                                                                                     ACCEPTED
                                                                                 01-15-00877-CV
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                           10/15/2015 4:07:10 PM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK

                        NO. 01-15-00715-CV

                                                            FILED IN
                                                     1st COURT OF APPEALS
                                                         HOUSTON, TEXAS
          IN THE FIRST DISTRICT COURT OF         APPEALS
                                                     10/15/2015 4:07:10 PM
                      HOUSTON, TEXAS                 CHRISTOPHER A. PRINE
                                                              Clerk



      IN RE CVR ENERGY, INC. AND CVR REFINING, LP,
                            RELATORS


                         Original Proceeding
                th
    From the 268 Judicial District Court of Fort Bend County, Texas
                    Cause No. 2015-DCV-220330
               The Honorable Brady G. Elliott, Presiding



   RELATORS’ EMERGENCY MOTION TO STAY UNDERLYING
LITIGATION PENDING RESOLUTION OF PETITION FOR WRIT OF
                     MANDAMUS


         Phillip D. Sharp                      Lee M. Smithyman
     State Bar No. 18118680               Kansas State Bar No. 09391
 MARTIN, DISIERE, JEFFERSON &         SMITHYMAN & ZAKOURA, CHARTERED
         WISDOM, L.L.P.                 750 Commerce Plaza II Building
      808 Travis, 20th Floor                 7400 West 110th Street
      Houston, Texas 77002             Overland Park, Kansas 66210-2362
  (713) 632-1700 – Telephone              (913) 661-9800 – Telephone
   (713) 222-0101 – Facsimile             (913) 661-9861 – Facsimile
      sharp@mdjwlaw.com                       lee@smizak-law.com
                                        Application for pro hac admission
                                                     pending




                                  1
TO THE HONORABLE COURT OF APPEALS:

      On October 12, 2015, Judge James Shoemake denied the relator’s motion for

leave to designate the real parties in interest/plaintiffs’ employer, Wynnewood

Refining Company, LLC as a responsible third party. Rec. Tab 16. On October

14, 2015, the relators initiated this mandamus proceeding asking the Court to

compel Judge Shoemake to vacate his order denying the motion for leave and to

grant the motion. The relators now seek emergency interim relief, asking this

Court to order a stay of the quickly approaching October 20, 2015 trial setting of

the underlying case in order to avoid otherwise unavoidable error and harm in

trying the underlying proceeding without allowing the jury to consider the

negligence, if any, of the entity that controlled the premises on which the explosion

occurred and who employed Mann and Smith, as well as to allow this Court the

opportunity to thoughtfully consider the pending petition for writ of mandamus.

                       ANALYSIS AND AUTHORITIES
      During the pendency of a mandamus proceeding, this court is authorized to

grant temporary relief, including a stay of an underlying trial. Tex. R. App. P. 10;

see also, e.g., J.G. v. Murray, 915 S.W.2d 548, 551 (Tex. App.—Corpus Christi

1995, no writ). The facts support such relief here.

      This matter arises out of a tragic accident occurring in Wynnewood,

Oklahoma. On September 28, 2012, Russell Mann and Billy Smith, while in the


                                         2
course and scope of their employment for Wynnewood Refining Company, were

assisting in a re-start of a boiler at the Wynnewood Refinery, when the boiler

suddenly exploded, killing both. See Rec. Tab 2 at ¶¶ 15-17. On September 30,

2013, the real parties in interest, sued the relators and Wynnewood Refining

Company, alleging that Wynnewood’s acts and omissions proximately caused

Mann and Smith’s deaths. See id.

      Wynnewood was a defendant in the underlying case from that point until

April 22, 2015, when, despite the fact that the real parties continued to believe

Wynnewood’s acts or omissions proximately caused Mann and Smiths deaths (see

Rec. Tab 8), the real parties non-suited their claims against Wynnewood. Rec. Tab

14.   Less than a month later, on May 18, 2015, the relators amended their

disclosures to identify Wynnewood as a responsible third party and timely moved

for leave to designate Wynnewood as a responsible third party pursuant to the

Texas Civil Practice and Remedies Code. Rec. Tab 9.

