Case Information
*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 5/4/2015 9:23:55 PM KEITH E. HOTTLE Clerk
*1 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. ____________________ IN THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS DESCON CONSTRUCTION, L.P., Relator ___________________________________________________________________________ th From the 229 District Court of Starr County, Texas Case No. DC-14-46
___________________________________________________________________________ ORIGINAL PETITION FOR WRIT OF MANDAMUS ___________________________________________________________________________ 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 Gabriel S. Head State Bar No. 24055642 ghead@cbylaw.com Cokinos, Bosien & Young 10999 IH-10 West, Suite 800 San Antonio, Texas 78230 (210) 293-8700 (Office) (210) 293-8733 (Fax) ATTORNEYS FOR RELATOR, DESCON CONSTRUCTION, L.P.
EMERGENCY RELIEF REQUESTED *2 No. ____________________ DESCON CONSTRUCTION, L.P., Relator ___________________________________________________________________________
IDENTITY OF PARTIES AND COUNSEL
___________________________________________________________________________
Relator certifies that the following is a complete list of the parties, the attorneys, and other person who has any interest in the outcome of this lawsuit. Relator: Descon Construction, L.P. Counsel for Defendant/Relator Descon Construction, L.P.: Trial: Appellate: Stephanie O’Rourke Karen L. Landinger Stanley W. Curry, Jr. Cokinos, Bosien & Young Robert M. Smith 10999 IH-10 West, Suite 800 Gabriel S. Head San Antonio, Texas 78230 Cokinos, Bosien & Young (210) 293-8700 (Office) 10999 IH-10 West, Suite 800 (210) 293-8733 (Fax) San Antonio, Texas 78230 klandinger@cbylaw.com (210) 293-8700 (Office) (210) 293-8733 (Fax) sorourke@cbylaw.com scurry@cbylaw.com rmsmith@cbylaw.com ghead@cbylaw.com
ii *3 Respondent: The Honorable Ana Lisa Garza District Judge th 229 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) alglaw1@aol.com asaenz@co.starr.tx.us Counsel for 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) normanjollypc@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 Martie Garcia Vela 100 West 5th Street Rio Grande City, Texas 78582 (956) 488-8170 (Office) (956) 488-8129 (Fax) martie.garcia@gmail.com
iii *4 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 Party, 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@amwlawfirm.com admin1@amwlawfirm.com
iv *5 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 Christi, Texas 78401 (361) 883-0620 (Office) (361) 883-0612 (Fax) mvillarreal@southtxdefense.com rkhinkle@southtxdefense.com afrees@southtxdefense.com 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 78401 (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
v *6 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 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
vi *7 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 (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. 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
vii *8 Attorneys for Interested Party, 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 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 Attorneys for Interested Party, Tri City Steel and Fabrication, Inc. Thomas A. Mailloux II Brock Person Guerra Reyna, P.C. 17339 Redland Road San Antonio, Texas 78247-2302 (210) 979-0100 (Office) (210) 979-7810 (Fax) tmailloux@bpgrlaw.com blawrence@bpgrlaw.com
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TABLE OF CONTENTS
*9 IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvi STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii STATEMENT OF ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii ISSUES PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xviii
I. Respondent abused her discretion by ordering the joinder of additional individuals and entities pursuant to Rule 28 II. Respondent abused her discretion by asserting jurisdiction over parties that have not been served III. Mandamus is proper because Respondent issued orders beyond her jurisdiction IV. Mandamus is proper because Relator has not adequate remedy at law
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Descon Construction, L.P. is an existing legal entity that does not do business in any other name and is not known by any other name. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. RGCCISD brought suit against Descon Construction, L.P.. . . . . . . . . . . . . 3 C. After the pleadings deadline, and two weeks before trial,
RGCCISD amended its pleadings to add multiple new parties.. . . . . . . . . . 3 D. RGCCISD filed documents confirming that Descon Construction, L.P. is a separate and existing legal entity.. . . . . . . . . . . . . . . . . . . . . . . . . 4 ix *10 E. Descon Construction, L.P. confirms that it is a separate and existing legal entity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 F. After being made aware that Descon Construction, L.P. is a legal entity and the only proper defendant, RGCCISD added more parties claiming that they were interchangeable under Rule 28.. . . . . . . . . 5
G. Descon Construction, L.P. filed verified proof that it is a separate existing legal entity and the proper Defendant.. . . . . . . . . . . . . . . 6 H. Descon Construction, L.P. moved for continuance or abatement so that the parties could be corrected or, if added, could conduct discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. RGCCISD filed business records affidavit of a website builder who did work for one of the newly named parties. . . . . . . . . . . . . . . . . . . . . 7 J. Respondent allowed RGCCISD to add six new parties just ten days before trial, and refused to grant a continuance or abatement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
K. Respondent ordered counsel for Descon Construction, L.P. to act as counsel for the six separate individuals and entities even after being informed of non-representation and potential conflict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 B. It is an abuse of discretion to join parties under Rule 28
without proof that any of the parties are doing business under an assumed name.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 1. Descon Construction, L.P. is a legal entity separate
from any of the newly added parties.. . . . . . . . . . . . . . . . . . . . . . . . 10 x *11 2. To invoke Rule 28, RGCCISD had to prove that the six new parties were, in fact, doing business under an assumed name.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3. There is no evidence that any of the six additionally named parties were doing business as Descon Construction, L.P.. . . . . . . 14 4. Rule 28 cannot be used to join additional defendants to the law suit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 C. It is an abuse of discretion to assert jurisdiction over parties that have not been served. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 1. Only defendants who have been sued and served are
subject to the jurisdiction of the trial court.. . . . . . . . . . . . . . . . . . . 17 2. RGCCISD sued and served only Descon Construction, L.P.. . . . . . 19 D. Mandamus is proper because Respondent issued orders beyond her jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 E. Mandamus is proper because Relator has no adequate remedy at law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 VERIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 APPENDIX AND RECORD.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Tab 1: May 1, 2015 Hearing Transcript of Pretrial Motions Tab 2: Defendant Descon Construction, L.P.’s Supplemental Objection
and Motion to Strike Plaintiff’s Thirteenth Amended Original Petition (all versions) and Motion to Abate and Response to Plaintiff’s Rule 28 Motion
xi *12 Tab 3: Plaintiff’s TRCP 28 Motion to Substitute Named Defendants Omitted by Defendants’ Disclosures and to Compel Defendants to Properly Identify Any Other Parties
Tab 4: Plaintiff’s TRCP 28 Motion to Substitute Named Defendants Omitted by Defendants’ Disclosures and to Compel Defendants to Properly Identify Any Other Parties
Tab 5: Plaintiff’s Thirteenth Amended Original Petition (dated March 20, 2015) Tab 6: Plaintiff’s Thirteenth Amended Original Petition (dated April 24, 2015) Tab 7: Plaintiff’s Thirteenth Amended Original Petition (dated April 27, 2015) Tab 8: Defendant Descon Construction, L.P.’s Objection and Motion to Strike Plaintiff’s Thirteenth Amended Original Petition Tab 9: Plaintiff’s Thirteenth Amended Original Petition (dated April 29, 2015) Tab 10: Plaintiff’s Notice of Intent to Use Business Records xii
INDEX OF AUTHORITIES
*13 Cases: BACM 2002 PB2 Westpark Dr. LP v. Harris County Appraisal Dist. ,
No. 14-08-00493-CV, 2009 WL 2145922 (Tex. App.—Houston [14th Dist.] June 21, 2009, no pet.). . . . . . . . . . . . . . . . . . 13
Chilkewitz v. Hyson , 22 S.W.3d 825 (Tex.1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Cockrell v. Estevez , 737 S.W.3d 138 (Tex. App.—San Antonio 1987, no writ). . . . . . . . . . . . . . . . . . 18 In re Allcat Claims Serv., L.P. , 356 S.W.3d 455 (Tex. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 In re Ford Motor Company , 165 S.W.3d 315 (Tex. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 In re Freedom Bible Research Inst. , No. 04-14-00550-CV, 2014 WL 5838941 (Tex. App.—San Antonio Nov. 12, 2014, no pet.).. . . . . . . . . . . . . . . 15, 16, 18, 21
In re Green Oaks Hosp. Subsidiary, L.P. , 297 S.W.3d 452 (Tex. App.—Dallas 2009, no pet). . . . . . . . . . . . . . . . 20, 21 In re McAllen Med. Ctr., Inc. , 275 S.W.3d 458 (Tex. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 In re Prudential Ins. Co. of Am. , 148 S.W.3d 124 (Tex. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 21, 22 In re Suarez , 261 S.W.3d 880 (Tex. App.—Dallas 2008, no pet.). . . . . . . . . . . . . . . 20, 21 In re SW. Bell Tel. Co. , 35 S.W.3d 602 (Tex. 2000) (orig. proceeding).. . . . . . . . . . . . . . . . . . . . . . . . . . . 21 xiii *14 In re Team Rocket, L.P. , 256 S.W.3d 257 (Tex. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 KAO Holdings, L.P. v. Young , 261 S.W.3d 60 (Tex. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 KM-Timbercreek, LLC v. Harris Cnty. Appraisal Dist. , 312 S.W.3d 722 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). . . . . . . 13, 14 Manufacturers’ Hanover Trust Co. v. Kingston Investors Corp. , 819 S.W.2d 607 (Tex. App.—Houston [1st. Dist.] 1991, no writ).. . . . . . . . . . . . 12 Mapco, Inc. v. Carter , 817 S.W.2d 686 (Tex. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 19 Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd. , 337 S.W.3d 846 (Tex. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Roe v. Ladymon , 318 S.W.3d 502 (Tex. App.—Dallas 2010, no pet.).. . . . . . . . . . . . . . . . . . . . . . . 11 Rosenthal v. Terrazo Nat’l Tile & Marble, Inc. , 742 S.W.2d 55 (Tex. App.—Houston [14th Dist.] 1987, no writ). . . . . . . . . . 19, 20 Seidler v. Morgan , 277 S.W.3d 549 (Tex. App.—Texarkana 2009, pet. denied). . . . . . . . . . . . . . . . . 12 Sixth RMA Partners v. Sibley , 111 S.W.3d 46 (Tex. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16, 17 W & F Transp., Inc. v. Wilhelm , 208 S.W.3d 32 (Tex. App.—Houston [14th Dist.] 2006, no pet.). . . . . . . 12, 19, 20 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 21, 22, 23 Werner v. Colwell , 909 S.W.2d 866 (Tex. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 xiv *15 Codes and Rules: Tex. Bus. Orgs. Code § 152.056. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Tex. Bus. Orgs. Code § 154.001(a)(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Tex. Gov’t Code § 22.221(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii Tex. R. Civ. P. 28.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Tex. R. Civ. P. 124.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18 Tex. R. App. P. 52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Texas Uniform Limited Partnership Act,
Tex. Rev. Civ. Stat. Ann. art. 6132b, § 45 (expired). . . . . . . . . . . . . . . . . . . . . 9, 11 Texas Revised Uniform Partnership Act. Business Organizations Code § 152.001 et. seq.. . . . . . . . . . . . . . . . . . . . . . . 10, 11 xv
STATEMENT OF THE CASE
*16 This is a construction defect case. Real Party in Interest, Rio Grande City Consolidated Independent School District (“RGCCISD”), brought suit against Descon Construction, L.P. in the case of Rio Grande City Consolidated Independent School District v. Descon Construction, L.P. , Cause No. DC-14-46, for negligence, breach of contract, and implied warranty of good and workmanlike manner. Descon Construction, L.P. appeared and answered.
Less than two weeks before trial, RGCCISD filed their Thirteenth Amended Original Petition which named six new separate and distinct parties to the action. RGCCISD also filed a motion to substitute parties under Rule 28, claiming that all of the six newly named individuals and entities were also known as, or doing business as, Descon Construction, L.P. Descon Construction, L.P. filed objections and affidavit evidence establishing that it was a separate legally existing entity as named, and was the proper party to the suit. Descon Construction, L.P. also sought to abate or continue the suit based on the attempt to join new unserved individuals and entities.
On May 1, 2015, Respondent, The Honorable Ana Lisa Garza, Judge Presiding in the 229th Judicial District Court of Starr County, Texas, entered orders denying all of Descon Construction, L.P.’s objections and motions to strike both the amended pleadings and Rule 28 motion. Respondent granted Real Party in Interest’s Rule 28 motion joining six unserved individuals and entities. Respondent also denied Descon Construction, L.P.’s motion to abate
xvi *17 or continue the action. This case is set for jury trial on May 11, 2015. A request for emergency relief is being filed with this motion.
STATEMENT OF JURISDICTION
This Court of Appeals has jurisdiction over this matter under 22.221(b) of the Texas Government Code, which provides “[e]ach court of appeals for a court of appeals district may issue all writs of mandamus, agreeable to the principles of law regulating those writs, against a judge of a District or County court in the court of appeals district.”
STATEMENT REGARDING ORAL ARGUMENT
In light of this Court’s previous rulings, Relator believes that the matters in this Petition are well settled. Therefore, Relator does not seek oral argument at this time. However, in the event that Real Party in Interest requests and is granted oral argument, Relator also requests argument.
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ISSUES PRESENTED
*18 I. Respondent abused her discretion by ordering the joinder of additional individuals and entities pursuant to Rule 28. II. Respondent abused her discretion by asserting jurisdiction over parties that have not been served. III. Mandamus is proper because Respondent issued orders beyond her Jurisdiction. IV. Mandamus is proper because Relator has not adequate remedy at law.
xviii
TO THE HONORABLE FOURTH COURT OF APPEALS:
*19 Pursuant to Texas Rule of Appellate Procedure 52, Relator, Descon Construction, L.P., requests this Court issue a writ of mandamus directing The Honorable Ana Lisa Garza, Judge Presiding in the 229th Judicial District Court of Starr County, Texas, to vacate its order granting RGCCISD’s Rule 28 motion, allowing RGCCISD to file amended pleadings, and denying Relator’s objections and motion to strike the amended pleadings and motion for abatement and continuance.
STATEMENT OF FACTS
Respondent has entered an order allowing RGCCISD to join six separate and distinct individuals and entities to a lawsuit one week before trial. ( Tab 1 , p. 26). Respondent refused to grant a continuance or abate the action so that the six new parties could conduct discovery or prepare a defense. ( Tab 1 , p. 26). None of the six new parties have been served. The trial court based its ruling entirely on Rule 28. ( Tab 1 , p. 26). A. Descon Construction, L.P. is an existing legal entity that does not do business in
any other name and is not known by any other name. Descon Construction, L.P. is a Texas limited partnership. ( Tab 2 , Exhibit C) ( Tab 3 ,
Exhibit A) ( Tab 4 , Exhibit E & F). On January 2, 2004, Descon Construction, L.P. entered into a contract with RGCCISD for the construction of La Grulla Elementary School. ( Tab 2 , Exhibits C & C-A). The only parties to the contract were Descon Construction, L.P. and RGCCISD. ( Tab 2 , Exhibits C & C-A). The project was completed in 2005. ( Tab 2 , Exhibit
C).
1 *20 In 2006, Texas Descon, L.P. was formed. ( Tab 2 , Exhibit C). Texas Descon, L.P. is a separate legal entity from Descon Construction, L.P. ( Tab 2 , Exhibit C) ( Tab 2 , Exhibit A). Texas Descon, L.P.’s general partner is Descon 4S, LLC. ( Tab 2 , Exhibit C). Through a negotiated arms-length agreement, Texas Descon, L.P. purchased the goodwill of Descon Construction, L.P. ( Tab 2 , Exhibit C). It did not acquire Descon Construction, L.P.’s liability in general, or as related to the RGCCISD contract. ( Tab 2 , Exhibit C).
In 2009, Descon Construction, L.P. filed a certificate of cancellation indicating that it was closing its business. ( Tab 4 , Exhibit G). Its general partner at the time was Descon [1] Management, L.L.C. ( Tab 4 , Exhibit G). Descon Construction, L.P. was reinstated on September 2012. ( Tab D , Exhibits E & F). Its general partners at the time of reinstatement were Descon Management, L.L.C. and Maco Management, L.L.C. ( Tab 4 , Exhibits F & J). Maco Management, L.L.C. has since dissolved. ( Tab 3 , Exhibit A). Descon Management, L.L.C. is an existing limited liability corporation and continues to be the general partner of Descon Construction, L.P. ( Tab 3 , Exhibit A). Since the time it was reinstated, Descon Construction, L.P. has existed as a recognized legal entity in the State of Texas through the present date ( Tab 2 , Exhibit C) ( Tab 3 , Exhibit A) ( Tab 4 , Exhibits E & F). *21 B. RGCCISD brought suit against Descon Construction, L.P.
On January 29, 2014, RGCCISD brought suit against Descon Construction, L.P. for negligence, breach of contract, and implied warranty of good and workmanlike manner. Descon Construction, L.P. appeared and answered. In the lawsuit, RGCCISD seeks more than $15 million dollars in damages.
The deadline for RGCCISD to file supplemental and amended pleadings was April 14, 2015. ( Tab 2 , Exhibits A & B). From the inception of suit until that deadline, RGCCISD filed numerous amended petitions. RGCCISD’s “Thirteenth Amended Original Petition” was filed on March 20, 2015. ( Tab 5 ). Each petition, including the RGCCISD’s “Thirteenth Amended Original Petition” named Descon Construction, L.P. as the Defendant. ( Tab 5 ). C. After the pleadings deadline, and two weeks before trial, RGCCISD amended its
pleadings to add multiple new parties. On April 24, 2015, ten days after the pleading deadline, RGCCISD filed another
petition that was also titled “Plaintiff’s Thirteenth Amended Original Petition.” ( Tab 6 ). In that pleading, however, “RGCCISD sues Texas Descon, L.P. fka Descon Construction, L.P., for purposes of enforcing its substantive rights, pursuant to Texas Rule of Procedure 28.” ( Tab 6 ).
On April 27, RGCCISD filed another petition that was also titled “Plaintiff’s Thirteenth Amended Original Petition.” ( Tab 7 ). This time, RGCCISD took a shotgun approach to naming new parties and added “J. Wayne Medlin aka/dba Descon 4S, L.L.C., aka/dba Descon Construction, L.P., aka/dba Texas Descon, L.P.,”. . . alleging that “each
3 *22 named entity and person are doing business under assumed names and as defendants pursuant to Texas Rule of Civil Procedure 28 and may sue the partnerships, assumed or common names of defendants for purposes of RGCCISD enforcing its substantive rights.” ( Tab 7 .). RGCCISD also named Michael C. Smith as a partner of Texas Descon, L.P. RGCCISD asserted that, under Rule 28, no service of process was necessary. ( Tab 7 ). D. RGCCISD filed documents confirming that Descon Construction, L.P. is a separate
and existing legal entity. At the time it filed its new pleadings, RGCCISD also filed a motion pursuant to Rule
28 to “substitute named defendants omitted.” ( Tab 3 ). In that motion, RGCCISD asserted that all of the named entities were operating under an assumed name (presumably, but not identified, as Descon Construction, L.P.) and, therefore, were parties to the existing suit. ( Tab 3 ). In support of this allegation, RGCCISD attached a web page purportedly published by Texas Descon, L.P., which claims that it was formed as a successor company to carry on the tradition and reputation of Descon Construction, L.P. ( Tab 3 . Exhibit A).
However, one of the other exhibits attached to RGCCISD’s motion is a Maintenance Correction Memorandum to Entity Record which confirms that Descon Construction, L.P. was in existence and had been reinstated. ( Tab 3 , Exhibit A). A certificate of reinstatement for Descon Construction, L.P. was also included in RGCCISD’s exhibits. ( Tab 3 , Exhibit A). The tax clearance letters and reports were also attached. ( Tab 3 , Exhibit A). Therefore, RGCCISD’s motion was accompanied by significant evidence establishing that Descon
4 *23 Construction, L.P. was re-instated and now is a separate and existing legal entity. ( Tab 3 , Exhibit A). E. Descon Construction, L.P. confirms that it is a separate and existing legal entity.
On April 28, 2015, Descon Construction, L.P. filed its objection and motion to strike the amended pleadings. ( Tab 8 ). As part of their objections, Descon Construction, L.P. confirmed that Descon Construction, L.P. was an existing entity that was not doing business under an assumed name. ( Tab 8 ). Descon Construction, L.P. also affirmed that Texas Descon, L.P. is not its successor in liability for the contract. ( Tab 8 ).
On the same day, Descon Construction, L.P. filed a second amended answer containing verified denials as to the identity and capacity of Descon Construction, L.P. as an entity also known as or doing business under any other name. ( Tab 2 , Exhibit C-C). F. After being made aware that Descon Construction, L.P. is a legal entity and the
only proper defendant, RGCCISD added more parties claiming that they were interchangeable under Rule 28. On April 29, 2015, fifteen days after the pleading deadline and after being notified of [2]
the correct party name, RGCCISD filed yet another Thirteenth Amended Petition. ( Tab 9 ). This time, RGCCISD modified the title slightly by adding “(b)” on the end of the title, thus titling the document, “Plaintiff’s Thirteenth Amended Original Petition (b).” ( Tab 9 ). In this 4th version of RGCCISD’s Thirteenth Amended Petition, RGCCISD named “J. Wayne *24 Medlin aka/dba Descon Management, L.L.C., aka/dba Maco Management, L.L.C., aka/dba Michael C. Smith aka/dba Descon 4S, L.L.C., aka/dba Descon Construction, L.P., aka/dba Texas Descon, L.P., each individually, dba and fka Descon Construction, L.P.” RGCCISD again asserts that no service is necessary under Rule 28. ( Tab 9 ). RGCCISD accompanied its petition with an amended “TRCP 28 Motion to Substitute,” and reattached the same exhibits confirming that Descon Construction, L.P. is a legal and existing separate entity. ( Tab 9 ). G. Descon Construction, L.P. filed verified proof that it is a separate existing legal
entity and the proper Defendant. Consequently, on April 30, 2015, Descon Construction, L.P. filed its supplemental
objection and motion to strike RGCCISD’s Thirteenth Amended Original Petition and motion to abate and response to RGCCISD’s Rule 28 motion. ( Tab 2 ). In that motion, Descon Construction , L.P. again confirmed that it was a legal existing entity, that it was the proper party to the suit, and that it was not known by any other name. ( Tab 2 , Exhibit C). Descon Construction, L.P. also detailed the relationships of each of the separate individuals and entities. ( Tab B , Exhibit C). In support of its motion and objections, Descon Construction, L.P. attached the affidavit of Michael C. Smith, who confirmed that Descon Construction, L.P. is an existing Texas limited partnership and that it was a separate and distinct entity from Texas Descon, L.P. ( Tab 2 , Exhibit C). Smith also confirmed that Descon Construction, L.P. has never done business as Texas Descon, L.P. ( Tab 2 , Exhibit
C).
6 *25 H. Descon Construction, L.P. moved for continuance or abatement so that the parties could be corrected or, if added, could conduct discovery. In addition to establishing proof of its existence as the correct defendant and only
party to the contract, Descon Construction, L.P. moved the Court to abate or continue the case. ( Tab 2 , Exhibit C). None of the newly added parties had been served. I. RGCCISD filed business records affidavit of a website builder who did work for
one of the newly named parties. On the day that the matter was set for hearing, RGCCISD filed a notice of intent to
use business records of a company named MPC studios. ( Tab 10 ). The attached records contain correspondence with Texas Descon, L.P. The records contain a handwritten note by an unidentified individual that notes that Texas Descon, L.P. entered into a licensing agreement with Descon Construction, L.P. for its goodwill. ( Tab 10 ). The handwritten notes are undated. ( Tab 10 ). J. Respondent allowed RGCCISD to add six new parties just ten days before trial, and
refused to grant a continuance or abatement. On May 1, 2015, just ten days before trial, Respondent heard the parties’ competing
motions. ( Tab 1 , pp. 13-26). No evidence was presented that any of the proposed new parties were doing business as, or were known as, Descon Construction, L.P. ( Tab 1 , pp. 13-26).
Despite the uncontroverted evidence that Descon Construction, L.P. is a separate and existing legal entity, Respondent granted RGCCISD’s Rule 28 motion and allowed it to join six new parties. ( Tab 1 , p. 26). Respondent also denied Descon Construction, L.P.’s motion
7 *26 to abate or continue the trial. ( Tab 1 , p. 26). It is undisputed that none of the new parties have been served. K. Respondent ordered counsel for Descon Construction, L.P. to act as counsel for the
six separate individuals and entities even after being informed of non- representation and potential conflict. After issuing orders, Respondent verbally ordered counsel for Descon Construction,
L.P. to produce information regarding the registered agents for the six newly named parties and ordered that counsel make those parties available for trial. ( Tab 1 , pp.168-172). Counsel explained that they did not represent any party other then Descon Construction, L.P. and that representation of those entities could cause conflict. ( Tab 1 , pp.168-172). Despite counsel’s clear admonishments regarding conflict, the court demanded that counsel produce the information in one hour, before 5:00 p.m. that day. ( Tab 1 , p. 172). Under threat of contempt, counsel for Descon Construction, L.P. conducted a public records search through the secretary of state to provide the identity and address of the registered agents of each of the six different entities.
SUMMARY OF THE ARGUMENT
Mandamus relief is proper when a trial court exerts jurisdiction over individuals and entities that have not been served and are not before the court. Respondent in this case entered an order commanding six new persons and entities to trial with one week of notice. None of the individuals or entities have appeared or even been served.
8 *27 Respondent’s ruling is based on Texas Rule of Civil Procedure 28, which allows for the substitution of names when it is shown that the defendant already involved in the litigation was doing business under another name. Significantly, the rule governs substituting names for one entity, not adding or joining parties. Rule 28 is procedural and does not change the substantive rights of parties.
The Texas Supreme Court and this Court have made it clear that, before Rule 28 can be invoked, there must be evidence that the parties sought to be substituted are actually doing business in the assumed name. Evidence that a person or entity is referenced by a common name is not sufficient to invoke Rule 28.
None of the evidence presented even suggests that any of the newly named individuals or entities are doing business as Descon Construction, L.P. Instead, the evidence conclusively established that all of the entities are separate legal entities and individuals doing business in their own name. Therefore, Rule 28 has no application to the facts of this case.
Respondent’s order results in a ruling that each of the general partners, limited partners, registered agents, and entities sharing a common registered agent are interchangeable for purposes of service, discovery, and liability. There is no interpretation of any law in the State of Texas to support such a complete and total disregard for the Texas Uniform Limited Partnership Act. Nor is there any interpretation of law in the State of Texas to support the notion that individuals and entities can be dragged into court on one week’s notice to answer claims in excess of $15 million when they have not even been served.
9 *28 Respondent’s abuse of discretion in this matter is clear. Because Respondent is asserting jurisdiction over individuals and entities that have not been served or appeared, no showing that Relator lacks an adequate remedy at law is required. However, under the extreme facts of this case, Descon Construction, L.P. has no adequate remedy at law.
ARGUMENT AND AUTHORITIES
A. Standard of Review. “A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” In re Ford Motor Company , 165 S.W.3d 315, 317 (Tex. 2005) (quoting Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)). A trial court has no discretion in determining what the law is or applying the law to the facts, even when the law is unsettled. In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135 (Tex. 2004). A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Walker, 827 S.W.2d at 840. B. It is an abuse of discretion to join parties under Rule 28 without proof that any of
the parties are doing business under an assumed name . 1. Descon Construction, L.P. is a legal entity separate from any of the newly
added parties. Descon Construction, L.P. is a limited partnership as defined by the Texas Revised Uniform Partnership Act. Although the partnership was temporarily dissolved after the completion of the contract giving rise to the underlying claims, it was fully reinstated in
10 *29 2012, before RGCCISD brought suit. It remains an existing legal entity, and has appeared and answered in the underlying suit to confirm that it is the properly named party.
In 1993, the Texas Legislature passed the Texas Revised Uniform Partnership Act [3] (TRPA) in 1993 and which “unequivocally embrace[d] the entity theory of partnership by specifically stating . . . that a partnership is an entity distinct from its partners.” Tex. Rev. Civ. Stat. Ann. art. 6132b-2.01, Comment of Bar Committee-1993; see In re Allcat Claims Serv., L.P. , 356 S.W.3d 455, 463-64 (Tex. 2011). The TRPA, codified in the Texas Business Organizations Code, plainly provides that “[a] partnership is an entity distinct from its partners,” and “[a] partner is not a co-owner of partnership property.” Tex. Bus. Orgs. Code §§ 152.056, 154.001(c). Further, it is the partnership interest that is a partner’s “personal property for all purposes.” Id. § 154.001(a); see Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd. , 337 S.W.3d 846, 855 (Tex. 2011) (noting that the general partner of a limited partnership is not an owner of the limited partnership’s property).
The fact that Texas recognizes limited partnerships, and other business organizations, as separate legal entities means that a limited partnership and the partners thereto are not interchangeable in court proceedings. See Roe v. Ladymon , 318 S.W.3d 502, 515-16 (Tex. App.—Dallas 2010, no pet.) (holding that limited partner is a distinct legal entity from the partnership and is not bound by an arbitration agreement, even when the limited partner *30 signed as a representative of the partnership); W & F Transp., Inc. v. Wilhelm , 208 S.W.3d 32, 45-46 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding that individuals would have been liable for work performed under d/b/a name, but that once the individuals formed a corporation, they could rely on the corporate form to shield them from individual liability); Manufacturers’ Hanover Trust Co. v. Kingston Investors Corp. , 819 S.W.2d 607, 611 (Tex. App.—Houston [1st. Dist.] 1991, no writ) (holding that court could not force the sale of property owned by a Texas limited partnership in a suit against the partners, where the Texas limited partnership was not a party). Under Texas Law, Descon Construction, L.P. is a separate and distinct legal entity from any of the other named defendants.
2. To invoke Rule 28, RGCCISD had to prove that the six new parties were, in fact, doing business under an assumed name. [4] For a party to take advantage of Rule 28 and sue in its common name, “there must be a showing that the named entity is in fact doing business under that common name.” Seidler v. Morgan , 277 S.W.3d 549, 553 (Tex. App.—Texarkana 2009, pet. denied). For example, although others may commonly and informally use the name of the premises location to refer to a particular entity, this does not mean that the entity is “doing business under” the premises name as an assumed or common name. Id .
*31 Examples of evidence that proves a person or entity is doing business under an assumed name include evidence that an entity was making demands and notices under the assumed name or that combined accounting procedures, such as payments on accounts, with the entity sought to be joined. Sixth RMA Partners v. Sibley , 111 S.W.3d 46, 52 (Tex. 2003) (holding that Sixth RMA used the assumed name RMA Partners by sending notices on RMA Partners letterhead and collecting debts owed to Sixth RMA under the name RMA Partners). However, records such as tax statements, appraisal records, and account information which indicate that one entity may refer to itself as another entity is not evidence that the entities are actually doing business as one another. KM-Timbercreek, LLC v. Harris Cnty. Appraisal Dist. , 312 S.W.3d 722, 730 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (references to separate entity in property records did not show that the entity was operating under an assumed name); see BACM 2002 PB2 Westpark Dr. LP v. Harris County Appraisal Dist. , No. 14-08-00493-CV, 2009 WL 2145922, at *6–7 (Tex. App.—Houston [14th Dist.] June 21, 2009, no pet.) (finding HCAD’s designation of BACM as the property owner instead of Parkwest Place in its records was insufficient to show the operation in an assumed name).
In KM-Timbercreek, LLC , the appellant complained that the trial court erred in denying its Rule 28 motion to substitute the name Timbercreek with Yorktown. 312 S.W.3d at 730. In support of its argument, the appellant pointed to evidence that Yorktown was the property owner according to tax records as evidence that Timbercreek was operating under
13 *32 the name Yorktown. Id. However, the Houston First Court of Appeals rejected the argument stating:
This argument ignores the specific language used in Rule 28, which frames the appropriate inquiry as not whether HCAD refers to or addresses an entity by a particular name, but whether that entity actually does business under the common name. Although HCAD’s appraisal records, account information, property tax statements, notice of appraised value, and order determining protest might be some evidence that HCAD refers to Timbercreek as Yorktown, without more, it is not evidence that Timbercreek conducts its business under the common name of Yorktown.
Id. These cases demonstrate the distinction between an entity that is known by a different name and entity that does business using a different name.
3. There is no evidence that any of the six additionally named parties were doing business as Descon Construction, L.P. To support its Rule 28 motion, RGCCISD submitted documents of the Secretary of State and Texas Comptroller of Public Accounts. Those documents merely establish the separate legal existence of the limited partnerships and limited liability corporations that Respondent added to the proceeding. These documents, if anything, negate the application of Rule 28 because the entities took legal steps to demonstrate their separate legal existence.
The only other documents that RGCCISD submitted in support of their Rule 28 [5] motion was a snapshot of a page from Texas Descon, L.P.’s website. That website indicates that Texas Descon, L.P. entered into a licencing agreement with Descon Construction, L.P. *33 in 2006 – before Descon Construction, L.P. was re-instated as a limited partnership. Even if Texas Descon, L.P.’s statements could be imputed to Descon Construction, L.P., the statements merely show that Texas Descon, L.P. has a right to Descon Construction, L.P.’s reputation and tradition. It does not show that Descon Construction, L.P. is doing business as Texas Descon, L.P. Nor does its show that Texas Descon, L.P. is doing business as Descon Construction, L.P. The distinction is important.
