                                                                                    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               FILED IN
                                                         4th COURT OF APPEALS
                                                          SAN ANTONIO, TEXAS
                          SAN ANTONIO, TEXAS
                                                         5/4/2015 9:23:55 PM
                                                           KEITH E. HOTTLE
                                                                 Clerk
                   DESCON CONSTRUCTION, L.P., Relator

___________________________________________________________________________

                        From the 229th 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
                                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
Respondent:

The Honorable Ana Lisa Garza
District Judge
229th 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
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
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
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
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
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




                                             viii
                                            TABLE OF CONTENTS

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
        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
                    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
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

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
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
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

       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
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.




                                             xvii
                                 ISSUES PRESENTED

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:

       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
       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

Management, L.L.C.1 (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).




       1
        Descon Management, L.L.C. was dissolved in December, 2009 and was reinstated in
2012. (Tab 3, Exhibit A).

                                              2
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
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
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

the correct party name, RGCCISD filed yet another Thirteenth Amended Petition.2 (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

       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
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
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
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
       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
       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
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

(TRPA) in 1993 and which “unequivocally embrace[d] the entity theory3 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


       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
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.

       For a party to take advantage of Rule 284 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.




       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
       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
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

motion was a snapshot of a page from Texas Descon, L.P.’s website.5 That website indicates

that Texas Descon, L.P. entered into a licencing agreement with Descon Construction, L.P.

       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
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
       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
       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
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
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
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
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

categorical view of mandamus entitlement espoused in Walker6 and instructed that the


       6
           827 S.W.2d 833, 839 (Tex. 1992).

                                              21
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
       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
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
                         Respectfully submitted,

                         COKINOS, BOSIEN & YOUNG
                         10999 IH-10 West, Suite 800
                         San Antonio, Texas 78230
                         (210) 293-8700 (Office)
                         (210) 293-8733 (Fax)




Date: May 4, 2015        By:   /s/ Karen L. Landinger
                               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

       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:

RESPONDENT
       The Honorable Ana Lisa Garza
       District Judge
       229th 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

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


                                            27
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
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
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
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
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
                   IN THE FOURTH COURT OF APPEALS

                           SAN ANTONIO, TEXAS


                       Descon Construction, L.P., Relator

___________________________________________________________________________

                        From the 229th 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
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
Tab 1
           DC-14-46, RGCCISD v. Descon Construction et al            1
            Pretrial Motions, May 1, 2015, Volume 1 of 1
  1                        COURT REPORTER'S RECORD

  2                         VOLUME 1 OF 1 VOLUMES

  3

  4                    TRIAL COURT CAUSE NO. DC-14-46

  5   RIO GRANDE CITY                )    IN THE DISTRICT COURT
      CONSOLIDATED INDEPENDENT       )
  6   SCHOOL DISTRICT ET AL          )
                                     )
  7   v.                             )     DUVAL     COUNTY, TEXAS
                                     )
  8   DESCON CONSTRUCTION, ERO,      )
      LIMON MASONRY, C & M,          )
  9   TRI CITY GLASS, ET AL          )     229TH JUDICIAL DISTRICT

 10             ____________________________________________

 11

 12                           PRETRIAL MOTIONS

 13

 14             ____________________________________________

 15

 16        On the 1st day of May, 2015, the following proceedings

 17   came to be heard in the above-entitled and numbered cause, in

 18   the courtroom of the 229th Judicial District Court, at the

 19   Starr County Courthouse in Rio Grande City, Texas, before the

 20   Honorable Ana Lisa Garza, District Judge.

 21                 These proceedings were reported by computerized

 22   stenotype machine by Mr. Ramiro Hernandez, Official Court

 23   Reporter for the 229th Judicial District; court reporter's

 24   record produced by computer with software-assisted translation

 25   of shorthand symbols to English.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            2
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1

  2

  3                             APPEARANCES:

  4   MR. NORMAN JOLLY
      MR. MICHAEL B. JOLLY
  5   MR. HAMILTON G. RUCKER
      ATTORNEYS AT LAW
  6   405 MAIN, SUITE 1000
      HOUSTON, TEXAS 77002
  7   PHONE: 713-237-8383
      FAX: 713-237-8385
  8   ATTORNEYS FOR PLAINTIFF

  9   MS. MARTIE GARCIA VELA
      ATTORNEY AT LAW
 10   100 WEST 5TH STREET
      RIO GRANDE CITY, TEXAS 78582
 11   PHONE: 956-488-8170
      FAX: 956-488-8129
 12   ATTORNEY FOR PLAINTIFF

 13
      MILLS SHIRLEY LLP
 14   MR. GRANT GEALY, PARTNER
      ATTORNEY AT LAW
 15   ONE CITY CENTRE
      3 RIVERWAY, SUITE 100
 16   HOUSTON, TEXAS 77056
      PHONE: 713-225-0547
 17   FAX: 713-225-0844
      E-MAIL: ggealy@millsshirley.com
 18   ATTORNEY FOR HALFF ASSOCIATES, INC

 19   ANDREW M. WILLIAMS & ASSOCIATES
      MR. DOUGLAS M. WALLA, OF COUNSEL
 20   ATTORNEYS AT LAW
      5909 WEST LOOP SOUTH, SUITE 550
 21   BELLAIRE, TEXAS 77401
      PHONE: 713-840-7321
 22   FAX 713-839-1302
      EMAIL: doug@amwlawfirm.com
 23   ATTORNEY FOR AAS CONSULTING, INC.

 24

 25

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            3
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1

  2

  3                       APPEARANCES CONTINUED

  4   HEARD & MEDACK, P.C.
      MR. JAMES "JIM" DAVIS
  5   ATTORNEYS AT LAW
      9494 SOUTHWEST FREEWAY, SUITE 700
  6   HOUSTON, TEXAS 77074
      PHONE: 713-772-6400
  7   FAX: 713-772-6495
      E-MAIL: jdavis@heardmedackpc.com
  8   ATTORNEYS FOR R & R CONSTRUCTION

  9
      RYMER, MOORE, JACKSON & ECHOLS, P.C.
 10   MR. MICHAEL G. DUNNAHOO
      ATTORNEYS AT LAW
 11   2801 POST OAK BOULEVARD, SUITE 250
      HOUSTON, TEXAS 77056
 12   PHONE: 713-626-1550
      FAX: 713-626-1558
 13   E-MAIL: mddunnahoo@rmjelaw.com
      ATTORNEYS FOR ZARATE SUSPENDED CEILINGS
 14

 15   GARZA & GARZA, L.L.P
      MR. DAVID C. GARZA
 16   ATTORNEYS AT LAW
      680 E. SAINT CHARLES, SUITE 300
 17   BROWNSVILLE, TX. 78520
      PHONE: 956-541-4914
 18   FAX: 956-542-7403
      E-MAIL: dgarza@garzaandgarza.com
 19   ATTORNEYS FOR C & M CONTRACTING

 20
      ROERIG, OLIVEIRA & FISHER, L.L.P.
 21   MR. DAVID G. OLIVEIRA
      ATTORNEYS AT LAW
 22   SUITE 9, PRICE PLAZA BUILDING
      855 WEST PRICE ROAD
 23   BROWNSVILLE, TEXAS 78520
      PHONE: 956-542-5666
 24   FAX: 956-542-0016
      E-MAIL: doliveira@rofllp.com
 25   ATTORNEYS FOR DESCON CONSTRUCTION

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            4
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1

  2

  3                       APPEARANCES CONTINUED

  4

  5   COKINOS, BOSIEN & YOUNG
      MR. JOHN SMITH, MR. GABRIEL S. HEAD, MR. JAY FARWELL
  6   ATTORNEYS AT LAW
      10999 WEST IH-10, SUITE 800
  7   SAN ANTONIO, TEXAS 78230
      PHONE: 210-293-8713
  8   FAX: 210-293-8733
      EMAIL: jfarwell@cbylaw.com
  9   ATTORNEYS FOR DESCON

 10   HINKLE & VILLARREAL, P.C.
      MR. R. KYLE HINKLE
 11   ATTORNEYS AT LAW
      719 S. SHORELINE, SUITE 300
 12   CORPUS CHRISTI, TEXAS 78401
      PHONE: 361-883-0620
 13   FAX: 361-883-0612
      E-MAIL: rkhinkle@southtxdefense.com
 14   ATTORNEYS FOR C. A. RAY AND SON

 15
      DUNN, WEATHERED, COFFEY, RIVERA & KASPIRITIS, P.C.
 16   MR. PAT KASPIRITIS
      ATTORNEYS AT LAW
 17   611 S. UPPER BROADWAY
      CORPUS CHRISTI, TEXAS 78401
 18   PHONE: 361-883-1594
      FAX: 361-883-1599
 19   ATTORNEYS FOR FAIRESS CONSTRUCTION AND FOR D & J SITE
      CONSTRUCTION
 20
      ENGVALL & LOPEZ, LLP
 21   MR. BRIAN C. LOPEZ, PARTNER
      MS. BRITTANY CRAVENS COOPERRIDER, ASSOCIATE
 22   1811 BERING DRIVE, SUITE 210
      HOUSTON, TEXAS 77057
 23   PHONE: 713-787-6700
      FAX: 713-787-0070
 24   E-MAIL: blopez@eltexaslaw.com, bcooperrider@eltexaslaw.com
      ATTORNEYS FOR LIMON MASONRY
 25

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            5
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1

  2

  3                       APPEARANCES CONTINUED

  4   MR. JASON WEST
      ATTORNEY FOR KBM AIR CONDITIONING
  5

  6

  7   MACDONALD DEVIN
      MR. GREGORY N. ZIEGLER, SHAREHOLDER
  8   ATTORNEYS AT LAW
      3800 RENAISSANCE TOWER
  9   1201 ELM STREET
      DALLAS, TEXAS 75270
 10   PHONE: 214-744-3300
      FAX: 214-747-0942
 11   EMAIL: gziegler@macdonalddevin.com
      ATTORNEYS FOR PEREZ CONSULTING ENGINEERS
 12

 13   MR. JOHN A. GUERRA
      MR. LOUIS A. GROSS
 14   ATTORNEYS AT LAW
      17339 REDLAND ROAD
 15   SAN ANTONIO, TEXAS 78247-2304
      PHONE: 210-979-0100
 16   FAX: 210-979-7810
      ATTORNEYS FOR ZARATE SUSPENDED CEILING, INC., AND
 17   DANIEL VASQUEZ, D/B/A TWIN CITY GLASS

 18

 19   MR. JOHN R. GRIFFITH, MR. OSCAR O. LOPEZ
      ATTORNEY AT LAW
 20   801 E. FERN AVENUE, SUITE 170
      MCALLEN, TEXAS 78501
 21   PHONE: 956-971-9446
      FAX: 956-971-9451
 22   ATTORNEY FOR ERO INTERNATIONAL, LLP

 23

 24

 25

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            6
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1             THE COURT:   If you want to start coming

  2   forward so we can see what we are going to take first,

  3   in what order we are going to take it up first.   My

  4   first question to everybody is -- okay, gentlemen, go

  5   ahead and make your appearances for the record.   We are

  6   now on record on DC-14-46 Rio Grande City I.S.D. versus

  7   Descon Construction LP et al.    If we can go ahead and

  8   start with the plaintiffs.

  9             MR. N. JOLLY:   Good morning, Your Honor,

 10   Norman Jolly, Mike Jolly, Hamilton Rucker, Marty Vela.

 11   I think that's all of us for the Plaintiff.    And James

 12   Parker.

 13             THE COURT:   Okay.   I was going to say well

 14   you've got another guy standing there and you are not

 15   saying anything.

 16             MR. N. JOLLY:   Sorry.

 17             THE COURT:   Okay.   And now for the defense, if

 18   y'all will just start at this table.

 19             MR. GEALY:   Grant Gealy for Halff Engineering.

 20             MR. WALLA:   Doug Walla for AAS Consulting Inc.

 21             MR. DAVIS:   James Davis for R & R

 22   Construction.

 23             MR. DUNNAHOO:   Michael Donnahoo for Zarate

 24   Suspended Ceilings.

 25             MR. GARZA:   Good Morning, Your Honor, David

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            7
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   Garza on behalf of C & M Contracting.

  2            MR. OLIVEIRA:     David Oliveira for Descon.   I

  3   apologize, I don't haveM    a card.

  4            THE COURT:    That's okay.

  5            MR. SMITH:    Robert Smith for Descon.

  6            MR. HEAD:    Gabriel Head for Descon.

  7            MR. FARWELL:    Jay Farwell for Descon.

  8            MR. HINKLE:    Kyle Hinkle for C. A. Ray and

  9   Son.

 10            MR. KASPERITIS:     Your Honor, Pat Kasperitis

 11   for appearing for David Dunn for D & J Site Construction

 12   and for Fairess Plumbing.

 13            MR. B. LOPEZ:     Brian Lopez and Brittany

 14   Cooperrider for Limon Masonry.

 15            MR. WEST:    Jason West for KBM Air

 16   Conditioning.

 17            MR. ZIEGLER:    Greg Ziegler for third-party

 18   defendant Perez Consulting Engineers.

 19            MR. GUERRA:    John Guerra, co-counsel for

 20   Zarate Suspended Ceilings and we also represent together

 21   with Bruce Gross for Twin City Glass.

 22            THE COURT:    Is that everybody?

 23            MR. N. JOLLY:     Everyone that's here, but there

 24   are some people missing.

 25            THE COURT:    That's tough because it's 10:00,

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            8
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   and I am not going wait.    So we are going forward.

  2   Okay.   Y'all can be seated.   So I think the first thing

  3   we probably should do is take up if there's any more

  4   motions for leave to designate responsible third

  5   parties.   I know that I see that Limon Masonry filed

  6   that motion so is there anyone here for Limon Masonry?

  7              MR. B. LOPEZ:   Your Honor.

  8              THE COURT:   You need to come forward and

  9   identify yourself because my court reporter is not going

 10   to remember your names.    You are too many so that's --

 11              MR. B. LOPEZ:   Yes, ma'am.   Brian Lopez for

 12   Limon Masonry.   We did have the Motion for Leave to Name

 13   New Parties, Descon I believe also filed that.

 14              MR. SMITH:   Yes, Your Honor.

 15              MR. B. LOPEZ:   If Descon files that we'll

 16   withdraw because we are in agreement for Limon.

 17              THE COURT:   I think I already granted that.

 18              MR. N. JOLLY:   This is a new one.

 19              THE COURT:   This is a new one?

 20              MR. B. LOPEZ:   Yes.

 21              THE COURT:   Okay, so you are going to abandon

 22   that pleading.

 23              MR. B. LOPEZ:   Yes because Descon is in

 24   agreement with us.

 25              MR. N. JOLLY:   We are not because they want to

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            9
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   delay the case and sue another party, bring him in, by

  2   citation, not just designate.

  3            THE COURT:    Well, with reference to

  4   designation, I mean, is that correct that you actually

  5   want to bring them in other than just designate them?

  6            MR. SMITH:    Yes, Your Honor.

  7            THE COURT:    We are too late in the game don't

  8   you think?

  9            MR. SMITH:    Well, Your Honor, if I could

 10   quickly explain.   There was a particular, uh -- Robert

 11   Smith for Descon -- there was a particular, uh,

 12   Plaintiff's expert, uh, Mr. Wallace, who prepared a

 13   report and who complained in his report or said in his

 14   report that Perez Engineers was the responsible party

 15   with regard to complaints about design and, uh, we

 16   took -- his deposition actually was supposed to have

 17   been taken a couple months ago and he just flat did not

 18   get it on his calendar and it was pushed back a month

 19   when he was available again so we just took his

 20   deposition about not even a month ago, Your Honor, and

 21   Mr. Wallace at that time said my, my report was

 22   generated and was based upon looking at documentation

 23   that was not the correct documentation.   The correct

 24   documentation was a submittal that was submitted and I

 25   didn't realize that and we asked him if he had changed

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            10
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   his, uh, report at any time and he said, "No, a decision

  2   was made between me and the other experts and

  3   Plaintiff's counsel not to change my report.    I am here

  4   today to give my opinions about it."   And he gave his

  5   opinions and he said, "My ultimate opinion is that this

  6   wall needs to be replaced.    My opinion has not changed

  7   with regard to that."    We requested him and his

  8   background was that no Perez was not the responsible

  9   party for that because they weren't involved in the

 10   design of what was actually built, that it was a new

 11   entity, a new company Pavestone that generated the

 12   documentation with regard to the construction of that

 13   particular wall and their engineer that developed the

 14   design of that wall.    Descon had a purchase order and

 15   purchased the wall materials as well as the engineered

 16   drawings.   So, at the deposition of Mr. Wallace for the

 17   first time we hear that, no, Perez is not the

 18   responsible party for that wall, Pavestone and their

 19   engineer is, uh, but we never changed our report, we

 20   never gave any heads up that we're changing our report,

 21   that we have looked at anything else, or that anything

 22   has changed.   We came back and within, uh, days we

 23   waited for the transcript and within days the, uh,

 24   motion was filed to join them as a, uh, third-party with

 25   regard to the lawsuit and also to designate them as a

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            11
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   responsible third-party.

  2             Your Honor, uh, we went ahead and, uh, we

  3   believe that we have done it timely.   He has known,

  4   Mr. Wallace has known since our reports, our expert

  5   reports were generated back in August.   We said wait a

  6   minute, Wallace has looked at the wrong documents.     Uh,

  7   so he's known since August that he had looked at the

  8   wrong documents.   And during that time period he didn't

  9   look at them until shortly before his depo and then he

 10   changed his opinions.    So, that's why we are seeking at

 11   this late date to bring in a third-party and to not only

 12   just designate them as a responsible third-party, but we

 13   actually have a contractual claim against them, via our

 14   purchase from them of this wall system including the

 15   engineered drawings that now for the first just weeks

 16   ago Plaintiff says is defective engineering, defective

 17   design.

 18             THE COURT:    Well, if you were dealing with

 19   them wouldn't you have known about it?   You just said

 20   that.

 21             MR. SMITH:    We knew about them but their

 22   complaint was about Perez, who is in the lawsuit.

 23             THE COURT:    What's your response?

 24             MR. SOLIS:

 25             MR. N. JOLLY:    Nothing personal but counsel is

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             12
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   not -- either hasn't read the transcript of the witness

  2   or has not been informed what it accurately states

  3   because what the witness said was that he had not

  4   changed his opinion and that the design was adequate.

  5   That's on page 113 of the transcript.    May I hand it to

  6   you?

  7              THE COURT:   Okay.

  8              MR. N. JOLLY:   So the -- all the superfluous

  9   stuff about the block changing, that didn't change his

 10   opinion.   The metal engineers and engineer that works at

 11   the block company and in some other state didn't come

 12   out to the job, didn't install anything, didn't do one

 13   single thing at the job.    The submittal engineer is not

 14   being criticized.   The opinion is still the same.   This

 15   is just the same to delay the case.

 16              THE COURT:   You don't have a problem with the

 17   designation just having them brought in to the lawsuit.

 18              MR. N. JOLLY:   Exactly.   As we said before you

 19   get your third-party designation now and in between now

 20   and when the jury gets the charge you can decide whether

 21   or not the jury should get that party's name submitted.

 22              THE COURT:   Right.   That's what I am asking.

 23              MR. N. JOLLY:   We would object at that time,

 24   uh --

 25              THE COURT:   Depending on what the evidence

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             13
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   shows.

  2               MR. N. JOLLY:   Correct.   But at this time

  3   that's --

  4               THE COURT:   I am going to allow him to bring

  5   him in as a third-party designation, but not as a party

  6   into the lawsuit.   It's too late.

  7               MR. N. JOLLY:   May I have this back, Your

  8   Honor?

  9               THE COURT:   Yes.   Okay so we are done with

 10   Descon's Motion for Leave to File Third-party Petition

 11   and Designate Responsible Third-party, and with Limon

 12   Masonry's Motion for Leave to Designate, that was

 13   abandoned.   Is there any other motions for leave to

 14   designate any other parties?      (pause) Okay.   So we've

 15   gotta whole lot of motions to strike, motions to

 16   exclude, motions for summary judgment.

 17               MR. OLIVEIRA:   David Oliveira for Descon, we

 18   have a Motion to Strike 13th Amended Petition on the

 19   basis they have added six new parties that have not been

 20   served and we believe that, uh, it's too late in the

 21   game and I think if you take that motion up and you

 22   agree with us, that, uh, that you won't have to argue

 23   the other hundred motions that are pending.

 24               THE COURT:   Okay, let me look for that because

 25   that's not on my list.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al               14
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1               THE COORDINATOR:     Yes it's just that they have

  2   been filing --

  3               THE COURT:   So y'all are still filing.

  4               THE COORDINATOR:     Whose motion is that,

  5   please?

  6               THE COURT:   Descon's.

  7               MR. OLIVEIRA:   Descon's motion, Motion to

  8   Strike, it's Objections and Motion to Strike Plaintiff's

  9   13th Amended Original Petition.

 10               THE COURT:   Thirteenth amended?

 11               MR. OLIVEIRA:   Thirteenth amended original

 12   petition.

 13               THE COURT:   Okay.

 14               MR. OLIVEIRA:   We have a hard copy.

 15               THE COURT:   I have one.

 16               MR. OLIVEIRA:   Okay.

 17               THE COURT:   Okay let's go ahead and take that

 18   up.

 19               MR. OLIVEIRA:   Okay, Your Honor, basically the

 20   Plaintiffs recently filed four pleadings captioned

 21   Plaintiff's 13th Amended Original Petition.      In three

 22   editions of the pleadings they purport to join six to

 23   eight new parties:   Texas Descon LP, uh, Wayne Medlin

 24   Descon Management LLC, MayCo Management, LLC, Michael

 25   Smith, and then Descon 4S LLC.       Three of these four

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             15
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   additions of the pleadings were served on April 24th,

  2   27th and 29th of, uh, this year, just in other words in

  3   the last two weeks or well actually one of them in the

  4   last, uh, two days ago I guess.

  5              Uh, obviously, Your Honor, we object to, uh,

  6   for a number of reasons.     First and foremost the

  7   deadline for joinder of parties was, uh, I believe in

  8   June 27th, 2014, almost a year ago.     Secondly, the

  9   deadline to file supplemental or amended pleadings which

 10   these aren't was April 14th.     So, they are clearly, they

 11   have blown two different deadlines.

 12              Your Honor, additionally, they haven't served

 13   any of these people.   Uh, an answer won't be due

 14   wouldn't be due anyway even if they served them before,

 15   uh, uh, before the trial date of Monday, and obviously

 16   these are new parties that are going to require -- be

 17   required to hire, uh, additional counsel and hire their

 18   own counsel and, uh, I don't see how we can go to trial

 19   with six to eight new parties.

 20              MR. N. JOLLY:   Done?   Judge they are not new

 21   parties.   May I approach?    Your Honor, the defendants

 22   are incorrectly named so they are not new parties and,

 23   uh, you know, I've known David a long time, I don't

 24   expect him to be familiar with Rule 28, but it's mainly

 25   something that is, uh, inures to the benefit of a

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            16
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   plaintiff, not always but usually.     And, uh, and the

  2   reason is is because it's there to prevent the

  3   shenanigans that have been going on.    So namely with

  4   regard to Descon's failure to identify these parties as

  5   potential parties in their disclosures, you know, ha,

  6   ha, I am not going to call anyone any names or make any

  7   accusations --

  8              THE COURT:   Well don't do that.

  9              MR. N. JOLLY:   -- but just to, to come in here

 10   and say some submittal engineer is a potential party and

 11   try to bring him into the case, but not tell us that

 12   Descon has changed its name, is, uh, completely

 13   inappropriate.   Those names should have been given to us

 14   a long time ago and it's a good thing the legislature

 15   thought of this in advance and that's why they wrote

 16   Rule 28.   The Supreme Court has looked at it, looked at

 17   it many times.   The landmark case is called RMA

 18   Partners, uh, 2003, Texas Supreme Court case.    And in

 19   that case the same arguments --

 20              THE COURT:   So in other words, you did some

 21   research and found out that they had different names or

 22   they had changed here names.

 23              MR. N. JOLLY:   Right.

 24              THE COURT:   In the last however long.

 25              MR. N. JOLLY:   Right.   In this, this -- the

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             17
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   drama gets even deeper because this is something we

  2   found out when we were told at a recent meeting with the

  3   guy that tried to resolve this case that Descon didn't

  4   exist any more, that they were defunct, so of course we

  5   take statements like that pretty seriously and our

  6   internet guru got online and found a company online

  7   named Texas Descon LP.    It's Exhibit A.   It's the first

  8   screen shot on the home page.    And you can see right

  9   there on Exhibit A that, uh, this gentleman, Michael

 10   Smith says on January 25th, 2006 Descon Construction --

 11   which isn't the exact name of the Descon entity in this

 12   case, it's Descon Construction LP, and if you read

 13   further, "was renamed to its successor company,"

 14   something that should have been given to us in

 15   disclosures a long time ago.    Texas Descon LP.   Entering

 16   a license agreement.   Something else that should have

 17   been given to us a long time ago.    To carry on the

 18   tradition and reputation of Descon Construction LP which

 19   is the correct name of the party to the construction

 20   agreement in this case.    Signed by its representative --

 21   this is significant -- Wayne Medlin also known as Jerry

 22   Medlin, Jerry Wayne Medlin, J. Medlin.      He goes by a

 23   variety of different abbreviations.    The successor

 24   company, Texas Descon LP was found by Michael Smith.

 25   You know, and the rules have changed about what you can

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            18
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   get from the Secretary of State now, so this is the --

  2   this is it.   This is all you can get.   The other things

  3   you can keep them in your back pocket, naming the

  4   partners, uh, things that should have been given to us

  5   in disclosures but weren't, those sorts of things that

  6   are now not filed with the Secretary of State, the

  7   things that are filed with the Secretary of State are

  8   right here and it goes from 1975 up 'til present.

  9   Dissolved, reinstated, same two guys, over and over

 10   again, Mr. Medlin, Mr. Smith.   Change in the name around

 11   2012, it's the same people, same address on 10th Street,

 12   things that should have been given to us in disclosures.

 13            MR. OLIVEIRA:   Your Honor --

 14            MR. N. JOLLY:   I am not finished, David, thank

 15   you.

 16            MR. OLIVEIRA:   I'm sorry, she looked at me, I

 17   have a response.

 18            MR. N. JOLLY:   There's more.   So to our

 19   astonishment, I guess, you know, something new happens

 20   every day that's good isn't it?   We actually get an

 21   affidavit from the gentleman, Mr. Smith, in this

 22   response claiming that this website was not created with

 23   his authority, and I think that was last Friday?     Well

 24   so we gotta subpoena you know, you know -- I didn't know

 25   this, but you go to the bottom of a website, and then

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            19
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   whoever dreams up that website their name is down there,

  2   and then whoever owns the website is called, uh, domain

  3   registration, but we don't get that information.     We

  4   should have been given it in disclosures, but the domain

  5   registration says Texas Descon.      We have to go over to

  6   Ireland or Switzerland to find out who actually owns

  7   that.   Or, we could get it in disclosures.

  8              So --

  9              THE COURT:   Well I would opt to going to

 10   Switzerland.

 11              MR. N. JOLLY:   Agreed.    Agreed.

 12                              (Laughter).

 13              THE COURT:   So, uh, so we take a subpoena and

 14   we go over to this MPC studios and got the documents

 15   from MPC studios yesterday.    May I approach?   The, the

 16   MPC studios is the entity that created the Texas Descon

 17   LP successor, renamed, formerly known as the party that

 18   contracted to build this building.      They are Descon.

 19   And that's what Rule 28 says.    If Mr. Medlin and Mr.

 20   Smith are operating these entities by whatever Descon

 21   name they are calling it today, those two guys are doing

 22   business as Descon Construction, Descon Construction LP,

 23   Texas Descon, it doesn't frankly matter, and what the

 24   Supreme Court has said is you don't have to serve them,

 25   they are separate legal entities, the Supreme Court says

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            20
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   it doesn't matter, uh, you don't have to serve.   Them if

  2   there is a fact question -- and there is -- then it's a

  3   question of fact for the Court.    They don't have to be

  4   served.   That is completely wrong.   The Texas Supreme

  5   Court addresses that in RMA Partners.   They don't have

  6   to be served.    The Supreme Court says that if some facts

  7   established that these two gentlemen are operating these

  8   Descon entities as their assumed name, their common

  9   name, then it is presumed they were served from the

 10   original filing of the lawsuit and had been on notice

 11   since day one.    Mr. Medlin is the representative in the

 12   contract, Mr. Medlin was the registered agent, he and

 13   Mr. Smith had been in business together for seven five

 14   years -- 35 years, it's -- that's in his affidavit where

 15   he claimed -- and you notice everybody dealing with MPC,

 16   their name is the same name.    I guess they are his sons,

 17   his rogue sons, cooking up this website.   So, you know,

 18   gonna live by the sword you got to die by it.   The

 19   gentlemen, or parties, their names need to be

 20   substituted pursuant to rule 28.    All of the same

 21   arguments have been made repeatedly, they were made at

 22   the Supreme Court and they failed.

 23             The second reason that these folks are in this

 24   case is because they contracted to be in the case.    The

 25   contract -- and by the way these very same --

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            21
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   Mr. Griffith is here now.    The very same issues relate

  2   to ERO.   ERO changed its name and has an assumed name

  3   that they actually filed.    Oh, the Supreme Court -- I'm

  4   sorry, a different Court not the, not the Court in RMA

  5   Partners, a different Court that has interpreted Rule 28

  6   has said I don't even have to go get the assumed name

  7   certificate.    There just has to be a fact question.   So

  8   if you go to the actual contract -- may I approach?

  9   These are just a few pages from the agreement.    This is

 10   the contract to construct Grulla Elementary that's the

 11   subject of this litigation.    And you can see there on

 12   the first page the owner is the Rio Grande City

 13   Consolidated Independent School District.   The

 14   contractor Descon Construction LP.    That's the company

 15   that's been renamed, according to it's website, Texas

 16   Descon LP.    And the reason I give you 4th page of the

 17   agreement is because there's legal significance to

 18   Mr. Medlin being the contractor's representative.    And

 19   he signs the document Wayne Medlin, President.    He had

 20   written on there "partner" but he struck that out

 21   because the names of the partners haven't been given to

 22   us.   To this day they don't have to file them with the

 23   Secretary of State.    He struck that out because I guess

 24   he didn't -- he was thinking about this in advance, I

 25   don't know.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            22
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1               The very last page, this paragraph 13.2, Your

  2   Honor, is the reason that Mr. Medlin's signature and

  3   name as the representative is significant because he

  4   agreed to bind himself, him, his partners, the unnamed

  5   partners that we can't get from the secretary any more,

  6   successors, Texas Descon LP, legal representatives,

  7   Mr. Medlin is their legal representative signing this

  8   document.    He personally bound himself to the covenant,

  9   agreements, and obligations in the contract documents.

 10   Contract documents includes the construction agreement,

 11   the addendum, the plans, the spec, the project manual,

 12   it goes on and on.

 13               THE COURT:   Okay, well I think I get it.

 14               MR. N. JOLLY:   The only difference with this

 15   clause and the clause with ERO is ERO's clause says

 16   "with regard to these covenants" it doesn't also say

 17   with regard to these covenants and contract documents.

 18   That's the only difference.     Either way the partners,

 19   successors --

 20               THE COURT:   Are you done?

 21               MR. N. JOLLY:   -- and representatives are all

 22   parties.

 23               THE COURT:   Are you done?

 24               MR. N. JOLLY:   I think so.

 25               THE COURT:   Short response.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al               23
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1               MR. HEAD:    Gabriel Head on behalf of Descon.

  2   Mr. Jolly has not only confused everything with respect

  3   to entities that --

  4               THE COURT:    I am not confused.   Just give me

  5   the response without making --

  6               MR. HEAD:    Michael C. Smith is the person who

  7   is a partner.   Michael C. Smith has an affidavit.

  8   That's Descon LP.   He wants to sue Texas Descon LP who

  9   is not -- it was not created by Michael C. Smith, it was

 10   created by a wholly different person, Michael D. Smith.

 11   They are not entities that are related.        He has in his

 12   affidavit that Descon LP is still in existence and he

 13   also says he never assigned this contract to Texas

 14   Descon.   Mr. Jolly cites Texas Rule of Civil Procedure

 15   28 which says you can sue somebody in their correct name

 16   but nowhere in that Supreme Court case does it say you

 17   you don't have to serve them.      As a matter of fact there

 18   are Texas Supreme Court cases and other cases under Rule

 19   28 that say you still have the serve the person, and if

 20   he wanted to hold all these partners and these different

 21   entities to a judgment, as a matter of fact the Civil

 22   Practice and Remedies Code section 31 says you can't

 23   have a judgment against a person who has not received

 24   citation.   All we are asking is give them citation.      The

 25   rule says you can sue somebody under their legal name.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            24
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   Yes you can name them but you still have to serve them.

