Case Information
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FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 01/19/2015 3:46:30 PM KEITH E. HOTTLE Clerk FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 01/20/2015 12:51:00 PM KEITH E. HOTTLE Clerk *1 ACCEPTED 04-14-00906-cv FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/19/2015 3:46:30 PM KEITH HOTTLE CLERK NO. 04-14-00906-CV IN THE FOURTH COURT OF APPEALS at SAN ANTONIO, TEXAS DAVID MAUK Appellant v.
PIPE CREEK WATER WELL, LLC and ROBERT RAE POWELL Appellees Cause No. 2013-CI-00386; Appeal from the 408 th Judicial District Court; Bexar County,
Texas RESPONSE TO MOTION TO STAY TRIAL COURT PROCEEDINGS TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME Plaintiffs and Respondents, PC DRILLING AND SERVICE, LLC d/b/a
PIPE CREEK WATER WELL, LLC and ROBERT RAE POWELL, and present this, their
Response to Defendant and Relator DAVID MAUK’s Motion to Stay Trial Court Proceedings
and would show the following:
1. On January 9, 2013, Plaintiffs filed their Original Petition against DAVID MAUK
in his individual capacity for certain defamatory statements made by him outside the course and
scope of his employment as General Manager for the Bandera County River Authority and
Groundwater District. Shortly thereafter, Defendant filed his first Motion to Dismiss, alleging
the trial Court did not have jurisdiction pursuant to Texas Civil Practice and Remedies Code
§101.106(f). On or about April 22, 2013, after examining the pleadings and hearing the
arguments of counsel, the Honorable Judge Cathleen Stryker denied Defendant’s Motion without
prejudice. More than a year later, on October 8, 2014, Defendant filed a second Amended
Motion to Dismiss for Lack of Jurisdiction again alleging the trial Court did not have jurisdiction
pursuant to Texas Civil Practice and Remedies Code §101.106(f). On or about December 8,
2014, after examining the pleadings and hearing the arguments of counsel, Defendant’s Second
Motion to Dismiss was denied by the Honorable Richard Price.
2. On December 22, 2014, Defendant filed its Notice of Interlocutory Appeal. On
December 29, 2014, Plaintiffs filed a Motion for Mediation. Plaintiffs’ Motion was heard by the
Honorable Antonia Arteaga on January 14, 2014, and after hearing the arguments of counsel,
Judge Arteaga order the parties to mediate this case with mediator, Joseph Casseb, the first week
of March, 2015. Defendant and Relator now seek a stay of that mediation from this Honorable
Court.
3. This State has a strong policy favoring the use of alternative dispute resolution. It
is Plaintiffs’ desire to mediate this case in March and attempt to reach an amicable settlement
with the Defendant. This matter has been pending for more than two years. Discovery is
substantially complete and the question of the trial Court’s jurisdiction has been twice examined
and on both occasions, affirmed. This case is ripe for mediation and there is a reasonable
probability of settlement.
4. Texas Civil Practice and Remedies Code § 51.014(b) does not prohibit the trial
court from retaining jurisdiction or provide for an automatic stay of the trial court proceedings as
alleged by Defendant and Relator. Tex. Civ. Prac. & Rem. Code § 51.014 (Vernon 2014). Texas
Civil Practice and Remedies Code §51.014(a) clearly enumerates twelve specific types of
interlocutory appeals which are entitled to an automatic stay of trial or all trial court proceedings
under § 51.014(b). Id. at § 51.014(a). Section 51.014(a)(8), the provision relied upon by
DAVID MAUK, provides for a stay upon an the interlocutory appeal from an order granting or
denying of plea to the jurisdiction filed by a “governmental unit” as that term is defined by §
101.001. Id. at § 51.014(a)(8). Because DAVID MAUK is not a “governmental unit” as defined
by § 101.001, he is not statutorily entitled to an automatic stay of all trial court proceedings. Id.
at § 101.001. Any stay of the mediation or other trial court proceedings would be at the
discretion of this Honorable Court.
WHEREFORE, PREMISES CONSIDERED, PC DRILLING AND SERVICE, LLC
d/b/a/ PIPE CREEK WATER WELL, LLC and ROBERT RAE POWELL pray that the Court
deny Relator DAVID MAUK’s Motion to Stay Trial Court Proceedings and allow this case to
proceed to mediation as ordered.
Respectfully submitted, Law Offices of Keith P. Miller, P.C. Independence Plaza II 14350 Northbrook, Suite 150 San Antonio, Texas 78232 Tel: (210) 524-9040 Fax: (210) 267-2982 /s/ Megan Kucera By:___________________________ KEITH P. MILLER State Bar No. 14093725 MEGAN H. KUCERA State Bar No. 24076449 Attorneys for Plaintiffs *4 CERTIFICATE OF SERVICE I hereby certify by my signature below that a true and correct copy of the foregoing has
been served by:
___ Certified Mail Return Receipt Requested
___ First Class Mail
_X_ Telecopier and/or ___ Hand-delivery
___ EService
To the following:
William M. McKamie
Adolfo Ruiz
McKamie Kruger, LLP
941 Proton Road
San Antonio, Texas 78258
Telecopier: (210) 546-2130
adolfo@mckamiekrueger.com
On the 19 th day of January, 2015.
/s/ Megan Kucera ________________________________ Megan H. Kucera