ACCEPTED 04-14-00906-cv FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/15/2015 4:42:26 PM KEITH HOTTLE CLERK
No. 04-14-00906
IN RE: DAVID MAUK § IN THE FOURTHFILED IN 4th COURT OF APPEALS Relator § SAN ANTONIO, TEXAS § 01/15/2015 4:42:26 PM § COURT OF APPEALS KEITH E. HOTTLE § Clerk § § SAN ANTONIO, TEXAS
MOTION TO STAY TRIAL COURT PROCEEDINGS __________________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
Defendant Appellant and now real party in interest (“Relator”) herein, David
Mauk, files this Motion to Stay Trial Court Proceedings pending the Fourth Court
of Appeals’ determination of Appellant’s Notice of Interlocutory Appeal resulting
from the trial court’s denial of Defendant’s Amended Motion to Dismiss for Lack of
Jurisdiction-Tex. Civ. Prac. Rem. Code §101.106(f) (“Plea to the Jurisdiction”) and
shows:
A. INTRODUCTION
1. Adolfo Ruiz, with the law firm of McKamie Krueger, LLP, State Bar No.
17385600, is the lead counsel for the filing party. Mr Ruiz’s address and contact
information are as follows: 941 Proton Road, San Antonio, Texas 78258; telephone
no. (210) 546-21-22; fax no. (210) 546-2130; e-mail address
adolfo@mckamiekrueger.com. The record will reflect that Relator, David Mauk, is
1 a governmental employee and General Manager for the Bandera County River
Authority and Ground Water District (“BCRAGD”) a political subdivision of the
State of Texas created in 1971, by the 62nd Texas Legislature under House Bill 988
and the provisions of Article XVI, Section 59 of the Texas Constitution.1
BCRAGD’s governing body is comprised of a board of directors. Tex. Water Code
§36.051. The board may delegate to the general manager full authority to manage
and operate the affairs of the district. Tex. Water Code §36.056.
2. Relator filed his accelerated Interlocutory Appeal as a result of the trial court’s
order denying Defendant’s Plea to the Jurisdiction pursuant to Tex. R. App. P. 28.1.
Relator perfected his Interlocutory Appeal pursuant to Tex. R. App. P. 28.1 (b) by
filing his Notice of Interlocutory Appeal with the Bexar County District Clerk and
the Fourth Court of Appeals on December 22, 2014, and December 24, 2014,
respectively. Plaintiffs/Appellees received notice of the filings on the same date.
(See Appendix #1 and #2).
3. After filing Relator’s Notices of Interlocutory Appeal, Plaintiffs/Appellees
filed their Motion for Mediation on December 29, 2014, setting the motion for
hearing before the Bexar County Alternate Dispute Resolution District Judge,
Antonia Arteaga, for January 14, 2015. (See Appendix #3). Relator filed an
1 A copy of the trial court’s record was not available to Relator’s attorney in the preparation of this motion. 2 Advisory to the Court notifying Judge Arteaga of the stay of proceedings pursuant
to Tex. Civ. Prac. & Rem. Code §51.014(b) and arguing to the court at the hearing
that the trial court has no jurisdiction to consider Plaintiffs’/Appellees’ Motion for
Mediation. In the alternative, subject to Relator’s Plea to the Jurisdiction, Relator
requested Judge Arteaga to wait on ordering mediation until the determination of
Relator’s Plea to the Jurisdiction, because a ruling on the Plea to the Jurisdiction in 2 Relator’s favor will end the litigation. (See Appendix #4). Despite Relator’s
arguments, Judge Arteaga ordered that the parties participate in mediation the first
week of March 2015.
B. ARGUMENT & AUTHORITIES
4. A plea to the jurisdiction contests the trial court’s power to determine the
subject matter of the controversy. Texas Hwy. Dep’t v. Jarrell, 418 S.W. 2d 486,
488 (Tex. 1967); American Pawn & Jewelry, Inc. v. Kayal, 923 S.W. 2d 670, 672
(Tex. App. –Corpus Christi 1996, writ den’d); State v. Benavides, 772 S.W. 2d 271,
273 (Tex. App.–Corpus Christi 1989, writ den’d). Subject matter jurisdiction is
essential to the authority of the Court to decide a case. Texas Ass’n of Bus. v. Texas
Air Bd., 852 S.W. 2d 440, 443 (Tex. 1993). Want of jurisdiction arrests a cause of
action at any stage in the proceeding. Liberty Mut. Ins. Co. v. Sharp, 874 S.W. 2d
2 Relator also requested, in the alternative, that the trial court wait until after the parties dispositive motions are filed and ruled upon by the trial court. 3 736, 739 (Tex. App.–Austin 1994, writ den’d). Without subject matter jurisdiction,
a court cannot render a valid judgment. Garcia Marroquin v. Nueces County Bail
Bd., 1 S.W. 3d 336, 374 (Tex. App.–Corpus Christi 1999, n.p.h.) Subject matter
jurisdiction is not presumed and cannot be waived. Continental Copy Products Co.
v. Cazarez, 937 S.W. 2d 444, 448-49 n.2 (Tex. 1996).