      The trial court denied the motion for leave to designate Wynnewood as a

responsible third party on October 12, 2015, eight days before trial in the

underlying proceeding is scheduled to commence. See Rec. Tab 16. For the

reasons noted in the relators’ petition for writ of mandamus, which the relators

incorporate by reference but will not repeat here, there is no proper basis to deny




                                        3
the motion for leave and the trial court abused its discretion by denying the motion.

See Petition for Writ of Mandamus.

       The relators have filed an emergency motion in the trial court, asking it to

reconsider its order denying the motion for leave and asking, in the alternative, for

a stay of the quickly approaching trial to allow this Court the opportunity to

consider the petition for writ of mandamus. Exhibit 1. However, the trial court

has, to date, refused to schedule a hearing despite the relators’ request for same,

and has not ruled on the emergency motion. 1

       While the relators believe that the facts will establish at trial that they are not

liable to the real parties, they cannot agree to try the case under the present

procedural posture. Pursuant to the trial court’s improper ruling on the motion for

leave, the jury would be improperly precluded from considering whether the real

parties’ employer, who was also in control of the premise on which the explosion

occurred, proximately caused the damage about which the real parties’ complain.2


1
  In the event the trial court ultimately orders the trial stayed pending this mandamus proceeding,
the relators’ will withdraw their motion in this Court. If the trial court grants the motion for
reconsideration, the relators’ will dismiss their petition for writ of mandamus.
2
  Indeed, there are other impediments to trying the underlying case at this time as the real parties
are ostensibly seeking to try their wrongful death claims piecemeal, without all of the wrongful
death beneficiaries represented in the lawsuit. See Rec. Tab 15. To recover an enforceable
judgment under Texas’s wrongful death statutes, as the real parties’ seek to do, all of a deceased
individual’s wrongful death beneficiaries are required to present their claims in a single lawsuit.
Avila v. St. Luke's Lutheran Hosp., 948 S.W.2d 841, 850 (Tex. App.—San Antonio 1997, writ
denied). Tex. Health Enters., Inc. v. Geisler, 9 S.W.3d 163, 169 (Tex. App.—Fort Worth, pet.
dism’d) (holding a judgment “cannot stand” where the record shows that all statutory
beneficiaries are not parties to the lawsuit, or that the wrongful death claims have not been
                                                 4
The trial cannot properly go forward under these facts. See, e.g., In re Energy

Resources Technology GOM, 2012 WL 4754006 at * 1-2 (Tex. App.—Houston

[14th Dist.] Oct. 4, 2012, orig. proceeding) (holding that trial court’s improper

denial of a motion for leave to designate a responsible third party requires reversal

by mandamus such that a trial cannot proceed until the legal error is corrected); In

re Lewis Casing Crews, Inc., 2014 WL 3398170 at * 2 (Tex. App.—Eastland July

10, 2014, orig. proceeding) (same); In re Arthur Andersen LLP, 121 S.W.3d 471,

481, 486 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) (same); In re

Greyhound Lines, Inc., 2014 WL 1022329 at * 4 (Tex. App.—Dallas Feb. 21,

2014, orig. proceeding). Accordingly, the relators’ respectfully request that the

Court issue an order staying the trial in the underlying proceeding during the

pendency of this mandamus proceeding.

       WHEREFORE for the reasons noted above and in their petition for writ of

mandamus, the Relators pray that this Court issue a temporary stay of the trial in

the underlying proceedings lasting for the pendency of this mandamus proceeding.




brought for the benefit of all the statutory beneficiaries). The relators have filed a plea in
abatement in the trial court on this issue, but still await a ruling from the trial court on it.

