                                                                                              ACCEPTED
                                                                                          08-15-00175-CV
                                                                              EIGHTH COURT OF APPEALS
                                08-15-00175-CV                                           EL PASO, TEXAS
                                                                                     6/4/2015 12:24:29 PM
                                                                                       DENISE PACHECO
                                                                                                   CLERK



                    No. 08-15-______-CV
                                                                         FILED IN
                                                                  8th COURT OF APPEALS
                                                                      EL PASO, TEXAS
                                    In the                        6/4/2015 12:24:29 PM
                                                                      DENISE PACHECO
                           Court of Appeals for the                       Clerk

                           Eighth District of Texas

                          IN RE: MVT SERVICES, L.L.C.,

                                                     Relator.


                 RELATOR’S EMERGENCY MOTION FOR STAY

          Relator, MVT Services, L.L.C., respectfully prays for an emergency stay of

proceedings in the 205th District Court of El Paso County. A stay is necessary to

maintain the status quo and preserve this Court’s jurisdiction to consider Relator’s

contemporaneously-filed petition for a writ of mandamus.

                                           I.

          The mandamus petition involves the district court’s refusal to defer to the

Texas Department of Insurance, Division of Workers’ Compensation, in matters

over which the Division has exclusive and primary jurisdiction.

          Pending now in the district court is a wrongful-death lawsuit arising from

the 2013 death of Lawrence Parada. His surviving family, the Real-Parties-in-

Interest, filed suit against Relator, MVT Services, L.L.C. The claimants allege that




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Parada was an employee of MVT and that he died while in the scope of his

employment for MVT.

          MVT is a workers’ compensation subscriber, as verified by Great West

Casualty Company, MVT’s workers’ compensation carrier. MR0196. Pursuant to

the Texas Workers’ Compensation Act (the Act), MVT instituted a proceeding to

determine compensability with the Division of Workers’ Compensation.                The

Division has exclusive jurisdiction to determine compensability because the Act

vests the power to determine whether a claimant is entitled to comp benefits solely

with the Division, subject to judicial review. In re Tyler Asphalt & Gravel Co.,

107 S.W.3d 832, 839 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding).

The Division’s exclusive jurisdiction to decide compensability also necessarily

encompasses exclusive jurisdiction to determine whether Mr. Lawrence Parada’s

death occurred in the course and scope of his employment with MVT. See id.;

TEX. LAB. CODE § 401.110(10).

          The doctrine of primary jurisdiction requires that the district court defer to

the Division to resolve such issues. See In re Luby’s Cafeterias, Inc., 979 S.W.2d

813, 816 (Tex. App.—Houston [14th Dist.] 1998, orig. proceeding). The district

court “does not have jurisdiction to determine administrative questions or to

adjudicate controversies involving them until they have been determined” by the

Division. See id. The lower court had just one choice: to abate its scheduled trial.

See id. at 817; Tyler Asphalt, 107 S.W.3d at 843.

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          Nevertheless, the district court has refused to abate the lawsuit, which is

currently set for trial on June 8, 2015, to permit the Division sufficient time to

decide these questions within its exclusive and primary jurisdiction. Its failure to

abate the case is a misapplication of the law and an abuse of discretion. See id.

          MVT has no adequate remedy by appeal because the trial court’s actions

improperly deny MVT of bargained-for statutory rights under the Act. See In re

Travelers Indem. Co. of Rhode Island, 109 S.W.3d 10, 13 (Tex. App.—El Paso

2002, orig. proceeding); Tyler Asphalt, 107 S.W.3d at 844; Luby’s Cafeterias, 979

S.W.2d at 817. Accordingly, mandamus relief is warranted. See In re Prudential

Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding); In re

Lucchese Boot Co., 324 S.W.3d 211, 212 (Tex. App.—El Paso 2010, orig.

proceeding).

                                            II.

