Lattin v. Barrett , 2004 Tex. App. LEXIS 177 ( 2004 )

127 S.W.3d 276 (2003)

Kenneth LATTIN and Charles Rice, et al., Appellants,
v.
Ellwood T. BARRETT and Ellwood T. Barrett, II, Appellees.

No. 10-03-287-CV.

Court of Appeals of Texas, Waco.

December 31, 2003. Order Granting Stay January 5, 2004.

John R. Crews, C. Glen Morris, Gibson, Dunn & Crutcher, L.L.P., Kelly D. Hine, Fish & Richardson, P.C., Dallas, B. Lee Ware, Ware, Snow, Fogel & Jackson, Houston, for Appellant/Relator.

James D. Pierce, Houston, for Appellee/Respondent.

ORDER GRANTING STAY

Appellants have filed a joint motion to stay all further proceedings in the underlying suit, including discovery, pending the resolution of this interlocutory appeal. Appellees oppose the request only insofar as it seeks to stay discovery with regard to a defendant in the underlying proceeding which is not a party to this appeal. We will grant Appellants' motion.

Appellees filed suit against Appellants and another defendant, CNM Network, Inc., ("CNM") for violations of federal and state securities laws, statutory fraud, and common law fraud. Appellants are residents of California. They filed a special appearance, which the trial court denied. They appeal that denial. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(7) (Vernon Supp.2003).

By statute, the trial of the underlying suit is stayed pending resolution of this appeal. Id. § 51.014(b) (Vernon Supp.2003). Appellants request that discovery be suspended as to all defendants, including CNM, because "the case cannot effectively proceed as to one defendant but not others." Appellees respond that a stay is not warranted as to CNM because discovery served on CNM will impose no undue burden or expense on Appellants and because a stay of discovery as to CNM is unnecessary to preserve Appellants' rights.

We have previously expressed concern for an appellant challenging the denial of a special appearance having to incur the expense and inconvenience of discovery pending resolution of the appeal of a special appearance. See Lacefield v. Elec. Fin. Group, Inc., 21 S.W.3d 799, 800 (Tex.App.-Waco 2000, order). It is therefore ordered that all discovery at the trial court level be and it is hereby stayed pending final determination of the appeal from the denial of the special appearance or further order of this Court.

/s/ Bill Vance Bill Vance, Justice /s/ George Allen George Allen, District Judge (Sitting by Assignment)