ACCEPTED 01-15-00349-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 6/2/2015 3:46:15 PM CHRISTOPHER PRINE CLERK
No. 01-15-00349-CV
FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS AT HOUSTON 6/2/2015 3:46:15 PM CHRISTOPHER A. PRINE Clerk
IN RE MANHATTAN I VAUGHN, JVP
Original Proceeding Regarding Cause No. 2013-76550 In the 80th Judicial District Court of Harris County, Texas
RELATOR'S REPLY TO REAL PARTIES IN INTEREST'S RESPONSE TO RELATOR'S PETITION FOR WRIT OF MANDAMUS
J.J. Knauff State Bar No. 24032517 jknauff@tmlfpc.com Michael A. Miller State Bar No. 14100650 mmiller@tmlfpc.com Clark S. Butler State Bar No. 00793437 cbutler@ tmlfpc.com
THE MILLER LAW FIRM 3811 Turtle Creek Blvd., Suite 1950 Dallas, Texas 75219-4535 (469) 916-2552 (469) 916-2555- Telefax COUNSEL FOR RELATOR MANHATTAN I VAUGHN, JVP
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
Table of Contents ..................................................................................................... 11
Index of Authorities ................................................................................................. iii
Arguinent ................................................................................................................... 1
1. Su1nn1ary of Argun1ent .................................................................................... 1
2. Rebuttal to Appellee's Brief. ........................................................................... 1
Prayer for Relief ...................................................................................................... 12
Ce1iificate of Service .............................................................................................. 13
Certificate of Compliance ....................................................................................... 13
Verification .............................................................................................................. 14
11 INDEX OF AUTHORITIES
Cases
In re BP Prods. N. Am., Inc., 263 S.W.3d 106 (Tex. App.-Houston [1st Dist.] 2006, orig. proceeding) .... 2
Rules
TEX. DISCIPLINARY R. OF PROF. CONDUCT 3.08 ...................................................... 11
TEX. R. CIV. P. 193 ................................................................................. 5, 6, 9-10, 10
111 ARGUMENT
1. Summary of Argument.
Respondent's Order violated Relator's due process rights because there was
no notice of a hearing on the First Amended Third Motion to Compel.
Additionally, Respondent abused his discretion by granting more relief than was
requested by requiring production of the Privileged Notes and Box that were not
the subject of any valid, pending noticed motion. Finally, Respondent abused his
discretion by ordering production of the Privileged Notes when they were clearly
subject to the attorney-client and/or work product privileges because they were
created after counsel was hired, after litigation was anticipated, and the Privileged
Notes were transcribed by a representative acting upon instructions from counsel.
2. Rebuttal to Response by Real Parties in Interest.
A. Real Parties In Interest incorrectly recite the factual/procedural history of this case by asserting that Relator failed to comply with the trial court's instruction when such an assertion is not supported by the record.
The Real Parties In Interest (hereinafter "Plaintiffs") assert the trial comi
instructed Relator to "produce all documents responsive to Plaintiffs' requests or
submit a privilege log for documents claimed to be protected by attorney-client
privilege for in camera review. Contrary to the [trial court's] instruction, Relator
produced a privilege log claiming attorney-client and work product privileges for
Reply to Response to Petition for Writ of Mandamus Page 1 all documents contained in the box" (Response ~ 11 ). The foregoing assertion that
Relator acted in a manner that was contrary to the trial court's instruction is
demonstrably false because the trial court did not limit its instruction to just
attorney-client privilege as shown in the following hearing excerpts:
I'm going to order the Defendant to prepare a privilege log to documents that sound like they may be responsive but to which you're claiming a privilege. Then those documents can be reviewed in camera by the Court.
(TAB 1 10 p. 27/18-24).
If it's not in the box and you haven't turned over to the Plaintiff everything in the box, then at least prepare a log so we understand what it is that either hasn't been produced to them or the Court so they have the ability to challenge it if they believe it's something that's discoverable that you haven't produced.
(TAB 10 p. 58/4-10). The foregoing insttuctions by the trial court were clear,
concise, and not limited to only "atton1ey-client privilege" as Plaintiffs have
alleged. In fact, Jason Gibson, counsel for Plaintiffs, restated the trial comi's
instruction when he stated:
[T]hey're going to produce a list or a privilege log-- either produce it, tell us what's in there or, if they're going to claim privilege, then give us a privilege log; and then we'll take that up separately.
(TAB 10 p. 59/16-20).
1 As used herein, "TAB" references each tab in the appendix to Relator's Petition for Writ of Mandamus and the evidence contained therein is incorporated fully herein.
