in Re Descon Construction, L.P. ( 2015 )

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.
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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.
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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