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CAUSE NO. 2016 48155
JAB ENERGY SOLUTIONS IT, LLC and IN THE DISTRICT COURT
ALLISON OFFSHORE SERVICES II, LLC.
OF HARRIS COUNTY, TEXAS
OFFSHORE SPECIALTY FABRICATORS,
INC., andFAIRWAY OFFSHORE
EXPLORATION, INC. 151st JUDICIAL DISTRICT
OFFSHORE DOMESTIC GROUP, LLC’S MOTION TO SEVERCLAIMS AGAINST
PLAINTIFF JAB ENERGY SOLUTIONS II, LLC
Offshore Domestic Group, LLC (“ODG” or “Movant ) files its Motion to Sever Claims
Against PlaintiffJ
AB Energy Solutions II, LLC Motion”) and would respectfully show the Court
as follows:
NTRODUCTION
ODG files its Motion before the Court seeking to sever its counterclaims from the
proceeding in an attempt to bring them to final judgment. Such Motion would not prejudice
Plaintiffs claims because ODG Motion merely seeks to resolve its counterclaims; Plaintiffs’
claims would not be impacted or disposed of. Further, justice and convenience would be served.
by severing ODG’s claims, and the Court would be well within its power to do so.
ACKGROUND
JAB Energy Solutions II, LLC (“JAB”) and Allison Offshore Services II, LLC
Allison” and together with JAB, “Plaintiffs”) originally filed suit against Offshore Specialty
Fabricators, Inc. (“OSF”) and Fairway Offshore Exploration, Inc. (“Fairway”) onJuly 21, 2016
for inter alia, breach
of contract, and sought monetary damages for funds owed under
a certain
Defined below.
Master Service Agreement (“Agreement”). On September 30, 2016, Plaintiffs promulgated their
Second Amended Petition and Jury Demand which added Alliance Energy Services, LLC
Alliance”) as a defendant, and included claims for: (1) breach of contract; (2) tortious
interference; (3) slander/defamation; and (4) business disparagement.
OSF filed its Original Answer on August 26, 2016, which included counterclaims
against JAB for suit on swom account, breach of contract, and quantum meruit. On February 2,
2017, OSF filed its Amended Answer and Counter Claim
Less than eight months
later, on October1, 2017, OSF filed its chapter
11 voluntary
petition in the United States Bankruptcy Court for the Southem District of Texas, Houston
Division, Case No. 17 35623 (“Bankruptcy Proceedings”). As part of the Bankruptcy
Proceedings, all of OSF’s rights, titles, and interests in (1) the Agreement between OSF and JAB,
and (2) the claims, rights, and remedies of OSF and/or its affiliates in this underlying case
Transferred Rights”) were assigned
to ODG (“Assignment”) on December 5, 2018. Underthe
Assignment, ODG and may prosecute, collect, settle, compromise, and grant release on the
Transferred Rights without the consent of OSF.
nAugust 7, 2020, ODG filedits Plea in Intervention, or inthe Alternative, Motion.
to Substitute Real Party in Interest Motion to Intervene”), seeking to substitute OSF, per the
Assignment. The Motion to Intervene was granted by the Court on August 17, 2020.
Thereafter, on October 16, 2020, ODG filed its Motion for Partial Summary
Judgment MPSJ”) against JAB for breach
of contract
and quantum meruit.
See Second Amended Petition
and Jury Demand, attached hereto as Exhibit A and incorporated hereinafter.
See Amended
Answer and Counter Claim, attached hereto as Exhibit _ and incorporated hereinafter.
See Order Granting, attached hereto as Exhibit and incorporated hereinafter.
See Motion for Partial Summary Judgment, attached hereto as Exhibit
After hearing arguments, the Court rendered partial summary judgment against
JAB as to ODG’s claim
for breach of contract in the amount of $4,501,902.02 plus pre and post
judgment interest at the rate of 5% per annum, and denied ODG’s claim for quantum meruit.
ODG now seeks to sever its counter claims against JAB from the claims asserted
by Plaintiffs against Fairway, Alliance, and ODG, which are separate and distinct
ODG’s counter claims to be severed
will cause
the newly severed
matter to be final
and appealable upon severance.