In In re Freedom Bible Research Inst. , this Court previously granted mandamus relief from an order that allowed “Freedom Bible Research Institute” and “Body of Christ Camp” to be substituted, pursuant to Rule 28 of the Texas Rules of Civil Procedure, for the parties named in the lawsuit as “Fred McCulloch and Betty McCulloch d/b/a Freedom Bible Research Institute, A Free Church a/k/a Body of Christ Camp.” No. 04-14-00550-CV, 2014 WL 5838941, at *4 (Tex. App.—San Antonio Nov. 12, 2014, no pet.). There, this Court observed:
Rule 28 is a procedural rule that simply provides that if an individual or entity conducts business under an assumed name, it may be sued in that name. See Tex. R. Civ. P. 28; Chilkewitz v. Hyson , 22 S.W.3d 825, 830 (Tex. 1999). Under this rule a suit against FBRI would be effective to commence a suit against Fred and Betty because Fred and Betty filed an assumed name certificate and were doing business as Freedom Bible Research Institute. The McClintocks’ position poses the opposite that the suit against Fred and Betty was effective to commence a proceeding against FBRI and the Camp. Such a conclusion would require some evidence that FBRI and the Camp were doing business as Fred and Betty McCulloch.
Id. 15 *34 Even if the web site of Texas Descon, L.P. constituted some evidence that Descon Construction, L.P., as currently organized and reinstated, was doing business as Texas Descon, L.P., such fact would not be effective to commence a suit against Texas Descon, L.P. The problem, as in In re Freedom Bible Research , is that RGCCISD brought suit against Descon Construction, L.P. See id. To commence a proceeding against Texas Descon, L.P., there would have to be evidence that Texas Descon, L.P. was doing business as Descon Construction, L.P., which the website disproves. Unlike the defendants in Sixth RMA , there is no evidence that Descon Construction, L.P. was actually doing business under the name Texas Descon, L.P., or that Texas Descon, L.P. was actually doing business under the name Descon Construction, L.P. See 111 S.W.3d at 52-53.
Moreover, none of the evidence submitted by RGCCISD even suggests that Descon Management L.L.C., Michael C. Smith, J. Wayne Medlin, Descon 4S L.L.C., or Maco Management, L.L.C. were doing business as Descon Construction, L.P. or vice versa. None of the evidence submitted suggests that any of the newly named parties interacted with RGCCISD through an assumed name at any time through the completion of the underlying contract. Yet, Respondent ordered each of these separate and existing entities to be joined by name – without service – a week before trial. Respondent’s actions constitute an abuse of discretion. See In re Freedom Bible Research Inst. , 2014 WL 5838941, at *4 (abuse of discretion shown where trial court ordered the substitution of parties without proof that the entities were doing business under an assumed name).
16 *35 4. Rule 28 cannot be used to join additional defendants to the law suit. Plaintiff cited Sixth RMA Partners, L.P. , for the proposition that the individuals and
entities identified in Plaintiff’s Thirteenth Amended Petition could be added to the lawsuit. See 111 S.W.3d at 53. However, Plaintiff ignores the holding in Sixth RMA : “Rule 28 requires that the correct legal name be substituted .” See 111 S.W.3d at 53 (emphasis added). The Supreme Court’s holding mirrors the text of Rule 28: “on a motion by any party or on the court’s own motion the true name may be substituted .” Tex. R. Civ. P. 28 (emphasis added). In other words, any time that a Rule 28 motion is granted, the number of the defendants in the case should always remain the same; only the name should change. This is why Rule 28 is a procedural mechanism that does not alter substantive rights. In this case, Plaintiff attempted to join six additional defendants to the lawsuit under the guise of a Rule 28 motion to substitute names. Respondent granted the false Rule 28 motion, adding six defendants to the case and abusing her discretion in doing so. C. It is an abuse of discretion to assert jurisdiction over parties that have not been
served. 1. Only defendants who have been sued and served are subject to the
jurisdiction of the trial court. No judgment may be rendered against a person who has been neither sued nor served. See, e.g., Tex. R. Civ. P. 124. Unless and until a person has been sued and served, that person is not a party to the lawsuit, and is not subject to the trial court’s jurisdiction. Mapco, Inc. v. Carter , 817 S.W.2d 686, 687 (Tex. 1991). The purpose of citation is to give the court
17 *36 jurisdiction over the defendant, satisfy due-process requirements, and to give the defendant the opportunity to appear and defend. Cockrell v. Estevez , 737 S.W.3d 138, 140 (Tex. App.—San Antonio 1987, no writ). A judgment cannot be rendered against a defendant unless the defendant was served with process, accepted or waived service, or made an appearance. Tex. R. Civ. P. 124; Werner v. Colwell , 909 S.W.2d 866, 869-870 (Tex. 1995); Mapco, Inc. v. Carter , 817 S.W.2d 686, 687 (Tex. 1991).
In KAO Holdings, L.P. v. Young , the plaintiff sued the limited partnership, and not the general partner, but nonetheless obtained a default judgment against both. 261 S.W.3d 60, 61 (Tex. 2008). The Texas Supreme Court stated as follows:
Partners against whom judgment is sought should be both named and served so that they are on notice of their potential liability and will have an opportunity to contest their personal liability for the asserted partnership obligation.
Id. at 64 (footnote omitted). Respondent’s order is a ruling that forces six named individuals and entities to trial without the benefit of service, discovery, or defense. As to Descon Construction, L.P., it forces Descon Construction, L.P. to trial under theories of joint and several liability that have not been developed. Respondents use of Rule 28 to eviscerate Relator’s substantive rights constitutes a clear abuse of discretion. See In re Freedom Bible Research Inst. , 2014 WL 5838941, at *4 (abuse of discretion shown where trial court ordered the substitution of parties without proof that the entities were doing business under an assumed name). Lack of
18 *37 jurisdiction is fundamental error – an objection to lack of jurisdiction may be raised at any time, and that objection cannot be waived. See id ; Mapco, Inc. , 817 S.W.2d at 687.
2. RGCCISD sued and served only Descon Construction, L.P. Up until April 24, 2015, Descon Construction, L.P. was the only party to be named
in this proceeding. As of this date, Descon Management, L.L.C., Michael C. Smith, J. Wayne Medlin, Descon 4S, L.L.C. and Maco Management, L.L.C. have not been served. Yet, Respondent has ordered Descon Management, L.L.C., Michael C. Smith, J. Wayne Medlin, Descon 4S, L.L.C., and Maco Management, L.L.C. to appear at trial and answer RGCCISD’s charges against them. The evidence submitted by both the Relator and the Real Party in Interest confirms that each of the named parties and individuals are separate existing legal entities.
A lawsuit against A d/b/a B is only a lawsuit against A, when A and B are separate legal entities. See W & F Transp., Inc. v. Wilhelm , 208 S.W.3d 32, 46 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (recognizing the difference between (I) individuals doing business under an assumed name, and (ii) individuals doing business through an actual business entity); Rosenthal v. Terrazo Nat’l Tile & Marble, Inc. , 742 S.W.2d 55, 56 (Tex. App.—Houston [14th Dist.] 1987, no writ) (petition against “Bennett Rosenthal, individually and doing business as 9201 Partnership, Ltd.” “plainly allege[d] a cause of action against only one defendant.”). When a plaintiff sues and serves A d/b/a B, assuming B is an entity
19 *38 separate and distinct from A, then the jurisdiction of the trial court has not attached to B. See id. Instead, the plaintiff must separately sue and serve the other legal entity.
RGCCISD has tried to blur the line between the separate and distinct legal entities by inserting the phrase “aka/dba” in between each entity and individual. However, this act is merely one of nomenclature and does not change the identity or substantive rights of the separately existing entities. See W & F Transp., Inc. , 208 S.W.3d at 46; Rosenthal , 742 S.W.2d at 56. Therefore, Respondent does not have jurisdiction over Descon Management, L.L.C., Michael C. Smith, J. Wayne Medlin, Descon 4S, L.L.C. or Maco Management, L.L.C. because those individuals and business entities have not been served. Nonetheless Respondent has issued an order making those individuals and business entities parties to RGCCISD’s lawsuit, and making Descon Construction, L.P. jointly and severally liable for their actions. D. Mandamus is proper because Respondent issued orders beyond her jurisdiction .
“Generally, mandamus relief lies when the trial court has abused its discretion and the relator has no adequate remedy by appeal.” In re Suarez , 261 S.W.3d 880, 882 (Tex. App.—Dallas 2008, no pet.) . “If an order is void, however, a relator need not show it does not have an adequate remedy to be entitled to mandamus relief.” In re Green Oaks Hosp. Subsidiary, L.P. , 297 S.W.3d 452, 456 (Tex. App.—Dallas 2009, no pet) . When a trial court issues an order beyond its jurisdiction, the order is void, constitutes an abuse of discretion, and is correctable by mandamus without a showing that the relator lacks an
20 *39 adequate appellate remedy. In re SW. Bell Tel. Co. , 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) ; In re Green Oaks Hosp. Subsidiary, L.P. , 297 S.W.3d at 456; In re Suarez , 261 S.W.3d at 882 . When a trial court allows for improper substitution pursuant to Rule 28 and asserts jurisdiction over separate entities, a relator lacks an adequate remedy at law and is entitled to mandamus relief without further showing. In re Freedom Bible Research Inst. , No. 04-14-00550-CV, 2014 WL 5838941, at *3 (Tex. App.—San Antonio Nov. 12, 2014). E. Mandamus is proper because Relator has no adequate remedy at law.
In the alternative, Descon Construction, L.P. would show that the combined actions of Respondent in adding six new and unserved parties ten days before trial, denying abatement and continuance, and ordering counsel for Relator to act as counsel for the six newly named parties, is so extreme as to render this an exceptional case where mandamus relief is appropriate. The adequacy of an appellate remedy must be determined by balancing the benefits of mandamus review against the detriments. In re Team Rocket, L.P. , 256 S.W.3d 257, 262 (Tex. 2008) (citing In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 136 (Tex. 2004). In evaluating benefits and detriments, a court must consider whether mandamus will preserve important substantive and procedural rights from impairment or loss. In re Team Rocket, L.P. , 256 S.W.3d at 262 . In Prudential , the Supreme Court departed from the [6] categorical view of mandamus entitlement espoused in Walker and instructed that the *40 adequacy of an appellate remedy depends on the circumstances of a case and that mandamus is appropriate when the benefits of mandamus review outweigh the detriments. Prudential, 148 S.W.3d at 137. By 2008, the Texas Supreme Court made the extent of its departure from Walker clear when it focused specifically on the unnecessary costs and delays that would be incurred if mandamus was denied to correct an abuse of discretion. In re McAllen Med. Ctr., Inc. , 275 S.W.3d 458, 466 (Tex. 2008). A reviewing court must consider whether mandamus will spare litigants and the public “the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” Team Rocket , 256 S.W.3d at 262 (quoting Prudential , 148 S.W.3d at 136).
In Prudential , the Supreme Court has recognized that “[m]andamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss.” 148 S.W.3d at 136. Several of those important substantive and procedural rights are lost under the trial court’s orders which results in liability for Descon Construction, L.P. for the acts and associations of six or more separate entities who have no time to prepare a defense, and whose interests may stand in conflict to those interests of Descon Construction, L.P.. Additionally, due to the timing of the court’s orders on the eve of trial, Descon Construction, L.P. has no opportunity to participate in discovery and develop defenses responsive to theories of assumed name, common name, d/b/a, a/k/a, limitations and joint and several or vicarious liability.
22 *41 It is beyond dispute that there will be a substantial waste of the litigants’ time and money if they were to proceed to trial without the error being corrected. At a minimum, such action will result in a convoluted appeal of a trial projected to last between three to four weeks. Where a trial court’s error will cause a waste of judicial resources, an appellate court may properly consider that factor in determining the adequacy of an appeal to remedy the error in question. See Walker , 827 S.W.2d at 843. Furthermore, RGCCISD’s untimely Thirteenth Amended Petition inserts new issues into the case that were never pleaded and are completely baseless, e.g. correct application of partnership liability law and piercing the corporate veil doctrine. By allowing RGCCISD to add six new parties and denying the motion for continuance, the Respondent is forcing litigants to proceed to a trial on issues that no one has prepared for.
Descon Construction, L.P. asserts that it is the only rightful party before this Court. However, even if the individuals and entities listed in RGCCISD’s Thirteenth Amended Petition are proper defendants, a stay of the proceedings is necessary. If any of the other named and unserved parties were forced to trial at this stage in the proceedings, they would be forced with choosing between (i) waiving personal jurisdiction and trying a case with a week of preparation and (ii) allowing RGCCISD to take a default judgment against them.
The potential waste of resources, when combined with the possibility that any subsequent appeal may be hindered by Descon Construction, L.P.’s inability to conduct discovery to build an adequate appellate record, supports the conclusion that an appeal would
23 *42 not adequately protect the parties rights. Relator submits that mandamus review should issue here to spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Relator Descon Construction, L.P., respectfully requests that this Honorable Court grant a Writ of Mandamus directing the 229th District Court of Starr County, Texas to:
1. Vacate its order granting Plaintiff’s First Amended Rule 28 Motion to Substitute Named Defendants and to compel defendants to properly identify any other parties.
2. Grant Relator’s Motion to Strike the 13th Amended Petition (all versions) and to continue or abate. 3. And for any other relief to which Relator may be entitled. 24 *43 Respectfully submitted, COKINOS, BOSIEN & YOUNG 10999 IH-10 West, Suite 800 San Antonio, Texas 78230 (210) 293-8700 (Office) (210) 293-8733 (Fax) By: /s/ Karen L. Landinger
Date: May 4, 2015
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 Gabriel S. Head State Bar No. 24055642 ghead@cbylaw.com
ATTORNEYS FOR RELATOR, DESCON CONSTRUCTION, L.P.
25
CERTIFICATE OF SERVICE
*45 I certify that a copy of the Original Petition for Writ of Mandamus was served on the following on the 4th day of May, 2015: R ESPONDENT
The Honorable Ana Lisa Garza District Judge
th 229 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) alglaw1@aol.com asaenz@co.starr.tx.us
I NTERESTED P ARTIES 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) normanjollypc@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 Martie Garcia Vela 100 West 5th Street Rio Grande City, Texas 78582 (956) 488-8170 (Office) (956) 488-8129 (Fax) martie.garcia@gmail.com
27 *46 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 Party, 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@amwlawfirm.com admin1@amwlawfirm.com
28 *47 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 Christi, Texas 78401 (361) 883-0620 (Office) (361) 883-0612 (Fax) mvillarreal@southtxdefense.com rkhinkle@southtxdefense.com afrees@southtxdefense.com 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 78401 (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
29 *48 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 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
30 *49 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 (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. 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
31 *50 Attorneys for Interested Party, 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 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 Attorneys for Interested Party, Tri City Steel and Fabrication, Inc. Thomas A. Mailloux II Brock Person Guerra Reyna, P.C. 17339 Redland Road San Antonio, Texas 78247-2302 (210) 979-0100 (Office) (210) 979-7810 (Fax) tmailloux@bpgrlaw.com blawrence@bpgrlaw.com
/s/ Karen L. Landinger Karen L. Landinger 32 *51 IN THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS Descon Construction, L.P., Relator ___________________________________________________________________________ th From the 229 District Court of Starr County, Texas Case No. DC-14-46
___________________________________________________________________________ APPENDIX * Tab 1: May 1, 2015 Hearing Transcript of Pretrial Motions Tab 2: Defendant Descon Construction, L.P.’s Supplemental Objection
and Motion to Strike Plaintiff’s Thirteenth Amended Original Petition (all versions) and Motion to Abate and Response to Plaintiff’s Rule 28 Motion
Tab 3: Plaintiff’s TRCP 28 Motion to Substitute Named Defendants Omitted by Defendants’ Disclosures and to Compel Defendants to Properly Identify Any Other Parties
Tab 4: Plaintiff’s TRCP 28 Motion to Substitute Named Defendants Omitted by Defendants’ Disclosures and to Compel Defendants to Properly Identify Any Other Parties
Tab 5: Plaintiff’s Thirteenth Amended Original Petition (dated March 20, 2015) Tab 6: Plaintiff’s Thirteenth Amended Original Petition (dated April 24, 2015) Tab 7: Plaintiff’s Thirteenth Amended Original Petition (dated April 27, 2015) 33 *52 Tab 8: Defendant Descon Construction, L.P.’s Objection and Motion to Strike Plaintiff’s Thirteenth Amended Original Petition Tab 9: Plaintiff’s Thirteenth Amended Original Petition (dated April 29, 2015) Tab 10: Plaintiff’s Notice of Intent to Use Business Records 34 *53 Tab 1 *54 1 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 COURT REPORTER'S RECORD VOLUME 1 OF 1 VOLUMES TRIAL COURT CAUSE NO. DC-14-46 RIO GRANDE CITY ) IN THE DISTRICT COURT CONSOLIDATED INDEPENDENT ) SCHOOL DISTRICT ET AL )
) v. ) DUVAL COUNTY, TEXAS ) DESCON CONSTRUCTION, ERO, ) LIMON MASONRY, C & M, )
TRI CITY GLASS, ET AL
) 229TH JUDICIAL DISTRICT
____________________________________________
PRETRIAL MOTIONS
____________________________________________ On the 1st day of May, 2015, the following proceedings came to be heard in the above-entitled and numbered cause, in the courtroom of the 229th Judicial District Court, at the Starr County Courthouse in Rio Grande City, Texas, before the Honorable Ana Lisa Garza, District Judge.
These proceedings were reported by computerized stenotype machine by Mr. Ramiro Hernandez, Official Court Reporter for the 229th Judicial District; court reporter's record produced by computer with software-assisted translation of shorthand symbols to English. *55 2 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 APPEARANCES: MR. NORMAN JOLLY MR. MICHAEL B. JOLLY MR. HAMILTON G. RUCKER ATTORNEYS AT LAW 405 MAIN, SUITE 1000 HOUSTON, TEXAS 77002 PHONE: 713-237-8383 FAX: 713-237-8385 ATTORNEYS FOR PLAINTIFF MS. MARTIE GARCIA VELA ATTORNEY AT LAW 100 WEST 5TH STREET RIO GRANDE CITY, TEXAS 78582 PHONE: 956-488-8170 FAX: 956-488-8129 ATTORNEY FOR PLAINTIFF MILLS SHIRLEY LLP MR. GRANT GEALY, PARTNER ATTORNEY AT LAW ONE CITY CENTRE 3 RIVERWAY, SUITE 100 HOUSTON, TEXAS 77056 PHONE: 713-225-0547 FAX: 713-225-0844 E-MAIL: ggealy@millsshirley.com
ATTORNEY FOR HALFF ASSOCIATES, INC
ANDREW M. WILLIAMS & ASSOCIATES MR. DOUGLAS M. WALLA, OF COUNSEL ATTORNEYS AT LAW 5909 WEST LOOP SOUTH, SUITE 550 BELLAIRE, TEXAS 77401 PHONE: 713-840-7321 FAX 713-839-1302 EMAIL: doug@amwlawfirm.com
ATTORNEY FOR AAS CONSULTING, INC.
*56 3 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1
APPEARANCES CONTINUED
HEARD & MEDACK, P.C. MR. JAMES "JIM" DAVIS ATTORNEYS AT LAW 9494 SOUTHWEST FREEWAY, SUITE 700 HOUSTON, TEXAS 77074 PHONE: 713-772-6400 FAX: 713-772-6495 E-MAIL: jdavis@heardmedackpc.com ATTORNEYS FOR R & R CONSTRUCTION RYMER, MOORE, JACKSON & ECHOLS, P.C. MR. MICHAEL G. DUNNAHOO ATTORNEYS AT LAW 2801 POST OAK BOULEVARD, SUITE 250 HOUSTON, TEXAS 77056 PHONE: 713-626-1550 FAX: 713-626-1558 E-MAIL: mddunnahoo@rmjelaw.com
ATTORNEYS FOR ZARATE SUSPENDED CEILINGS
GARZA & GARZA, L.L.P MR. DAVID C. GARZA ATTORNEYS AT LAW 680 E. SAINT CHARLES, SUITE 300 BROWNSVILLE, TX. 78520 PHONE: 956-541-4914 FAX: 956-542-7403 E-MAIL: dgarza@garzaandgarza.com ATTORNEYS FOR C & M CONTRACTING ROERIG, OLIVEIRA & FISHER, L.L.P. MR. DAVID G. OLIVEIRA ATTORNEYS AT LAW SUITE 9, PRICE PLAZA BUILDING 855 WEST PRICE ROAD BROWNSVILLE, TEXAS 78520 PHONE: 956-542-5666 FAX: 956-542-0016 E-MAIL: doliveira@rofllp.com
ATTORNEYS FOR DESCON CONSTRUCTION
*57 4 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1
APPEARANCES CONTINUED
COKINOS, BOSIEN & YOUNG MR. JOHN SMITH, MR. GABRIEL S. HEAD, MR. JAY FARWELL ATTORNEYS AT LAW 10999 WEST IH-10, SUITE 800 SAN ANTONIO, TEXAS 78230 PHONE: 210-293-8713 FAX: 210-293-8733 EMAIL: jfarwell@cbylaw.com
ATTORNEYS FOR DESCON
HINKLE & VILLARREAL, P.C. MR. R. KYLE HINKLE ATTORNEYS AT LAW 719 S. SHORELINE, SUITE 300 CORPUS CHRISTI, TEXAS 78401 PHONE: 361-883-0620 FAX: 361-883-0612 E-MAIL: rkhinkle@southtxdefense.com
ATTORNEYS FOR C. A. RAY AND SON
DUNN, WEATHERED, COFFEY, RIVERA & KASPIRITIS, P.C. MR. PAT KASPIRITIS ATTORNEYS AT LAW 611 S. UPPER BROADWAY CORPUS CHRISTI, TEXAS 78401 PHONE: 361-883-1594 FAX: 361-883-1599 ATTORNEYS FOR FAIRESS CONSTRUCTION AND FOR D & J SITE
CONSTRUCTION
ENGVALL & LOPEZ, LLP MR. BRIAN C. LOPEZ, PARTNER MS. BRITTANY CRAVENS COOPERRIDER, ASSOCIATE 1811 BERING DRIVE, SUITE 210 HOUSTON, TEXAS 77057 PHONE: 713-787-6700 FAX: 713-787-0070 E-MAIL: blopez@eltexaslaw.com, bcooperrider@eltexaslaw.com
ATTORNEYS FOR LIMON MASONRY
*58 5 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 APPEARANCES CONTINUED MR. JASON WEST ATTORNEY FOR KBM AIR CONDITIONING MACDONALD DEVIN MR. GREGORY N. ZIEGLER, SHAREHOLDER ATTORNEYS AT LAW 3800 RENAISSANCE TOWER 1201 ELM STREET DALLAS, TEXAS 75270 PHONE: 214-744-3300 FAX: 214-747-0942 EMAIL: gziegler@macdonalddevin.com ATTORNEYS FOR PEREZ CONSULTING ENGINEERS MR. JOHN A. GUERRA MR. LOUIS A. GROSS ATTORNEYS AT LAW 17339 REDLAND ROAD SAN ANTONIO, TEXAS 78247-2304 PHONE: 210-979-0100 FAX: 210-979-7810 ATTORNEYS FOR ZARATE SUSPENDED CEILING, INC., AND DANIEL VASQUEZ, D/B/A TWIN CITY GLASS MR. JOHN R. GRIFFITH, MR. OSCAR O. LOPEZ ATTORNEY AT LAW 801 E. FERN AVENUE, SUITE 170 MCALLEN, TEXAS 78501 PHONE: 956-971-9446 FAX: 956-971-9451 ATTORNEY FOR ERO INTERNATIONAL, LLP *59 6 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: If you want to start coming forward so we can see what we are going to take first, in what order we are going to take it up first. My first question to everybody is -- okay, gentlemen, go ahead and make your appearances for the record. We are now on record on DC-14-46 Rio Grande City I.S.D. versus Descon Construction LP et al. If we can go ahead and start with the plaintiffs.
MR. N. JOLLY: Good morning, Your Honor, Norman Jolly, Mike Jolly, Hamilton Rucker, Marty Vela. I think that's all of us for the Plaintiff. And James Parker.
THE COURT: Okay. I was going to say well you've got another guy standing there and you are not saying anything.
MR. N. JOLLY: Sorry. THE COURT: Okay. And now for the defense, if
y'all will just start at this table. MR. GEALY: Grant Gealy for Halff Engineering. MR. WALLA: Doug Walla for AAS Consulting Inc. MR. DAVIS: James Davis for R & R
Construction. MR. DUNNAHOO: Michael Donnahoo for Zarate Suspended Ceilings. MR. GARZA: Good Morning, Your Honor, David *60 7 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 Garza on behalf of C & M Contracting. MR. OLIVEIRA: David Oliveira for Descon. I apologize, I don't haveM a card. THE COURT: That's okay. MR. SMITH: Robert Smith for Descon. MR. HEAD: Gabriel Head for Descon. MR. FARWELL: Jay Farwell for Descon. MR. HINKLE: Kyle Hinkle for C. A. Ray and
Son. MR. KASPERITIS: Your Honor, Pat Kasperitis for appearing for David Dunn for D & J Site Construction and for Fairess Plumbing.
MR. B. LOPEZ: Brian Lopez and Brittany Cooperrider for Limon Masonry. MR. WEST: Jason West for KBM Air Conditioning. MR. ZIEGLER: Greg Ziegler for third-party defendant Perez Consulting Engineers. MR. GUERRA: John Guerra, co-counsel for Zarate Suspended Ceilings and we also represent together with Bruce Gross for Twin City Glass.
THE COURT: Is that everybody? MR. N. JOLLY: Everyone that's here, but there
are some people missing. THE COURT: That's tough because it's 10:00, *61 8 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 and I am not going wait. So we are going forward. Okay. Y'all can be seated. So I think the first thing we probably should do is take up if there's any more motions for leave to designate responsible third parties. I know that I see that Limon Masonry filed that motion so is there anyone here for Limon Masonry?
MR. B. LOPEZ: Your Honor. THE COURT: You need to come forward and
identify yourself because my court reporter is not going to remember your names. You are too many so that's --
MR. B. LOPEZ: Yes, ma'am. Brian Lopez for Limon Masonry. We did have the Motion for Leave to Name New Parties, Descon I believe also filed that.
MR. SMITH: Yes, Your Honor. MR. B. LOPEZ: If Descon files that we'll
withdraw because we are in agreement for Limon. THE COURT: I think I already granted that. MR. N. JOLLY: This is a new one. THE COURT: This is a new one? MR. B. LOPEZ: Yes. THE COURT: Okay, so you are going to abandon
that pleading. MR. B. LOPEZ: Yes because Descon is in agreement with us. MR. N. JOLLY: We are not because they want to *62 9 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 delay the case and sue another party, bring him in, by citation, not just designate.
THE COURT: Well, with reference to designation, I mean, is that correct that you actually want to bring them in other than just designate them?
MR. SMITH: Yes, Your Honor. THE COURT: We are too late in the game don't
you think? MR. SMITH: Well, Your Honor, if I could quickly explain. There was a particular, uh -- Robert Smith for Descon -- there was a particular, uh, Plaintiff's expert, uh, Mr. Wallace, who prepared a report and who complained in his report or said in his report that Perez Engineers was the responsible party with regard to complaints about design and, uh, we took -- his deposition actually was supposed to have been taken a couple months ago and he just flat did not get it on his calendar and it was pushed back a month when he was available again so we just took his deposition about not even a month ago, Your Honor, and Mr. Wallace at that time said my, my report was generated and was based upon looking at documentation that was not the correct documentation. The correct documentation was a submittal that was submitted and I didn't realize that and we asked him if he had changed *63 10 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 his, uh, report at any time and he said, "No, a decision was made between me and the other experts and Plaintiff's counsel not to change my report. I am here today to give my opinions about it." And he gave his opinions and he said, "My ultimate opinion is that this wall needs to be replaced. My opinion has not changed with regard to that." We requested him and his background was that no Perez was not the responsible party for that because they weren't involved in the design of what was actually built, that it was a new entity, a new company Pavestone that generated the documentation with regard to the construction of that particular wall and their engineer that developed the design of that wall. Descon had a purchase order and purchased the wall materials as well as the engineered drawings. So, at the deposition of Mr. Wallace for the first time we hear that, no, Perez is not the responsible party for that wall, Pavestone and their engineer is, uh, but we never changed our report, we never gave any heads up that we're changing our report, that we have looked at anything else, or that anything has changed. We came back and within, uh, days we waited for the transcript and within days the, uh, motion was filed to join them as a, uh, third-party with regard to the lawsuit and also to designate them as a *64 11 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 responsible third-party. Your Honor, uh, we went ahead and, uh, we believe that we have done it timely. He has known, Mr. Wallace has known since our reports, our expert reports were generated back in August. We said wait a minute, Wallace has looked at the wrong documents. Uh, so he's known since August that he had looked at the wrong documents. And during that time period he didn't look at them until shortly before his depo and then he changed his opinions. So, that's why we are seeking at this late date to bring in a third-party and to not only just designate them as a responsible third-party, but we actually have a contractual claim against them, via our purchase from them of this wall system including the engineered drawings that now for the first just weeks ago Plaintiff says is defective engineering, defective design.
THE COURT: Well, if you were dealing with them wouldn't you have known about it? You just said that.
MR. SMITH: We knew about them but their complaint was about Perez, who is in the lawsuit. THE COURT: What's your response?
MR. SOLIS:
MR. N. JOLLY: Nothing personal but counsel is *65 12
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 not -- either hasn't read the transcript of the witness or has not been informed what it accurately states because what the witness said was that he had not changed his opinion and that the design was adequate. That's on page 113 of the transcript. May I hand it to you?
THE COURT: Okay. MR. N. JOLLY: So the -- all the superfluous
stuff about the block changing, that didn't change his opinion. The metal engineers and engineer that works at the block company and in some other state didn't come out to the job, didn't install anything, didn't do one single thing at the job. The submittal engineer is not being criticized. The opinion is still the same. This is just the same to delay the case.
THE COURT: You don't have a problem with the designation just having them brought in to the lawsuit. MR. N. JOLLY: Exactly. As we said before you get your third-party designation now and in between now and when the jury gets the charge you can decide whether or not the jury should get that party's name submitted.
THE COURT: Right. That's what I am asking. MR. N. JOLLY: We would object at that time,
uh -- THE COURT: Depending on what the evidence *66 13 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 shows. MR. N. JOLLY: Correct. But at this time that's -- THE COURT: I am going to allow him to bring him in as a third-party designation, but not as a party into the lawsuit. It's too late.
MR. N. JOLLY: May I have this back, Your Honor? THE COURT: Yes. Okay so we are done with Descon's Motion for Leave to File Third-party Petition and Designate Responsible Third-party, and with Limon Masonry's Motion for Leave to Designate, that was abandoned. Is there any other motions for leave to designate any other parties? (pause) Okay. So we've gotta whole lot of motions to strike, motions to exclude, motions for summary judgment.
MR. OLIVEIRA: David Oliveira for Descon, we have a Motion to Strike 13th Amended Petition on the basis they have added six new parties that have not been served and we believe that, uh, it's too late in the game and I think if you take that motion up and you agree with us, that, uh, that you won't have to argue the other hundred motions that are pending.
THE COURT: Okay, let me look for that because that's not on my list. *67 14 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COORDINATOR: Yes it's just that they have been filing -- THE COURT: So y'all are still filing. THE COORDINATOR: Whose motion is that,
please? THE COURT: Descon's. MR. OLIVEIRA: Descon's motion, Motion to
Strike, it's Objections and Motion to Strike Plaintiff's 13th Amended Original Petition.
THE COURT: Thirteenth amended? MR. OLIVEIRA: Thirteenth amended original
petition. THE COURT: Okay. MR. OLIVEIRA: We have a hard copy. THE COURT: I have one. MR. OLIVEIRA: Okay. THE COURT: Okay let's go ahead and take that
up. MR. OLIVEIRA: Okay, Your Honor, basically the Plaintiffs recently filed four pleadings captioned Plaintiff's 13th Amended Original Petition. In three editions of the pleadings they purport to join six to eight new parties: Texas Descon LP, uh, Wayne Medlin Descon Management LLC, MayCo Management, LLC, Michael Smith, and then Descon 4S LLC. Three of these four *68 15 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 additions of the pleadings were served on April 24th, 27th and 29th of, uh, this year, just in other words in the last two weeks or well actually one of them in the last, uh, two days ago I guess.
Uh, obviously, Your Honor, we object to, uh, for a number of reasons. First and foremost the deadline for joinder of parties was, uh, I believe in June 27th, 2014, almost a year ago. Secondly, the deadline to file supplemental or amended pleadings which these aren't was April 14th. So, they are clearly, they have blown two different deadlines.
Your Honor, additionally, they haven't served any of these people. Uh, an answer won't be due wouldn't be due anyway even if they served them before, uh, uh, before the trial date of Monday, and obviously these are new parties that are going to require -- be required to hire, uh, additional counsel and hire their own counsel and, uh, I don't see how we can go to trial with six to eight new parties.
MR. N. JOLLY: Done? Judge they are not new parties. May I approach? Your Honor, the defendants are incorrectly named so they are not new parties and, uh, you know, I've known David a long time, I don't expect him to be familiar with Rule 28, but it's mainly something that is, uh, inures to the benefit of a *69 16 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 plaintiff, not always but usually. And, uh, and the reason is is because it's there to prevent the shenanigans that have been going on. So namely with regard to Descon's failure to identify these parties as potential parties in their disclosures, you know, ha, ha, I am not going to call anyone any names or make any accusations --
THE COURT: Well don't do that. MR. N. JOLLY: -- but just to, to come in here
and say some submittal engineer is a potential party and try to bring him into the case, but not tell us that Descon has changed its name, is, uh, completely inappropriate. Those names should have been given to us a long time ago and it's a good thing the legislature thought of this in advance and that's why they wrote Rule 28. The Supreme Court has looked at it, looked at it many times. The landmark case is called RMA Partners, uh, 2003, Texas Supreme Court case. And in that case the same arguments --
THE COURT: So in other words, you did some research and found out that they had different names or they had changed here names.
