VIEWS: 20 PAGES: 15 POSTED ON: 5/20/2011
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. 1 Case 1:05-cv-01121-DDD-CMH Document 584 Filed 05/18/11 Page 2 of 12 PageID #: 6535 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. 2 Case 1:05-cv-01121-DDD-CMH Document 584 Filed 05/18/11 Page 3 of 12 PageID #: 6536 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."). 3 Case 1:05-cv-01121-DDD-CMH Document 584 Filed 05/18/11 Page 4 of 12 PageID #: 6537 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. 4 Case 1:05-cv-01121-DDD-CMH Document 584 Filed 05/18/11 Page 5 of 12 PageID #: 6538 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). 5 Case 1:05-cv-01121-DDD-CMH Document 584 Filed 05/18/11 Page 6 of 12 PageID #: 6539 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. 6 Case 1:05-cv-01121-DDD-CMH Document 584 Filed 05/18/11 Page 7 of 12 PageID #: 6540 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. 7 Case 1:05-cv-01121-DDD-CMH Document 584 Filed 05/18/11 Page 8 of 12 PageID #: 6541 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. 8 Case 1:05-cv-01121-DDD-CMH Document 584 Filed 05/18/11 Page 9 of 12 PageID #: 6542 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 9 Case 1:05-cv-01121-DDD-CMH Document 584 Filed 05/18/11 Page 10 of 12 PageID #: 6543 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. 10 Case 1:05-cv-01121-DDD-CMH Document 584 Filed 05/18/11 Page 11 of 12 PageID #: 6544 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 firstname.lastname@example.org 11 Case 1:05-cv-01121-DDD-CMH Document 584 Filed 05/18/11 Page 12 of 12 PageID #: 6545 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 email@example.com 12 Case 1:05-cv-01121-DDD-CMH Document 584-1 Filed 05/18/11 Page 1 of 3 PageID #: 6546 Case 1:05-cv-01121-DDD-CMH Document 584-1 Filed 05/18/11 Page 2 of 3 PageID #: 6547 Case 1:05-cv-01121-DDD-CMH Document 584-1 Filed 05/18/11 Page 3 of 3 PageID #: 6548
"5-18-2011 Davidson Reply Motion in Opposition"