  2   Wayne Medlin is the registered agent for Descon LP.

  3   Michael D. Smith is the registered agent for Texas

  4   Descon LP.   He also wants to bring in Mr. Medlin

  5   individually when he signed the contract in his capacity

  6   as President of Descon LP.   He also wants to bring in

  7   Mr. Michael C. Smith individually.    He's not been served

  8   at all.   He also wants to bring in another general

  9   partner, MayCo Management LLC.   Their registered agent

 10   is Michael C. Smith.   They have not been served either.

 11   What Mr. Jolly is trying to do is hold Descon liable for

 12   actions there by other people, other parties, other

 13   individuals, other entities that on their own need to be

 14   served.

 15              The other thing that he's trying to do is

 16   essentially pierce the corporate veil which he's not

 17   pled.   How is Mr. Smith, Michael C. Smith liable for a

 18   contract he's not a signatory to?    Neither is Texas

 19   Descon LP.   And in his affidavit he says Texas Descon

 20   was never assigned or sold the contract.   Texas law says

 21   even if you are a successor company, you are not liable

 22   for the previous company's liabilities unless they have

 23   been specifically, it specifically says liabilities have

 24   to be bought.   There's no evidence of that.   What we

 25   have is a website.   He's going off of a website which

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al                25
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   one of the managers for Descon LP says, "I didn't

  2   write".    Even in all that stack, that affidavit, you

  3   will not find the name Michael C. Smith, you'll find the

  4   name Michael D. Smith, two totally different people.        So

  5   what Mr. Jolly has done is he's trying tried to say

  6   there's this conspiracy.    There's this web that we

  7   didn't disclose this information.    Well they are not

  8   proper parties, that's why we didn't disclose it.      They

  9   are not a successor company.    They didn't build the

 10   school.    The person who built the school was Descon LP.

 11   They signed the contract.    They have been served.    We

 12   are here.    The other people haven't been served, they

 13   don't have lawyers.    So all we are saying is, if you

 14   want those people in the suit, you got to serve them

 15   with citation.    It's a fundamental due process.   Even

 16   when you read Rule of Civil Procedure 28 it doesn't even

 17   mention citation in there.    It says that you can sue

 18   somebody under their assumed name.    Sure he doesn't have

 19   to have an assumed name certificate, but one doesn't

 20   exist.    Mr. Smith's affidavit says that Texas Descon

 21   didn't operate under assumed name for this project.

 22   Texas Descon didn't even exist until 2006 and this

 23   school was completed in 2005.    So these breach of

 24   contract actions again these other people, we believe

 25   that they are inappropriate.    But even if Mr. Jolly

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            26
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   feels they are appropriate, these people should be

  2   served with citation and allowed to defend themselves

  3   because my client, Descon, we may have claims against

  4   them and we can't try a lawsuit on other people's

  5   actions, which he's trying to hold us for.

  6            THE COURT:     Okay, well the Court is going to

  7   go ahead and deny your Motion to Strike the 13th Amended

  8   Petition and I am going to grant Plaintiff's First

  9   Amended T.R.C.P. 28 Motion to Substitute Named

 10   Defendants Omitted by Defendants' Disclosures and to

 11   compel defendants to properly identify any other parties

 12   and you are to do that by today.

 13            Okay what else do we have to take up?    Well we

 14   have got a lot but I don't know what order you all want

 15   to take these in.    We have a lot of motions for summary

 16   judgment, no evidence motions for summary judgment,

 17   we've got traditional motions for summary judgment.

 18            MR. ZIEGLER:     Your Honor, Grez Ziegler for

 19   Perez Engineering.    Uh, the last time we had a hearing I

 20   had a summary judgment and I argued it in front of you.

 21   I was the last party brought in.    I would kind of like

 22   to be the first party let out if I could since I was the

 23   last one brought in, uh, less than three months ago.     I

 24   don't believe we have a ruling.

 25            THE COURT:     Which is the one that I ruled on?

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             27
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1               THE COORDINATOR:   Yes, there was and there was

  2   an order.

  3               MR. ZIEGLER:   Yes, ma'am.

  4               THE COORDINATOR:   No, I don't have an order on

  5   that, on yours.

  6               MR. ZIEGLER:   So we refiled it yesterday.

  7               THE COORDINATOR:   You did?

  8               MR. ZIEGLER:   Yes.

  9               THE COURT:   Because I did make a ruling on

 10   that did I not?

 11               THE COORDINATOR:   Yes, and it was granted.

 12               THE COURT:   Your motion was granted.

 13               THE COORDINATOR:   It's just that we didn't

 14   have an order.

 15               THE COURT:   Everything is by eFiling now.

 16               MR. ZIEGLER:   Yes, Your Honor, so we have, uh,

 17   when he filed it somehow I know you probably know this

 18   there are probably thousands of eFilings, so I think it

 19   got lost in the thousands of eFilings, but yesterday at

 20   the Court coordinator's request we filed it again.

 21               THE COURT:   The district clerk's office just

 22   started doing this how long ago?

 23               DEPUTY DISTRICT CLERK:   Six months ago.

 24               THE COURT:   So, it goes to them and they send

 25   it to our Court.   So maybe that's why.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             28
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1            THE COORDINATOR:       We'll get the order right

  2   now.

  3            MR. ZIEGLER:     If that's the case, I have

  4   nothing else to bring to the Court's attention.

  5            THE COURT:     You are excused.

  6            MR. ZIEGLER:     Thank you, Your Honor.

  7            THE COURT:     Thank you, sir.    Okay.   Is there

  8   any other motions that it would make sense to take them

  9   first before I start taking up all the motions for

 10   summary judgment?   I know there was a Plaintiff's Motion

 11   to Compel and for Sanctions.

 12            MR. WEST:     Judge, Jason West for KBM Air

 13   Conditioning.   I only answered in this case in the last

 14   two weeks.   I have filed a Motion for Leave to File a

 15   Late Motion for Summary Judgment.      I filed the Motion

 16   for Summary Judgment but I also filed a Motion for

 17   Continuance given my late arrival to this case.      Uh, it

 18   may be beneficial to the Court to go ahead and hear my

 19   Motion for Leave to File the Motion for Summary Judgment

 20   and the Motion for Summary Judgment.      That would in

 21   theory make the Motion for Continuance moot if, uh, I am

 22   let out of the case.

 23            THE COURT:     Okay.    That makes sense.   Do you

 24   have an objection to doing it that way?

 25            MR. N. JOLLY:     To let his client out of the

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            29
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   case?

  2            THE COURT:    Yes.

  3            MR. N. JOLLY:    KBM?   No objection to let his

  4   client out of the case.

  5            THE COURT:    Okay.

  6            MR. N. JOLLY:    Which I assume you are

  7   withdrawing your continuance, Jason.

  8            MR. WEST:    Obviously, if I am out of the case,

  9   I will withdraw my Motion for Continuance.

 10            THE COURT:    Okay, well then I need an order.

 11            MR. HEAD:    Your Honor, the Plaintiff has not

 12   sued them, Descon has sued them.    Descon recently

 13   dropped their claims against KBM.

 14            MR. WEST:    If I may, Judge, uh, when I

 15   initially filed my Motion for Summary Judgment there was

 16   claims pending from the Plaintiff and Third-party

 17   Plaintiff.   Subsequently I spoke with Plaintiff's

 18   counsel, he has stated to me that they are -- his client

 19   is not making any claims for damages related to my

 20   client's scope of work.

 21            THE COURT:    Okay.

 22            MR. N. JOLLY:    That's correct.

 23            MR. WEST:    And --

 24            MR. N. JOLLY:    Which is H.V.A.C. installation

 25   exclusively.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              30
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1             THE COURT:    Okay.

  2             MR. WEST:    And in my understanding of the law

  3   would be that that essentially moots, uh, most of the

  4   complaints that -- well all the complaints they would

  5   have against me on their third-party petition.

  6             MR. HEAD:    Uh --

  7             THE COURT:    Well, you have to state your name

  8   for the record.

  9             MR. HEAD:    I'm sorry.    I'm trying to find the

 10   motion, I apologize, Your Honor.      Gabriel Head on behalf

 11   of Descon.   If the plaintiff is dropping all claims

 12   related to the construction of the H.V.A.C. system,

 13   then --

 14             MR. N. JOLLY:    No, no, no, no.   No, no.   I

 15   hate to interrupt.

 16             MR. HEAD:    Well I, I -- well you got to get it

 17   right.

 18             MR. N. JOLLY:    Well I did.   I thought I said

 19   related to the H.V.A.C. installation.     That's it.

 20   That's all KBM did.

 21             MR. HEAD:    Okay.    Well then I don't understand

 22   what claims you still are making on the construction

 23   site.

 24             MR. N. JOLLY:    The air-conditioning system

 25   needs to be cleaned, it needs to be cleaned because

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            31
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   there's so much dirt going into the building but it

  2   doesn't need to be cleaned because it wasn't installed

  3   incorrectly.

  4             MR. HEAD:    Okay.

  5             THE COURT:   Okay you are saying it was not

  6   installed.

  7             MR. N. JOLLY:   It was installed correctly --

  8             THE COURT:   Okay.

  9             MR. N. JOLLY:   -- and the things that need to

 10   be done to the H.V.A.C. --

 11             THE COURT:   It's that you said not installed

 12   correctly.

 13             MR. N. JOLLY:   Did I say that?   I hate to do

 14   that.

 15             THE COURT:   So it was installed correctly in

 16   other words.

 17             MR. N. JOLLY:   That's right.

 18             THE COURT:   Okay.

 19             MR. N. JOLLY:   I sent an e-mail to Jason of

 20   our expert that said the same thing and he said if

 21   you'll just come say it on the record that's good enough

 22   for me.

 23             MR. HEAD:    -- I guess --

 24             THE COURT:   I'm seeing if it's on the list.

 25   Sir, state your name and state what you wanted to say.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              32
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1               MR. HEAD:    Gabriel Head for Descon.   In our

  2   response there's a section of, of Mr. Holder, which is

  3   Plaintiff's expert report, saying that specifically what

  4   he says is that there's design issues.

  5               THE COURT:    Who is Mr. Holder?

  6               MR. HEAD:    One of their experts.

  7               THE COURT:    Okay.

  8               MR. HEAD:    And then he says that this design

  9   issue should have been caught specifically with the VAV

 10   boxes and it wasn't constructed in accordance with the

 11   code.    If they are saying that they are not making that

 12   claim any more, that would have been something that KBM

 13   Air did.

 14               MR. N. JOLLY:    The installer, the installer

 15   doesn't determine whether it follows code, it's the NEP

 16   Engineer.

 17               MR. WEST:    He just said it's a design issue.

 18               MR. N. JOLLY:    It's a design issue, Your

 19   Honor.

 20               MR. HEAD:    If that's what they are saying then

 21   the only claim that we have left against KBM Air was

 22   that in accordance with their subcontract they were

 23   supposed to provide us with insurance that had a

 24   certificate and named us as an additional insured and if

 25   he has that and I missed it.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              33
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1                               (Mr. West showing him a

  2                               document.)

  3              MR. WEST:    That was attached to your motion

  4   for summary judgment response.

  5              MR. HEAD:    It doesn't show us as an additional

  6   insured.

  7              MR. WEST:    Certificate holder?

  8              MR. HEAD:    That's right.    As a matter of fact

  9   I can show you exactly what it's supposed to look like

 10   and it's not there.

 11              MR. WEST:    Judge, if I may give this to you so

 12   you can take a look at it.

 13              THE COURT:    It does say certificate holder

 14   Descon Construction.

 15              MR. HEAD:    Your Honor, it says certificate

 16   holder but on the subcontract -- we are trying to find

 17   our response in all these motions.       (pause).

 18              MR. WEST:    Judge, if I may during the pause I

 19   don't want to waste any time.     We are going to make an

 20   argument that regardless of their position on the

 21   certificate, the reality is there's been no claims made

 22   against my client, whether they are listed as an

 23   additional insured or not, there's no damages related to

 24   that, and we should be let out on that issue.

 25              MR. HEAD:    If he's dropped his claims on that

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al                34
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   issue then --

  2               THE COURT:    He has.

  3               MR. HEAD:    -- then he's correct.

  4               THE COURT:    That's on the record so KBM

  5   Air-conditioning Motion for Continuance is now moot,

  6   that's taken off the list, KBM air-conditionings Motion

  7   for Leave to File a Motion for Summary Judgment is

  8   denied because it's now moot also.

  9               MR. HEAD:    Well but not on the construction

 10   issue.   He's supposed to provide us with insurance that

 11   names us as an additional insured and that certificate

 12   does not.   It just says we are a certificate holder.       It

 13   has to specifically name us as additional insured and he

 14   has provided no evidence that it does do that.

 15               MR. WEST:    And, Judge, our position would be

 16   again if there's no claims against us, they have

 17   suffered no harm.

 18               MR. HEAD:    That's not true.   It doesn't matter

 19   with additional insurance whether or not the claims are

 20   related to him.   They -- we are an insurance holder of

 21   their policy, whether it's their work or not.      He's now

 22   arguing the policy.      What we are arguing is that KBM

 23   didn't provide us with that, and they were supposed to

 24   pursuant to the contract.

 25               THE COURT:    And what does that have to do with

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              35
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   the motion for summary judgment?

  2             MR. HEAD:    He filed a No-evidence Motion for

  3   Summary Judgment, we filed a Breach of Contract action

  4   against him for failure to provide that insurance.

  5             MR. WEST:    But judge the, the insurance still

  6   only applies to the extent that you are making a claim

  7   against our scope of work.

  8             MR. HEAD:    No, that's the indemnity, not the

  9   insurance.

 10             THE COURT:    So what you are saying that they

 11   have to stay?

 12             MR. HEAD:    I am saying they didn't give us the

 13   insurance they are supposed to.      We are supposed to have

 14   that insurance and we have gotta Breach of Contract

 15   claim against them for failure to provide it.     Our

 16   damages haven't been determined because we don't know

 17   what they are yet.    It's a simple breach of contract

 18   action.

 19             THE COURT:    Aren't you putting the cart before

 20   the horse?

 21             MR. HEAD:    No.   No.   We are supposed to have

 22   the additional insurance right now as part of this case.

 23   Technically that additional insurance is supposed to

 24   have kicked up and be paying my client for the defense

 25   of this case.   Because we didn't get it, because he

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              36
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   didn't provide the certificate, my client doesn't have

  2   the benefit of what it contracted for.

  3               THE COURT:    Are you saying that naming them as

  4   a certificate holder is pretty much the same thing --

  5               MR. WEST:    Well that was --

  6               THE COURT:    -- as additional insured?

  7               MR. WEST:    That is my argument, Judge.   To me

  8   it sounds like he has a dispute with his insurance

  9   company.    This sounds like an insurance dispute which

 10   probably isn't really the matter that's before the Court

 11   today and in this trial.

 12               THE COURT:    It kind of does sound like that,

 13   sir.

 14               MR. HEAD:    But it's not.   It would be an

 15   insurance dispute if the insurance company would deny

 16   that they are an additional insured.        We don't have

 17   anything to give them.      Or, if they say you are an

 18   additional insured but we are not going to give you

 19   coverage.    That would be between me and them.     But in

 20   order to even get there I have to give them a

 21   certificate that shows us as being additional insured.

 22   That one does not.      It just says we are a certificate

 23   holder.    There's supposed to be a box on there that says

 24   additional insured.      It's not there.

 25               MR. WEST:    My argument would be that this,

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            37
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   this is an issue again that sounds like an insurance

  2   issue that's really not right for decision -- shouldn't

  3   really be a part of this litigation.   This is a

  4   construction defect case.

  5            MR. GUERRA:    If I may, I am John Guerra,

  6   co-counsel with Mr. West.   If the only issue that I am

  7   hearing then is whether or not we -- my client

  8   designated them as an additional insured, as I

  9   understand the pleadings then, Plaintiff is not making a

 10   claim that our client did anything wrong in terms of the

 11   installation.

 12            THE COURT:    Right.

 13            MR. GUERRA:    So therefore the claims against

 14   Descon have nothing to do with the work our client did.

 15   So they can't be held liable to the Plaintiff for any

 16   work our client did if the Plaintiff is not complaining

 17   about the work our client did.

 18            THE COURT:    I agree.

 19            MR. GUERRA:    So, therefore this whole

 20   insurance thing is moot to try and keep us in, and I

 21   don't see how our client should be held liable or kept

 22   in this case for trial.

 23            MR. HEAD:    They are mixing apples and oranges,

 24   Your Honor.   Pursuant to the contract that says that you

 25   are supposed to provide us insurance on -- it, it, it --

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al                38
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   it's, uh, paragraph nine of the subcontract.        Provide us

  2   insurance in accordance with exhibits 2 and exhibits 3.

  3   This is exhibit 3.      And if I may, Your Honor.   See what

  4   it says right there?      In the box it says name Descon LP

  5   as an additional insured.      Well KBM's does not do that.

  6   So, it's not an argument with the insurance company

  7   because we can't even make that argument yet.       They were

  8   supposed to provide us with that.      So, we have nobody to

  9   argue with.

 10               THE COURT:    But doesn't there have to be a

 11   finding first that they did something wrong before this

 12   kicks in?

 13               MR. HEAD:    That would be indemnity.   That

 14   would be the indemnity, which is a contractual

 15   indemnity.    Our insurance -- there doesn't have to be a

 16   finding --

 17               THE COURT:    So they are not saying they did --

 18   the Plaintiffs are not saying they did anything wrong

 19   but you are.

 20               MR. HEAD:    No, I am saying that irrespective

 21   of whether or not they did anything wrong, we are

 22   supposed to have insurance coverage because when you are

 23   an additional insured --

 24               THE COURT:    But what does that have to do with

 25   the summary judgment?      That's an insurance issue.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            39
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1            MR. HEAD:    It's not, though, it's a breach of

  2   contract issue between Descon and KBM.   It Has nothing

  3   to do with the insurance company.

  4            THE COURT:    But you are not before the Court

  5   on a breach of contract between the two of you.

  6            MR. HEAD:    I am.

  7            MR. WEST:    In the third-party petition they

  8   have pled a breach of contract.

  9            THE COURT:    Oh.

 10            MR. WEST:    I would note that in the contract

 11   they are relying on it mentions the fact that no

 12   payments will be approved for the subcontractor without

 13   these documents having been issued to the general

 14   contractor.   Look, we have been paid in full.   Obviously

 15   when we provided the certificate of liability to them at

 16   the time, they accepted it.   I -- look I don't think

 17   there's a breach of contract here.   Everybody was happy

 18   with it, we provided the documents that we were supposed

 19   to, it lists them as a certificate holder.   If, if there

 20   is an issue here it sounds like it's a dispute between

 21   them and the insurance company and that's something

 22   that's really not proper for this Court at this time and

 23   it doesn't seem like a reason to keep us in this case.

 24            MR. HEAD:    Your Honor, again he's mixing

 25   apples and oranges.   I don't have a dispute with the

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             40
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   insurance company.      I have a dispute with them because

  2   they didn't give me the insurance that I contracted for.

  3   I have no insurance company to go to.     Now I do have a

  4   breach of contract action against him --

  5               THE COURT:    Which you are claiming should be

  6   before this jury?

  7               MR. HEAD:    Yes, because it says specifically

  8   in our petition that they were supposed to provide us

  9   among other things insurance in accordance with the

 10   contract.   His motion is strictly about the work he

 11   performed, not about the insurance he provided.     His --

 12   this issue that he's arguing is not even before you in

 13   accordance with his motion.

 14               THE COURT:    But your breach of contract is no

 15   it about the work he performed, it's about the failure

 16   to provide this insurance.      Right?

 17               MR. HEAD:    It's about -- well I sued them for

 18   both.   He's come after the issues saying there's no

 19   defects with our work.      Plaintiff has dropped those

 20   saying he's not pursuing even us for the defects with

 21   the installation of the H.V.A.C.

 22               THE COURT:    Doesn't it make sense to sever

 23   that portion of the lawsuit, if you have this breach of

 24   contract issue, to prevent confusion of the issues with

 25   the jury?

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            41
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1            MR. HEAD:    But I don't know if --

  2            THE COURT:    Because they are going to be

  3   hearing this defect case which they are not making

  4   allegations about a defect in respect to their work, so

  5   if it's all a breach of contract between the two of you,

  6   with respect to these insurance issues, shouldn't it be

  7   severed in order not to confuse the jury?

  8            MR. HEAD:    No, it shouldn't because it's all

  9   the same -- it's all the same project, it's all the same

 10   contracts.   I am entitled to bring my compulsory

 11   counterclaim against him in this action.

 12            THE COURT:    Well I can sever it though.

 13            MR. HEAD:    Then we don't -- part of what we

 14   are telling the jury is we didn't get these things that

 15   we were supposed to get.   He breached the contract.

 16            THE COURT:    But you are going to be talking

 17   about insurance to the jury?

 18            MR. HEAD:    I am going to be talking about the

 19   breach of the contract to the jury.

 20            THE COURT:    That you are not a named policy

 21   holder in accordance a with the contract.

 22            MR. HEAD:    That's right.   I'm not.

 23            MR. WEST:    But, Judge, one last thing I would

 24   like to raise.   If you'll notice on that certificate of

 25   insurance, it was provided back to them, back to them at

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             42
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   the time of this contract.      More than four years have

  2   passed, the breach of contract statute of limitations is

  3   four years.   If that's their argument for how we

  4   breached the contract and not our scope of work,

  5   that's -- I mean at the end of the day that's an easy

  6   winner.

  7              MR. HEAD:    Well it's not an easy winner

  8   because these issues didn't even come up.        We are

  9   entitled to the discovery rules --

 10              THE COURT:    But didn't you contract this

 11   breach of the contract and this was signed in '05.

 12              MR. HEAD:    It was but we didn't know it was a

 13   breach until we got sued and then we went to go look --

 14              THE COURT:    Wouldn't you have noticed at the

 15   time that the contract was entered into that you were

 16   listed as a certificate holder and not an additional

 17   insured?

 18              MR. HEAD:    No.   Not necessarily.

 19              THE COURT:    Why not?   I mean you are noticing

 20   it now, what kept you from noticing it then?

 21              MR. HEAD:    The timing --

 22              THE COURT:    You all relied upon that and acted

 23   upon that when you did the work and you accepted --

 24              MR. HEAD:    We accepted the certificate.

 25              THE COURT:    -- the contract and the

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            43
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   certificate and you didn't argue back then that you were

  2   not listed as an additional insured, that you were just

  3   listed as a certificate holder, and now how many years

  4   later after 2005 are you bringing this up?

  5            MR. HEAD:    We didn't know we needed to bring

  6   it up or that it was a breach of contract until we got

  7   sued for defect.

  8            THE COURT:    But you accepted this document

  9   back when the construction was being performed.

 10            MR. HEAD:    But we didn't know it was a breach

 11   at the time.

 12            THE COURT:    But you would have still had to

 13   have had yourself listed as an insured and not as a

 14   certificate holder.   Correct?

 15            MR. HEAD:    We would have to have ourselves

 16   listed as a certificate holder but, Your Honor, it's

 17   a fact issue --

 18            THE COURT:    As an additional insured not as a

 19   certificate holder.   Not then.

 20            MR. HEAD:    It is a fact issue whether or not

 21   they named us as an additional insured on the policy.

 22   They didn't bring it up in their motion, they didn't

 23   bring up anything about payment and acceptance or

 24   anything like that in their motion, and so there's no

 25   evidence on this issue before the Court.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              44
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1               THE COURT:    Well --

  2               MR. HEAD:    Except for the our showing that

  3   they breached the contract per the contract provision

  4   article nine --

  5               THE COURT:    But how are you showing that?

  6               MR. HEAD:    We submitted the contract and their

  7   certificate that does not name us as an additional

  8   insured.    He's saying now that by merely being a holder

  9   you are.    Well that's a fact question.   It's not a legal

 10   question.

 11               MR. WEST:    Judge, I --

 12               MR. HEAD:    And he didn't raise statute of

 13   limitations either.

 14               MR. WEST:    The reality is they knew at the

 15   time that they weren't listed as an additional insured.

 16   It's a form that they require in their contract.     In

 17   fact we are not supposed to receive a single payment

 18   until we provide that form to them, but we are here

 19   today because we finished the project, we got paid, it

 20   was all done way back in 2005, 2006, and to be honest

 21   with you one of the reasons this wasn't raised as an

 22   issue is because our understanding of the breach of the

 23   contract initially was related to our scope of work,

 24   which has been resolved, thanks to Mr. Jolly's position,

 25   on behalf of the Plaintiff.      They are raising this kind

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            45
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   of as a red herring to try to keep us in the case, uh,

  2   and probably to be honest with you to keep our motion

  3   for continuance alive, when at the end of the day, uh,

  4   there's no harm.    They again -- our scope of work is not

  5   at issue.    We are out of the case.

  6               MR. HEAD:   Your Honor, he's arguing things

  7   that are nowhere in his motion, and he could have filed

  8   a response to my motion on these specific issues and he

  9   did not.    The fact of the matter is that KBM was sued

 10   over a year ago.    And, it's -- we sued them, we served

 11   them.   He filed a motion for summary judgment, we filed

 12   a response that said you breached the contract.    He's

 13   raised -- he has not raised any issue.    We have raised a

 14   fact issue saying that you did not provide that

 15   insurance that you were supposed to.    He has not put any

 16   evidence before the Court that that is wrong.    He's come

 17   up here and he's argued it but he's not given any

 18   evidence, and pursuant to a no-evidence motion, we have

 19   given you some evidence to raise a fact issue on whether

 20   or not that certificate gives us the insurance that we

 21   are supposed to.

 22               MR. WEST:   The last thing I'll say, Judge, is

 23   the contract which they attached to their own motion

 24   speaks to the fact that we weren't supposed to get paid,

 25   we weren't supposed to move forward with the project

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             46
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   unless we provided the certificate.       We provided the

  2   certificate, you have it in front of you, it was

  3   attached to their motion, it shows that in 2005 they had

  4   this information.

  5              THE COURT:    Right.

  6              MR. WEST:    The statute of limitations is going

  7   to apply to any argument that can be made.

  8              THE COURT:    Okay, so with reference to your

  9   Motion for Continuance you are dropping it, with

 10   reference to your Motion for Leave to File Late Motion

 11   for Summary Judgment you are dropping that -- or you are

 12   pursuing that and asking that I grant your Motion for

 13   Summary Judgment?

 14              MR. WEST:    That is correct, Your Honor.

 15              THE COURT:    Okay well then that relief that

 16   you are requesting is hereby granted.      Submit your

 17   orders to that effect.

 18              MR. WEST:    We have submitted them

 19   electronically, Your Honor, I believe they'll be with

 20   the Court already.

 21              THE COURT:    Okay.    So you submitted three

 22   orders.   With the -- or you are going to abandon the

 23   Motion for Continuance so that's going to be considered

 24   abandoned.

 25              MR. WEST:    That's correct.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            47
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1            THE COURT:    So then I am going to grant your

  2   Motion for Leave to File the Late Motion for Summary

  3   Judgment and grant the Motion for Summary Judgment and

  4   what about for the severance?

  5            MR. WEST:    Judge, we would ask that we be

  6   severed from the action.    I think that there's really no

  7   argument to keep us in at this point.

  8            THE COURT:    Okay, all that is granted.

  9            MR. WEST:    I have the orders here but I have

 10   also filed them electronically.

 11            THE COURT:    Yeah, well give them to me so I

 12   can have them so I can keep track of what I am doing.

 13            MR. WEST:    There you go, Judge.

 14            THE COURT:    I am going to sign these, Ana.

 15            THE COORDINATOR:     Okay.

 16            MR. WEST:    Obviously with the Motion to Sever

 17   we'll need a new case number.

 18            THE COURT:    Right.

 19            THE COORDINATOR:     It will be DC-14-46-A.

 20            THE COURT:    Go ahead and write it in here.

 21   Okay and then we had Plaintiff's Motion to Compel and

 22   for Sanctions.

 23            MR. OLIVEIRA:     Judge, if I could real quick

 24   just to get a clarification on your previous ruling, I

 25   understand you denied our motion to strike the 13th

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al               48
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   amended petition but we also have.

  2               THE COURT:    Yes.

  3               MR. OLIVEIRA:    Part of the relief we requested

  4   was to abate slash continue the case until the parties

  5   get served and, uh, I just needed a ruling on that as

  6   well.

  7               THE COURT:    I am going to deny that.

  8               MR. OLIVEIRA:    Thank you, Your Honor.

  9               MR. WALLA:    Your Honor if I may, Doug Walla

 10   for AAS Consulting.      Our motion is almost identical to

 11   Mr. West's motion.    We also had an H.V.A.C.-related

 12   party.   We did what's called the testing and air

 13   balancing.    We didn't install the A. C. we just tested

 14   it after it was installed and wrote up a report.       The

 15   Plaintiff has no claims against us whatsoever.        Uh, the

 16   only -- I filed a Motion for Summary Judgment seeking

 17   complete dismissal.      Uh, the -- Descon has their breach

 18   of contract claim against us, the same as he had with

 19   Mr. West.    The fundamental difference is we actually

 20   provided insurance.      Maryland Casualty Company now

 21   Zurich N. A., uh --

 22               THE COURT:    So your form says additional

 23   insured.    Rather than just certificate holder.

 24               MR. WALLA:    Yes, and they are -- and Zurich

 25   has actually picked up their defense and is defending

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              49
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   them now as an additional insured.     So, we --

  2               THE COURT:   Even though the Plaintiffs are

  3   claiming that you did not wrong.

  4               MR. WALLA:   That's correct.

  5               THE COURT:   Is that what you are doing or not?

  6               MR. N. JOLLY:   We have not suit AAS, Your

  7   Honor.

  8               THE COURT:   So you have no opposition to AAS's

  9   Motion for Summary Judgment and No-evidence Motion for

 10   Summary Judgment.

 11               MR. N. JOLLY:   Well on this party here the

 12   only thing I could say in response to that question is

 13   we take no position and, uh --

 14               THE COURT:   So you could care less if they

 15   stay in or stay out.

 16               MR. N. JOLLY:   As much as I like Doug, you

 17   know, if he deserves for his client to get out, I really

 18   haven't studied their motions, I frankly don't know

 19   anything about it.

 20               THE COURT:   You haven't made any claims

 21   against their client's work?

 22               MR. N. JOLLY:   I am not positive.   I don't

 23   know.    I could say I don't think we have, but right now

 24   I just haven't studied the test and balance issues.        I

 25   could confer with the attorney from our office that

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            50
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   covered the engineer's deposition and get back to you.

  2            THE COURT:    You might want to do that.

  3            MR. HEAD:    That would be helpful for us.

  4            MR. WALLA:    Mr. Jolly, your last petition

  5   dismissed AAS, made no claim against AAS.

  6            MR. N. JOLLY:    Correct.

  7            MR. WALLA:    So there's no pending claim

  8   against AAS.

  9            MR. N. JOLLY:    There no pending cross-claims

 10   against any of the subcontractors to any party that has

 11   a contract with my client.

 12            MR. WALLA:    And in my motion for summary

 13   judgment, Bill Holder and Ed Stacy, your two experts

 14   related to H.V.A.C., both said that they had no problem

 15   with the TAB work and that they -- no damage resulted

 16   from the TAB --

 17            THE COURT:    With reference to what work?

 18            MR. WALLA:    It's called TAB.

 19            MR. N. JOLLY:    Test and balance.

 20            MR. WALLA:    Test and balance.   TAB.   Once KBM

 21   or another contractor puts the air-conditioning system

 22   in, we go out and check the air flow, and the water

 23   flow, and the humidity and all that stuff --

 24            THE COURT:    Okay.

 25            MR. WALLA:    And their two experts -- and their

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              51
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   testimony is attached to my Motion for Summary

  2   Judgment -- uh, they said in the Exhibit A and B, I

  3   believe to my Motion for Summary Judgment --

  4             MR. SOLIS:    I take Doug at his word.   If

  5   that's what the testimony is, and it's attached the his

  6   motion for summary judgment, I take him at his word,

  7   provided he doesn't leave before we get to the, uh,

  8   motion to equalize strikes.

  9             THE COURT:    Okay.

 10             MR. WALLA:    I'll stay here for that.

 11             MR. N. JOLLY:    Thank you Doug.

 12             MR. WALLA:    And the other issue would be we

 13   actually did provide the insurance and Zurich is

 14   defending them so that whole argument that they had is

 15   moot.

 16             MR. HEAD:    If he's saying there's not any

 17   questions with respect to construction of their work

 18   then --

 19             THE COURT:    I would be listening to this, Mr.

 20   Jolly, if I were you.

 21             MR. N. JOLLY:    I'm listening, Your Honor.

 22             MR. HEAD:    If he's saying --

 23             THE COURT:    Because he said the word

 24   construction.

 25             MR. N. JOLLY:    That's what they do.    They, you

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              52
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   know --

  2               THE COURT:    I don't know, I mean, I just want

  3   to make sure because --

  4               MR. SOLIS:    If Doug has a summary judgment and

  5   points out that our experts have no complaints against

  6   AAS I take him at his word.

  7               MR. HEAD:    If what he's saying is that they

  8   don't have any issues with the construction and the test

  9   and balance, then no.

 10               THE COURT:    You are not opposed.   That's what

 11   he just said.