          A stay is necessary to maintain the status quo and preserve this Court’s

jurisdiction over this mandamus action. See TEX. R. APP. P. 52.10; Rose v. Court

of Appeals for the Fifth Supreme Judicial Dist., 778 S.W.2d 66, 66 (Tex. 1989)

(orig. proceeding) (order); In re Shields, 190 S.W.3d 717, 719 (Tex. App.—Dallas

2005, orig. proceeding); In re Reed, 901 S.W.2d 604, 609 (Tex. App.—San

Antonio 1995) (en banc order); see also City of Dallas v. Wright, 120 Tex. 190,

195, 36 S.W.2d 973, 975 (1931) (“[A] court, once having obtained jurisdiction of a

cause of action . . . may exercise any power, or grant any writ, including the writ of

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injunction, necessary to administer justice between the parties, preserve the

subject-matter of the litigation, and make its judgment effective.”).

          The very crux of the mandamus petition is that MVT will forever lose its

statutory right to have compensability issues “resolved through the process

prescribed by the Act, thereby saving it the time, expense, and uncertainty of

litigation.” See Tyler Asphalt, 107 S.W.3d at 844. Moreover, by forcing MVT to

try the negligence claims on June 8 while this mandamus proceeding is pending (as

is the Division’s review of workers’ compensation issues), the trial court would

deprive MVT of its right to claim the exclusive-remedy provision of the Act. See

id.; TEX. LAB. CODE § 408.001. That is, the very fact of a trial going forward,

regardless of the outcome, would defeat MVT’s substantive rights. See In re

Pollet, 281 S.W.3d 532, 534 (Tex. App.—El Paso 2008, orig. proceeding).

          Therefore, MVT asks the Court to stay the trial. An emergency stay will

preserve the status quo and this Court’s jurisdiction, that is, to prevent the relief

requested in the mandamus petition from becoming moot once MVT is forced to

lose its statutory rights under the Act. See Tyler Asphalt, 107 S.W.3d at 837

(staying trial pending the appellate court’s ruling on the mandamus petition).

                                            III.

          A stay is also necessary to prevent MVT from losing its substantive rights

under the Act. In 2008, this Court conditionally granted mandamus relief in a case

with similar procedural facts. In re Pollet, 281 S.W.3d 532 (Tex. App.—El Paso

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2008, orig. proceeding). There, the plaintiff in a workers’ compensation lawsuit

sued his employer and a treating physician, Dr. Randy Pollet. See id. at 533.

Pollet moved to dismiss the plaintiff’s claims, arguing that the plaintiff failed to

comply with the expert-report requirements of CPRC chapter 74. See id. at 534.

In such cases, that statute protects medical-malpractice defendants from having to

participate in discovery until after the threshold question—whether a satisfactory

expert report has been provided—has been satisfied. See id. at 535.

          In Pollet, the trial court took the motion “under advisement.” See id. at 534.

That refusal to rule, according to this Court, warranted mandamus relief:

          Relief by writ of mandamus is warranted in cases, in which the very
          act of proceeding to trial—regardless of the outcome—would defeat
          the substantive right involved. . . . By refusing to rule on Dr. Pollet’s
          motion to dismiss, the trial court has forced Dr. Pollet to expend time
          and resources in order to participate in an expert deposition which, if
          the court later determines the case must be dismissed, would prove
          useless. This is an example of the type of expenditure the Legislature
          intended to protect physicians from by creating the expert report
          requirement, and providing a right to dismissal for a plaintiff’s failure
          to comply.
Id. at 534–35 (citing In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465 (Tex.

2008) (orig. proceeding)).

