in Re Descon Construction, L.P.

Opinion

ACCEPTED

04-15-00276-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

5/4/2015 9:23:55 PM

KEITH HOTTLE

CLERK

04-15-00276-CV _

NO. ______________

INRE: § IN THE FOURTH FILED IN § 4th COURT OF APPEALS SAN ANTONIO, TEXAS

DESCON CONSTRUCTION, L.P., § COURT OF APPEALS 5/4/2015 9:23:55 PM

§ KEITH E. HOTTLE Relator. § Clerk SAN ANTONIO, TEXAS

RELATOR'S MOTION FOR EMERGENCY STAY

Relator asks the Court for an emergency stay of the trial and proceedings in the

District Court. This case is set for trial on the trial court's docket on May 11, 2015 at 9:00

a.m. Therefore, Relator respectfully requests that this Court waive the ten day period for

considering motions pursuant to Tex. R. App. P. 10.3(3) and issue a ruling granting stay on

or before May 8, 20 15.

A. Introduction

1. Relator is Descon Construction, L.P.; real party interest is Rio Grande City

Consolidated Independent School District.

2. Respondent is The Honorable Ana Lisa Garza, Judge Presiding in the 229th

Judicial District Court of Starr County, Texas.

3. Real Party in Interest, Rio Grande City Consolidated Independent School

District, filed suit against Des con Construction, L.P. in the 229th Judicial District, Starr

County, Texas, in the case styled Rio Grande City Consolidated Independent School District

v. Descon Construction L.P., Cause No. DC-14-46.

4. Relator attaches a certificate of compliance certifYing that on May 4, 2015, they

notified Real Party in Interest by telephone that a motion for temporary relief would be filed.

I

Tex. R. App. P. 52.10(a). This motion is being served on Real Party in Interest and

Respondent electronically contemporaneously with the filing of this motion.

5. Relator has filed a petition for writ of mandamus, served on both the Real Party

in Interest and Respondent, establishing its right to mandamus relief based on Respondent's

orders which allowed Real Party in Interest to name six new individuals and entities as

defendants a week before trial, despite the fact that none of the newly named individuals and

entities have been served and are not before the Court.

Respondent has been notified that underlying counsel does not represent the newly

added parties and that there may be a conflict between the parties. Nonetheless, the Court

ordered counsel for Relator to provide information regarding those entities on one hour'

notice without having the opportunity to contact counsel for any of the entities. It is believed

that similar demands would be made on issues including disclosure of evidence and securing

the witnesses for trial. Respondent denied Relator's motion to abate or motion for

continuance so that service could be had and counsel for the entities could appear.

Trial, which is projected to last three to four weeks, is less than one week away. As

of this date, Relator does not know if the newly named parties will waive service and appear

at trial, or allow a default to be taken against them. In either instance, due to the timing of

Respondent's actions, it may not be possible to develop an appellate record that adequately

preserves the defenses to the allegation that Relator is jointly and severally liable with the

newly named individuals and entities.

3

In the absence of a stay, the subject matter of this mandamus will be mooted by trial.

If Relator is forced to proceed to trial in this construction defect case under the theory that

it is jointly and severally liable with six unserved entities and individuals with whom it may

be adverse, its appellate rights will be compromised. Additionally, Relator will suffer

irreparable injury and overwhelming loss of resources which, in all likelihood, cannot be

fully remedied on appeal or in a subsequent proceeding.

6. Real Party in Interest Rio Grande City Consolidated Independent School

District does not agree to this motion. The remaining parties either agree to this motion or

have not responded to attempts to confer, but are believed, in good faith, to be in agreement

with this motion as set forth in the attached affidavit.

B. Argument & Authorities

7. The Court may grant temporary relief pending its determination of an original

proceeding. Tex. R. App. P. 52.10(b).

8. This emergency stay is necessary to maintain the status quo of the parties and

to preserve the Court's jurisdiction to consider the merits of the original proceeding. In re

Reed, 901 S.W.2d 604,609 (Tex. App.-San Antonio 1995, orig. proceeding).

9. This motion is verified by counsel for Relator.

C. Conclusion

10. Relator seeks mandamus relief to preserve its rights to develop a defense and

appellate record. In the absence of mandamus relief, Relator will be allocated liability for

individuals and entities who are not before the Court. This case is set on the court's docket

4

for May 11, 2015 at 9:00a.m. If stay is not granted, this mandamus will be rendered moot

by trial.

D. Prayer

11. For the reasons stated in this motion, Relator asks the Court for an emergency

stay to maintain the status quo of the parties and preserve the Court's jurisdiction to consider

the merits ofRe1ator's original proceeding.

