Order issued October 30, 2013




                                       In The
                                  Court of Appeals
                                       For The
                                First District of Texas

                                NO. 01-13-00199-CV

CLEVELAND MACK SALES, INC. D/B/A PERFORMANCE KENWORTH
            AND CATERPILLAR, INC., Appellants

                                          V.

                    HO HO HO EXPRESS, INC., Appellee

                      On Appeal from 61st District Court
                            Harris County, Texas
                      Trial Court Cause No. 2008-24797


                       MEMORANDUM ORDER
                    OF REFERRAL TO MEDIATION

      The Court determines that it is appropriate to refer this appeal for resolution

by mediation. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 154.021, 154.022(a),

154.023 (Vernon 2005). Accordingly, the Court orders that this appeal be referred
to mediation unless any party to the appeal files an objection with the Clerk of this

Court within ten days after receiving this order. See id. § 154.022(b).

           The parties shall choose a qualified mediator and agree on a reasonable fee

for the mediator’s services. 1 See id. §§ 154.052, 154.054(a) (Vernon 2005). When

the parties notify the Clerk of this Court of the name of the mediator, that person

shall be deemed appointed by the Court. See id. § 154.051 (Vernon 2005). The

parties should provide the mediator with a completed “Notification to Mediator”

and the “Appointment and Fee Report—Mediation” form. These documents can

be        downloaded     from    the   forms       page   of   the   Court’s   website   at

http://www.1stcoa.courts.state.tx.us.

           The Court sets the following deadlines:

           •      No later than 15 days from the date that this order is issued, the
           parties shall file with the Clerk of this Court a completed “Parties’
           Notification to Court of Mediator.”          This document can be
           downloaded from the forms page of the Court’s website at
           http://www.1stcoa.courts.state.tx.us.

           •      No later than 45 days from the date that this order is issued, the
           parties shall conduct the mediation.

     11
           The Court does not recommend mediators. Mediation information is
           available from the Dispute Resolution Center of Harris County ((713) 755-
           8274 and http://www.co.harris.tx.us/DRC), the Fort Bend Dispute
           Resolution Center ((281) 342-5000), the Alternate Dispute Resolution
           Section of the State Bar of Texas (http://www.texasadr.org/), and other
           groups. The parties are not required to use a mediator recommended or
           listed by these groups.
                                               2
      •      No later than two days from the conclusion of the mediation,
      the parties and the mediator shall advise the Clerk of this Court in
      writing whether the parties did or did not settle the underlying dispute,
      and the mediator shall file with the Clerk of this Court a completed
      “Appointment and Fee Report—Mediation” form. This document can
      be downloaded from the forms page of the Court’s website at
      http://www.1stcoa.courts.state.tx.us.

      All parties, or their representative with full settlement authority, shall attend

the mediation with their counsel. The mediator shall encourage and assist the

parties in reaching a settlement of their dispute, but may not compel or coerce the

parties to enter into a settlement agreement. See id. § 154.053(a) (Vernon 2005).

All communications relating to the mediation are confidential and not subject to

disclosure, except as set forth by law. See id. § 154.073 (Vernon 2005). The Clerk

of this Court, however, will file this order, any objection to this order, and the

completed “Parties’ Notification to Court of Mediator” and “Appointment and Fee

Report—Mediation” forms with the other documents filed in this appeal that are

available for public inspection.

      Unless expressly authorized by the disclosing party, the mediator may not

disclose to either party information given in confidence by the other and shall at all

times maintain confidentiality with respect to communications relating to the

subject matter of the dispute. See id. § 154.053(b). Unless the parties agree

otherwise, all matters, including the conduct and demeanor of the parties and their


                                          3
counsel during the settlement process, are confidential and may never be disclosed

to anyone, including this Court. See id. § 154.053(c).

      The Court will consider the agreed fee for the mediator’s services to be

reasonable and tax that fee as a cost of the appeal unless the parties agree to

another method of payment. See id. § 154.054.

      Nothing in this order modifies the timetables in the Texas Rules of Appellate

Procedure regarding the appellate record and briefs.




                                             /s/ Jane Bland
                                             Justice Jane Bland
                                             Acting Individually




                                         4