Reply to Response to Petition for Writ of Mandamus Page2 The foregoing excerpts establish Plaintiffs' assertions lack merit. On
December 5, 2014 the trial court ordered that Relator provide a privilege log (TAB
10 p. 27/21-25, p. 30/3-5, p. 57/24-58/10), and on December 8, 2014 Relator
complied with the order (TAB 16, Ex. G). Therefore, this Comi should disregard
the foregoing complaints in detennining the merits of Relator's Mandamus
Petition.
B. Plaintiffs' argument that Relator had multiple opportunities to be heard does not remedy the lack of notice and violation of Relator's due process rights.
Plaintiffs do not contest that they failed to provide proper notice of the
hearing on their Amended Third Motion to Compel; rather, they contend the issues
had been before the trial court for months and Relator "had a month's notice of the
hearing on Plaintiffs' Amended Third Motion to Compel" (Response ~~ 26, 14,
25). Plaintiffs' statement of "a month's notice" of the hearing on the Amended
Third Motion to Compel fails to direct this Court to any evidence of such notice,
contradicts the facts, and contradicts Plaintiffs' judicial admission that notice of a
hearing on Plaintiffs initial "Third Motion to Compel" was given on December 22,
2014 but "[ s]even days before the hearing, Plaintiffs filed an Amended Third
Motion to Compel" (Response~ 13). The lack of proper notice on the Atnended
Third Motion to Compel is precisely what Relator complains about in its
Reply to Response to Petition for Writ of Mandamus Page3 Mandamus (Mandamus Statement of Facts § I (B)(vi)-(vii); Mandamus Argument
§III (A)).
Further, Plaintiffs' allegation that Relator's due process rights were not
violated because it "had four separate opportunities to provide argument and
evidence" does not hold water given the fact that only one of the "four separate
opportunities" was properly noticed? The "four separate occasions" where
argument was entertained actually consisted of a hearing on Relator's Special
Exceptions on November 21, 2014 (unnoticed), Plaintiffs' Motion to Compel
Responses to Requests for Production Nos. 38, 40, 42, and 46 on December 5,
2014 (noticed), and the Januaty 23, 2015 hearing on Plaintiffs' Amended Third
Motion to Compel (unnoticed) (Mandamus Summary of Facts § I (B)(ii); TAB 8;
TAB 15). Relator could not find an additional hearing where it had the opportunity
to "provide argument and evidence" in this matter. 3 Moreover, Relator objected in
2 Although Plaintiffs attempted to compel responses to Nos. 38, 40, 42, and 46 at the December 5, 2014 hearing, they attempted to expand the compelled discovery to include all of their requests for production without notice or an opportunity for Relator to respond and Relator objected to inclusion of any additional requests for lack of notice and for not being properly before the trial comi (TAB 10 p. 21/14-22/14, p. 44/14-17, p. 45/18-46/13, p. 47/21-p. 4817, 52/6-5311 0) 3 Relator assumes the other "opportunit[y]" referenced is either the telephonic hearing on December 10, 2014 on Relator's Emergency Motion for Rehearing or the April 7, 2015 Status Conference telephonic hearing. The December 10 hearing was almost exclusively based upon arguments in support of the admission of the affidavit of Tom Kramer and not the merits of the Motion to Compel (TAB 11; TAB 13). The April 7 hearing, like so many of the other hearings, was not specifically represented that it was to discuss the merits of any motion to compel; rather, it was represented to be a conference to "review the status of pending motions, a proposed new docket control order, and the progression of the case generally before the court" (TAB 24).
Reply to Response to Petition for Writ of Mandamus Page4 writing (TAB 6; TAB 9; TAB 18; TAB 19) and at each improperly noticed hearing
whenever the arguments were brought up (TAB 6; TAB 10 p. 21/5-22/14, p.
26/18-22, p. 36/20-37/3, p. 39/25-40/7, p. 50/5-10; TAB 20 p. 3/13-4/12, p. 6/9-15,
10/20-11/15, p. 12/3-18).
More importantly, Plaintiffs' argument is a red herring that fails to address
the pressing issue before this Court, namely, whether the trial court granted more
relief than requested when it heard and granted a motion to compel discovery
based upon a motion that was superseded by operation of law and, as such, there
was no relevant motion upon which relief could be granted. Thus, the trial court
either entered a void order or it granted more relief than was requested. Because
Relator objected to the lack of notice and violation of its due process rights at
eve1y turn and because the trial court entered a void order or an order granting
more relief than was requested, this Court should grant the Mandamus Petition.