5. The trial court’s denial of Relator’s Plea to the Jurisdiction is immediately
appealable under Tex. Civ. Prac. & Rem Code §51.014(a) (8).
6. The perfection of an interlocutory appeal from a trial court denying the Plea
to the Jurisdiction stays all proceedings in the trial court, including trial on the merits,
pending the resolution of the appeal. Tex. Civ. Prac. & Rem. Code §51.014(b).
7. Also, the trial court is prohibited by statute, Tex. Civ. Prac. & Rem. Code
§51.014(b), from retaining jurisdiction of trial court proceedings while an appeal
from an interlocutory order is pending. Tex. R. App. P. 29.5.
8. Irrespective of §51.014(b) statutory stay, the Appellate Court may grant a
Motion to Stay as a temporary order when an appeal from an interlocutory order is
perfected in order to preserve the Relator’s rights until the disposition of the appeal.
Tex. R. App. P. 29.3.
9. Relator is requesting a stay of the trial court proceedings because the trial
court’s order for Relator to participate in mediation at this stage interferes with or
impairs the jurisdiction of the Appellate Court, the effectiveness of any relief sought
4 by Relator, and the relief that may be granted to Relator on appeal. Before the Court
of Appeals has an opportunity to consider Relator’s filed dispositive Plea to the
Jurisdiction, the trial court determined that it has jurisdiction of this litigation and
ordered the parties to mediation in early March to obtain a final resolution of this
case. The trial court ignored Relator’s attorney’s alternative request to give the Court
of Appeals more time to make its determination on Relator’s Plea to the Jurisdiction.
The trial court’s action impairs the Appellate Court’s jurisdiction and the
effectiveness of the relief sought by Relator on appeal. Tex. R. App. P. 29.5. The
Court of Appeals’ determination of Relator’s Plea to the Jurisdiction will materially
advance the ultimate termination of the litigation by determining if the trial court has
jurisdiction to consider Plaintiffs’/Appellees’ case against Relator rendering
mediation moot if Relator’s Plea to the Jurisdiction is granted.
10. Relator includes a verification herein to establish facts not in the record and
not within the court’s knowledge in its official capacity. Tex. R. App. P. 10.2. Said
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ACCEPTED 04-14-00906-cv FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/15/2015 4:42:26 PM KEITH HOTTLE CLERK
No. 04-14-00906
IN RE: DAVID MAUK § IN THE FOURTHFILED IN 4th COURT OF APPEALS Relator § SAN ANTONIO, TEXAS § 01/15/2015 4:42:26 PM § COURT OF APPEALS KEITH E. HOTTLE § Clerk § § SAN ANTONIO, TEXAS
MOTION TO STAY TRIAL COURT PROCEEDINGS __________________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
Defendant Appellant and now real party in interest (“Relator”) herein, David
Mauk, files this Motion to Stay Trial Court Proceedings pending the Fourth Court
of Appeals’ determination of Appellant’s Notice of Interlocutory Appeal resulting
from the trial court’s denial of Defendant’s Amended Motion to Dismiss for Lack of
Jurisdiction-Tex. Civ. Prac. Rem. Code §101.106(f) (“Plea to the Jurisdiction”) and
shows:
A. INTRODUCTION
1. Adolfo Ruiz, with the law firm of McKamie Krueger, LLP, State Bar No.
17385600, is the lead counsel for the filing party. Mr Ruiz’s address and contact
information are as follows: 941 Proton Road, San Antonio, Texas 78258; telephone
no. (210) 546-21-22; fax no. (210) 546-2130; e-mail address
adolfo@mckamiekrueger.com. The record will reflect that Relator, David Mauk, is
1 a governmental employee and General Manager for the Bandera County River
Authority and Ground Water District (“BCRAGD”) a political subdivision of the
State of Texas created in 1971, by the 62nd Texas Legislature under House Bill 988
and the provisions of Article XVI, Section 59 of the Texas Constitution.1
BCRAGD’s governing body is comprised of a board of directors. Tex. Water Code
§36.051. The board may delegate to the general manager full authority to manage
and operate the affairs of the district. Tex. Water Code §36.056.
