5-18-2011 Davidson Reply Motion in Opposition by Aymondlaw

VIEWS: 20 PAGES: 15

									Case 1:05-cv-01121-DDD-CMH Document 584             Filed 05/18/11 Page 1 of 12 PageID #: 6534




                             UNITED STATES DISTRICT COURT

                            WESTERN DISTRICT OF LOUISIANA

                                   ALEXANDRIA DIVISION

      THE CITY OF ALEXANDRIA                           CIVIL ACTION NO. CV05-1121A

      VERSUS                                           JUDGE DEE D. DRELL

      CLECO CORPORATION, ET AL                         MAG. JUDGE C. MICHAEL HILL


              REPLY TO OPPOSITION TO THIRD PARTY DEFENDANT
            DAVIDSON’S MOTION FOR PARTIAL SUMMARY JUDGMENT

                                            I.
                                        Introduction

              In its response in opposition to third party defendant H. Craig Davidson’s

      Motion for Partial Summary Judgment (the “Motion”), the City of Alexandria

      (the “City”) attempts to convince the Court to adopt an interpretation of the legal

      services contract between Mr. Davidson and the City (the “contract”)1 which runs

      contrary to the clear wording of the contract and all of the facts in this case. The

      City contends that the contract was a joint venture between Mr. Davidson, Mr.

      Sharp, and the City. However, the undisputed facts in this case show that the

      contractual relationship between Mr. Davidson and the City was separate and

      distinct from Mr. Sharp’s, which relationship and understanding were

      consistently ratified and confirmed by the parties’ conduct.




      1
          Exhibit 3 of Mr. Davidson’s Motion for Partial Summary Judgment.

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                                            II.
                                     Law and Argument

      A.      The Contract establishes a separate legal relationship.

              In its opposition to Mr. Davidson’s Motion, the City contends the contract

      for legal services between Mr. Davidson and the City is unambiguous in that

      “Davidson and Sharp had a joint contingency fee contract which set forth joint

      obligations and joint compensation.”2 Mr. Davidson disagrees with the City’s

      interpretation. The contract and conduct of the parties clearly shows that the

      intent from formation through the performance of the contract was the creation

      and maintenance of a contractual relationship between Mr. Davidson and the City

      separate from the other attorneys, including Mr. Sharp.

              As a starting point, the contract is signed by Mr. Sharp and Mr. Davidson

      individually and distinctly. Both attorneys being on one agreement was for the

      convenience and expedience necessitated by immediacy and the City’s fluid and

      changing circumstances. There is a separate signature block for Mr. Davidson

      and Mr. Sharp, and both attorneys operated out of separate and distinct offices.

      Further, the contract clearly specifies it is being entered into between the City and

      Mr. Sharp and Mr. Davidson, making no mention of a joint undertaking or joint

      venture. In paragraph 2 of the contract, the contract refers to Mr. Sharp and Mr.

      Davidson in the plural, stating “[c]lient acknowledges that Attorneys have been




      2
          City’s Memorandum in Support of Opposition at 8.

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      retained . . .”3 Moreover, the fact that nearly identical contracts were entered into

      by The City with Ms. Bridget Brown and Mr. Phillip Hunter further illustrates

      that the contract envisioned distinct and separate contractual relationships

      between all attorneys.4 There is simply nothing in the terms of the contract,

      conduct of the parties, deposition testimony, or facts of this case which

      demonstrates that the contract was ever intended to be a joint venture between

      Mr. Davidson, Mr. Sharp, and the City.

             In its opposition, the City makes much of two items within the contract.

      First, the City lists the following provision of the contract as evidence of a joint

      obligation:

             Client employs and retains Attorney to represent it in all claims related to
             any and all transactions and/or any and all other relationships Client has
             or had with Cleco Corporation, Cleco Power, L.L.C., Cleco Midstream
             Resources, L.L.C., and any of their predecessors, successors, subsidiaries,
             affiliated persons and/or entities, along with any and all other parties who
             may be liable to Client (collectively "Defendant" or "Defendants"), for any
             and all claims, causes of action, damages, recoveries, and/or relief (the
             "Claim" or "Claims).