C. Plaintiffs' waiver argument fails because they rely upon the wrong standard.
Relying on Rule 193.3(a)-(b), Plaintiffs maintain Relator waived its
objections based upon privilege because it did not provide a privilege log at the
time it answered discovery (Response p. 15-19); however, this asse1tion fails for
four reasons. First, Relator originally lodged objections to Requests for Production
Further, the April 7 status conference was the forum where the trial court issued the complained- of order compelling the Privileged Notes.
Reply to Response to Petition for Writ of Mandamus PageS Nos. 38, 40, 46, and 48 based upon the attorney-client, work product, and/or joint
defense privileges. (TAB 10 p. 57/1-3; TAB 16, Ex. G). Second, Relator was not
required to complete a privilege log for items that are covered by the attorney-
client or work product privileges and argued as much to the trial court (TAB 10 p.
41110-11; TAB 20 p. 47/14-20). See In re BP Prods. N. Am., Inc., 263 S.W.3d
106, 112 (Tex. App.-Houston [1st Dist.] 2006, orig. proceeding) (citing TEX. R.
Crv. P. 193.3(c) and stating, "When a privilege is asserted under Rule 193.3(c), a
patiy need not comply with TEX. R. Crv. P. 193.3(a) and (b), which require, upon
request, a description of the information or materials withheld, often referred to as
a privilege log, and an asse1iion of a specific privilege for each item or group of
items withheld."). Third, the trial court never ruled that the lack of a privilege log
constituted waiver; rather, it implicitly overruled such an argument by allowing
Relator to remedy this alleged failure by timely submitting such a log without
penalty (TAB 10 p. 27/21-25, p. 30/3-5, p. 32/8-9, p. 57/24-58/10; TAB 20 p.
46/1-16). Because a privilege log was not required under the rules, Plaintiffs'
argument lacks merit and should be disregarded by the Court.
D. Plaintiffs' argument that Relator's policy manual and the Kramer affidavit establish the notes/report were in the regular course of business are not supported by evidence.
Plaintiffs allege the Privileged Notes are not privileged because they were
kept in the regular course of business as required by Relator's written policies
Reply to Response to Petition for Writ of Mandamus Page6 (Response p. 20-28). This argument is conclusory and fails to account for the only
relevant evidence regarding how the Privileged Notes came to exist-the affidavit
of Gary Latnbert.
Relator's policies and procedures do not apply to establish the Privileged
Notes were completed in the regular course of business. A simple comparison
between various fonnal reports submitted in camera with the Privileged Notes
facially establishes that the Privileged Notes were not the type of document
contemplated by the policies and procedures (Compare Privileged Notes with TAB
25). For instance, the Privileged Notes are handwritten and/or typed but have no
heading, are not on letterhead, and are unsigned (In camera Privileged Notes). By
contrast, a fonnal accident report would be similar to that found in TAB 25, 4 which
is on letterhead, has questions to answer with blank spaces, contains sections for
preventive measures, corrective actions, incident evaluation, and is signed by the
person or persons conducting the investigation (TAB 25).
Although the policies show a report is generally completed after an accident,
m this case no formal report was completed because litigation counsel was
involved from day one, the investigation was turned over to counsel, and the only
credible evidence before the trial court was Gary Lambert's testimony that he
created the notes and typed summary in an effort to report to litigation counsel 4 TAB 25 is a representative example of a formal rep01i that was contained in the Relator's privilege log and before the trial court to determine the merits of Relator's privilege objections (TAB 19, Ex. 4).
Reply to Response to Petition for Writ of Mandamus Page7 regarding the accident (Tab 20 p. 47/2-13, p. 3911-4117; Tab 19, Ex. 5).
Specifically, Gary Lambert attested, "Mike Miller [Relator's counsel] arrived at
the TAMU site within hours after the accident. Mike Miller asked me to sit in on
meetings and report back to him regarding those meetings. My notes and other
documents I generated were the result of those instructions . . . [and] I thought
[they] would be confidential" (TAB 20 p. 39/23-41117, p. 63/8-64116; TAB 19, Ex.
5). The foregoing affidavit establishes the genesis of the notes as being an
instruction from litigation counsel, Mike Miller, to report to him regarding the
accident. Further, the affidavit of Tom Kramer establishes that Relator anticipated
litigation immediately upon learning of the accident and retained litigation counsel
to investigate and prepare for possible litigation (TAB 6). Thus, Relator met its
initial burden to prove an applicable privilege and the trial court eiTed by
ovenuling the privileges and ordering such records be produced.