 12               MR. HEAD:    What is the difference between we

 13   contracted with them to perform the test and balance --

 14               THE COURT:    No, that's what I -- I'm asking

 15   you.

 16               MR. HEAD:    Yes.

 17               THE COURT:    I'm saying that's what he just

 18   said.   Do you agree with that?

 19               MR. HEAD:    I am trying to make sure I

 20   understand what Mr. Jolly says because each time I speak

 21   he stands up as though I'm wrong.      I am just trying to

 22   make sure I understand.

 23               MR. N. JOLLY:    Well let's put it this way.

 24               THE COURT:    He's not opposed to the summary

 25   judgment.   Are you?

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              53
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1               MR. HEAD:    Uh, (pause) Well we raised our

  2   issues and it's kind of the same as KBM.        Is what it

  3   sounds like.

  4               THE COURT:    So you are opposed to me letting

  5   them out.

  6               MR. HEAD:    It sounds like it's the same issue

  7   with KBM

  8               MR. WALLA:    Well it isn't, because your issue

  9   with KBM --

 10               THE COURT:    I am going to grant your Motion

 11   for Summary Judgment.

 12               MR. WALLA:    Thank you, Your Honor.    We did

 13   provide the insurance and you know that.        So I filed

 14   this --

 15               MR. HEAD:    I might agree then, but you got it.

 16               THE COURT:    Okay, gentlemen, stop talking to

 17   each other, that's inappropriate.

 18               MR. WALLA:    That order was e-Filed and it

 19   includes a severance.      Would that be a dash B?

 20               THE COORDINATOR:      Yes.   That would be B.

 21               THE COURT:    Okay.   Then we had Fairess

 22   Plumbing Company Inc.'s amended No-evidence Motion for

 23   Summary Judgment.

 24               MR. KASPERITIS:    Your Honor, Pat Kasperitis, I

 25   filed that on behalf of Fairess --

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              54
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1               THE COURT:    Am I pronouncing that right?

  2               MR. KASPERITIS:    Uh, Fairess --

  3               THE COURT:    Fairess.

  4               MR. KASPERITIS:    Yes.

  5               THE COURT:    Okay.

  6               MR. KASPERITIS:    Our motion is along the lines

  7   of the same thing.      Mr. Jolly has -- none of the experts

  8   for Mr. Jolly's -- that he's presented for deposition

  9   have made any complaints about the plumbing and that's

 10   what we pointed out on our summary judgment so on that

 11   end I don't believe there's a liability issue regarding

 12   Fairess.    The contractual issues are the same.    The

 13   summary judgment evidence that they filed in response.

 14               THE COURT:    Same thing.

 15               MR. KASPERITIS:    Each one -- they used three

 16   letters for my client, for my client -- not for my

 17   client, for my client's insurers about the insurance

 18   coverage.    Each of the three letters say you are an

 19   additional insured.      So, there's no dispute that they

 20   got named as an additional insured, and there's no

 21   dispute that the plumbing wasn't an issue in any of

 22   the--

 23               MR. HEAD:    We don't oppose.

 24               THE COURT:    Okay.   Well then Fairess' Motion

 25   for Summary Judgment -- the Amended No-evidence Motion

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al               55
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   for Summary Judgment is hereby granted.

  2               MR. KASPERITIS:    When I filed the motion and

  3   the orders I did not file an order of severance so I am

  4   going to have to supplement that.

  5               THE COURT:   Okay.    If you'll do that that will

  6   be C.

  7               THE COORDINATOR:     C.

  8               THE COURT:   Okay.    If you'll take care of

  9   that.

 10               MR. KASPERITIS:    Yes, Your Honor, I will.    Oh

 11   what they gave me was a front and back.      I think you

 12   want two pages, right?      I filed it electronically.

 13               THE COURT:   You can scan it, right?

 14               THE COORDINATOR:     Yes, we can scan it.

 15               THE COURT:   She can Stan it.   If you'll give

 16   it to me I'll sign it and she can scan it.

 17               MR. KASPERITIS:    Okay, thank you.

 18               THE COURT:   Thank you, sir.    Okay then we had

 19   Zarate Suspended Ceilings' Traditional and No-evidence

 20   Motion for Summary Judgment.

 21               MR. DUNNAHOO:    Mike Donnahoo and John Guerra

 22   here for Zarate.    Judge, similar issues in this case.

 23   My client, however, didn't have anything to do with the

 24   air-conditioning.    My client installed the suspended

 25   ceilings.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             56
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1            THE COURT:    Okay.

  2            MR. DUNNAHOO:    My client also installed some

  3   sheetrock walls and laid some roll insulation on top of

  4   the suspended ceilings.   We were sued for breach of

  5   contract, breach of warranty, negligence, et cetera.    In

  6   depositions none of Plaintiffs' experts and none of

  7   Plaintiff's fact witnesses had any complaints or

  8   criticisms of the work that Zarate performed.   Where it

  9   gets interesting is that Descon claims that Zarate

 10   Suspended Ceilings was responsible for installing what's

 11   called rigid board insulation inside CMU walls, two inch

 12   thick.

 13            THE COURT:    That's like the pink stuff?

 14            MR. DUNNAHOO:    Yes, two inch thick boards that

 15   are adhered somehow.   We never provided any submittals

 16   for that, that was never contemplated by the contract.

 17   The division that our roll installation belongs in is

 18   07212, a construction division, that's a standard.     Also

 19   that is board insulation, but we didn't do the board

 20   installation, and Descon knows that.   Descon bought the

 21   board insulation.   Descon knows that another subcontract

 22   in this case installed that rigid board installation

 23   because Descon's superintendent wrote down on a daily

 24   basis what each subcontractor was doing.   Again this is

 25   a traditional evidence -- motion for no evidence --

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al                57
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   traditional evidence motion for summary judgment sorry.

  2               THE COURT:    Ha, ha.   Traditional.   Right.

  3               MR. DUNNAHOO:    Exactly so in exhibit L I

  4   provided, uh, about 2 months worth of superintendent

  5   daily job logs where they indicate that it's some other

  6   subcontractor that's doing that.       So, not only do we not

  7   do it, not only do we not submit it, but Descon had

  8   knowledge back in August of 2004 that we weren't doing

  9   what this is that they are saying we were supposed to do

 10   now, installing the rigid board insulation.        The statute

 11   of limitations has run.      We didn't do the work, they

 12   know we didn't to it, but the statute has run.

 13   Negligence statute has run, all the other limitations

 14   have run.   There's no evidence.      Plaintiff is not making

 15   any claim against us for our work.       The only one is

 16   Descon and Descon knows who the correct party is, but

 17   Descon is going to try to keep us in this case anyway.

 18               MR. HEAD:    Your Honor, the Plaintiff has

 19   raised issues with the board installation, I think

 20   there's no dispute about that.       Pursuant to their

 21   contract Zarate's contract it does say they shall

 22   provide all labor, materials, equipment, and insurance

 23   for board and bat installation.       We are talking about

 24   the board insulation.      He's saying somebody else

 25   performed it.   They had a contractual obligation to us

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              58
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   to make sure that it was done in accordance with the

  2   subcontract and accordance with all building codes.

  3   That's what we contracted for.     What they are trying to

  4   get up here and say now is well somebody else installed

  5   it.   Well you had a contractual obligation to us to make

  6   sure it was installed correctly and that's, that's

  7   what's before the Court.     Whether it was -- the

  8   Plaintiff says it was not installed correctly, and

  9   that's what we had a contract with them to do.       Doesn't

 10   matter who installed it.     They had an obligation to us

 11   to make sure it was installed correctly.    It doesn't

 12   matter who bought it.     They had an obligation to us to

 13   install it correctly.

 14              THE COURT:    Did you hire two different people

 15   to do it or what?   Because the contract with them says

 16   they should do it but then why did the other people do

 17   it?

 18              MR. HEAD:    That is a fact question that I

 19   can't answer right now, but their contract says that

 20   they are responsible to us for it.

 21              Additionally, there's the insurance issue that

 22   we discussed with KBM that I am assuming that the Court

 23   is fully apprised regarding the certificates and

 24   additional insured information, so I won't go into that

 25   any further, but that's the issue is their contract --

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            59
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1               THE COURT:   Doesn't that seem like a factual

  2   question here?   If your contract says you are supposed

  3   to do it but somebody else did it, and his manager that

  4   was on the site was saying, you know, they checked

  5   somebody else in as doing it, but I mean you've gotta

  6   contract that says you are responsible.

  7               MR. DUNNAHOO:   When they see that we are

  8   allegedly not performing the work that we all allegedly

  9   agreed to do, when they see that we are not doing it,

 10   that gives rise to their claim against us for breach of

 11   contract.   The discovery rule does not apply to toll

 12   limitations because they had actual knowledge.    These

 13   are -- Exhibit L our documents that Descon produced --

 14               THE COURT:   You are claiming that somebody

 15   else did it, they hired someone else to do it, and they

 16   never asked you to go oversee and check and see if the

 17   other people were doing it right.

 18               MR. DUNNAHOO:   Exactly.

 19               THE COURT:   And your Traditional Motion for

 20   Summary Judgment Evidence supports that position.

 21               MR. DUNNAHOO:   Correct, Your Honor, and one

 22   more thing.   There is no evidence that we did the work.

 23   They are trying to say alternatively that since the

 24   Plaintiff is complaining that something was done wrong,

 25   that liability somehow flows to us.     Well there's --

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al                60
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1               THE COURT:    All of your evidence is attached

  2   to your Tradition Motion for Summary Judgment, okay?        So

  3   I am going to hold that in abeyance and look at all that

  4   and I will give you all a decision by this afternoon.

  5               MR. DUNNAHOO:    Thank you, Your Honor.

  6               MR. HEAD:    Thank you, Your Honor.

  7               THE COURT:    So I can look at the attached

  8   evidence.

  9               MR. HEAD:    And can I add one thing or are you

 10   finished with this?

 11               THE COURT:    No, go ahead.

 12               MR. HEAD:    I was going to say that he's only

 13   focusing on the labor aspect of it.       Now but there's

 14   another important part of it is was the installation

 15   done correctly.   We allege that there's nothing wrong

 16   with the installation, but the Plaintiff says there is

 17   something wrong with it.      So we just discovered that

 18   there was an issue with the installation last year.

 19               MR. N. JOLLY:    I just have a point.   I believe

 20   that the party that installed the actual bat

 21   installation was R & R.

 22               MR. DUNNAHOO:    I think it was actually Limon

 23   Masonry, that's what the Descon superintendent wrote

 24   down daily.

 25               MR. N. JOLLY:    Okay so R & R didn't do the

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al                61
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   bat.

  2              MR. DAVIS:     James Davis for R & R

  3   Construction.    This might be a good point to interject.

  4   I filed a No-evidence Motion for Summary Judgment.      In

  5   answer to your question Norman, R & R did -- the only

  6   section of sheet waterproofing which is the rigid board

  7   installation at the retaining wall, a $3,000 contract.

  8              MR. N. JOLLY:     Oh.

  9              MR. DAVIS:     My understanding is that the Limon

 10   Masonry did all the pink insulation for the remainder of

 11   the CMU walls.    So --

 12              MR. N. JOLLY:     I was just going to ask who.    I

 13   thought R & R did the bat -- the rigid board insulation.

 14              THE COURT:     NO, you are saying that who did

 15   it?

 16              MR. HEAD:    Well the person who is written down

 17   on the daily logs as actually installing it is Limon

 18   Masonry.   We have a contract with Zarate that says that

 19   they will install and it will be done correctly, so

 20   whoever installs it installs it.

 21              THE COURT:     Right.   I mean, I hear what you

 22   are saying.   So Perez was already let out on their

 23   motion for summary judgment.       Right?

 24              THE COORDINATOR:     That's correct.

 25              MR. N. JOLLY:     Yes, ma'am.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              62
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1               THE COURT:    So then we have third-party Perez'

  2   Second Traditional Motion for Summary Judgment and we

  3   took care of that.

  4               THE COORDINATOR:      That's been taken care of.

  5               THE COURT:    And then we have C. A. Ray and Son

  6   Painting Contractors Inc., Motion for Summary Judgment.

  7               MR. HINKLE:    Kyle Hinkle for C. A. Ray and Son

  8   Painting.

  9               THE COURT:    What's your last name, sir?

 10               MR. HINKLE:    Hinkle.

 11               THE COURT:    Hinkle okay.

 12               MR. HEAD:    I may be able to short cut this.

 13   These are kind of the same arguments brought up and if

 14   the Plaintiffs have month issue with the painting, then

 15   we don't need to discuss it.

 16               THE COURT:    Do you have any issue with C. A.

 17   Ray and Son Painting Contractor?

 18               MR. N. JOLLY:    Well, I mean, if counsel is

 19   telling us that the only thing C. A. Ray did was paint,

 20   that would be true, we would have no issues with the

 21   paint, assuming that's what their contract says.

 22               MR. HINKLE:    Yes.

 23               THE COURT:    So no one objects to letting them

 24   out.

 25               MR. N. JOLLY:    We don't.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             63
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1              THE COURT:    I am going to grant C. A. Ray and

  2   Son Painting Contractor's Motion for Summary Judgment.

  3   Then we have, uh -- let me take up all the summary

  4   judgments and then I'll look at the other motions.     R &

  5   R Construction Services', uh, No-evidence Motion for

  6   Summary Judgment.

  7              MR. DAVIS:    Yes, Your Honor, James Davis again

  8   for R & R Construction.     Uh, in the Plaintiff's most

  9   recent petition, as we have already discussed, they

 10   dismissed all of our claims against the subcontractors

 11   including R & R.    I think Descon, uh, has the only

 12   remaining claims and they include, uh, breach of

 13   contract, negligence, however in their response to my

 14   summary judgment the only evidence that they submitted

 15   was on the breach of contract for failing to provide

 16   insurance certificate.     Uh, I think we have discussed

 17   this.   My -- and I've gotta motion and order for

 18   severance, I think it's more proper in a declaratory

 19   judgment action to discuss the insurance issues between

 20   Descon and my client's insurers.

 21              MR. HEAD:    Your Honor, we have already argued

 22   this.   I think it's a breach of contract between the

 23   contractor and the subs, it doesn't relate to insurance,

 24   but since you heard us before I won't go into it.

 25              THE COURT:    I am going to grant R & R's Motion

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            64
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   for No-evidence Motion for Summary Judgment and that

  2   will be severed into D. now.

  3            MR. DAVIS:    Thank you, Your Honor, here's an

  4   order.

  5            THE COURT:    Thank you.

  6            MR. DAVIS:    Thank you.

  7            THE COURT:    Then we have, uh, Daniel Vasquez

  8   d/b/a Twin City Glass' No-evidence Motion for Summary

  9   Judgment and for Severance.

 10            MR. GUERRA:    John Guerra and Louis Gross for

 11   Twin City Glass.

 12            MR. GROSS:    Good morning, Your Honor.

 13            THE COURT:    Morning.

 14            MR. GROSS:    Your Honor, if I may.

 15            THE COURT:    Go ahead.

 16            MR. GROSS:    My client installed the exterior

 17   window system, the exterior doors, and the curtain wall

 18   system at the elementary school.    There have been no

 19   complaints about the doors or the curtain wall system to

 20   date from any of the Plaintiffs.    Plaintiff has not made

 21   a claim at this point against my client.

 22            THE COURT:    Well I am granting your Motion for

 23   Leave to File Late Motion for Summary Judgment by the

 24   way.

 25            MR. GROSS:    Thank you, Your Honor.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             65
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1            THE COURT:     Okay.    What is the, uh,

  2   Plaintiff's position here?      No allegations of anything,

  3   any wrongdoing?

  4            MR. N. JOLLY:     The Plaintiff is not making a

  5   claim against any of the subcontractors.

  6            THE COURT:     Okay.

  7            MR. N. JOLLY:     But, uh, I know that Twin City

  8   installed the windows, and there's plenty of complaints

  9   about the windows.   We make those claims directly to the

 10   party that we have privity with, so --

 11            MR. HEAD:     And --

 12            MR. N. JOLLY:     We are not agreeing that

 13   between City's scope of work is released.

 14            MR. HEAD:     Yes, Your Honor, the Plaintiff has

 15   made claims specifically with respect to clerestory

 16   windows and with respect to the window system installed.

 17   They are saying that --

 18            THE COURT:     So this is different than with any

 19   of the other subs that have been let out up to now

 20   because there are complaints.

 21            MR. HEAD:     Yes, Your Honor.

 22            THE COURT:     With reference to the work that

 23   Twin City Glass did.

 24            MR. HEAD:     Yes, Your Honor.

 25            THE COURT:     Okay.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            66
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1             MR. HEAD:    And I can show you the sections in

  2   the expert reports where they show -- where they allege

  3   leaks in the clerestory windows as another issue with

  4   respect to whether or not there was supposed to be a

  5   sill pan in the window system that they provided and

  6   installed, and Plaintiffs made complaints about both of

  7   these.   We had a subcontractor --

  8             THE COURT:    As are you.

  9             MR. HEAD:    Yes.

 10             MR. GROSS:    Your Honor, if we can break down

 11   the actual claims that the expert Joan Partida is

 12   making, we would argue that these are not any issues

 13   necessarily related to the clerestory window or the

 14   functioning of the clerestory window.   These are issues

 15   that are related to other subcontractors' work.   It just

 16   happens to be some leaking that was found in the area of

 17   the clerestory window.

 18             And, Your Honor, the only issue has been with

 19   one or two clerestory windows in this entire school.

 20   And specifically there's an argument that there's been

 21   deterioration of the ceiling joints there, Your Honor.

 22   Now this is ten years after the fact that somebody is

 23   coming in and saying your ceiling joints are gone.

 24   There's been expert testimony from Plaintiff's expert

 25   that that's basically the life of ceiling joints.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            67
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   Generally they don't even last that long, Your Honor,

  2   and there's been testimony that there's been no

  3   maintenance schedule with the ceiling joints from the

  4   school.   So, we would argue, Your Honor, that that's not

  5   necessarily any evidence of any wrongdoing on the part

  6   of my client.

  7              We also argue, Your Honor, that a sill pan was

  8   not utilized.    A different window system was in fact

  9   utilized for this particular school.   It's a system that

 10   actually costs more that utilized molients to drain off

 11   water as opposed to an aluminum framing sill pan system.

 12   Now this system was more expensive, it was installed by

 13   our client, it was approved by the architect, it was

 14   approved by the general contractor, Your Honor, and we

 15   would argue that this new system there's been no

 16   arguments that this new system in fact failed, uh, just

 17   that it wasn't done per, uh, the original contracts

 18   which were subsequently changed, Your Honor.   So, uh, we

 19   would argue that none of the evidence that has been

 20   presented has anything to do with, uh, the scope of work

 21   of my clients.

 22              MR. HEAD:   Your Honor, he filed a no-evidence

 23   motion saying there's no evidence.    These are all fact

 24   issues.   Mr. Partida stated in his deposition, he was

 25   asked do you see any leaking around the clerestory

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            68
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   windows, he says yes.    Now he also finds the reasons why

  2   and those are the ones I told you.

  3            THE COURT:     I am going to deny Twin City's

  4   Motion for Summary Judgment.

  5            MR. GROSS:     Thank you, Your Honor.

  6            THE COURT:     Is there any other summary

  7   judgments, traditional or no-evidence?     (pause) Okay I

  8   don't see any more.

  9            Okay, now we have a bunch of motions to strike

 10   and exclude expert testimony and motions to compel, so

 11   what I will take up --

 12            MR. GRIFFITH:     Your Honor, John Griffith for

 13   ERO as an administrative matter, uh, we have agreed to

 14   the severance for Perez Consulting Engineers, uh, and

 15   both, uh, Perez and ERO have dropped their nonsuit of

 16   their motions for sanctions and attorneys fees against

 17   each other.   The attorney for, uh, Perez wanted to leave

 18   and I told him I would make that announcement and we'll

 19   submit an order on the severance but we agreed to the

 20   severance.

 21            THE COURT:     Okay.

 22            THE COORDINATOR:       That would be then E?

 23   DC-14-46-E?   On the Perez?

 24            MR. GRIFFITH:     Perez motion for severance.

 25            THE COURT:     No, she's saying the new cause

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            69
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   number on the severed cause.      We hadn't given them a

  2   number?

  3              THE COORDINATOR:     No.

  4              THE COURT:   That would be E then.

  5              MR. GRIFFITH:   I will submit an order.

  6              THE COURT:   Okay.    Let's start with Limon

  7   Masonry's Motion to Strike Affidavit and Exclude

  8   Appraisal Report.   Are you all ready for that?

  9              MS. COOPERRIDER:     Yes, Your Honor.

 10   Essentially the issue with this --

 11              THE COURT:   You need to state your name for

 12   the record.

 13              MS. COOPERRIDER:     It's Brittany Cooperrider.

 14   The issue with the affidavit is that Thelma Ruelas, who

 15   works for the school district, signed an affidavit

 16   saying she's the maker and keeper of this appraisal

 17   report.   This was produced after Ms. Ruelas' deposition,

 18   even though the record was created before her

 19   deposition.   We never had a chance to question her about

 20   it at her deposition, and the issue is that I don't

 21   believe she's the appropriate person to be sponsoring an

 22   appraisal report because she didn't say in her

 23   deposition that she is an appraiser or made or kept

 24   these records.   I believe an appraisal was performed

 25   probably in anticipation of this litigation so the

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            70
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   Plaintiffs could prove up their damages and they are

  2   trying to introduce it through her, and I believe the

  3   more appropriate party would be whoever for American

  4   Appraisal had prepared that appraisal report, and all of

  5   that evidence is in the Motion To Strike.

  6               MR. SMITH:   If I could, I want at --

  7               THE COURT:   State your name.

  8               MR. SMITH:   Robert Smith for Descon.   Descon

  9   did join in and adopt, uh, Lemon's arguments and motion

 10   with regard to this, and I just have one thing I would

 11   like to add, if that's all right.     With regard to the

 12   appraisal -- purported appraisal report that she is, uh,

 13   supposedly discussing with regard to Ms. Ruelas'

 14   affidavit, Court should note it's attached to the motion

 15   and it's attached to the affidavit, is that it is

 16   two pages out of I believe a 48 page or 38 page

 17   document.   Uh, there is no appraisal attached to it,

 18   there is only, uh, the final dollar numbers.    Uh, it

 19   appears to be an insurance-related document, uh, for,

 20   uh, I assume renewals or insurability, but without

 21   having any of the other portions of that document or the

 22   attachments to that document we have no idea as to what

 23   it is.   They have basically excerpted the one -- the

 24   two pages --

 25               THE COURT:   So y'all didn't get that in

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             71
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   discovery?

  2            MR. SMITH:     We did not get that in discovery,

  3   Your Honor.

  4            THE COURT:     Did you request it?

  5            MR. SMITH:     We have requested it since it was

  6   attached as that document.      We have asked where's the

  7   rest of the document.

  8            MR. N. JOLLY:     We'll get that to them, but no

  9   one ever asked for an appraisal report ever in the

 10   litigation, and the Plaintiff produced it because it's

 11   their business record and Ms. Ramey is the custodian of

 12   that record because she's the business director.     School

 13   districts are required to insure their property for

 14   replacement cost and replacement cost for Grulla is

 15   relevant, uh, highly probative information because, uh,

 16   you have to know whether or not the damages for

 17   remediation exceed the replacement cost of the property

 18   because you can't get more than replacement costs for

 19   remediation in Texas.    So, the documents is a business

 20   record kept by the school district, uh, it's been

 21   properly noticed, there's a business records affidavit,

 22   timely, following the rules.      Uh, I can tell you the

 23   other 45 pages are, are the other properties.     Uh, but

 24   we will go get them and, uh, produce them.

 25            THE COURT:     Okay.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al               72
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1               MS. COOPERRIDER:   Your Honor, my objection

  2   would still be this is hearsay because it's being

  3   offered for proof that the building cost $60 million.

  4   We have never had a chance to question anyone who

  5   prepared the appraisal, and Ms. Ruelas is just -- I

  6   guess we have to accept it as truth that this is the

  7   fact.   We would like to see the underlying facts and be

  8   able to question whoever prepared this, how that was

  9   prepared --

 10               THE COURT:   Who prepared the appraisal?

 11               MR. N. JOLLY:   You know, we go to these

 12   depositions and if someone neglects to ask a question

 13   what's the replacement cost of this building according

 14   to Rio Grande City School District, that's not -- I

 15   can't force them to ask the appropriate questions.       This

 16   is something that's relevant to any remediation claim is

 17   whether the remediation exceeds the value of the

 18   property, whether it's a car, any improvement to real

 19   property.   Who did the appraisal?    I don't know the

 20   author of the appraisal but I know that the document is

 21   a business record kept by Rio Grande City School

 22   District in the ordinary course of business, and then

 23   they have to then take that number and insure the

 24   building with a replacement cost policy.

 25               MS. COOPERRIDER:   Your Honor, the key part of

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             73
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   the rule is made and kept by.      That's what the rule

  2   requires.    The affidavit sponsoring to be a hearsay

  3   exception made.    It wasn't made by Rio Grande City

  4   Schools.    It was made by American Appraisal, the

  5   appraisal company who prepared this report.     And if it

  6   had been disclosed we would have asked about that, we

  7   would have asked to depose someone from American

  8   Appraisal, but it wasn't pruduced until just on the eave

  9   of trial.

 10               MR. N. JOLLY:    The rule doesn't say made by.

 11               THE COURT:   Okay.   I am going to deny your

 12   motion to strike.    Okay.    Then we have Limon Masonry's

 13   Motion to Exclude Expert Testimony from John Kenneth

 14   O'Bannon.

 15               MR. GARZA:   Can I take the lead on that, Your

 16   Honor?

 17               THE COURT:   I'm sorry?

 18               MR. GARZA:   Can I take the lead on that?     I

 19   have one filed for C & M Contracting.

 20               THE COURT:   Okay sure.

 21               MR. SMITH:   And Descon.

 22               THE COURT:   So these are similar -- these

 23   are -- all these three defendants are all filing motions

 24   to exclude the testimony from John Kenneth O'Bannon.

 25               MR. SMITH:   Yes, Your Honor.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            74
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1              THE COURT:   Okay, well go ahead and state that

  2   on the record.   Which defendants are pursuing this

  3   motion?

  4              MR. SMITH:   Your Honor, Robert Smith for

  5   Descon.   Descon has joined in the motions filed by the

  6   other two parties.

  7              THE COURT:   Which is Limon, Descon and who

  8   else?

  9              MR. GARZA:   C & M Contracting Inc.

 10              MR. GRIFFITH:   And ERO, Your Honor.

 11              THE COURT:   Okay.    Here's Descon's.

 12              MR. GRIFFITH:   They are all the same motions.

 13              THE COURT:   So it's Descon's, Lemon's, and who

 14   are the other two defendants that joined in?

 15              MR. GRIFFITH:   ERO.

 16              THE COURT:   ERO and who else?    ERO, Limon,

 17   Descon and?

 18              MR. GARZA:   C & M Contracting.

 19              THE COURT:   C & M.

 20              MR. GARZA:   Yes, Your Honor.

 21              THE COURT:   Okay.

 22              MR. GARZA:   Your Honor, may I provide you with

 23   a courtesy copy of what was e-Filed?

 24              THE COURT:   Sure.

 25              MR. GARZA:   And there's two cases behind the

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            75
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   motion, Your Honor.

  2            THE COURT:    Okay.

  3            MR. GARZA:    As I understand the present

  4   posture with the Court's prior rulings, and what has

  5   been stated by Plaintiff's counsel's statements, when we

  6   filed that motion there was no -- there was a

  7   cross-claim against all the subcontractors.   My client C

  8   & M is a subcontractor.   The school district has made it

  9   clear there's no claims being made against the

 10   subcontractors.   So, the remaining claims against me are

 11   by Descon, which was the general contractor with which I

 12   had a contract.   They are seeking breach of contract,

 13   contribution, indemnity, all that from us.    But this

 14   motion is still extremely important to my client because

 15   the claims that the Plaintiff is making against Descon,

 16   if it prevails on the claims dealing with the roof

 17   system -- my client did the roof.   If it prevails on the

 18   claims dealing with the roof that potential figure or

 19   amount could be assessed against me if Descon prevails

 20   on its claims against me.

 21            THE COURT:    Okay.

 22            MR. GARZA:    I know the Court has a lot of

 23   documents in front of it.   The Court has heard a lot of

 24   things and I could -- what we did, Your Honor, is I went

 25   through Mr. O'Bannon's testimony and highlighted his

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              76
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   testimony and I would like to just repeat it for the

  2   Court, but I am going to give you the real short version

  3   of what Mr. -- of what my motion says.

  4            THE COURT:   Okay.

  5            MR. GARZA:   Mr. O'Bannon acknowledges he has

  6   no specialized knowledge, training, skill, or experience

  7   dealing with roofs, roof systems, or roof installations.

  8   Mr. O'Bannon picks up the phone one day, calls a buddy

  9   of his, and says can you prepare a quote for me on

 10   replacing the roof system at Grulla Elementary?       And

 11   I'll assume that this buddy has, you know, knowledge

 12   about roofs and stuff.   That buddy then prepares a

 13   one-page quote, which is attached as Exhibit A to my

 14   motion, Your Honor, (pause) Should be there.

 15            THE COURT:   What exhibit did you say?

 16            MR. GARZA:   I think it's Exhibit A.

 17            THE COURT:   I have Exhibit B right after the

 18   end of your motion, and that's the videotape deposition.

 19            MR. GARZA:   It's attached there but I want to

 20   get the -- here it is.   23-C.    Here, Your Honor.   Your

 21   Honor this is, uh, co-counsel with me *Monica Wilkins.

 22            MS. WILKINS:    Hello.

 23            MR. GARZA:   This is what the Plaintiff -- or I

 24   am going to say not the Plaintiff, but this is what

 25   someone is going to try to show against my client.      This

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al                77
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   one-page document, not even signed by Mr. McIntyre.        Now

  2   this is what it is.      So then I put in my motion and I

  3   went through a series of detailed questions with

  4   Mr. O'Bannon, and what I just want to do is highlight --

  5               THE COURT:    Y'all can sit down back there.

  6               MR. GARZA:    I want to highlight in my argument

  7   right now, uh, there's a lot of quotes out of -- you can

  8   see my motion is not very long, Your Honor, and I

  9   attached the relevant parts, but as to this one-page

 10   document I asked him specifically.      "He did no

 11   independent investigation to confirm the validity of

 12   those figures?"   He said he does not consider himself an

 13   expert on roofing systems, that he has no specialized

 14   knowledge concerning installation or construction of

 15   roofing systems, and that he "has no specific training

 16   dealing with the installation or construction of roofing

 17   systems."   That quote is meant to be a complete

 18   replacement of the roof system that's been there through

 19   ten years and weathered various storms.     It goes on and

 20   I ask him as to that one-page quote on page six of my

 21   motion.   I am citing from his testimony.    Uh, he did not

 22   receive any other documents to support that quote from

 23   Mr. McIntyre, he did not do any of the independent

 24   investigations to confirm the validity of Mr. McIntyre's

 25   figures, he has no documents in his file confirming

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            78
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   Mr. McIntyre's quote, he does not know what methodology

  2   was used to come up with the figures on his quote, he

  3   has no documents that Mr. McIntyre relied on for his

  4   calculation on his quote.    He does not know what

  5   publications, if any, Mr. McIntyre relied on for his

  6   calculation and his quote.    He has no idea what

  7   treatises, if any, Mr. McIntyre relied on for his

  8   calculations.   He has no idea what books, if any,

  9   Mr. McIntyre relied on for his calculations.     He has no

 10   figures from Mr. McIntyre for labor to perform the

 11   replacement of the roof, and he did no independent

 12   investigation to determine what the labor cost would be

 13   for replacing the roof.   O'Bannon has no information on

 14   prices that will be needed for the materials to be used

 15   to replace the roof at Grulla Elementary School.     In my

 16   motion I also point out, uh, that, uh, he had no

 17   knowledge whether Mr. McIntyre had ever built or worked

 18   on the school building in South Texas including Starr

 19   County.   Uh, doesn't have any idea about what

 20   Mr. McIntyre may have done in South Texas.   What

 21   Mr. O'Bannon has done is has been basically an estimator

 22   for 32 years.   What he did is he got information from

 23   different sources and some of the other parties will

 24   address some of his points, but it's clear under the

 25   case law, Your Honor, and I know there's a limit of

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            79
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   time.   His testimony --

  2               THE COURT:   Well whatever we don't finish by

  3   noon we can take up at 1:30 because I've gotta to swear

  4   a new attorney in at lunch time.

  5               MR. GARZA:   His testimony, Mr. O'Bannon's

  6   testimony, as to my client C & M and as to the issues of

  7   roof repair and roof replacement, constitutes no

  8   evidence.   Now there's a lot of cases cited and I don't

  9   need to tell the Court because the Court knows very

 10   well, you know, the Robinson and Daubert and stuff.

 11   What I do have, Your Honor, are two cases involving your

 12   predecessor, cases here from the 229th District Court,

 13   which were reversed and rendered because they let in

 14   expert testimony which should not have been allowed in.