2. Relator filed his accelerated Interlocutory Appeal as a result of the trial court’s
order denying Defendant’s Plea to the Jurisdiction pursuant to Tex. R. App. P. 28.1.
Relator perfected his Interlocutory Appeal pursuant to Tex. R. App. P. 28.1 (b) by
filing his Notice of Interlocutory Appeal with the Bexar County District Clerk and
the Fourth Court of Appeals on December 22, 2014, and December 24, 2014,
respectively. Plaintiffs/Appellees received notice of the filings on the same date.
(See Appendix #1 and #2).
3. After filing Relator’s Notices of Interlocutory Appeal, Plaintiffs/Appellees
filed their Motion for Mediation on December 29, 2014, setting the motion for
hearing before the Bexar County Alternate Dispute Resolution District Judge,
Antonia Arteaga, for January 14, 2015. (See Appendix #3). Relator filed an
1 A copy of the trial court’s record was not available to Relator’s attorney in the preparation of this motion. 2 Advisory to the Court notifying Judge Arteaga of the stay of proceedings pursuant
to Tex. Civ. Prac. & Rem. Code §51.014(b) and arguing to the court at the hearing
that the trial court has no jurisdiction to consider Plaintiffs’/Appellees’ Motion for
Mediation. In the alternative, subject to Relator’s Plea to the Jurisdiction, Relator
requested Judge Arteaga to wait on ordering mediation until the determination of
Relator’s Plea to the Jurisdiction, because a ruling on the Plea to the Jurisdiction in 2 Relator’s favor will end the litigation. (See Appendix #4). Despite Relator’s
arguments, Judge Arteaga ordered that the parties participate in mediation the first
week of March 2015.
B. ARGUMENT & AUTHORITIES
4. A plea to the jurisdiction contests the trial court’s power to determine the
subject matter of the controversy. Texas Hwy. Dep’t v. Jarrell, 418 S.W. 2d 486,
488 (Tex. 1967); American Pawn & Jewelry, Inc. v. Kayal, 923 S.W. 2d 670, 672
(Tex. App. –Corpus Christi 1996, writ den’d); State v. Benavides, 772 S.W. 2d 271,
273 (Tex. App.–Corpus Christi 1989, writ den’d). Subject matter jurisdiction is
essential to the authority of the Court to decide a case. Texas Ass’n of Bus. v. Texas
Air Bd., 852 S.W. 2d 440, 443 (Tex. 1993). Want of jurisdiction arrests a cause of
action at any stage in the proceeding. Liberty Mut. Ins. Co. v. Sharp, 874 S.W. 2d
2 Relator also requested, in the alternative, that the trial court wait until after the parties dispositive motions are filed and ruled upon by the trial court. 3 736, 739 (Tex. App.–Austin 1994, writ den’d). Without subject matter jurisdiction,
a court cannot render a valid judgment. Garcia Marroquin v. Nueces County Bail
Bd., 1 S.W. 3d 336, 374 (Tex. App.–Corpus Christi 1999, n.p.h.) Subject matter
jurisdiction is not presumed and cannot be waived. Continental Copy Products Co.
v. Cazarez, 937 S.W. 2d 444, 448-49 n.2 (Tex. 1996).
5. The trial court’s denial of Relator’s Plea to the Jurisdiction is immediately
appealable under Tex. Civ. Prac. & Rem Code §51.014(a) (8).
6. The perfection of an interlocutory appeal from a trial court denying the Plea
to the Jurisdiction stays all proceedings in the trial court, including trial on the merits,
pending the resolution of the appeal. Tex. Civ. Prac. & Rem. Code §51.014(b).
7. Also, the trial court is prohibited by statute, Tex. Civ. Prac. & Rem. Code
§51.014(b), from retaining jurisdiction of trial court proceedings while an appeal
from an interlocutory order is pending. Tex. R. App. P. 29.5.
8. Irrespective of §51.014(b) statutory stay, the Appellate Court may grant a
Motion to Stay as a temporary order when an appeal from an interlocutory order is
perfected in order to preserve the Relator’s rights until the disposition of the appeal.
Tex. R. App. P. 29.3.