      The City, however, overlooks the fact that this exact language occurs in the

      contracts for Ms. Bridgett Brown and Mr. Phillip Hunter. Thus, Mr. Davidson,



      3
        Exhibit 3 of Mr. Davidson's Motion for Partial Summary Judgment (emphasis
      added).
      4
        A copy of Ms. Brown's Contract is attached as Exhibit 1; See also City's
      Memorandum in Support of Opposition to Motion for Summary Judgment at 2-3
      ("Bridget Brown and Phillip Hunter also executed identical but separate and
      individual documents also captioned Contract for Legal Services and Contingent
      Fee Agreement.").

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      Mr. Sharp, Mr. Hunter, and Ms. Brown all contracted to provide the exact same

      services to the City. Yet it is only with respect to Mr. Davidson and Mr. Sharp

      that the City alleges that a joint venture was created.

              Each of the four attorneys, through their respective contracts, individually

      undertook to represent the City. A “joint venture” did not arise as a matter of law

      because the object of the contract was identical, yet separate, for each attorney.

      When Mr. Sharp could not fulfill that object, the contract did not terminate as to

      Mr. Davidson as the City would have this Court believe. Under the City’s

      interpretation the mere existence of a common object denotes joint venture.

      Under such strained view, because Mr. Hunter and Ms. Brown shared identical

      contracts and contractual objects with Mr. Davidson, their withdrawal or

      termination would have also resulted in the termination of Mr. Sharp and Mr.

      Davidson. However, as this Court well knows, Mr. Sharp and Mr. Davidson

      continued to represent the City years after Mr. Hunter and Ms. Brown ceased

      their representation. The City’s interpretation is thus flawed.

              The City also points to the contract’s recitation that Mr. Davidson and Mr.

      Sharp were to “take the lead role and control all proceedings related to the

      Claims”5 as further evidence of a joint venture. The City argues that “when the

      Sharp/Davidson contract as ‘lead counsel’ was terminated, Davidson had no




      5
          Exhibit 3 of Mr. Davidson's Motion for Partial Summary Judgment.

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      role to fill in connection with the City’s case against Cleco.”6 The City

      presupposes that only Mr. Sharp could serve as “lead counsel.”

             As a starting point, it is worth noting that the phrase “lead counsel” does

      not appear in the contract at all. Further, the reference to taking a “lead role” is

      also contained in the contracts of Mr. Hunter and Ms. Brown. As the City seems

      to believe there can be only one “lead counsel,” it is difficult to reconcile their

      interpretation of this provision with its inclusion in the other contracts. The

      contract merely provides that Mr. Davidson and Mr. Sharp are each agreeing to

      “take the lead role and control all proceedings related to the Claims [against

      Cleco].” Indeed, it was this Court that requested that a single “lead counsel” be

      designated. However, the contract does not ipso facto designate Mr. Sharp as

      “lead counsel” nor does this language somehow create a joint venture between the

      two.

             Instead, Mr. Davidson and Mr. Sharp contracted individually to represent

      the City in its claims against Cleco, and they, along with Ms. Brown and Mr.

      Hunter, were to take the lead in that representation. The only difference between

      the contractual obligations of Ms. Brown, Mr. Hunter, Mr. Sharp, and Mr.

      Davidson is that the agreements with Mr. Sharp and Mr. Davidson were

      memorialized in one document for convenience and expedience as opposed to

      Ms. Brown and Mr. Hunter, who had contracts on separate pieces of paper. The

      6
       City's Memorandum in Support of Opposition to Motion for Summary
      Judgment at 2 (emphasis added).

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      provision and terms are the same for all attorneys as each entered into individual

      and separate agreements with the City for legal services.

      B.     Even if ambiguous, the parties’ contractual intent is clear.

             Although the contract terms create a separate and individual contractual

      relationship between Mr. Davidson and the City, should this court determine that

      its terms are ambiguous, then it may look to the intent of the parties. In cases in

      which the contract is ambiguous, the agreement shall be construed according to

      the intent of the parties. La. C.C. art. 2045. Intent is an issue of fact which is to

      be inferred from all of the surrounding circumstances. See Borden, Inc. v. Gulf

      States Utilities Co., 543 So.2d 924, 928 (La. App. 1 Cir. 1989).