In addition and assuming arguendo the attorney-client or core work product
privileges do not apply, which is denied, the Privileged Notes are "other work
product" and are only discoverable upon a showing of "substantial need" and that
Plaintiffs are "unable without undue hardship to obtain the substantial equivalent
of the material by other means." In re BP, 263 S.W.3d at 113. In this case,
however, Plaintiffs never showed a substantial need or that the substantial
equivalent of the information from the Privileged Notes could not be obtained by
Reply to Response to Petition for Writ of Mandamus PageS other means. In fact, the trial comi noted Plaintiffs would have an opportunity to
detennine whether a report actually existed once they deposed Gary Lambert (TAB
10 p. 55/9-12). Notwithstanding the foregoing, Plaintiffs were given the
opportunity to depose Lambert but failed to ask a single question regarding the the
observations of Lambert or the content of the notes or alleged report (TAB 20 p.
50/20-25). Further, Plaintiffs sought to re-depose Gary Lambert and the scope of
this deposition was discussed by the trial court wherein it stated, without objection
by counsel, that Lambert could be asked about his factual observations, factual
investigation, what he observed, what he found, and the names or identities of
witnesses he spoke with (TAB 20 p. 73/7-12). Lambert's Privileged Notes are not
needed in order for Plaintiffs to obtain substantially the same infonnation as in a
deposition. As a result, mandamus should issue.
E. Plaintiffs' assertion that Relator concealed 1,200 pages of documents for months is not supported by the record.
Plaintiffs allege Relator wrongfully concealed or did not disclose 1,200
pages of documents that may have been responsive to discovery requests. These
assertions are not supported by the rules of procedure or the record.
The Rules provide that a "party must amend or supplement the statement if
additional privileged infom1ation or material is found subsequent to the initial
response. Thus, when large numbers of documents are being produced, a party may
Reply to Response to Petition for Writ of Mandamus Pagc9 amend the initial response when documents are found as to which the party claims
privilege." TEX. R. C1v. P. 193, n. 3. The Rules further contemplate that discovery
must be amended or supplemented "reasonably promptly" after the party discovers
a response to written discovery is incoiTect or incomplete. TEX. R. CIV. P. 193.5.
Tom Kramer stated in his affidavit that the existence of the Privileged Notes
was unknown until after November 18, 2014 when Plaintiffs' counsel informed
Relator's counsel that he believed a report existed and Kramer began his Quixotic
quest to find such a report (TAB 6 p. 4). Kramer attested he discovered a box of
documents containing the Privileged Notes and immediately turned them over to
Relator's counsel (TAB 6 p. 4). Shortly thereafter, Relator made the existence of
the Privileged Notes known to Plaintiffs and the trial court on December 1, 2014
(TAB 6). On December 5, 2014 the trial court ordered that a privilege log be
submitted and Relator complied with this order on December 8, 2014 (TAB 14,
Ex. F). Because Relator did not actively conceal records but, rather, timely
supplemented, this Court should disregard Plaintiffs' hyperbole and grant
Mandamus.
F. Evidence proffered by Plaintiffs is objectionably and not admissible.
Plaintiffs refer this Court to the affidavit of Jonathan Sneed (TAB 16, Ex.
A), the affidavit of Casey Jordan (TAB 16, Ex. B), various texts and emails, and a
transcribed recording of a call allegedly between Gmy Lambert and Jonathan
Reply to Response to Petition for Writ of Mandamus Page 10 Sneed in an effort to suppmi their arguments (Response~ 20) (TAB 16, Ex. I; TAB
20 p. 51/24-52/3, p. 62/15-20). Sneed and Jordan were both attmneys for the law
finn representing Plaintiffs at the time of the affidavits and Relator objected to
these affidavits as as incompetent under Rule 3.08 of the TEXAS DISCIPLINARY
RULES OF PROFESSIONAL CONDUCT, legally invalid because they did not
aver the facts were true and conect, hearsay, and conclusory (TAB 18; TAB 19;
TAB 20 p. 39/23-40/3). To the extent Plaintiffs rely on the foregoing affidavits,
texts, emails and/or other self-serving but unauthenticated documents, Relator
objects and prays the Court disregard same in determining the merits of this
Mandamus.
The only relevant and admissible evidence before the trial court regarding
the privilege issues was contained in the affidavits of Tom Kramer and Gary
Lambert (TAB 6; TAB 19, Ex. 5). This evidence was what the trial court should
have reviewed to determine the applicability of the attorney-client and work
product privileges and both affidavits establish the propriety of the privileges.
Because the trial court ruled the Privileged Notes were not privileged and should
be produced even though the privileges were established, this Comi should grant
Mandamus.
