO BEFORE ME on this the 18 day of April 2019.

prepett ttl ae
ES Mea
ppeptet tela ae
ELISA DE NIO
ASS 2937861
E OF TEXAS
3) NOTARY PU! BLIC,SIOSTNATEXP Notary Public in and for the State of Texas
MY COM MIS IRES
Cae SEPT 27, 2020
emer ppppleet ote
13
Beau Yarbrough - February 28, 2019
Job No. 3213424
——

CAUSE NO. 17-CV-1506

ALLEN AND JOY SOAPE, ) IN THE DISTRICT COURT OF

Plaintiffs, )

vs ) GALVESTON COUNTY, TEXAS

DSW HOMES, LLC, AAK

ELECTRIC, LLC AND DALE'S )
WATER WELLS, ey

Defendants. ) 405TH JUDICIAL DISTRICT

TR TR ITOK I I IR KI I IR IO IO FOO TOO ak dk kk

ORAL AND VIDEOTAPED DEPOSITION OF
BEAU YARBROUGH

10 February 28, 2019

11 FR FOR OO RR I IO IO IO IO IO TO ROR Kak

13 ORAL DEPOSITION OF BEAU YARBROUGH, taken on

14 the 28th of February, 2019, from 10:04 a.m. Ol 27 55:

LS a.m., before Paula A. Lucchesi, CSR in and for the State

16 of Texas, reported by machine shorthand, taken at the

ald offices of Sheehy, Ware & Pappas, P.c., 2500 Two Houston

18 Center, 909 Fannin Street, Houston, Texas, 77010,

19 pursuant to the Texas Rules of civil procedure and the
20 provisions stated on the record or attached hereto.
21

24 EXHIBIT
25
f
Page 1

Stratos Legal
800.971.1127 A Veritext Company 713.481.2180
Beau Yarbrough - February 28, 2019
Job No. 3213424
—
APPEARANCES

FOR THE PLAINTIFF:

Mea dosha Ni Bowlin
WALSTON & BOWLIN, ees
4299 San Felipe, Suite 300
Houston, Texas 77027
713-300-8700
Josh@walstonbowlin.com

FOR DEFENDANT DALE'S WATER WELLS, L.L.Cc.

Mr. Kevin B. Tompkins
HARTLINE, DACUS, BARGER & DREYER, [ieee
1980 Post Oak Blvd., Suite 1800
10 Houston, Texas 77056
713-951-4233
11 713-652-2419 fax
ktompkins@hdbdlaw.com
12
13 FOR DEFENDANT AAK ELECTRIC, Tap eres
14 Mr. Mike Prather
Ms. Natasha Bahri
ale WALKER, WILCOX & MATOUSEK, L.L.P.
1001 McKinney Street, Suite 2000
16 Houston, Texas e7,0,0)2)
fle She 3 273 0151610
17 713-343-6571 fax
Mprather@wwmlawyers.com
18
19 FOR DEFENDANT DSW HOMES, pe es
20 Ms Jennifer D. Cully
SHEEHY, WARE & PAPPAS, Peace
ay 2500) [wo Houston Cenmtc iy, 909 Fannin St.
Houston, Texas 77010
22 As
Joe 010 0)
jcully@sheehyware.com
23
24 VIDEOGRAPHER:
25 Robert Lara

Page 2

Stratos Legal
800.971.1127 A Veritext Company 713.481.2180
Beau Yarbrough - February 28, 2019
Job No. 3213424

INDEX
PAGE
Appearances
Stipulations
BEAU YARBROUGH
Direct Examination by Mr. Bowlin
Cross-Examination by Mr. Tompkins 160
Cross-Examination by Mr. Prather 164
Redirect Examination by Mr. Bowlin 165

Changes and Signature 168

Reporter's Certificate 170
10
11 EXHIBIT
PAGE
12 NO DESCRIPTION MARKED
13 Plaintiff's First Amended Notice to
take Deposition of Corporate
14 Representative of DSW Homes, LLC.
15 Letter to James P. Schumer from Sheila
Relea ated. 517/12) waehy attacnmentar 29
16
Contract for Rehab, Reconstruction and
17 Demolition between Deep East Texas
Council of Governments and DSW Homes
18 dated 6/0/45 — 50
19 Unemployment Insurance Employer
Response for Mason Grillo dated
20 5/1/1e. 59
21 Texas General Land Office - Disaster
Recovery Work Write-up Cost Estimate
22 dated 6/10/15. 72
23 Estimating info for the Allen P. Soape
home. 74
24
25

Page 3
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Stratos Legal
800.971.1127 A Veritext Company 713.481.2180
Beau Yarbrough - February 28, 2019
Job No. 3213424
——
PO Packet for the Soape Home in 76
Huntington, Texas.