             As set forth in the Motion, it is undisputed that the intent of the

      contracting parties was that a separate and individual contractual relationship

      between Mr. Davidson and the City be created and maintained. The City

      concedes that former City Attorney Mr. Kelvin Sanders, who solely represented

      the City during the contract negotiations, stated in his sworn deposition that the

      intent of the contacting parties (the City and Mr. Davidson) was for Mr.

      Davidson's contractual relationship with the City to be separate and apart from

      the contractual relationships of Mr. Sharp, Ms. Brown, and Mr. Hunter.7

             Further, Mr. Sanders’ testimony is corroborated by the facts in this case.

      For example, the City Council, through Ordinance No. 214-2005, authorized the

      7
        City's Memorandum in Support of Opposition to Motion for Summary
      Judgment at 9. See also Exhibit E to Memorandum.

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      mayor to enter into a professional services agreement with Mr. Sharp, Mr.

      Davidson, Ms. Brown, and Mr. Hunter individually.8 Pursuant to that Ordinance,

      each attorney entered into nearly identical contracts with the City with the same

      provision that the City now contends created a joint venture. Because the

      contract called for reimbursement of cost, Mr. Sharp and Mr. Davidson each

      applied separately for cost reimbursement. Mr. Sharp and Mr. Davidson

      maintained separate law practices and addresses. They were listed separately on

      each pleading and in the court’s docket sheet. Mr. Davidson and Mr. Sharp each

      fulfilled separate roles and had separate responsibilities throughout the case. It is

      undisputed that not only did the City and Mr. Davidson intend for the contractual

      relationship to be separate and distinct from Mr. Sharp, but the City acted

      accordingly at all times.

             Having no way to rebut this critical evidence, the City resorts instead to ad

      hominem attacks on Mr. Sanders. The City takes the position that because Mr.

      Sanders testimony does not conform to their current position, then that must

      raise a question as to his “credibility” and his testimony is tarred as “troubling”

      without any other support for such characterization.

             Mr. Sanders was the City’s sole representative in the contract negotiations.

      He testified clearly and emphatically as to the shared intent and understanding of

      the parties. His testimony is corroborated by all the facts in this case. Although it

      8
        A copy of the Council minutes and Ordinance is attached to the Motion as
      Exhibits 3 and 4 respectively.

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      is regrettable that the City is attempting to deny Mr. Davidson monies due him

      under the contract, the fact that it is doing so by resorting to essentially attacking

      itself is unusual to say the least. The City may dispute the interpretation of the

      contract, but there is no factual dispute that at the formation and during

      performance of the contract, all parties intended for Mr. Davidson’s contractual

      relationship with the City to be separate from that of Mr. Sharp. If the contract is

      in fact ambiguous, then this shared intent controls, and the court should grant

      Mr. Davidson’s request for partial summary judgment accordingly.

      C.        The City never terminated Mr. Davidson’s contractual
                relationship

                In its opposition, the City claims confusion over whether Mr. Davidson

      seeks summary judgment finding he was never terminated as counsel or was

      never withdrawn as counsel.9 Mr. Davidson’s Motion clearly sets out those

      questions are interrelated. The City contends that Mr. Davidson’s representation

      was essentially terminated two ways. The first is that he was terminated by

      operation of law when Mr. Sharp was terminated. The City takes the position

      that the contract was a joint venture between Mr. Sharp and Mr. Davidson, and

      Mr. Sharp’s termination “also constituted the termination of Davidson.”10

      However, as set forth supra, there was no joint venture and Mr. Davidson’s



      9
        See City's Memorandum in Support of Opposition to Motion for Summary
      Judgment at 2.
      10
           Id., at 9.

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      contractual relationship with the City was separate and distinct from that of Mr.

      Sharp. The termination of Mr. Sharp had no more effect on Mr. Davidson’s

      contractual relationship between with the City than did the termination of Ms.

      Brown or the withdrawal of Mr. Hunter. Moreover, the City behaved as if the

      contractual relationship still existed even after Mr. Sharp’s termination. The City

      chose not to have Mr. Davidson removed as counsel of record, listed him in

      pleadings, and continued to provide him with privileged and confidential

      information.