5

Respectfully submitted,

COKINOS, BOSIEN & YOUNG 10999 IH-10 West, Suite 800 San Antonio, Texas 78230 (210) 293-8700 (Office) (210) 293-8733 (Fax)

Date: May4,2015 By: u~~ Karen L. Landinger State Bar No. 00787873 klandinger@cbylaw.com Stephanie O'Rourke State Bar No. 15310800 sorourke@cbylaw .com Stanley W. Curry, Jr. State Bar No. 05274000 scurry@cbylaw.com Robert M. Smith State Bar No. 18677400 rmsmith@cbylaw.com GabrielS. Head State Bar No. 24055642 ghead@cbylaw.com

ATTORNEYS FOR RELATOR, DESCON CONSTRUCTION, L.P.

6

CERTIFICATE OF SERVICE

I ce1iify that a copy of Relator's Motion for Emergency Stay was served on the following on May 4, 2015, before 10:00 p.m. local time of the recipient as indicated:

RESPONDENT The Honorable Ana Lisa Garza District Judge 229'h Judicial District Court of Starr County Starr County Courthouse 401 N. Britton Avenue, Room 304 Rio Grande City, Texas 78582 (956) 487-2636 (Office) (956) 487-4093 (Fax) alglaw 1@aol.com asaenz@co.starr .tx. us

INTERESTED PARTIES Attorneys for Interested Party, Rio Grande City CISD Norman Jolly Michael B. Jolly Law Office of Norman Jolly 405 Main, Suite 1000 Houston, Texas 77002 (713) 237-8383 (Office) (713) 237-8385 (Fax) normanjollvoc@sbcglobal.net mikejolly@aol.com lawjp@earthlink.net ericjarvis@rocketmail.com twentysixpoint2@me.com medina nancy@sbcglobal.net

Attorneys for Interested Party, Rio Grande City CISD Mmiie Garcia Vela I 00 West 5th Street Rio Grande City, Texas 78582 (956) 488-8170 (Office) (956) 488-8129 (Fax) mmiie.garcia@gmail.com

7

Attorneys for Interested Party, ERO International, L.L.P. John R. Griffith Griffith Law Group 801 E. Fern Avenue, Suite 170 McAllen, Texas 78501 (956) 971-9446 (Office) (956) 971-9451 (Fax) jrg@rgvfirm.com gh@rgvfirm.com

Attorneys for Interested Party, Halff Associates, Inc. and Menton J. Murray, III, P.E. Grant Gealy Mills Shirley, L.L.P. 3 Riverway, Suite 100 Houston, Texas 77058 (713) 571-4206 (Office) (713) 225-0844 (Fax) ggealy@millsshirley.com psutton@millsshirley.com

Attorneys for Interested Patiy, AAS Consulting, Inc. d/b/a Advance Air Systems Douglas M. Walla Andrew M. Williams & Associates 5909 West Loop South, Suite 550 Bellaire, Texas 77401 (713) 840-7321 (Office) (713) 839-1302 (Fax) doug@amwlawfirm.com admin2@amwlawfinn.com admin1@amwlawfirm.com

Attorneys for Interested Party, C.A. Ray & Son Painting Contractors, Inc. Marc E. Villarreal R. Kyle Hinkle Hinkle & Villarreal, P.C. 719 S. Shoreline Blvd., Suite 300 Corpus Clu·isti, Texas 78401 (361) 883-0620 (Office) (361) 883-0612 (Fax) mvillarreal@southtxdefense.com rkhinkle@southtxdefense.com afrees@southtxdefense.com

8

Attorneys for Interested Party, Faires Plumbing Co., Inc. David J. Dunn Dunn, Weathered, Coffey, Rivera & Kasperitis, P.C. 611 S. Upper Broadway Corpus Christi, Texas 7840 I (361) 883-1594 (Office) (361) 883-1599 (Fax) Dunndj@swbell.net vanesa@dwcrk.net kellycreel@swbell.net

Attorneys for Interested Party, Limon Masonry, Inc. Brian C. Lopez Brittany C. Cooperrider Engvall & Lopez, L.L.P. 1811 Bering, Suite 210 Houston, Texas 77057 (713) 787-6700 (Office) (713) 787-0070 (Fax) blopez@eltexaslaw.com bcooperrider@eltexaslaw.com mmufti@eltexaslaw.com

Attorneys for Interested Party, C & M Contracting, Inc. David C. Garza Liliana Elizondo Garza & Garza, L.L.P. 680 East St. Charles, Suite 300 P.O. Box 2025 Brownsville, Texas, 78250 (956) 541-4914 (Office) (956) 542-7403 (Fax) dgarza@garzaandgarza.com lelizondo@garzaandgarza.com

9

Attorneys for Interested Party, RGV -R&R Construction Services, L.L.C. David W. Medack James P. Davis Heard & Medack, P.C. 9494 Southwest Freeway, Suite 700 Houston, Texas 77074 (713) 772-6400 (Office) (713) 772-6495 (Fax) dmedack@heardmedackpc.com jdavis@heardmedackpc.com Mloonahm@heardmedackpc.com Chernandez@heardmedackpc.com