Reply to Response to Petition for Writ of Mandamus Page 11 G. Conclusion
For the reasons contained in this pleading and the Petition for Writ of
Mandamus, Relator prays this Court will grant it the extraordinary relief requested
because to do otherwise would cause undue harm to Relator. The production of
the Privileged Notes cannot be cured on appeal.
PRAYER FOR RELIEF
WHEREFORE, Relator respectfully requests that:
(1) this Court determine the Privileged Notes are privileged and should not be produced; (2) this Court grant Relator's Application for Writ of Mandamus directed to Respondent, and command him to (1) vacate his order, and any subsequent order in compliance with same, as addressed herein, and (2) sign, and cause to be entered in the court minutes, an Order denying Plaintiff's Motion to Compel; and (3) this Court grant such other and ftniher relief to which Relator may show itself justly entitled, including costs regarding this original proceeding.
Respectfully submitted,
Is/ J.J. Knauff J.J. KNAUFF State Bar No. 24032517 i knauff@tmlfpc.com
THE MILLER LAW FIRM 3811 Turtle Creek Blvd., Suite 1950 Dallas, Texas 75219-4535 (469) 916-2552 (469) 916-2555- Telefax
ATTORNEYS FOR RELATOR
Reply to Response to Petition for Writ of Mandamus Page 12 CERTIFICATE OF SERVICE
I hereby certify that a true and conect copy of the foregoing document has been fmwarded viae-filing to all counsel of record as listed below on this 2nd of June 2015.
Respondent Honorable Lany Weiman Judge, 80 1h Judicial District Court of Ranis County
Attorneys (or the Plaintiff Jason Gibson The Gibson Law Fim1 440 Louisiana, Suite 2400 Houston, Texas 77002 Plaintiffs' Counsel
Is/ J.J. Knauff J.J. KNAUFF
CERTIFICATE OF COMPLIANCE
I hereby certify that this Petition was prepared using Microsoft Word, which indicated that the total word count (exclusive of those items listed in rule 9 .4(i)( 1) of the Texas Rules of Appellate Procedure, as amended) is 2,898 words.
Is/ J.J. KNAUFF J.J. KNAUFF
Reply to Response to Petition for Writ of Mandamus Page 13 No. 01-15-00349-CV
IN THE COURT OF APPEALS AT HOUSTON
IN RE MANHATTAN I VAUGHN, JVP
Original Proceeding Regarding Cause No. 2013-76550 In the 80th Judicial District Court of Harris County, Texas
SUPPLEMENTAL AFFIDAVIT
STATE OF TEXAS § § COUNTY OF DALLAS §
BEFORE ME, the undersigned authority, on this day personally appeared
J.J. KNAUFF, who is personally known to me and, who, after being duly sworn
according to law, deposed and said:
"My name is J.J. Knauff. I am of sound mind, over the age of twenty-one
(21) years old, capable of making this affidavit, have never been convicted of a
felony, and have personal knowledge of the facts stated herein and affinn that the
following is true and correct.
Reply to Response to Petition for Writ of Mandamus Page 14 "I am an attorney of record for Relator in the Underlying Suit, Cause No.
2013-76550, in the 80 1h Judicial District Court of Ranis County, Texas (the
"Underlying Suit"). I have reviewed the pleadings, discovery, conespondence,
and other documents that have been generated and served in this matter. I have
also attended the many of the depositions taken in this matter and have taken
depositions in this matter. As a result, I have personal knowledge of the pleadings
and discovery filed and served in the Underlying Suit, including those filed by
Relator and those by other parties. I have read Relator's Petition for Writ of
Mandamus and Reply to Response to Relator's Petition for Writ of Mandamus, and
all factual statements made therein are true and correct."
"Attached hereto as the Record in this original proceeding are true and
correct copies of the following documents and attachments thereto:
TAB 24: Notice of Status Conference;
TAB 25: Relator's Accident Investigation Repoti: Derr Isabel (MV_LAMBERT.000199-000216);
TAB 26: Affidavit of J.J. Knauff.
"The documents and attachments contained in Exhibits "24-25" above are
true and conect copies of the originals."
FURTHER, AFFIANT SAYETH NOT.
