the City of Austin AndMarc A. Ott, in His Official Capacity as City Manager of the City of Austin v. Utility Associates, Inc. and Mr. v. Bruce Evans, a Resident of Austin

• Court: Court of Appeals of Texas
• Decided: September 6, 2016
• Docket: 03-16-00586-CV
• Status: Published

Opinion

ACCEPTED 03-16-00586-CV 12538658 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/6/2016 11:37:42 AM JEFFREY D. KYLE CLERK NO. 03-16-00565-CV, NO. 03-16-00586-CV __________________________________________________________________ FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS IN THE 9/6/2016 11:37:42 AM THIRD COURT OF APPEALS JEFFREY D. KYLE AUSTIN, TEXAS Clerk __________________________________________________________________

CITY OF AUSTIN AND MARC A. OTT, IN HIS OFFICIAL CAPACITY AS THE CITY MANAGER FOR THE CITY OF AUSTIN, Appellants,

V.

UTILITY ASSOCIATES, INC., AND MR. V. BRUCE EVANS, A RESIDENT OF AUSTIN, TEXAS, INDIVIDUALLY, Appellees. __________________________________________________________________

ON APPEAL FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT CAUSE NO. D-1-GN-16-002931 __________________________________________________________________

APPELLANTS’ UNOPPOSED MOTION TO CONSOLIDATE __________________________________________________________________

Matthew W. Tynan CITY OF AUSTIN LAW DEPARTMENT P. O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-2185 Facsimile: (512) 974-1311 matthew.tynan@austintexas.gov ATTORNEYS FOR APPELLANTS TO THE HONORABLE THIRD COURT OF APPEALS:

Appellants, the City of Austin and Marc A. Ott, City Manager for the City of

Austin, Texas, (the “City”) ask the Court to grant this Motion to consolidate two

pending appeals which arise from the same District Court case originally filed in

Travis County, Texas

There are presently two (2) cases pending in this Court that arise from Utility

Associates, Inc. and Bruce V. Evans v. The City of Austin and Marc A. Ott, Cause

Number D-1-GN-16-002931, filed in the 98th District Court, Travis County, Texas.

The appeals arise from a ruling by the Honorable Orlinda Naranjo granting

temporary injunctive relief and a ruling by the Honorable Karin Crump partially

denying the Appellants’ Plea to the Jurisdiction.

PROCEDURAL HISTORY

After a hearing, held on August 3, 2016, Judge Naranjo granted the

Appellees’ application for a temporary injunction and entered a written order to

this effect on August 5, 2016. The Court reached its’ ruling, in part, on the

conclusion that Appellee Utility Associates had established sufficient standing to

obtain injunctive relief.

The City filed its interlocutory appeal of the District Court’s August 5, 2016

Order on August 24, 2016 and the matter was docketed as Case No. 03-16-00565-

CV. This interlocutory appeal is brought under Texas Civil Practices and

2 Remedies Code §51.014(a)(4) and is an accelerated appeal pursuant to Rule 28 of

the Texas Rules of Appellate Procedure.

On August 18, 2016 Judge Crump held a hearing on the Appellants’

Amended Plea to the Jurisdiction. During this hearing the Appellants challenged

the Courts jurisdiction over the Appellees’ claims as well as the jurisdictional

standing of Appellee Utility Associates. Judge Crump granted the Appellants’

Plea with regard to the whole of the Appellees claims outside §252.061 of the

Texas Local Government Code. However, the Court denied Appellants’ Plea in

part because Judge Crump indicated she was not able to disturb Judge Naranjo’s

determination of jurisdictional standing for Utility Associates. The Court opined

that such a challenge would need to be brought to this Court through a proper

appeal of the issue. The District Court entered the Order of Judge Crump on

August 25, 2016.

The City filed its interlocutory appeal of the District Court’s August 25,

2016 Order on September 1, 2016 and the matter was docketed as Case No. 03-16-

00586-CV. This interlocutory appeal is brought under Texas Civil Practices and

Remedies Code §51.014(a)(8) and is an accelerated appeal pursuant to Rule 28 of

ARGUMENT

Judicial economy favors consolidation of these appeals because the issues on

3 appeal from these two rulings of the District Court are fundamentally identical.

Both appeals challenge whether Appellee Utility Associates established standing in

this matter as a losing bidder to a non-public works contract so as to satisfy the

subject matter jurisdiction of the Court and obtain the relief requested. As both

appeals arise from the same lawsuit, and from the same factual and legal basis, the

Clerk’s Record filed with the Court in each appeal would be essentially the same

save the addition of the Reporter’s Record from the hearing on the Plea to the

Jurisdiction and the August 25, 2016 Order of the District Court in Case No. 03-

16-00586-CV.

CONCLUSION

For the purposes of clarity, efficiency, and in the interest of judicial

economy, the City asks this Court to consolidate the two pending appeals, Case

No. 03-16-00565-CV and Case No. 03-16-00586-CV. The City also requests that

the docketing deadlines be reset to reflect a starting date of the day on which the

requested consolidation is granted.

RESPECTFULLY SUBMITTED,

ANNE L. MORGAN, CITY ATTORNEY MEGHAN L. RILEY, CHIEF LITIGATION

/s/ Matthew W. Tynan MATTHEW W. TYNAN State Bar No. 24072489 matthew.tynan@austintexas.gov

4 City of Austin – Law Department P. O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-2185 Facsimile: (512) 974-1311

ATTORNEYS FOR APPELLANTS

5 CERTIFICATE OF CONFERENCE

I hereby certify that counsel for Appellants has conferred with the below listed counsel with regard to the submission of this Motion and have determined that the Appellees do not oppose this request.

/s/ Matthew W. Tynan MATTHEW W. TYNAN

CERTIFICATE OF SERVICE

This is to certify that I served a copy of the foregoing on all parties, or their attorneys of record, in compliance with the Texas Rules of Civil Procedure, this 6th day of September, 2016.

Via e-Service to:

Peter B. Barlow Shelby A. Jordan pbarlow@sgrlaw.com sjordan@jhwclaw.com Peter M. Crofton JORDAN, HYDEN, WOMBLE, Benjamin P. Deninger CULBRETH & HOLZER, P.C. SMITH GAMBRELL & 1250 S. Capital of Texas Hwy RUSSELL, LLP Suite 330 100 Congress Avenue Austin, Texas 78746 Suite 2000 (361) 884-5678 Telephone Austin, Texas 78701 (361) 888-5555 Fax (512) 498-7617 Telephone (512) 879-5032 Fax ATTORNEYS FOR MR. V. BRUCE EVANS ATTORNEY FOR UTILTY ASSOCIATES, INC.