9. Relator is requesting a stay of the trial court proceedings because the trial
court’s order for Relator to participate in mediation at this stage interferes with or
impairs the jurisdiction of the Appellate Court, the effectiveness of any relief sought
4 by Relator, and the relief that may be granted to Relator on appeal. Before the Court
of Appeals has an opportunity to consider Relator’s filed dispositive Plea to the
Jurisdiction, the trial court determined that it has jurisdiction of this litigation and
ordered the parties to mediation in early March to obtain a final resolution of this
case. The trial court ignored Relator’s attorney’s alternative request to give the Court
of Appeals more time to make its determination on Relator’s Plea to the Jurisdiction.
The trial court’s action impairs the Appellate Court’s jurisdiction and the
effectiveness of the relief sought by Relator on appeal. Tex. R. App. P. 29.5. The
Court of Appeals’ determination of Relator’s Plea to the Jurisdiction will materially
advance the ultimate termination of the litigation by determining if the trial court has
jurisdiction to consider Plaintiffs’/Appellees’ case against Relator rendering
mediation moot if Relator’s Plea to the Jurisdiction is granted.
10. Relator includes a verification herein to establish facts not in the record and
not within the court’s knowledge in its official capacity. Tex. R. App. P. 10.2. Said
facts are set forth in Attachments #1 through #4 herein and described in the index.
C. CONCLUSION
11. An order staying the trial court proceedings is necessary not only because of
the immediate stay granted by statute Tex. Civ. Prac. & Rem. Code §51.014(b), but
because participation in court ordered mediation prior to the Court of Appeals’
determination of Relator’s Plea to the Jurisdiction, that may end the litigation, will
5 place Relator in an unfair status, by taking away or severely restricting his ability to
legally seek dismissal of the case brought by Plaintiff/Appellees against Relator.
Also, Relator will be forced to expend time and resources to participate in a good
faith mediation when dispositive issues that will be beneficial to Relator are still
outstanding. Such a circumstance makes the required good faith mediation
impossible.
D. PRAYER
For the reasons stated in this motion, Relator asks relief from the Court of
Appeals to maintain the status quo of the parties; preserve the Court of Appeals’
jurisdiction; and stay all trial court proceedings to include trial court ordered
mediation the first week of March 2015.
CERTIFICATE OF CONFERENCE
I certify that I have conferred with Appellees’ counsel, Megan H. Kucera, by
telephone about the merits of Relator’s Motion for Stay of Trial Court Proceedings
and she is opposed to the motion.
Respectfully submitted,
MCKAMIE KRUEGER, LLP 941 Proton Road San Antonio, Texas 78258 210.546.2122 Telephone 210.546.2130 Facsimile
6 CERTIFICATE OF SERVICE
I certify that a true and correct copy of Relator’s Motion to Stay Trial Court Proceedings has been served on the party listed below by electronic service and that the electronic transmission was reported as complete. My e-mail address is adolfo@mckamiekrueger.com.
Keith P. Miller Megan H. Kucera Law Offices of Keith P. Miller, PC 14350 Northbrook, Suite 150 San Antonio, Texas 78232
/s/ Adolfo Ruiz Adolfo Ruiz
8 No. 04-14-00906-CV
IN THE FOURTH COURT OF APPEALS at SAN ANTONIO, TEXAS __________________________________________________________________ DAVID MAUK
Appellant
v.
PIPE CREEK WATER WELL, LLC and ROBERT RAE POWELL
Appellees
__________________________________________________________________
Cause No. 2013-CI-00386; Appeal from the 408th Judicial District Court, Bexar County, Texas __________________________________________________________________
APPENDIX TO RELATOR’S MOTION TO STAY __________________________________________________________________
Exhibits:
TAB 1: Notice of Interlocutory Appeal and Supersedeas (Accelerated) on the Denial of Plea to the Jurisdiction, filed with the Bexar County District Clerk, and served on opposing counsel Megan Kucera via facsimile on December 22, 2014.
TAB 2: Notice of Interlocutory Appeal, filed with the Fourth Court of Appeals at San Antonio, Texas and served on opposing counsel Megan Kucera via facsimile on December 24, 2014. TAB 3: Plaintiffs’ Motion for Mediation, filed with the Bexar County District Clerk, and served by opposing counsel Megan Kucera via facsimile on December 29, 2014.
TAB 4: Defendant’s Advisory to the Court and in the Alternative, Motion to Postpone Referral of Matter to Mediation, served on opposing counsel Megan Kucera via facsimile on January 9, 2015 and filed with the Bexar County District Clerk on January 12, 2015. TAB 1 TAB 2 TAB 3 TAB 4