Reply to Response to Petition for Writ of Mandamus Page 15 SUBSCRIBED AND SWORN TO BEFORE ME on this 2nd day of June
2015, to cetiify which witness my hand and seal of office.
of{_ -2. fftL Notary Public in and or the State of Texas
Reply to Response to Petition for Writ of Mandamus Page 16 3/27/2015 4:43:08 PM Chris Daniel - District Clerk Harris County Envelope No. 4680862 By: ALEX CASARES Filed: 3/27/2015 4:43:08 PM
Cause No. 2013-76550
JOSEFINA GARCIA, Individually § IN THE DISTRICT COURT OF and as Heir to the Estate of ANGEL § GARCIA (Deceased); and ORBELINDA § HERRERA, as Next Friend of ASHLEY § GARCIA and BRYAN GARCIA (Minors) § § v. § HARRIS COUNTY, TEXAS § MANHATTANjVAUGHN,JVP, § TEXAS CUTTING & CORING, LP, § TEXAS CUTTING & CORING, GP, INC. § and LINDAMOOD DEMOLITION, INC. § 80 1h JUDICIAL DISTRICT
NOTICE OF STATUS CONFERENCE
PLEASE TAKE NOTICE a Status Conference will be held on Tuesday, April 7,
2014 at 4:30p.m. in order to review the status of pending motions, a proposed new docket
control order and the progression of the case generally before the court. Please note the
call-in number is 713.345.9879, passcode: 3686100#.
Respectfully Submitted,
THE GIBSON LAW FIRM
Jason A. Gibson State Bar No. 24000606 Casey L. Jordan State Bar No. 24090599 The Lyric Centre 440 Louisiana, Suite 2400 Houston, Texas 77002 Ph: (713) 650-1010 Fax: (713) 650-1011
ATTORNEYS FOR PLAINTIFFS
TAB24 CERTIFICATE OF SERVICE
I certify a copy of this document was served to all counsel of record by first class regular mail and/or fax on March 27, 2015.
Casey L. Jordan
TAB24 Manhattan Vaughn 713.332.7250 (office)
Manhattan¥ PO Box 11610 College Station, Texas 77842 g79.268.7540 (racsimtle)
ACCIDENT INVESTIGATION REPORT FOR INJURY/ PROPERTY DAMAGE
Company: BiggE Equipment Company, Cub eros Trucking & Derr Isabel
TruckDriver: CuberosTrucking Roberto Lara 281·414-5534 Vehicle Driver: Avary Edwards 512-970-5932 Date & Time oflncident: 10/22/13 4:48pm. Date ofReport: 10/23/13
Location of Property Damage: A&M University Joe Rout St. & Houston St.
Type of Damage: Vehicle damage to left front fender of2004 Jeep Cherokee
Estimated CostofDamage: Unknown
Description oflncident: BiggE Equipment was erecting a 330 Ton Crane on the north end of Kyle Field, College Station Texas. William Bailey with BiggE Equipment hired Cub eros Trucking from Porter Texas to deliver different pieces of the crane's boom. All trucks were instructed to drive north on Houston St., offload and exit back to the south on Houston St same as entering the project Derr Isabel Superintendent Rick Fayard instructed the Cuberos truck driver 2·3 times do not turn north out of the gate but to the south on Houston St. The truck driver disregarded the instructions and backed to the south and drove towards the north on Houston St. He moved over into the southbound lane to clear the corner for the right hand turn onto Joe Rout St. The 2004 Jeep was legally in her lane of traffic at the stop sign on the corner of Joe Rout St. and Houston St. When she observed the trailer moving toward her driver side front fender she started honking her horn to warn the truck driver. The truck driver completed his right turn and clipped the front left fender of her vehicle. Gary Lam bert with Manhattan Vaughn questioned the driver as to why he didn't follow instructions on how to exit the project and he said he wanted to turn right onto Joe Rout, and then back the rig past Houston St. and turn back to the south on Houston. I immediately ask him if he planned on backing his truck towards one way traffic without a flagger to stop oncoming traffic. No answer? I met with the BiggE supervisor and Instructed him to prohibit this driver from any future deliveries to the Kyle Field Project.