MR. N. JOLLY: Right. THE COURT: In the last however long. MR. N. JOLLY: Right. In this, this -- the *70 17
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 drama gets even deeper because this is something we found out when we were told at a recent meeting with the guy that tried to resolve this case that Descon didn't exist any more, that they were defunct, so of course we take statements like that pretty seriously and our internet guru got online and found a company online named Texas Descon LP. It's Exhibit A. It's the first screen shot on the home page. And you can see right there on Exhibit A that, uh, this gentleman, Michael Smith says on January 25th, 2006 Descon Construction -- which isn't the exact name of the Descon entity in this case, it's Descon Construction LP, and if you read further, "was renamed to its successor company," something that should have been given to us in disclosures a long time ago. Texas Descon LP. Entering a license agreement. Something else that should have been given to us a long time ago. To carry on the tradition and reputation of Descon Construction LP which is the correct name of the party to the construction agreement in this case. Signed by its representative -- this is significant -- Wayne Medlin also known as Jerry Medlin, Jerry Wayne Medlin, J. Medlin. He goes by a variety of different abbreviations. The successor company, Texas Descon LP was found by Michael Smith. You know, and the rules have changed about what you can *71 18 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 get from the Secretary of State now, so this is the -- this is it. This is all you can get. The other things you can keep them in your back pocket, naming the partners, uh, things that should have been given to us in disclosures but weren't, those sorts of things that are now not filed with the Secretary of State, the things that are filed with the Secretary of State are right here and it goes from 1975 up 'til present. Dissolved, reinstated, same two guys, over and over again, Mr. Medlin, Mr. Smith. Change in the name around 2012, it's the same people, same address on 10th Street, things that should have been given to us in disclosures.
MR. OLIVEIRA: Your Honor -- MR. N. JOLLY: I am not finished, David, thank
you. MR. OLIVEIRA: I'm sorry, she looked at me, I have a response. MR. N. JOLLY: There's more. So to our astonishment, I guess, you know, something new happens every day that's good isn't it? We actually get an affidavit from the gentleman, Mr. Smith, in this response claiming that this website was not created with his authority, and I think that was last Friday? Well so we gotta subpoena you know, you know -- I didn't know this, but you go to the bottom of a website, and then *72 19 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 whoever dreams up that website their name is down there, and then whoever owns the website is called, uh, domain registration, but we don't get that information. We should have been given it in disclosures, but the domain registration says Texas Descon. We have to go over to Ireland or Switzerland to find out who actually owns that. Or, we could get it in disclosures.
So -- THE COURT: Well I would opt to going to
Switzerland. MR. N. JOLLY: Agreed. Agreed. (Laughter). THE COURT: So, uh, so we take a subpoena and we go over to this MPC studios and got the documents from MPC studios yesterday. May I approach? The, the MPC studios is the entity that created the Texas Descon LP successor, renamed, formerly known as the party that contracted to build this building. They are Descon. And that's what Rule 28 says. If Mr. Medlin and Mr. Smith are operating these entities by whatever Descon name they are calling it today, those two guys are doing business as Descon Construction, Descon Construction LP, Texas Descon, it doesn't frankly matter, and what the Supreme Court has said is you don't have to serve them, they are separate legal entities, the Supreme Court says *73 20 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 it doesn't matter, uh, you don't have to serve. Them if there is a fact question -- and there is -- then it's a question of fact for the Court. They don't have to be served. That is completely wrong. The Texas Supreme Court addresses that in RMA Partners. They don't have to be served. The Supreme Court says that if some facts established that these two gentlemen are operating these Descon entities as their assumed name, their common name, then it is presumed they were served from the original filing of the lawsuit and had been on notice since day one. Mr. Medlin is the representative in the contract, Mr. Medlin was the registered agent, he and Mr. Smith had been in business together for seven five years -- 35 years, it's -- that's in his affidavit where he claimed -- and you notice everybody dealing with MPC, their name is the same name. I guess they are his sons, his rogue sons, cooking up this website. So, you know, gonna live by the sword you got to die by it. The gentlemen, or parties, their names need to be substituted pursuant to rule 28. All of the same arguments have been made repeatedly, they were made at the Supreme Court and they failed.
The second reason that these folks are in this case is because they contracted to be in the case. The contract -- and by the way these very same -- *74 21 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 Mr. Griffith is here now. The very same issues relate to ERO. ERO changed its name and has an assumed name that they actually filed. Oh, the Supreme Court -- I'm sorry, a different Court not the, not the Court in RMA Partners, a different Court that has interpreted Rule 28 has said I don't even have to go get the assumed name certificate. There just has to be a fact question. So if you go to the actual contract -- may I approach? These are just a few pages from the agreement. This is the contract to construct Grulla Elementary that's the subject of this litigation. And you can see there on the first page the owner is the Rio Grande City Consolidated Independent School District. The contractor Descon Construction LP. That's the company that's been renamed, according to it's website, Texas Descon LP. And the reason I give you 4th page of the agreement is because there's legal significance to Mr. Medlin being the contractor's representative. And he signs the document Wayne Medlin, President. He had written on there "partner" but he struck that out because the names of the partners haven't been given to us. To this day they don't have to file them with the Secretary of State. He struck that out because I guess he didn't -- he was thinking about this in advance, I don't know. *75 22 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 The very last page, this paragraph 13.2, Your Honor, is the reason that Mr. Medlin's signature and name as the representative is significant because he agreed to bind himself, him, his partners, the unnamed partners that we can't get from the secretary any more, successors, Texas Descon LP, legal representatives, Mr. Medlin is their legal representative signing this document. He personally bound himself to the covenant, agreements, and obligations in the contract documents. Contract documents includes the construction agreement, the addendum, the plans, the spec, the project manual, it goes on and on.
THE COURT: Okay, well I think I get it. MR. N. JOLLY: The only difference with this
clause and the clause with ERO is ERO's clause says "with regard to these covenants" it doesn't also say with regard to these covenants and contract documents. That's the only difference. Either way the partners, successors --
THE COURT: Are you done? MR. N. JOLLY: -- and representatives are all
parties. THE COURT: Are you done? MR. N. JOLLY: I think so. THE COURT: Short response. *76 23
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. HEAD: Gabriel Head on behalf of Descon. Mr. Jolly has not only confused everything with respect to entities that --
THE COURT: I am not confused. Just give me the response without making -- MR. HEAD: Michael C. Smith is the person who is a partner. Michael C. Smith has an affidavit. That's Descon LP. He wants to sue Texas Descon LP who is not -- it was not created by Michael C. Smith, it was created by a wholly different person, Michael D. Smith. They are not entities that are related. He has in his affidavit that Descon LP is still in existence and he also says he never assigned this contract to Texas Descon. Mr. Jolly cites Texas Rule of Civil Procedure 28 which says you can sue somebody in their correct name but nowhere in that Supreme Court case does it say you you don't have to serve them. As a matter of fact there are Texas Supreme Court cases and other cases under Rule 28 that say you still have the serve the person, and if he wanted to hold all these partners and these different entities to a judgment, as a matter of fact the Civil Practice and Remedies Code section 31 says you can't have a judgment against a person who has not received citation. All we are asking is give them citation. The rule says you can sue somebody under their legal name. *77 24 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 Yes you can name them but you still have to serve them. Wayne Medlin is the registered agent for Descon LP. Michael D. Smith is the registered agent for Texas Descon LP. He also wants to bring in Mr. Medlin individually when he signed the contract in his capacity as President of Descon LP. He also wants to bring in Mr. Michael C. Smith individually. He's not been served at all. He also wants to bring in another general partner, MayCo Management LLC. Their registered agent is Michael C. Smith. They have not been served either. What Mr. Jolly is trying to do is hold Descon liable for actions there by other people, other parties, other individuals, other entities that on their own need to be served.
The other thing that he's trying to do is essentially pierce the corporate veil which he's not pled. How is Mr. Smith, Michael C. Smith liable for a contract he's not a signatory to? Neither is Texas Descon LP. And in his affidavit he says Texas Descon was never assigned or sold the contract. Texas law says even if you are a successor company, you are not liable for the previous company's liabilities unless they have been specifically, it specifically says liabilities have to be bought. There's no evidence of that. What we have is a website. He's going off of a website which *78 25 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 one of the managers for Descon LP says, "I didn't write". Even in all that stack, that affidavit, you will not find the name Michael C. Smith, you'll find the name Michael D. Smith, two totally different people. So what Mr. Jolly has done is he's trying tried to say there's this conspiracy. There's this web that we didn't disclose this information. Well they are not proper parties, that's why we didn't disclose it. They are not a successor company. They didn't build the school. The person who built the school was Descon LP. They signed the contract. They have been served. We are here. The other people haven't been served, they don't have lawyers. So all we are saying is, if you want those people in the suit, you got to serve them with citation. It's a fundamental due process. Even when you read Rule of Civil Procedure 28 it doesn't even mention citation in there. It says that you can sue somebody under their assumed name. Sure he doesn't have to have an assumed name certificate, but one doesn't exist. Mr. Smith's affidavit says that Texas Descon didn't operate under assumed name for this project. Texas Descon didn't even exist until 2006 and this school was completed in 2005. So these breach of contract actions again these other people, we believe that they are inappropriate. But even if Mr. Jolly *79 26 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 feels they are appropriate, these people should be served with citation and allowed to defend themselves because my client, Descon, we may have claims against them and we can't try a lawsuit on other people's actions, which he's trying to hold us for.
THE COURT: Okay, well the Court is going to go ahead and deny your Motion to Strike the 13th Amended Petition and I am going to grant Plaintiff's First Amended T.R.C.P. 28 Motion to Substitute Named Defendants Omitted by Defendants' Disclosures and to compel defendants to properly identify any other parties and you are to do that by today.
Okay what else do we have to take up? Well we have got a lot but I don't know what order you all want to take these in. We have a lot of motions for summary judgment, no evidence motions for summary judgment, we've got traditional motions for summary judgment.
MR. ZIEGLER: Your Honor, Grez Ziegler for Perez Engineering. Uh, the last time we had a hearing I had a summary judgment and I argued it in front of you. I was the last party brought in. I would kind of like to be the first party let out if I could since I was the last one brought in, uh, less than three months ago. I don't believe we have a ruling.
THE COURT: Which is the one that I ruled on? *80 27 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COORDINATOR: Yes, there was and there was an order. MR. ZIEGLER: Yes, ma'am. THE COORDINATOR: No, I don't have an order on
that, on yours. MR. ZIEGLER: So we refiled it yesterday. THE COORDINATOR: You did? MR. ZIEGLER: Yes. THE COURT: Because I did make a ruling on
that did I not? THE COORDINATOR: Yes, and it was granted. THE COURT: Your motion was granted. THE COORDINATOR: It's just that we didn't
have an order. THE COURT: Everything is by eFiling now. MR. ZIEGLER: Yes, Your Honor, so we have, uh,
when he filed it somehow I know you probably know this there are probably thousands of eFilings, so I think it got lost in the thousands of eFilings, but yesterday at the Court coordinator's request we filed it again.
THE COURT: The district clerk's office just started doing this how long ago? DEPUTY DISTRICT CLERK: Six months ago. THE COURT: So, it goes to them and they send
it to our Court. So maybe that's why. *81 28 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COORDINATOR: We'll get the order right now. MR. ZIEGLER: If that's the case, I have nothing else to bring to the Court's attention. THE COURT: You are excused. MR. ZIEGLER: Thank you, Your Honor. THE COURT: Thank you, sir. Okay. Is there
any other motions that it would make sense to take them first before I start taking up all the motions for summary judgment? I know there was a Plaintiff's Motion to Compel and for Sanctions.
MR. WEST: Judge, Jason West for KBM Air Conditioning. I only answered in this case in the last two weeks. I have filed a Motion for Leave to File a Late Motion for Summary Judgment. I filed the Motion for Summary Judgment but I also filed a Motion for Continuance given my late arrival to this case. Uh, it may be beneficial to the Court to go ahead and hear my Motion for Leave to File the Motion for Summary Judgment and the Motion for Summary Judgment. That would in theory make the Motion for Continuance moot if, uh, I am let out of the case.
THE COURT: Okay. That makes sense. Do you have an objection to doing it that way? MR. N. JOLLY: To let his client out of the *82 29 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 case? THE COURT: Yes. MR. N. JOLLY: KBM? No objection to let his
client out of the case. THE COURT: Okay. MR. N. JOLLY: Which I assume you are
withdrawing your continuance, Jason. MR. WEST: Obviously, if I am out of the case, I will withdraw my Motion for Continuance. THE COURT: Okay, well then I need an order. MR. HEAD: Your Honor, the Plaintiff has not
sued them, Descon has sued them. Descon recently dropped their claims against KBM.
MR. WEST: If I may, Judge, uh, when I initially filed my Motion for Summary Judgment there was claims pending from the Plaintiff and Third-party Plaintiff. Subsequently I spoke with Plaintiff's counsel, he has stated to me that they are -- his client is not making any claims for damages related to my client's scope of work.
THE COURT: Okay. MR. N. JOLLY: That's correct. MR. WEST: And -- MR. N. JOLLY: Which is H.V.A.C. installation
exclusively. *83 30 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Okay. MR. WEST: And in my understanding of the law
would be that that essentially moots, uh, most of the complaints that -- well all the complaints they would have against me on their third-party petition.
MR. HEAD: Uh -- THE COURT: Well, you have to state your name
for the record. MR. HEAD: I'm sorry. I'm trying to find the motion, I apologize, Your Honor. Gabriel Head on behalf of Descon. If the plaintiff is dropping all claims related to the construction of the H.V.A.C. system, then --
MR. N. JOLLY: No, no, no, no. No, no. I hate to interrupt. MR. HEAD: Well I, I -- well you got to get it right. MR. N. JOLLY: Well I did. I thought I said related to the H.V.A.C. installation. That's it. That's all KBM did.
MR. HEAD: Okay. Well then I don't understand what claims you still are making on the construction site.
MR. N. JOLLY: The air-conditioning system needs to be cleaned, it needs to be cleaned because *84 31 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 there's so much dirt going into the building but it doesn't need to be cleaned because it wasn't installed incorrectly.
MR. HEAD: Okay. THE COURT: Okay you are saying it was not
installed. MR. N. JOLLY: It was installed correctly -- THE COURT: Okay. MR. N. JOLLY: -- and the things that need to
be done to the H.V.A.C. -- THE COURT: It's that you said not installed correctly. MR. N. JOLLY: Did I say that? I hate to do that. THE COURT: So it was installed correctly in other words. MR. N. JOLLY: That's right. THE COURT: Okay. MR. N. JOLLY: I sent an e-mail to Jason of
our expert that said the same thing and he said if you'll just come say it on the record that's good enough for me.
MR. HEAD: -- I guess -- THE COURT: I'm seeing if it's on the list.
Sir, state your name and state what you wanted to say. *85 32 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. HEAD: Gabriel Head for Descon. In our response there's a section of, of Mr. Holder, which is Plaintiff's expert report, saying that specifically what he says is that there's design issues.
THE COURT: Who is Mr. Holder? MR. HEAD: One of their experts. THE COURT: Okay. MR. HEAD: And then he says that this design
issue should have been caught specifically with the VAV boxes and it wasn't constructed in accordance with the code. If they are saying that they are not making that claim any more, that would have been something that KBM Air did.
MR. N. JOLLY: The installer, the installer doesn't determine whether it follows code, it's the NEP Engineer.
MR. WEST: He just said it's a design issue. MR. N. JOLLY: It's a design issue, Your
Honor. MR. HEAD: If that's what they are saying then the only claim that we have left against KBM Air was that in accordance with their subcontract they were supposed to provide us with insurance that had a certificate and named us as an additional insured and if he has that and I missed it. *86 33 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 (Mr. West showing him a document.)
MR. WEST: That was attached to your motion for summary judgment response. MR. HEAD: It doesn't show us as an additional insured. MR. WEST: Certificate holder? MR. HEAD: That's right. As a matter of fact
I can show you exactly what it's supposed to look like and it's not there.
MR. WEST: Judge, if I may give this to you so you can take a look at it. THE COURT: It does say certificate holder Descon Construction. MR. HEAD: Your Honor, it says certificate holder but on the subcontract -- we are trying to find our response in all these motions. (pause).
MR. WEST: Judge, if I may during the pause I don't want to waste any time. We are going to make an argument that regardless of their position on the certificate, the reality is there's been no claims made against my client, whether they are listed as an additional insured or not, there's no damages related to that, and we should be let out on that issue.
MR. HEAD: If he's dropped his claims on that *87 34 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 issue then -- THE COURT: He has. MR. HEAD: -- then he's correct. THE COURT: That's on the record so KBM
Air-conditioning Motion for Continuance is now moot, that's taken off the list, KBM air-conditionings Motion for Leave to File a Motion for Summary Judgment is denied because it's now moot also.
MR. HEAD: Well but not on the construction issue. He's supposed to provide us with insurance that names us as an additional insured and that certificate does not. It just says we are a certificate holder. It has to specifically name us as additional insured and he has provided no evidence that it does do that.
MR. WEST: And, Judge, our position would be again if there's no claims against us, they have suffered no harm.
MR. HEAD: That's not true. It doesn't matter with additional insurance whether or not the claims are related to him. They -- we are an insurance holder of their policy, whether it's their work or not. He's now arguing the policy. What we are arguing is that KBM didn't provide us with that, and they were supposed to pursuant to the contract.
THE COURT: And what does that have to do with *88 35 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 the motion for summary judgment? MR. HEAD: He filed a No-evidence Motion for Summary Judgment, we filed a Breach of Contract action against him for failure to provide that insurance.
MR. WEST: But judge the, the insurance still only applies to the extent that you are making a claim against our scope of work.
MR. HEAD: No, that's the indemnity, not the insurance. THE COURT: So what you are saying that they have to stay? MR. HEAD: I am saying they didn't give us the insurance they are supposed to. We are supposed to have that insurance and we have gotta Breach of Contract claim against them for failure to provide it. Our damages haven't been determined because we don't know what they are yet. It's a simple breach of contract action.
THE COURT: Aren't you putting the cart before the horse? MR. HEAD: No. No. We are supposed to have the additional insurance right now as part of this case. Technically that additional insurance is supposed to have kicked up and be paying my client for the defense of this case. Because we didn't get it, because he *89 36 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 didn't provide the certificate, my client doesn't have the benefit of what it contracted for.
THE COURT: Are you saying that naming them as a certificate holder is pretty much the same thing -- MR. WEST: Well that was -- THE COURT: -- as additional insured? MR. WEST: That is my argument, Judge. To me
it sounds like he has a dispute with his insurance company. This sounds like an insurance dispute which probably isn't really the matter that's before the Court today and in this trial.
THE COURT: It kind of does sound like that, sir. MR. HEAD: But it's not. It would be an insurance dispute if the insurance company would deny that they are an additional insured. We don't have anything to give them. Or, if they say you are an additional insured but we are not going to give you coverage. That would be between me and them. But in order to even get there I have to give them a certificate that shows us as being additional insured. That one does not. It just says we are a certificate holder. There's supposed to be a box on there that says additional insured. It's not there.
MR. WEST: My argument would be that this, *90 37 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 this is an issue again that sounds like an insurance issue that's really not right for decision -- shouldn't really be a part of this litigation. This is a construction defect case.
MR. GUERRA: If I may, I am John Guerra, co-counsel with Mr. West. If the only issue that I am hearing then is whether or not we -- my client designated them as an additional insured, as I understand the pleadings then, Plaintiff is not making a claim that our client did anything wrong in terms of the installation.
THE COURT: Right. MR. GUERRA: So therefore the claims against
Descon have nothing to do with the work our client did. So they can't be held liable to the Plaintiff for any work our client did if the Plaintiff is not complaining about the work our client did.
THE COURT: I agree. MR. GUERRA: So, therefore this whole
insurance thing is moot to try and keep us in, and I don't see how our client should be held liable or kept in this case for trial.
MR. HEAD: They are mixing apples and oranges, Your Honor. Pursuant to the contract that says that you are supposed to provide us insurance on -- it, it, it -- *91 38 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 it's, uh, paragraph nine of the subcontract. Provide us insurance in accordance with exhibits 2 and exhibits 3. This is exhibit 3. And if I may, Your Honor. See what it says right there? In the box it says name Descon LP as an additional insured. Well KBM's does not do that. So, it's not an argument with the insurance company because we can't even make that argument yet. They were supposed to provide us with that. So, we have nobody to argue with.
THE COURT: But doesn't there have to be a finding first that they did something wrong before this kicks in?
MR. HEAD: That would be indemnity. That would be the indemnity, which is a contractual indemnity. Our insurance -- there doesn't have to be a finding --
THE COURT: So they are not saying they did -- the Plaintiffs are not saying they did anything wrong but you are.
MR. HEAD: No, I am saying that irrespective of whether or not they did anything wrong, we are supposed to have insurance coverage because when you are an additional insured --
THE COURT: But what does that have to do with the summary judgment? That's an insurance issue. *92 39 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. HEAD: It's not, though, it's a breach of contract issue between Descon and KBM. It Has nothing to do with the insurance company.
THE COURT: But you are not before the Court on a breach of contract between the two of you. MR. HEAD: I am. MR. WEST: In the third-party petition they
have pled a breach of contract. THE COURT: Oh. MR. WEST: I would note that in the contract
they are relying on it mentions the fact that no payments will be approved for the subcontractor without these documents having been issued to the general contractor. Look, we have been paid in full. Obviously when we provided the certificate of liability to them at the time, they accepted it. I -- look I don't think there's a breach of contract here. Everybody was happy with it, we provided the documents that we were supposed to, it lists them as a certificate holder. If, if there is an issue here it sounds like it's a dispute between them and the insurance company and that's something that's really not proper for this Court at this time and it doesn't seem like a reason to keep us in this case.
MR. HEAD: Your Honor, again he's mixing apples and oranges. I don't have a dispute with the *93 40 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 insurance company. I have a dispute with them because they didn't give me the insurance that I contracted for. I have no insurance company to go to. Now I do have a breach of contract action against him --
THE COURT: Which you are claiming should be before this jury? MR. HEAD: Yes, because it says specifically in our petition that they were supposed to provide us among other things insurance in accordance with the contract. His motion is strictly about the work he performed, not about the insurance he provided. His -- this issue that he's arguing is not even before you in accordance with his motion.
THE COURT: But your breach of contract is no it about the work he performed, it's about the failure to provide this insurance. Right?
MR. HEAD: It's about -- well I sued them for both. He's come after the issues saying there's no defects with our work. Plaintiff has dropped those saying he's not pursuing even us for the defects with the installation of the H.V.A.C.
THE COURT: Doesn't it make sense to sever that portion of the lawsuit, if you have this breach of contract issue, to prevent confusion of the issues with the jury? *94 41 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. HEAD: But I don't know if -- THE COURT: Because they are going to be
hearing this defect case which they are not making allegations about a defect in respect to their work, so if it's all a breach of contract between the two of you, with respect to these insurance issues, shouldn't it be severed in order not to confuse the jury?
MR. HEAD: No, it shouldn't because it's all the same -- it's all the same project, it's all the same contracts. I am entitled to bring my compulsory counterclaim against him in this action.
THE COURT: Well I can sever it though. MR. HEAD: Then we don't -- part of what we
are telling the jury is we didn't get these things that we were supposed to get. He breached the contract.
THE COURT: But you are going to be talking about insurance to the jury? MR. HEAD: I am going to be talking about the breach of the contract to the jury. THE COURT: That you are not a named policy holder in accordance a with the contract. MR. HEAD: That's right. I'm not. MR. WEST: But, Judge, one last thing I would
like to raise. If you'll notice on that certificate of insurance, it was provided back to them, back to them at *95 42 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 the time of this contract. More than four years have passed, the breach of contract statute of limitations is four years. If that's their argument for how we breached the contract and not our scope of work, that's -- I mean at the end of the day that's an easy winner.
MR. HEAD: Well it's not an easy winner because these issues didn't even come up. We are entitled to the discovery rules --
THE COURT: But didn't you contract this breach of the contract and this was signed in '05. MR. HEAD: It was but we didn't know it was a breach until we got sued and then we went to go look -- THE COURT: Wouldn't you have noticed at the time that the contract was entered into that you were listed as a certificate holder and not an additional insured?
MR. HEAD: No. Not necessarily. THE COURT: Why not? I mean you are noticing
it now, what kept you from noticing it then? MR. HEAD: The timing -- THE COURT: You all relied upon that and acted
upon that when you did the work and you accepted -- MR. HEAD: We accepted the certificate. THE COURT: -- the contract and the *96 43
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 certificate and you didn't argue back then that you were not listed as an additional insured, that you were just listed as a certificate holder, and now how many years later after 2005 are you bringing this up?
MR. HEAD: We didn't know we needed to bring it up or that it was a breach of contract until we got sued for defect.
THE COURT: But you accepted this document back when the construction was being performed. MR. HEAD: But we didn't know it was a breach at the time. THE COURT: But you would have still had to have had yourself listed as an insured and not as a certificate holder. Correct?
MR. HEAD: We would have to have ourselves listed as a certificate holder but, Your Honor, it's a fact issue --
THE COURT: As an additional insured not as a certificate holder. Not then. MR. HEAD: It is a fact issue whether or not they named us as an additional insured on the policy. They didn't bring it up in their motion, they didn't bring up anything about payment and acceptance or anything like that in their motion, and so there's no evidence on this issue before the Court. *97 44 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Well -- MR. HEAD: Except for the our showing that
they breached the contract per the contract provision article nine --
THE COURT: But how are you showing that? MR. HEAD: We submitted the contract and their
certificate that does not name us as an additional insured. He's saying now that by merely being a holder you are. Well that's a fact question. It's not a legal question.
MR. WEST: Judge, I -- MR. HEAD: And he didn't raise statute of
limitations either. MR. WEST: The reality is they knew at the time that they weren't listed as an additional insured. It's a form that they require in their contract. In fact we are not supposed to receive a single payment until we provide that form to them, but we are here today because we finished the project, we got paid, it was all done way back in 2005, 2006, and to be honest with you one of the reasons this wasn't raised as an issue is because our understanding of the breach of the contract initially was related to our scope of work, which has been resolved, thanks to Mr. Jolly's position, on behalf of the Plaintiff. They are raising this kind *98 45 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 of as a red herring to try to keep us in the case, uh, and probably to be honest with you to keep our motion for continuance alive, when at the end of the day, uh, there's no harm. They again -- our scope of work is not at issue. We are out of the case.
MR. HEAD: Your Honor, he's arguing things that are nowhere in his motion, and he could have filed a response to my motion on these specific issues and he did not. The fact of the matter is that KBM was sued over a year ago. And, it's -- we sued them, we served them. He filed a motion for summary judgment, we filed a response that said you breached the contract. He's raised -- he has not raised any issue. We have raised a fact issue saying that you did not provide that insurance that you were supposed to. He has not put any evidence before the Court that that is wrong. He's come up here and he's argued it but he's not given any evidence, and pursuant to a no-evidence motion, we have given you some evidence to raise a fact issue on whether or not that certificate gives us the insurance that we are supposed to.
MR. WEST: The last thing I'll say, Judge, is the contract which they attached to their own motion speaks to the fact that we weren't supposed to get paid, we weren't supposed to move forward with the project *99 46 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 unless we provided the certificate. We provided the certificate, you have it in front of you, it was attached to their motion, it shows that in 2005 they had this information.
THE COURT: Right. MR. WEST: The statute of limitations is going
to apply to any argument that can be made. THE COURT: Okay, so with reference to your Motion for Continuance you are dropping it, with reference to your Motion for Leave to File Late Motion for Summary Judgment you are dropping that -- or you are pursuing that and asking that I grant your Motion for Summary Judgment?
MR. WEST: That is correct, Your Honor. THE COURT: Okay well then that relief that
you are requesting is hereby granted. Submit your orders to that effect.
MR. WEST: We have submitted them electronically, Your Honor, I believe they'll be with the Court already.
THE COURT: Okay. So you submitted three orders. With the -- or you are going to abandon the Motion for Continuance so that's going to be considered abandoned.
MR. WEST: That's correct. *100 47 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: So then I am going to grant your Motion for Leave to File the Late Motion for Summary Judgment and grant the Motion for Summary Judgment and what about for the severance?
MR. WEST: Judge, we would ask that we be severed from the action. I think that there's really no argument to keep us in at this point.
THE COURT: Okay, all that is granted. MR. WEST: I have the orders here but I have
also filed them electronically. THE COURT: Yeah, well give them to me so I can have them so I can keep track of what I am doing. MR. WEST: There you go, Judge. THE COURT: I am going to sign these, Ana. THE COORDINATOR: Okay. MR. WEST: Obviously with the Motion to Sever
we'll need a new case number. THE COURT: Right. THE COORDINATOR: It will be DC-14-46-A. THE COURT: Go ahead and write it in here.
Okay and then we had Plaintiff's Motion to Compel and for Sanctions.
MR. OLIVEIRA: Judge, if I could real quick just to get a clarification on your previous ruling, I understand you denied our motion to strike the 13th *101 48 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 amended petition but we also have. THE COURT: Yes. MR. OLIVEIRA: Part of the relief we requested
was to abate slash continue the case until the parties get served and, uh, I just needed a ruling on that as well.
THE COURT: I am going to deny that. MR. OLIVEIRA: Thank you, Your Honor. MR. WALLA: Your Honor if I may, Doug Walla
for AAS Consulting. Our motion is almost identical to Mr. West's motion. We also had an H.V.A.C.-related party. We did what's called the testing and air balancing. We didn't install the A. C. we just tested it after it was installed and wrote up a report. The Plaintiff has no claims against us whatsoever. Uh, the only -- I filed a Motion for Summary Judgment seeking complete dismissal. Uh, the -- Descon has their breach of contract claim against us, the same as he had with Mr. West. The fundamental difference is we actually provided insurance. Maryland Casualty Company now Zurich N. A., uh --
THE COURT: So your form says additional insured. Rather than just certificate holder. MR. WALLA: Yes, and they are -- and Zurich has actually picked up their defense and is defending *102 49 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 them now as an additional insured. So, we -- THE COURT: Even though the Plaintiffs are claiming that you did not wrong. MR. WALLA: That's correct. THE COURT: Is that what you are doing or not? MR. N. JOLLY: We have not suit AAS, Your
Honor. THE COURT: So you have no opposition to AAS's Motion for Summary Judgment and No-evidence Motion for Summary Judgment.
MR. N. JOLLY: Well on this party here the only thing I could say in response to that question is we take no position and, uh --
THE COURT: So you could care less if they stay in or stay out. MR. N. JOLLY: As much as I like Doug, you know, if he deserves for his client to get out, I really haven't studied their motions, I frankly don't know anything about it.
THE COURT: You haven't made any claims against their client's work? MR. N. JOLLY: I am not positive. I don't know. I could say I don't think we have, but right now I just haven't studied the test and balance issues. I could confer with the attorney from our office that *103 50 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 covered the engineer's deposition and get back to you. THE COURT: You might want to do that. MR. HEAD: That would be helpful for us. MR. WALLA: Mr. Jolly, your last petition
dismissed AAS, made no claim against AAS. MR. N. JOLLY: Correct. MR. WALLA: So there's no pending claim
against AAS. MR. N. JOLLY: There no pending cross-claims against any of the subcontractors to any party that has a contract with my client.
MR. WALLA: And in my motion for summary judgment, Bill Holder and Ed Stacy, your two experts related to H.V.A.C., both said that they had no problem with the TAB work and that they -- no damage resulted from the TAB --
THE COURT: With reference to what work? MR. WALLA: It's called TAB. MR. N. JOLLY: Test and balance. MR. WALLA: Test and balance. TAB. Once KBM
or another contractor puts the air-conditioning system in, we go out and check the air flow, and the water flow, and the humidity and all that stuff --
THE COURT: Okay. MR. WALLA: And their two experts -- and their *104 51
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 testimony is attached to my Motion for Summary Judgment -- uh, they said in the Exhibit A and B, I believe to my Motion for Summary Judgment --
MR. SOLIS: I take Doug at his word. If that's what the testimony is, and it's attached the his motion for summary judgment, I take him at his word, provided he doesn't leave before we get to the, uh, motion to equalize strikes.
THE COURT: Okay. MR. WALLA: I'll stay here for that. MR. N. JOLLY: Thank you Doug. MR. WALLA: And the other issue would be we
actually did provide the insurance and Zurich is defending them so that whole argument that they had is moot.
MR. HEAD: If he's saying there's not any questions with respect to construction of their work then --
THE COURT: I would be listening to this, Mr. Jolly, if I were you. MR. N. JOLLY: I'm listening, Your Honor. MR. HEAD: If he's saying -- THE COURT: Because he said the word
construction. MR. N. JOLLY: That's what they do. They, you *105 52 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 know -- THE COURT: I don't know, I mean, I just want to make sure because -- MR. SOLIS: If Doug has a summary judgment and points out that our experts have no complaints against AAS I take him at his word.
MR. HEAD: If what he's saying is that they don't have any issues with the construction and the test and balance, then no.
THE COURT: You are not opposed. That's what he just said. MR. HEAD: What is the difference between we contracted with them to perform the test and balance -- THE COURT: No, that's what I -- I'm asking you. MR. HEAD: Yes. THE COURT: I'm saying that's what he just
said. Do you agree with that? MR. HEAD: I am trying to make sure I understand what Mr. Jolly says because each time I speak he stands up as though I'm wrong. I am just trying to make sure I understand.
MR. N. JOLLY: Well let's put it this way. THE COURT: He's not opposed to the summary
judgment. Are you? *106 53 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. HEAD: Uh, (pause) Well we raised our issues and it's kind of the same as KBM. Is what it sounds like.