          Here, as in Pollet, the Legislature created a statutory scheme to protect

defendants (in this case, employers) from the costs of litigation and “exposure to

uncertain, possibly high damage awards.” In re Poly-Am., L.P., 262 S.W.3d 337,

349 (Tex. 2008) (orig. proceeding). The plaintiffs here must also pass a similar



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threshold (i.e., workers’ compensation proceedings) before seeking relief (if any)

in the courts. See Tyler Asphalt, 107 S.W.3d at 840. As in Pollet, the trial court in

this case took the matter under advisement, thereby threatening to deprive the

defendant of substantive, statutory rights. For that reason, mandamus relief is

warranted, and a stay of all proceedings is necessary.

                                             IV.

          Finally, a stay is necessary to provide this Court with properly authenticated

transcripts of relevant testimony from the oral hearings before the trial court. See

TEX. R. APP. P. 52.7(a)(2). Those transcripts were requested “on an expedited

basis” immediately upon the conclusion of the June 2nd hearing, MR 0202, but are

not yet available. Thus, the trial setting must be stayed to preserve this Court’s

ability to decide the case with a fully supplemented mandamus record. See TEX. R.

APP. P. 52.7(b).

                                        PRAYER
          Relator, MVT Services, L.L.C., respectfully prays that this Honorable Court

grant an emergency stay of all proceedings in the 205th Judicial District Court of

El Paso County pending this Court’s determination of this mandamus proceeding,

and grant Relator any other relief to which it may be entitled.




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                            Respectfully submitted:


ATTORNEY AT LAW                     HOGAN & HOGAN

   Robert A. Skipworth              By: /s/ Richard P. Hogan, Jr.
   State Bar No. 18473000              Richard P. Hogan, Jr.
   rskipworth@aol.com                  State Bar No. 09802010
   310 N. Mesa, Suite 600              rhogan@hoganfirm.com
   El Paso, Texas 79901                Jennifer Bruch Hogan
   915.533.0096–telephone              State Bar No. 03239100
   915.544.5348–facsimile              jhogan@hoganfirm.com
                                       James C. Marrow
BLANCO ORDOÑEZ MATA &                  State Bar No. 24013103
WALLACE, P.C.                          jmarrow@hoganfirm.com
                                    Pennzoil Place
   Steven J. Blanco                 711 Louisiana, Suite 500
   State Bar No. 00796217           Houston, Texas 77002
   sblanco@bomwlaw.com              713.222.8800–telephone
   5715 Cromo Drive                 713.222.8810–facsimile
   El Paso, Texas 79912
   915.845.5800–telephone           QUINTAIROS, PRIETO,
   915.845.5555–facsimile           WOOD & BOYER, P.A.

                                       David M. Hymer
                                       State Bar No. 10380250
                                       1700 Pacific Ave., Suite 4545
                                       Dallas, Texas 75201
                                       214.754.8755–telephone
                                       214.754.8744–facsimile
                                       david.hymer@qpwblaw.com




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                        CERTIFICATE OF COMPLIANCE
          Pursuant to Rule 52.10(a) of the Texas Rules of Appellate Procedure, I

certify that on June 4, 2015, I notified all parties by email that the foregoing

motion for emergency relief is being filed today.




                                             /s/ Richard P. Hogan, Jr.
                                             Richard P. Hogan, Jr.
                                             Dated: June 4, 2015




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                           CERTIFICATE OF SERVICE
       I certify that a true and correct copy of the above and foregoing was
forwarded to all counsel of record by the Electronic Filing Service Provider, if
registered; a true and correct copy of this document was forwarded to all counsel
of record not registered with an Electronic Filing Service Provider and to all other
parties as follows:

Counsel for Real-Parties-In-Interest:

          James Scherr
          Roberto Oaxaca
          SCHERR & LEGATE, PLLC
          109 North Oregon, 12th Floor
          El Paso, Texas 79901
          Via TexFile

Respondent:

          Hon. Francisco X. Dominguez
          205th District Court
          500 E. San Antonio, Suite 1002
          El Paso, Texas 79901
          Via US Mail


                                                   /s/ Richard P. Hogan, Jr.
                                                   Richard P. Hogan, Jr.
                                                   Dated: June 4, 2015




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