AW AND _RGUMENT
Texas Rule of Civil Procedure
41 provides that any claim against a party may be
severed and proceeded
with separately The Rule gives trial courts broad discretion when
determining whether to sever parties, and a decision granting severance
will not be reversed unless
the trial court has abused its discretion “The controlling reasons for severance are to do justice,
avoid prejudice and further convenience.” A claim is properly severable if (i) the controversy
nvolves more than one cause of action; (ii) the severed claim is one that would be the proper
subject of a lawsuit if independently
asserted; and (iii) the severed claim is not so interwoven
with
the remaining action that they involve the same facts and issues.'°“Fora claim to be independent
in the severance context, the claim need only be capable of having been asserted as a claim ina
separate lawsuit.”!!
See Order Granting, attached hereto as Exhibit _ and incorporated hereinafter.
w 4.
Guar. Fed. Sav. Bankv. Horseshoe Operating Co. 793 S.W.2d 652, 658 (Tex. 1990); Smith v. Tex. Farmers Ins.
Co., 82 S.W.3d 580, 587 88 (Tex.App.San Antonio 2002, pet. denied).
Guar. Fed. Sav. Bank 793 S.W.2d at 658.
Id.
Barton v. Fashion Glass and Mirror, Ltd., 321 S.W.3d 641, 647 (Tex.App Houston [14th Dist.] 2010, no pet);
see also In re Gen. Agents Ins. Co. of Am, 254 S.W.3d 670, 674 75 (Tex.App.Houston [14th Dist.] 2008, orig.
proceeding [mand. denied]).
Here, the “controversy” involves more than one cause of action: Plaintiffs’ actions
for breach
of contract, tortious interference, slander/defamation, and business disparagement, and
ODG’s action for breach of contract and quantum meruit
ODG’s action for breach of contractand the Court's finding in favor of ODG of
same more than capable of being asserted in a separate lawsuit. Assuming arguendo, that
Plaintiffs’ argue that ODG’s breach of contract claim may not be severed because it is not
independent from the remaining claims, arises out of the same transaction, andi compulsory
Plaintiffs would still fail, as that is not the test in the severance context. !7Here, ODG’s breach of
contract claim need only be capable of having been asserted as a claim in a separate lawsuit. 13
Lastly, ODG’s action for breach of contract against JAB is so interwoven with
Plaintiffs’ actions that they involve the same facts and issues. ODG’s action concemed instances
in which JAB failed to pay for work completed inJuly November of 2015. Plaintiffs’ actions go
beyond ODG’s temporal scope, and deal with events between 2014 2016. Further, Plaintiffs’
breach of contract claim that arguably has similarities to ODG’s breach of contract action actually
has two distinct components and separate temporal considerations: Fairways alleged breach with
JAB and Allison started since 2014 while OSF's alleged breach with JAB is with respect to a 2016
work order. As such, ODG’s breach of contract claim is properly severable.
Further, justice and convenience would be served by severing ODG’s claims, and
the Court would be well within its power to do so. Bringing ODG’s claims to final judgment
would streamline the issues to be presented
to the Court at Plaintiffs’ trial, and would lessen the
cost and expense
on both sides.
See Barton, 321 S.W.3d at 647.
Id. see Guar. Fed. Sav. Bank, 793 S.W.2d at 658; Collins v. Tex Mall, L.P., 297 S.W.3d 409, 418
(Tex.App.Fort Worth 2009, no pet.); Inre Gen. Agents Ins. Co. of Am , 254 S.W.3d at 673.
WHEREFORE, PREMISES CONSIDERED, ODG pray that its Motion be granted, and
rsuch other relief to which may be justly entitled.
Dated: March 12, 2021
Respectfully submitted,
HAMBERLAIN RDLICKA HITE
ILLIAMS UGHTRY
By:/s/ C. Larry Carbo, IIT
C. Lary Carbo, III
Texas State Bar No. 24031916
1200 Smith Street, Suite 1400
Houston, Texas 77002
Telephone: (713) 658 1818
Telecopier: (713) 658
larry.carbo@chamberlainlaw.com.