THE COURT: So you are opposed to me letting them out. MR. HEAD: It sounds like it's the same issue with KBM MR. WALLA: Well it isn't, because your issue with KBM -- THE COURT: I am going to grant your Motion for Summary Judgment. MR. WALLA: Thank you, Your Honor. We did provide the insurance and you know that. So I filed this --
MR. HEAD: I might agree then, but you got it. THE COURT: Okay, gentlemen, stop talking to
each other, that's inappropriate. MR. WALLA: That order was e-Filed and it includes a severance. Would that be a dash B? THE COORDINATOR: Yes. That would be B. THE COURT: Okay. Then we had Fairess
Plumbing Company Inc.'s amended No-evidence Motion for Summary Judgment.
MR. KASPERITIS: Your Honor, Pat Kasperitis, I filed that on behalf of Fairess -- *107 54 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Am I pronouncing that right? MR. KASPERITIS: Uh, Fairess -- THE COURT: Fairess. MR. KASPERITIS: Yes. THE COURT: Okay. MR. KASPERITIS: Our motion is along the lines
of the same thing. Mr. Jolly has -- none of the experts for Mr. Jolly's -- that he's presented for deposition have made any complaints about the plumbing and that's what we pointed out on our summary judgment so on that end I don't believe there's a liability issue regarding Fairess. The contractual issues are the same. The summary judgment evidence that they filed in response.
THE COURT: Same thing. MR. KASPERITIS: Each one -- they used three
letters for my client, for my client -- not for my client, for my client's insurers about the insurance coverage. Each of the three letters say you are an additional insured. So, there's no dispute that they got named as an additional insured, and there's no dispute that the plumbing wasn't an issue in any of the--
MR. HEAD: We don't oppose. THE COURT: Okay. Well then Fairess' Motion
for Summary Judgment -- the Amended No-evidence Motion *108 55 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 for Summary Judgment is hereby granted. MR. KASPERITIS: When I filed the motion and the orders I did not file an order of severance so I am going to have to supplement that.
THE COURT: Okay. If you'll do that that will be C.
THE COORDINATOR: C.
THE COURT: Okay. If you'll take care of
that. MR. KASPERITIS: Yes, Your Honor, I will. Oh what they gave me was a front and back. I think you want two pages, right? I filed it electronically.
THE COURT: You can scan it, right? THE COORDINATOR: Yes, we can scan it. THE COURT: She can Stan it. If you'll give
it to me I'll sign it and she can scan it. MR. KASPERITIS: Okay, thank you. THE COURT: Thank you, sir. Okay then we had
Zarate Suspended Ceilings' Traditional and No-evidence Motion for Summary Judgment.
MR. DUNNAHOO: Mike Donnahoo and John Guerra here for Zarate. Judge, similar issues in this case. My client, however, didn't have anything to do with the air-conditioning. My client installed the suspended ceilings. *109 56 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Okay. MR. DUNNAHOO: My client also installed some
sheetrock walls and laid some roll insulation on top of the suspended ceilings. We were sued for breach of contract, breach of warranty, negligence, et cetera. In depositions none of Plaintiffs' experts and none of Plaintiff's fact witnesses had any complaints or criticisms of the work that Zarate performed. Where it gets interesting is that Descon claims that Zarate Suspended Ceilings was responsible for installing what's called rigid board insulation inside CMU walls, two inch thick.
THE COURT: That's like the pink stuff? MR. DUNNAHOO: Yes, two inch thick boards that
are adhered somehow. We never provided any submittals for that, that was never contemplated by the contract. The division that our roll installation belongs in is 07212, a construction division, that's a standard. Also that is board insulation, but we didn't do the board installation, and Descon knows that. Descon bought the board insulation. Descon knows that another subcontract in this case installed that rigid board installation because Descon's superintendent wrote down on a daily basis what each subcontractor was doing. Again this is a traditional evidence -- motion for no evidence -- *110 57 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 traditional evidence motion for summary judgment sorry. THE COURT: Ha, ha. Traditional. Right. MR. DUNNAHOO: Exactly so in exhibit L I
provided, uh, about 2 months worth of superintendent daily job logs where they indicate that it's some other subcontractor that's doing that. So, not only do we not do it, not only do we not submit it, but Descon had knowledge back in August of 2004 that we weren't doing what this is that they are saying we were supposed to do now, installing the rigid board insulation. The statute of limitations has run. We didn't do the work, they know we didn't to it, but the statute has run. Negligence statute has run, all the other limitations have run. There's no evidence. Plaintiff is not making any claim against us for our work. The only one is Descon and Descon knows who the correct party is, but Descon is going to try to keep us in this case anyway.
MR. HEAD: Your Honor, the Plaintiff has raised issues with the board installation, I think there's no dispute about that. Pursuant to their contract Zarate's contract it does say they shall provide all labor, materials, equipment, and insurance for board and bat installation. We are talking about the board insulation. He's saying somebody else performed it. They had a contractual obligation to us *111 58 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 to make sure that it was done in accordance with the subcontract and accordance with all building codes. That's what we contracted for. What they are trying to get up here and say now is well somebody else installed it. Well you had a contractual obligation to us to make sure it was installed correctly and that's, that's what's before the Court. Whether it was -- the Plaintiff says it was not installed correctly, and that's what we had a contract with them to do. Doesn't matter who installed it. They had an obligation to us to make sure it was installed correctly. It doesn't matter who bought it. They had an obligation to us to install it correctly.
THE COURT: Did you hire two different people to do it or what? Because the contract with them says they should do it but then why did the other people do it?
MR. HEAD: That is a fact question that I can't answer right now, but their contract says that they are responsible to us for it.
Additionally, there's the insurance issue that we discussed with KBM that I am assuming that the Court is fully apprised regarding the certificates and additional insured information, so I won't go into that any further, but that's the issue is their contract -- *112 59 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Doesn't that seem like a factual question here? If your contract says you are supposed to do it but somebody else did it, and his manager that was on the site was saying, you know, they checked somebody else in as doing it, but I mean you've gotta contract that says you are responsible.
MR. DUNNAHOO: When they see that we are allegedly not performing the work that we all allegedly agreed to do, when they see that we are not doing it, that gives rise to their claim against us for breach of contract. The discovery rule does not apply to toll limitations because they had actual knowledge. These are -- Exhibit L our documents that Descon produced --
THE COURT: You are claiming that somebody else did it, they hired someone else to do it, and they never asked you to go oversee and check and see if the other people were doing it right.
MR. DUNNAHOO: Exactly. THE COURT: And your Traditional Motion for
Summary Judgment Evidence supports that position. MR. DUNNAHOO: Correct, Your Honor, and one more thing. There is no evidence that we did the work. They are trying to say alternatively that since the Plaintiff is complaining that something was done wrong, that liability somehow flows to us. Well there's -- *113 60 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: All of your evidence is attached to your Tradition Motion for Summary Judgment, okay? So I am going to hold that in abeyance and look at all that and I will give you all a decision by this afternoon.
MR. DUNNAHOO: Thank you, Your Honor. MR. HEAD: Thank you, Your Honor. THE COURT: So I can look at the attached
evidence. MR. HEAD: And can I add one thing or are you finished with this? THE COURT: No, go ahead. MR. HEAD: I was going to say that he's only
focusing on the labor aspect of it. Now but there's another important part of it is was the installation done correctly. We allege that there's nothing wrong with the installation, but the Plaintiff says there is something wrong with it. So we just discovered that there was an issue with the installation last year.
MR. N. JOLLY: I just have a point. I believe that the party that installed the actual bat installation was R & R.
MR. DUNNAHOO: I think it was actually Limon Masonry, that's what the Descon superintendent wrote down daily.
MR. N. JOLLY: Okay so R & R didn't do the *114 61 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 bat. MR. DAVIS: James Davis for R & R Construction. This might be a good point to interject. I filed a No-evidence Motion for Summary Judgment. In answer to your question Norman, R & R did -- the only section of sheet waterproofing which is the rigid board installation at the retaining wall, a $3,000 contract.
MR. N. JOLLY: Oh. MR. DAVIS: My understanding is that the Limon
Masonry did all the pink insulation for the remainder of the CMU walls. So --
MR. N. JOLLY: I was just going to ask who. I thought R & R did the bat -- the rigid board insulation. THE COURT: NO, you are saying that who did it? MR. HEAD: Well the person who is written down on the daily logs as actually installing it is Limon Masonry. We have a contract with Zarate that says that they will install and it will be done correctly, so whoever installs it installs it.
THE COURT: Right. I mean, I hear what you are saying. So Perez was already let out on their motion for summary judgment. Right?
THE COORDINATOR: That's correct. MR. N. JOLLY: Yes, ma'am. *115 62
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: So then we have third-party Perez' Second Traditional Motion for Summary Judgment and we took care of that.
THE COORDINATOR: That's been taken care of. THE COURT: And then we have C. A. Ray and Son
Painting Contractors Inc., Motion for Summary Judgment. MR. HINKLE: Kyle Hinkle for C. A. Ray and Son Painting. THE COURT: What's your last name, sir? MR. HINKLE: Hinkle. THE COURT: Hinkle okay. MR. HEAD: I may be able to short cut this.
These are kind of the same arguments brought up and if the Plaintiffs have month issue with the painting, then we don't need to discuss it.
THE COURT: Do you have any issue with C. A. Ray and Son Painting Contractor? MR. N. JOLLY: Well, I mean, if counsel is telling us that the only thing C. A. Ray did was paint, that would be true, we would have no issues with the paint, assuming that's what their contract says.
MR. HINKLE: Yes. THE COURT: So no one objects to letting them
out. MR. N. JOLLY: We don't. *116 63 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: I am going to grant C. A. Ray and Son Painting Contractor's Motion for Summary Judgment. Then we have, uh -- let me take up all the summary judgments and then I'll look at the other motions. R & R Construction Services', uh, No-evidence Motion for Summary Judgment.
MR. DAVIS: Yes, Your Honor, James Davis again for R & R Construction. Uh, in the Plaintiff's most recent petition, as we have already discussed, they dismissed all of our claims against the subcontractors including R & R. I think Descon, uh, has the only remaining claims and they include, uh, breach of contract, negligence, however in their response to my summary judgment the only evidence that they submitted was on the breach of contract for failing to provide insurance certificate. Uh, I think we have discussed this. My -- and I've gotta motion and order for severance, I think it's more proper in a declaratory judgment action to discuss the insurance issues between Descon and my client's insurers.
MR. HEAD: Your Honor, we have already argued this. I think it's a breach of contract between the contractor and the subs, it doesn't relate to insurance, but since you heard us before I won't go into it.
THE COURT: I am going to grant R & R's Motion *117 64 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 for No-evidence Motion for Summary Judgment and that will be severed into D. now.
MR. DAVIS: Thank you, Your Honor, here's an order. THE COURT: Thank you. MR. DAVIS: Thank you. THE COURT: Then we have, uh, Daniel Vasquez
d/b/a Twin City Glass' No-evidence Motion for Summary Judgment and for Severance.
MR. GUERRA: John Guerra and Louis Gross for Twin City Glass. MR. GROSS: Good morning, Your Honor. THE COURT: Morning. MR. GROSS: Your Honor, if I may. THE COURT: Go ahead. MR. GROSS: My client installed the exterior
window system, the exterior doors, and the curtain wall system at the elementary school. There have been no complaints about the doors or the curtain wall system to date from any of the Plaintiffs. Plaintiff has not made a claim at this point against my client.
THE COURT: Well I am granting your Motion for Leave to File Late Motion for Summary Judgment by the way.
MR. GROSS: Thank you, Your Honor. *118 65 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Okay. What is the, uh, Plaintiff's position here? No allegations of anything, any wrongdoing?
MR. N. JOLLY: The Plaintiff is not making a claim against any of the subcontractors. THE COURT: Okay. MR. N. JOLLY: But, uh, I know that Twin City
installed the windows, and there's plenty of complaints about the windows. We make those claims directly to the party that we have privity with, so --
MR. HEAD: And -- MR. N. JOLLY: We are not agreeing that
between City's scope of work is released. MR. HEAD: Yes, Your Honor, the Plaintiff has made claims specifically with respect to clerestory windows and with respect to the window system installed. They are saying that --
THE COURT: So this is different than with any of the other subs that have been let out up to now because there are complaints.
MR. HEAD: Yes, Your Honor. THE COURT: With reference to the work that
Twin City Glass did. MR. HEAD: Yes, Your Honor. THE COURT: Okay. *119 66
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. HEAD: And I can show you the sections in the expert reports where they show -- where they allege leaks in the clerestory windows as another issue with respect to whether or not there was supposed to be a sill pan in the window system that they provided and installed, and Plaintiffs made complaints about both of these. We had a subcontractor --
THE COURT: As are you. MR. HEAD: Yes. MR. GROSS: Your Honor, if we can break down
the actual claims that the expert Joan Partida is making, we would argue that these are not any issues necessarily related to the clerestory window or the functioning of the clerestory window. These are issues that are related to other subcontractors' work. It just happens to be some leaking that was found in the area of the clerestory window.
And, Your Honor, the only issue has been with one or two clerestory windows in this entire school. And specifically there's an argument that there's been deterioration of the ceiling joints there, Your Honor. Now this is ten years after the fact that somebody is coming in and saying your ceiling joints are gone. There's been expert testimony from Plaintiff's expert that that's basically the life of ceiling joints. *120 67 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 Generally they don't even last that long, Your Honor, and there's been testimony that there's been no maintenance schedule with the ceiling joints from the school. So, we would argue, Your Honor, that that's not necessarily any evidence of any wrongdoing on the part of my client.
We also argue, Your Honor, that a sill pan was not utilized. A different window system was in fact utilized for this particular school. It's a system that actually costs more that utilized molients to drain off water as opposed to an aluminum framing sill pan system. Now this system was more expensive, it was installed by our client, it was approved by the architect, it was approved by the general contractor, Your Honor, and we would argue that this new system there's been no arguments that this new system in fact failed, uh, just that it wasn't done per, uh, the original contracts which were subsequently changed, Your Honor. So, uh, we would argue that none of the evidence that has been presented has anything to do with, uh, the scope of work of my clients.
MR. HEAD: Your Honor, he filed a no-evidence motion saying there's no evidence. These are all fact issues. Mr. Partida stated in his deposition, he was asked do you see any leaking around the clerestory *121 68 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 windows, he says yes. Now he also finds the reasons why and those are the ones I told you.
THE COURT: I am going to deny Twin City's Motion for Summary Judgment. MR. GROSS: Thank you, Your Honor. THE COURT: Is there any other summary
judgments, traditional or no-evidence? (pause) Okay I don't see any more.
Okay, now we have a bunch of motions to strike and exclude expert testimony and motions to compel, so what I will take up --
MR. GRIFFITH: Your Honor, John Griffith for ERO as an administrative matter, uh, we have agreed to the severance for Perez Consulting Engineers, uh, and both, uh, Perez and ERO have dropped their nonsuit of their motions for sanctions and attorneys fees against each other. The attorney for, uh, Perez wanted to leave and I told him I would make that announcement and we'll submit an order on the severance but we agreed to the severance.
THE COURT: Okay. THE COORDINATOR: That would be then E?
DC-14-46-E? On the Perez? MR. GRIFFITH: Perez motion for severance. THE COURT: No, she's saying the new cause *122 69
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 number on the severed cause. We hadn't given them a number?
THE COORDINATOR: No. THE COURT: That would be E then. MR. GRIFFITH: I will submit an order. THE COURT: Okay. Let's start with Limon
Masonry's Motion to Strike Affidavit and Exclude Appraisal Report. Are you all ready for that?
MS. COOPERRIDER: Yes, Your Honor. Essentially the issue with this -- THE COURT: You need to state your name for the record. MS. COOPERRIDER: It's Brittany Cooperrider. The issue with the affidavit is that Thelma Ruelas, who works for the school district, signed an affidavit saying she's the maker and keeper of this appraisal report. This was produced after Ms. Ruelas' deposition, even though the record was created before her deposition. We never had a chance to question her about it at her deposition, and the issue is that I don't believe she's the appropriate person to be sponsoring an appraisal report because she didn't say in her deposition that she is an appraiser or made or kept these records. I believe an appraisal was performed probably in anticipation of this litigation so the *123 70 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 Plaintiffs could prove up their damages and they are trying to introduce it through her, and I believe the more appropriate party would be whoever for American Appraisal had prepared that appraisal report, and all of that evidence is in the Motion To Strike.
MR. SMITH: If I could, I want at -- THE COURT: State your name. MR. SMITH: Robert Smith for Descon. Descon
did join in and adopt, uh, Lemon's arguments and motion with regard to this, and I just have one thing I would like to add, if that's all right. With regard to the appraisal -- purported appraisal report that she is, uh, supposedly discussing with regard to Ms. Ruelas' affidavit, Court should note it's attached to the motion and it's attached to the affidavit, is that it is two pages out of I believe a 48 page or 38 page document. Uh, there is no appraisal attached to it, there is only, uh, the final dollar numbers. Uh, it appears to be an insurance-related document, uh, for, uh, I assume renewals or insurability, but without having any of the other portions of that document or the attachments to that document we have no idea as to what it is. They have basically excerpted the one -- the two pages --
THE COURT: So y'all didn't get that in *124 71 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 discovery? MR. SMITH: We did not get that in discovery, Your Honor. THE COURT: Did you request it? MR. SMITH: We have requested it since it was
attached as that document. We have asked where's the rest of the document.
MR. N. JOLLY: We'll get that to them, but no one ever asked for an appraisal report ever in the litigation, and the Plaintiff produced it because it's their business record and Ms. Ramey is the custodian of that record because she's the business director. School districts are required to insure their property for replacement cost and replacement cost for Grulla is relevant, uh, highly probative information because, uh, you have to know whether or not the damages for remediation exceed the replacement cost of the property because you can't get more than replacement costs for remediation in Texas. So, the documents is a business record kept by the school district, uh, it's been properly noticed, there's a business records affidavit, timely, following the rules. Uh, I can tell you the other 45 pages are, are the other properties. Uh, but we will go get them and, uh, produce them.
THE COURT: Okay. *125 72 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 MS. COOPERRIDER: Your Honor, my objection would still be this is hearsay because it's being offered for proof that the building cost $60 million. We have never had a chance to question anyone who prepared the appraisal, and Ms. Ruelas is just -- I guess we have to accept it as truth that this is the fact. We would like to see the underlying facts and be able to question whoever prepared this, how that was prepared --
THE COURT: Who prepared the appraisal? MR. N. JOLLY: You know, we go to these
depositions and if someone neglects to ask a question what's the replacement cost of this building according to Rio Grande City School District, that's not -- I can't force them to ask the appropriate questions. This is something that's relevant to any remediation claim is whether the remediation exceeds the value of the property, whether it's a car, any improvement to real property. Who did the appraisal? I don't know the author of the appraisal but I know that the document is a business record kept by Rio Grande City School District in the ordinary course of business, and then they have to then take that number and insure the building with a replacement cost policy.
MS. COOPERRIDER: Your Honor, the key part of *126 73 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 the rule is made and kept by. That's what the rule requires. The affidavit sponsoring to be a hearsay exception made. It wasn't made by Rio Grande City Schools. It was made by American Appraisal, the appraisal company who prepared this report. And if it had been disclosed we would have asked about that, we would have asked to depose someone from American Appraisal, but it wasn't pruduced until just on the eave of trial.
MR. N. JOLLY: The rule doesn't say made by. THE COURT: Okay. I am going to deny your
motion to strike. Okay. Then we have Limon Masonry's Motion to Exclude Expert Testimony from John Kenneth O'Bannon.
MR. GARZA: Can I take the lead on that, Your Honor? THE COURT: I'm sorry? MR. GARZA: Can I take the lead on that? I
have one filed for C & M Contracting. THE COURT: Okay sure. MR. SMITH: And Descon. THE COURT: So these are similar -- these
are -- all these three defendants are all filing motions to exclude the testimony from John Kenneth O'Bannon.
MR. SMITH: Yes, Your Honor. *127 74 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Okay, well go ahead and state that on the record. Which defendants are pursuing this motion?
MR. SMITH: Your Honor, Robert Smith for Descon. Descon has joined in the motions filed by the other two parties.
THE COURT: Which is Limon, Descon and who else? MR. GARZA: C & M Contracting Inc. MR. GRIFFITH: And ERO, Your Honor. THE COURT: Okay. Here's Descon's. MR. GRIFFITH: They are all the same motions. THE COURT: So it's Descon's, Lemon's, and who
are the other two defendants that joined in?
MR. GRIFFITH: ERO.
THE COURT: ERO and who else? ERO, Limon,
Descon and? MR. GARZA: C & M Contracting. THE COURT: C & M. MR. GARZA: Yes, Your Honor. THE COURT: Okay. MR. GARZA: Your Honor, may I provide you with
a courtesy copy of what was e-Filed? THE COURT: Sure. MR. GARZA: And there's two cases behind the *128 75
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 motion, Your Honor. THE COURT: Okay. MR. GARZA: As I understand the present
posture with the Court's prior rulings, and what has been stated by Plaintiff's counsel's statements, when we filed that motion there was no -- there was a cross-claim against all the subcontractors. My client C & M is a subcontractor. The school district has made it clear there's no claims being made against the subcontractors. So, the remaining claims against me are by Descon, which was the general contractor with which I had a contract. They are seeking breach of contract, contribution, indemnity, all that from us. But this motion is still extremely important to my client because the claims that the Plaintiff is making against Descon, if it prevails on the claims dealing with the roof system -- my client did the roof. If it prevails on the claims dealing with the roof that potential figure or amount could be assessed against me if Descon prevails on its claims against me.
THE COURT: Okay. MR. GARZA: I know the Court has a lot of
documents in front of it. The Court has heard a lot of things and I could -- what we did, Your Honor, is I went through Mr. O'Bannon's testimony and highlighted his *129 76 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 testimony and I would like to just repeat it for the Court, but I am going to give you the real short version of what Mr. -- of what my motion says.
THE COURT: Okay. MR. GARZA: Mr. O'Bannon acknowledges he has
no specialized knowledge, training, skill, or experience dealing with roofs, roof systems, or roof installations. Mr. O'Bannon picks up the phone one day, calls a buddy of his, and says can you prepare a quote for me on replacing the roof system at Grulla Elementary? And I'll assume that this buddy has, you know, knowledge about roofs and stuff. That buddy then prepares a one-page quote, which is attached as Exhibit A to my motion, Your Honor, (pause) Should be there.
THE COURT: What exhibit did you say? MR. GARZA: I think it's Exhibit A. THE COURT: I have Exhibit B right after the
end of your motion, and that's the videotape deposition. MR. GARZA: It's attached there but I want to get the -- here it is. 23-C. Here, Your Honor. Your Honor this is, uh, co-counsel with me *Monica Wilkins.
MS. WILKINS: Hello. MR. GARZA: This is what the Plaintiff -- or I
am going to say not the Plaintiff, but this is what someone is going to try to show against my client. This *130 77 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 one-page document, not even signed by Mr. McIntyre. Now this is what it is. So then I put in my motion and I went through a series of detailed questions with Mr. O'Bannon, and what I just want to do is highlight --
THE COURT: Y'all can sit down back there. MR. GARZA: I want to highlight in my argument
right now, uh, there's a lot of quotes out of -- you can see my motion is not very long, Your Honor, and I attached the relevant parts, but as to this one-page document I asked him specifically. "He did no independent investigation to confirm the validity of those figures?" He said he does not consider himself an expert on roofing systems, that he has no specialized knowledge concerning installation or construction of roofing systems, and that he "has no specific training dealing with the installation or construction of roofing systems." That quote is meant to be a complete replacement of the roof system that's been there through ten years and weathered various storms. It goes on and I ask him as to that one-page quote on page six of my motion. I am citing from his testimony. Uh, he did not receive any other documents to support that quote from Mr. McIntyre, he did not do any of the independent investigations to confirm the validity of Mr. McIntyre's figures, he has no documents in his file confirming *131 78 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 Mr. McIntyre's quote, he does not know what methodology was used to come up with the figures on his quote, he has no documents that Mr. McIntyre relied on for his calculation on his quote. He does not know what publications, if any, Mr. McIntyre relied on for his calculation and his quote. He has no idea what treatises, if any, Mr. McIntyre relied on for his calculations. He has no idea what books, if any, Mr. McIntyre relied on for his calculations. He has no figures from Mr. McIntyre for labor to perform the replacement of the roof, and he did no independent investigation to determine what the labor cost would be for replacing the roof. O'Bannon has no information on prices that will be needed for the materials to be used to replace the roof at Grulla Elementary School. In my motion I also point out, uh, that, uh, he had no knowledge whether Mr. McIntyre had ever built or worked on the school building in South Texas including Starr County. Uh, doesn't have any idea about what Mr. McIntyre may have done in South Texas. What Mr. O'Bannon has done is has been basically an estimator for 32 years. What he did is he got information from different sources and some of the other parties will address some of his points, but it's clear under the case law, Your Honor, and I know there's a limit of *132 79 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 time. His testimony -- THE COURT: Well whatever we don't finish by noon we can take up at 1:30 because I've gotta to swear a new attorney in at lunch time.
MR. GARZA: His testimony, Mr. O'Bannon's testimony, as to my client C & M and as to the issues of roof repair and roof replacement, constitutes no evidence. Now there's a lot of cases cited and I don't need to tell the Court because the Court knows very well, you know, the Robinson and Daubert and stuff. What I do have, Your Honor, are two cases involving your predecessor, cases here from the 229th District Court, which were reversed and rendered because they let in expert testimony which should not have been allowed in. And I know the Court's time is valuable and the last thing you would want to do is have to try a case for several weeks and then at the end just reversed and rendered because expert testimony came in that should not have come in.
THE COURT: And the Plaintiff shouldn't want that either. MR. GARZA: And the Plaintiff should not want that either. There's two cases. One was Texas Mutual Insurance Company and I provided the Court with copies of those cases. That's a workers comp case and it dealt *133 80 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 with medical, uh, causation. THE COURT: Which case is that? MR. GARZA: Texas Mutual, but I am no not
really going to speak to that one very much -- THE COURT: Okay. That's 143 SW 3rd, 117. MR. GARZA: They are both reversed and
rendered from the 229th, your Court predecessor, both writ denied or review denied by the Texas Supreme Court. The one I would like to show to the Court would be the Goodyear case, Your Honor.
THE COURT: Okay. MR. GARZA: And if you go to page 9 of the
Goodyear case -- and I will point out that the Plaintiff had filed a response to my motion to exclude Mr. uh, O'Bannon and Mr. O'Bannon talks about how he's been there for 32 years and done estimating and so forth. And as I read this case I sort of came to the conclusion that I could take a little part of this decision. If the Court goes to the bottom of page 9 where the foot note 116 starts.
THE COURT: Okay. I see that. Talks about this expert that was excluded and resulted in the reversal and rendering of the case. Yet a man that had a bachelor's degree in chemist, a Master degree in Polymer Science and Engineering -- he had a lot of *134 81 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 credentials. And it goes on and says, "Although Crate's background includes research generally into the adhesion of properties of various materials, none of his experience is specific to tires. He has no background in tires, does not consider himself an expert on them. He admitted the vast amount of his experience in failure analysis has been related to products other than tires."
And then you go further down and you get to about 7 or 8 lines up it says where the Court finds it says, "Although this background may have enabled Crate to discuss adhesion failures generally, he was not qualified to opinion on the specifics of the actual subject matter for which he was called to testify. Accordingly we hold that Crate was not qualified as an expert in the field of tire failure analysis, therefore his testimony amounts to legally insufficient evidence to a manufacturing defect." And very simply, Your Honor, uh, if the Court would take the time and read the motion entirely it basically says you have an expert who has no specialized knowledge, training, et cetera in roofing systems. He gets a one page quote that the Court has in front of you. He says, "I have no on his supporting documentation." And even if I concede to the other parties that he has 30 or 32 years of experience as a cost estimator, he would sort of be like Mr. Crate. *135 82 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 He may have been a cost estimator for 32 years just like Mr. Crate may have been talking about adhesion issues for 32 years or many years, but he was not an expert in this particular field. Mr. O'Bannon didn't get up and say I am an expert on roofs, I know what it costs to replace a roof, I replaced a hundred roofs in my lifetime, none of that. And that in a nutshell, Your Honor, is our argument.
So he would move to strike and exclude all this testimony, his testimony as it relates to roof and roof repairs.
THE COURT: Okay. Mr. Jolly? MS. COOPERRIDER: Your Honor, I would just
like to say we join Mr. Garza's argument. This is Limon --
THE COURT: Right, it's on the record that all four defendants joined in that argument. MS. COOPERRIDER: We have our own motion pending. We just have to put on our own summary judgment evidence. The one page quotes are the same --
THE COURT: I mean, if it's the same argument I get it. MS. COOPERRIDER: Okay. Thank you, Your Honor. THE COURT: Okay. Mr. Jolly? *136 83 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. N. JOLLY: Yes, Your Honor. I believe Mr. Garza started out explaining that Kenny O'Bannon is not a roofer. That's true. He's an estimator. He's not a mason. He's not an H.V.A.C. installer, he's an estimator.
THE COURT: What is an estimator? MR. N. JOLLY: An estimator calculates
remediation costs. THE COURT: And that's all he does. MR. N. JOLLY: That's right. And he relies on
the other experts who opinion whether or not the work is necessary, and this gentleman opines on whether or not the charges are reasonable in our community.
THE COURT: Do you have another guy that's doing the roof issues? MR. N. JOLLY: Correct. THE COURT: Do you? MR. N. JOLLY: Yes, Your Honor. THE COURT: And he's listed as an expert also? MR. N. JOLLY: Yes, Your Honor.
Mr. O'Bannon -- THE COURT: He's going to talk about the same thing pretty much? MR. N. JOLLY: The other expert is the one who says that the work is necessary. And the case -- *137 84 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: And does not talk about how much it's going to cost or does also talk about how much it's going to cost?
MR. N. JOLLY: The other experts can rely upon the estimator, and the estimator can rely upon the people who say the work needs to be done. So, they all --
THE COURT: But what I am saying does the roofer also talk about how much it's going to cost or he just says what needs to be done?
MR. N. JOLLY: They can do both. They can do both. THE COURT: Okay. MR. N. JOLLY: There is no redundancy because
the roof expert is relying upon the estimator and vice versa. I will point out this is not a comp case and medical causation is not relevant. Tire tread separation is a whole other gig. There's a case if you haven't heard of is called McGinty versus Hennen.
THE COURT: Do you have the cite? MR. N. JOLLY: It's a June -- Texas Supreme
Court, June 29th, 2012. That is the landmark case on construction estimators testifying in Texas.
THE COURT: What is the, uh, what's the style? MR. N. JOLLY: M-C-G-I-N-T-Y. And I apologize *138 85
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 I don't have the case with me. THE COURT: Okay. MR. N. JOLLY: McGinty versus Hennen,
H-E-N-N-E-N. Real interesting case. The estimator on that case had actually estimated some pending matters that we had, and we immediately terminated him and located someone else and low and behold we found Kenny O'Bannon. So, we actually acted on this case and made sure we located someone that was appropriate. Mr. O'Bannon's line item response to every complaint about his testimony is on Exhibit A to our response. He goes through and explains in the italics portions. It's an affidavit. He explains his response to every complaint that's been made.
The other complaint that the estimate or the quotes from subs are on one page. I think the other complaint was he didn't take any measurements and that's true. He may have taken some measurement, but for the most part he doesn't take measurements. He doesn't need to. He has the plans. The measurements are on the plans. So the fact that the man didn't measure everything in the building is irrelevant. He has all the measurements. The complaint about the estimate or the estimates from subs for the mason or roofer or whoever that Kenny accumulates from the people that he *139 86 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 can trust and know are reliable in the community, the complaint that it is on one page is really -- doesn't have much merit, and the reason I say so is because each of those for the various trades and portions of work for the remediation, they may have been on one page and then he ends up with numerous pages, and come to find out when the architect was estimating this building before they ever built it, the architect, who is not an estimator, the architect used one page to estimate the entire costs for the whole building.
THE COURT: Well I mean I have found that there's a lot of people that say a lot of things but end up saying nothing.
MR. N. JOLLY: Right. THE COURT: And there's some people that say a
few words and say a lot. MR. N. JOLLY: Right. THE COURT: So. MR. N. JOLLY: Exactly. Exactly and it turns
out that Mr. Ochoa used some national standards, Kenny O'Bannon uses national standards, R. S. means. It turns out Mr. Ochoa was almost spot on to maybe the tune of 200, 300 thousand dollars and this is the pre-bid formulation for raising the money, coming up with the plan and going out for bid. I mean, the one thing *140 87 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 Mr. Ochoa did do right was he got the estimate pretty close.
THE COURT: Is this mine or yours? MR. N. JOLLY: You can have it. And he did
that on one page. So, I don't think that just because he has a single page --
THE COURT: I am going to read the cases. MR. N. JOLLY: Yes, Your Honor. THE COURT: I am going to read the cases as
submitted by Mr. Garza and I am going to read that, uh, case that you say is a landmark case for estimators, and then I will make a decision with reference to that.
MR. GARZA: May I briefly respond, Your Honor? THE COURT: Of course. Of course. MR. GARZA: I didn't bring Mr. Lewis'
deposition, but he was their roof expert that talks about that the roof needs to be replaced. My recollection is that he as well as the other -- well I am just going to talk about the roof. He was not going to give opinions on the cost of the repair or replacing the roof. He deferred to Mr. O'Bannon.
THE COURT: Okay. MR. GARZA: Mr. McGuire, the one-page estimate
that you have for the roof, he's not listed as an expert for the Plaintiff, and so Mr. O'Bannon is relying on *141 88 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 hearsay from Mr. -- from the -- on that one page to give his testimony. Again it's going to be very simple. They are expecting him to get up there --
THE COURT: So Mr. McGuire is not an expert? MR. GARZA: He's not an expert, he's not
identified as an expert in this case. All his -- I mean what Mr. O'Bannon is going to tell us is hearsay that he's relying on from that person. But when I asked him show me what you got from this person, he got nothing. And we are a week from trial so it's too late for them to go supplement and start sending me stuff.