Gary Lambert Manhattan Vaughn Safety Department glambert@manl1attanvaughn.com 214·687-1651 Kyle Field College Station Texas
TAB25 MV_LAMBERT.000199 *CountY . . l'ioCit\1 ,;. . . · Name. BR.A.ZOS 1Nllma CQllE~E; STA1lON
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~~r OWI'J~ CUBEROS~ELOY 0 Lest:ee Nlime ~Acldreaa- '24737 ROBERT l)R. PORTER. 1X. 77365 Prootct Ill Yw QJ;Xpl~I26F'ui. l lr~_;!!&$P~ MAXUM CASUALTYXNSURANCE I~:.R.il$p. ,......,.,.. ,.,..,.no• All. R&~~p No Q!Sltetnptl Raep.'JYPt; 11..... ~ ,....,., • ....,......,u16._..." ~
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gs {AIIlldl AlkfiUona1 Sheets It ~-· Unit. 1 (towing 'Otl.it 2} waG Na on Houston St. D:dve~ of units 1 & 2 attempted to turn east onto Joe Routt but was not able. to ~ t:he turn ouoCGeeful.ly, D:eivo.r of Units 1 & 2 sta.f:.Qd be backed onto Houston St. into tha SB lana o~ t::avel to attal:llpt t.he tW':I1 av!U%\. Unit 3, which wu ~Stopped by a. flagman south of the .interaeotJ.on on ll:ou~:~ton St., was allowed .. to prooe&d to t:ha intarsaction. Unit 3 t:hazl ~ 04llla to a stop in tha NB lane of travel at the a atop s.:l.gn for the intorseation. llet'o~ Unit 3 <11 bc.lqan to turn, driver of Units 1 & 2 :began t:o ~ turn eut onto Joe P.oute :from t.he SB lane of! ~ 1Iot1aton St. Uo.it. 2 than t.tt:.t:uek unit 3 as she ! :z:e:mainad stopped at tha stop 8ign. D:r:iver of 11Aits 1 & 2 statad he did not saa trnit 3 stopped at tl\e atop sign,
Witne~rs Information: • * Continued "' * T!me Nolilled !How lf24HRMM) I 1 d$ I 3 I 5 II Notified WITNESS
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TAB25 MV_LAMBERT.000202 taw Enforcementand OOOT U&e ONLY FormCR-31/112010 I cas& 10 13'"i022...000 . 3 1wor enm 10 I Pail~ofUU ~~~ ~:: Taken To 'raker~ By Data of~_ rtj ~rr~lh 24H
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* * Continued * * llme Notltied 5 1jHow 3 1-1 i24HfiliMi. I :J. lfi 1- Nollft'ed WITNESS TlmeAnlved lii~HR~- r1d!J~dil . m~.nate L!&.1LJ.J:JJ, 21 g, ' I :ill ln'ml. !~~J:fea~~ VAN DRESAR, TODD 10 Num. 905008245 Comp. ONo Name P!lnMd) ji5 ORI Num.l T1X1 0!2.11! !11 ~~ Jl1 01 k•llqllMI TEXASA&.M UNIVERSITY POUCE Of8frloll Ama I I I I I I I
TAB25 MV_LAMBERT.000203 lndtcate North.
Drawing Not To Scale.
JOE ROUlT BLVD
TAB25 MV_LAMBERT.000204 List all employees involved & craft: check if injured _ N/IL . 7
Note: Additional forms are available for Employee Statements, Change Analysis, Sequence of Actions & Events, and additional notes. Use as required for the investigation.
TAB25 MV_LAMBERT.000205 Use the following questions and charts (wben appropriate) to assist in identifying the contributing factors and root causes .related .to the incident. Space is left for comments. .
Provide a task description (what was llle employee trying to accomplish? Ex. Welding steel beam, unloading truck with forklift):
Empl?yee 9u~Uficatio.ns j 1:! .f\· Expenence m JOb functlOn: _ _.L~:.t--:-::--:------ Experience on job s i t e - - - - - - - - - - - Was this task discussed in the morning b r i e f i n g ? - - - - - - - - - - - - - - - - - - - - - - - - Was the employee trained to conduct this task? Are special certifications or training required? When was llle last safety meeting the employee attended? - - - - - - - - - - - - - - - - - - - - - Is there historical infonnation to consider? (Safety reprimands, previous incidents of the same nature etc.) - - - - - -
Environmental Factors Check if any of the listed factors may have contributed to the incident. Explain below. Lighting Excessive noise Ventilation Outside weather Temperature extremes Fire I explosion hazard Congestion I close clearance Chemieal spill/ exposure Confined space (penni! req?) Other hazardous conditions in work area (explain below)
Tools I Equipment /Material 0 Were tools and/or equipment involved in the incident? +yJM-r------------------- Were inspections on tools and equipment current? -~N-:-()..=-':------------------ Were the tools and equipment proper for the job? --...>-::,__v__________________ Was lock out I tag out required? _ Used properly?_ Was facility material or property invol ed? ....o..::...:o Was there damage or defects? --~1-)_ 0_ _ _ ________________ _ _ _ _ _ _ _ _ _ _ __ _ _--:-..,.,...---------- Were the tools, equipment, and material adequate and meet applicable regulations? .lJ_b
Procedures I Poll des ls a written procedure provided for the task? ..f-.,...=-- If not, why? l.,.l.Qd '?:c s, D +\:
Are there circumstances dictating the procedure could not be followed?