 15   And I know the Court's time is valuable and the last

 16   thing you would want to do is have to try a case for

 17   several weeks and then at the end just reversed and

 18   rendered because expert testimony came in that should

 19   not have come in.

 20               THE COURT:   And the Plaintiff shouldn't want

 21   that either.

 22               MR. GARZA:   And the Plaintiff should not want

 23   that either.   There's two cases.    One was Texas Mutual

 24   Insurance Company and I provided the Court with copies

 25   of those cases.   That's a workers comp case and it dealt

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            80
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   with medical, uh, causation.

  2            THE COURT:   Which case is that?

  3            MR. GARZA:   Texas Mutual, but I am no not

  4   really going to speak to that one very much --

  5            THE COURT:   Okay.    That's 143 SW 3rd, 117.

  6            MR. GARZA:   They are both reversed and

  7   rendered from the 229th, your Court predecessor, both

  8   writ denied or review denied by the Texas Supreme Court.

  9   The one I would like to show to the Court would be the

 10   Goodyear case, Your Honor.

 11            THE COURT:   Okay.

 12            MR. GARZA:   And if you go to page 9 of the

 13   Goodyear case -- and I will point out that the Plaintiff

 14   had filed a response to my motion to exclude Mr. uh,

 15   O'Bannon and Mr. O'Bannon talks about how he's been

 16   there for 32 years and done estimating and so forth.

 17   And as I read this case I sort of came to the conclusion

 18   that I could take a little part of this decision.    If

 19   the Court goes to the bottom of page 9 where the foot

 20   note 116 starts.

 21            THE COURT:   Okay.    I see that.   Talks about

 22   this expert that was excluded and resulted in the

 23   reversal and rendering of the case.    Yet a man that had

 24   a bachelor's degree in chemist, a Master degree in

 25   Polymer Science and Engineering -- he had a lot of

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            81
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   credentials.   And it goes on and says, "Although Crate's

  2   background includes research generally into the adhesion

  3   of properties of various materials, none of his

  4   experience is specific to tires.    He has no background

  5   in tires, does not consider himself an expert on them.

  6   He admitted the vast amount of his experience in failure

  7   analysis has been related to products other than tires."

  8            And then you go further down and you get to

  9   about 7 or 8 lines up it says where the Court finds it

 10   says, "Although this background may have enabled Crate

 11   to discuss adhesion failures generally, he was not

 12   qualified to opinion on the specifics of the actual

 13   subject matter for which he was called to testify.

 14   Accordingly we hold that Crate was not qualified as an

 15   expert in the field of tire failure analysis, therefore

 16   his testimony amounts to legally insufficient evidence

 17   to a manufacturing defect."    And very simply, Your

 18   Honor, uh, if the Court would take the time and read the

 19   motion entirely it basically says you have an expert who

 20   has no specialized knowledge, training, et cetera in

 21   roofing systems.   He gets a one page quote that the

 22   Court has in front of you.    He says, "I have no on his

 23   supporting documentation."    And even if I concede to the

 24   other parties that he has 30 or 32 years of experience

 25   as a cost estimator, he would sort of be like Mr. Crate.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             82
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   He may have been a cost estimator for 32 years just like

  2   Mr. Crate may have been talking about adhesion issues

  3   for 32 years or many years, but he was not an expert in

  4   this particular field.     Mr. O'Bannon didn't get up and

  5   say I am an expert on roofs, I know what it costs to

  6   replace a roof, I replaced a hundred roofs in my

  7   lifetime, none of that.     And that in a nutshell, Your

  8   Honor, is our argument.

  9               So he would move to strike and exclude all

 10   this testimony, his testimony as it relates to roof and

 11   roof repairs.

 12               THE COURT:   Okay.    Mr. Jolly?

 13               MS. COOPERRIDER:     Your Honor, I would just

 14   like to say we join Mr. Garza's argument.       This is

 15   Limon --

 16               THE COURT:   Right, it's on the record that all

 17   four defendants joined in that argument.

 18               MS. COOPERRIDER:     We have our own motion

 19   pending.    We just have to put on our own summary

 20   judgment evidence.    The one page quotes are the same --

 21               THE COURT:   I mean, if it's the same argument

 22   I get it.

 23               MS. COOPERRIDER:     Okay.   Thank you, Your

 24   Honor.

 25               THE COURT:   Okay.    Mr. Jolly?

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             83
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1            MR. N. JOLLY:     Yes, Your Honor.   I believe

  2   Mr. Garza started out explaining that Kenny O'Bannon is

  3   not a roofer.    That's true.   He's an estimator.   He's

  4   not a mason.    He's not an H.V.A.C. installer, he's an

  5   estimator.

  6            THE COURT:     What is an estimator?

  7            MR. N. JOLLY:     An estimator calculates

  8   remediation costs.

  9            THE COURT:     And that's all he does.

 10            MR. N. JOLLY:     That's right.   And he relies on

 11   the other experts who opinion whether or not the work is

 12   necessary, and this gentleman opines on whether or not

 13   the charges are reasonable in our community.

 14            THE COURT:     Do you have another guy that's

 15   doing the roof issues?

 16            MR. N. JOLLY:     Correct.

 17            THE COURT:     Do you?

 18            MR. N. JOLLY:     Yes, Your Honor.

 19            THE COURT:     And he's listed as an expert also?

 20            MR. N. JOLLY:     Yes, Your Honor.

 21   Mr. O'Bannon --

 22            THE COURT:     He's going to talk about the same

 23   thing pretty much?

 24            MR. N. JOLLY:     The other expert is the one who

 25   says that the work is necessary.      And the case --

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             84
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1              THE COURT:   And does not talk about how much

  2   it's going to cost or does also talk about how much it's

  3   going to cost?

  4              MR. N. JOLLY:   The other experts can rely upon

  5   the estimator, and the estimator can rely upon the

  6   people who say the work needs to be done.      So, they

  7   all --

  8              THE COURT:   But what I am saying does the

  9   roofer also talk about how much it's going to cost or he

 10   just says what needs to be done?

 11              MR. N. JOLLY:   They can do both.    They can do

 12   both.

 13              THE COURT:   Okay.

 14              MR. N. JOLLY:   There is no redundancy because

 15   the roof expert is relying upon the estimator and vice

 16   versa.   I will point out this is not a comp case and

 17   medical causation is not relevant.    Tire tread

 18   separation is a whole other gig.    There's a case if you

 19   haven't heard of is called McGinty versus Hennen.

 20              THE COURT:   Do you have the cite?

 21              MR. N. JOLLY:   It's a June -- Texas Supreme

 22   Court, June 29th, 2012.    That is the landmark case on

 23   construction estimators testifying in Texas.

 24              THE COURT:   What is the, uh, what's the style?

 25              MR. N. JOLLY:   M-C-G-I-N-T-Y.   And I apologize

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al                85
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   I don't have the case with me.

  2               THE COURT:   Okay.

  3               MR. N. JOLLY:    McGinty versus Hennen,

  4   H-E-N-N-E-N.    Real interesting case.   The estimator on

  5   that case had actually estimated some pending matters

  6   that we had, and we immediately terminated him and

  7   located someone else and low and behold we found Kenny

  8   O'Bannon.    So, we actually acted on this case and made

  9   sure we located someone that was appropriate.

 10   Mr. O'Bannon's line item response to every complaint

 11   about his testimony is on Exhibit A to our response.       He

 12   goes through and explains in the italics portions.        It's

 13   an affidavit.    He explains his response to every

 14   complaint that's been made.

 15               The other complaint that the estimate or the

 16   quotes from subs are on one page.      I think the other

 17   complaint was he didn't take any measurements and that's

 18   true.    He may have taken some measurement, but for the

 19   most part he doesn't take measurements.     He doesn't need

 20   to.   He has the plans.     The measurements are on the

 21   plans.    So the fact that the man didn't measure

 22   everything in the building is irrelevant.     He has all

 23   the measurements.    The complaint about the estimate or

 24   the estimates from subs for the mason or roofer or

 25   whoever that Kenny accumulates from the people that he

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            86
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   can trust and know are reliable in the community, the

  2   complaint that it is on one page is really -- doesn't

  3   have much merit, and the reason I say so is because each

  4   of those for the various trades and portions of work for

  5   the remediation, they may have been on one page and then

  6   he ends up with numerous pages, and come to find out

  7   when the architect was estimating this building before

  8   they ever built it, the architect, who is not an

  9   estimator, the architect used one page to estimate the

 10   entire costs for the whole building.

 11            THE COURT:   Well I mean I have found that

 12   there's a lot of people that say a lot of things but end

 13   up saying nothing.

 14            MR. N. JOLLY:     Right.

 15            THE COURT:   And there's some people that say a

 16   few words and say a lot.

 17            MR. N. JOLLY:     Right.

 18            THE COURT:   So.

 19            MR. N. JOLLY:     Exactly.   Exactly and it turns

 20   out that Mr. Ochoa used some national standards, Kenny

 21   O'Bannon uses national standards, R. S. means.    It turns

 22   out Mr. Ochoa was almost spot on to maybe the tune of

 23   200, 300 thousand dollars and this is the pre-bid

 24   formulation for raising the money, coming up with the

 25   plan and going out for bid.   I mean, the one thing

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             87
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   Mr. Ochoa did do right was he got the estimate pretty

  2   close.

  3               THE COURT:   Is this mine or yours?

  4               MR. N. JOLLY:   You can have it.   And he did

  5   that on one page.   So, I don't think that just because

  6   he has a single page --

  7               THE COURT:   I am going to read the cases.

  8               MR. N. JOLLY:   Yes, Your Honor.

  9               THE COURT:   I am going to read the cases as

 10   submitted by Mr. Garza and I am going to read that, uh,

 11   case that you say is a landmark case for estimators, and

 12   then I will make a decision with reference to that.

 13               MR. GARZA:   May I briefly respond, Your Honor?

 14               THE COURT:   Of course.   Of course.

 15               MR. GARZA:   I didn't bring Mr. Lewis'

 16   deposition, but he was their roof expert that talks

 17   about that the roof needs to be replaced.      My

 18   recollection is that he as well as the other -- well I

 19   am just going to talk about the roof.     He was not going

 20   to give opinions on the cost of the repair or replacing

 21   the roof.   He deferred to Mr. O'Bannon.

 22               THE COURT:   Okay.

 23               MR. GARZA:   Mr. McGuire, the one-page estimate

 24   that you have for the roof, he's not listed as an expert

 25   for the Plaintiff, and so Mr. O'Bannon is relying on

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            88
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   hearsay from Mr. -- from the -- on that one page to give

  2   his testimony.   Again it's going to be very simple.

  3   They are expecting him to get up there --

  4             THE COURT:   So Mr. McGuire is not an expert?

  5             MR. GARZA:   He's not an expert, he's not

  6   identified as an expert in this case.   All his -- I mean

  7   what Mr. O'Bannon is going to tell us is hearsay that

  8   he's relying on from that person.    But when I asked him

  9   show me what you got from this person, he got nothing.

 10   And we are a week from trial so it's too late for them

 11   to go supplement and start sending me stuff.

 12             THE COURT:   McGuire is not an expert?   Or

 13   listed as an expert?

 14             MR. GARZA:   I keep saying McGuire but whatever

 15   his name is.

 16             THE COURT:   Is it McGuire or McGinty -- what

 17   is the?

 18             MR. N. JOLLY:    McGinty is the Supreme Court

 19   case.

 20             THE COURT:   Right.

 21             MR. N. JOLLY:    Well we --

 22             THE COURT:   But the one page from the -- that

 23   was given to the estimator that the estimator relied

 24   upon, what was his name?

 25             MR. N. JOLLY:    I don't know who he's referring

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             89
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   to.

  2               MR. GARZA:   I'm sorry, McIntyre.

  3               THE COURT:   McIntyre.

  4               MR. GARZA:   Jerry McIntyre is not designated

  5   as an expert by anybody in this case and I don't have

  6   anything on him.   All I have is this one-page quote

  7   that's supposed to support a $675,000 replacement of the

  8   roof.   And you can read the references in Mr. O'Bannon's

  9   deposition, and it's clear when I asked him what do you

 10   have from Mr. McIntyre, he has zero, except the one-page

 11   document.   So my examination of him is what do you have

 12   for Mr. McIntyre --

 13               THE COURT:   So you are saying he's not relying

 14   on another expert.

 15               MR. GARZA:   He's not relying on another

 16   expert, he's relying on a page that was sent to him.

 17               MR. N. JOLLY:   We disclosed, retained

 18   testifying experts, they produced their reports, the

 19   bases for their reports are attached.    This is the way

 20   estimating is done by getting quotes.

 21               THE COURT:   Okay, well I'll look at the cases

 22   and make a decision.

 23               MR. GARZA:   Thank you, Your Honor.

 24               THE COURT:   Okay and then we have about 15

 25   minutes left so I don't know if there's something we can

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            90
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   take up in 15 minutes.   Like I say I would rather work

  2   through lunch all the time, but today I've got to swear

  3   somebody in.   So we have got Plaintiff's Motion to

  4   Compel and for Sanctions.    We've got Plaintiff's Motion

  5   to Compel Defendants to Produce the Full and Complete

  6   Expert Files and Everything Referred to and Relied upon.

  7            MR. N. JOLLY:    That's been satisfied, Your

  8   Honor.

  9            THE COURT:    Okay, that one has been satisfied.

 10            MR. N. JOLLY:    Correct.    Those are both

 11   Plaintiff's motions.

 12            THE COURT:    Were both satisfied?

 13            MR. N. JOLLY:    Well they were late but I am

 14   not going to have a tantrum about it.

 15            THE COURT:    You are not going to push the

 16   Motions to Compel and for Sanctions.

 17            MR. N. JOLLY:    I got it.

 18            THE COURT:    Okay.

 19            MR. N. JOLLY:    You know, I, I, I am not going

 20   to push it.

 21            THE COURT:    Okay, then we've got Descon's

 22   Motion, uh, to Strike or Exclude Evidence on Plaintiffs

 23   Claims for Attorneys Fees.     How long is that going to

 24   take to argue?

 25            MR. FARWELL:    Your Honor, Jay Farwell for

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            91
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   Descon.   Not very long.

  2               THE COURT:    Well I mean if you say five

  3   minutes --

  4               MR. FARWELL:    I think --

  5               THE COURT:    -- if everyone can argue and

  6   respond within five minutes I'll take it up, if not we

  7   are going to take up after lunch because I have to go

  8   and swear this guy in.

  9               MR. N. JOLLY:    It will take seconds only.

 10   There's a new Supreme Court case that just came out I

 11   believe April that says --

 12               THE COURT:    What is the cite of that case?

 13               MR. N. JOLLY:    I don't believe I know the

 14   cite, I know it was just last month and a lot of

 15   people --

 16               THE COURT:    Maybe not a cite but a number.

 17   Something I can refer to.

 18               MR. N. JOLLY:    It's in their motion.

 19               MR FARWELL:    Your Honor, the Plaintiff --

 20               THE COURT:    State your name.

 21               MR FARWELL:    Jay Farwell.

 22               THE COURT:    Okay.

 23               MR FARWELL:    The Plaintiff in this case has

 24   pled for and is asking for attorneys fees under section,

 25   uh, what is it 38.001 of the Civil Practice and Remedies

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al               92
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   Code for a breach of contract.

  2               THE COURT:    And you are arguing for Descon.

  3               MR FARWELL:    I am arguing for Descon.

  4               THE COURT:    Because it's Descon's motion.

  5               MR. FARWELL:    Descon Construction is a limited

  6   partnership.

  7               MR. N. JOLLY:    We agree.    We agree that the

  8   Supreme Court says you can't collect attorneys fees from

  9   a partnership.

 10               MR FARWELL:    Your Honor, if I could finish my

 11   argument.

 12               THE COURT:    Well if he's agreeing to -- he's

 13   agreeing that he's not entitled to attorneys fees.

 14   Right?

 15               MR. N. JOLLY:    From the partnerships.   You are

 16   entitled to recover attorneys fees from corporations or

 17   people and that's it.

 18               THE COURT:    Is that your argument?

 19               MR FARWELL:    That's my argument, Your Honor.

 20               THE COURT:    So then if --

 21               MR FARWELL:    If he is not -- if he'll just say

 22   on the record that he's not, uh, seeking attorneys fees

 23   from any partnerships, then, uh --

 24               MR. N. JOLLY:    I didn't say general partners,

 25   I didn't say people, I didn't say corporations.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            93
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  1              THE COURT:    Okay.   Well let's make it very

  2   clear exactly what you are saying, Mr. Jolly, because I

  3   don't want to be back here on this issue.

  4              MR. N. JOLLY:    Right.   No one can collect

  5   attorneys fees in Texas any more against a partnership

  6   or an LLC that is a pass through partnership.      But if

  7   the LLC is a corporation you can.

  8              THE COURT:    Do you agree with that?

  9              MR FARWELL:    Yes, Your Honor.

 10              THE COURT:    Okay.

 11              MR. N. JOLLY:    You can collect fees from a

 12   corporation and a person.

 13              THE COURT:    Well then --

 14              MR. N. JOLLY:    And that's it.

 15              MR FARWELL:    Just so the record is clear

 16   though, then the Plaintiff is not seeking attorneys fees

 17   from Descon Construction LP in this case.

 18              MR. N. JOLLY:    Well I think I made it real

 19   clear.   Descon Construction LP is a partnership but it's

 20   partners are responsible for the attorneys fees if it's

 21   a person or a corporation.

 22              MR FARWELL:    Well I don't agree with that

 23   statement of the law but I want to make sure I

 24   understand that the Plaintiff is not seeking --

 25              THE COURT:    Okay well submit --

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             94
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1              MR FARWELL:    -- attorneys fees from a

  2   partnership.

  3              THE COURT:    Submit an order that both of you

  4   sign that says he's not pursuing attorneys fees as

  5   against any partnership in accordance with the last, uh,

  6   I guess decision --

  7              MR. N. JOLLY:    Well it's like this.   If a

  8   partnership can't pay its debts then it's partners owe

  9   them.   So we got to make it real clear that he's not

 10   going to put together something knocking out the

 11   Plaintiff's right to recover attorneys fees from people.

 12              THE COURT:    Right.

 13              MR. N. JOLLY:    Or corporations.

 14              THE COURT:    Right.

 15              MR. N. JOLLY:    Who were the owners, successors

 16   and partners --

 17              THE COURT:    So my ruling is as to any person

 18   or corporation he can, insofar as the law allows him to

 19   collect attorneys fees or recover attorneys fees or

 20   claim attorneys fees against thoseentities, but as to

 21   any partnerships, which would be in violation of the

 22   latest Supreme Court ruling, he cannot.    Is that

 23   correct?

 24              MR FARWELL:    Very good, that's very clear,

 25   Your Honor.    Just for the record --

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al                95
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  1              THE COURT:    Okay and submit an order that says

  2   that and but do give me the case.      Or that, uh, the name

  3   of the case.

  4              MR FARWELL:    Flemming and Associates versus

  5   Barton, 425 SW 3rd, 560 --

  6              MR. N. JOLLY:    No, it's the later case.

  7              MR FARWELL:    It's a 14th Court of Appeals case

  8   in 2014.

  9              MR. N. JOLLY:    No, sir.   No, sir.   The Supreme

 10   Court case, that one had petition granted.        The Supreme

 11   Court case was after that case wasn't it?     No?    While

 12   the petition was pending?     Isn't there a Supreme Court

 13   case cited?

 14              MR FARWELL:    Petition has been filed in the

 15   case.

 16              MR. N. JOLLY:    If that's not the correct case

 17   I'll give it to you.

 18              THE COURT:    Okay.

 19              MR FARWELL:    I believe that could be the

 20   correct case.

 21              THE COURT:    Okay.   Anything else gentlemen?    I

 22   mean that's all I had on my list.      Is there more stuff?

 23   That needs to be heard?

 24              MR. GRIFFITH:    Your Honor, ERO had a, uh,

 25   Robinson Motion to Exclude the Testimony of the

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             96
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   Non-design Professionals testifying as to design

  2   defects.   I don't think Plaintiff's counsel is opposed

  3   because for the most part his experts, his non-design

  4   experts say they were not going to testify or were not

  5   qualified to testify --

  6              THE COURT:    Tell me that again.   It's ERO's

  7   motion for what?

  8              MR. GRIFFITH:    Daubert Motion to Exclude the

  9   Testimony of Plaintiff's Non-design Professionals

 10   Regarding Alleged Design Defects.     Again Mr. uh, Holder,

 11   uh, I think Krismer, the rest of them, they said since

 12   they are not design professionals they are not going to

 13   have any design opinions, but I wanted to make sure.

 14   It's almost like a prophilactic measure.       That's the

 15   order.

 16              MR. N. JOLLY:    Is this something that was set

 17   today?

 18              MR. GRIFFITH:    Yes.

 19              THE COURT:    I mean I didn't have it on my

 20   list.    Was it filed.

 21              THE COORDINATOR:    No, it was not on the list,

 22   but I am going the check here.

 23              THE COURT:    I had not seen it.

 24              MR. N. JOLLY:    This is really limine stuff,

 25   Judge.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            97
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1            MR. GRIFFITH:     Yes, I would agree this would

  2   normally be limine, but typically if it's something that

  3   I don't want to get in front of the jury.   I'll do a

  4   motion to exclude, that way it's ruled on ahead of time

  5   and we don't have to argue when it comes up.   That's the

  6   only reason I did it, but yeah in general this would be

  7   limine but I wanted to exclude it or have a resolution

  8   of it before trial.

  9            MR. N. JOLLY:     We, we -- well we have limine

 10   that -- this goes both ways.    They on the one hand you

 11   don't want someone opining on architecture, but on the

 12   other hand they want the janitor to opine on

 13   air-conditioning design.    So it's in our limine.

 14   Really, really, if we want to take up the whole limine

 15   right now that could take severa hours and we are

 16   willing to stay here to do that.

 17            THE COURT:     Wait a minute, we are going to

 18   take up the limine today.

 19            MR. N. JOLLY:     Okay good.

 20            THE COURT:     We'll do it after lunch.

 21            THE COORDINATOR:     It was set for final

 22   pretrial as well.

 23            THE COURT:     Because we are set for final

 24   pre-trial today.    We are going to take up everyhting.

 25   We are not going to be arguing anything on jury

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al               98
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   selection day.    There's no way.   We are -- all we are

  2   going to do jury selection day is pick a jury and start

  3   a trial.    Everything --

  4               MR. N. JOLLY:   All right.

  5               THE COURT:   -- else we are hearing today.    So,

  6   I will have you all back here at 1:30 with any other

  7   issues that you want me to take up.      Including this one.

  8               MR. OLIVEIRA:   Your Honor, if I could make a

  9   suggestion.    I don't think we have sat down with, with,

 10   uh, Norman on the motion in limine.

 11               THE COURT:   Have lunch have lunch together.

 12               MR. OLIVEIRA:   We should have.

 13               THE COURT:   I am ordering you to have lunch

 14   together.    Go to I guess you can go to Casa De Adobe,

 15   there's probably room for all of you upstairs or

 16   something.

 17               MR. OLIVEIRA:   If not, if the other thing --

 18               THE COURT:   Or go to Caro's or somewhere.

 19               MR. OLIVEIRA:   If we can get together maybe

 20   before we, uh, give us a little bit of time.

 21               THE COURT:   Do you all want -- guys you all

 22   are not listening here.     Okay, so focus.   So why don't

 23   y'all go I've a quick lunch, if you want to eat together

 24   eat together, if you don't want to I can't force you to

 25   do that.    But, be back here by 1:00.   Start talking.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            99
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   See what you can work out and agree upon and I guess

  2   1:30 is not going to be enough time for you all to agree

  3   on anything, so I guess I can get back on the bench at

  4   2:00.

  5            MR. OLIVEIRA:   That's fine, Your Honor, give

  6   us an hour.

  7            THE COURT:   That way you can just shorten your

  8   arguments and, uh, get your agreements together and

  9   whatever y'all can't agree upon then I will decide, but

 10   that way I am not sitting here saying well judge we did

 11   agree to number one and didn't agree to number two but

 12   then maybe number 3 and -- no.   I mean, y'all sit down,

 13   talk, work on whatever you have to work out, and

 14   whatever you can't work out I'll take it up at 2:00.

 15            MR. OLIVEIRA:   Be happy to do that thank you,

 16   Your Honor.

 17            THE COURT:   If y'all want to leave your stuff

 18   here nobody is coming in, nobody is going to take it,

 19   nobody is interested in it I'm sure.

 20                            (This is the end of the morning

 21                            session for Friday May 1, 2015,

 22                            Judge Garza, Starr County,

 23                            Texas.)

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      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al        100
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      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              101
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1

  2                               (P.m. session for Friday May 1,

  3                               2015, Judge Garza, Starr

  4                               County, Texas.)

  5               THE BAILIFF:    All rise, the 229th District

  6   Court is back in session, Honorable Ana Lisa Garza

  7   presiding.

  8               THE COURT:   Okay.   The record will reflect we

  9   are back on the record in cause number DC-14-46.        We

 10   took care of all the hearings in the morning, however,

 11   we do have some pre-trial matters and motions in limine.

 12   So do you want to go ahead and let me know what the

 13   agreements are?    Or better yet what the agreements are

 14   not.    So let's start with the motion in limine.

 15               MR. N. JOLLY:    There's a number of agreements

 16   and disagreements.    We are still working on Lemon's.

 17               THE COURT:   See y'all were supposed to confer

 18   about all this stuff before you even got here.

 19               MR. N. JOLLY:    We have been working on it real

 20   hard.

 21               MR. GRIFFITH:    There's so many parties.   I

 22   don't care, it doesn't matter to me if there's 1, 9, 20,

 23   or a hundred.    You were supposed to confer on your

 24   motions in limine before you came here.

 25               MR. SMITH:   I am ready to proceed, Your Honor.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            102
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1              THE COURT:   Well but you didn't confer.

  2              MR. N. JOLLY:   We did.

  3              MR. SMITH:   We did.   We have.

  4              THE COURT:   I told you to to do it at lunch

  5   time.

  6              MR. N. JOLLY:   That's true we did blow it on

  7   that.

  8              THE COURT:   Did you exchange witness lists?

  9              MR. SMITH:   We did.

 10              THE COURT:   Exhibit lists?

 11              MR. N. JOLLY:   Yes.

 12              MR. SMITH:   Everything has been exchanged.

 13              THE COURT:   Did you do proposed jury charges?

 14   I know that in th end --

 15              MR. N. JOLLY:   Yes.

 16              MR. SMITH:   Yes.

 17              THE COURT:   We don't know what's going to

 18   happen when the evidence but you are supposed to

 19   exchange --

 20              MR. SMITH:   It was all exchanged.

 21              MR. N. JOLLY:   That's been done.

 22              MR. SMITH:   It's all been done.

 23              THE COURT:   So it's just the in limine?

 24              MR. N. JOLLY:   That and the motion to equalize

 25   strikes.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            103
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1            THE COURT:    Okay.

  2            MR. N. JOLLY:    And because Doug Walla is

  3   staying around here for that, could we do that now so he

  4   can hit the road?   His client has been released.

  5            THE COURT:    Okay.

  6            MR. N. JOLLY:    By summary judgment.

  7            THE COURT:    Okay.   Well let's take care of the

  8   motions to equalize strikes, unless Mr. Walla wants to

  9   bill more hours while he sits here and waits.

 10            MR. N. JOLLY:    Yeah. I think he's ready to get

 11   back to Houston.

 12            THE COURT:    Okay, let's go ahead and take care

 13   of the motion to equalize strikes.

 14            MR. N. JOLLY:    Remember, Your Honor, last time

 15   we were here we indicated that the, uh, Descon and the

 16   third parties they are not, uh, adverse to one another,

 17   they are essentially one side, and, uh, there had been

 18   an inadvertent production of an e-mail indicating there

 19   was to be conference calls between the Defendants.    Uh,

 20   they inadvertently produced that to the Plaintiff.    The

 21   conference call has been cancelled, but it seemed to

 22   imply at minimum that there had been previous plans for

 23   future defense strategy conference meetings, whatever

 24   you want to call it.   Uh, so we sent some discovery out

 25   for joint defense agreements and everybody of course

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            104
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   said that there weren't any, but on the other hand, they

  2   are cooperating and they are meeting and we are not

  3   invited to meetings, we are not invited to conference

  4   calls.   And so I have known Doug a long time and I asked

  5   him to stay here, to tell you his opinion on that.

  6              MR. WALLA:   I don't know that I really have an

  7   opinion on it.   I can tell you that, uh, we had a couple

  8   conference calls among counsel for the various

  9   Defendants.   I don't know if all the Defendants were on

 10   those conference calls.    I participated in one myself

 11   and one of our associates participated in one.    I don't

 12   know if there were any more beyond that.    That's the

 13   only two that I can think of.

 14              The substance of any of those conference calls

 15   I cannot get into, I am going to assert that that's

 16   privileged, it's work-product among other things, and I

 17   can't talk about work-product.    That privilege continues

 18   whether I am out of the case or in the case.

 19              I can say "Yes" or "No," yes we had, uh,

 20   two scheduled or maybe three scheduled telephone

 21   conferences of which two I can tell you without

 22   reservation of that.    The third one never happened and

 23   the substance of them I can't talk about.

 24              MR. N. JOLLY:   And the Plaintiffs were never

 25   invited to these conference calls and it always involved

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            105
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   Descon and the third parties that Descon and ERO had

  2   sued.   Right?

  3             MR. WALLA:    I know it involved some

  4   Defendants, which ones I don't remember.   I know I was

  5   involved and I know Descon was involved, beyond that I

  6   don't know.

  7             MR. N. JOLLY:    The point is there's no

  8   antagonism between the parties notwithstanding the

  9   third-party claims and they are one side and they should

 10   get the same number of strikes.

 11             MR. SMITH:    Your Honor, if I could respond.

 12             THE COURT:    Well go ahead and argue your

 13   motion.   I mean, what are you --

 14             MR. N. JOLLY:    That's it.

 15             THE COURT:    What are you requesting?

 16             MR. N. JOLLY:    The Court has discretion to

 17   determine if there is antagonism or if there is not

 18   antagonism and on the one hand they want to file

 19   third-party claims and drag their subs in, but on the

 20   other hand they want to strategize and not act

 21   antagonistic throughout the case to the prejudice of the

 22   Plaintiff.    And then on the other hand they are going to

 23   get together during jury selection and assist each other

 24   with strikes.    So, at a bear minimum they should be

 25   ordered no communication whatsoever on strikes, but

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              106
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   right now we are asking for you to decide, and it is

  2   within your discretion, it's in the rule -- the cited

  3   rules in our motion, it's, it's, uh, towards the end in

  4   the two hundreds right before jury selection.       I can't

  5   tell you the exact number, but it's in that range, and

  6   antagonism, the question of antagonism is a question for

  7   you.   If they get ten strikes and we get six then they

  8   get to strike more people when they are not

  9   antagonistic.   So, we are asking you to decide that they

 10   are one side and to equalize the strikes.

 11              MR. SMITH:   Your Honor, basically --

 12              THE COURT:   You need to identify yourself for

 13   the record.

 14              MR. SMITH:   I'm sorry.   Robert Smith

 15   representing Descon.    Basically I believe Limon has

 16   filed a response, we filed a response to this.

 17   Basically there is more than ample evidence that there

 18   is antagonism certainly exhibited through the Summary

 19   Judgment motions that we went through this morning.      Uh,

 20   we have attached copies of interrogatory answers and

 21   request for disclosures responses where Descon is

 22   seeking, uh, their claims against all the third parties.

 23   Uh, with regard to that, seeking monitary damages and

 24   different amounts for the different parties.    We made

 25   claims and are seeking claims with regard -- for example

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            107
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   the glass people with issue to their glass work, we

  2   sought with regard to the different products and the

  3   different work that the different third parties have

  4   done.   There's been ample, ample showing of, uh, of the

  5   fact that there are claims, realistic claims that are

  6   being made and there is antagonism between the parties.

  7              With regard to, uh, the action that

  8   Plaintiff's counsel is discussing, I don't believe that

  9   there has been a single --

 10              THE COURT:   Sir, you can sit down and then

 11   stand up when it's your turn.

 12              MR. B. LOPEZ:   Yes, ma'am.

 13              MR. SMITH:   I don't believe there's been a

 14   single telephone call in this case where everybody was

 15   involved in or even around the majority was involved in.

 16   Uh, there have been discussions related to matters, uh,

 17   totally unrelated to, uh, or totally related to issues,

 18   uh, regarding for example scheduling and like that, that

 19   have no --

 20              THE COURT:   Well but if it was just scheduling

 21   then you would have had the plaintiffs involved also

 22   wouldn't you?

 23              MR. SMITH:   No, ma'am, because the way the

 24   scheduling in this matter took place was we contacted

 25   Plaintiff's counsel and said here's what we need for

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            108
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   depositions, give us dates.    They gave dates to my

  2   lawfirm.   My lawfirm then went to all the other

  3   Defendants, third-party Defendants and said these are

  4   the dates that Plaintiff's counsel has given us, let's

  5   get together and figure out which ones are acceptable to

  6   the most people to get these depose done.   We acted as

  7   the intermediary on it and that was as to all 21

  8   depositions with the exception of the last one which was

  9   handled by Limon Masonry.