THE COURT: McGuire is not an expert? Or listed as an expert? MR. GARZA: I keep saying McGuire but whatever his name is. THE COURT: Is it McGuire or McGinty -- what is the? MR. N. JOLLY: McGinty is the Supreme Court case. THE COURT: Right. MR. N. JOLLY: Well we -- THE COURT: But the one page from the -- that
was given to the estimator that the estimator relied upon, what was his name?
MR. N. JOLLY: I don't know who he's referring *142 89 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 to. MR. GARZA: I'm sorry, McIntyre. THE COURT: McIntyre. MR. GARZA: Jerry McIntyre is not designated
as an expert by anybody in this case and I don't have anything on him. All I have is this one-page quote that's supposed to support a $675,000 replacement of the roof. And you can read the references in Mr. O'Bannon's deposition, and it's clear when I asked him what do you have from Mr. McIntyre, he has zero, except the one-page document. So my examination of him is what do you have for Mr. McIntyre --
THE COURT: So you are saying he's not relying on another expert. MR. GARZA: He's not relying on another expert, he's relying on a page that was sent to him. MR. N. JOLLY: We disclosed, retained testifying experts, they produced their reports, the bases for their reports are attached. This is the way estimating is done by getting quotes.
THE COURT: Okay, well I'll look at the cases and make a decision. MR. GARZA: Thank you, Your Honor. THE COURT: Okay and then we have about 15
minutes left so I don't know if there's something we can *143 90 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 take up in 15 minutes. Like I say I would rather work through lunch all the time, but today I've got to swear somebody in. So we have got Plaintiff's Motion to Compel and for Sanctions. We've got Plaintiff's Motion to Compel Defendants to Produce the Full and Complete Expert Files and Everything Referred to and Relied upon.
MR. N. JOLLY: That's been satisfied, Your Honor. THE COURT: Okay, that one has been satisfied. MR. N. JOLLY: Correct. Those are both
Plaintiff's motions. THE COURT: Were both satisfied? MR. N. JOLLY: Well they were late but I am
not going to have a tantrum about it. THE COURT: You are not going to push the Motions to Compel and for Sanctions. MR. N. JOLLY: I got it. THE COURT: Okay. MR. N. JOLLY: You know, I, I, I am not going
to push it. THE COURT: Okay, then we've got Descon's Motion, uh, to Strike or Exclude Evidence on Plaintiffs Claims for Attorneys Fees. How long is that going to take to argue?
MR. FARWELL: Your Honor, Jay Farwell for *144 91 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 Descon. Not very long. THE COURT: Well I mean if you say five minutes -- MR. FARWELL: I think -- THE COURT: -- if everyone can argue and
respond within five minutes I'll take it up, if not we are going to take up after lunch because I have to go and swear this guy in.
MR. N. JOLLY: It will take seconds only. There's a new Supreme Court case that just came out I believe April that says --
THE COURT: What is the cite of that case? MR. N. JOLLY: I don't believe I know the
cite, I know it was just last month and a lot of people --
THE COURT: Maybe not a cite but a number. Something I can refer to. MR. N. JOLLY: It's in their motion. MR FARWELL: Your Honor, the Plaintiff -- THE COURT: State your name. MR FARWELL: Jay Farwell. THE COURT: Okay. MR FARWELL: The Plaintiff in this case has
pled for and is asking for attorneys fees under section, uh, what is it 38.001 of the Civil Practice and Remedies *145 92 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 Code for a breach of contract. THE COURT: And you are arguing for Descon. MR FARWELL: I am arguing for Descon. THE COURT: Because it's Descon's motion. MR. FARWELL: Descon Construction is a limited
partnership. MR. N. JOLLY: We agree. We agree that the Supreme Court says you can't collect attorneys fees from a partnership.
MR FARWELL: Your Honor, if I could finish my argument. THE COURT: Well if he's agreeing to -- he's agreeing that he's not entitled to attorneys fees. Right?
MR. N. JOLLY: From the partnerships. You are entitled to recover attorneys fees from corporations or people and that's it.
THE COURT: Is that your argument? MR FARWELL: That's my argument, Your Honor. THE COURT: So then if -- MR FARWELL: If he is not -- if he'll just say
on the record that he's not, uh, seeking attorneys fees from any partnerships, then, uh --
MR. N. JOLLY: I didn't say general partners, I didn't say people, I didn't say corporations. *146 93 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Okay. Well let's make it very clear exactly what you are saying, Mr. Jolly, because I don't want to be back here on this issue.
MR. N. JOLLY: Right. No one can collect attorneys fees in Texas any more against a partnership or an LLC that is a pass through partnership. But if the LLC is a corporation you can.
THE COURT: Do you agree with that? MR FARWELL: Yes, Your Honor. THE COURT: Okay. MR. N. JOLLY: You can collect fees from a
corporation and a person. THE COURT: Well then -- MR. N. JOLLY: And that's it. MR FARWELL: Just so the record is clear
though, then the Plaintiff is not seeking attorneys fees from Descon Construction LP in this case.
MR. N. JOLLY: Well I think I made it real clear. Descon Construction LP is a partnership but it's partners are responsible for the attorneys fees if it's a person or a corporation.
MR FARWELL: Well I don't agree with that statement of the law but I want to make sure I understand that the Plaintiff is not seeking --
THE COURT: Okay well submit -- *147 94 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 MR FARWELL: -- attorneys fees from a partnership. THE COURT: Submit an order that both of you sign that says he's not pursuing attorneys fees as against any partnership in accordance with the last, uh, I guess decision --
MR. N. JOLLY: Well it's like this. If a partnership can't pay its debts then it's partners owe them. So we got to make it real clear that he's not going to put together something knocking out the Plaintiff's right to recover attorneys fees from people.
THE COURT: Right. MR. N. JOLLY: Or corporations. THE COURT: Right. MR. N. JOLLY: Who were the owners, successors
and partners -- THE COURT: So my ruling is as to any person or corporation he can, insofar as the law allows him to collect attorneys fees or recover attorneys fees or claim attorneys fees against thoseentities, but as to any partnerships, which would be in violation of the latest Supreme Court ruling, he cannot. Is that correct?
MR FARWELL: Very good, that's very clear, Your Honor. Just for the record -- *148 95 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Okay and submit an order that says that and but do give me the case. Or that, uh, the name of the case.
MR FARWELL: Flemming and Associates versus Barton, 425 SW 3rd, 560 -- MR. N. JOLLY: No, it's the later case. MR FARWELL: It's a 14th Court of Appeals case
in 2014. MR. N. JOLLY: No, sir. No, sir. The Supreme Court case, that one had petition granted. The Supreme Court case was after that case wasn't it? No? While the petition was pending? Isn't there a Supreme Court case cited?
MR FARWELL: Petition has been filed in the case. MR. N. JOLLY: If that's not the correct case I'll give it to you. THE COURT: Okay. MR FARWELL: I believe that could be the
correct case. THE COURT: Okay. Anything else gentlemen? I mean that's all I had on my list. Is there more stuff? That needs to be heard?
MR. GRIFFITH: Your Honor, ERO had a, uh, Robinson Motion to Exclude the Testimony of the *149 96 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 Non-design Professionals testifying as to design defects. I don't think Plaintiff's counsel is opposed because for the most part his experts, his non-design experts say they were not going to testify or were not qualified to testify --
THE COURT: Tell me that again. It's ERO's motion for what? MR. GRIFFITH: Daubert Motion to Exclude the Testimony of Plaintiff's Non-design Professionals Regarding Alleged Design Defects. Again Mr. uh, Holder, uh, I think Krismer, the rest of them, they said since they are not design professionals they are not going to have any design opinions, but I wanted to make sure. It's almost like a prophilactic measure. That's the order.
MR. N. JOLLY: Is this something that was set today? MR. GRIFFITH: Yes. THE COURT: I mean I didn't have it on my
list. Was it filed. THE COORDINATOR: No, it was not on the list, but I am going the check here. THE COURT: I had not seen it. MR. N. JOLLY: This is really limine stuff,
Judge. *150 97 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. GRIFFITH: Yes, I would agree this would normally be limine, but typically if it's something that I don't want to get in front of the jury. I'll do a motion to exclude, that way it's ruled on ahead of time and we don't have to argue when it comes up. That's the only reason I did it, but yeah in general this would be limine but I wanted to exclude it or have a resolution of it before trial.
MR. N. JOLLY: We, we -- well we have limine that -- this goes both ways. They on the one hand you don't want someone opining on architecture, but on the other hand they want the janitor to opine on air-conditioning design. So it's in our limine. Really, really, if we want to take up the whole limine right now that could take severa hours and we are willing to stay here to do that.
THE COURT: Wait a minute, we are going to take up the limine today. MR. N. JOLLY: Okay good. THE COURT: We'll do it after lunch. THE COORDINATOR: It was set for final
pretrial as well. THE COURT: Because we are set for final pre-trial today. We are going to take up everyhting. We are not going to be arguing anything on jury *151 98 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 selection day. There's no way. We are -- all we are going to do jury selection day is pick a jury and start a trial. Everything --
MR. N. JOLLY: All right. THE COURT: -- else we are hearing today. So,
I will have you all back here at 1:30 with any other issues that you want me to take up. Including this one.
MR. OLIVEIRA: Your Honor, if I could make a suggestion. I don't think we have sat down with, with, uh, Norman on the motion in limine.
THE COURT: Have lunch have lunch together. MR. OLIVEIRA: We should have. THE COURT: I am ordering you to have lunch
together. Go to I guess you can go to Casa De Adobe, there's probably room for all of you upstairs or something.
MR. OLIVEIRA: If not, if the other thing -- THE COURT: Or go to Caro's or somewhere. MR. OLIVEIRA: If we can get together maybe
before we, uh, give us a little bit of time. THE COURT: Do you all want -- guys you all are not listening here. Okay, so focus. So why don't y'all go I've a quick lunch, if you want to eat together eat together, if you don't want to I can't force you to do that. But, be back here by 1:00. Start talking. *152 99 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 See what you can work out and agree upon and I guess 1:30 is not going to be enough time for you all to agree on anything, so I guess I can get back on the bench at 2:00.
MR. OLIVEIRA: That's fine, Your Honor, give us an hour. THE COURT: That way you can just shorten your arguments and, uh, get your agreements together and whatever y'all can't agree upon then I will decide, but that way I am not sitting here saying well judge we did agree to number one and didn't agree to number two but then maybe number 3 and -- no. I mean, y'all sit down, talk, work on whatever you have to work out, and whatever you can't work out I'll take it up at 2:00.
MR. OLIVEIRA: Be happy to do that thank you, Your Honor. THE COURT: If y'all want to leave your stuff here nobody is coming in, nobody is going to take it, nobody is interested in it I'm sure.
(This is the end of the morning session for Friday May 1, 2015, Judge Garza, Starr County, Texas.) *153 100
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 *154 101 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 (P.m. session for Friday May 1, 2015, Judge Garza, Starr County, Texas.)
THE BAILIFF: All rise, the 229th District Court is back in session, Honorable Ana Lisa Garza presiding.
THE COURT: Okay. The record will reflect we are back on the record in cause number DC-14-46. We took care of all the hearings in the morning, however, we do have some pre-trial matters and motions in limine. So do you want to go ahead and let me know what the agreements are? Or better yet what the agreements are not. So let's start with the motion in limine.
MR. N. JOLLY: There's a number of agreements and disagreements. We are still working on Lemon's. THE COURT: See y'all were supposed to confer about all this stuff before you even got here. MR. N. JOLLY: We have been working on it real hard. MR. GRIFFITH: There's so many parties. I don't care, it doesn't matter to me if there's 1, 9, 20, or a hundred. You were supposed to confer on your motions in limine before you came here.
MR. SMITH: I am ready to proceed, Your Honor. *155 102 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Well but you didn't confer. MR. N. JOLLY: We did. MR. SMITH: We did. We have. THE COURT: I told you to to do it at lunch
time. MR. N. JOLLY: That's true we did blow it on that. THE COURT: Did you exchange witness lists? MR. SMITH: We did. THE COURT: Exhibit lists? MR. N. JOLLY: Yes. MR. SMITH: Everything has been exchanged. THE COURT: Did you do proposed jury charges?
I know that in th end -- MR. N. JOLLY: Yes. MR. SMITH: Yes. THE COURT: We don't know what's going to
happen when the evidence but you are supposed to exchange --
MR. SMITH: It was all exchanged. MR. N. JOLLY: That's been done. MR. SMITH: It's all been done. THE COURT: So it's just the in limine? MR. N. JOLLY: That and the motion to equalize
strikes. *156 103 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Okay. MR. N. JOLLY: And because Doug Walla is
staying around here for that, could we do that now so he can hit the road? His client has been released.
THE COURT: Okay. MR. N. JOLLY: By summary judgment. THE COURT: Okay. Well let's take care of the
motions to equalize strikes, unless Mr. Walla wants to bill more hours while he sits here and waits.
MR. N. JOLLY: Yeah. I think he's ready to get back to Houston. THE COURT: Okay, let's go ahead and take care of the motion to equalize strikes. MR. N. JOLLY: Remember, Your Honor, last time we were here we indicated that the, uh, Descon and the third parties they are not, uh, adverse to one another, they are essentially one side, and, uh, there had been an inadvertent production of an e-mail indicating there was to be conference calls between the Defendants. Uh, they inadvertently produced that to the Plaintiff. The conference call has been cancelled, but it seemed to imply at minimum that there had been previous plans for future defense strategy conference meetings, whatever you want to call it. Uh, so we sent some discovery out for joint defense agreements and everybody of course *157 104 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 said that there weren't any, but on the other hand, they are cooperating and they are meeting and we are not invited to meetings, we are not invited to conference calls. And so I have known Doug a long time and I asked him to stay here, to tell you his opinion on that.
MR. WALLA: I don't know that I really have an opinion on it. I can tell you that, uh, we had a couple conference calls among counsel for the various Defendants. I don't know if all the Defendants were on those conference calls. I participated in one myself and one of our associates participated in one. I don't know if there were any more beyond that. That's the only two that I can think of.
The substance of any of those conference calls I cannot get into, I am going to assert that that's privileged, it's work-product among other things, and I can't talk about work-product. That privilege continues whether I am out of the case or in the case.
I can say "Yes" or "No," yes we had, uh, two scheduled or maybe three scheduled telephone conferences of which two I can tell you without reservation of that. The third one never happened and the substance of them I can't talk about.
MR. N. JOLLY: And the Plaintiffs were never invited to these conference calls and it always involved *158 105 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 Descon and the third parties that Descon and ERO had sued. Right?
MR. WALLA: I know it involved some Defendants, which ones I don't remember. I know I was involved and I know Descon was involved, beyond that I don't know.
MR. N. JOLLY: The point is there's no antagonism between the parties notwithstanding the third-party claims and they are one side and they should get the same number of strikes.
MR. SMITH: Your Honor, if I could respond. THE COURT: Well go ahead and argue your
motion. I mean, what are you -- MR. N. JOLLY: That's it. THE COURT: What are you requesting? MR. N. JOLLY: The Court has discretion to
determine if there is antagonism or if there is not antagonism and on the one hand they want to file third-party claims and drag their subs in, but on the other hand they want to strategize and not act antagonistic throughout the case to the prejudice of the Plaintiff. And then on the other hand they are going to get together during jury selection and assist each other with strikes. So, at a bear minimum they should be ordered no communication whatsoever on strikes, but *159 106 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 right now we are asking for you to decide, and it is within your discretion, it's in the rule -- the cited rules in our motion, it's, it's, uh, towards the end in the two hundreds right before jury selection. I can't tell you the exact number, but it's in that range, and antagonism, the question of antagonism is a question for you. If they get ten strikes and we get six then they get to strike more people when they are not antagonistic. So, we are asking you to decide that they are one side and to equalize the strikes.
MR. SMITH: Your Honor, basically -- THE COURT: You need to identify yourself for
the record. MR. SMITH: I'm sorry. Robert Smith representing Descon. Basically I believe Limon has filed a response, we filed a response to this. Basically there is more than ample evidence that there is antagonism certainly exhibited through the Summary Judgment motions that we went through this morning. Uh, we have attached copies of interrogatory answers and request for disclosures responses where Descon is seeking, uh, their claims against all the third parties. Uh, with regard to that, seeking monitary damages and different amounts for the different parties. We made claims and are seeking claims with regard -- for example *160 107 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 the glass people with issue to their glass work, we sought with regard to the different products and the different work that the different third parties have done. There's been ample, ample showing of, uh, of the fact that there are claims, realistic claims that are being made and there is antagonism between the parties.
With regard to, uh, the action that Plaintiff's counsel is discussing, I don't believe that there has been a single --
THE COURT: Sir, you can sit down and then stand up when it's your turn. MR. B. LOPEZ: Yes, ma'am. MR. SMITH: I don't believe there's been a
single telephone call in this case where everybody was involved in or even around the majority was involved in. Uh, there have been discussions related to matters, uh, totally unrelated to, uh, or totally related to issues, uh, regarding for example scheduling and like that, that have no --
THE COURT: Well but if it was just scheduling then you would have had the plaintiffs involved also wouldn't you?
MR. SMITH: No, ma'am, because the way the scheduling in this matter took place was we contacted Plaintiff's counsel and said here's what we need for *161 108 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 depositions, give us dates. They gave dates to my lawfirm. My lawfirm then went to all the other Defendants, third-party Defendants and said these are the dates that Plaintiff's counsel has given us, let's get together and figure out which ones are acceptable to the most people to get these depose done. We acted as the intermediary on it and that was as to all 21 depositions with the exception of the last one which was handled by Limon Masonry.
THE COURT: Well then if that's all it was then why can't Mr. Walla say that? That's not privileged.
MR. SMITH: Well there were others. THE COURT: If you were just talking about
setting up depositions and things of that nature. MR. SMITH: We addressed settlement issues, we addressed a lot of things, but we did not collude with regard to the defense of the case.
MR. WALLA: My only concern is I don't think I can talk about any substance whether it's insubstantial substance or substantial substance, if that's a way to phrase it, because I think once you open that door the whole enchilada is subject to privilege in my opinion and I don't -- it's kind of an ethical slippery slope and I don't want to cross that line. So, I freely admit *162 109 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 we had a conference call. MR. N. JOLLY: Mr. Smith is saying there's scheduling, they are scheduling depose, but they are not including us in scheduling? I mean all the parties need to be involved in scheduling, you know, and I mean if --
THE COURT: I am going to grant the motion to equalize the strikes. MR. N. JOLLY: Thank you, Your Honor. THE COURT: Okay, what else? You are excused,
Mr. Walla. MR. WALLA: Thank you, Your Honor. MR. N. JOLLY: Thank you, Doug. THE COURT: What about the motions in limine?
Let's start with Descon and get me the hard copies of those motions. Or let's start with the Plaintiff's and Descon and then we'll take it from there.
MR. SMITH: Do you want Descon to address the Plaintiff's first or Plaintiffs to address Descon's first.
THE COURT: Let me have Plaintiffs address Descon first and then anybody else's after that. And then we'll go through each individual Defendant that's staying in this case.
MR. N. JOLLY: Can I remain seated? THE COURT: Yes, go ahead. *163 110
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. N. JOLLY: Thank you, Judge. We agree to number 1, we disagree -- THE COURT: Hold on. Hold on. We are starting with Plaintiff's motion in limine. MR. N. JOLLY: Oh, okay. Let's take it from there and start with, you know, granted -- what's agreed and what's not agreed. So, let's start with page 2.
MR. N. JOLLY: 1, 2, 3 are agreed. THE COURT: Okay, so I am going to grant
those. Okay. MR. N. JOLLY: Four is denied -- I'm sorry, disagreed. Ha, ha, ha. THE COURT: Okay, so then I need to decide number four. Right? MR. N. JOLLY: That really is something that would depend on how they asked the question. THE COURT: I am not even getting this. MR. N. JOLLY: Well you see the thing is that
there's one lawyer in particular who isn't here and he wanted to know how things worked at our office and I told him that was none of his business: Who is the time keeper, I asked him to tell us what he meant by time keeper -- I mean the point is that the attorney is keeping the time. If he wants names of other people at my office it's just privileged that's all. *164 111 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: I am going to grant -- I mean or talk to me. MR. SMITH: Your Honor, the issue with regard to the time keeper is that, uh, when we are provided, if we are provided with time sheets or background sheets with regard to the claim for attorneys fees, uh, one of the issues will be well who figured out or who kept track of the time that's recorded here.
THE COURT: Like a paralegal's time or what? MR. SMITH: We have not been presented with
any time records so far, but yes it would be like if Mr. Jolly has an entry for 50 hours for researching something, all right, who kept track of that 50 hours to figure out whether it's reasonable and necessary?
THE COURT: Well I assume he would. MR. N. JOLLY: That's right. THE COURT: That's how I did it when I was
still practicing law, I mean, I kept my own track of my own hours.
MR. SMITH: I would assume so, Your Honor, but we don't know that because we don't have the records. THE COURT: Well you don't have them yet. MR. SMITH: No. I understand and that's --
that would be the question. It may be in the records. It may list who the time keeper is. *165 112 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: I am just going to carry that over. MR. SMITH: Okay. THE COURT: Okay number five. MR. SMITH: There was an issue with regard to,
uh, the subject schools are pretty good. Uh, somebody raised an objection with regard to that language. I don't remember who it was.
MR. GRIFFITH: The -- MR. SMITH: It was with reference to the
language pretty good that they had an issue with it. Uh, as far as asking questions about well did this work, was it okay --
THE COURT: Fact witnesses cannot speculate of expert subject matters, and I am not going to allow that so I am going to grant that. Number six.
MR. GRIFFITH: Can you grant modified just as to expert subject matter because there's going to be a lot of -- if we ask somebody like a A/C tech about it being hot or cold and they say no.
THE COURT: That's not expert material. MR. GRIFFITH: Right but I think if we ask
them -- THE COURT: Give me some credit here. I mean, if the question is is it hot or cold and they are asking *166 113 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 a lay witness that, that's not expert testimony. And I can overrule or sustain an objection there. I am not -- I -- and I don't think anybody is going to go out there and argue well all the, you know, all the students and principles and teachers said that everything was pretty good so then obviously there's nothing wrong with this school. I mean, is that what you all are referring to here or what? That's not expert opinion and, you know, to confuse the jury by asking one of the principles or administrators when you went out to the school what did you think about it? Oh well I thought the school was pretty good or I thought it was, you know, decent. Well, what are y'all referring to here?
MR. GRIFFITH: All we want to make sure is that if we ask somebody did you have any problems with something particular that it won't be construed as expert testimony. The people can make observations about whether the wall is sweating or not.
THE COURT: Yeah, I mean, -- MR. GRIFFITH: -- or the ceiling tiles -- THE COURT: -- if you have an administrator on
the stand and you are asking him questions about the air-conditioning, was it cool, was it hot, it was fine. Well I am going to allow that. You don't need an expert to say is it hot or cold or reasonably cool or whatever. *167 114 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 I mean, no. I mean that -- some of these motions in limine.
MR. N. JOLLY: Sorry, Your Honor. THE COURT: Yeah ha, ha I mean. I am going to
grant that and I am going to keep a close eye on that and like I tell you an administrator, school principal, teacher, even a student can tell you oh we thought it was pretty cool in here. I know you are not going to have students testifying, I don't think, but I mean we all know what is expert testimony and what is not. So, anyway.
Number 6, personal income of Plaintiff's experts and income or revenue of Plaintiff's expert or attorney, I mean, that's granted. I don't even think that you would even object to that would you?
MR. SMITH: Our only issue with it was whether it addressed the, uh, income or revenue of the experts with regard to the work on this --
THE COURT: No, of course you can ask them how much are you getting paid. MR. N. JOLLY: We don't object to that. THE COURT: That's different than asking can I
go to your house in Tahiti or don't you have 20 houses across the United States or across the world -- well not the United States but all over the world or, you know, *168 115 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 how much do you make, what was your income last year. I mean, I think that's irrelevant, but you can certainly ask questions about how much money are you getting paid for this, are you getting paid 300 dollars an hour, 250 dollars an hour, I mean that's -- you all already know that, I don't have to tell you. Okay, number seven that should be granted. I certainly don't think anybody has an issue with that. Does anybody have an issue with number 7?
MR. SMITH: Somebody did. I don't remember who. THE COURT: Well it's not happening. That's granted. The source of any funds used to design or construct --
MR. N. JOLLY: That was agreed.
THE COURT: 9?
MR. N. JOLLY: 9 is disputed. MR. GEALY: Your Honor, there are MET expert
that testified in another lawsuit which I was involved. THE COURT: Which expert? MR. GEALY: Edgar Stacy, and he's their
air-conditioning expert, and he testified in that case essentially to the exact opposite of what he's testifying in this case. At his deposition he acknowledged that and in fact changed his testimony in *169 116 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 this case on some of those issues that he had testified to opposite in another case. Now, he's already changed his opinion to now be consistent with it so I am not sure that's going to be an issue but I just don't want to get caught up in some argument, uh, that there's a limine on that when he's already acknowledged it, he's already changed his opinion, uh, under sworn testimony.
THE COURT: Why would you bring in his testimony from another school? MR. GEALY: Because he testified the exact opposite in this case and then when confronted with this --
THE COURT: Regarding his expert opinion? MR. GEALY: Right and when confronted with his
prior testimony he changed his opinion in this case. MR. N. JOLLY: This deals with establishing that the other building is substantially similar to Grulla Elementary before you can do that. That's all it addresses.
MR. GEALY: These were not issues that were related just to the building, they were relate to -- THE COURT: You are allowed to -- you have wide latitude in cross-examination, so I am going to deny that one. Okay number ten.
MR. SMITH: Number ten was agreed in *170 117 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 reciprocal for both parties. THE COURT: Okay. Number 11. MR. SMITH: Was agreed, 12 was agreed, Your
Honor.
THE COURT: 13?
MR. SMITH: Somebody had an issue with 13. MR. B. LOPEZ: Brian Lopez for Limon Masonry.
I want to make sure that we are able to talk about not necessarily using the words fulfilling their mission statement, but that the school is open and operational, kids have been able to go there. I want to make sure that we are able to establish that through the testimony.
THE COURT: But that doesn't have anything to do with construction defects. I mean, we could have -- this courtroom could be full of termites and we are still conducting courtroom business and that doesn't mean that that should be given any weight to whether or not there's a, you know, a defect here or not or that the guys that came and did the pest control did it right or did it wrong. I am going to grant number 13. I think that goes without saying. This is a small community, people know that people are going to school, and that people are going to Grulla Elementary. No. I mean, I am going to grant their, uh, request and you are *171 118 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 not going to talk about it because people already know and I am not going to let you confuse them by saying well yeah the school is -- everybody is going to school so that must mean there's nothing wrong. I don't know, I mean, I don't think that it makes any sense to be able to go into that or talk about that.
MR. OLIVEIRA: Your Honor, I think where it comes in is on damages. I mean, you are talking about, uh, is the school, uh, still fit to be used. Uh, I think those are factors that a jury can, can hear and so I think it is relevant, I think it should come in.
THE COURT: Well I don't. So y'all, you know -- I disagree. Number 14. MR. SMITH: Agreed.
THE COURT: 15?
MR. SMITH: Number 15 somebody had an issue
with that. MR. N. JOLLY: Limon Masonry. That was Brian Lopez' objection about Limon Masonry. MR. GRIFFITH: Your Honor, I actually joined in it too and I think the concern was that it crossed on Plaintiff's expert to be pretty wide-ranging. We are not going to say the words find millions in damages, but I want to talk about what they do, their methodology.
THE COURT: You will be allowed to ask them *172 119 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 isn't it true that you always get hired by the Plaintiff's side.
MR. GRIFFITH: Those are the questions. THE COURT: Or 90 percent of your work is
from -- because I practiced law on both sides and that's par for the course. If you are going to hire an expert that always testifies for the defense, like some doctors that we had before in the Valley, and other times you know I was on the Plaintiff's side and when, you know, hired people that generally, you know, saw things our way, if you will, I don't know if that should be on the record Ramiro or not, that was a long time ago. But, nevertheless I will allow you to go into that. You will be allowed to cross examine the experts fully about isn't it true that you always get hired by one side or the other. They can do it to the defense experts and the defense lawyers can do it to the Plaintiff's experts. You can go into that. I don't know if you can say and you always find millions of dollars in damages. I mean, I think -- well let me think.
MR. GRIFFITH: They always find damages and they are always going to say to our experts well you never find damages.
THE COURT: Well true. MR. N. JOLLY: That's not true. There's been *173 120
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 buildings that these guys have looked at and they didn't find anything wrong, so to sit there and say that, it's not true.
MR. GRIFFITH: Well if it's not supported by the evidence. THE COURT: Then say no it's not true. MR. N. JOLLY: I'm sorry. THE COURT: Then the expert will say no it's
not true. MR. N. JOLLY: Yeah. Right. That's true. Or say not true. THE COURT: Yes it's true that -- well okay, we are all getting off the subject here. I am going to deny number 15 and you can -- you have wide latitude in your cross-examination on both sides.
MR. GRIFFITH: Thank you, Your Honor. THE COURT: Number 16. MR. SMITH: I believe 16, 17 and 18 are
agreed. On 19 there was an issue raised on that. THE COURT: Is there leaks at all campuses? I mean is that a fact? MR. GRIFFITH: Actually it is true with regard to air. Air comes and goes out of buildings everywhere. Plumbing leaks, water leaks, no. So I mean it's just so vague it's kind of hard to make a motion in limine if *174 121 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 there are leaks in the building. THE COURT: I am going to grant the Plaintiff's request. You are not going to go around saying there's leaks at all campuses, no. Okay number 20.
MR. SMITH: There was an issue with that, uh -- THE COURT: Why would you bring that up? MR. GRIFFITH: The only reason this one came
up was because of the issue of failure to mitigate. I mean, obviously the Plaintiff has obligation to mitigate and this seemed to tread into that area. Plan or does not plan to make repairs, well they have a duty to mitigate so to the extent that's an issue on the attempted limine to talk about it. They need to repair as they go also.
THE COURT: Well, I mean, I think that depends on the kind of repair. If it's just a plumbing leak, of course they have -- they should, you know, they have a responsibility to mitigate that, I mean, they --
MR. GRIFFITH: Well if they have -- THE COURT: If they have like the, I mean, if
the roof is caving in, I mean -- MR. GRIFFITH: Agreed but for example the chiller goes down and they are not fixing it because *175 122 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 they want to replace it with another chiller and then they run the building with one chiller for a year. That's all their decision, and that's their failure to mitigate. They could have fixed or replaced and they chose not to. Those are elements that are going to go into the case.
THE COURT: Well but that's not exactly what number 20 says. MR. GRIFFITH: True and that's why I wasn't really sure, I mean it doesn't say we cannot bring their failure to mitigate.
THE COURT: I think Mr. Jolly is talking about the future. If they get a recovery are they going to make the repairs or are they required to make the repairs, and I don't think you should go into that, so I am going to grant number 20.
MR. GRIFFITH: If they made a recovery yeah we would agree. THE COURT: But, you know, if it's little things, you know, we'll see. That's not what number 20 says. Okay, number 21.
MR. SMITH: 21, Your Honor, the issue with that was, uh, their requirement or duty to continue to maintain the facilities and the machinery and specifically for example the H.V.A.C. system in *176 123 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 accordance with manufacturer's, uh, information on it, and like that. Uh, there is going to be an issue as to whether the school district conducted proper maintenance or conducted the required maintenance and repairs and they were questioned with regard to, uh, whether they went outside of the internal maintenance department to obtain bids or request for proposals, uh, with regard to repairs that they are claiming in this lawsuit. I believe that, uh, whether -- what their history was and how many times they went and obtained any bids or request for proposals is certainly as relevant as how many internal work orders did you have and then -- within the school district to do the school as well.
THE COURT: Mr. Jolly? MR. N. JOLLY: I am confused. THE COURT: I am too. Because I mean for you
to have -- I mean, I presume there was discovery exchanged whereby you were given some information about what repairs were done on each specific item that they are claiming is defective or not designed properly or malfunctioning or whatever.
MR. N. JOLLY: I will withdraw that one. How's that? THE COURT: Okay. I mean, you did exchange discovery in that regard. Right? *177 124 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. SMITH: We did, Your Honor, and we have been provided with thousands and thousands of records regarding maintenance, repairs --
THE COURT: Okay. He's withdrawing that one anyway. Okay, number 22 that any other building or the subject buildings --
MR. SMITH: We are in agreement. THE COURT: Okay number 23? MR. SMITH: I didn't have a problem with that
but somebody did. THE COURT: Did anyone have an issue with that, 23? Okay that's granted. Number 24. Is that agreed or not?
MR. SMITH: That was not. There's going to be an issue as to whether or not any certain employees or employees of the school district requested, uh, repairs because the repairs -- the request for repairs, according to the testimony, uh, is an internal process where it comes from -- the maintenance department is over here in part of the school district as a whole, and the school is the one they generate a work order or work request or contract request, uh, from the school district and it goes out to the maintenance department and then goes out. So, there's going to be definitely an issue as to whether or not the school itself has *178 125 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 issued or requested any repairs. THE COURT: But like requested from Descon or from any subs or from whoever? MR. SMITH: Well we asked and addressed it with regard to Descon or any subs and, and, all that was a separate issue, but even requesting it internally.
MR. GRIFFITH: Your Honor, really this is the failure to mitigate. That's the concern we have with all these repairs. They say we can't discuss it. That keeps us from discussing one of our affirmative defenses which is their failure to mitigate. They have an obligation and duty to mitigate. As long as we can bring up failure to mitigate issues, then we have no problem with any of this.
THE COURT: Uh-huh. MR. GRIFFITH: With the caveat that we can
discuss failure to mitigate to the extent it's applicable.