              The City also contends that Mr. Davidson was also affirmatively

      terminated in a phone call by City Attorney Charles Johnson. However, the facts

      show that Johnson merely asked Davidson to take no action on a matter because

      the Mayor and administration wanted to engage in “political solutions” in the

      case. The undisputed facts illustrate that Mr. Davidson’s contractual relationship

      was never terminated, and he was never withdrawn as counsel of record for the

      City.

              Unlike Mr. Sharp, Mr. Hunter, and Ms. Brown, Mr. Davidson’s supposed

      termination was never memorialized in writing. Procedurally, unlike the other

      three attorneys, the City never filed a motion to withdraw Mr. Davidson as

      counsel of record as required by Local Rule 83.2.11, which states "[t]he original

      counsel of record shall be held to represent the party for whom he or she appears

      unless the court permits him or her to withdraw from the case." Motions to



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    withdraw were filed for all discharged attorneys in this case, but not for Mr.

    Davidson. This evidences that the City not only believed that Mr. Davidson

    remained as its counsel, but that the City desired him to be. Otherwise, his name

    would have been included in the October 10, 2008, motion to withdraw Mr.

    Sharp as counsel for the City. If Mr. Davidson was in fact terminated along with

    Mr. Sharp, there is no plausible explanation for why Mr. Davidson would not be

    included on this pleading or treated as if he had been discharged.

             The City’s opposition conveniently ignores that even after Mr. Sharp’s

    termination, Charles Johnson sent Mr. Davidson a privileged and confidential

    memorandum,11 Mr. Johnson asked Mr. Davidson to perform tasks,12 and Mr.

    Davidson was listed as counsel for the City of Alexandria in a pleading filed on

    March 5, 2009.13 The City now contends Mr. Davidson’s inclusion was a factual

    error, but when taken in context with the other evidence this “error” clearly

    illustrates that Mr. Sharp’s termination did not end Mr. Davidson’s contractual




    11
      See email of October 2, 2008, from Charles Johnson to Mr. Davidson attaching
    Summary of Major Revisions to CLECO-Alexandria PSA attached as Exhibit 13 of
    the Motion.
    12
       In an email from Charles Johnson to Mr. Davidson on October 6, 2008, Mr.
    Johnson writes, “I need you to provide me with a list of documents which the
    COA contends to be our business records. asap Chuck.” In another email of June
    9, 2009, Mr. Johnson requests that Mr. Davidson provides him with a “copy of
    the slemco balancing authority agreement.” These emails are attached as Exhibit
    13 to the Motion.
    13
         Exhibit 14 of the Motion.

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    relationship with the City, and the City never withdrew him as counsel for the

    City.

                                         III.
                                       Conclusion

            Based on the foregoing, Mr. Davidson respectfully reasserts that there is

    no genuine issue of material fact preventing the granting of his motion for partial

    summary judgment. Mr. Davidson therefore requests that this Court hold that

    Mr. Davidson had a separate and individual contract relationship with the City,

    and that the City did not terminate that contractual relationship.



                                              Respectfully submitted,

                                              s/Michael Reese Davis
                                              Michael Reese Davis, (LBN# 17529)
                                              Hymel Davis & Petersen, LLC
                                              10602 Coursey Blvd.
                                              Telephone: (225) 298-8118
                                              Facsimile: (225) 298-8119
                                              mdavis@hymeldavis.com




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                                CERTIFICATE OF SERVICE

           I hereby certify that on May 18, 2011, a copy of the foregoing was

    electronically filed with the Clerk of Court using the CM/ECF system. Notice of

    this filing will also be sent to all counsel of record by operation of the court’s

    electronic filing system. I also certify that I have mailed by United States Postal

    Service this filing to the following non-CM/ECF participant: William L.

    Townsend.


                                                s/Michael Reese Davis
                                                Michael Reese Davis, (LBN# 17529)
                                                Hymel Davis & Petersen, LLC
                                                10602 Coursey Blvd.
                                                Baton Rouge, LA 70816
                                                Telephone: (225) 298-8118
                                                Facsimile: (225) 298-8119
                                                mdavis@hymeldavis.com




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