At Risk Behavior Was a safety device bypassed or removed?_,_..-..-::..-·---------------------- Poor or improper lifting teclmiques? - - - - - - - - - - - , . . - - - - - - - - - - - - - - - - Was there a failure to recognize and correct a hazardous condition? _ · - - - - - - - - - " - - - - - - - - - - - Was improper loading or placement of materials a factor?.=:. Were, tools and equipment properly used? .;;._....-_·--------------~-------- Was the correct PPE being used by the employee? _,... Was it in good condition?
Conunen~--------------------------------------------------------
TAB25 MV_LAMBERT.000206 List below the Preventive Measures I Corrective Actioos thai have.been or will be taken to prevent a recurrence of this incident or other incidents of this type. Include who has been made responsible for the Preventive Measures/ Corrective Actions and the estimated completion date, The listed actions are to be approved for implementation only after the required review and approval signatures a.re obtained.
I. Responsible Person------------- Estimated completion d a t e - - - - - Complete------
2. Responsible P e r s o n - - - - - - - - - - - - - - Estimated completion date _ _ _ _ _ _ Complete _ _ _ _ __
3. Responsible P e r s o n - - - - - - - - - - - - - - - - Estimated completion d a t e - - - - - - Complete------
4. Responsible P e r s o n - - - - - - - - - - - - - - - Em mated c~mpletion d a t e - - - - - - Complete------
5. Responsible Person _ _ _ _ _ _ _ _ _ _ _ _ __ Estimated completion date------~ Complete------
6. Responsible P e r s o n - - - - - - - - - - - - - - Estimated completion d a t e - - - - - - Complete------
Comments: List attachments and use this section for any comments
"Why Tree Diagr m", Photographs, . .
state (in comments) any Contributing Factors or Preventive measures you feel need to be incorporated.
2. Project Mana~· SCS
--'~:..;.&fj~::.-__.~l/l-'::....!f.·1f,t.,.-·_ _ Date JQ.. 2..2.- /3 . Co~en: _______-________________________________________________________________________________
Check here if the acddent has resulted in OSHA Rerordable ___ ~~Time _ __ Page4
TAB25 MV_LAMBERT.000207 Instructions: Use this form for Employee Statements, additional notes, sketches, or to prepare a "Sequence of Actions and Events" for your investigation. Attach to the incident investigation repott
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TAB25 MV_LAMBERT.000208 TAB25 MV_LAMBERT.000209 TAB25 MV_LAMBERT.000210 TAB25 MV_LAMBERT.000211 TAB25 MV_LAMBERT.000212 TAB25 MV_LAMBERT.000213 TAB25 MV_LAMBERT.000214 TAB25 MV_LAMBERT.000215 TAB25 MV_LAMBERT.000216 No. 01-15-00349-CV
IN THE COURT OF APPEALS AT HOUSTON
IN RE MANHATTAN I VAUGHN, JVP
Original Proceeding Regarding Cause No. 2013-76550 In the 80th Judicial District Court of Harris County, Texas
SUPPLEMENTAL AFFIDAVIT
STATEOFTEXAS § § COUNTY OF DALLAS §
BEFORE ME, the undersigned authority, on this day personally appeared
J.J. KNAUFF, who is personally known to me and, who, after being duly sworn
according to law, deposed and said:
"My name is J.J. Knauff. I am of sound mind, over the age of twenty-one
(21) years old, capable of making this affidavit, have never been convicted of a
felony, and have personal knowledge of the facts stated herein and affirm that the
following is true and correct.
TAB26 "I am an attorney of record for Relator in the Underlying Suit, Cause No.
2013-76550, in the 80 1h Judicial District Comi of Harris County, Texas (the
"Underlying Suit"). I have reviewed the pleadings, discovery, correspondence,
and other documents that have been generated and served in this matter. I have
also attended the many of the depositions taken in this matter and have taken
depositions in this matter. As a result, I have personal knowledge of the pleadings
and discovery filed and served in the Underlying Suit, including those filed by
Relator and those by other parties. I have read Relator's Petition for Writ of
Mandamus and Reply to Response to Relator's Petition for Writ of Mandamus, and
all factual statements made therein are true and correct."
"Attached hereto as the Record in this original proceeding are true and
correct copies of the following documents and attachments thereto:
TAB 24: Notice of Status Conference;
TAB 25: Relator's Accident Investigation Repmi: Derr Isabel (MV_LAMBERT.000199-000216);
TAB 26: Affidavit of J.J. Knauff.
"The documents and attachments contained in Exhibits "24-25" above are
tlue and correct copies of the originals."
FURTHER, AFFIANT SAYETH NOT. SUBSCRIBED AND SWORN TO BEFORE ME on this 2nd day of June
2015, to certify which witness my hand and seal of office.
s:i~ Y. yvvy/ 1 Notary Public in and for the State ofTexas