THE COURT: Mr. Jolly? MR. N. JOLLY: I'll withdraw that. MR. GRIFFITH: That covers 23 true 27 as long
as we can discuss failure to mitigate -- MR. N. JOLLY: No, we disagree that emergency doesn't need to be declared on number 25, we disagree. THE COURT: Okay, number 25 I mean y'all -- *179 126 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 y'all are gonna argue that -- MR. SMITH: One of their experts opines that it's a life safety issue and there will be an issue and I'm sure testimony with regard to what the life safety issue is and whether an emergency has been declared.
MR. N. JOLLY: The life safety issue was solved with rerouting the buses and putting up some "caution don't pass this line" tape.
THE COURT: I am going to grant number 25. MR. B. LOPEZ: May I chime in quickly on that
one? The one issue on the life safety is that he actually says quote "it is my obligation to inform you that I have observed defects that in my professional opinion pose a threat of serious injury." Those are his words.
THE COURT: Right. MR. B. LOPEZ: So certainly that needs to go
towards an emergency. We believe that we have the -- THE COURT: He just said it had been resolved. MR. B. LOPEZ: I think we disagree as to
whether or not it had been resolved. THE COURT: No, that it was resolved by someone going in there and taking other measures and -- MR. B. LOPEZ: So the measures with the possibility of the walls falling down has been resolved. *180 127 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: That's what he just said. Didn't you just say that? MR. N. JOLLY: The errors -- THE COURT: I mean he didn't specify which
ones. MR. N. JOLLY: The areas were cordoned off. MR. N. JOLLY: The condition still exists. THE COURT: He's saying the safety measures
that they took was, I guess, keeping kids out of that area?
MR. N. JOLLY: Right. MR. B. LOPEZ: We are not talking about the
retaining walls, we are talking about the actual walls of the school. You are saying there are no kids that are going there by the school -- by the walls of the school.
MR. N. JOLLY: The areas of concern have been cordoned off. MR. B. LOPEZ: Okay. THE COURT: Okay. Number 26. MR. SMITH: I think that's agreed. THE COURT: Number 27. MR. SMITH: 27 relates to the same issues on
mitigation and whether they maintain. We believe that we should be allowed to go into the question or the *181 128 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 issue of mitigation since that's one of our defenses and whether they complied with their obligation to maintain their own equipment.
MR. N. JOLLY: The problem with this is that they try to get the janitor, uh, to say that if there was anything wrong with the structural masonry he could fix it. The janitor resolved any problems.
THE COURT: We'll carry that over, we'll carry that over, and depending on who the witness is, and y'all can approach the bench on that.
MR. N. JOLLY: Thank you. THE COURT: Okay, number 28. MR. SMITH: 28 somebody raised a -- oh yeah. MR. GRIFFITH: Your Honor -- MR. N. JOLLY: We'll withdraw that one. 28 is
withdrawn. THE COURT: Number 29? MR. N. JOLLY: 29 agreed. MR. SMITH: Agreed.
THE COURT: 30?
MR. SMITH: 30 is the same as the prior one
that you addressed regarding emergency conditions. MR. N. JOLLY: That's repetitive isn't it? MR. SMITH: Yes. MR. N. JOLLY: Withdrawn. *182 129
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MR. SMITH: 31 --
THE COURT: Is 31 agreed or not? MR. SMITH: It was not agreed. MR. GRIFFITH: It's not agreed. It goes to
argument. They can't limine out -- I guess the caviat is if we can't say there's no such thing as a perfect building then we have to acknowledge that there are -- all buildings are perfect? I mean it doesn't make any sense. I mean to me that's just not really the subject for motion in limine, it's argument.
MR. N. JOLLY: Carry that one over, Your Honor. MR. GRIFFITH: Truly you I can not say there's such a thing as a perfect building. No one can say that.
THE COURT: No one can say that there's such a thing as a perfect building. MR. GRIFFITH: Right so why am I liminied from say there's no such thing. THE COURT: Because it's kind of a matter of perception, right? MR. GRIFFITH: Yeah. THE COURT: Yeah, let's just carry that over
and see how it applies here. Number 32. MR. SMITH: That wasn't agreed to. I don't *183 130 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 remember what the issue was or who had the issue. I believe that it goes over to the same ideas of safe environment and the emergency --
THE COURT: I guess we can carry that over and-- MR. SMITH: Okay. THE COURT: -- and see what you are going to
do with that. MR. SMITH: Uh, 33, I think the issue there was, uh, that there were -- I don't believe that anybody is going to say until the lawyers were hired, but there will be a, uh, issue as to when the problems arose was during that time period.
THE COURT: Well I am going to grant that. I am going to grant number 33. MR. SMITH: Okay, number 34 Plaintiff has the medical personnel to maintain the subject schools. Uh, with regard to that, uh, the, the issue is not necessarily that they have adequate personnel to maintain the schools, but that if they passed an adequate number of people to this particular school, that they had issues with maintenance and all that they have by testimony the phones and the personnel to do it, but they didn't do it.
MR. N. JOLLY: There's no maintenance expert *184 131 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 designated. THE COURT: I am going to grant number 34. Number 35? Is that granted or not? MR. SMITH: That was agreed. 36 was agreed. 37 agreed. 38 -- actually 38, 39, 40, 41, 42, were all agreed. 43 was agreed. And then somebody had an issue on 44.
MR. GRIFFITH: No. THE COURT: Mr. Jolly, what are you saying
there? I mean, I don't understand that one. MR. N. JOLLY: We just had problems with, uh, attorneys asking fact witnesses basically to answer a jury charge question.
THE COURT: Well they know they -- I mean, you can't ask a lay witness anything that's required from an expert witness. I mean, but then there could be objections, I mean, that the person is not qualified to make such a -- let's just carry that one over and see how it applies.
MR. SMITH: Okay. THE COURT: Number 45. MR. SMITH: I think we agreed to 45, 46, 47,
both 47s. THE COURT: Ha, ha. 47 and 47 A. MR. SMITH: 48. 48, 49, 50, 51 and 52 I *185 132
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 believe were all agreed to. Number 53 -- THE COURT: We are not going to talk about insurance. So that should be granted and that's granted.
MR. SMITH: Number 54 was agreed. Number 55 -- MR. GEALY: Your Honor, let me address number 55. This is Grant Gealy. This is on the HVAC air conditioning system. If what we are talking about is the question to the head maintenance person from La Grulla who is in charge of maintaining the HVAC system, if he has any problems with it that he's been unable to resolve and getting an answer. That's all I want to ask. I am not going to ask him about, you know, design issues, but I do want to be able to ask him about his experience in being the head maintenance guy of the H.V.A.C. system
THE COURT: Would there be a problem with that question? I don't think that's an expert opinion. MR. N. JOLLY: Well, provided it stops right there because it typically doesn't. THE COURT: Yeah, that's where it would stop. MR. GEALY: The reason I say that is because
it does say do you have a problem. THE COURT: Let's carry it over. I am not *186 133 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 going to have a problem with that question of a maintenance person, you know, as long as you be careful where you are going with that, I mean, obviously they have no expertise.
MR. GEALY: Right and I don't intend to ask him design questions. THE COURT: You can ask him questions about his experience with the unit or whatever. Okay, number 56.
MR. SMITH: 56, 57, 58, 59, 60 were agreed to. THE COURT: Okay. MR. N. JOLLY: 61 is withdrawn. THE COURT: Okay.
MR. SMITH: 62.
MR. N. JOLLY: Limon Masonry. MR. B. LOPEZ: On 62, Judge, that goes back to
the latitude you talked about on cross examination. Questioning these experts to talk about that this is their line of work to go from school to school and find these problems. It's not unique just to this one.
MR. N. JOLLY: This is for charges for other schools. THE COURT: I am not going to allow that. I grant number 62. I already said you could ask them general questions in cross-examination about do you *187 134 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 always get hired -- isn't it true you always get hired by the plaintiffs, and you always find something wrong with the schools, and fine. But you can't go into -- you went to Roma I.S.D. and you found this problem with Roma aI.S.D., and then you went to a school in San Antonio South or whatever and you did the same thing and you got paid so much money for it, no.
MR. B. LOPEZ: Not relevant. THE COURT: No. I don't think so. MR. B. LOPEZ: Okay. THE COURT: Number 63. MR. N. JOLLY: That's withdrawn. Redundant.
THE COURT: 64?
MR. SMITH: We agreed.
THE COURT: 65?
MR. SMITH: 65 actually 65 and 66 goes again
to the mitigation issue and, uh, we believe that we should be allowed to go into, uh, the maintenance history and all as to mitigation of damages.
THE COURT: I don't think the Plaintiffs have a problem with the mitigation issue per se, do you gentlemen?
MR. N. JOLLY: No. No. THE COURT: I mean nobody wants this case to
come back, no matter what. So I mean we all know what *188 135 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 the law is and you get mitigation. If you pled it, if it's relevant, it comes in.
MR. N. JOLLY: Yes, ma'am. MR. SMITH: I believe that was the only issue
that was raised with those two. THE COURT: So I mean 65 and 66 I guess we would carry over. MR. SMITH: Okay. THE COURT: Because mitigation does come in. MR. SMITH: 67 we agreed. 68 there was an
issue of that about some prior lawsuit or -- THE COURT: That's granted, that's not relevant. MR. SMITH: Okay. THE COURT: Number 69? MR. SMITH: 69 was agreed, 70 and 71 were
agreed. 72, uh, was not agreed. MR. GRIFFITH: Your Honor, the only reason I was concerned about 72, obviously an expert cannot testify to something which they are not qualified. I don't even know why that would be the subject of a motion in limine.
MR. N. JOLLY: That's withdrawn. THE COURT: Okay. MR. GRIFFITH: Your Honor, since we are *189 136
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 arguing about experts. We have that order excluding testimony from non-design professionals as to design expertise. Basically what we talked about this morning before we realized we had all the motions in limine. Uh, I don't know if counsel has a problem with that if it works both ways. If the do non-design experts cannot testify about design issues only the design experts can, and I know from taking their -- the Plaintiff's experts depositions the non-design experts all said they weren't going to talk about design so I don't think there's really a problem to exclude that.
MR. B. LOPEZ: Your Honor, I have one clarification on the motion in limine. Number 68 it does mention the Plaintiff. I just want to make sure that that goes to all parties. In other words what's good for the Plaintiff is also good for the Defendants as well.
THE COURT: Exactly. MR. B. LOPEZ: Thank you, Your Honor. MR. N. JOLLY: All these limine orders apply
to every party in the case. Right? THE COURT: Right. MR. N. JOLLY: Thank you, Your Honor. MR. GRIFFITH: That's even better. THE COURT: So, with those last statements *190 137
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 that Mr. Griffith just made what is your position on that, Mr. Jolly? I mean, are you in agreement that the non-design experts are not going to talk about design defects?
MR. N. JOLLY: No. There are experts who will testify to the practical effect of the design defect on the building system and what he's trying to do is he's trying to exclude Mr. Holder's testimony about the effect of the air-conditioning design and we are not going to agree to that. The man is not a professional engineer. He's not the one providing the opinion about what is defective with the design, but he installed air-conditioning systems and evaluated those systems for over 50 years. So, he can opine on what the effect of the design has on the practical -- on the system.
MR. GRIFFITH: Your Honor, the concern I have is as you knokw now the certificate of merit is required just like with doctors now, to sue engineers and architects you actually have to have an architect or engineer in the field make those opinions that they did something wrong. That's the way the State legislature has required the proof to be, and so my concern is that you can't just get a person that is an HVAC contractor or person that does exactimate programs and have them opine that the design professionals did or did not do *191 138 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 something properly. I mean, that clearly is not allowed. It would be like having a lay person testify a doctor did something wrong. That's not allowed.
MR. N. JOLLY: And -- I'm sorry. MR. GRIFFITH: And so, so my concern is that
before one of the design professionals -- non-design professionals --
THE COURT: Can we get like into specifics here? Because you are talking in a very broad manner. MR. GRIFFITH: Uh-huh. THE COURT: Is there a motion that you have
before the Court -- MR. GRIFFITH: Yes. THE COURT: -- where you are trying to strike
one of his experts based on these statements that you are making that you've gotta design -- a non-design expert talking about a design defect. Is there a specific expert that you are seeking to strike so that we can just go ahead and argue that motion.
MR. GRIFFITH: I am not striking, I am limiting the testimony. Bill Holder has a lot of things he can say to this jury that are completely valid for him to say. He just can't get into design perameters and even he acknowledged that. That's my concern. I don't know what they are going to testify to -- *192 139 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Well then why -- MR. GRIFFITH: We want to do a motion in
limine and before they bring up design issues we approach. That might be better than just excluding it.
THE COURT: Do you have an issue with that procedure? MR. N. JOLLY: I would suggest carrying it because -- THE COURT: Yeah, let's carry it. MR. N. JOLLY: When you hear the man's
testimony you are going to immediately -- THE COURT: We'll carry it. When it gets to that point you can approach the bench. MR. GRIFFITH: As long as before they solicit any design -- THE COURT: Right. MR. GRIFFITH: -- expertise from a non-design
professional, we have a chance to discuss it with you. THE COURT: Right, we'll approach the bench and if we have to take it outside the presence of the jury, we'll do that. Okay.
MR. GRIFFITH: Thank you, Your Honor. THE COURT: Okay, so that was the Plaintiff's
motion in limine. Correct? MR. SMITH: Yes, Your Honor. *193 140 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Now, we have Descon's. Let me look at that one. And then before you leave we need to talk about the trial, how long y'all think it's going to take. And I am not going to be taking breaks just so you know. Even though I have Court the Duval County, or Jim Hogg County, I will will get a visiting Judge to go to those counties. I am not going to break in between the trial, I am not going to do that, and I think somebody said it was going to take three weeks. No it's not. We'll be here at 8:00 o'clock in the morning and if we have to go through 6, 7 or 8:00 o'clock at night, we are going to do that. If we have to work on the weekend, we are going to do that. We are not going to take three weeks to try this case. So FYI, if you have vacation plans or whatever, sorry. We are going to try this case until we finish it. Just so you know. So you might as well get cosy here here. Get a hotel room because you are going to spend a lot of time in Starr County and you are going to do it in an efficient manner. If we have to start at 7 a.m., and I can get the jury here at 7 am, that's what we'll do. So I hope you are all early risers.
MR. OLIVEIRA: Can we have an agreement, uh, that, uh, I guess by 5:00 p.m., uh, each day that, uh, whoever is presenting witnesses will agree to tell you *194 141 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 who the witnesses are? THE COURT: Absolutely. You are going to do that. MR. OLIVEIRA: Because that will expedite things a lot. THE COURT: Yes, because you are going to, you know, you are not going to be trying, you know, preparing for cases that are, I mean, for witnesses that are not even going to be called until three days later, you are going to prepare for the witnesses that are going to be called the next day. So, yes you all need to exchange, you know, witness list and, you know, you don't have to strategize -- give away your whole strategy, but you do have to tell each side what witnesses you are going to call the next day so they can prepare. I mean, that's fair game here. Come on.
MR. OLIVEIRA: It does expedite things. I guess if we do start on Monday, assuming that we get to any witnesses on that Monday after voir dire, we just could ask that by Friday afternoon they tell us who their first one or two witnesses will be.
THE COURT: Okay. They are going to tell you what their first four witnesses are going to be and then y'all are going to do the same.
MR. OLIVEIRA: Okay. *195 142 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Are we starting at 9 or at 1:30 for jury selection? ASSISTANT COORDINATOR: Jury is 1:30. MR. OLIVEIRA: We won't get into my witnesses
on Monday then. THE COURT: Probably not. And you are not going to take hours upon hours on voir dire either. MR. OLIVEIRA: How much time will you give us on voir dire? THE COURT: I mean you do have to ask them obviously a lot of questions, do you have kids in school, are they teachers, are they affiliated with the school in any way shape and form. I understand you have to get into that in voir dire and voir dire the jury completely. I think we got some -- I hope we brought some extra -- Eduina. I hope we gotta lot of extra jurors because last time we almost didn't make it.
ASSISTANT COORDINATOR: Yes, ma'am. THE COURT: Did we get extra jurors called? ASSISTANT COORDINATOR: We requested 550. THE COURT: How much do we usually request?
ASSISTANT COORDINATOR: 400.
THE COURT: 400. So we have 550 coming in. I
probably should have gotten more. Hopefully that will be enough if not I'll send the sheriff to go bring them *196 143 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 in. MR. GRIFFITH: We haven't talked about -- you are talking about equalizing strikes for side but would it be like 12 per side?
THE COURT: We'll talk about that in a few minutes at the end or we'll talk about it that morning but I just want you all to make, you know, don't make any assumptions that we are going to be breaking in the middle of the trial because that just -- that's bad news for both sides. I mean, people can -- people start talking in front of the juries, they go to restaurants, then somebody talks about it a little too loud, so then they hear something. I don't go for that. I don't like that. I mean we are going to try this case and we are going to do it efficiently, and we are going to start early in the morning, and we are going to work late in the evenings, and I think the jury would probably appreciate that anyway. I know most jurors do want to work late because they don't want to be here for three to four weeks. Then they are going to end up hating one side or the other, and whoever is the hated one will be in a lot of trouble. So, I mean y'all have to, you know, you don't have to say the same thing five times because if you do, I mean, you know, all of you have tried a lot of cases, I don't have to tell you. We've *197 144 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 all been on the ends of zero verdicts and, you know, 52 million dollars verdicts, so we kind of already know that. Nobody is --
MR. GRIFFITH: We tried -- THE COURT: I don't see any spring chickens in
the courtroom. MR. GRIFFITH: We tried these cases before and they typically take 3 weeks or 4 weeks just so you know, you may want to consider paying the jury a little extra because they are going to be there for -- I mean there really is, even if we work 7 to 7 every day getting it done in two weeks would be --
THE COURT: I would hope you all would enter into a lot of stipulations, and look at qualifications and figure out do you really have to go through the 20 papers that your expert wrote because guess what? The jury is not going to care. I am telling you. They are not. So y'all think about how you are going to play that because if you want to piss them off, well hey you know that's your call, but I am not going to put up with any redundant testimony. And I mean I am just telling you now.
MR. GRIFFITH: I agree. We put on 23 witnesses on last week in Hidalgo County in three days. THE COURT: 23 witnesses? *198 145 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. GRIFFITH: In three days. THE COURT: Oh okay. Who was the Judge? MR. GRIFFITH: Bobby Flores. And we did the
same thing, we started at 8 went to 6, 6:30. THE COURT: And you finished the case? Or what? In a week? MR. GRIFFITH: On good Friday week. THE COURT: Wow. MR. GRIFFITH: We got the jury verdict back. THE COURT: How long did it take? MR. GRIFFITH: Monday to Thursday. MR. GRIFFITH: It wasn't a construction case. THE COURT: Oh. I thought it was a
construction case, wow. MR. GRIFFITH: But 23 witnesses is a lot of witnesses. THE COURT: Yes 23 witnesses is a lot of witnesses. MR. GRIFFITH: It was construction related. THE COURT: I mean just, you know, get to the
good stuff quick and I think the jury will appreciate that, from both sides. Okay, let's get to Descon's motion in limine. So, uh, number 1 let's talk about what's agreed and let's start with what's agreed.
MR. N. JOLLY: That's agreed. *199 146 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Number one is agreed. Number 2? MR. N. JOLLY: Disagreed. THE COURT: Okay what the hell does that mean?
(Laughter) MR. SMITH: It's arguing, arguing the charge that Descon wants you to answer this question no or Limon wants you to answer this question this way or like that trying to cut and dice the, uh, the charge or the questions submitted, uh, as to particular, particular parties. It's a comment on, on their evaluation of it, Your Honor.
MR. N. JOLLY: Well we got the right to argue that answering the breach of contract question is did Descon breach its contract.
THE COURT: I am going to overrule number 2. Number 3? MR. N. JOLLY: That's disagreed. THE COURT: Okay. Explain number 3 to me
please. MR. SMITH: With regard to the idea of trying to define what bias is, like that, and trying to create a, uh, create a situation for the jury, uh, that doesn't need to be addressed with regard to that.
THE COURT: Okay, give me an example of what you are talking about because I am not getting it. And *200 147 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 I am not afraid to say that. I am just not. MR. SMITH: I'll tell you what I'll just withdraw it. Number 4. THE COURT: Okay number 4. MR. N. JOLLY: That's agreed. THE COURT: Okay, number 5? MR. N. JOLLY: Disagreed. THE COURT: I'm sorry? MR. N. JOLLY: Disagreed. THE COURT: Five is disagree. MR. SMITH: All 5 asks for is that an
opportunity be made to examine any exhibits before they are presented or are brought into the courtroom to be shown to the jury.
THE COURT: Why is that unreasonable? You can bring them into the courtroom. MR. N. JOLLY: You have to bring it into the courtroom. THE COURT: Yeah. MR. SMITH: I mean bringing it in like
uncovered or whatever and that's all. MR. N. JOLLY: I won't do that. That's not the way we roll. MR. SMITH: That's all. MR. N. JOLLY: I won't do that, promise. *201 148
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: So I am going to sustain it insofar as don't anybody show any exhibits to the jury until the other party has agreed or the Court has ruled regarding that. Number 6.
MR. N. JOLLY: We agree with everything on page 3, 6 through ten. THE COURT: Okay. MR. N. JOLLY: 11, 12 and 13 agreed. THE COURT: Okay. 14? MR. N. JOLLY: Disagree. THE COURT: Isn't this kind of the same thing? MR. N. JOLLY: We are not gonna pull any fast
ones. MR. SMITH: Basically all we are asking is that we get -- THE COURT: I mean he's not going to have to show them to you outside and say hey can I have your permission, you know, to -- no. But yes he should not show them to the jury until you've agreed or I've ruled if there's an objection.
MR. SMITH: I agree, Your Honor, and I point out that these are all couched for all parties. THE COURT: Right. Exactly. I agree. So it's all counsel not Defendant's counsel. It's opposing counsel I guess without first allowing opposing counsel *202 149 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 to review the same outside the presence of the jury, offering them before the Court and obtaining a ruling if such is needed. So that will be sustained.
Number 15. MR. N. JOLLY: Agreed. 16 is agreed. 17 is
agreed. THE COURT: What about 18? Are you alleging they withheld any evidence? MR. N. JOLLY: Well, there's contracts that are missing, file -- project files that are missing, you know, it's going to probably likely come up but if you want to carry that and see.
THE COURT: We'll carry that over and see what happens. Number 19? MR. N. JOLLY: Agreed. 20 is agreed. 21 is agreed.
THE COURT: 22.
MR. N. JOLLY: 22, uh, I mean this is similar
to Mr. Gealy's, uh, issue about other lawsuits because one of the masonry defects at this school is identical to one at another school in Edinburg involving the same mason. It may come up, it may not but --
THE COURT: Carry it over. MR. N. JOLLY: Okay.
THE COURT: 23.
*203 150
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. N. JOLLY: Agreed, 24 is agreed, 25 and 26.
THE COURT: 27.
MR. N. JOLLY: Obviously the school district
is entrusted with children. I am not going to bring up financially challenged but, you know, they are entrusted with children. The financially challenged --
THE COURT: I would allow the first part but not that it should prevail because it's financially challenged or super poor or the most poor or whatever so that will be sustained as modified.
MR. N. JOLLY: We agree with that. THE COURT: Number 28. MR. N. JOLLY: I disagree with that. THE COURT: So do I. That's overruled. 29. MR. N. JOLLY: We disagree with that one too.
Of course we are going to show exhibits first. THE COURT: Yeah, I mean there's gotta be -- that should be sustained. MR. N. JOLLY: Yes, ma'am. THE COURT: I am sustaining number 29. Number
30? MR. N. JOLLY: Agreed. 31 is agreed and again 32 is agreed with all the parties except the mason. The previous lawsuit. *204 151 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. B. LOPEZ: For 32 representing mason, that's exactly the same as Plaintiffs 68 which you already ruled on and it's not in the same case. Whatever Limon may have done in some other school has nothing to do with what happened at La Grulla.
MR. N. JOLLY: It probably won't come up but it might if they open the door for example. THE COURT: I'll carry it over just in case the door is opened. MR. B. LOPEZ: Thank you, Your Honor. THE COURT: I will make a ruling at that
point. MR. B. LOPEZ: Thank you, Your Honor. THE COURT: Number 33. MR. N. JOLLY: That's disagreed. The problem
with the way it was written is that he might try to exclude consulting experts that the retained testifying experts are relying on like the estimator for example.
THE COURT: We'll carry that over. 34? MR. N. JOLLY: This is the appraisal report
for the replacement cost appraisal of the property. THE COURT: We'll carry that you over. 35? MR. N. JOLLY: We agree.
THE COURT: 36?
MR. N. JOLLY: We disagree with 36. And this *205 152
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 is an important part of the case like this. THE COURT: I am overruling number 36. 37? MR. N. JOLLY: Agreed. MR. B. LOPEZ: There is one issue on 37 for
Limon we have an issue with Descon's in the sense that they agree on it. There's several exhibits that have been submitted by Descon which include this and so we just want to point that out. The expert report --
THE COURT: Are you saying 36 or 37? MR. B. LOPEZ: I'm sorry 37. Just one thing I
want to point out on 37 is just about those expert reports. I agree with the statement but the reports for some reason are in Descon's exhibit list. I don't believe they should go back to the jury.
MR. SMITH: I don't disagree with that, Your Honor, and I am not sure we went through -- and we amended our exhibit list yesterday to try and take out duplicatives and issues like that. I thought that had been taken care of but perhaps not.
MR. B. LOPEZ: And it goes for everybody. But Descon has it in theirs. THE COURT: Right. MR. N. JOLLY: There are things in the expert
report that they rely on: Photos, standards -- THE COURT: We'll carry it over to see what *206 153 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 the specifities are when it comes up. Okay, 38. MR. N. JOLLY: Agreed, 39 agreed, 40 agreed, 41, 42, 43, agreed with everybody except Limon if they open the door on other lawsuits.
THE COURT: Okay. MR. N. JOLLY: And then 44 agreed. And 45 we
disagree with that. Experts are allowed to talk to each other.
THE COURT: Any response? (pause) Okay I am going to overrule 45. 46? MR. N. JOLLY: Uh, well I just don't want to get put in a box where I can't make comments about whether or not somebody was credible or truthful.
THE COURT: I mean you can argue, you just can't say like I think he's a liar because I have experiences with him and he's the biggest liar in town.
MR. N. JOLLY: Ha, ha, yeah I agree with that. THE COURT: Ha, ha, ha so you've got to watch
that. MR. SMITH: And that's what we are trying to address. THE COURT: But I am going to allow, I mean, at argument you certainly you could testify, you know, did you see that witness? He couldn't even look at you when he was testifying, and that's kind of an attack on *207 154 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 their credibility, which I think every -- everybody can argue about at a closing argument, I mean, so I am going to overrule that but just be careful. I mean, it's not going to be your personal opinion, it's going to be based on what you saw at trial. Right? I mean not your personal opinion, based on your personal dealings with that person.
MR. SMITH: That's -- 47 goes to the personal opinion versus what you just mentioned. MR. N. JOLLY: We agree with 47. THE COURT: Okay.
MR. N. JOLLY: 48, 49.
THE COURT: Okay. MR. N. JOLLY: Disagree on 50. THE COURT: I mean well 46 -- I'm sorry, I
said I overruled that. I'm sustaining it as modified. You can talk about credibility at argument or when you are cross-examining I guess your questions will be, uh, certainly they'll be undertones about credibility, I'm sure, but you can't say regarding your personal opinion based on your personal dealings. So I guess that goes hand in hand with 47 to some extent. So just be careful there. Y'all know what the rules are. Okay 49 and 50.
MR. N. JOLLY: Agreed. 50 disagreed. MR. SMITH: Your Honor, with regard to number *208 155
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 50 Mr. Salinas Jr., made -- THE COURT: Well hold on. What happened to 49? MR. SMITH: That was agreed. THE COURT: Okay. Because there's no spaces
there. Okay number 50 what? MR. SMITH: I'm sorry I didn't see that. Number 50, Mr. Arcadio Salinas Jr., made a number of opinions regarding the design of the school, the placement of the school, the construction of the school, all matters which he was not, uh, he didn't have a background in, didn't have expertise in and has not been designated as an expert witness with regard to any of that. He, uh, rather freely and openly just kind of blurts all these things out which was an abundance of caution. We raised this in the motion in limine, uh, that he's a fact witness and can certainly testify with regard to --
THE COURT: To what he saw. MR. SMITH: -- the situations, it's just he's
just kind of blurts before anybody -- THE COURT: Like what would he say? MR. SMITH: He says he knew from day one that
this was a horrible school cause nobody would design a school on the side of the hill. Uh, he said that the *209 156 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 design was totally inappropriate for South Texas. He makes numerous -- two or three hours worth of statements like that.
THE COURT: Mr. Jolly, did he do that? MR. N. JOLLY: Judge, that's not my
recollection. He, he's asked and what other problems are are you aware of and somebody asks what are the problems you are aware of and he'll let you know.
THE COURT: Okay, well make sure he doesn't blurt out any expert, you know, testimony that's within the realm of an expert and not a lay person. I am going to sustain that. Of course he can talk about his personal observations.
MR. N. JOLLY: Right. THE COURT: And issues and things of that
nature, regarding the construction or the alleged defects, but he can't, you know, talk like he's an expert.
MR. N. JOLLY: Yes, ma'am. THE COURT: Because he's not. Okay what else? MR. SMITH: That's it for Descon's motion,
Your Honor. THE COURT: Who else has a motion in limine? MR. B. LOPEZ: Limon has one, I think we
circulated it. I don't know if there are any *210 157 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 objections. THE COURT: I don't know if I have that one. ASSISTANT COORDINATOR: Which one. THE COURT: Limon's. MS. COOPERRIDER: It was e-Filed but I can
give you another paper copy if you would like one. THE COURT: Okay. MR. B. LOPEZ: The other thing I might
suggest, Your Honor, because a lot of these issues have already been covered in front of the Court, if we could take a couple minutes to confer with Plaintiff's counsel and Descon and see which one we have already discussed.
THE COURT: Okay. MR. GRIFFITH: That also would work with ours
because I think pretty much everything in ours has already been discussed. Uh, and to the extent that what has been agreed to on those is agreed on ours and we are fine.
THE COURT: Why don't you all look at them and I will take my messages on my phone. (After a brief recess the hearing resumed.)
THE COURT: Cause number DC-14-46, back on record, Rio Grande City I.S.D. versus Descon. We're on third-party Defendant Limon Masonry's proposed motion. *211 158 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 Let's start with number 1. MR. N. JOLLY: One is disagreed. MR. B. LOPEZ: Your Honor, the only -- MR. N. JOLLY: Well this is the one we already
covered about the previous. THE COURT: Unless opens the door agreed. MR. N. JOLLY: Yeah agreed. 2, 3, 4 agreed.
5 just depends on if there's some files that are missing. We can ask where are your files. I didn't keep it and I don't know.
MR. B. LOPEZ: I'll be candid, Your Honor, we produced everything we have. It's just a contract is what we have. However, I don't know whether or not we kept documentation that has anything to do with the work we did ten years ago. Just on one and two. I don't know that it's relevant whether or not --
THE COURT: Carry it over and see where that goes. Number 6? MR. N. JOLLY: 6 is agreed.
THE COURT: 7?
MR. N. JOLLY: Well, I mean if the man is no
longer in business might be one thing. Certainly I am not going to bring up whether he's bankrupt or having financial difficulties, but if he's out of business.
THE COURT: You can say he's out of business *212 159 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 but not why. MR. B. LOPEZ: Okay. THE COURT: So that will be granted. MR. B. LOPEZ: Thank you, Your Honor. THE COURT: Okay. MR. N. JOLLY: Agreed on number 8. I had no
idea who these guys -- or have been in jail for something, I don't care. Agreed on 9, 10, 11, 12, 13. Disagree on 14.
MR. B. LOPEZ: Only issue on 14, Your Honor, is just to the extent any of the experts are going to testify just as we have already established in their written report that they produced, not somebody who is going to raise something new we have no knowledge of.
MR. N. JOLLY: Okay, there's things in the report, then their deposition is taken, and if somebody doesn't ask the appropriate question during the deposition you can't expect them to tell them every single opinion they might have.
THE COURT: I am going to deny that one. Number 15? MR. N. JOLLY: Agreed. MR. B. LOPEZ: 16 is withdrawn, Your Honor. THE COURT: Okay. 17? MR. N. JOLLY: Agreed. 18 agreed, 19 agreed, *213 160
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 20 and 21 and 22 are agreed. MR. B. LOPEZ: 23 is withdrawn. MR. N. JOLLY: Okay. 24 is agreed. 25 is
not. MR. B. LOPEZ: Again our issue on 25 is just related to the insurance question. MR. N. JOLLY: Well what's good for the goose. THE COURT: I am going to deny number 25. MR. N. JOLLY: 26 is agreed, 27, 28, 29 are
agreed, 30 is agreed, 31 is not. MR. B. LOPEZ: 31 is withdrawn. MR. N. JOLLY: 32, disagreed. MR. B. LOPEZ: This goes back to the
documents. THE COURT: He said agreed. MR. B. LOPEZ: He said agreed? MR. N. JOLLY: No, no 32 is disagreed. THE COURT: Oh disagreed. I thought you said
agreed. MR. B. LOPEZ: If we can treat it the way we did the other one we can carry it over when we get there.
MR. N. JOLLY: That's fine. THE COURT: That's fine. 33? MR. B. LOPEZ: Withdrawn. *214 161
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THE COURT: 34?
MR. B. LOPEZ: Everything else is agreed to. MR. N. JOLLY: No, no 34 is not agreed. You
can't exclude all witnesses. MR. B. LOPEZ: I think that's just the rule in and of itself, but once we invoke the rule that will take care of that.