Attorneys for Interested Party, Daniel Vasquez, Individually and d/b/a Twin City Glass John A. Guerra Louis A. Gross Brock Person Guerra Reyna, P.C. 17339 Redland Road San Antonio, Texas 78247-2304 (210) 979-0100 (Office) (210) 979-7810 (Fax) jguerra@bpgrlaw.com lgross@bpgrlaw.com cvaldez@bpgrlaw.com cmahoney@bpgrlaw.com laniol@bpgrlaw.com

Attorneys for Interested Party, Zarate Suspended Ceiling, Inc. John A. Guerra Louis A. Gross Brock Person Guerra Reyna, P.C. 17339 Redland Road San Antonio, Texas 78247-2304 (21 0) 979-0 I 00 (Office) (210) 979-7810 (Fax) jguerra@bpgrlaw.com lgross@bpgrlaw.com cvaldez@bpgrlaw.com cmahoney@bpgrlaw.com laniol@bpgrlaw.com

10

Attorneys for Interested Party, Zarate Suspended Ceiling, Inc. Michael G. Dunnahoo Rymer, Moore, Jackson & Echols, P.C. 2801 Post Oak Blvd., Suite 250 Houston, Texas 77056 (713) 626-1550 (Office) (713) 626-1558 (Fax) mdunnahoo@rmjelaw.com lkelly@rmjelaw.com

Attorneys for Interested Party, D&J Site Construction, Inc. David J. Dunn Dunn, Weathered, Coffey, Rivera & Kasperitis, P.C. 611 S. Upper Broadway Corpus Christi, Texas 78401 (361) 883-1594 (Office) (361) 883-1599 (Fax) Dunndj@swbell.net vanesa@dwcrk.net kellycreel@swbell.net

Attorneys for Interested Patty, Perez Consulting Engineers Gregory N. Ziegler Dean Siotos Macdonald Devin, P.C. 3800 Renaissance Tower 1201 Elm Street Dallas, Texas 75270-2130 (214) 744-3300 (Office) (214) 747-0942 (Fax) Gziegler@MacdonaldDevin.com dsiotos@macdonalddevin.com mwhite@macdonalddevin.com Lholsomback@macdonalddevin.com Dpainter@macdonalddevin.com

11

Attorneys for Interested Party, KBM Air Conditioning, Inc. Jason L. West Brock Person Guerra Reyna, P .C. 17339 Redland Road San Antonio, Texas 78247-2302 (210) 979-0100 (Office) (210) 979-7810 (Fax) jwest@bpgrlaw.com

KAREN L. LANDINGER

12

STATE OF TEXAS § BEXAR COUNTY §

AFFIDAVIT OF ROBERT M. SMITH

Before me, the undersigned notary, on this day personally appeared ROBERT M. SMITH, the affiant, a person whose identity is known to me. After I administered an oath to affiant, affiant testified:

1. "My name is ROBERT M. SMITH. I am over 18 years of age, of sound mind, and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct.

2. "Relator has filed a petition for writ of mandamus contemporaneously with this Motion.

3. "This case is set for trial on the trial court's docket for May 11, 2015 at 9:00a.m.

4. "All interested parties affected by this motion have been notified of the filing of the mandamus and of Relator's request for emergency relief to stay the underlying proceedings.

5. "Real Party in Interest Rio Grande City Consolidated Independent School District opposes this motion."

6. "Defendants Halff Associates, Inc., and Menton J. Mmmy III P.E. agree to this motion."

7. "Defendant D & J Site Construction, Inc., agrees to this motion"

8. "Defendant Faires Plumbing Co., Inc., has been granted summmy judgment in this case, but affirmatively stated that it has no opposition to this motion."

9. "Defendant Limon Masomy Inc., is unopposed to this motion."

10. "Defendant ERO International, LLP., Daniel Block, & Eli R. Ochoa, are not opposed to this motion.

11. "Defendant C&M Contracting, Inc., is not opposed to this motion."

12. "Defendants Daniel Vasquez, Individually and dba Twin City Glass, and Zarate Suspended Ceiling, Inc., has not responded to undersigned's attempts to confer as of the time of filing."

13. "Defendants AAS Consulting, Inc., dba Advance Air Systems, C.A. Ray & Son Painting Contractors, Inc., RGV -R&R Construction Services LLC., Perez Consulting

13

Engineers and KBM Air Conditioning, Inc., have been granted summmy judgment and are no longer in this suit."

FURTHER AFFIANT SA YETH NOT.

Sworn to and subscribed before me by ROBERT M . SMITH on this, the 4th day of May, 2015.

Notary Public in and for the State of Texas

14

CERTIFICATE OF CONFERENCE AND COMPLIANCE

Under Texas Rule of Appellate Procedure 52.1 O(a), I certifY that on May 4th, 2015, I notified Rio Grande City Consolidated Independent School District, through counsel of record, Norman Jolly, by telephone that a motion for temporary relief would be filed. A copy of this motion was served on Norman Jolly electronically at the time of filing. All other pmiies to this proceeding were also notified that a motion for tempormy relief would be filed and were electronically served.

KAREN L. LANDINGER Attorney for Relator