David Mauk v. Pipe Creek Water Well, LLC and Robert Rae Powell

Opinion

ACCEPTED 04-14-00906-cv FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/19/2015 3:46:30 PM KEITH HOTTLE CLERK

NO. 04-14-00906-CV

IN THE FOURTH COURT OF APPEALS FILED IN - at SAN ANTONIO, TEXAS 4th COURT OF--APPEALS - ---- SAN ANTONIO, --- - TEXAS - - ---- LE ------ 01/19/2015 - ID3:46:30 - - PM - ---- VO ------ DAVID MAUK KEITH---E. -- HOTTLE - ---- Clerk Appellant

v. FILED IN 4th COURT OF APPEALS PIPE CREEK WATER WELL, LLC and ROBERT RAE POWELL SAN ANTONIO, TEXAS 01/20/2015 12:51:00 PM Appellees KEITH E. HOTTLE Clerk

Cause No. 2013-CI-00386; Appeal from the 408th Judicial District Court; Bexar County, Texas

RESPONSE TO MOTION TO STAY TRIAL COURT PROCEEDINGS

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COME Plaintiffs and Respondents, PC DRILLING AND SERVICE, LLC d/b/a

PIPE CREEK WATER WELL, LLC and ROBERT RAE POWELL, and present this, their

Response to Defendant and Relator DAVID MAUK’s Motion to Stay Trial Court Proceedings

and would show the following:

1. On January 9, 2013, Plaintiffs filed their Original Petition against DAVID MAUK

in his individual capacity for certain defamatory statements made by him outside the course and

scope of his employment as General Manager for the Bandera County River Authority and

Groundwater District. Shortly thereafter, Defendant filed his first Motion to Dismiss, alleging

1 - Response to Motion to Stay Trial Court Proceedings the trial Court did not have jurisdiction pursuant to Texas Civil Practice and Remedies Code

§101.106(f). On or about April 22, 2013, after examining the pleadings and hearing the

arguments of counsel, the Honorable Judge Cathleen Stryker denied Defendant’s Motion without

prejudice. More than a year later, on October 8, 2014, Defendant filed a second Amended

Motion to Dismiss for Lack of Jurisdiction again alleging the trial Court did not have jurisdiction

pursuant to Texas Civil Practice and Remedies Code §101.106(f). On or about December 8,

2014, after examining the pleadings and hearing the arguments of counsel, Defendant’s Second

Motion to Dismiss was denied by the Honorable Richard Price.

2. On December 22, 2014, Defendant filed its Notice of Interlocutory Appeal. On

December 29, 2014, Plaintiffs filed a Motion for Mediation. Plaintiffs’ Motion was heard by the

Honorable Antonia Arteaga on January 14, 2014, and after hearing the arguments of counsel,

Judge Arteaga order the parties to mediate this case with mediator, Joseph Casseb, the first week

of March, 2015. Defendant and Relator now seek a stay of that mediation from this Honorable

Court.

3. This State has a strong policy favoring the use of alternative dispute resolution. It

is Plaintiffs’ desire to mediate this case in March and attempt to reach an amicable settlement

with the Defendant. This matter has been pending for more than two years. Discovery is

substantially complete and the question of the trial Court’s jurisdiction has been twice examined

and on both occasions, affirmed. This case is ripe for mediation and there is a reasonable

probability of settlement.

4. Texas Civil Practice and Remedies Code § 51.014(b) does not prohibit the trial

court from retaining jurisdiction or provide for an automatic stay of the trial court proceedings as

2 - Response to Motion to Stay Trial Court Proceedings alleged by Defendant and Relator. Tex. Civ. Prac. & Rem. Code § 51.014 (Vernon 2014). Texas

Civil Practice and Remedies Code §51.014(a) clearly enumerates twelve specific types of

interlocutory appeals which are entitled to an automatic stay of trial or all trial court proceedings

under § 51.014(b). Id. at § 51.014(a). Section 51.014(a)(8), the provision relied upon by

DAVID MAUK, provides for a stay upon an the interlocutory appeal from an order granting or

denying of plea to the jurisdiction filed by a “governmental unit” as that term is defined by §

101.001. Id. at § 51.014(a)(8). Because DAVID MAUK is not a “governmental unit” as defined

by § 101.001, he is not statutorily entitled to an automatic stay of all trial court proceedings. Id.

at § 101.001. Any stay of the mediation or other trial court proceedings would be at the

discretion of this Honorable Court.

WHEREFORE, PREMISES CONSIDERED, PC DRILLING AND SERVICE, LLC

d/b/a/ PIPE CREEK WATER WELL, LLC and ROBERT RAE POWELL pray that the Court

deny Relator DAVID MAUK’s Motion to Stay Trial Court Proceedings and allow this case to

proceed to mediation as ordered.

Respectfully submitted,

Law Offices of Keith P. Miller, P.C. Independence Plaza II 14350 Northbrook, Suite 150 San Antonio, Texas 78232 Tel: (210) 524-9040 Fax: (210) 267-2982 /s/ Megan Kucera By:___________________________ KEITH P. MILLER State Bar No. 14093725 MEGAN H. KUCERA State Bar No. 24076449 Attorneys for Plaintiffs

3 - Response to Motion to Stay Trial Court Proceedings CERTIFICATE OF SERVICE

I hereby certify by my signature below that a true and correct copy of the foregoing has been served by:

___ Certified Mail Return Receipt Requested ___ First Class Mail _X_ Telecopier and/or ___ Hand-delivery ___ EService

To the following:

William M. McKamie Adolfo Ruiz McKamie Kruger, LLP 941 Proton Road San Antonio, Texas 78258 Telecopier: (210) 546-2130 adolfo@mckamiekrueger.com

On the 19th day of January, 2015.

/s/ Megan Kucera ________________________________ Megan H. Kucera

4 - Response to Motion to Stay Trial Court Proceedings