TTORNEY FOR NIERVENOR OFFSHORE DOMESTIC
GROUP
CERTIFICATE OF CONFERENCE
Counsel for Movant and Counsel for Plaintiffs have personally conducted a conference at
which there was a substantive discussion of every item presented to the Court in the Motion, and
despite best efforts, Counsel for Plaintiffs is opposed to Movant’s Motion
/s/ C. Larry Carbo, IIT
C. Larry Carbo, III
CERTIFICATE OF SERVICE
Thereby certify that — this 12th day of March, 2021, a true and correct copy of the above
and foregoing instrument has been served via e mail, electronic submission, U.S. Mail, and/or
certified mail, retum receipt requested, in compliance with Texas Rule of Civil Procedure 21(a)
to the following:
Kenneth P. Green
Snow Green, LLP
P.O. Box 549
Hockley, TX 77447
Counsel for Plaintiffs
/s/ C. Larry Carbo, III
C. Lary Carbo, IIT
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CAUSE NO. 2016 48155 JAB ENERGY SOLUTIONS IT, LLC and IN THE DISTRICT COURT ALLISON OFFSHORE SERVICES II, LLC. OF HARRIS COUNTY, TEXAS OFFSHORE SPECIALTY FABRICATORS, INC., andFAIRWAY OFFSHORE EXPLORATION, INC. 151st JUDICIAL DISTRICT OFFSHORE DOMESTIC GROUP, LLC’S MOTION TO SEVERCLAIMS AGAINST PLAINTIFF JAB ENERGY SOLUTIONS II, LLC Offshore Domestic Group, LLC (“ODG” or “Movant ) files its Motion to Sever Claims Against PlaintiffJ AB Energy Solutions II, LLC Motion”) and would respectfully show the Court as follows: NTRODUCTION ODG files its Motion before the Court seeking to sever its counterclaims from the proceeding in an attempt to bring them to final judgment. Such Motion would not prejudice Plaintiffs claims because ODG Motion merely seeks to resolve its counterclaims; Plaintiffs’ claims would not be impacted or disposed of. Further, justice and convenience would be served. by severing ODG’s claims, and the Court would be well within its power to do so. ACKGROUND JAB Energy Solutions II, LLC (“JAB”) and Allison Offshore Services II, LLC Allison” and together with JAB, “Plaintiffs”) originally filed suit against Offshore Specialty Fabricators, Inc. (“OSF”) and Fairway Offshore Exploration, Inc. (“Fairway”) onJuly 21, 2016 for inter alia, breach of contract, and sought monetary damages for funds owed under a certain Defined below. Master Service Agreement (“Agreement”). On September 30, 2016, Plaintiffs promulgated their Second Amended Petition and Jury Demand which added Alliance Energy Services, LLC Alliance”) as a defendant, and included claims for: (1) breach of contract; (2) tortious interference; (3) slander/defamation; and (4) business disparagement. OSF filed its Original Answer on August 26, 2016, which included counterclaims against JAB for suit on swom account, breach of contract, and quantum meruit. On February 2, 2017, OSF filed its Amended Answer and Counter Claim Less than eight months later, on October1, 2017, OSF filed its chapter 11 voluntary petition in the United States Bankruptcy Court for the Southem District of Texas, Houston Division, Case No. 17 35623 (“Bankruptcy Proceedings”). As part of the Bankruptcy Proceedings, all of OSF’s rights, titles, and interests in (1) the Agreement between OSF and JAB, and (2) the claims, rights, and remedies of OSF and/or its affiliates in this underlying case Transferred Rights”) were assigned to ODG (“Assignment”) on December 5, 2018. Underthe Assignment, ODG and may prosecute, collect, settle, compromise, and grant release on the Transferred Rights without the consent of OSF. nAugust 7, 2020, ODG filedits Plea in Intervention, or inthe Alternative, Motion. to Substitute Real Party in Interest Motion to Intervene”), seeking to substitute OSF, per the Assignment. The Motion to Intervene was granted by the Court on August 17, 2020. Thereafter, on October 16, 2020, ODG filed its Motion for Partial Summary Judgment MPSJ”) against JAB for breach of contract and quantum meruit. See Second Amended Petition and Jury Demand, attached hereto as Exhibit A and incorporated hereinafter. See Amended Answer and Counter Claim, attached hereto as Exhibit _ and incorporated hereinafter. See Order Granting, attached hereto as Exhibit and incorporated hereinafter. See Motion for Partial Summary Judgment, attached hereto as Exhibit After hearing arguments, the Court rendered partial summary judgment against JAB as to ODG’s claim for breach of contract in the amount of $4,501,902.02 plus pre and post judgment interest at the rate of 5% per annum, and denied ODG’s claim for quantum meruit. ODG now seeks to sever its counter claims against JAB from the claims asserted by Plaintiffs against Fairway, Alliance, and ODG, which are separate and distinct ODG’s counter claims to be severed will cause the newly severed