 10              THE COURT:   Well then if that's all it was

 11   then why can't Mr. Walla say that?    That's not

 12   privileged.

 13              MR. SMITH:   Well there were others.

 14              THE COURT:   If you were just talking about

 15   setting up depositions and things of that nature.

 16              MR. SMITH:   We addressed settlement issues, we

 17   addressed a lot of things, but we did not collude with

 18   regard to the defense of the case.

 19              MR. WALLA:   My only concern is I don't think I

 20   can talk about any substance whether it's insubstantial

 21   substance or substantial substance, if that's a way to

 22   phrase it, because I think once you open that door the

 23   whole enchilada is subject to privilege in my opinion

 24   and I don't -- it's kind of an ethical slippery slope

 25   and I don't want to cross that line.   So, I freely admit

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             109
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  1   we had a conference call.

  2            MR. N. JOLLY:     Mr. Smith is saying there's

  3   scheduling, they are scheduling depose, but they are not

  4   including us in scheduling?    I mean all the parties need

  5   to be involved in scheduling, you know, and I mean if --

  6            THE COURT:     I am going to grant the motion to

  7   equalize the strikes.

  8            MR. N. JOLLY:     Thank you, Your Honor.

  9            THE COURT:     Okay, what else?   You are excused,

 10   Mr. Walla.

 11            MR. WALLA:     Thank you, Your Honor.

 12            MR. N. JOLLY:     Thank you, Doug.

 13            THE COURT:     What about the motions in limine?

 14   Let's start with Descon and get me the hard copies of

 15   those motions.   Or let's start with the Plaintiff's and

 16   Descon and then we'll take it from there.

 17            MR. SMITH:     Do you want Descon to address the

 18   Plaintiff's first or Plaintiffs to address Descon's

 19   first.

 20            THE COURT:     Let me have Plaintiffs address

 21   Descon first and then anybody else's after that.    And

 22   then we'll go through each individual Defendant that's

 23   staying in this case.

 24            MR. N. JOLLY:     Can I remain seated?

 25            THE COURT:     Yes, go ahead.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al                 110
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1             MR. N. JOLLY:      Thank you, Judge.    We agree to

  2   number 1, we disagree --

  3             THE COURT:      Hold on.   Hold on.   We are

  4   starting with Plaintiff's motion in limine.

  5             MR. N. JOLLY:      Oh, okay.   Let's take it from

  6   there and start with, you know, granted -- what's agreed

  7   and what's not agreed.      So, let's start with page 2.

  8             MR. N. JOLLY:      1, 2, 3 are agreed.

  9             THE COURT:      Okay, so I am going to grant

 10   those.   Okay.

 11             MR. N. JOLLY:      Four is denied -- I'm sorry,

 12   disagreed.   Ha, ha, ha.

 13             THE COURT:      Okay, so then I need to decide

 14   number four.     Right?

 15             MR. N. JOLLY:      That really is something that

 16   would depend on how they asked the question.

 17             THE COURT:      I am not even getting this.

 18             MR. N. JOLLY:      Well you see the thing is that

 19   there's one lawyer in particular who isn't here and he

 20   wanted to know how things worked at our office and I

 21   told him that was none of his business:         Who is the time

 22   keeper, I asked him to tell us what he meant by time

 23   keeper -- I mean the point is that the attorney is

 24   keeping the time.    If he wants names of other people at

 25   my office it's just privileged that's all.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al          111
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  1            THE COURT:   I am going to grant -- I mean or

  2   talk to me.

  3            MR. SMITH:   Your Honor, the issue with regard

  4   to the time keeper is that, uh, when we are provided, if

  5   we are provided with time sheets or background sheets

  6   with regard to the claim for attorneys fees, uh, one of

  7   the issues will be well who figured out or who kept

  8   track of the time that's recorded here.

  9            THE COURT:   Like a paralegal's time or what?

 10            MR. SMITH:   We have not been presented with

 11   any time records so far, but yes it would be like if Mr.

 12   Jolly has an entry for 50 hours for researching

 13   something, all right, who kept track of that 50 hours to

 14   figure out whether it's reasonable and necessary?

 15            THE COURT:   Well I assume he would.

 16            MR. N. JOLLY:   That's right.

 17            THE COURT:   That's how I did it when I was

 18   still practicing law, I mean, I kept my own track of my

 19   own hours.

 20            MR. SMITH:   I would assume so, Your Honor, but

 21   we don't know that because we don't have the records.

 22            THE COURT:   Well you don't have them yet.

 23            MR. SMITH:   No.   I understand and that's --

 24   that would be the question.   It may be in the records.

 25   It may list who the time keeper is.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            112
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1             THE COURT:   I am just going to carry that

  2   over.

  3             MR. SMITH:   Okay.

  4             THE COURT:   Okay number five.

  5             MR. SMITH:   There was an issue with regard to,

  6   uh, the subject schools are pretty good.     Uh, somebody

  7   raised an objection with regard to that language.     I

  8   don't remember who it was.

  9             MR. GRIFFITH:   The --

 10             MR. SMITH:   It was with reference to the

 11   language pretty good that they had an issue with it.

 12   Uh, as far as asking questions about well did this work,

 13   was it okay --

 14             THE COURT:   Fact witnesses cannot speculate of

 15   expert subject matters, and I am not going to allow that

 16   so I am going to grant that.   Number six.

 17             MR. GRIFFITH:   Can you grant modified just as

 18   to expert subject matter because there's going to be a

 19   lot of -- if we ask somebody like a A/C tech about it

 20   being hot or cold and they say no.

 21             THE COURT:   That's not expert material.

 22             MR. GRIFFITH:   Right but I think if we ask

 23   them --

 24             THE COURT:   Give me some credit here.   I mean,

 25   if the question is is it hot or cold and they are asking

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             113
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   a lay witness that, that's not expert testimony.    And I

  2   can overrule or sustain an objection there.    I am not --

  3   I -- and I don't think anybody is going to go out there

  4   and argue well all the, you know, all the students and

  5   principles and teachers said that everything was pretty

  6   good so then obviously there's nothing wrong with this

  7   school.   I mean, is that what you all are referring to

  8   here or what?   That's not expert opinion and, you know,

  9   to confuse the jury by asking one of the principles or

 10   administrators when you went out to the school what did

 11   you think about it?     Oh well I thought the school was

 12   pretty good or I thought it was, you know, decent.

 13   Well, what are y'all referring to here?

 14              MR. GRIFFITH:    All we want to make sure is

 15   that if we ask somebody did you have any problems with

 16   something particular that it won't be construed as

 17   expert testimony.   The people can make observations

 18   about whether the wall is sweating or not.

 19              THE COURT:    Yeah, I mean, --

 20              MR. GRIFFITH:    -- or the ceiling tiles --

 21              THE COURT:    -- if you have an administrator on

 22   the stand and you are asking him questions about the

 23   air-conditioning, was it cool, was it hot, it was fine.

 24   Well I am going to allow that.     You don't need an expert

 25   to say is it hot or cold or reasonably cool or whatever.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            114
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  1   I mean, no.   I mean that -- some of these motions in

  2   limine.

  3             MR. N. JOLLY:    Sorry, Your Honor.

  4             THE COURT:   Yeah ha, ha I mean.   I am going to

  5   grant that and I am going to keep a close eye on that

  6   and like I tell you an administrator, school principal,

  7   teacher, even a student can tell you oh we thought it

  8   was pretty cool in here.    I know you are not going to

  9   have students testifying, I don't think, but I mean we

 10   all know what is expert testimony and what is not.    So,

 11   anyway.

 12             Number 6, personal income of Plaintiff's

 13   experts and income or revenue of Plaintiff's expert or

 14   attorney, I mean, that's granted.    I don't even think

 15   that you would even object to that would you?

 16             MR. SMITH:   Our only issue with it was whether

 17   it addressed the, uh, income or revenue of the experts

 18   with regard to the work on this --

 19             THE COURT:   No, of course you can ask them how

 20   much are you getting paid.

 21             MR. N. JOLLY:    We don't object to that.

 22             THE COURT:   That's different than asking can I

 23   go to your house in Tahiti or don't you have 20 houses

 24   across the United States or across the world -- well not

 25   the United States but all over the world or, you know,

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al                   115
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   how much do you make, what was your income last year.           I

  2   mean, I think that's irrelevant, but you can certainly

  3   ask questions about how much money are you getting paid

  4   for this, are you getting paid 300 dollars an hour, 250

  5   dollars an hour, I mean that's -- you all already know

  6   that, I don't have to tell you.        Okay, number seven that

  7   should be granted.    I certainly don't think anybody has

  8   an issue with that.      Does anybody have an issue with

  9   number 7?

 10               MR. SMITH:    Somebody did.    I don't remember

 11   who.

 12               THE COURT:    Well it's not happening.     That's

 13   granted.    The source of any funds used to design or

 14   construct --

 15               MR. N. JOLLY:      That was agreed.

 16               THE COURT:    9?

 17               MR. N. JOLLY:      9 is disputed.

 18               MR. GEALY:    Your Honor, there are MET expert

 19   that testified in another lawsuit which I was involved.

 20               THE COURT:    Which expert?

 21               MR. GEALY:    Edgar Stacy, and he's their

 22   air-conditioning expert, and he testified in that case

 23   essentially to the exact opposite of what he's

 24   testifying in this case.        At his deposition he

 25   acknowledged that and in fact changed his testimony in

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al           116
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   this case on some of those issues that he had testified

  2   to opposite in another case.   Now, he's already changed

  3   his opinion to now be consistent with it so I am not

  4   sure that's going to be an issue but I just don't want

  5   to get caught up in some argument, uh, that there's a

  6   limine on that when he's already acknowledged it, he's

  7   already changed his opinion, uh, under sworn testimony.

  8             THE COURT:   Why would you bring in his

  9   testimony from another school?

 10             MR. GEALY:   Because he testified the exact

 11   opposite in this case and then when confronted with

 12   this --

 13             THE COURT:   Regarding his expert opinion?

 14             MR. GEALY:   Right and when confronted with his

 15   prior testimony he changed his opinion in this case.

 16             MR. N. JOLLY:   This deals with establishing

 17   that the other building is substantially similar to

 18   Grulla Elementary before you can do that.   That's all it

 19   addresses.

 20             MR. GEALY:   These were not issues that were

 21   related just to the building, they were relate to --

 22             THE COURT:   You are allowed to -- you have

 23   wide latitude in cross-examination, so I am going to

 24   deny that one.   Okay number ten.

 25             MR. SMITH:   Number ten was agreed in

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              117
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   reciprocal for both parties.

  2            THE COURT:    Okay.   Number 11.

  3            MR. SMITH:    Was agreed, 12 was agreed, Your

  4   Honor.

  5            THE COURT:    13?

  6            MR. SMITH:    Somebody had an issue with 13.

  7            MR. B. LOPEZ:    Brian Lopez for Limon Masonry.

  8   I want to make sure that we are able to talk about not

  9   necessarily using the words fulfilling their mission

 10   statement, but that the school is open and operational,

 11   kids have been able to go there.    I want to make sure

 12   that we are able to establish that through the

 13   testimony.

 14            THE COURT:    But that doesn't have anything to

 15   do with construction defects.    I mean, we could have --

 16   this courtroom could be full of termites and we are

 17   still conducting courtroom business and that doesn't

 18   mean that that should be given any weight to whether or

 19   not there's a, you know, a defect here or not or that

 20   the guys that came and did the pest control did it right

 21   or did it wrong.   I am going to grant number 13.    I

 22   think that goes without saying.    This is a small

 23   community, people know that people are going to school,

 24   and that people are going to Grulla Elementary.      No.   I

 25   mean, I am going to grant their, uh, request and you are

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al           118
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   not going to talk about it because people already know

  2   and I am not going to let you confuse them by saying

  3   well yeah the school is -- everybody is going to school

  4   so that must mean there's nothing wrong.   I don't know,

  5   I mean, I don't think that it makes any sense to be able

  6   to go into that or talk about that.

  7            MR. OLIVEIRA:    Your Honor, I think where it

  8   comes in is on damages.   I mean, you are talking about,

  9   uh, is the school, uh, still fit to be used.    Uh, I

 10   think those are factors that a jury can, can hear and so

 11   I think it is relevant, I think it should come in.

 12            THE COURT:   Well I don't.   So y'all, you

 13   know -- I disagree.   Number 14.

 14            MR. SMITH:   Agreed.

 15            THE COURT:   15?

 16            MR. SMITH:   Number 15 somebody had an issue

 17   with that.

 18            MR. N. JOLLY:    Limon Masonry.   That was Brian

 19   Lopez' objection about Limon Masonry.

 20            MR. GRIFFITH:    Your Honor, I actually joined

 21   in it too and I think the concern was that it crossed on

 22   Plaintiff's expert to be pretty wide-ranging.   We are

 23   not going to say the words find millions in damages, but

 24   I want to talk about what they do, their methodology.

 25            THE COURT:   You will be allowed to ask them

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al               119
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   isn't it true that you always get hired by the

  2   Plaintiff's side.

  3              MR. GRIFFITH:    Those are the questions.

  4              THE COURT:    Or 90 percent of your work is

  5   from -- because I practiced law on both sides and that's

  6   par for the course.     If you are going to hire an expert

  7   that always testifies for the defense, like some doctors

  8   that we had before in the Valley, and other times you

  9   know I was on the Plaintiff's side and when, you know,

 10   hired people that generally, you know, saw things our

 11   way, if you will, I don't know if that should be on the

 12   record Ramiro or not, that was a long time ago.      But,

 13   nevertheless I will allow you to go into that.      You will

 14   be allowed to cross examine the experts fully about

 15   isn't it true that you always get hired by one side or

 16   the other.   They can do it to the defense experts and

 17   the defense lawyers can do it to the Plaintiff's

 18   experts.   You can go into that.      I don't know if you can

 19   say and you always find millions of dollars in damages.

 20   I mean, I think -- well let me think.

 21              MR. GRIFFITH:    They always find damages and

 22   they are always going to say to our experts well you

 23   never find damages.

 24              THE COURT:    Well true.

 25              MR. N. JOLLY:    That's not true.   There's been

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al                120
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   buildings that these guys have looked at and they didn't

  2   find anything wrong, so to sit there and say that, it's

  3   not true.

  4               MR. GRIFFITH:   Well if it's not supported by

  5   the evidence.

  6               THE COURT:   Then say no it's not true.

  7               MR. N. JOLLY:   I'm sorry.

  8               THE COURT:   Then the expert will say no it's

  9   not true.

 10               MR. N. JOLLY:   Yeah.   Right.   That's true.   Or

 11   say not true.

 12               THE COURT:   Yes it's true that -- well okay,

 13   we are all getting off the subject here.      I am going to

 14   deny number 15 and you can -- you have wide latitude in

 15   your cross-examination on both sides.

 16               MR. GRIFFITH:   Thank you, Your Honor.

 17               THE COURT:   Number 16.

 18               MR. SMITH:   I believe 16, 17 and 18 are

 19   agreed.   On 19 there was an issue raised on that.

 20               THE COURT:   Is there leaks at all campuses?    I

 21   mean is that a fact?

 22               MR. GRIFFITH:   Actually it is true with regard

 23   to air.   Air comes and goes out of buildings everywhere.

 24   Plumbing leaks, water leaks, no.      So I mean it's just so

 25   vague it's kind of hard to make a motion in limine if

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al           121
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   there are leaks in the building.

  2            THE COURT:    I am going to grant the

  3   Plaintiff's request.   You are not going to go around

  4   saying there's leaks at all campuses, no.   Okay number

  5   20.

  6            MR. SMITH:    There was an issue with that,

  7   uh --

  8            THE COURT:    Why would you bring that up?

  9            MR. GRIFFITH:    The only reason this one came

 10   up was because of the issue of failure to mitigate.     I

 11   mean, obviously the Plaintiff has obligation to mitigate

 12   and this seemed to tread into that area.    Plan or does

 13   not plan to make repairs, well they have a duty to

 14   mitigate so to the extent that's an issue on the

 15   attempted limine to talk about it.   They need to repair

 16   as they go also.

 17            THE COURT:    Well, I mean, I think that depends

 18   on the kind of repair.   If it's just a plumbing leak, of

 19   course they have -- they should, you know, they have a

 20   responsibility to mitigate that, I mean, they --

 21            MR. GRIFFITH:    Well if they have --

 22            THE COURT:    If they have like the, I mean, if

 23   the roof is caving in, I mean --

 24            MR. GRIFFITH:    Agreed but for example the

 25   chiller goes down and they are not fixing it because

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             122
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   they want to replace it with another chiller and then

  2   they run the building with one chiller for a year.

  3   That's all their decision, and that's their failure to

  4   mitigate.   They could have fixed or replaced and they

  5   chose not to.    Those are elements that are going to go

  6   into the case.

  7               THE COURT:   Well but that's not exactly what

  8   number 20 says.

  9               MR. GRIFFITH:   True and that's why I wasn't

 10   really sure, I mean it doesn't say we cannot bring their

 11   failure to mitigate.

 12               THE COURT:   I think Mr. Jolly is talking about

 13   the future.    If they get a recovery are they going to

 14   make the repairs or are they required to make the

 15   repairs, and I don't think you should go into that, so I

 16   am going to grant number 20.

 17               MR. GRIFFITH:   If they made a recovery yeah we

 18   would agree.

 19               THE COURT:   But, you know, if it's little

 20   things, you know, we'll see.     That's not what number 20

 21   says.   Okay, number 21.

 22               MR. SMITH:   21, Your Honor, the issue with

 23   that was, uh, their requirement or duty to continue to

 24   maintain the facilities and the machinery and

 25   specifically for example the H.V.A.C. system in

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            123
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   accordance with manufacturer's, uh, information on it,

  2   and like that.   Uh, there is going to be an issue as to

  3   whether the school district conducted proper maintenance

  4   or conducted the required maintenance and repairs and

  5   they were questioned with regard to, uh, whether they

  6   went outside of the internal maintenance department to

  7   obtain bids or request for proposals, uh, with regard to

  8   repairs that they are claiming in this lawsuit.    I

  9   believe that, uh, whether -- what their history was and

 10   how many times they went and obtained any bids or

 11   request for proposals is certainly as relevant as how

 12   many internal work orders did you have and then --

 13   within the school district to do the school as well.

 14            THE COURT:    Mr. Jolly?

 15            MR. N. JOLLY:    I am confused.

 16            THE COURT:    I am too.    Because I mean for you

 17   to have -- I mean, I presume there was discovery

 18   exchanged whereby you were given some information about

 19   what repairs were done on each specific item that they

 20   are claiming is defective or not designed properly or

 21   malfunctioning or whatever.

 22            MR. N. JOLLY:    I will withdraw that one.

 23   How's that?

 24            THE COURT:    Okay.   I mean, you did exchange

 25   discovery in that regard.   Right?

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              124
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1               MR. SMITH:   We did, Your Honor, and we have

  2   been provided with thousands and thousands of records

  3   regarding maintenance, repairs --

  4               THE COURT:   Okay.   He's withdrawing that one

  5   anyway.   Okay, number 22 that any other building or the

  6   subject buildings --

  7               MR. SMITH:   We are in agreement.

  8               THE COURT:   Okay number 23?

  9               MR. SMITH:   I didn't have a problem with that

 10   but somebody did.

 11               THE COURT:   Did anyone have an issue with

 12   that, 23?   Okay that's granted.     Number 24.   Is that

 13   agreed or not?

 14               MR. SMITH:   That was not.   There's going to be

 15   an issue as to whether or not any certain employees or

 16   employees of the school district requested, uh, repairs

 17   because the repairs -- the request for repairs,

 18   according to the testimony, uh, is an internal process

 19   where it comes from -- the maintenance department is

 20   over here in part of the school district as a whole, and

 21   the school is the one they generate a work order or work

 22   request or contract request, uh, from the school

 23   district and it goes out to the maintenance department

 24   and then goes out.   So, there's going to be definitely

 25   an issue as to whether or not the school itself has

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            125
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   issued or requested any repairs.

  2            THE COURT:    But like requested from Descon or

  3   from any subs or from whoever?

  4            MR. SMITH:    Well we asked and addressed it

  5   with regard to Descon or any subs and, and, all that was

  6   a separate issue, but even requesting it internally.

  7            MR. GRIFFITH:    Your Honor, really this is the

  8   failure to mitigate.   That's the concern we have with

  9   all these repairs.   They say we can't discuss it.    That

 10   keeps us from discussing one of our affirmative defenses

 11   which is their failure to mitigate.    They have an

 12   obligation and duty to mitigate.    As long as we can

 13   bring up failure to mitigate issues, then we have no

 14   problem with any of this.

 15            THE COURT:    Uh-huh.

 16            MR. GRIFFITH:    With the caveat that we can

 17   discuss failure to mitigate to the extent it's

 18   applicable.

 19            THE COURT:    Mr. Jolly?

 20            MR. N. JOLLY:    I'll withdraw that.

 21            MR. GRIFFITH:    That covers 23 true 27 as long

 22   as we can discuss failure to mitigate --

 23            MR. N. JOLLY:    No, we disagree that emergency

 24   doesn't need to be declared on number 25, we disagree.

 25            THE COURT:    Okay, number 25 I mean y'all --

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            126
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   y'all are gonna argue that --

  2              MR. SMITH:   One of their experts opines that

  3   it's a life safety issue and there will be an issue and

  4   I'm sure testimony with regard to what the life safety

  5   issue is and whether an emergency has been declared.

  6              MR. N. JOLLY:   The life safety issue was

  7   solved with rerouting the buses and putting up some

  8   "caution don't pass this line" tape.

  9              THE COURT:   I am going to grant number 25.

 10              MR. B. LOPEZ:   May I chime in quickly on that

 11   one?   The one issue on the life safety is that he

 12   actually says quote "it is my obligation to inform you

 13   that I have observed defects that in my professional

 14   opinion pose a threat of serious injury."   Those are his

 15   words.

 16              THE COURT:   Right.

 17              MR. B. LOPEZ:   So certainly that needs to go

 18   towards an emergency.    We believe that we have the --

 19              THE COURT:   He just said it had been resolved.

 20              MR. B. LOPEZ:   I think we disagree as to

 21   whether or not it had been resolved.

 22              THE COURT:   No, that it was resolved by

 23   someone going in there and taking other measures and --

 24              MR. B. LOPEZ:   So the measures with the

 25   possibility of the walls falling down has been resolved.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al           127
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1             THE COURT:   That's what he just said.   Didn't

  2   you just say that?

  3             MR. N. JOLLY:   The errors --

  4             THE COURT:   I mean he didn't specify which

  5   ones.

  6             MR. N. JOLLY:   The areas were cordoned off.

  7             MR. N. JOLLY:   The condition still exists.

  8             THE COURT:   He's saying the safety measures

  9   that they took was, I guess, keeping kids out of that

 10   area?

 11             MR. N. JOLLY:   Right.

 12             MR. B. LOPEZ:   We are not talking about the

 13   retaining walls, we are talking about the actual walls

 14   of the school.   You are saying there are no kids that

 15   are going there by the school -- by the walls of the

 16   school.

 17             MR. N. JOLLY:   The areas of concern have been

 18   cordoned off.

 19             MR. B. LOPEZ:   Okay.

 20             THE COURT:   Okay.   Number 26.

 21             MR. SMITH:   I think that's agreed.

 22             THE COURT:   Number 27.

 23             MR. SMITH:   27 relates to the same issues on

 24   mitigation and whether they maintain.     We believe that

 25   we should be allowed to go into the question or the

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             128
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   issue of mitigation since that's one of our defenses and

  2   whether they complied with their obligation to maintain

  3   their own equipment.

  4              MR. N. JOLLY:   The problem with this is that

  5   they try to get the janitor, uh, to say that if there

  6   was anything wrong with the structural masonry he could

  7   fix it.   The janitor resolved any problems.

  8              THE COURT:   We'll carry that over, we'll carry

  9   that over, and depending on who the witness is, and

 10   y'all can approach the bench on that.

 11              MR. N. JOLLY:   Thank you.

 12              THE COURT:   Okay, number 28.

 13              MR. SMITH:   28 somebody raised a -- oh yeah.

 14              MR. GRIFFITH:   Your Honor --

 15              MR. N. JOLLY:   We'll withdraw that one.   28 is

 16   withdrawn.

 17              THE COURT:   Number 29?

 18              MR. N. JOLLY:   29 agreed.

 19              MR. SMITH:   Agreed.

 20              THE COURT:   30?

 21              MR. SMITH:   30 is the same as the prior one

 22   that you addressed regarding emergency conditions.

 23              MR. N. JOLLY:   That's repetitive isn't it?

 24              MR. SMITH:   Yes.

 25              MR. N. JOLLY:   Withdrawn.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1               MR. SMITH:   31 --

  2               THE COURT:   Is 31 agreed or not?

  3               MR. SMITH:   It was not agreed.

  4               MR. GRIFFITH:   It's not agreed.    It goes to

  5   argument.   They can't limine out -- I guess the caviat

  6   is if we can't say there's no such thing as a perfect

  7   building then we have to acknowledge that there are --

  8   all buildings are perfect?       I mean it doesn't make any

  9   sense.   I mean to me that's just not really the subject

 10   for motion in limine, it's argument.

 11               MR. N. JOLLY:   Carry that one over, Your

 12   Honor.

 13               MR. GRIFFITH:   Truly you I can not say there's

 14   such a thing as a perfect building.       No one can say

 15   that.

 16               THE COURT:   No one can say that there's such a

 17   thing as a perfect building.

 18               MR. GRIFFITH:   Right so why am I liminied from

 19   say there's no such thing.

 20               THE COURT:   Because it's kind of a matter of

 21   perception, right?

 22               MR. GRIFFITH:   Yeah.

 23               THE COURT:   Yeah, let's just carry that over

 24   and see how it applies here.       Number 32.

 25               MR. SMITH:   That wasn't agreed to.   I don't

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   remember what the issue was or who had the issue.    I

  2   believe that it goes over to the same ideas of safe

  3   environment and the emergency --

  4            THE COURT:   I guess we can carry that over

  5   and--

  6            MR. SMITH:   Okay.

  7            THE COURT:   -- and see what you are going to

  8   do with that.

  9            MR. SMITH:   Uh, 33, I think the issue there

 10   was, uh, that there were -- I don't believe that anybody

 11   is going to say until the lawyers were hired, but there

 12   will be a, uh, issue as to when the problems arose was

 13   during that time period.

 14            THE COURT:   Well I am going to grant that.     I

 15   am going to grant number 33.

 16            MR. SMITH:   Okay, number 34 Plaintiff has the

 17   medical personnel to maintain the subject schools.    Uh,

 18   with regard to that, uh, the, the issue is not

 19   necessarily that they have adequate personnel to

 20   maintain the schools, but that if they passed an

 21   adequate number of people to this particular school,

 22   that they had issues with maintenance and all that they

 23   have by testimony the phones and the personnel to do it,

 24   but they didn't do it.

 25            MR. N. JOLLY:     There's no maintenance expert

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   designated.

  2               THE COURT:   I am going to grant number 34.

  3   Number 35?    Is that granted or not?

  4               MR. SMITH:   That was agreed.   36 was agreed.

  5   37 agreed.    38 -- actually 38, 39, 40, 41, 42, were all

  6   agreed.    43 was agreed.   And then somebody had an issue

  7   on 44.

  8               MR. GRIFFITH:   No.

  9               THE COURT:   Mr. Jolly, what are you saying

 10   there?    I mean, I don't understand that one.

 11               MR. N. JOLLY:   We just had problems with, uh,

 12   attorneys asking fact witnesses basically to answer a

 13   jury charge question.

 14               THE COURT:   Well they know they -- I mean, you

 15   can't ask a lay witness anything that's required from an

 16   expert witness.    I mean, but then there could be

 17   objections, I mean, that the person is not qualified to

 18   make such a -- let's just carry that one over and see

 19   how it applies.

 20               MR. SMITH:   Okay.

 21               THE COURT:   Number 45.

 22               MR. SMITH:   I think we agreed to 45, 46, 47,

 23   both 47s.

 24               THE COURT:   Ha, ha.   47 and 47 A.

 25               MR. SMITH:   48.   48, 49, 50, 51 and 52 I

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229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   believe were all agreed to.     Number 53 --

  2               THE COURT:   We are not going to talk about

  3   insurance.    So that should be granted and that's

  4   granted.

  5               MR. SMITH:   Number 54 was agreed.   Number

  6   55 --

  7               MR. GEALY:   Your Honor, let me address number

  8   55.    This is Grant Gealy.   This is on the HVAC air

  9   conditioning system.     If what we are talking about is

 10   the question to the head maintenance person from La

 11   Grulla who is in charge of maintaining the HVAC system,

 12   if he has any problems with it that he's been unable to

 13   resolve and getting an answer.     That's all I want to

 14   ask.    I am not going to ask him about, you know, design

 15   issues, but I do want to be able to ask him about his

 16   experience in being the head maintenance guy of the

 17   H.V.A.C. system

 18               THE COURT:   Would there be a problem with that

 19   question?    I don't think that's an expert opinion.

 20               MR. N. JOLLY:   Well, provided it stops right

 21   there because it typically doesn't.

 22               THE COURT:   Yeah, that's where it would stop.

 23               MR. GEALY:   The reason I say that is because

 24   it does say do you have a problem.

 25               THE COURT:   Let's carry it over.    I am not

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   going to have a problem with that question of a

  2   maintenance person, you know, as long as you be careful

  3   where you are going with that, I mean, obviously they

  4   have no expertise.

  5              MR. GEALY:   Right and I don't intend to ask

  6   him design questions.

  7              THE COURT:   You can ask him questions about

  8   his experience with the unit or whatever.     Okay, number

  9   56.

 10              MR. SMITH:   56, 57, 58, 59, 60 were agreed to.

 11              THE COURT:   Okay.

 12              MR. N. JOLLY:   61 is withdrawn.

 13              THE COURT:   Okay.

 14              MR. SMITH:   62.

 15              MR. N. JOLLY:   Limon Masonry.

 16              MR. B. LOPEZ:   On 62, Judge, that goes back to

 17   the latitude you talked about on cross examination.

 18   Questioning these experts to talk about that this is

 19   their line of work to go from school to school and find

 20   these problems.    It's not unique just to this one.

 21              MR. N. JOLLY:   This is for charges for other

 22   schools.

 23              THE COURT:   I am not going to allow that.   I

 24   grant number 62.    I already said you could ask them

 25   general questions in cross-examination about do you

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   always get hired -- isn't it true you always get hired

  2   by the plaintiffs, and you always find something wrong

  3   with the schools, and fine.    But you can't go into --

  4   you went to Roma I.S.D. and you found this problem with

  5   Roma aI.S.D., and then you went to a school in San

  6   Antonio South or whatever and you did the same thing and

  7   you got paid so much money for it, no.

  8            MR. B. LOPEZ:   Not relevant.

  9            THE COURT:   No.    I don't think so.

 10            MR. B. LOPEZ:   Okay.

 11            THE COURT:   Number 63.

 12            MR. N. JOLLY:   That's withdrawn.   Redundant.

 13            THE COURT:   64?

 14            MR. SMITH:   We agreed.

 15            THE COURT:   65?

 16            MR. SMITH:   65 actually 65 and 66 goes again

 17   to the mitigation issue and, uh, we believe that we

 18   should be allowed to go into, uh, the maintenance

 19   history and all as to mitigation of damages.

 20            THE COURT:   I don't think the Plaintiffs have

 21   a problem with the mitigation issue per se, do you

 22   gentlemen?

 23            MR. N. JOLLY:   No.    No.

 24            THE COURT:   I mean nobody wants this case to

 25   come back, no matter what.    So I mean we all know what

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   the law is and you get mitigation.       If you pled it, if

  2   it's relevant, it comes in.

  3               MR. N. JOLLY:   Yes, ma'am.

  4               MR. SMITH:   I believe that was the only issue

  5   that was raised with those two.

  6               THE COURT:   So I mean 65 and 66 I guess we

  7   would carry over.

  8               MR. SMITH:   Okay.

  9               THE COURT:   Because mitigation does come in.

 10               MR. SMITH:   67 we agreed.    68 there was an

 11   issue of that about some prior lawsuit or --

 12               THE COURT:   That's granted, that's not

 13   relevant.

 14               MR. SMITH:   Okay.

 15               THE COURT:   Number 69?

 16               MR. SMITH:   69 was agreed, 70 and 71 were

 17   agreed.   72, uh, was not agreed.

 18               MR. GRIFFITH:   Your Honor, the only reason I

 19   was concerned about 72, obviously an expert cannot

 20   testify to something which they are not qualified.       I

 21   don't even know why that would be the subject of a

 22   motion in limine.

 23               MR. N. JOLLY:   That's withdrawn.

 24               THE COURT:   Okay.

 25               MR. GRIFFITH:   Your Honor, since we are

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   arguing about experts.     We have that order excluding

  2   testimony from non-design professionals as to design

  3   expertise.   Basically what we talked about this morning

  4   before we realized we had all the motions in limine.