DSW Demo Certification for the Soape
home dated 7/21/15. 97
DETCOG Purchase Order for DSW Homes
for the Soape home dated 7/16/15. 97

tO) Texas Department of Licensing and
Regulation Well Report for the Allen
Soape home dated 8/26/15. 98

alle Schedule/Call/Completion Log for the
Soape home dated 7/20 to 8/14/15 105
12 Barfield Home Inspections report for
the Soape home dated 9/17/15. 114
10
ale) DSW Homes warranty for the Soape home
11 dated 9/30/15. 123
az) a DSW Homes warranty letter to the
Soapes' with emergency phone numbers. 124
alg
15 Texas Department of Licensing and
14 Regulation Inspection Report for the
Soape home dated 11/18/16. 126
15
16 Defendant DSW LLC's Original
Homes,
16 Answer to Plaintiff's Original
Ret clon. 143
17
ei DSW Homes Purchase Order for AAK
18 Electric, Inc. for the Soape home
dated 9/8/15. 152
ao)
18 Copy of check from DSW Homes to
20 Coastal Water Well Service, Inc. dated
ays Ge 152
21
19 DSW Homes Purchase Order to Diamond
22 Electric #2 dated 10/20/14. 154
23 20 DSW Homes, LLC Subcontractor Base
Agreement for William Salmeron dated
24 4/20/13. 155
25

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Stratos Legal
800.971.1127 A Veritext Company 713.481.2180
Beau Yarbrough - February 28, 2019
Job No. 3213424

21 Contract between Diamond Electric and
DSW Homes dated 12/22/09. Sa,

22 Photo of the disconnect at the Soape
house. 163

23 DSW Homes Electrical Plan A for the
Oasis model. 165

25)

Page 5

Stratos Legal
800.971.1127 A Veritext Company 713.481.2180
Beau Yarbrough - February 28, 2019
Job No. 3213424

A So there is no formal classroom training

provided that's in his file. When he would have been

onboarded to DSW, he would have sat with another

superintendent and the program manager and gone through

our system and processes.

He would have started out shadowing for some

period of time another superintendent, our project

manager, gone to job sites with him, looked at it, gota

feel for how we run our -- run our systems, and then

10 shortly thereafter he would have been given jobs and

121 started to superintend at that -- at that point in time.

12 When was Mr. Grillo hired by DSW?

13 I can't -- do you have a copy of his employment

14 file?

ES) I do.

16 I can certainly -- it's -- there is a new hire

alt, form and his dates are on there.

18 All right. We will look at it in a minute.

ao Okay.

20 Q How would you describe DSW -- DSW's business to

21 the jury?

22 A We are a disaster recovery company that focuses

23 in on residential rehabilitation and reconstruction. We

24 act as a general contractor. We have been around since

25 2009 and have mainly focused on disaster-related

Page 27
Stratos Legal
800.971.1127 A Veritext Company 713.481.2180
Beau Yarbrough - February 28, 2019
Job No. 3213424
=

a disaster relief programs.

Q And when you say disaster relief, can you just

give us sort of a flavor for what -- what you mean by

that?

A It's mostly after a hurricane or a flood, and

most of the time when we go in it's because of

water-related -- rising water, and those are the most

disasters that we focus on.

Q Since 2009, how many homes has DSW built?

10 A Between 10 and 12,000 houses, and that's built

11 and rehabbed.

zh) Q And how are most of these projects funded?

13 A Most are funded through FEMA or CDBG, which are

14 community development block grant funds.

15 MR. PRATHER: Say that again, community --

16 THE WITNESS: Development block grant

17 funds, DR, disaster recovery on the back of it.

18 Q (By Mr. Bowlin) And that's actually a part --

19 it's a department of the U.S. Department of Urban

20 Housing and Development, correct?

21 A The CDBG funds are, yes.

22 Q Correct. And with respect to my clients, the

23 Soapes', were they a part of the CDBG funds that were

24 used to construct their home?

25 A Yes, Sana, their house was built with CDBG

Page 28

Stratos Legal
800.971.1127 A Veritext Company 713.481.2180
Beau Yarbrough - February 28, 2019
Job No. 3213424
—
a outcome and benefit?

A I guess nothing is a guarantee, but we

certainly shoot for an optimal outcome and benefit.

Q And those practices apply to the health and

safety factors and considerations when constructing a

home, correct?

A That is a consideration.

Q Do you agree with me that the

Case Info

Judge

Robinson, Jared Track Judge’s New Case

Case No.

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Document Filed Date

April 18, 2019

Case Filing Date

December 15, 2017

County

Parties

Alford, Nathaniel J., III Attorney for the Plaintiff
Arnold, Kurt B. Attorney for the Plaintiff
Barfield Home Inspections Third Party Defendant
DSW Homes, LLC Defendant
DSW Homes, LLC Third Party Plaintiff
Findley, J. Kyle Attorney for the Plaintiff
Fostel, M. Clay Attorney for the Plaintiff
Pappas, George P. Attorneys for Defendants
Pappas, George P. Attorney for the Defendant
Soape, Allen Plaintiff
Soape, Joy Plaintiff
Walston, Clifford H. Attorney for the Plaintiff
Joshua Bowlin Attorneys for Plaintiffs
Jennifer Cully Attorneys for Defendants
Michael Fostel Attorney
Marshall Rosenberg Attorneys for Defendants
Kevin Tompkins Attorney
Linda White Attorneys for Plaintiffs
Robbie Moehlmann Attorney
Michael Prather Attorney
Natasha Bahri Attorney
Jonathan Findley Attorneys for Plaintiffs
Travis Armstrong Attorneys for Defendants
Ashley Menage Attorneys for Defendants
Lara Price Attorney

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Motion-Secondary: Allen Soape, Et Al vs. DSW Homes, LLC, Et Al

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