MR. N. JOLLY: Experts are allowed in the courtroom. MR. B. LOPEZ: Okay, we can take that up when the trial starts. THE COURT: Okay we'll carry it over. MR. N. JOLLY: 35 is agreed. 36, 37, 38 and
39 are agreed. THE COURT: Okay. We need to keep all the motions in limine together so I can have them at trial. I need all of these in a notebook for trial so I can refer to them.
ASSISTANT COORDINATOR: Okay. MR. GRIFFITH: Your Honor. THE COURT: Okay what was that? MR. GRIFFITH: Your Honor, as long as I can
rely on the motions in limine that have been granted so far, then I don't need to get a ruling on my motion in limine because it's pretty much the same things. I only *215 162 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 had one that I had an issue on which is number 63. I am withdrawing everything -- well I am withdrawing subject to the fact that I'll be able to rely -- everything else has been reciprocal so far.
THE COURT: Right. Everything is reciprocal. MR. GRIFFITH: And it applies to all parties.
On that -- given that fact then I can withdraw mine except for I need to know whether Mr. Jolly will agree to number 63.
MR. N. JOLLY: Yes. MR. GRIFFITH: Okay. 63 is just discussing --
there are no punitive damages pled, just discussing the financial condition of ERO, their revenue stream, what they are doing, those kind of things. What kind of money they are making.
THE COURT: Okay. MR. GRIFFITH: That's all I have, Your Honor. THE COURT: Okay, Mr. Garza. MR. GARZA: Your Honor, may I give you a
courtesy copy of the motion in limine? THE COURT: Okay. MR. GARZA: I had filed 47 items but again
with all the prior rulings by the Court I think 44 have gone away as long as I understand they are all reciprocal. *216 163 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Right. MR. GARZA: The 3 I have and I discussed with
Mr. Jolly I understood he was opposed to them. Number 33 says testimony that this defendant -- my client again is the roofer, Your Honor, C & M contracting -- that, uh, any testimony that my client may have violated any federal or state statute or building codes without first proving that those codes apply. Uh, there's been a lot of testimony by different experts about what codes may have applied and I think that it's incumbent upon the Plaintiff to first establish what code applies before they have experts opining on alleged violations.
THE COURT: Okay we'll carry that over. MR. GARZA: Okay. I am going to jump to
another one and leave the last one at the end. Number 43, Your Honor. It's handwriting and other markings on exhibits. This should be for everybody. If anybody introduces an exhibit that has any handwritten notes on it, we need to establish before it's presented to the jury whose notes they were. I mean, if it's an expert and he wrote on the notes that's one thing, but we don't want somebody who may have written things on a document that have not been presented until it's established who it is. That's number 43.
MR. N. JOLLY: There's been a bunch of *217 164 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 documents produced with handwriting on them and during deposition, uh --
THE COURT: We'll carry it over, we'll look at the handwritten parts. MR. N. JOLLY: Yes, it just depends really. Some I might agree but some the witness may have been questioned about it.
THE COURT: Okay. MR. GARZA: The other one I have, Your Honor,
is number 36, references to hearsay sources which also sort of goes with number 45 which the Court had ruled on earlier on Descon Construction. In my particular case as the Court knows you took under advisement our motion to exclude Mr. O'Bannon's testimony. He relied on that one-page document from a person who to my knowledge has not been identified as a consulting expert and his testimony he never got any supporting documentation. So, I need to make sure that I, if the Court doesn't grant my motion as it pertains to my client, C & M, I need to be able to -- the Plaintiff has to be able to establish before he starts asking him about that document, you know, under the hearsay rules to make sure it's not hearsay before it can come in. That's the intent of 36, which I think goes hand in hand with the 45 from before. *218 165 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: I'll carry that over also. MR. GARZA: That's all I have, Your Honor,
thank you. MR. GEALY: Your Honor, on behalf of Halff, we only have I think two issues, that's number 3 and 4. And otherwise as Mr. Griffith has said to the extent rulings have been made on prior motions that those apply equally.
THE COURT: Okay we'll go ahead and carry that over. And which other one? MR. GEALY: Just 3 and 4. THE COURT: Do you agree to number 4 Mr.
Jolly? MR. N. JOLLY: No, Your Honor. That, that's the one about opining on negligence. I think experts are entitled to --
MR. GEALY: Without laying a proper predicate. MR. N. JOLLY: I agree to that. THE COURT: That's all he's saying, without
laying the proper predicate. MR. N. JOLLY: Oh, okay. Yes we plan to do that. THE COURT: Okay. MR. GEALY: Thank you. MR. GROSS: Your Honor, Louis Gross on behalf *219 166
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 of Twin City Glass. THE COURT: Okay. MR. GROSS: Your Honor, our motion in limine
has been submitted to all parties, it was reviewed by Plaintiff and counsel for Descon, and no objections, Your Honor. Easiest way would be just to submit it as agreed.
MR. N. JOLLY: Well, yeah, I didn't see anything in there that wasn't duplicative. That was the conversation we had.
MR. SMITH: That was my quick review was that it's all been covered so we have no objection. MR. N. JOLLY: Wasn't there one at the very end, John, that, uh, was perhaps additional? MR. GUERRA: You said you didn't have a problem but you thought Descon might. MR. N. JOLLY: Oh. MR. SMITH: Well let me look at it. MR. N. JOLLY: Well there's one here about the
welfare of the children, that's the only one I think that has already been covered though that the safety of the children is relevant.
MR. SMITH: I don't have an objection. THE COURT: Okay. So everything is agreed to.
Okay. *220 167 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. DUNNAHOO: Your Honor, Michael Donnahoo for Zarate Suspended Ceilings. I filed a motion in limine and order granting same circulated among counsel. I don't believe there's been any opposition filed to it. Uh, I would however state that I probably need to withdraw number 27 on mine which, uh, dealt with --
THE COURT: I don't have a copy of that one in front of me. Do you have one? MR. DUNNAHOO: Yes, I have, Your Honor. Number 27 dealt with defense cooperation and, uh, so I want to withdraw that subject to the Court's ruling from earlier today.
THE COURT: Okay. So that's withdrawn. MR. DUNNAHOO: Number 27. THE COURT: Everything else is agreed. MR. DUNNAHOO: It's pretty duplicative.
There's an issue that Descon's counsel and I have discussed.
MR. SMITH: We have an understanding about, uh, about how we are going to be presenting subcontracts and all with regard to, uh, uh, presenting them, but not referring to them as a duty or like that until after they come into evidence.
THE COURT: Okay. I am not following you. MR. SMITH: I just wanted to make known that *221 168
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 the extent that our discussion is that in identifying who the parties are and all we will be referring to the subcontract that they had a subcontract to do work as set out in there, that that would be the extent of it, that that we would not go into, uh, delegating duties to them, that that wouldn't come up until subcontracts were admitted.
THE COURT: Okay. MR. DUNNAHOO: That is my understanding of our
discussion and agreement. THE COURT: Okay. Anything else? MR. N. JOLLY: The only other thing we had,
Your Honor, was we were trying to subpoena Mr. Smith and haven't been able to find him, but I assume that I believe he's still the designated representative of Descon for trial. If we can have an agreement that if we need to call the gentleman --
MR. SMITH: Michael C. Smith is the designated representative and my understanding is he'll be here. MR. N. JOLLY: Okay. And so now that we have some newly identified Smith family members, uh, the Plaintiff needs leave to add those people to the witness list and cooperation from Descon to make them available during our case in chief within 24 hour notice.
MR. SMITH: Your Honor, we cannot agree to *222 169 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 that with anybody that's been added. I know the Court's ruling and I am not ignoring that. I have not talked to these people beyond providing them with a copy of the pleading and telling them to forward it on to their insurance carriers and forwarded it on to their legal counsel. We will inform them of the Court's ruling. I probably already have, uh, through the office, of the Court's ruling, but I can't stand here today and say that I have their understanding and cooperation and will be able to bring them here.
MR. N. JOLLY: Well and the same would apply to Wayne Medlin. MR. SMITH: I have not discussed it with Mr. Medlin. Mr. Medlin has issues, health issues, uh, mental issues. In fact I am not even sure that Mr. Medlin has the capacity to be sued, mentally, without the appointment or somebody to represent his interests. Those are all issues that, uh, he's going to have to deal with or his family deal with.
THE COURT: This is the first time that comes up? MR. SMITH: He basically has dimentia. THE COURT: Is this the first time that this
comes up? MR. SMITH: We have never been asked to -- *223 170 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 with regard to Wayne Medlin to produce him for deposition or anything else. We did not, uh -- it's never been addressed because it's never been an issue, Your Honor.
MR. N. JOLLY: Well, he's the legal representative in the contract and we have consistently indicated that everybody signing agreements, everybody signing documents, everybody acting as representative, everybody identified in everything might be called as a witness and Mr. Medlin is one of the presidents of the predecessor to Texas Descon. Uh, you know, I mean without -- I, I -- I don't know how you know what the man's condition is but, uh, you know, you did -- we did manage to get a real quick affidavit from Mr. Smith.
MR. SMITH: Mr. Smith is available and Mr. Smith will be here. It's Michael C. Smith. Mr. Medlin I became aware of it and all when we tried to talk to him or someone in our office tried to discuss with him what you filed last week, and I was told that he repeated the same thing four or five times in the first couple minutes of discussion. Hi, how you doin', who are you?
MR. N. JOLLY: These other Smiths are relatives, they are sons, nephews, cousins, you know, they are going around changing the name of the party *224 171 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 defendant in this case. MR. SMITH: Well I understand that's Plaintiff's counsel's position, I understand the Court's decision, but certainly I don't agree with what Plaintiff's counsel has represented. Uh, we have made it known to them, he's basically asking me if I can produce, if I can agree today that they'll be here and be ready for trial as a witness and we have given them the, uh, pleading, we have told them to put their insurance companies on notice, we told them to get their counsel involved and to talk to their counsel about it and figure out what needs to be done. We will have either told them already today or certainly will by tomorrow morning what the Court's ruling has been and we will have to discuss with them and their counsel what the involvement of their counsel, us, or anybody else is going to be. So, all I'm saying is no I cannot stand here right now before the Court and positively state that yes these people will be here and will be available for trial.
MR. N. JOLLY: How about this, Your Honor? How about if we are provided the -- a reliable address to contact these gentlemen and serve them with a subpoena?
MR. SMITH: As far as -- I have no problem *225 172 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 with that as far as I know, you know, where Texas Descon is, you know, where Michael C. Smith, you've sued them before.
MR. N. JOLLY: Every time my guy walks in there he's told he can't see them. So, you know, they are avoiding process. Frank has been over there three times.
THE COURT: You are to provide an address immediately. MR. SMITH: I will, Your Honor. I don't know where this Frank has gone to. Michael D. Smith as I understand it resides in, uh -- outside of San Antonio.
THE COURT: Do you have the address? MR. SMITH: Not on me but I will provide it to
Mr. Jolly. THE COURT: Okay you need to do it by 5:00 o'clock today. You have an hour. What else? MR. N. JOLLY: That's it from the Plaintiff. MR. B. LOPEZ: Your Honor, just one thing to
take it up on another point. There are different exhibit lists that are circulated. What's not circulated are actual physical copies of the exhibits. We have some objections to Descon's and to the Plaintiff's exhibits. Uh, but might make more sense if we are going to start on that Monday at 1:30, maybe we *226 173 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 can all produce all physical exhibits some time that morning and we can hash it out there.
THE COURT: Guys, didn't you all -- I told you all to exchange exhibits and lists before today. MR. SMITH: Your Honor -- THE COURT: That way we would be ready today
because in the morning I've gotta docket. I have a criminal docket that I have to contend with that morning and that's why I said we are not going to be doing any pre-trial matters that day. We are going to do everything on Friday even if we have to work until midnight, I don't care. Okay? I can be here until midnight today.
MR. SMITH: Your Honor, we provided a trial exhibit list, we went through and in view of some objections and also looking at it to eliminate where things were listed twice and all, we did an amended exhibit list, we have provided a FTP link and uploaded all of our exhibits on that. Uh, it was done, uh, yesterday morning.
THE COURT: So yesterday y'all exchanged exhibits, everybody? MR. B. LOPEZ: Limon Masonry did produce the exhibits. MR. N. JOLLY: I think that I understood *227 174 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 exhibit list as opposed to exhibits but we are going to do the exact same thing that Descon has done.
THE COURT: Generally shouldn't you all already know what the exhibits are when the exhibit list -- the list names the exhibit and it's probably contract between whatever, whatever, and whoever.
MR. SMITH: Some of them. THE COURT: Everybody should kind of already
know what the exhibits are, I mean, unless there's some demonstrative or something that no one has shown each other, I mean, what are we talking about here?
MR. SMITH: There's some -- THE COURT: I'm talking to him. MR. B. LOPEZ: From Limon Masonry standpoint,
there are numerous demonstratives that are on the list that should not go back to the jury because they are demonstratives. They can be shown to the jury but not to go back to the jury.
THE COURT: Well they are not going to go to the back. MR. B. LOPEZ: Second thing, the reports which we believe are hearsay, any of the experts or parties can testify about it, but those reports shouldn't go back.
THE COURT: Right. *228 175 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. B. LOPEZ: Short of that we actually filed all our objections to all parties' exhibits and are prepared to argue them right now.
THE COURT: Okay. Are you all ready to go on those arguments? MR. SMITH: We can. MR. N. JOLLY: I guess what we are talking
about is Mr. Lopez wants to have a hearing on the Plaintiff's Exhibit list?
MR. B. LOPEZ: No, my issue with Descon and with the Plaintiff really more to Descon, some I think are the same.
THE COURT: What exhibits are you objecting to? Come forward and let's just do it. MR. B. LOPEZ: Okay. THE COURT: Did you file an objection already? MR. B. LOPEZ: We filed the objections, our
objections to all parties' exhibits. MR. SMITH: Your Honor, I hate to ask but you gave me an hour to get the -- I need to get somebody to -- can I go out in the hallway --
THE COURT: Yeah, take a couple minutes and just hold on Mr. Lopez. I will let the Plaintiff address the objections to their exhibits while you step out and make the call for all of those people's *229 176 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 addresses. MR. SMITH: Thank you, Your Honor. THE COURT: Why don't I see your motion
objecting to their exhibits? MR. B. LOPEZ: I can see when we filed it. THE COURT: I see your trial exhibits, your
exhibit list, your contentions, your proposed findings of fact.
MR. B. LOPEZ: I think when he filed it yesterday. THE COURT: Oh, okay. Do you have an extra copy? MR. B. LOPEZ: I have one. Let me see if I have gotta second one, Your Honor. (Pause) May I approach?
THE COURT: Yes. Okay, so let's talk about the objections to the ones that you have against Rio Grande City I.S.D.
MR. B. LOPEZ: Yes, Your Honor. We tried to group them because some are covering the same issues. 1 through 24 are the same. Plaintiff correctly provided some that were -- that had insurance in there and they -- then they have some that do not have insurance. We just want to make sure the ones that mention the insurance do not go back. *230 177 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. N. JOLLY: We are going to redact insurance. MR. B. LOPEZ: Okay. THE COURT: Okay. MR. N. JOLLY: I thought we had done them all,
but if somebody sees the word insurance just let me know.
THE COURT: Yeah, with reference to the objections, if you see the word insurance redact it okay? Number 26.
MR. B. LOPEZ: We are going off the fifth amended list. It just says on there excerpts from contracts. I don't have a problem with any excerpts at all, we just want to make sure that it's a contract that's already in evidence.
MR. N. JOLLY: It will be one that's in evidence. THE COURT: Okay. MR. B. LOPEZ: 27 and 28 if that's part of the
experts -- I'm sorry, if that's part of the Plaintiff's production we have no objection to that.
MR. N. JOLLY: It is. It was the project file that the Plaintiff maintained during construction. THE COURT: Okay. MR. B. LOPEZ: 29, Your Honor, I think relates *231 178
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 to Ruben Villarreal, some reports that he did. MR. N. JOLLY: They are in the binders. MR. B. LOPEZ: And the issue I think with
those is he has not -- this is hearsay and he has not actually testified about those reports. It's a piece of paper saying what -- something that he says. He's never actually gone and testified about that. He has not been produced about that.
THE COURT: Who is Ruben Villarreal? MR. N. JOLLY: He was hired to walk around and
take pictures and report back. THE COURT: The ex-mayor? MR. N. JOLLY: I am not really sure, Your
Honor, I know his nickname is Chino. THE COURT: Oh, the construction guy. MR. N. JOLLY: I guess. THE COURT: Okay. And so? MR. N. JOLLY: Business records have been
produced, experts are going to rely on them. MR. B. LOPEZ: We haven't seen them so if it's something that -- MR. N. JOLLY: Yes they have, it's in the binders that we produced, and so have the photos have been produced.
THE COURT: So you've given everybody a copy *232 179 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 of your -- MR. N. JOLLY: Correct -- THE COURT: -- exhibits. MR. N. JOLLY: And Mr. Griffith wanted --
during one deposition found out about the pictures, uh, because a lot of them were included in the binders that were produced, but a lot of them weren't and so an I.T. person went through his old computer and found them and printed all the pictures out and found them and we produced them.
THE COURT: Okay. Of course you can make your objections during trial. MR. B. LOPEZ: We just want to seem them. Once we see them we may withdraw that. THE COURT: Right. Of course for like for the record you are going to have to make your objections anyway even though we are going through the exhibits right now.
MR. B. LOPEZ: Sure. We had objected to 31 and 32, we are okay with those. I am assuming it was part of what was produced.
MR. N. JOLLY: It was produced, maintenance orders or requests. THE COURT: Okay. MR. B. LOPEZ: 33 through about 72 the only *233 180
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 thing we are objecting to those are those are the expert reports that we have already discussed that should not go back.
THE COURT: They are not going to go back. MR. N. JOLLY: Well these are pictures from
the reports, they C.V., excerpts from codes that were referred to in the reports.
THE COURT: But he's talking about the report itself. MR. B. LOPEZ: I am not objecting to the C.V., I am not objecting to references to code, or pictures, just the report itself.
THE COURT: Right. MR. N. JOLLY: We are not going to offer a
full report into evidence. MR. B. LOPEZ: Okay. With those being withdrawn we are okay with the rest as to the experts, Your Honor.
THE COURT: Okay. MR. N. JOLLY: There's nothing being
withdrawn. THE COURT: Right. It's just not -- MR. B. LOPEZ: It's not being offered -- THE COURT: Guys -- MR. N. JOLLY: There's no offer. *234 181
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Guys, it's not -- ya, that's enough. You know what goes back and what doesn't, you know, let's move on.
MR. B. LOPEZ: Okay. 72 through I believe it's 79, as long as all of those -- we just didn't know what they were, if that's stuff that's already been produced we're fine with that.
MR. N. JOLLY: Okay. MR. B. LOPEZ: 80 and 81 is talking about
defects map and legend. There was a document that was produced I believe. If that's what that's referencing we are okay with that, otherwise I don't know what it refers to.
MR. N. JOLLY: There is one that will have every single defect from every piece of testimony on one final document.
MR. B. LOPEZ: That's the color -- MR. N. JOLLY: Is that the one you want? MR. B. LOPEZ: I just want to make sure that's
what it is. MR. N. JOLLY: Yeah we produced that. MR. B. LOPEZ: Okay. Then we are okay with
that, we just didn't know what it was. THE COURT: Okay. MR. B. LOPEZ: 85 through 97 we have no *235 182
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 problem with. The exemplars we believe which is 98 through 100 of the brick-tie, the brick, and the mock wall, those are demonstrative. We have no problem with the jury seeing them, but they shouldn't go back.
MR. N. JOLLY: That's right. MR. B. LOPEZ: 100 through 103, 104, no
problems. 105 again is a demonstrative and 106 is a demonstrative no problem with the jury seeing it but it shouldn't be an exhibit.
THE COURT: Okay, you don't even have to say that any more. MR. B. LOPEZ: Thank you, Your Honor. MR. N. JOLLY: The GPR, are you objecting to
that? MR. B. LOPEZ: Just the part, uh, -- MR. N. JOLLY: Demonstrative aide. MR. B. LOPEZ: The actual report I have no
problem. MR. N. JOLLY: The GPR costs 16, $20,000 and we are not giving that over to anybody. MR. B. LOPEZ: Uh -- MR. N. JOLLY: It doesn't belong to me. But
it's a demonstrative aide. MR. B. LOPEZ: We have no problems then, Your Honor, with the understanding that we have already *236 183 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 covered some of these and we don't need to take up the Court's time until we get to, uh, 122. I just didn't know who -- when it says Defendant I am assuming that's Descon?
MR. N. JOLLY: Descon and potentially ERO. MR. B. LOPEZ: We have no objection on that.
123 is demonstrative, we don't need to cover that. (Pause)
THE COURT: Go over everything again and then unless there's anything glaring you can make your objections as they are offering the exhibits.
MR. B. LOPEZ: We don't have any objection. THE COURT: I guess with regards to Descon I
don't think there's -- is there anything that's just glaring here or that we have to take up now that we wouldn't take up while the exhibits are being offered?
MR. B. LOPEZ: You've already given us guidance. THE COURT: Okay. MR. B. LOPEZ: It's going to be the same for
Descon, we have the same complaint about them. MR. SMITH: Just so we are clear on it before I left yesterday to come down here I told Mr. Lopez we went through and tried to eliminate the duplications, and tried to address some of his objections, uh, so the *237 184 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 list that he's going off of with us has been changed. There was filed -- I got the filing notice but I don't have a copy with me -- of an amended trial list exhibit list that didn't add any new exhibits.
MR. N. JOLLY: Mine? MR. SMITH: No mine. It didn't add any new
exhibits it just took out, uh, exhibits that were duplicates and that, uh, he had objections to and like that. So I told him if he wants to go through and see if we have satisfied him I'll address that with him and I think we can take care of it based on what you've already ordered.
MR. B. LOPEZ: With the understanding as long as everything that you've already discussed, they agree with that, we are fine with that.
THE COURT: Okay. What else? MR. N. JOLLY: That's it. THE COURT: Is there any other issues that we
need to take up before Monday? Monday of trial. MR. GEALY: Your Honor, there's some documents out of Mr. Stacy's file, who is the Plaintiff's expert, that have not been produced, that were not produced at the time of the deposition. I made Mr. Jolly aware of that, he said he's going to go back and get those for me but I have not gotten them yet. *238 185 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. N. JOLLY: I forwarded that to Mr. Stacy and I haven't heard from him yet, so I will follow up and we'll let grant know by e-mail --
MR. GEALY: That's fine. MR. N. JOLLY: -- while we are driving back. MR. GEALY: That's fine, I have spoken to him
about it. MR. N. JOLLY: Thanks for the reminder. THE COURT: Anything else. MR. B. LOPEZ: Rule 166, which you asked us to
comply with, it does mention deposition excerpts. I don't know who is going to testify live, but I don't know that we need to take them up if they are coming live. At least for Limon's purposes --
THE COURT: I want to know from the Plaintiff right now which of your experts are coming live. MR. N. JOLLY: Right now four days in a row worth, uh, Bill Holder, Roland Partida, Randy Lackner and that's about all we have planned out so far.
THE COURT: That are coming live. MR. N. JOLLY: Correct. THE COURT: And for Descon who is coming live? MR. SMITH: As far as experts would be, uh,
the gentleman from Wes Chany, I have been working with them and Legal Arms, Your Honor, that's -- I need to *239 186 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 rethink on, uh, that based on the Court's earlier rulings on summary judgments, but I believe that's the only one as far as experts other than, uh, former people with, uh, non-retained that were with, uh, Descon --
THE COURT: Like who? MR. SMITH: Joe Betancourt who was the, uh,
employee of Descon back at the time, it was a job superintendent, Michael C. Smith who we have told the Court would be available and would be here as a representative of Descon, uh, they are the only ones right now that, uh, I would think. We have an H.V.A.C gentleman designated, but I am not sure that we will be bringing him, uh, based on things that have gone on.
THE COURT: And Limon? MR. B. LOPEZ: We are bringing the
representative from Limon Masonry. THE COURT: Who? MR. B. LOPEZ: Rolando Limon is going to
testify, and then one expert Mr. Castro who is our expert witness, and that's all.
THE COURT: Anybody else? MR. KASPERITIS: Your Honor, our witness list
had only two people on it which was the representative of, uh, D & J Site Construction, the corporate representative who may testify live and then, uh, our *240 187 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 expert witness Eric Moody, so that's -- it's Mark Goldhamer will be the corporate representative and Eric Moody is our expert.
MR. DUNNAHOO: For Zarate Suspended Ceilings, Fred Zarate will be here to testify as well as our expert witness Matt *Ostrika.
MR. GARZA: On behalf of C & M Contracting we'll have our expert Rob Hernandez. The company has been closed for several years, the owner of the company died. I could bring the widow, I am not sure I want to put her through that.
(Laughter). THE COURT: Whatever works. MR. GARZA: For sympathy I contemplated
bringing her, but right now it would be just that person and of course myself to the extent that I have to testify on my attorneys fees and opposition to any claim for attorneys fees.
MR. GEALY: For Halff Engineers, Trey Murray and Bill Harris. THE COURT: David? MR. OLIVEIRA: I am with Descon. THE COURT: That's right. Okay. MR. GROSS: Louis Gross for Twin City Glass.
Our corporate representative Daniel Vasquez and our *241 188 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 expert Darren *Lasker. MR. O. LOPEZ: Oscar Lopez. For ERO it would be. Eric Green and Dan Medley. MR. DUNNAHOO: You are not bringing Block? MR. O. LOPEZ: Block I'm sure will be here
but -- THE COURT: Sometimes less is more. MR. SMITH: I just wanted to bring up, I know
nobody really mentioned themselves, I know there's attorneys fees issues. I assume people that have designated attorneys fees issue experts they'll be here and testifying.
MR. N. JOLLY: I will be here every day. THE COURT: What else do we have to -- well
okay hold on then. How many are going to call witnesses by deposition? I mean, are we talking about 20?
MR. N. JOLLY: No. THE COURT: 10, 15, how many? MR. N. JOLLY: We are going to call probably
four or five tops. MR. SMITH: Assuming that the necessary Plaintiff's depositions or Plaintiff's witnesses are presented, we will have deposition excerpts. If Mr. Jolly has anybody that he can positively say he's not bringing, then yes we will address excerpts. *242 189 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Let me make it easy for you. All the week, weekend, and during the week, you all will trade deposition excerpts, and you will have them ready to go because I am not going to have any B.S.ing during the trial, oh we need to take a break and bring our I.T. guy in or I don't know what happened, Judge. If that happens you are going to read it.
MR. N. JOLLY: Oooo! THE COURT: I am not going to wait for any
I.T. guys that are not available, that are not here, that the computer fell apart, I am not going to put up with that. We are going to try this case, we are going to get it done, you are going to have your excerpts, you better have your I.T. guys, your backups, you do whatever you have to do, but when it's time to call that witness, that witness, that deposition is going to be on a screen and played or you are going to read it because I am not going to wait.
MR. SMITH: To aide in that, Your Honor, would it be possible to ask the Court, uh, to require everybody to designate off of their expert list, the list that they have already filed, uh, designation of experts, anybody that they are not going to call by a certain date. Then we'll know.
MR. N. JOLLY: You know, they just they -- *243 190 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 this goes on and on and on. Give them an inch and they want a mile, and they are going to have ours for weeks while we are in trial and we have theirs yes but, you know, now they are able to respond to it --
THE COURT: You all -- all am saying is whoever you designated that you said -- and you've already said on the record who you are calling live and who you are not. Whoever you are not calling live, trade your excerpts and do it now.
MR. SMITH: Okay. THE COURT: Like that way you know what you
have to respond to -- like they know -- you know what they are going to put on so you know what portions you need to play in response to that, and which of your experts you want to -- portions you want to play in response to what he just told you he was going to put on. So, --
MR. SMITH: Well -- THE COURT: Just do it. I don't care if you
have to work all weekend, I did it. My poor kids, you know, were at home while I was at that time office, 5 in the morning till midnight or two or three in the morning and, you know, David Oliveira knows because we did all those crazy Phen Phen cases and all that other stuff and we were never home, we always were working. We all got *244 191 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 up super early, went to bed super late working, and that happens when you are in trial.
MR. SMITH: No problem, Your Honor, we'll have them done. THE COURT: For both sides. MR. N. JOLLY: Yes, ma'am. THE COURT: What else? MR. SMITH: Uh, (pause) Just -- THE COURT: Y'all better look at those jury
charges again. MR. SMITH: Oh they need to be -- THE COURT: I am not going to take 20 hours on
the charge conference. No way in hell is that going to happen. I mean we are going to look at -- you all are going to know what went before the jury and what was enough regarding the causes of action and what should go in and what shouldn't and we are not going to take 20 hours on a charge conference.
MR. N. JOLLY: His is 230 pages now. MR. SMITH: Well it will be drastically
changed since all of the, uh, subcontractors have been chopped out. We have the breach of warranty, breach of contract issues, and the questions with regard to each of them I had to go through, so we will go through and take out now what needs to come out. *245 192 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: I mean if I were you I would start now because y'all don't have a lot of time. MR. SMITH: No, we are, Your Honor. THE COURT: You have what like a week? MR. B. LOPEZ: Yes, ma'am. MR. SMITH: A week. THE COURT: Unless you go settle it. MR. N. JOLLY: That's been tried. THE COURT: Well keep trying. MR. SMITH: So you want us here 9:00 o'clock
on Monday. THE COURT: Yeah. I want you here at 9 clock, even though we are not going to do jury selection until 1:30, but that way if, you know, many a case has settled at, you know, courtroom steps, you know, and that way if there's any other issues we'll take them up then, and you know, if there's any major issues guys and I mean this is the way we prepared back then and if there's any major issues that we have not talked about today that you know is going to be just a sticking point, do a letter brief and have it ready. I mean, we did that all the time, David and I when we worked on those cases and, you know, we knew it was an issue that was going to come up and we just did a little bit of extra work and that way I don't have to say let's take a recess and let me *246 193 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 go look and let me get on Lexis or Westlaw or whatever and let me look for it and let me get -- just get the cases, hard copy, and bring them and do like a one-page or a half-page, you know, letter brief and say look this issue is going to come up, we know it's going to come up, and you all know already what's going to come up because you have been fighting for who knows how long already, and so you all know what's going to come up at trial and there's going to be particular points of contention that both of you are going to be digging your heels in, and I am going to have to make a quick decision so, you know, help he me out here and help yourself out because the longer y'all keep that jury in that box I am telling you the more pissed off they are going to get, and like I am saying I don't know what side they are going to be mad at, but they are going to be mad at someone and it's not going to be me. So, uh, so just get it together and that way when we send them to the back, when we need to get them out of the courtroom so we can discuss legal issues, that way it will flow really fast and I will have case law in front of me and letter briefs in front of me to where I can read, them and just go back and maybe confirm, and make a decision, and we move on.
What else do you all think is going to come *247 194 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 up? Is there anything off the top of your head? We usually take a jury break in the morning like 20 minutes, and we do one in the afternoon also because, you know, they have got to stretch their legs or whatever, they get tired of sitting in there in the jury box all day, so we'll do that.
We'll do like -- generally I do an hour and a half lunch break but I think I am probably going just going to be doing an hour. So, we can, you know, just get it going. So, if you can have your staff, you know, bring sandwiches from Subway or something and maybe I'll do that for the jury also on some of the days and that way we can get them in there, and get them out, and we'll be done because I hate sending -- I mean, y'all don't want the jury out there anyway.
So, one of the this is that we have done in the past, even -- I have even paid for it before out of my own pocket because I hate for them to be out there because you are going to have witnesses all over the place, people all over the place, attorneys at restaurants and everything, you'll be sitting in a table, right next to someone who is on a jury, or their family member or whatever, something slips out, then it's in the box and I don't want any jury misconduct -- juror misconduct issues here. *248 195 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 So, I mean, if we can make life easier by, you know, we all just get Subway platters or, you know, whatever, we'll do that and I will send some back to the jury. I won't say the Plaintiff bought them for you or the Defendants bought them for you, I'll just say the Court got them for you or maybe not, you know, the Court itselfbut you the county got them or the lawyers all got together and paid for your sandwiches on both sides. Maybe that will help also, and I can have them eat in 40 minutes and we'll come back out and just keep going, you know, it's in your best interest also to just get this thing behind you, you know so, uh, that's kind of what I am thinking. Of course we wouldn't be doing that on Monday because Monday you are not starting until 1:30 with the jury. I think the jury is going to be seated at 12:30 right?
ASSISTANT COORDINATOR: Yes, ma'am. THE COURT: We used to have them come in at
1:30 and it was a disaster. Then we wouldn't start voir dire until 2:30. So we are doing now is bringing them in and having them seated by 12:30, so you don't want to be here in here at 12 or 12:30 because the jury is going to be coming in and we are going to be sitting them down, but you can be out there or whatever and then you come in at 1:30 and we'll get you started. They'll *249 196 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 already be seated, you'll be able to talk to your partners or whatever local counsel, whatever, and figure out if you want a jury shuffle or not, and if you do well then that's going to prolong it but that's your right.
MR. GRIFFITH: How many do you anticipate will be here with 550 requested? THE COURT: I'm sorry? MR. GRIFFITH: How many do you think will
actually show up? ASSISTANT COORDINATOR: We requested 500 at the last trial that we had, and we had about maybe 120 show up.
MR. GRIFFITH: Okay. THE COURT: It's pretty bad. Sometimes, you
know, we -- I mean I've had to have people arrested and brought in because I mean we lose them or like well instead of getting two alternates I will end up with one. On all my criminal cases they don't show up. And then half of them say I don't know how to speak English or whatever and well you are a U. S. citizen and took the test and you passed it, but they don't want to be here, I mean, it's ridiculous, it's outrageous, but nevertheless that's just something we have to deal with here but, uh -- *250 197 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. GRIFFITH: Did we discuss how many strikes. THE COURT: No, we haven't done that. Have you all talked about it at all? MR. N. JOLLY: I thought it was 6 per side. MR. GRIFFITH: He said 6 I said 12. The
problem is that we do have, even though we are all going to be together, we do have several different camps on our side. We have three defendants and we have got at least 4 third-party defendants on our side. So I would think -- I mean just six seems like not enough maybe 12, 10, 12 something like that and they can have the same number, that's fine. So 12 each side that way at least everybody can have some input.