  5   Uh, I don't know if counsel has a problem with that if

  6   it works both ways.     If the do non-design experts cannot

  7   testify about design issues only the design experts can,

  8   and I know from taking their -- the Plaintiff's experts

  9   depositions the non-design experts all said they weren't

 10   going to talk about design so I don't think there's

 11   really a problem to exclude that.

 12              MR. B. LOPEZ:    Your Honor, I have one

 13   clarification on the motion in limine.      Number 68 it

 14   does mention the Plaintiff.       I just want to make sure

 15   that that goes to all parties.       In other words what's

 16   good for the Plaintiff is also good for the Defendants

 17   as well.

 18              THE COURT:    Exactly.

 19              MR. B. LOPEZ:    Thank you, Your Honor.

 20              MR. N. JOLLY:    All these limine orders apply

 21   to every party in the case.       Right?

 22              THE COURT:    Right.

 23              MR. N. JOLLY:    Thank you, Your Honor.

 24              MR. GRIFFITH:    That's even better.

 25              THE COURT:    So, with those last statements

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   that Mr. Griffith just made what is your position on

  2   that, Mr. Jolly?   I mean, are you in agreement that the

  3   non-design experts are not going to talk about design

  4   defects?

  5               MR. N. JOLLY:   No.   There are experts who will

  6   testify to the practical effect of the design defect on

  7   the building system and what he's trying to do is he's

  8   trying to exclude Mr. Holder's testimony about the

  9   effect of the air-conditioning design and we are not

 10   going to agree to that.     The man is not a professional

 11   engineer.   He's not the one providing the opinion about

 12   what is defective with the design, but he installed

 13   air-conditioning systems and evaluated those systems for

 14   over 50 years.   So, he can opine on what the effect of

 15   the design has on the practical -- on the system.

 16               MR. GRIFFITH:   Your Honor, the concern I have

 17   is as you knokw now the certificate of merit is required

 18   just like with doctors now, to sue engineers and

 19   architects you actually have to have an architect or

 20   engineer in the field make those opinions that they did

 21   something wrong.   That's the way the State legislature

 22   has required the proof to be, and so my concern is that

 23   you can't just get a person that is an HVAC contractor

 24   or person that does exactimate programs and have them

 25   opine that the design professionals did or did not do

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   something properly.     I mean, that clearly is not

  2   allowed.   It would be like having a lay person testify a

  3   doctor did something wrong.     That's not allowed.

  4              MR. N. JOLLY:    And -- I'm sorry.

  5              MR. GRIFFITH:    And so, so my concern is that

  6   before one of the design professionals -- non-design

  7   professionals --

  8              THE COURT:    Can we get like into specifics

  9   here?   Because you are talking in a very broad manner.

 10              MR. GRIFFITH:    Uh-huh.

 11              THE COURT:    Is there a motion that you have

 12   before the Court --

 13              MR. GRIFFITH:    Yes.

 14              THE COURT:    -- where you are trying to strike

 15   one of his experts based on these statements that you

 16   are making that you've gotta design -- a non-design

 17   expert talking about a design defect.    Is there a

 18   specific expert that you are seeking to strike so that

 19   we can just go ahead and argue that motion.

 20              MR. GRIFFITH:    I am not striking, I am

 21   limiting the testimony.     Bill Holder has a lot of things

 22   he can say to this jury that are completely valid for

 23   him to say.   He just can't get into design perameters

 24   and even he acknowledged that.     That's my concern.   I

 25   don't know what they are going to testify to --

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229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1               THE COURT:   Well then why --

  2               MR. GRIFFITH:   We want to do a motion in

  3   limine and before they bring up design issues we

  4   approach.    That might be better than just excluding it.

  5               THE COURT:   Do you have an issue with that

  6   procedure?

  7               MR. N. JOLLY:   I would suggest carrying it

  8   because --

  9               THE COURT:   Yeah, let's carry it.

 10               MR. N. JOLLY:   When you hear the man's

 11   testimony you are going to immediately --

 12               THE COURT:   We'll carry it.    When it gets to

 13   that point you can approach the bench.

 14               MR. GRIFFITH:   As long as before they solicit

 15   any design --

 16               THE COURT:   Right.

 17               MR. GRIFFITH:   -- expertise from a non-design

 18   professional, we have a chance to discuss it with you.

 19               THE COURT:   Right, we'll approach the bench

 20   and if we have to take it outside the presence of the

 21   jury, we'll do that.     Okay.

 22               MR. GRIFFITH:   Thank you, Your Honor.

 23               THE COURT:   Okay, so that was the Plaintiff's

 24   motion in limine.    Correct?

 25               MR. SMITH:   Yes, Your Honor.

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229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1               THE COURT:   Now, we have Descon's.   Let me

  2   look at that one.    And then before you leave we need to

  3   talk about the trial, how long y'all think it's going to

  4   take.    And I am not going to be taking breaks just so

  5   you know.    Even though I have Court the Duval County, or

  6   Jim Hogg County, I will will get a visiting Judge to go

  7   to those counties.    I am not going to break in between

  8   the trial, I am not going to do that, and I think

  9   somebody said it was going to take three weeks.       No it's

 10   not.    We'll be here at 8:00 o'clock in the morning and

 11   if we have to go through 6, 7 or 8:00 o'clock at night,

 12   we are going to do that.     If we have to work on the

 13   weekend, we are going to do that.     We are not going to

 14   take three weeks to try this case.     So FYI, if you have

 15   vacation plans or whatever, sorry.     We are going to try

 16   this case until we finish it.     Just so you know.   So you

 17   might as well get cosy here here.     Get a hotel room

 18   because you are going to spend a lot of time in Starr

 19   County and you are going to do it in an efficient

 20   manner.    If we have to start at 7 a.m., and I can get

 21   the jury here at 7 am, that's what we'll do.      So I hope

 22   you are all early risers.

 23               MR. OLIVEIRA:   Can we have an agreement, uh,

 24   that, uh, I guess by 5:00 p.m., uh, each day that, uh,

 25   whoever is presenting witnesses will agree to tell you

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   who the witnesses are?

  2              THE COURT:   Absolutely.    You are going to do

  3   that.

  4              MR. OLIVEIRA:   Because that will expedite

  5   things a lot.

  6              THE COURT:   Yes, because you are going to, you

  7   know, you are not going to be trying, you know,

  8   preparing for cases that are, I mean, for witnesses that

  9   are not even going to be called until three days later,

 10   you are going to prepare for the witnesses that are

 11   going to be called the next day.      So, yes you all need

 12   to exchange, you know, witness list and, you know, you

 13   don't have to strategize -- give away your whole

 14   strategy, but you do have to tell each side what

 15   witnesses you are going to call the next day so they can

 16   prepare.   I mean, that's fair game here.    Come on.

 17              MR. OLIVEIRA:   It does expedite things.     I

 18   guess if we do start on Monday, assuming that we get to

 19   any witnesses on that Monday after voir dire, we just

 20   could ask that by Friday afternoon they tell us who

 21   their first one or two witnesses will be.

 22              THE COURT:   Okay.   They are going to tell you

 23   what their first four witnesses are going to be and then

 24   y'all are going to do the same.

 25              MR. OLIVEIRA:   Okay.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1            THE COURT:     Are we starting at 9 or at 1:30

  2   for jury selection?

  3            ASSISTANT COORDINATOR:      Jury is 1:30.

  4            MR. OLIVEIRA:     We won't get into my witnesses

  5   on Monday then.

  6            THE COURT:     Probably not.   And you are not

  7   going to take hours upon hours on voir dire either.

  8            MR. OLIVEIRA:     How much time will you give us

  9   on voir dire?

 10            THE COURT:     I mean you do have to ask them

 11   obviously a lot of questions, do you have kids in

 12   school, are they teachers, are they affiliated with the

 13   school in any way shape and form.     I understand you have

 14   to get into that in voir dire and voir dire the jury

 15   completely.   I think we got some -- I hope we brought

 16   some extra -- Eduina.    I hope we gotta lot of extra

 17   jurors because last time we almost didn't make it.

 18            ASSISTANT COORDINATOR:      Yes, ma'am.

 19            THE COURT:     Did we get extra jurors called?

 20            ASSISTANT COORDINATOR:      We requested 550.

 21            THE COURT:     How much do we usually request?

 22            ASSISTANT COORDINATOR:      400.

 23            THE COURT:     400.   So we have 550 coming in.    I

 24   probably should have gotten more.     Hopefully that will

 25   be enough if not I'll send the sheriff to go bring them

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   in.

  2              MR. GRIFFITH:   We haven't talked about -- you

  3   are talking about equalizing strikes for side but would

  4   it be like 12 per side?

  5              THE COURT:   We'll talk about that in a few

  6   minutes at the end or we'll talk about it that morning

  7   but I just want you all to make, you know, don't make

  8   any assumptions that we are going to be breaking in the

  9   middle of the trial because that just -- that's bad news

 10   for both sides.    I mean, people can -- people start

 11   talking in front of the juries, they go to restaurants,

 12   then somebody talks about it a little too loud, so then

 13   they hear something.    I don't go for that.   I don't like

 14   that.   I mean we are going to try this case and we are

 15   going to do it efficiently, and we are going to start

 16   early in the morning, and we are going to work late in

 17   the evenings, and I think the jury would probably

 18   appreciate that anyway.    I know most jurors do want to

 19   work late because they don't want to be here for three

 20   to four weeks.    Then they are going to end up hating one

 21   side or the other, and whoever is the hated one will be

 22   in a lot of trouble.    So, I mean y'all have to, you

 23   know, you don't have to say the same thing five times

 24   because if you do, I mean, you know, all of you have

 25   tried a lot of cases, I don't have to tell you.    We've

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   all been on the ends of zero verdicts and, you know, 52

  2   million dollars verdicts, so we kind of already know

  3   that.    Nobody is --

  4               MR. GRIFFITH:   We tried --

  5               THE COURT:   I don't see any spring chickens in

  6   the courtroom.

  7               MR. GRIFFITH:   We tried these cases before and

  8   they typically take 3 weeks or 4 weeks just so you know,

  9   you may want to consider paying the jury a little extra

 10   because they are going to be there for -- I mean there

 11   really is, even if we work 7 to 7 every day getting it

 12   done in two weeks would be --

 13               THE COURT:   I would hope you all would enter

 14   into a lot of stipulations, and look at qualifications

 15   and figure out do you really have to go through the 20

 16   papers that your expert wrote because guess what?     The

 17   jury is not going to care.     I am telling you.   They are

 18   not.    So y'all think about how you are going to play

 19   that because if you want to piss them off, well hey you

 20   know that's your call, but I am not going to put up with

 21   any redundant testimony.     And I mean I am just telling

 22   you now.

 23               MR. GRIFFITH:   I agree.   We put on 23

 24   witnesses on last week in Hidalgo County in three days.

 25               THE COURT:   23 witnesses?

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1             MR. GRIFFITH:    In three days.

  2             THE COURT:    Oh okay.    Who was the Judge?

  3             MR. GRIFFITH:    Bobby Flores.    And we did the

  4   same thing, we started at 8 went to 6, 6:30.

  5             THE COURT:    And you finished the case?   Or

  6   what?   In a week?

  7             MR. GRIFFITH:    On good Friday week.

  8             THE COURT:    Wow.

  9             MR. GRIFFITH:    We got the jury verdict back.

 10             THE COURT:    How long did it take?

 11             MR. GRIFFITH:    Monday to Thursday.

 12             MR. GRIFFITH:    It wasn't a construction case.

 13             THE COURT:    Oh.    I thought it was a

 14   construction case, wow.

 15             MR. GRIFFITH:    But 23 witnesses is a lot of

 16   witnesses.

 17             THE COURT:    Yes 23 witnesses is a lot of

 18   witnesses.

 19             MR. GRIFFITH:    It was construction related.

 20             THE COURT:    I mean just, you know, get to the

 21   good stuff quick and I think the jury will appreciate

 22   that, from both sides.    Okay, let's get to Descon's

 23   motion in limine.    So, uh, number 1 let's talk about

 24   what's agreed and let's start with what's agreed.

 25             MR. N. JOLLY:    That's agreed.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1               THE COURT:   Number one is agreed.   Number 2?

  2               MR. N. JOLLY:   Disagreed.

  3               THE COURT:   Okay what the hell does that mean?

  4                               (Laughter)

  5               MR. SMITH:   It's arguing, arguing the charge

  6   that Descon wants you to answer this question no or

  7   Limon wants you to answer this question this way or like

  8   that trying to cut and dice the, uh, the charge or the

  9   questions submitted, uh, as to particular, particular

 10   parties.    It's a comment on, on their evaluation of it,

 11   Your Honor.

 12               MR. N. JOLLY:   Well we got the right to argue

 13   that answering the breach of contract question is did

 14   Descon breach its contract.

 15               THE COURT:   I am going to overrule number 2.

 16   Number 3?

 17               MR. N. JOLLY:   That's disagreed.

 18               THE COURT:   Okay.   Explain number 3 to me

 19   please.

 20               MR. SMITH:   With regard to the idea of trying

 21   to define what bias is, like that, and trying to create

 22   a, uh, create a situation for the jury, uh, that doesn't

 23   need to be addressed with regard to that.

 24               THE COURT:   Okay, give me an example of what

 25   you are talking about because I am not getting it.        And

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   I am not afraid to say that.    I am just not.

  2            MR. SMITH:   I'll tell you what I'll just

  3   withdraw it.   Number 4.

  4            THE COURT:   Okay number 4.

  5            MR. N. JOLLY:     That's agreed.

  6            THE COURT:   Okay, number 5?

  7            MR. N. JOLLY:     Disagreed.

  8            THE COURT:   I'm sorry?

  9            MR. N. JOLLY:     Disagreed.

 10            THE COURT:   Five is disagree.

 11            MR. SMITH:   All 5 asks for is that an

 12   opportunity be made to examine any exhibits before they

 13   are presented or are brought into the courtroom to be

 14   shown to the jury.

 15            THE COURT:   Why is that unreasonable?    You can

 16   bring them into the courtroom.

 17            MR. N. JOLLY:     You have to bring it into the

 18   courtroom.

 19            THE COURT:   Yeah.

 20            MR. SMITH:   I mean bringing it in like

 21   uncovered or whatever and that's all.

 22            MR. N. JOLLY:     I won't do that.   That's not

 23   the way we roll.

 24            MR. SMITH:   That's all.

 25            MR. N. JOLLY:     I won't do that, promise.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1            THE COURT:   So I am going to sustain it

  2   insofar as don't anybody show any exhibits to the jury

  3   until the other party has agreed or the Court has ruled

  4   regarding that.   Number 6.

  5            MR. N. JOLLY:     We agree with everything on

  6   page 3, 6 through ten.

  7            THE COURT:   Okay.

  8            MR. N. JOLLY:     11, 12 and 13 agreed.

  9            THE COURT:   Okay.    14?

 10            MR. N. JOLLY:     Disagree.

 11            THE COURT:   Isn't this kind of the same thing?

 12            MR. N. JOLLY:     We are not gonna pull any fast

 13   ones.

 14            MR. SMITH:   Basically all we are asking is

 15   that we get --

 16            THE COURT:   I mean he's not going to have to

 17   show them to you outside and say hey can I have your

 18   permission, you know, to -- no.      But yes he should not

 19   show them to the jury until you've agreed or I've ruled

 20   if there's an objection.

 21            MR. SMITH:   I agree, Your Honor, and I point

 22   out that these are all couched for all parties.

 23            THE COURT:   Right.    Exactly.   I agree.   So

 24   it's all counsel not Defendant's counsel.     It's opposing

 25   counsel I guess without first allowing opposing counsel

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   to review the same outside the presence of the jury,

  2   offering them before the Court and obtaining a ruling if

  3   such is needed.    So that will be sustained.

  4               Number 15.

  5               MR. N. JOLLY:   Agreed.   16 is agreed.   17 is

  6   agreed.

  7               THE COURT:   What about 18?   Are you alleging

  8   they withheld any evidence?

  9               MR. N. JOLLY:   Well, there's contracts that

 10   are missing, file -- project files that are missing, you

 11   know, it's going to probably likely come up but if you

 12   want to carry that and see.

 13               THE COURT:   We'll carry that over and see what

 14   happens.    Number 19?

 15               MR. N. JOLLY:   Agreed.   20 is agreed.   21 is

 16   agreed.

 17               THE COURT:   22.

 18               MR. N. JOLLY:   22, uh, I mean this is similar

 19   to Mr. Gealy's, uh, issue about other lawsuits because

 20   one of the masonry defects at this school is identical

 21   to one at another school in Edinburg involving the same

 22   mason.    It may come up, it may not but --

 23               THE COURT:   Carry it over.

 24               MR. N. JOLLY:   Okay.

 25               THE COURT:   23.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1            MR. N. JOLLY:    Agreed, 24 is agreed, 25 and

  2   26.

  3            THE COURT:    27.

  4            MR. N. JOLLY:    Obviously the school district

  5   is entrusted with children.   I am not going to bring up

  6   financially challenged but, you know, they are entrusted

  7   with children.   The financially challenged --

  8            THE COURT:    I would allow the first part but

  9   not that it should prevail because it's financially

 10   challenged or super poor or the most poor or whatever so

 11   that will be sustained as modified.

 12            MR. N. JOLLY:    We agree with that.

 13            THE COURT:    Number 28.

 14            MR. N. JOLLY:    I disagree with that.

 15            THE COURT:    So do I.   That's overruled.   29.

 16            MR. N. JOLLY:    We disagree with that one too.

 17   Of course we are going to show exhibits first.

 18            THE COURT:    Yeah, I mean there's gotta be --

 19   that should be sustained.

 20            MR. N. JOLLY:    Yes, ma'am.

 21            THE COURT:    I am sustaining number 29.     Number

 22   30?

 23            MR. N. JOLLY:    Agreed.   31 is agreed and again

 24   32 is agreed with all the parties except the mason.     The

 25   previous lawsuit.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1            MR. B. LOPEZ:   For 32 representing mason,

  2   that's exactly the same as Plaintiffs 68 which you

  3   already ruled on and it's not in the same case.

  4   Whatever Limon may have done in some other school has

  5   nothing to do with what happened at La Grulla.

  6            MR. N. JOLLY:   It probably won't come up but

  7   it might if they open the door for example.

  8            THE COURT:   I'll carry it over just in case

  9   the door is opened.

 10            MR. B. LOPEZ:   Thank you, Your Honor.

 11            THE COURT:   I will make a ruling at that

 12   point.

 13            MR. B. LOPEZ:   Thank you, Your Honor.

 14            THE COURT:   Number 33.

 15            MR. N. JOLLY:   That's disagreed.    The problem

 16   with the way it was written is that he might try to

 17   exclude consulting experts that the retained testifying

 18   experts are relying on like the estimator for example.

 19            THE COURT:   We'll carry that over.    34?

 20            MR. N. JOLLY:   This is the appraisal report

 21   for the replacement cost appraisal of the property.

 22            THE COURT:   We'll carry that you over.      35?

 23            MR. N. JOLLY:   We agree.

 24            THE COURT:   36?

 25            MR. N. JOLLY:   We disagree with 36.    And this

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   is an important part of the case like this.

  2              THE COURT:   I am overruling number 36.   37?

  3              MR. N. JOLLY:   Agreed.

  4              MR. B. LOPEZ:   There is one issue on 37 for

  5   Limon we have an issue with Descon's in the sense that

  6   they agree on it.   There's several exhibits that have

  7   been submitted by Descon which include this and so we

  8   just want to point that out.     The expert report --

  9              THE COURT:   Are you saying 36 or 37?

 10              MR. B. LOPEZ:   I'm sorry 37.   Just one thing I

 11   want to point out on 37 is just about those expert

 12   reports.   I agree with the statement but the reports for

 13   some reason are in Descon's exhibit list.    I don't

 14   believe they should go back to the jury.

 15              MR. SMITH:   I don't disagree with that, Your

 16   Honor, and I am not sure we went through -- and we

 17   amended our exhibit list yesterday to try and take out

 18   duplicatives and issues like that.     I thought that had

 19   been taken care of but perhaps not.

 20              MR. B. LOPEZ:   And it goes for everybody.   But

 21   Descon has it in theirs.

 22              THE COURT:   Right.

 23              MR. N. JOLLY:   There are things in the expert

 24   report that they rely on:    Photos, standards --

 25              THE COURT:   We'll carry it over to see what

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   the specifities are when it comes up.      Okay, 38.

  2              MR. N. JOLLY:    Agreed, 39 agreed, 40 agreed,

  3   41, 42, 43, agreed with everybody except Limon if they

  4   open the door on other lawsuits.

  5              THE COURT:    Okay.

  6              MR. N. JOLLY:    And then 44 agreed.   And 45 we

  7   disagree with that.     Experts are allowed to talk to each

  8   other.

  9              THE COURT:    Any response?    (pause) Okay I am

 10   going to overrule 45.     46?

 11              MR. N. JOLLY:    Uh, well I just don't want to

 12   get put in a box where I can't make comments about

 13   whether or not somebody was credible or truthful.

 14              THE COURT:    I mean you can argue, you just

 15   can't say like I think he's a liar because I have

 16   experiences with him and he's the biggest liar in town.

 17              MR. N. JOLLY:    Ha, ha, yeah I agree with that.

 18              THE COURT:    Ha, ha, ha so you've got to watch

 19   that.

 20              MR. SMITH:    And that's what we are trying to

 21   address.

 22              THE COURT:    But I am going to allow, I mean,

 23   at argument you certainly you could testify, you know,

 24   did you see that witness?       He couldn't even look at you

 25   when he was testifying, and that's kind of an attack on

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   their credibility, which I think every -- everybody can

  2   argue about at a closing argument, I mean, so I am going

  3   to overrule that but just be careful.      I mean, it's not

  4   going to be your personal opinion, it's going to be

  5   based on what you saw at trial.       Right?   I mean not your

  6   personal opinion, based on your personal dealings with

  7   that person.

  8              MR. SMITH:   That's -- 47 goes to the personal

  9   opinion versus what you just mentioned.

 10              MR. N. JOLLY:    We agree with 47.

 11              THE COURT:   Okay.

 12              MR. N. JOLLY:    48, 49.

 13              THE COURT:   Okay.

 14              MR. N. JOLLY:    Disagree on 50.

 15              THE COURT:   I mean well 46 -- I'm sorry, I

 16   said I overruled that.     I'm sustaining it as modified.

 17   You can talk about credibility at argument or when you

 18   are cross-examining I guess your questions will be, uh,

 19   certainly they'll be undertones about credibility, I'm

 20   sure, but you can't say regarding your personal opinion

 21   based on your personal dealings.       So I guess that goes

 22   hand in hand with 47 to some extent.      So just be careful

 23   there.   Y'all know what the rules are.        Okay 49 and 50.

 24              MR. N. JOLLY:    Agreed.    50 disagreed.

 25              MR. SMITH:   Your Honor, with regard to number

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            155
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   50 Mr. Salinas Jr., made --

  2               THE COURT:   Well hold on.   What happened to

  3   49?

  4               MR. SMITH:   That was agreed.

  5               THE COURT:   Okay.   Because there's no spaces

  6   there.    Okay number 50 what?

  7               MR. SMITH:   I'm sorry I didn't see that.

  8   Number 50, Mr. Arcadio Salinas Jr., made a number of

  9   opinions regarding the design of the school, the

 10   placement of the school, the construction of the school,

 11   all matters which he was not, uh, he didn't have a

 12   background in, didn't have expertise in and has not been

 13   designated as an expert witness with regard to any of

 14   that.    He, uh, rather freely and openly just kind of

 15   blurts all these things out which was an abundance of

 16   caution.    We raised this in the motion in limine, uh,

 17   that he's a fact witness and can certainly testify with

 18   regard to --

 19               THE COURT:   To what he saw.

 20               MR. SMITH:   -- the situations, it's just he's

 21   just kind of blurts before anybody --

 22               THE COURT:   Like what would he say?

 23               MR. SMITH:   He says he knew from day one that

 24   this was a horrible school cause nobody would design a

 25   school on the side of the hill.      Uh, he said that the

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              156
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   design was totally inappropriate for South Texas.      He

  2   makes numerous -- two or three hours worth of statements

  3   like that.

  4             THE COURT:    Mr. Jolly, did he do that?

  5             MR. N. JOLLY:    Judge, that's not my

  6   recollection.    He, he's asked and what other problems

  7   are are you aware of and somebody asks what are the

  8   problems you are aware of and he'll let you know.

  9             THE COURT:    Okay, well make sure he doesn't

 10   blurt out any expert, you know, testimony that's within

 11   the realm of an expert and not a lay person.      I am going

 12   to sustain that.    Of course he can talk about his

 13   personal observations.

 14             MR. N. JOLLY:    Right.

 15             THE COURT:    And issues and things of that

 16   nature, regarding the construction or the alleged

 17   defects, but he can't, you know, talk like he's an

 18   expert.

 19             MR. N. JOLLY:    Yes, ma'am.

 20             THE COURT:    Because he's not.   Okay what else?

 21             MR. SMITH:    That's it for Descon's motion,

 22   Your Honor.

 23             THE COURT:    Who else has a motion in limine?

 24             MR. B. LOPEZ:    Limon has one, I think we

 25   circulated it.    I don't know if there are any

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al           157
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   objections.

  2            THE COURT:   I don't know if I have that one.

  3            ASSISTANT COORDINATOR:     Which one.

  4            THE COURT:   Limon's.

  5            MS. COOPERRIDER:     It was e-Filed but I can

  6   give you another paper copy if you would like one.

  7            THE COURT:   Okay.

  8            MR. B. LOPEZ:    The other thing I might

  9   suggest, Your Honor, because a lot of these issues have

 10   already been covered in front of the Court, if we could

 11   take a couple minutes to confer with Plaintiff's counsel

 12   and Descon and see which one we have already discussed.

 13            THE COURT:   Okay.

 14            MR. GRIFFITH:    That also would work with ours

 15   because I think pretty much everything in ours has

 16   already been discussed.   Uh, and to the extent that what

 17   has been agreed to on those is agreed on ours and we are

 18   fine.

 19            THE COURT:   Why don't you all look at them and

 20   I will take my messages on my phone.

 21                             (After a brief recess the

 22                             hearing resumed.)

 23            THE COURT:   Cause number DC-14-46, back on

 24   record, Rio Grande City I.S.D. versus Descon.    We're on

 25   third-party Defendant Limon Masonry's proposed motion.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   Let's start with number 1.

  2              MR. N. JOLLY:     One is disagreed.

  3              MR. B. LOPEZ:     Your Honor, the only --

  4              MR. N. JOLLY:     Well this is the one we already

  5   covered about the previous.

  6              THE COURT:   Unless opens the door agreed.

  7              MR. N. JOLLY:     Yeah agreed.   2, 3, 4 agreed.

  8   5 just depends on if there's some files that are

  9   missing.   We can ask where are your files.      I didn't

 10   keep it and I don't know.

 11              MR. B. LOPEZ:     I'll be candid, Your Honor, we

 12   produced everything we have.      It's just a contract is

 13   what we have.   However, I don't know whether or not we

 14   kept documentation that has anything to do with the work

 15   we did ten years ago.    Just on one and two.    I don't

 16   know that it's relevant whether or not --

 17              THE COURT:   Carry it over and see where that

 18   goes.   Number 6?

 19              MR. N. JOLLY:     6 is agreed.

 20              THE COURT:   7?

 21              MR. N. JOLLY:     Well, I mean if the man is no

 22   longer in business might be one thing.      Certainly I am

 23   not going to bring up whether he's bankrupt or having

 24   financial difficulties, but if he's out of business.

 25              THE COURT:   You can say he's out of business

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   but not why.

  2            MR. B. LOPEZ:     Okay.

  3            THE COURT:   So that will be granted.

  4            MR. B. LOPEZ:     Thank you, Your Honor.

  5            THE COURT:   Okay.

  6            MR. N. JOLLY:     Agreed on number 8.   I had no

  7   idea who these guys -- or have been in jail for

  8   something, I don't care.    Agreed on 9, 10, 11, 12, 13.

  9   Disagree on 14.

 10            MR. B. LOPEZ:     Only issue on 14, Your Honor,

 11   is just to the extent any of the experts are going to

 12   testify just as we have already established in their

 13   written report that they produced, not somebody who is

 14   going to raise something new we have no knowledge of.

 15            MR. N. JOLLY:     Okay, there's things in the

 16   report, then their deposition is taken, and if somebody

 17   doesn't ask the appropriate question during the

 18   deposition you can't expect them to tell them every

 19   single opinion they might have.

 20            THE COURT:   I am going to deny that one.

 21   Number 15?

 22            MR. N. JOLLY:     Agreed.

 23            MR. B. LOPEZ:     16 is withdrawn, Your Honor.

 24            THE COURT:   Okay.    17?

 25            MR. N. JOLLY:     Agreed.   18 agreed, 19 agreed,

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   20 and 21 and 22 are agreed.

  2             MR. B. LOPEZ:   23 is withdrawn.

  3             MR. N. JOLLY:   Okay.   24 is agreed.   25 is

  4   not.

  5             MR. B. LOPEZ:   Again our issue on 25 is just

  6   related to the insurance question.

  7             MR. N. JOLLY:   Well what's good for the goose.

  8             THE COURT:   I am going to deny number 25.

  9             MR. N. JOLLY:   26 is agreed, 27, 28, 29 are

 10   agreed, 30 is agreed, 31 is not.

 11             MR. B. LOPEZ:   31 is withdrawn.

 12             MR. N. JOLLY:   32, disagreed.

 13             MR. B. LOPEZ:   This goes back to the

 14   documents.

 15             THE COURT:   He said agreed.

 16             MR. B. LOPEZ:   He said agreed?

 17             MR. N. JOLLY:   No, no 32 is disagreed.

 18             THE COURT:   Oh disagreed.    I thought you said

 19   agreed.

 20             MR. B. LOPEZ:   If we can treat it the way we

 21   did the other one we can carry it over when we get

 22   there.

 23             MR. N. JOLLY:   That's fine.

 24             THE COURT:   That's fine.    33?

 25             MR. B. LOPEZ:   Withdrawn.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1            THE COURT:   34?

  2            MR. B. LOPEZ:   Everything else is agreed to.

  3            MR. N. JOLLY:   No, no 34 is not agreed.     You

  4   can't exclude all witnesses.

  5            MR. B. LOPEZ:   I think that's just the rule in

  6   and of itself, but once we invoke the rule that will

  7   take care of that.

  8            MR. N. JOLLY:   Experts are allowed in the

  9   courtroom.

 10            MR. B. LOPEZ:   Okay, we can take that up when

 11   the trial starts.

 12            THE COURT:   Okay we'll carry it over.

 13            MR. N. JOLLY:   35 is agreed.      36, 37, 38 and

 14   39 are agreed.

 15            THE COURT:   Okay.    We need to keep all the

 16   motions in limine together so I can have them at trial.

 17   I need all of these in a notebook for trial so I can

 18   refer to them.

 19            ASSISTANT COORDINATOR:     Okay.

 20            MR. GRIFFITH:   Your Honor.

 21            THE COURT:   Okay what was that?

 22            MR. GRIFFITH:   Your Honor, as long as I can

 23   rely on the motions in limine that have been granted so

 24   far, then I don't need to get a ruling on my motion in

 25   limine because it's pretty much the same things.     I only

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   had one that I had an issue on which is number 63.      I am

  2   withdrawing everything -- well I am withdrawing subject

  3   to the fact that I'll be able to rely -- everything else

  4   has been reciprocal so far.

  5            THE COURT:   Right.    Everything is reciprocal.

  6            MR. GRIFFITH:   And it applies to all parties.

  7   On that -- given that fact then I can withdraw mine

  8   except for I need to know whether Mr. Jolly will agree

  9   to number 63.

 10            MR. N. JOLLY:   Yes.

 11            MR. GRIFFITH:   Okay.    63 is just discussing --

 12   there are no punitive damages pled, just discussing the

 13   financial condition of ERO, their revenue stream, what

 14   they are doing, those kind of things.    What kind of

 15   money they are making.

 16            THE COURT:   Okay.

 17            MR. GRIFFITH:   That's all I have, Your Honor.

 18            THE COURT:   Okay, Mr. Garza.

 19            MR. GARZA:   Your Honor, may I give you a

 20   courtesy copy of the motion in limine?

 21            THE COURT:   Okay.

 22            MR. GARZA:   I had filed 47 items but again

 23   with all the prior rulings by the Court I think 44 have

 24   gone away as long as I understand they are all

 25   reciprocal.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1               THE COURT:   Right.

  2               MR. GARZA:   The 3 I have and I discussed with

  3   Mr. Jolly I understood he was opposed to them.      Number

  4   33 says testimony that this defendant -- my client again

  5   is the roofer, Your Honor, C & M contracting -- that,

  6   uh, any testimony that my client may have violated any

  7   federal or state statute or building codes without first

  8   proving that those codes apply.       Uh, there's been a lot

  9   of testimony by different experts about what codes may

 10   have applied and I think that it's incumbent upon the

 11   Plaintiff to first establish what code applies before

 12   they have experts opining on alleged violations.