matter to be final and appealable upon severance. AW AND _RGUMENT Texas Rule of Civil Procedure 41 provides that any claim against a party may be severed and proceeded with separately The Rule gives trial courts broad discretion when determining whether to sever parties, and a decision granting severance will not be reversed unless the trial court has abused its discretion “The controlling reasons for severance are to do justice, avoid prejudice and further convenience.” A claim is properly severable if (i) the controversy nvolves more than one cause of action; (ii) the severed claim is one that would be the proper subject of a lawsuit if independently asserted; and (iii) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues.'°“Fora claim to be independent in the severance context, the claim need only be capable of having been asserted as a claim ina separate lawsuit.”!! See Order Granting, attached hereto as Exhibit _ and incorporated hereinafter. w 4. Guar. Fed. Sav. Bankv. Horseshoe Operating Co. 793 S.W.2d 652, 658 (Tex. 1990); Smith v. Tex. Farmers Ins. Co., 82 S.W.3d 580, 587 88 (Tex.App.San Antonio 2002, pet. denied). Guar. Fed. Sav. Bank 793 S.W.2d at 658. Id. Barton v. Fashion Glass and Mirror, Ltd., 321 S.W.3d 641, 647 (Tex.App Houston [14th Dist.] 2010, no pet); see also In re Gen. Agents Ins. Co. of Am, 254 S.W.3d 670, 674 75 (Tex.App.Houston [14th Dist.] 2008, orig. proceeding [mand. denied]). Here, the “controversy” involves more than one cause of action: Plaintiffs’ actions for breach of contract, tortious interference, slander/defamation, and business disparagement, and ODG’s action for breach of contract and quantum meruit ODG’s action for breach of contractand the Court's finding in favor of ODG of same more than capable of being asserted in a separate lawsuit. Assuming arguendo, that Plaintiffs’ argue that ODG’s breach of contract claim may not be severed because it is not independent from the remaining claims, arises out of the same transaction, andi compulsory Plaintiffs would still fail, as that is not the test in the severance context. !7Here, ODG’s breach of contract claim need only be capable of having been asserted as a claim in a separate lawsuit. 13 Lastly, ODG’s action for breach of contract against JAB is so interwoven with Plaintiffs’ actions that they involve the same facts and issues. ODG’s action concemed instances in which JAB failed to pay for work completed inJuly November of 2015. Plaintiffs’ actions go beyond ODG’s temporal scope, and deal with events between 2014 2016. Further, Plaintiffs’ breach of contract claim that arguably has similarities to ODG’s breach of contract action actually has two distinct components and separate temporal considerations: Fairways alleged breach with JAB and Allison started since 2014 while OSF's alleged breach with JAB is with respect to a 2016 work order. As such, ODG’s breach of contract claim is properly severable. Further, justice and convenience would be served by severing ODG’s claims, and the Court would be well within its power to do so. Bringing ODG’s claims to final judgment would streamline the issues to be presented to the Court at Plaintiffs’ trial, and would lessen the cost and expense on both sides. See Barton, 321 S.W.3d at 647. Id. see Guar. Fed. Sav. Bank, 793 S.W.2d at 658; Collins v. Tex Mall, L.P., 297 S.W.3d 409, 418 (Tex.App.Fort Worth 2009, no pet.); Inre Gen. Agents Ins. Co. of Am , 254 S.W.3d at 673. WHEREFORE, PREMISES CONSIDERED, ODG pray that its Motion be granted, and rsuch other relief to which may be justly entitled. Dated: March 12, 2021 Respectfully submitted, HAMBERLAIN RDLICKA HITE ILLIAMS UGHTRY By:/s/ C. Larry Carbo, IIT C. Lary Carbo, III Texas State Bar No. 24031916 1200 Smith Street, Suite 1400 Houston, Texas 77002 Telephone: (713) 658 1818 Telecopier: (713) 658 larry.carbo@chamberlainlaw.com. TTORNEY FOR NIERVENOR OFFSHORE DOMESTIC GROUP CERTIFICATE OF CONFERENCE Counsel for Movant and Counsel for Plaintiffs have personally conducted a conference at which there was a substantive discussion of every item presented to the Court in the Motion, and despite best efforts, Counsel for Plaintiffs is opposed to Movant’s Motion /s/ C. Larry Carbo, IIT C. Larry Carbo, III CERTIFICATE OF SERVICE Thereby certify that — this 12th day of March, 2021, a true and correct copy of the above and foregoing instrument has been served via e mail, electronic submission, U.S. Mail, and/or certified mail, retum receipt requested, in compliance with Texas Rule of Civil Procedure 21(a) to the following: Kenneth P. Green Snow Green, LLP P.O. Box 549 Hockley, TX 77447 Counsel for Plaintiffs /s/ C. Larry Carbo, III C. Lary Carbo, IIT