THE COURT: I am worried if we do 12 are we going to have enough jurors. MR. N. JOLLY: That's too much. MR. GRIFFITH: That's 24 I can't imagine -- MR. N. JOLLY: Well 8 or 9 that's how much we
did the last trial in Zapata. MR. GRIFFITH: 9 is fine. MR. OLIVEIRA: We'll take 9. MR. SMITH: Yeah. THE COURT: Let's do 9 guys and not because I
don't want to give them to you. I mean, if it was my *251 198 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 preference I would give both of you 12 or at least 10 but I am scared I will lose my jury and I want two alternates because guys I've had trials, believe it or not, where I have lost two out of the jury and both alternates had to go in. I mean crazy. I've never seen that before and now that I am on the bench I see everything and it's crazy. I had a guy not come to Court, he was a juror and he didn't even come, he didn't show up, and I'm like go get him, and they brought him in and I said -- I started the trial without him, I moved up an alternate, and I brought him and said what's your problem, why didn't you come, and he said because I was sleepy.
(Laughter). THE COURT: I was like okay, go to the jail and sleep for 12 more hours. (Laughter). THE COURT: It was just ridiculous and we have to be very careful about even doing that because the laws are very particular about when an alternate can go in the box.
MR. B. LOPEZ: Right. THE COURT: It may have been error what I did
but he's got to be completely like unable to perform his duties. Not just oh I didn't want to go because I was *252 199 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 sleepy. And I went back and looked at it later and I am like God I hope nobody appeals this case. It was a criminal case I think it was. But you know we had to -- we needed to get started but the rules are very clear, I should have waited, and okay now he's here and let's call him sleepy or, you know, doupy or call him whatever you want, but I mean I was like --
MR. OLIVEIRA: Or dummy or something. THE COURT: We couldn't find him and he was at
home asleep and finally the sheriffs brought him in about noon and I said well I am not going to wait for him, I mean, I had already started at 9 and then I thought some emergency had happened or like someone in his family had a heart attack or he was in the hospital or something, oh he was sleepy and I was like God how does this, you know, only in Starr County -- well no Duval County crazy stuff happens over there too, the wild wild west I like to call it, but anyway nevertheless do you all have any other questions?
How much time do you really think you are going to need for voir dire? Was that going to be your question.
MR. B. LOPEZ: No, Your Honor, my question was just from the numbering standpoint. Where do you start with number one and how do they run it across for the *253 200 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 jurors? In other words where they are going to be -- THE COURT: We start number one and go this way and I'm glad you kind of brought that up because we are not going to do general and specific. We are going to do general voir dire.
MR. B. LOPEZ: Okay. THE COURT: I am -- they are all going to have
numbers, and then like if you ask -- if you ask a question are any of you employees of the Rio Grande City School District or any of your family members, they raise their numbers, you write their numbers down and then you ask them. We are not going to go the way Judge Gabert used to do it which I kind of liked it when I was a lawyer, but now as a judge I don't like it because then, you know, each side goes okay juror number 1, you know, you do all the general and then you go specific, we'll be here until midnight. So, the way we are going to do it is they are going to show their numbers.
MR. GRIFFITH: Combined. THE COURT: You write the numbers down and ask
them you answered the question, you raised your number when I asked you, you know, if you were a member, you know, worked for the school district, or your family, what do you do, and would it affect you and whatever. You've got to ask your questions right then and there *254 201 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 right after, you know, get the numbers down. MR. GRIFFITH: Obviously if something comes up for cause obviously it's for cause right there. THE COURT: You approach the bench. MR. GRIFFITH: Can we bring three or four in
at the very end after they have been excused, we need to talk to these three or four on the for cause.
THE COURT: You can leave it until the end of your voir dire and then bring them up. MR. GRIFFITH: Right. THE COURT: Before the other side starts. MR. GRIFFITH: Before? Okay. THE COURT: Or we can do it either way
whatever is more efficient. I am not going to hold it against you if you don't do it right then and there. If you want to wait until the end of the voir dire.
MR. GRIFFITH: Specially something private. MR. B. LOPEZ: If it's a private matter yes. THE COURT: You need to be careful about the
questions you ask them because sometimes they answer a question and sometimes they just infected the whole panel. So you've got to be really careful with some of these defect questions that you are going to ask about because all I need is for somebody to say oh yeah I saw that, you know, the wall was shifting and then it's like *255 202 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 okay here we go, you know, I mean, you've got to be very careful about the invited responses that are going to come from your questions.
MR. GRIFFITH: We are used doing it that way, it's not a problem, do the general and specific at the same time, that's how we do it.
MR. B. LOPEZ: It's going to be 1 through 9 and then 10 starts behind one, right? THE COURT: Right. MR. B. LOPEZ: Those are going to be
afterwards. THE COURT: This is going to be the end, right. You start 1, 2, 3, and then let's say number 50 is back there, then you start 51 and go that way. How much time honestly, guys, I mean, do you think that you all need for jury selection?
MR. GRIFFITH: I need 20 minutes for my architect client. MR. B. LOPEZ: I would like to do about 20 I think. MR. GRIFFITH: And then maybe 20 minutes with the other defendants. MR. GEALY: About 20. MR. B. LOPEZ: Not much time. MR. OLIVEIRA: I think we can do an hour total *256 203
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 per side. THE COURT: About an hour per side? MR. GRIFFITH: Give us a little bit of
discretion. THE COURT: A little bit of leeway but don't say an hour and then you are two hours. MR. GRIFFITH: No. MR. OLIVEIRA: I tried cases before Darrel
Hester and it was 15 or 20 minutes tops and if you went over it you were dead.
THE COURT: Yeah, if you are the only one talking remember guys, you are not doing a good job. They are the ones that are supposed to be talking not you, but I mean, I do know you have to ask certain questions and, you know, tell them a tiny bit about, you know, what the case is about and in a few sentences, but you are not going to go into detail at voir dire.
What else guys? What else do you anticipate? I mean you've tried these construction defect cases before. Who else has tried these construction defect cases? Then you all need to tell me because this is my first one -- all the ones we've had in other counties have settled -- what other issues are we looking at?
MR. GRIFFITH: A lot of it is taken care of since they are potentially going to be doing a lot of *257 204 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 their witnesses by video, that will make things consist because what we really found on them some witnesses will go 3, three and a half hours which is just insane because your normal case is 20 to 45 minutes is about all the jury can handle, but these guys go for all afternoon.
MR. B. LOPEZ: I have a question about the video, Your Honor. If you just give some clarification. I've seen it done both ways. When a witness is called by video the Plaintiff will play their side, the Defendant will play their side, but here we have sort of different parties. Do you want us to coordinate to where we are going to play one video the whole time and that's it?
MR. N. JOLLY: We are not agreeing to do that. THE COURT: No, no, no. You play, you play
your side and then since they are going to -- everybody is going to be exchanging excerpts.
MR. B. LOPEZ: Correct. THE COURT: Then I don't want two of you to
play the same thing. MR. GRIFFITH: Right. MR. B. LOPEZ: Okay. So he goes -- Plaintiffs
will go first and then everybody else and we'll coordinate it. *258 205 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. GRIFFITH: On the defense side. THE COURT: Right. MR. B. LOPEZ: Okay. THE COURT: That's not -- that's agreeable
isn't it Mr. Jolly? I mean. MR. N. JOLLY: Well I am not really sure I understand what he's talking about. THE COURT: What he's saying is that you are going to play your portion of your witness, and then let's say Descon plays theirs and then.
MR. GRIFFITH: ERO.
THE COURT: ERO plays there's but they are not
going to be repeating what each other played because they are going to be designating their sections of the deposition.
MR. GRIFFITH: We'll coordinate. THE COURT: That's going to be questioning
from you that you are going to be playing. MR. OLIVEIRA: Correct. THE COURT: You are not going to be playing
questions from him. MR. GRIFFITH: Potentially I could if they actually pertain but what we really needed to is they have their excerpts, they provide them to us, we on the defense side we'll put in together what we have, so what *259 206 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 we have, so there will be just one. THE COURT: So then there was a joint defense, right? Ha, ha, ha. MR. GRIFFITH: It will be now. MR. OLIVEIRA: It will be. MR. N. JOLLY: There was. THE COURT: Well I equalized the strikes
anyway so I am just -- I better not open another can of worms here. Okay.
MR. GRIFFITH: Well yeah I mean I don't know that there may be some evidence that's good for Descon and bad for them.
THE COURT: I just don't want all of you to be playing the same excerpts again and again and again. MR. N. JOLLY: Or the same video they play. THE COURT: In that regard, Mr. Jolly, it does
make sense that they would get together on that. MR. N. JOLLY: They have been doing it anyway might as well continue. THE COURT: Exactly. Ha, ha, ha. MR. SMITH: Not exactly, Your Honor. THE COURT: Okay. MR. SMITH: Ha, ha, ha. THE COURT: Well, okay, whatever. MR. OLIVEIRA: You are so cynical. *260 207
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 THE COURT: Okay. Whatever. A ruling has already been made with reference to that. MR. SMITH: Correct. MR. GRIFFITH: Exactly. THE COURT: Let's not fight about that. MR. SMITH: But instead of having Limon just
have one sentence because we'll discuss it and that would be my druthers would be that it comes as a group purely for the fact that it would only make sense like that to the jury.
THE COURT: I've already said it makes sense. MR. B. LOPEZ: Whatever is going to be
fastest. THE COURT: Exactly. And gentlemen, remember, remember, because all of you are highly intelligent beings in this room and you all read statistics and a person's -- the average person, their attention span is 15 minutes.
MR. N. JOLLY: 15 seconds? THE COURT: 15 minutes. MR. OLIVEIRA: That's Norman's. THE COURT: Even the rosary it takes 12 to 15
minutes to pray a rosary. MR. OLIVEIRA: They lose me at 30 seconds. THE COURT: Well there you go. That's why I *261 208
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 said average person not every person. I mean, you know, you start throwing stuff at this jury and, you know what I am talking about. An hour long deposition, they are zoned out after the first I think 10 to 15 minutes.
So, I mean y'all know what -- just -- it's like my kid when I call him and I want to talk to him in college, he says mom just give me the main points.
(Laughter). THE COURT: He says main points mom, main points. So I am like okay, you need money, I love you, when can I see you, so I am just like -- because I know for the rest he's not listening. So think about that. What else guys? Anything else?
MR. GARZA: For purposes of presentation I am assuming obviously the Plaintiff goes first, then you'll go in the order of the defendants Descon, ERO, and get to the -- eventually get to subcontractors.
MR. GRIFFITH: There's the Plaintiff, and then there's Descon, ERO, and Halff, which are the main defendants, and then there's the third-party defendants which are now.
MR. DUNNAHOO: Limon, C & M, Twin City Glass, D & J, and then Zarate. THE COURT: Say that again. MR. DUNNAHOO: Third-party defendants include *262 209
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 Limon, C & M -- MR. B. LOPEZ: Why Limon goes first? MR. DUNNAHOO: -- Twin City Glass, D & J, and
then Zarate. THE COURT: So Plaintiff will go first, then Descon, Limon, C & M. MR. GRIFFITH: No. Plaintiff will go first then Descon then ERO. THE COURT: That's right. MR. GRIFFITH: And then Halff. And those are
defendants to the extent that has any importance, and then the third-party defendants are Limon and down that list.
THE COURT: Okay. And Limon doesn't want to go first. (Laughter) MR. B. LOPEZ: We'll do whatever you ask, Your Honor. THE COURT: We'll take it up that way. Descon, ERO, Halff, and Limon, C & M, Twin City, D & J and Zarate. Okay anything else? (pause) If there's anything else, uh -- oh, well you know what? I am going to be available next week, right?
I had a trial in Jim Hogg County starting on Monday. But I've got -- my son is epileptic and he had *263 210 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 an attack, he's at U. T. Austin, and he had a little, uh, seizure and so we've got an appointment with our neurologist on Thursday, and so the trial in Jim Hogg County is going to take a week, so I am getting a visiting judge. So, I will be in Jim Hogg County on Monday to do my regular docket, but a visiting judge will be taking care of the trial, so then I'll be back here on Monday afternoon -- well really Tuesday because I don't know how long I am going to take at my docket up there. So, if you all need anything Tuesday or Wednesday you all can call my coordinator, and if there's some craziness going on and you need like a telephonic hearing because y'all are not being cooperative, uh, and I am not looking at you Mr. Jolly in a bad way.
MR. N. JOLLY: I was looking behind me. (Laughter) MR. OLIVEIRA: He was looking for Mike. THE COURT: If there's any shenanigans going
on where somebody doesn't want to give somebody something, or whatever, call Ana Maria Saenz and we'll set up a little conference call because I'll be here anyway and then Wednesday evening I'll probably head up to Austin.
MR. GRIFFITH: Will you be back Friday, do you *264 211 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 think? THE COURT: Why? MR. OLIVEIRA: Just in case. THE COURT: I don't know. But I mean you can
call Ana Maria and see if there's any issues. I mean I at least would be reachable by phone because I think my nephew is also playing in some game or something in Austin on Friday.
MR. GRIFFITH: Wednesday then if we did have something Wednesday would be the best time. THE COURT: Right. Even Monday. Monday Tuesday or Wednesday. MR. GRIFFITH: We are not going to fight enough by Monday to have a problem. THE COURT: Probably not but Tuesday or Wednesday y'all probably will be scratching each other's eyes out.
MR. GRIFFITH: Right. THE COURT: Or punching each other or doing
who knows what but, uh, who was your mediator? I should have sent you all to Bob Thornton like I wanted to.
MR. GRIFFITH: Steve Nelson. We are really far apart though. THE COURT: Well get closer. But anyway, you know, I can't force you to settle. I can't. I wish I *265 212 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 could but I can't. Uh, we'll just have to see how this plays out but, uh, I will be available and, uh, we'll see how much of it we can do the first week. How long did your construction case take in Zapata County?
MR. GRIFFITH: We settled it but after four or five days we had only gone through four witnesses. It took a long time. Yeah but because we were doing video I think some --
THE COURT: Was that with Tono Lopez, with Judge Lopez? MR. GRIFFITH: Yes. MR. GUERRA: Yes. THE COURT: He was putting up with you all
four witnesses in four days? MR. GRIFFITH: Yes. THE COURT: Well I am not Judge Lopez. He's a
lot nicer than I am. MR. N. JOLLY: We were there for two weeks, it wasn't four days. MR. GRIFFITH: But actual -- it took a while -- THE COURT: Oh, it was the same parties? MR. GRIFFITH: -- before we started putting
on -- yeah, he was the Plaintiff's attorney. How many witnesses did you get to? *266 213 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. N. JOLLY: I know we were there two weeks. MR. GRIFFITH: But a lot of it was pre-trial
stuff and things we were arguing about, and no, I think I only remember four or five witnesses.
MR. N. JOLLY: And that particular attorney, uh, for the general contractor, was -- MR. GRIFFITH: Is not here. MR. N. JOLLY: -- was not getting time limits.
He was allowed to go on and on and on. THE COURT: That's not going to happen here. MR. N. JOLLY: Whether I paper clip something,
the guy had a complaint about everything. THE COURT: That's not going to happen here. MR. GRIFFITH: If we are tighter it won't
happen here, but the fact that there's 7 or 8 parties right here tells you that there's at least one expert that's 8 maybe two experts that's 16 --
THE COURT: I am telling you about excerpts and I am telling you to do it this week end and next week, and if you don't do it you are subject to being stricken because I am telling you already, I am telling you to do it now.
MR. GRIFFITH: I meant experts. THE COURT: No, no I heard what you said. MR. GRIFFITH: And we have individual *267 214
DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 corporate reps that's another 8 so right there you are almost to 30 people.
THE COURT: But when you have a corporate rep., that's going to testify, you don't need his whole history.
MR. GRIFFITH: No. THE COURT: I mean just stick to the basics
like what does the jury have to know in order to make an informed decision here? I don't want to know how many dogs and cats and pets and friends he has, I don't want to know, and what civic organizations, you know.
MR. GRIFFITH: Although just to be fair, Your Honor, the school district everybody knows. Everybody knows the children of Starr County. We are coming in -- we are from the Valley but we may be from Hidalgo or Cameron.
THE COURT: I am not saying you can't talk -- MR. GRIFFITH: We have to talk about ourselves
a little bit. THE COURT: I am not saying you can't humanize them or whatever. MR. OLIVEIRA: Just do it quickly. THE COURT: I don't want to know about the
cats and the dogs, I don't want to know, and my kid's this Harvard and/or if they are going to say it, say it *268 215 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 in one sentence. I have 20 grandchildren and I love them and I see them in the weekends and I'm a great grampa okay, fine move on. You tan talk about them to some extent but I don't want to know what are their names and how is little Cici doing and --
MR. OLIVEIRA: No. THE COURT: Is she going to private school or
public school or -- MR. OLIVEIRA: No it will be -- THE COURT: -- I am not going to let that
happen and I will get really upset, you know, back here and I am really a nice person so but don't push me over the edge.
MR. OLIVEIRA: No it will just be the basic. THE COURT: Just what they need to know. Just
what they need to know, and they'll love you for it. Just tell them what they need to know.
MR. DUNNAHOO: Your Honor, one last thing, a little housekeeping matter. I know you had a very busy day --
THE COURT: I am fine. MR. DUNNAHOO: There was Zarate's Motion for
Summary Judgment, and before you take it back to, to read it, I wanted to make sure that you had available the reply that Zarate filed to Descon's response. *269 216 DC-14-46, RGCCISD v. Descon Construction et al
Pretrial Motions, May 1, 2015, Volume 1 of 1 MR. SMITH: I think there was the summary judgment, we did a response, they did a reply. MR. DUNNAHOO: I don't know if you had a reply. THE COURT: Did you file it? MR. DUNNAHOO: We did. THE COURT: What am I pending giving you a
resolution on? MR. DUNNAHOO: Motion for Summary Judgment for Zarate. MR. GARZA: On behalf of C & M Contracting the Motion to Exclude Mr. O'Bannon testimony as to the roof. THE COURT: Those are the two things I have left? MR. B. LOPEZ: Which Limon joined in as well for the motion to exclude. MR. SMITH: And Descon did as well. THE COURT: Okay. Limon and other defendants
join. THE COURT: Okay, guys, have a fun weekend. MR. B. LOPEZ: Thank you, Your Honor. MR. N. JOLLY: Thank you, Judge. THE COURT: Thank you.
(END OF HEARING)
*270 217 DC-14-46, RGCCISD v. Descon Construction et al Pretrial Motions, May 1, 2015, Volume 1 of 1 THE STATE OF TEXAS ) COUNTY OF STARR )
I, Ramiro Hernandez, Official Court Reporter in and for the 229TH District Court of Starr County, State of Texas, do hereby certify that the above and foregoing pages contain a full, true, and correct court reporter's record of all proceedings heard on the record at the hearing of Pretrial Motions regarding cause number DC-14-46 Rio Grande City Consolidated Independent School District v. Descon Construction et al, all of which occurred in open court and were reported by me.
I further certify that this Reporter's Record of the proceedings truly and correctly reflects that no exhibits were offered or admitted.
I further certify that the total cost for the preparation of the expedited original and one copy of this Reporter's Record is $2,170.00 and shall be paid by Mr. David Oliveira or his firm.
WITNESS MY OFFICIAL SIGNATURE AND CERTIFICATION
in accordance with Section 8.11 and 8.11(3) of the Uniform Format Manual for Texas Court Reporters as ordered by the Supreme Court of Texas. /s/ RAMIRO HERNANDEZ 5/3/2015 ____________________________________ Ramiro Hernandez, CSR, RPR, CRR, RMR,
Official Court Reporter, 229th Judicial District, Starr County, Texas, P. O. Box 185, Hebbronville, Tx. 78361-0185 Phone: 361-279-6233, 956-487-2636 Cert. No. 763 Expires 12/31/2016
*271 Tab 2 *368 Tab 3 *414 Tab 4 *451 Tab 5 *456 Tab 6
Filed: 4/24/2015 3:38:00 PM Eloy R. Garcia, District Clerk *457 Starr County, Texas Dulce Morin
CAUSE NO. DC-14-46
RIO GRANDE CITY CONSOLIDATED § IN THE DISTRICT COURT OF INDEPENDENT SCHOOL DISTRICT §
§ VS. § STARR COUNTY, TEXAS § TEXAS DESCON, L.P. fka § DESCON CONSTRUCTION, L.P., § ERO INTERNATIONAL, LLP, § DANIEL L. BLOCK, ELI R. OCHOA § HALFF ASSOCIATES, INC. and §
229 th JUDICIAL DISTRICT MENTON J. MURRAY, III, P.E., et al §
PLAINTIFF’S THIRTEENTH AMENDED ORIGINAL PETITION
(GRULLA ELEMENTARY SCHOOL) TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Plaintiff, Rio Grande City Consolidated Independent School District (RGCCISD), complaining of Defendants and all third party Defendants, and would respectfully show this Honorable Court as follows:
I. Parties Plaintiff is situated in Starr County, Texas and a political subdivision of the State of Texas. Defendants, and Third Party Defendants; Texas Descon, L.P., fka Descon Construction, L.P., ERO International, LLP., Daniel L. Block, Eli R. Ochoa, Halff Associates, Inc., Menton J. Murray, III, P.E., C&M Contracting, Inc., AAS Consulting, Inc., dba Advance Air Systems, C.A.Ray & Son Painting Contractors, Inc., Limon Masonry, Inc., Faires Plumbing Co., Inc., D&J Site Construction, Inc., RGV-R&R Construction Services, LLC., Daniel Vasquez, Individually and dba Twin City Glass, and Zarate Suspended Ceiling, Inc., have appeared in this matter.
1 *458 Descon Construction, L.P., contracted with plaintiff and constructed Grulla Elementary, thereafter it was renamed to its successor company “Texas Descon, L.P.” under a licensing agreement to carry on the business and reputation of Descon Construction, L.P., therefore plaintiff sues Texas Descon, L.P. fka Descon Construction, L.P., for purposes of enforcing its substantive rights, pursuant to Texas Rule of Civil Procedure 28.
II. Discovery Control Plan Plaintiff requests that discovery be conducted pursuant to TRCP 190.3(1), Level 3, monetary relief over one million dollars and judgment for all other relief to which Plaintiff is entitled.
III. Venue Venue is mandatory in Starr County, Texas pursuant to CPRC sect. 15.011 because this action is for recovery of damages to real property. Venue is also proper in Starr County under the general venue rule CPRC sect. 15.002 because all or a substantial part of events or omissions giving rise to the claims against the Defendants occurred in Starr County.
IV. Breach of Contract and Implied and Express Warrant of Good and Workmanlike Manner This suit arises from the construction of the Grulla Elementary school which will be referred to herein as (“the Project”). Defendants, Descon, ERO, Block, Ochoa, Halff & Murray were involved in the design and/or construction of the Project. Plaintiff would show that Defendants’ breach of contract and failure to design and construct the project in a good and workmanlike manner was a proximate cause of damages and losses to Plaintiff. Plaintiff would show Defendants breached their
2 *459 contracts by one or more acts or omissions identified in the previously attached certificates of merit which are incorporated herein and one or more of the following ways:
1. Failure to follow the plans and specifications; 2. Failure to implement and install specified components and materials; 3. Failure to properly sequence work with the various trades; 4. Failure to construct the project pursuant to minimal industry standards; 5. Substituting without authority materials and equipment with cheaper and lower
quality materials and failing to properly credit Plaintiff for the cost difference; 6. Failure to comply with applicable codes and standards; and 7. Failure to construct the project in a good and workmanlike manner.
VII. CROSS CLAIMS AND NEGLIGENCE
Plaintiff cross claims all third party defendants for negligence due to their failure to follow the plans and specifications, failure to construct the project pursuant to minimal industry standards, and failure to construct the project in a good and workmanlike manner, any one of which was a proximate and foreseeable cause of damages to components of the building and structure.
Defendant Descon also breached its express warranty within the first year of occupancy by failing to properly correct known defects which were also a proximate cause of plaintiff’s damages.
VIII. Interest Plaintiff sues for and is entitled to pre-judgment and post-judgment interest at the maximum rates allowed by law. 3 *460 IX. Damages Plaintiff will show it has sustained actual and physical damages to tangible property in the past, and after completion of the Project, and will sustain in the future, for which the Defendants are liable should not exceed fifteen million dollars and includes, but is not limited to the following:
1. The difference between the value of the Defendant’s workmanship, service and materials and the value actually received; 2. The reasonable and necessary cost to repair/replace Defendants’ defective workmanship; 3. Reasonable and necessary expenses incurred in attempting to mitigate Plaintiff’s losses; 4. Reasonable and necessary costs to provide alternative facilities during the time period the subject building is unusable or impaired; 5. Damages to the Project caused by water intrusion; 6. Reasonable and necessary attorney’s fees pursuant to CPRC Chapter 38, based
upon the attorney hours worked, hourly rate, the Arthur Andersen and Johnson factors, plaintiff will move the Honorable Court to determine an appropriate lodestar adjustment by multiplying plaintiff’s attorney’s fees upward, for which presentment is hereby made; and
7. Damage to other portions and contents of Plaintiff’s building separate from the remedial cost damages caused by Defendants; and
PLAINTIFF DEMANDS A JURY TRIAL.
4 *461 Respectfully submitted: /s/ Norman Jolly By:_____________________
Norman Jolly
TBA# 10856920
Michael B. Jolly
TBA# 10856910
James J. Parker
TBA# 15488020
Hamilton G. Rucker
TBA# 24067850
405 Main, Suite 1000 Houston, Texas 77002 Tel: (713) 237-8383 Fax: (713) 237-8385 Martie Garcia Vela 100 West 5 th Street Rio Grande City, TX 78582 Tel: (956) 488-8170 Fax: (956) 488-8129
ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing was forwarded to all counsel of record, pursuant to the Rules of Procedure, on this the 24th day of April, 2015. /s/ Norman Jolly ____________________________ Norman Jolly 5 *462 Tab 7 *468 Tab 8 *485 Tab 9
*486 CAUSE NO. DC-14-46 RIO GRANDE CITY CONSOLIDATED § IN THE DISTRICT COURT OF INDEPENDENT SCHOOL DISTRICT §
§ VS. § STARR COUNTY, TEXAS § DESCON CONSTRUCTION, L.P., et al § 229 th JUDICIAL DISTRICT § PLAINTIFF’S THIRTEENTH AMENDED ORIGINAL PETITION (b) (GRULLA ELEMENTARY SCHOOL) TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Plaintiff, Rio Grande City Consolidated Independent School District (RGCCISD), complaining of Defendants named below, and would respectfully show this Honorable Court as follows:
I. Parties Plaintiff is situated in Starr County, Texas and is a political subdivision of the State of Texas. Defendants, Descon Construction, L.P., and ERO International, L.P. agreed in their contracts with plaintiff to “bind themselves, their partners, successors, assigns and legal representatives to the other party (RGCCISD) to this agreement and to the partners, successors, assigns, and legal representatives of such other party in respect to covenants agreements and obligations contained in the Contract Documents”, namely the construction agreement they had with plaintiff. Therefore, plaintiff alleges J. Wayne Medlin aka/dba Descon Management, L.L.C., aka/dba Maco Management, L.L.C., aka/dba Michael C. Smith aka/dba Descon 4S, L.L.C., aka/dba Descon Construction, L.P., aka/dba Texas Descon, L.P., each individually, dba and fka Descon Construction, L.P. (hereinafter, collectively referred to as “Descon”) and Daniel Block and Eli R. Ochoa each individually and each aka/dba ERO International, L.L.P., and
1 *487 aka/dba ERO Architects (hereafter, correctively referred to as “ERO”) have privity with plaintiff. Each of the above named entities and persons are doing business under their assumed or common names and pursuant to Texas Rule of Civil Procedure 28 each is liable to Plaintiff for purposes of plaintiff enforcing their substantive rights. Plaintiff would also show that on January 25, 2006 Descon Construction, L.P. was renamed to its successor company Texas Descon, L.P. under a licensing agreement to allegedly carry on the tradition and reputation of Descon Construction, L.P., The successor company Texas Descon, L.P. was founded by its partner Michael C. Smith.
No service is necessary on the substituted persons and/or entities as the original commencement of suit was effective notice to each party pursuant to TRCP 28. Defendants, Halff Associates, Inc. and Menton J. Murray, II PE., have appeared and answered. II. Discovery Control Plan Plaintiff requests that discovery be conducted pursuant to TRCP 190.3(1), Level 3, as it seeks monetary relief over one million dollars and judgment for all other relief to which Plaintiff is entitled.
III. Venue Venue is mandatory in Starr County, Texas pursuant to CPRC sect. 15.011 because this action is for recovery of damages to real property. Venue is also proper in Starr County under the general venue rule CPRC sect. 15.002 because all or a substantial part of events or omissions giving rise to the claims against the Defendants occurred in Starr County.
2 *488 IV. Breach of Contract and Implied and Express Warranty of Good and Workmanlike Manner This suit arises from the construction of the Grulla Elementary school which will be referred to herein as (“the Project”). Defendants, Descon, ERO, Block, Ochoa, Halff & Murray were involved in the design and/or construction of the Project. Plaintiff would show that Defendants’ breach of contract and failure to design and construct the project in a good and workmanlike manner and breach of express warranties was a proximate cause of damages and losses to Plaintiff. Plaintiff would show Defendants breached their contracts by one or more acts or omissions identified in the previously attached certificates of merit which are incorporated herein and one or more of the following ways:
1. Failure to follow the plans and specifications; 2. Failure to implement and install specified components and materials; 3. Failure to properly sequence work with and between the various trades; 4. Failure to construct the project pursuant to minimal industry standards; 5. Substituting without authority materials and/or equipment with cheaper and lower
quality materials and/or equipment and failing to properly credit Plaintiff for the cost difference;
6. Failure to comply with applicable codes and/or standards; 7. Failure to construct the project in a good and workmanlike manner; and 8. Breach of express warranties.
3 *489 V. Negligence of Halff/Murray Plaintiff sues Halff and Murray for their negligence which is a proximate cause of Plaintiff’s damages and losses. VI. Interest Plaintiff sues for and is entitled to pre-judgment and post-judgment interest at the maximum rates allowed by law. VII. Damages Plaintiff will show it has sustained actual and physical damages to tangible property in the past, and after completion of the Project, and will sustain damages in the future, for which the Defendants are liable. Such damages should not exceed fifteen million dollars and include but are not limited to the following:
1. The difference between the value of the Defendant’s workmanship, services and materials and the value actually received; 2. The reasonable and necessary cost to remediate, repair, or replace Defendants’ defective workmanship; 3. Reasonable and necessary expenses incurred in attempting to mitigate Plaintiff’s losses; 4. Reasonable and necessary costs to provide alternative facilities during the time period the subject building is unusable or impaired; 5. Damages to the Project caused by water intrusion; 6. Reasonable and necessary attorney’s fees pursuant to CPRC Chapter 38, based
upon the attorney hours worked, hourly rate, the Arthur Andersen and Johnson factors, plaintiff will move the Honorable Court to determine an appropriate
4 *490 lodestar adjustment by multiplying plaintiff’s attorney’s fees upward, for which presentment is hereby made; and
7. Damage to other portions and contents of Plaintiff’s building separate from the remedial cost damages caused by Defendants. VIII. Joint and Several Liability Plaintiff would show that all Descon and ERO entities and partners are vicariously, jointly and severally liable to plaintiff for their respective damages.
PLAINTIFF DEMANDS A JURY TRIAL.
Respectfully submitted: /s/ Norman Jolly By: _____________________
Norman Jolly
TBA# 10856920
Michael B. Jolly
TBA# 10856910
James J. Parker
TBA# 15488020
Hamilton G. Rucker
TBA# 24067850
405 Main, Suite 1000 Houston, Texas 77002 Tel: (713) 237-8383 Fax: (713) 237-8385 Martie Garcia Vela 100 West 5 th Street Rio Grande City, TX 78582 Tel: (956) 488-8170 Fax: (956) 488-8129 Eric Jarvis 5804 N. 23 rd Street McAllen, Texas 78504 Tel: (956) 451-5247 Fax: (956) 687-4001
5 *491 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing was forwarded to all counsel of record, pursuant to the Rules of Procedure, on this the 29th day of April, 2015. /s/ Norman Jolly ____________________________ Norman Jolly 6 *492 Tab 10
NOTES
[1] Descon Management, L.L.C. was dissolved in December, 2009 and was reinstated in 2012. ( Tab 3 , Exhibit A). 2
[2] The fact that RGCCISD has filed four 13th Amended Petitions not only makes referring to the record difficult, but violates the rules of civil procedure. See Tex. R. Civ. P. 46 (“The original petition, first supplemental petition, second supplemental petition, and every other, shall each be contained in one instrument of writing.”). 5
[3] Under the entity theory of partnership law the partnership is an entity separate and distinct from its partners. See 1 Alan R. Bromberg & Larry E. Ribstein, Bromberg and Ribstein on Partnership § 1.03(a)-(b) (Release No. 31, 2011-12 Supp.). 11
[4] Rule 28 provides: Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on motion by any party or on the court’s own motion the true name may be substituted. Tex. R. Civ. P. 28. 12
[5] To be admissible as proof, a business records affidavit must be served on the other party at least 14 days before trial. Tex. R. Evid. 902 (1)(A). The affidavit, which was served on the day of hearing and less than 14 days before trial was not properly before the court. 14
[6] 827 S.W.2d 833, 839 (Tex. 1992). 21