 13               THE COURT:   Okay we'll carry that over.

 14               MR. GARZA:   Okay.    I am going to jump to

 15   another one and leave the last one at the end.      Number

 16   43, Your Honor.   It's handwriting and other markings on

 17   exhibits.   This should be for everybody.     If anybody

 18   introduces an exhibit that has any handwritten notes on

 19   it, we need to establish before it's presented to the

 20   jury whose notes they were.       I mean, if it's an expert

 21   and he wrote on the notes that's one thing, but we don't

 22   want somebody who may have written things on a document

 23   that have not been presented until it's established who

 24   it is.   That's number 43.

 25               MR. N. JOLLY:   There's been a bunch of

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   documents produced with handwriting on them and during

  2   deposition, uh --

  3            THE COURT:    We'll carry it over, we'll look at

  4   the handwritten parts.

  5            MR. N. JOLLY:    Yes, it just depends really.

  6   Some I might agree but some the witness may have been

  7   questioned about it.

  8            THE COURT:    Okay.

  9            MR. GARZA:    The other one I have, Your Honor,

 10   is number 36, references to hearsay sources which also

 11   sort of goes with number 45 which the Court had ruled on

 12   earlier on Descon Construction.   In my particular case

 13   as the Court knows you took under advisement our motion

 14   to exclude Mr. O'Bannon's testimony.   He relied on that

 15   one-page document from a person who to my knowledge has

 16   not been identified as a consulting expert and his

 17   testimony he never got any supporting documentation.

 18   So, I need to make sure that I, if the Court doesn't

 19   grant my motion as it pertains to my client, C & M, I

 20   need to be able to -- the Plaintiff has to be able to

 21   establish before he starts asking him about that

 22   document, you know, under the hearsay rules to make sure

 23   it's not hearsay before it can come in.   That's the

 24   intent of 36, which I think goes hand in hand with the

 25   45 from before.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1              THE COURT:   I'll carry that over also.

  2              MR. GARZA:   That's all I have, Your Honor,

  3   thank you.

  4              MR. GEALY:   Your Honor, on behalf of Halff, we

  5   only have I think two issues, that's number 3 and 4.

  6   And otherwise as Mr. Griffith has said to the extent

  7   rulings have been made on prior motions that those apply

  8   equally.

  9              THE COURT:   Okay we'll go ahead and carry that

 10   over.    And which other one?

 11              MR. GEALY:   Just 3 and 4.

 12              THE COURT:   Do you agree to number 4 Mr.

 13   Jolly?

 14              MR. N. JOLLY:   No, Your Honor.    That, that's

 15   the one about opining on negligence.     I think experts

 16   are entitled to --

 17              MR. GEALY:   Without laying a proper predicate.

 18              MR. N. JOLLY:   I agree to that.

 19              THE COURT:   That's all he's saying, without

 20   laying the proper predicate.

 21              MR. N. JOLLY:   Oh, okay.    Yes we plan to do

 22   that.

 23              THE COURT:   Okay.

 24              MR. GEALY:   Thank you.

 25              MR. GROSS:   Your Honor, Louis Gross on behalf

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   of Twin City Glass.

  2             THE COURT:    Okay.

  3             MR. GROSS:    Your Honor, our motion in limine

  4   has been submitted to all parties, it was reviewed by

  5   Plaintiff and counsel for Descon, and no objections,

  6   Your Honor.   Easiest way would be just to submit it as

  7   agreed.

  8             MR. N. JOLLY:    Well, yeah, I didn't see

  9   anything in there that wasn't duplicative.     That was the

 10   conversation we had.

 11             MR. SMITH:    That was my quick review was that

 12   it's all been covered so we have no objection.

 13             MR. N. JOLLY:    Wasn't there one at the very

 14   end, John, that, uh, was perhaps additional?

 15             MR. GUERRA:    You said you didn't have a

 16   problem but you thought Descon might.

 17             MR. N. JOLLY:    Oh.

 18             MR. SMITH:    Well let me look at it.

 19             MR. N. JOLLY:    Well there's one here about the

 20   welfare of the children, that's the only one I think

 21   that has already been covered though that the safety of

 22   the children is relevant.

 23             MR. SMITH:    I don't have an objection.

 24             THE COURT:    Okay.    So everything is agreed to.

 25   Okay.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1            MR. DUNNAHOO:     Your Honor, Michael Donnahoo

  2   for Zarate Suspended Ceilings.    I filed a motion in

  3   limine and order granting same circulated among counsel.

  4   I don't believe there's been any opposition filed to it.

  5   Uh, I would however state that I probably need to

  6   withdraw number 27 on mine which, uh, dealt with --

  7            THE COURT:   I don't have a copy of that one in

  8   front of me.   Do you have one?

  9            MR. DUNNAHOO:     Yes, I have, Your Honor.

 10   Number 27 dealt with defense cooperation and, uh, so I

 11   want to withdraw that subject to the Court's ruling from

 12   earlier today.

 13            THE COURT:   Okay.    So that's withdrawn.

 14            MR. DUNNAHOO:     Number 27.

 15            THE COURT:   Everything else is agreed.

 16            MR. DUNNAHOO:     It's pretty duplicative.

 17   There's an issue that Descon's counsel and I have

 18   discussed.

 19            MR. SMITH:   We have an understanding about,

 20   uh, about how we are going to be presenting subcontracts

 21   and all with regard to, uh, uh, presenting them, but not

 22   referring to them as a duty or like that until after

 23   they come into evidence.

 24            THE COURT:   Okay.    I am not following you.

 25            MR. SMITH:   I just wanted to make known that

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   the extent that our discussion is that in identifying

  2   who the parties are and all we will be referring to the

  3   subcontract that they had a subcontract to do work as

  4   set out in there, that that would be the extent of it,

  5   that that we would not go into, uh, delegating duties to

  6   them, that that wouldn't come up until subcontracts were

  7   admitted.

  8               THE COURT:   Okay.

  9               MR. DUNNAHOO:   That is my understanding of our

 10   discussion and agreement.

 11               THE COURT:   Okay.   Anything else?

 12               MR. N. JOLLY:   The only other thing we had,

 13   Your Honor, was we were trying to subpoena Mr. Smith and

 14   haven't been able to find him, but I assume that I

 15   believe he's still the designated representative of

 16   Descon for trial.   If we can have an agreement that if

 17   we need to call the gentleman --

 18               MR. SMITH:   Michael C. Smith is the designated

 19   representative and my understanding is he'll be here.

 20               MR. N. JOLLY:   Okay.   And so now that we have

 21   some newly identified Smith family members, uh, the

 22   Plaintiff needs leave to add those people to the witness

 23   list and cooperation from Descon to make them available

 24   during our case in chief within 24 hour notice.

 25               MR. SMITH:   Your Honor, we cannot agree to

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   that with anybody that's been added.    I know the Court's

  2   ruling and I am not ignoring that.     I have not talked to

  3   these people beyond providing them with a copy of the

  4   pleading and telling them to forward it on to their

  5   insurance carriers and forwarded it on to their legal

  6   counsel.    We will inform them of the Court's ruling.    I

  7   probably already have, uh, through the office, of the

  8   Court's ruling, but I can't stand here today and say

  9   that I have their understanding and cooperation and will

 10   be able to bring them here.

 11               MR. N. JOLLY:   Well and the same would apply

 12   to Wayne Medlin.

 13               MR. SMITH:   I have not discussed it with

 14   Mr. Medlin.    Mr. Medlin has issues, health issues, uh,

 15   mental issues.    In fact I am not even sure that

 16   Mr. Medlin has the capacity to be sued, mentally,

 17   without the appointment or somebody to represent his

 18   interests.    Those are all issues that, uh, he's going to

 19   have to deal with or his family deal with.

 20               THE COURT:   This is the first time that comes

 21   up?

 22               MR. SMITH:   He basically has dimentia.

 23               THE COURT:   Is this the first time that this

 24   comes up?

 25               MR. SMITH:   We have never been asked to --

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   with regard to Wayne Medlin to produce him for

  2   deposition or anything else.     We did not, uh -- it's

  3   never been addressed because it's never been an issue,

  4   Your Honor.

  5              MR. N. JOLLY:    Well, he's the legal

  6   representative in the contract and we have consistently

  7   indicated that everybody signing agreements, everybody

  8   signing documents, everybody acting as representative,

  9   everybody identified in everything might be called as a

 10   witness and Mr. Medlin is one of the presidents of the

 11   predecessor to Texas Descon.     Uh, you know, I mean

 12   without -- I, I -- I don't know how you know what the

 13   man's condition is but, uh, you know, you did -- we did

 14   manage to get a real quick affidavit from Mr. Smith.

 15              MR. SMITH:    Mr. Smith is available and Mr.

 16   Smith will be here.     It's Michael C. Smith.   Mr. Medlin

 17   I became aware of it and all when we tried to talk to

 18   him or someone in our office tried to discuss with him

 19   what you filed last week, and I was told that he

 20   repeated the same thing four or five times in the first

 21   couple minutes of discussion.     Hi, how you doin', who

 22   are you?

 23              MR. N. JOLLY:    These other Smiths are

 24   relatives, they are sons, nephews, cousins, you know,

 25   they are going around changing the name of the party

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   defendant in this case.

  2               MR. SMITH:   Well I understand that's

  3   Plaintiff's counsel's position, I understand the Court's

  4   decision, but certainly I don't agree with what

  5   Plaintiff's counsel has represented.    Uh, we have made

  6   it known to them, he's basically asking me if I can

  7   produce, if I can agree today that they'll be here and

  8   be ready for trial as a witness and we have given them

  9   the, uh, pleading, we have told them to put their

 10   insurance companies on notice, we told them to get their

 11   counsel involved and to talk to their counsel about it

 12   and figure out what needs to be done.    We will have

 13   either told them already today or certainly will by

 14   tomorrow morning what the Court's ruling has been and we

 15   will have to discuss with them and their counsel what

 16   the involvement of their counsel, us, or anybody else is

 17   going to be.   So, all I'm saying is no I cannot stand

 18   here right now before the Court and positively state

 19   that yes these people will be here and will be available

 20   for trial.

 21               MR. N. JOLLY:   How about this, Your Honor?

 22   How about if we are provided the -- a reliable address

 23   to contact these gentlemen and serve them with a

 24   subpoena?

 25               MR. SMITH:   As far as -- I have no problem

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   with that as far as I know, you know, where Texas Descon

  2   is, you know, where Michael C. Smith, you've sued them

  3   before.

  4             MR. N. JOLLY:    Every time my guy walks in

  5   there he's told he can't see them.    So, you know, they

  6   are avoiding process.    Frank has been over there three

  7   times.

  8             THE COURT:    You are to provide an address

  9   immediately.

 10             MR. SMITH:    I will, Your Honor.   I don't know

 11   where this Frank has gone to.    Michael D. Smith as I

 12   understand it resides in, uh -- outside of San Antonio.

 13             THE COURT:    Do you have the address?

 14             MR. SMITH:    Not on me but I will provide it to

 15   Mr. Jolly.

 16             THE COURT:    Okay you need to do it by 5:00

 17   o'clock today.   You have an hour.   What else?

 18             MR. N. JOLLY:    That's it from the Plaintiff.

 19             MR. B. LOPEZ:    Your Honor, just one thing to

 20   take it up on another point.    There are different

 21   exhibit lists that are circulated.    What's not

 22   circulated are actual physical copies of the exhibits.

 23   We have some objections to Descon's and to the

 24   Plaintiff's exhibits.    Uh, but might make more sense if

 25   we are going to start on that Monday at 1:30, maybe we

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   can all produce all physical exhibits some time that

  2   morning and we can hash it out there.

  3               THE COURT:   Guys, didn't you all -- I told you

  4   all to exchange exhibits and lists before today.

  5               MR. SMITH:   Your Honor --

  6               THE COURT:   That way we would be ready today

  7   because in the morning I've gotta docket.     I have a

  8   criminal docket that I have to contend with that morning

  9   and that's why I said we are not going to be doing any

 10   pre-trial matters that day.     We are going to do

 11   everything on Friday even if we have to work until

 12   midnight, I don't care.     Okay?   I can be here until

 13   midnight today.

 14               MR. SMITH:   Your Honor, we provided a trial

 15   exhibit list, we went through and in view of some

 16   objections and also looking at it to eliminate where

 17   things were listed twice and all, we did an amended

 18   exhibit list, we have provided a FTP link and uploaded

 19   all of our exhibits on that.     Uh, it was done, uh,

 20   yesterday morning.

 21               THE COURT:   So yesterday y'all exchanged

 22   exhibits, everybody?

 23               MR. B. LOPEZ:   Limon Masonry did produce the

 24   exhibits.

 25               MR. N. JOLLY:   I think that I understood

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   exhibit list as opposed to exhibits but we are going to

  2   do the exact same thing that Descon has done.

  3               THE COURT:   Generally shouldn't you all

  4   already know what the exhibits are when the exhibit

  5   list -- the list names the exhibit and it's probably

  6   contract between whatever, whatever, and whoever.

  7               MR. SMITH:   Some of them.

  8               THE COURT:   Everybody should kind of already

  9   know what the exhibits are, I mean, unless there's some

 10   demonstrative or something that no one has shown each

 11   other, I mean, what are we talking about here?

 12               MR. SMITH:   There's some --

 13               THE COURT:   I'm talking to him.

 14               MR. B. LOPEZ:   From Limon Masonry standpoint,

 15   there are numerous demonstratives that are on the list

 16   that should not go back to the jury because they are

 17   demonstratives.   They can be shown to the jury but not

 18   to go back to the jury.

 19               THE COURT:   Well they are not going to go to

 20   the back.

 21               MR. B. LOPEZ:   Second thing, the reports which

 22   we believe are hearsay, any of the experts or parties

 23   can testify about it, but those reports shouldn't go

 24   back.

 25               THE COURT:   Right.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1              MR. B. LOPEZ:   Short of that we actually filed

  2   all our objections to all parties' exhibits and are

  3   prepared to argue them right now.

  4              THE COURT:   Okay.   Are you all ready to go on

  5   those arguments?

  6              MR. SMITH:   We can.

  7              MR. N. JOLLY:   I guess what we are talking

  8   about is Mr. Lopez wants to have a hearing on the

  9   Plaintiff's Exhibit list?

 10              MR. B. LOPEZ:   No, my issue with Descon and

 11   with the Plaintiff really more to Descon, some I think

 12   are the same.

 13              THE COURT:   What exhibits are you objecting

 14   to?   Come forward and let's just do it.

 15              MR. B. LOPEZ:   Okay.

 16              THE COURT:   Did you file an objection already?

 17              MR. B. LOPEZ:   We filed the objections, our

 18   objections to all parties' exhibits.

 19              MR. SMITH:   Your Honor, I hate to ask but you

 20   gave me an hour to get the -- I need to get somebody

 21   to -- can I go out in the hallway --

 22              THE COURT:   Yeah, take a couple minutes and

 23   just hold on Mr. Lopez.    I will let the Plaintiff

 24   address the objections to their exhibits while you step

 25   out and make the call for all of those people's

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   addresses.

  2               MR. SMITH:   Thank you, Your Honor.

  3               THE COURT:   Why don't I see your motion

  4   objecting to their exhibits?

  5               MR. B. LOPEZ:   I can see when we filed it.

  6               THE COURT:   I see your trial exhibits, your

  7   exhibit list, your contentions, your proposed findings

  8   of fact.

  9               MR. B. LOPEZ:   I think when he filed it

 10   yesterday.

 11               THE COURT:   Oh, okay.   Do you have an extra

 12   copy?

 13               MR. B. LOPEZ:   I have one.   Let me see if I

 14   have gotta second one, Your Honor.      (Pause)   May I

 15   approach?

 16               THE COURT:   Yes.   Okay, so let's talk about

 17   the objections to the ones that you have against Rio

 18   Grande City I.S.D.

 19               MR. B. LOPEZ:   Yes, Your Honor.   We tried to

 20   group them because some are covering the same issues.        1

 21   through 24 are the same.     Plaintiff correctly provided

 22   some that were -- that had insurance in there and

 23   they -- then they have some that do not have insurance.

 24   We just want to make sure the ones that mention the

 25   insurance do not go back.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1               MR. N. JOLLY:   We are going to redact

  2   insurance.

  3               MR. B. LOPEZ:   Okay.

  4               THE COURT:   Okay.

  5               MR. N. JOLLY:   I thought we had done them all,

  6   but if somebody sees the word insurance just let me

  7   know.

  8               THE COURT:   Yeah, with reference to the

  9   objections, if you see the word insurance redact it

 10   okay?   Number 26.

 11               MR. B. LOPEZ:   We are going off the fifth

 12   amended list.   It just says on there excerpts from

 13   contracts.   I don't have a problem with any excerpts at

 14   all, we just want to make sure that it's a contract

 15   that's already in evidence.

 16               MR. N. JOLLY:   It will be one that's in

 17   evidence.

 18               THE COURT:   Okay.

 19               MR. B. LOPEZ:   27 and 28 if that's part of the

 20   experts -- I'm sorry, if that's part of the Plaintiff's

 21   production we have no objection to that.

 22               MR. N. JOLLY:   It is.   It was the project file

 23   that the Plaintiff maintained during construction.

 24               THE COURT:   Okay.

 25               MR. B. LOPEZ:   29, Your Honor, I think relates

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   to Ruben Villarreal, some reports that he did.

  2            MR. N. JOLLY:    They are in the binders.

  3            MR. B. LOPEZ:    And the issue I think with

  4   those is he has not -- this is hearsay and he has not

  5   actually testified about those reports.   It's a piece of

  6   paper saying what -- something that he says.   He's never

  7   actually gone and testified about that.   He has not been

  8   produced about that.

  9            THE COURT:    Who is Ruben Villarreal?

 10            MR. N. JOLLY:    He was hired to walk around and

 11   take pictures and report back.

 12            THE COURT:    The ex-mayor?

 13            MR. N. JOLLY:    I am not really sure, Your

 14   Honor, I know his nickname is Chino.

 15            THE COURT:    Oh, the construction guy.

 16            MR. N. JOLLY:    I guess.

 17            THE COURT:    Okay.   And so?

 18            MR. N. JOLLY:    Business records have been

 19   produced, experts are going to rely on them.

 20            MR. B. LOPEZ:    We haven't seen them so if it's

 21   something that --

 22            MR. N. JOLLY:    Yes they have, it's in the

 23   binders that we produced, and so have the photos have

 24   been produced.

 25            THE COURT:    So you've given everybody a copy

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   of your --

  2            MR. N. JOLLY:     Correct --

  3            THE COURT:   -- exhibits.

  4            MR. N. JOLLY:     And Mr. Griffith wanted --

  5   during one deposition found out about the pictures, uh,

  6   because a lot of them were included in the binders that

  7   were produced, but a lot of them weren't and so an I.T.

  8   person went through his old computer and found them and

  9   printed all the pictures out and found them and we

 10   produced them.

 11            THE COURT:   Okay.    Of course you can make your

 12   objections during trial.

 13            MR. B. LOPEZ:     We just want to seem them.

 14   Once we see them we may withdraw that.

 15            THE COURT:   Right.    Of course for like for the

 16   record you are going to have to make your objections

 17   anyway even though we are going through the exhibits

 18   right now.

 19            MR. B. LOPEZ:     Sure.   We had objected to 31

 20   and 32, we are okay with those.     I am assuming it was

 21   part of what was produced.

 22            MR. N. JOLLY:     It was produced, maintenance

 23   orders or requests.

 24            THE COURT:   Okay.

 25            MR. B. LOPEZ:     33 through about 72 the only

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   thing we are objecting to those are those are the expert

  2   reports that we have already discussed that should not

  3   go back.

  4              THE COURT:   They are not going to go back.

  5              MR. N. JOLLY:   Well these are pictures from

  6   the reports, they C.V., excerpts from codes that were

  7   referred to in the reports.

  8              THE COURT:   But he's talking about the report

  9   itself.

 10              MR. B. LOPEZ:   I am not objecting to the C.V.,

 11   I am not objecting to references to code, or pictures,

 12   just the report itself.

 13              THE COURT:   Right.

 14              MR. N. JOLLY:   We are not going to offer a

 15   full report into evidence.

 16              MR. B. LOPEZ:   Okay.    With those being

 17   withdrawn we are okay with the rest as to the experts,

 18   Your Honor.

 19              THE COURT:   Okay.

 20              MR. N. JOLLY:   There's nothing being

 21   withdrawn.

 22              THE COURT:   Right.    It's just not --

 23              MR. B. LOPEZ:   It's not being offered --

 24              THE COURT:   Guys --

 25              MR. N. JOLLY:   There's no offer.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1              THE COURT:    Guys, it's not -- ya, that's

  2   enough.   You know what goes back and what doesn't, you

  3   know, let's move on.

  4              MR. B. LOPEZ:    Okay.   72 through I believe

  5   it's 79, as long as all of those -- we just didn't know

  6   what they were, if that's stuff that's already been

  7   produced we're fine with that.

  8              MR. N. JOLLY:    Okay.

  9              MR. B. LOPEZ:    80 and 81 is talking about

 10   defects map and legend.     There was a document that was

 11   produced I believe.     If that's what that's referencing

 12   we are okay with that, otherwise I don't know what it

 13   refers to.

 14              MR. N. JOLLY:    There is one that will have

 15   every single defect from every piece of testimony on one

 16   final document.

 17              MR. B. LOPEZ:    That's the color --

 18              MR. N. JOLLY:    Is that the one you want?

 19              MR. B. LOPEZ:    I just want to make sure that's

 20   what it is.

 21              MR. N. JOLLY:    Yeah we produced that.

 22              MR. B. LOPEZ:    Okay.   Then we are okay with

 23   that, we just didn't know what it was.

 24              THE COURT:    Okay.

 25              MR. B. LOPEZ:    85 through 97 we have no

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   problem with.    The exemplars we believe which is 98

  2   through 100 of the brick-tie, the brick, and the mock

  3   wall, those are demonstrative.      We have no problem with

  4   the jury seeing them, but they shouldn't go back.

  5               MR. N. JOLLY:   That's right.

  6               MR. B. LOPEZ:   100 through 103, 104, no

  7   problems.   105 again is a demonstrative and 106 is a

  8   demonstrative no problem with the jury seeing it but it

  9   shouldn't be an exhibit.

 10               THE COURT:   Okay, you don't even have to say

 11   that any more.

 12               MR. B. LOPEZ:   Thank you, Your Honor.

 13               MR. N. JOLLY:   The GPR, are you objecting to

 14   that?

 15               MR. B. LOPEZ:   Just the part, uh, --

 16               MR. N. JOLLY:   Demonstrative aide.

 17               MR. B. LOPEZ:   The actual report I have no

 18   problem.

 19               MR. N. JOLLY:   The GPR costs 16, $20,000 and

 20   we are not giving that over to anybody.

 21               MR. B. LOPEZ:   Uh --

 22               MR. N. JOLLY:   It doesn't belong to me.   But

 23   it's a demonstrative aide.

 24               MR. B. LOPEZ:   We have no problems then, Your

 25   Honor, with the understanding that we have already

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   covered some of these and we don't need to take up the

  2   Court's time until we get to, uh, 122.    I just didn't

  3   know who -- when it says Defendant I am assuming that's

  4   Descon?

  5               MR. N. JOLLY:   Descon and potentially ERO.

  6               MR. B. LOPEZ:   We have no objection on that.

  7   123 is demonstrative, we don't need to cover that.

  8   (Pause)

  9               THE COURT:   Go over everything again and then

 10   unless there's anything glaring you can make your

 11   objections as they are offering the exhibits.

 12               MR. B. LOPEZ:   We don't have any objection.

 13               THE COURT:   I guess with regards to Descon I

 14   don't think there's -- is there anything that's just

 15   glaring here or that we have to take up now that we

 16   wouldn't take up while the exhibits are being offered?

 17               MR. B. LOPEZ:   You've already given us

 18   guidance.

 19               THE COURT:   Okay.

 20               MR. B. LOPEZ:   It's going to be the same for

 21   Descon, we have the same complaint about them.

 22               MR. SMITH:   Just so we are clear on it before

 23   I left yesterday to come down here I told Mr. Lopez we

 24   went through and tried to eliminate the duplications,

 25   and tried to address some of his objections, uh, so the

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   list that he's going off of with us has been changed.

  2   There was filed -- I got the filing notice but I don't

  3   have a copy with me -- of an amended trial list exhibit

  4   list that didn't add any new exhibits.

  5              MR. N. JOLLY:   Mine?

  6              MR. SMITH:   No mine.   It didn't add any new

  7   exhibits it just took out, uh, exhibits that were

  8   duplicates and that, uh, he had objections to and like

  9   that.   So I told him if he wants to go through and see

 10   if we have satisfied him I'll address that with him and

 11   I think we can take care of it based on what you've

 12   already ordered.

 13              MR. B. LOPEZ:   With the understanding as long

 14   as everything that you've already discussed, they agree

 15   with that, we are fine with that.

 16              THE COURT:   Okay.   What else?

 17              MR. N. JOLLY:   That's it.

 18              THE COURT:   Is there any other issues that we

 19   need to take up before Monday?     Monday of trial.

 20              MR. GEALY:   Your Honor, there's some documents

 21   out of Mr. Stacy's file, who is the Plaintiff's expert,

 22   that have not been produced, that were not produced at

 23   the time of the deposition.     I made Mr. Jolly aware of

 24   that, he said he's going to go back and get those for me

 25   but I have not gotten them yet.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1               MR. N. JOLLY:   I forwarded that to Mr. Stacy

  2   and I haven't heard from him yet, so I will follow up

  3   and we'll let grant know by e-mail --

  4               MR. GEALY:   That's fine.

  5               MR. N. JOLLY:   -- while we are driving back.

  6               MR. GEALY:   That's fine, I have spoken to him

  7   about it.

  8               MR. N. JOLLY:   Thanks for the reminder.

  9               THE COURT:   Anything else.

 10               MR. B. LOPEZ:   Rule 166, which you asked us to

 11   comply with, it does mention deposition excerpts.      I

 12   don't know who is going to testify live, but I don't

 13   know that we need to take them up if they are coming

 14   live.   At least for Limon's purposes --

 15               THE COURT:   I want to know from the Plaintiff

 16   right now which of your experts are coming live.

 17               MR. N. JOLLY:   Right now four days in a row

 18   worth, uh, Bill Holder, Roland Partida, Randy Lackner

 19   and that's about all we have planned out so far.

 20               THE COURT:   That are coming live.

 21               MR. N. JOLLY:   Correct.

 22               THE COURT:   And for Descon who is coming live?

 23               MR. SMITH:   As far as experts would be, uh,

 24   the gentleman from Wes Chany, I have been working with

 25   them and Legal Arms, Your Honor, that's -- I need to

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   rethink on, uh, that based on the Court's earlier

  2   rulings on summary judgments, but I believe that's the

  3   only one as far as experts other than, uh, former people

  4   with, uh, non-retained that were with, uh, Descon --

  5            THE COURT:   Like who?

  6            MR. SMITH:   Joe Betancourt who was the, uh,

  7   employee of Descon back at the time, it was a job

  8   superintendent, Michael C. Smith who we have told the

  9   Court would be available and would be here as a

 10   representative of Descon, uh, they are the only ones

 11   right now that, uh, I would think.    We have an H.V.A.C

 12   gentleman designated, but I am not sure that we will be

 13   bringing him, uh, based on things that have gone on.

 14            THE COURT:   And Limon?

 15            MR. B. LOPEZ:   We are bringing the

 16   representative from Limon Masonry.

 17            THE COURT:   Who?

 18            MR. B. LOPEZ:   Rolando Limon is going to

 19   testify, and then one expert Mr. Castro who is our

 20   expert witness, and that's all.

 21            THE COURT:   Anybody else?

 22            MR. KASPERITIS:     Your Honor, our witness list

 23   had only two people on it which was the representative

 24   of, uh, D & J Site Construction, the corporate

 25   representative who may testify live and then, uh, our

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al           187
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   expert witness Eric Moody, so that's -- it's Mark

  2   Goldhamer will be the corporate representative and Eric

  3   Moody is our expert.

  4              MR. DUNNAHOO:   For Zarate Suspended Ceilings,

  5   Fred Zarate will be here to testify as well as our

  6   expert witness Matt *Ostrika.

  7              MR. GARZA:   On behalf of C & M Contracting

  8   we'll have our expert Rob Hernandez.      The company has

  9   been closed for several years, the owner of the company

 10   died.   I could bring the widow, I am not sure I want to

 11   put her through that.

 12                              (Laughter).

 13              THE COURT:   Whatever works.

 14              MR. GARZA:   For sympathy I contemplated

 15   bringing her, but right now it would be just that person

 16   and of course myself to the extent that I have to

 17   testify on my attorneys fees and opposition to any claim

 18   for attorneys fees.

 19              MR. GEALY:   For Halff Engineers, Trey Murray

 20   and Bill Harris.

 21              THE COURT:   David?

 22              MR. OLIVEIRA:   I am with Descon.

 23              THE COURT:   That's right.    Okay.

 24              MR. GROSS:   Louis Gross for Twin City Glass.

 25   Our corporate representative Daniel Vasquez and our

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            188
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   expert Darren *Lasker.

  2            MR. O. LOPEZ:     Oscar Lopez.   For ERO it would

  3   be. Eric Green and Dan Medley.

  4            MR. DUNNAHOO:     You are not bringing Block?

  5            MR. O. LOPEZ:     Block I'm sure will be here

  6   but --

  7            THE COURT:     Sometimes less is more.

  8            MR. SMITH:     I just wanted to bring up, I know

  9   nobody really mentioned themselves, I know there's

 10   attorneys fees issues.    I assume people that have

 11   designated attorneys fees issue experts they'll be here

 12   and testifying.

 13            MR. N. JOLLY:     I will be here every day.

 14            THE COURT:     What else do we have to -- well

 15   okay hold on then.    How many are going to call witnesses

 16   by deposition?    I mean, are we talking about 20?

 17            MR. N. JOLLY:     No.

 18            THE COURT:     10, 15, how many?

 19            MR. N. JOLLY:     We are going to call probably

 20   four or five tops.

 21            MR. SMITH:     Assuming that the necessary

 22   Plaintiff's depositions or Plaintiff's witnesses are

 23   presented, we will have deposition excerpts.      If Mr.

 24   Jolly has anybody that he can positively say he's not

 25   bringing, then yes we will address excerpts.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al           189
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1            THE COURT:    Let me make it easy for you.   All

  2   the week, weekend, and during the week, you all will

  3   trade deposition excerpts, and you will have them ready

  4   to go because I am not going to have any B.S.ing during

  5   the trial, oh we need to take a break and bring our I.T.

  6   guy in or I don't know what happened, Judge.   If that

  7   happens you are going to read it.

  8            MR. N. JOLLY:    Oooo!

  9            THE COURT:    I am not going to wait for any

 10   I.T. guys that are not available, that are not here,

 11   that the computer fell apart, I am not going to put up

 12   with that.   We are going to try this case, we are going

 13   to get it done, you are going to have your excerpts, you

 14   better have your I.T. guys, your backups, you do

 15   whatever you have to do, but when it's time to call that

 16   witness, that witness, that deposition is going to be on

 17   a screen and played or you are going to read it because

 18   I am not going to wait.

 19            MR. SMITH:    To aide in that, Your Honor, would

 20   it be possible to ask the Court, uh, to require

 21   everybody to designate off of their expert list, the

 22   list that they have already filed, uh, designation of

 23   experts, anybody that they are not going to call by a

 24   certain date.   Then we'll know.

 25            MR. N. JOLLY:    You know, they just they --

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al           190
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   this goes on and on and on.    Give them an inch and they

  2   want a mile, and they are going to have ours for weeks

  3   while we are in trial and we have theirs yes but, you

  4   know, now they are able to respond to it --

  5             THE COURT:   You all -- all am saying is

  6   whoever you designated that you said -- and you've

  7   already said on the record who you are calling live and

  8   who you are not.   Whoever you are not calling live,

  9   trade your excerpts and do it now.

 10             MR. SMITH:   Okay.

 11             THE COURT:   Like that way you know what you

 12   have to respond to -- like they know -- you know what

 13   they are going to put on so you know what portions you

 14   need to play in response to that, and which of your

 15   experts you want to -- portions you want to play in

 16   response to what he just told you he was going to put

 17   on.   So, --

 18             MR. SMITH:   Well --

 19             THE COURT:   Just do it.   I don't care if you

 20   have to work all weekend, I did it.    My poor kids, you

 21   know, were at home while I was at that time office, 5 in

 22   the morning till midnight or two or three in the morning

 23   and, you know, David Oliveira knows because we did all

 24   those crazy Phen Phen cases and all that other stuff and

 25   we were never home, we always were working.   We all got

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            191
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   up super early, went to bed super late working, and that

  2   happens when you are in trial.

  3              MR. SMITH:   No problem, Your Honor, we'll have

  4   them done.

  5              THE COURT:   For both sides.

  6              MR. N. JOLLY:    Yes, ma'am.

  7              THE COURT:   What else?

  8              MR. SMITH:   Uh, (pause) Just --

  9              THE COURT:   Y'all better look at those jury

 10   charges again.

 11              MR. SMITH:   Oh they need to be --

 12              THE COURT:   I am not going to take 20 hours on

 13   the charge conference.     No way in hell is that going to

 14   happen.   I mean we are going to look at -- you all are

 15   going to know what went before the jury and what was

 16   enough regarding the causes of action and what should go

 17   in and what shouldn't and we are not going to take 20

 18   hours on a charge conference.

 19              MR. N. JOLLY:    His is 230 pages now.

 20              MR. SMITH:   Well it will be drastically

 21   changed since all of the, uh, subcontractors have been

 22   chopped out.   We have the breach of warranty, breach of

 23   contract issues, and the questions with regard to each

 24   of them I had to go through, so we will go through and

 25   take out now what needs to come out.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al           192
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1            THE COURT:   I mean if I were you I would start

  2   now because y'all don't have a lot of time.

  3            MR. SMITH:   No, we are, Your Honor.

  4            THE COURT:   You have what like a week?

  5            MR. B. LOPEZ:   Yes, ma'am.

  6            MR. SMITH:   A week.

  7            THE COURT:   Unless you go settle it.

  8            MR. N. JOLLY:   That's been tried.

  9            THE COURT:   Well keep trying.

 10            MR. SMITH:   So you want us here 9:00 o'clock

 11   on Monday.

 12            THE COURT:   Yeah.   I want you here at 9 clock,

 13   even though we are not going to do jury selection until

 14   1:30, but that way if, you know, many a case has settled

 15   at, you know, courtroom steps, you know, and that way if

 16   there's any other issues we'll take them up then, and

 17   you know, if there's any major issues guys and I mean

 18   this is the way we prepared back then and if there's any

 19   major issues that we have not talked about today that

 20   you know is going to be just a sticking point, do a

 21   letter brief and have it ready.   I mean, we did that all

 22   the time, David and I when we worked on those cases and,

 23   you know, we knew it was an issue that was going to come

 24   up and we just did a little bit of extra work and that

 25   way I don't have to say let's take a recess and let me

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al          193
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   go look and let me get on Lexis or Westlaw or whatever

  2   and let me look for it and let me get -- just get the

  3   cases, hard copy, and bring them and do like a one-page

  4   or a half-page, you know, letter brief and say look this

  5   issue is going to come up, we know it's going to come

  6   up, and you all know already what's going to come up

  7   because you have been fighting for who knows how long

  8   already, and so you all know what's going to come up at

  9   trial and there's going to be particular points of

 10   contention that both of you are going to be digging your

 11   heels in, and I am going to have to make a quick

 12   decision so, you know, help he me out here and help

 13   yourself out because the longer y'all keep that jury in

 14   that box I am telling you the more pissed off they are

 15   going to get, and like I am saying I don't know what

 16   side they are going to be mad at, but they are going to

 17   be mad at someone and it's not going to be me.   So, uh,

 18   so just get it together and that way when we send them

 19   to the back, when we need to get them out of the

 20   courtroom so we can discuss legal issues, that way it

 21   will flow really fast and I will have case law in front

 22   of me and letter briefs in front of me to where I can

 23   read, them and just go back and maybe confirm, and make

 24   a decision, and we move on.

 25            What else do you all think is going to come

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al           194
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   up?   Is there anything off the top of your head?   We

  2   usually take a jury break in the morning like 20

  3   minutes, and we do one in the afternoon also because,

  4   you know, they have got to stretch their legs or

  5   whatever, they get tired of sitting in there in the jury

  6   box all day, so we'll do that.

  7              We'll do like -- generally I do an hour and a

  8   half lunch break but I think I am probably going just

  9   going to be doing an hour.   So, we can, you know, just

 10   get it going.   So, if you can have your staff, you know,

 11   bring sandwiches from Subway or something and maybe I'll

 12   do that for the jury also on some of the days and that

 13   way we can get them in there, and get them out, and

 14   we'll be done because I hate sending -- I mean, y'all

 15   don't want the jury out there anyway.

 16              So, one of the this is that we have done in

 17   the past, even -- I have even paid for it before out of

 18   my own pocket because I hate for them to be out there

 19   because you are going to have witnesses all over the

 20   place, people all over the place, attorneys at

 21   restaurants and everything, you'll be sitting in a

 22   table, right next to someone who is on a jury, or their

 23   family member or whatever, something slips out, then

 24   it's in the box and I don't want any jury misconduct --

 25   juror misconduct issues here.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            195
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1              So, I mean, if we can make life easier by, you

  2   know, we all just get Subway platters or, you know,

  3   whatever, we'll do that and I will send some back to the

  4   jury.   I won't say the Plaintiff bought them for you or

  5   the Defendants bought them for you, I'll just say the

  6   Court got them for you or maybe not, you know, the Court

  7   itselfbut you the county got them or the lawyers all got

  8   together and paid for your sandwiches on both sides.

  9   Maybe that will help also, and I can have them eat in 40

 10   minutes and we'll come back out and just keep going, you

 11   know, it's in your best interest also to just get this

 12   thing behind you, you know so, uh, that's kind of what I

 13   am thinking.   Of course we wouldn't be doing that on

 14   Monday because Monday you are not starting until 1:30

 15   with the jury.    I think the jury is going to be seated

 16   at 12:30 right?

 17              ASSISTANT COORDINATOR:   Yes, ma'am.

 18              THE COURT:   We used to have them come in at

 19   1:30 and it was a disaster.    Then we wouldn't start voir

 20   dire until 2:30.    So we are doing now is bringing them

 21   in and having them seated by 12:30, so you don't want to

 22   be here in here at 12 or 12:30 because the jury is going

 23   to be coming in and we are going to be sitting them

 24   down, but you can be out there or whatever and then you

 25   come in at 1:30 and we'll get you started.   They'll

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             196
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   already be seated, you'll be able to talk to your

  2   partners or whatever local counsel, whatever, and figure

  3   out if you want a jury shuffle or not, and if you do

  4   well then that's going to prolong it but that's your

  5   right.

  6              MR. GRIFFITH:   How many do you anticipate will

  7   be here with 550 requested?

  8              THE COURT:   I'm sorry?

  9              MR. GRIFFITH:   How many do you think will

 10   actually show up?

 11              ASSISTANT COORDINATOR:    We requested 500 at

 12   the last trial that we had, and we had about maybe 120

 13   show up.

 14              MR. GRIFFITH:   Okay.

 15              THE COURT:   It's pretty bad.   Sometimes, you

 16   know, we -- I mean I've had to have people arrested and

 17   brought in because I mean we lose them or like well

 18   instead of getting two alternates I will end up with

 19   one.   On all my criminal cases they don't show up.     And

 20   then half of them say I don't know how to speak English

 21   or whatever and well you are a U. S. citizen and took

 22   the test and you passed it, but they don't want to be

 23   here, I mean, it's ridiculous, it's outrageous, but

 24   nevertheless that's just something we have to deal with

 25   here but, uh --

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            197
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1               MR. GRIFFITH:   Did we discuss how many

  2   strikes.

  3               THE COURT:   No, we haven't done that.    Have

  4   you all talked about it at all?

  5               MR. N. JOLLY:   I thought it was 6 per side.

  6               MR. GRIFFITH:   He said 6 I said 12.   The

  7   problem is that we do have, even though we are all going

  8   to be together, we do have several different camps on

  9   our side.   We have three defendants and we have got at

 10   least 4 third-party defendants on our side.    So I would

 11   think -- I mean just six seems like not enough maybe 12,

 12   10, 12 something like that and they can have the same

 13   number, that's fine.     So 12 each side that way at least

 14   everybody can have some input.

 15               THE COURT:   I am worried if we do 12 are we

 16   going to have enough jurors.

 17               MR. N. JOLLY:   That's too much.

 18               MR. GRIFFITH:   That's 24 I can't imagine --

 19               MR. N. JOLLY:   Well 8 or 9 that's how much we

 20   did the last trial in Zapata.

 21               MR. GRIFFITH:   9 is fine.

 22               MR. OLIVEIRA:   We'll take 9.

 23               MR. SMITH:   Yeah.

 24               THE COURT:   Let's do 9 guys and not because I

 25   don't want to give them to you.     I mean, if it was my

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             198
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   preference I would give both of you 12 or at least 10

  2   but I am scared I will lose my jury and I want

  3   two alternates because guys I've had trials, believe it

  4   or not, where I have lost two out of the jury and both

  5   alternates had to go in.    I mean crazy.   I've never seen

  6   that before and now that I am on the bench I see

  7   everything and it's crazy.    I had a guy not come to

  8   Court, he was a juror and he didn't even come, he didn't

  9   show up, and I'm like go get him, and they brought him

 10   in and I said -- I started the trial without him, I

 11   moved up an alternate, and I brought him and said what's

 12   your problem, why didn't you come, and he said because I

 13   was sleepy.

 14                              (Laughter).

 15              THE COURT:   I was like okay, go to the jail

 16   and sleep for 12 more hours.

 17                              (Laughter).

 18              THE COURT:   It was just ridiculous and we have

 19   to be very careful about even doing that because the

 20   laws are very particular about when an alternate can go

 21   in the box.

 22              MR. B. LOPEZ:   Right.

 23              THE COURT:   It may have been error what I did

 24   but he's got to be completely like unable to perform his

 25   duties.   Not just oh I didn't want to go because I was

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             199
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   sleepy.   And I went back and looked at it later and I am

  2   like God I hope nobody appeals this case.    It was a

  3   criminal case I think it was.     But you know we had to --

  4   we needed to get started but the rules are very clear, I

  5   should have waited, and okay now he's here and let's

  6   call him sleepy or, you know, doupy or call him whatever

  7   you want, but I mean I was like --

  8               MR. OLIVEIRA:   Or dummy or something.

  9               THE COURT:   We couldn't find him and he was at

 10   home asleep and finally the sheriffs brought him in

 11   about noon and I said well I am not going to wait for

 12   him, I mean, I had already started at 9 and then I

 13   thought some emergency had happened or like someone in

 14   his family had a heart attack or he was in the hospital

 15   or something, oh he was sleepy and I was like God how

 16   does this, you know, only in Starr County -- well no

 17   Duval County crazy stuff happens over there too, the

 18   wild wild west I like to call it, but anyway

 19   nevertheless do you all have any other questions?

 20               How much time do you really think you are

 21   going to need for voir dire?     Was that going to be your

 22   question.

 23               MR. B. LOPEZ:   No, Your Honor, my question was

 24   just from the numbering standpoint.     Where do you start

 25   with number one and how do they run it across for the

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   jurors?   In other words where they are going to be --

  2              THE COURT:   We start number one and go this

  3   way and I'm glad you kind of brought that up because we

  4   are not going to do general and specific.     We are going

  5   to do general voir dire.

  6              MR. B. LOPEZ:   Okay.

  7              THE COURT:   I am -- they are all going to have

  8   numbers, and then like if you ask -- if you ask a

  9   question are any of you employees of the Rio Grande City

 10   School District or any of your family members, they

 11   raise their numbers, you write their numbers down and

 12   then you ask them.   We are not going to go the way Judge

 13   Gabert used to do it which I kind of liked it when I was

 14   a lawyer, but now as a judge I don't like it because

 15   then, you know, each side goes okay juror number 1, you

 16   know, you do all the general and then you go specific,

 17   we'll be here until midnight.      So, the way we are going

 18   to do it is they are going to show their numbers.

 19              MR. GRIFFITH:   Combined.

 20              THE COURT:   You write the numbers down and ask

 21   them you answered the question, you raised your number

 22   when I asked you, you know, if you were a member, you

 23   know, worked for the school district, or your family,

 24   what do you do, and would it affect you and whatever.

 25   You've got to ask your questions right then and there

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   right after, you know, get the numbers down.

  2              MR. GRIFFITH:   Obviously if something comes up

  3   for cause obviously it's for cause right there.

  4              THE COURT:   You approach the bench.

  5              MR. GRIFFITH:   Can we bring three or four in

  6   at the very end after they have been excused, we need to

  7   talk to these three or four on the for cause.

  8              THE COURT:   You can leave it until the end of

  9   your voir dire and then bring them up.

 10              MR. GRIFFITH:   Right.

 11              THE COURT:   Before the other side starts.

 12              MR. GRIFFITH:   Before?   Okay.

 13              THE COURT:   Or we can do it either way

 14   whatever is more efficient.    I am not going to hold it

 15   against you if you don't do it right then and there.      If

 16   you want to wait until the end of the voir dire.

 17              MR. GRIFFITH:   Specially something private.

 18              MR. B. LOPEZ:   If it's a private matter yes.

 19              THE COURT:   You need to be careful about the

 20   questions you ask them because sometimes they answer a

 21   question and sometimes they just infected the whole

 22   panel.   So you've got to be really careful with some of

 23   these defect questions that you are going to ask about

 24   because all I need is for somebody to say oh yeah I saw

 25   that, you know, the wall was shifting and then it's like

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            202
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  1   okay here we go, you know, I mean, you've got to be very

  2   careful about the invited responses that are going to

  3   come from your questions.

  4              MR. GRIFFITH:   We are used doing it that way,

  5   it's not a problem, do the general and specific at the

  6   same time, that's how we do it.

  7              MR. B. LOPEZ:   It's going to be 1 through 9

  8   and then 10 starts behind one, right?

  9              THE COURT:   Right.

 10              MR. B. LOPEZ:   Those are going to be

 11   afterwards.

 12              THE COURT:   This is going to be the end,

 13   right.   You start 1, 2, 3, and then let's say number 50

 14   is back there, then you start 51 and go that way.      How

 15   much time honestly, guys, I mean, do you think that you

 16   all need for jury selection?

 17              MR. GRIFFITH:   I need 20 minutes for my

 18   architect client.

 19              MR. B. LOPEZ:   I would like to do about 20 I

 20   think.

 21              MR. GRIFFITH:   And then maybe 20 minutes with

 22   the other defendants.

 23              MR. GEALY:   About 20.

 24              MR. B. LOPEZ:   Not much time.

 25              MR. OLIVEIRA:   I think we can do an hour total

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   per side.

  2               THE COURT:   About an hour per side?

  3               MR. GRIFFITH:   Give us a little bit of

  4   discretion.

  5               THE COURT:   A little bit of leeway but don't

  6   say an hour and then you are two hours.

  7               MR. GRIFFITH:   No.

  8               MR. OLIVEIRA:   I tried cases before Darrel

  9   Hester and it was 15 or 20 minutes tops and if you went

 10   over it you were dead.

 11               THE COURT:   Yeah, if you are the only one

 12   talking remember guys, you are not doing a good job.

 13   They are the ones that are supposed to be talking not

 14   you, but I mean, I do know you have to ask certain

 15   questions and, you know, tell them a tiny bit about, you

 16   know, what the case is about and in a few sentences, but

 17   you are not going to go into detail at voir dire.

 18               What else guys?   What else do you anticipate?

 19   I mean you've tried these construction defect cases

 20   before.    Who else has tried these construction defect

 21   cases?    Then you all need to tell me because this is my

 22   first one -- all the ones we've had in other counties

 23   have settled -- what other issues are we looking at?

 24               MR. GRIFFITH:   A lot of it is taken care of

 25   since they are potentially going to be doing a lot of

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al             204
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   their witnesses by video, that will make things consist

  2   because what we really found on them some witnesses will

  3   go 3, three and a half hours which is just insane

  4   because your normal case is 20 to 45 minutes is about

  5   all the jury can handle, but these guys go for all

  6   afternoon.

  7            MR. B. LOPEZ:    I have a question about the

  8   video, Your Honor.   If you just give some clarification.

  9   I've seen it done both ways.   When a witness is called

 10   by video the Plaintiff will play their side, the

 11   Defendant will play their side, but here we have sort of

 12   different parties.   Do you want us to coordinate to

 13   where we are going to play one video the whole time and

 14   that's it?

 15            MR. N. JOLLY:    We are not agreeing to do that.

 16            THE COURT:    No, no, no.    You play, you play

 17   your side and then since they are going to -- everybody

 18   is going to be exchanging excerpts.

 19            MR. B. LOPEZ:    Correct.

 20            THE COURT:    Then I don't want two of you to

 21   play the same thing.

 22            MR. GRIFFITH:    Right.

 23            MR. B. LOPEZ:    Okay.    So he goes -- Plaintiffs

 24   will go first and then everybody else and we'll

 25   coordinate it.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1            MR. GRIFFITH:   On the defense side.

  2            THE COURT:   Right.

  3            MR. B. LOPEZ:   Okay.

  4            THE COURT:   That's not -- that's agreeable

  5   isn't it Mr. Jolly?   I mean.

  6            MR. N. JOLLY:   Well I am not really sure I

  7   understand what he's talking about.

  8            THE COURT:   What he's saying is that you are

  9   going to play your portion of your witness, and then

 10   let's say Descon plays theirs and then.

 11            MR. GRIFFITH:   ERO.

 12            THE COURT:   ERO plays there's but they are not

 13   going to be repeating what each other played because

 14   they are going to be designating their sections of the

 15   deposition.

 16            MR. GRIFFITH:   We'll coordinate.

 17            THE COURT:   That's going to be questioning

 18   from you that you are going to be playing.

 19            MR. OLIVEIRA:   Correct.

 20            THE COURT:   You are not going to be playing

 21   questions from him.

 22            MR. GRIFFITH:   Potentially I could if they

 23   actually pertain but what we really needed to is they

 24   have their excerpts, they provide them to us, we on the

 25   defense side we'll put in together what we have, so what

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1   we have, so there will be just one.

  2             THE COURT:   So then there was a joint defense,

  3   right?   Ha, ha, ha.

  4             MR. GRIFFITH:   It will be now.

  5             MR. OLIVEIRA:   It will be.

  6             MR. N. JOLLY:   There was.

  7             THE COURT:   Well I equalized the strikes

  8   anyway so I am just -- I better not open another can of

  9   worms here.   Okay.

 10             MR. GRIFFITH:   Well yeah I mean I don't know

 11   that there may be some evidence that's good for Descon

 12   and bad for them.

 13             THE COURT:   I just don't want all of you to be

 14   playing the same excerpts again and again and again.

 15             MR. N. JOLLY:   Or the same video they play.

 16             THE COURT:   In that regard, Mr. Jolly, it does

 17   make sense that they would get together on that.

 18             MR. N. JOLLY:   They have been doing it anyway

 19   might as well continue.

 20             THE COURT:   Exactly.   Ha, ha, ha.

 21             MR. SMITH:   Not exactly, Your Honor.

 22             THE COURT:   Okay.

 23             MR. SMITH:   Ha, ha, ha.

 24             THE COURT:   Well, okay, whatever.

 25             MR. OLIVEIRA:   You are so cynical.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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  1              THE COURT:   Okay.   Whatever.   A ruling has

  2   already been made with reference to that.

  3              MR. SMITH:   Correct.

  4              MR. GRIFFITH:   Exactly.

  5              THE COURT:   Let's not fight about that.

  6              MR. SMITH:   But instead of having Limon just

  7   have one sentence because we'll discuss it and that

  8   would be my druthers would be that it comes as a group

  9   purely for the fact that it would only make sense like

 10   that to the jury.

 11              THE COURT:   I've already said it makes sense.

 12              MR. B. LOPEZ:   Whatever is going to be

 13   fastest.

 14              THE COURT:   Exactly.   And gentlemen, remember,

 15   remember, because all of you are highly intelligent

 16   beings in this room and you all read statistics and a

 17   person's -- the average person, their attention span is

 18   15 minutes.

 19              MR. N. JOLLY:   15 seconds?

 20              THE COURT:   15 minutes.

 21              MR. OLIVEIRA:   That's Norman's.

 22              THE COURT:   Even the rosary it takes 12 to 15

 23   minutes to pray a rosary.

 24              MR. OLIVEIRA:   They lose me at 30 seconds.

 25              THE COURT:   Well there you go.    That's why I

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              208
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   said average person not every person.      I mean, you know,

  2   you start throwing stuff at this jury and, you know what

  3   I am talking about.     An hour long deposition, they are

  4   zoned out after the first I think 10 to 15 minutes.

  5              So, I mean y'all know what -- just -- it's

  6   like my kid when I call him and I want to talk to him in

  7   college, he says mom just give me the main points.

  8                               (Laughter).

  9              THE COURT:    He says main points mom, main

 10   points.   So I am like okay, you need money, I love you,

 11   when can I see you, so I am just like -- because I know

 12   for the rest he's not listening.     So think about that.

 13   What else guys?   Anything else?

 14              MR. GARZA:    For purposes of presentation I am

 15   assuming obviously the Plaintiff goes first, then you'll

 16   go in the order of the defendants Descon, ERO, and get

 17   to the -- eventually get to subcontractors.

 18              MR. GRIFFITH:    There's the Plaintiff, and then

 19   there's Descon, ERO, and Halff, which are the main

 20   defendants, and then there's the third-party defendants

 21   which are now.

 22              MR. DUNNAHOO:    Limon, C & M, Twin City Glass,

 23   D & J, and then Zarate.

 24              THE COURT:    Say that again.

 25              MR. DUNNAHOO:    Third-party defendants include

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              209
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   Limon, C & M --

  2               MR. B. LOPEZ:   Why Limon goes first?

  3               MR. DUNNAHOO:   -- Twin City Glass, D & J, and

  4   then Zarate.

  5               THE COURT:   So Plaintiff will go first, then

  6   Descon, Limon, C & M.

  7               MR. GRIFFITH:   No.    Plaintiff will go first

  8   then Descon then ERO.

  9               THE COURT:   That's right.

 10               MR. GRIFFITH:   And then Halff.   And those are

 11   defendants to the extent that has any importance, and

 12   then the third-party defendants are Limon and down that

 13   list.

 14               THE COURT:   Okay.    And Limon doesn't want to

 15   go first.

 16                               (Laughter)

 17               MR. B. LOPEZ:   We'll do whatever you ask, Your

 18   Honor.

 19               THE COURT:   We'll take it up that way.

 20   Descon, ERO, Halff, and Limon, C & M, Twin City, D & J

 21   and Zarate.    Okay anything else?     (pause) If there's

 22   anything else, uh -- oh, well you know what?      I am going

 23   to be available next week, right?

 24               I had a trial in Jim Hogg County starting on

 25   Monday.   But I've got -- my son is epileptic and he had

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            210
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   an attack, he's at U. T. Austin, and he had a little,

  2   uh, seizure and so we've got an appointment with our

  3   neurologist on Thursday, and so the trial in Jim Hogg

  4   County is going to take a week, so I am getting a

  5   visiting judge.   So, I will be in Jim Hogg County on

  6   Monday to do my regular docket, but a visiting judge

  7   will be taking care of the trial, so then I'll be back

  8   here on Monday afternoon -- well really Tuesday because

  9   I don't know how long I am going to take at my docket up

 10   there.   So, if you all need anything Tuesday or

 11   Wednesday you all can call my coordinator, and if

 12   there's some craziness going on and you need like a

 13   telephonic hearing because y'all are not being

 14   cooperative, uh, and I am not looking at you Mr. Jolly

 15   in a bad way.

 16              MR. N. JOLLY:   I was looking behind me.

 17                              (Laughter)

 18              MR. OLIVEIRA:   He was looking for Mike.

 19              THE COURT:   If there's any shenanigans going

 20   on where somebody doesn't want to give somebody

 21   something, or whatever, call Ana Maria Saenz and we'll

 22   set up a little conference call because I'll be here

 23   anyway and then Wednesday evening I'll probably head up

 24   to Austin.

 25              MR. GRIFFITH:   Will you be back Friday, do you

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al               211
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   think?

  2               THE COURT:   Why?

  3               MR. OLIVEIRA:   Just in case.

  4               THE COURT:   I don't know.    But I mean you can

  5   call Ana Maria and see if there's any issues.       I mean I

  6   at least would be reachable by phone because I think my

  7   nephew is also playing in some game or something in

  8   Austin on Friday.

  9               MR. GRIFFITH:   Wednesday then if we did have

 10   something Wednesday would be the best time.

 11               THE COURT:   Right.   Even Monday.   Monday

 12   Tuesday or Wednesday.

 13               MR. GRIFFITH:   We are not going to fight

 14   enough by Monday to have a problem.

 15               THE COURT:   Probably not but Tuesday or

 16   Wednesday y'all probably will be scratching each other's

 17   eyes out.

 18               MR. GRIFFITH:   Right.

 19               THE COURT:   Or punching each other or doing

 20   who knows what but, uh, who was your mediator?       I should

 21   have sent you all to Bob Thornton like I wanted to.

 22               MR. GRIFFITH:   Steve Nelson.   We are really

 23   far apart though.

 24               THE COURT:   Well get closer.   But anyway, you

 25   know, I can't force you to settle.       I can't.   I wish I

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al              212
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   could but I can't.    Uh, we'll just have to see how this

  2   plays out but, uh, I will be available and, uh, we'll

  3   see how much of it we can do the first week.    How long

  4   did your construction case take in Zapata County?

  5              MR. GRIFFITH:    We settled it but after four or

  6   five days we had only gone through four witnesses.      It

  7   took a long time.    Yeah but because we were doing video

  8   I think some --

  9              THE COURT:    Was that with Tono Lopez, with

 10   Judge Lopez?

 11              MR. GRIFFITH:    Yes.

 12              MR. GUERRA:    Yes.

 13              THE COURT:    He was putting up with you all

 14   four witnesses in four days?

 15              MR. GRIFFITH:    Yes.

 16              THE COURT:    Well I am not Judge Lopez.   He's a

 17   lot nicer than I am.

 18              MR. N. JOLLY:    We were there for two weeks, it

 19   wasn't four days.

 20              MR. GRIFFITH:    But actual -- it took a

 21   while --

 22              THE COURT:    Oh, it was the same parties?

 23              MR. GRIFFITH:    -- before we started putting

 24   on -- yeah, he was the Plaintiff's attorney.    How many

 25   witnesses did you get to?

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al          213
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  1            MR. N. JOLLY:   I know we were there two weeks.

  2            MR. GRIFFITH:   But a lot of it was pre-trial

  3   stuff and things we were arguing about, and no, I think

  4   I only remember four or five witnesses.

  5            MR. N. JOLLY:   And that particular attorney,

  6   uh, for the general contractor, was --

  7            MR. GRIFFITH:   Is not here.

  8            MR. N. JOLLY:   -- was not getting time limits.

  9   He was allowed to go on and on and on.

 10            THE COURT:   That's not going to happen here.

 11            MR. N. JOLLY:   Whether I paper clip something,

 12   the guy had a complaint about everything.

 13            THE COURT:   That's not going to happen here.

 14            MR. GRIFFITH:   If we are tighter it won't

 15   happen here, but the fact that there's 7 or 8 parties

 16   right here tells you that there's at least one expert

 17   that's 8 maybe two experts that's 16 --

 18            THE COURT:   I am telling you about excerpts

 19   and I am telling you to do it this week end and next

 20   week, and if you don't do it you are subject to being

 21   stricken because I am telling you already, I am telling

 22   you to do it now.

 23            MR. GRIFFITH:   I meant experts.

 24            THE COURT:   No, no I heard what you said.

 25            MR. GRIFFITH:   And we have individual

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al            214
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   corporate reps that's another 8 so right there you are

  2   almost to 30 people.

  3              THE COURT:   But when you have a corporate

  4   rep., that's going to testify, you don't need his whole

  5   history.

  6              MR. GRIFFITH:   No.

  7              THE COURT:   I mean just stick to the basics

  8   like what does the jury have to know in order to make an

  9   informed decision here?    I don't want to know how many

 10   dogs and cats and pets and friends he has, I don't want

 11   to know, and what civic organizations, you know.

 12              MR. GRIFFITH:   Although just to be fair, Your

 13   Honor, the school district everybody knows.      Everybody

 14   knows the children of Starr County.    We are coming in --

 15   we are from the Valley but we may be from Hidalgo or

 16   Cameron.

 17              THE COURT:   I am not saying you can't talk --

 18              MR. GRIFFITH:   We have to talk about ourselves

 19   a little bit.

 20              THE COURT:   I am not saying you can't humanize

 21   them or whatever.

 22              MR. OLIVEIRA:   Just do it quickly.

 23              THE COURT:   I don't want to know about the

 24   cats and the dogs, I don't want to know, and my kid's

 25   this Harvard and/or if they are going to say it, say it

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
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          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   in one sentence.   I have 20 grandchildren and I love

  2   them and I see them in the weekends and I'm a great

  3   grampa okay, fine move on.     You tan talk about them to

  4   some extent but I don't want to know what are their

  5   names and how is little Cici doing and --

  6               MR. OLIVEIRA:   No.

  7               THE COURT:   Is she going to private school or

  8   public school or --

  9               MR. OLIVEIRA:   No it will be --

 10               THE COURT:   -- I am not going to let that

 11   happen and I will get really upset, you know, back here

 12   and I am really a nice person so but don't push me over

 13   the edge.

 14               MR. OLIVEIRA:   No it will just be the basic.

 15               THE COURT:   Just what they need to know.    Just

 16   what they need to know, and they'll love you for it.

 17   Just tell them what they need to know.

 18               MR. DUNNAHOO:   Your Honor, one last thing, a

 19   little housekeeping matter.       I know you had a very busy

 20   day --

 21               THE COURT:   I am fine.

 22               MR. DUNNAHOO:   There was Zarate's Motion for

 23   Summary Judgment, and before you take it back to, to

 24   read it, I wanted to make sure that you had available

 25   the reply that Zarate filed to Descon's response.

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al           216
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1             MR. SMITH:   I think there was the summary

  2   judgment, we did a response, they did a reply.

  3             MR. DUNNAHOO:   I don't know if you had a

  4   reply.

  5             THE COURT:   Did you file it?

  6             MR. DUNNAHOO:   We did.

  7             THE COURT:   What am I pending giving you a

  8   resolution on?

  9             MR. DUNNAHOO:   Motion for Summary Judgment for

 10   Zarate.

 11             MR. GARZA:   On behalf of C & M Contracting the

 12   Motion to Exclude Mr. O'Bannon testimony as to the roof.

 13             THE COURT:   Those are the two things I have

 14   left?

 15             MR. B. LOPEZ:   Which Limon joined in as well

 16   for the motion to exclude.

 17             MR. SMITH:   And Descon did as well.

 18             THE COURT:   Okay.   Limon and other defendants

 19   join.

 20             THE COURT:   Okay, guys, have a fun weekend.

 21             MR. B. LOPEZ:   Thank you, Your Honor.

 22             MR. N. JOLLY:   Thank you, Judge.

 23             THE COURT:   Thank you.

 24                           (END OF HEARING)

 25

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
         DC-14-46, RGCCISD v. Descon Construction et al           217
          Pretrial Motions, May 1, 2015, Volume 1 of 1
  1   THE STATE OF   TEXAS    )

  2   COUNTY   OF    STARR    )

  3      I, Ramiro Hernandez, Official Court Reporter in and for

  4   the 229TH District Court of Starr County, State of Texas, do

  5   hereby certify that the above and foregoing pages contain a

  6   full, true, and correct court reporter's record of all

  7   proceedings heard on the record at the hearing of Pretrial

  8   Motions regarding cause number DC-14-46 Rio Grande City

  9   Consolidated Independent School District v. Descon

10    Construction et al, all of which occurred in open court and

11    were reported by me.

12       I further certify that this Reporter's Record of the

13    proceedings truly and correctly reflects that no exhibits were

14    offered or admitted.

15       I further certify that the total cost for the preparation

16    of the expedited original and one copy of this Reporter's

17    Record is $2,170.00 and shall be paid by Mr. David Oliveira or

18    his firm.

19         WITNESS MY OFFICIAL SIGNATURE AND CERTIFICATION
      in accordance with Section 8.11 and 8.11(3) of the Uniform
 20   Format Manual for Texas Court Reporters as ordered by the
      Supreme Court of Texas.
 21
                      /s/ RAMIRO HERNANDEZ     5/3/2015
 22                   ____________________________________
                      Ramiro Hernandez, CSR, RPR, CRR, RMR,
 23                   Official Court Reporter, 229th Judicial
                      District, Starr County, Texas,
 24                   P. O. Box 185, Hebbronville, Tx. 78361-0185
                      Phone: 361-279-6233, 956-487-2636
 25                   Cert. No. 763 Expires 12/31/2016

      Heard By The Honorable Ana Lisa Garza, District Judge
229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas
Tab 2
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Tab 6
                                                                                    Filed: 4/24/2015 3:38:00 PM
                                                                                    Eloy R. Garcia, District Clerk
                                                                                    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                          §
MENTON J. MURRAY, III, P.E., et al                  §                    229th JUDICIAL DISTRICT

              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
        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
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
                                            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
                                                 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 5th 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
Tab 7
Tab 8
Tab 9
                                       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                   §
                                                   §                     229th 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
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
                            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
                                    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
               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 5th Street
                                                               Rio Grande City, TX 78582
                                                               Tel: (956) 488-8170
                                                               Fax: (956) 488-8129

                                                               Eric Jarvis
                                                               5804 N. 23rd Street
                                                               McAllen, Texas 78504
                                                               Tel: (956) 451-5247
                                                               Fax: (956) 687-4001



                                                  5
                                                 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
Tab 10