                                               5
Respectfully submitted,
MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.


By:   /s/ Phillip D. Sharp
      Phillip D. Sharp
      Texas State Bar No. 18118680
808 Travis, 20th Floor
Houston, TX 77002
Telephone: (713) 632-1700
Facsimile: (713) 222-0101
sharp@mdjwlaw.com


SMITHYMAN & ZAKOURA,
CHARTERED


By:   /s/ Lee M. Smithyman
      Lee M. Smithyman
      KS Supreme Court #09391
750 Commerce Plaza II
7400 West 110th Street
Overland Park, KS 66210-2362
Telephone: (913) 661-9800
Facsimile: (913) 661-9863
lee@smizak-law.com

Application for admission pro hac vice
pending

ATTORNEYS FOR RELATORS




  6
                     CERTIFICATION & VERIFICATION
       The undersigned has reviewed the emergency motion for stay and concluded
that every factual statement therein is true and correct.


                                        /s/ Philip D. Sharp
                                        Philip D. Sharp


                      CERTIFICATE OF COMPLIANCE
     This is to certify that this computer-generated Petition for Writ of
Mandamus contains 994 words and complies with rule 9.4 of the Texas Rules of
Appellate Procedure.


                                        /s/ Philip D. Sharp
                                        Philip D. Sharp
                                        Dated: October 15, 2015


                      CERTIFICATE OF CONFERENCE
       This is to certify that my office has conferred with counsel for the real
parties in interest regarding the relief requested in this motion. The real parties are
opposed to the relief requested.


                                        /s/ Philip D. Sharp
                                        Philip D. Sharp
                                        Dated: October 15, 2015




                                          7
                         CERTIFICATE OF SERVICE
      I hereby certify that true and correct copies of the foregoing instrument have
been forwarded to all known counsel of record in accordance with the Texas Rules
of Civil Procedure on this the15th day of October, 2015, via the method indicated
below:

Gary M. Riebschlager
The Riebschlager Law Firm
801 Congress, Suite 250
Houston, TX 77002
gary@riebschlagerlaw.com
cecilia@riebschlagerlaw.com
via e-filing

Richard L. Tate
Tate, Moerer & King, LLP
206 South Second Street
Richmond, TX 77469
rltate@tate-law.com
via e-filing

Sidney F. Robert
Brent Coon & Associates
300 Fannin, Suite 200
Houston, TX 77002
sidney.robert@bcoonlaw.com
belinda@bcoonlaw.com
via e-filing

David M. Medina
The Medina Law Firm
5800 Memorial Drive, Suite 890
Houston, TX 77007
davidmedina@justicedavidmedina.com
via e-filing




                                         8
The Honorable James H. Shoemake
434th JUDICIAL DISTRICT COURT
Fort Bend County Justice Center
1422 Eugene Heimann Circle
Courtroom: Room 3I
Telephone: 281-341-4409
Via e-filing

                                  /s/ Philip D. Sharp
                                  Philip D. Sharp
                                  Dated: October 15, 2015




                                    9
                     APPENDIX

              Index to Appendices
Tab 1   CVR Energy’s Motion for Reconsideration or Stay
TAB 1
                                                                                                                Filed
                                                                                             10/14/2015 4:20:08 PM
                                                                                              Annie Rebecca Elliott
                                                                                                       District Clerk
                                                                                            Fort Bend County, Texas
                                                                                             Nereyda Flores

                                 CAUSE NO. 13-DCV-209679

LEEANNA MANN and KARl SMITH,    §                           IN THE DISTRICT COURT OF
              Plaintiffs        §
                                §
vs.                             §
                                §                           FORT BEND COUNTY, TEXAS
CVRENERGY,INC.,CVRPARTNERS,LP, §
CVR REFINING, LP, GARY-WILLIAMS §
ENERGY COMPANY, LLC, WYNNEWOOD§
REFINING COMPANY, LLC           §
                Defendants      §                           434TH JUDICIAL DISTRICT

   DEFENDANTS' EMERGENCY MOTION FOR RECONSIDERATION OR STAY

       COME NOW Defendants CVR Energy, Inc., CVR Partners, LP, and Gary-Williams

Energy Co., LLC (the "CVR Entities'') and file this Emergency Motion for Reconsideration or

Stay and respectfully request that the Court reconsider its denial of their Motion for Leave to

Designate Wynnewood Refining Company as a responsible third party or stay the captioned

proceedings pending resolution of the mandamus proceedings regarding the Court's order

denying the motion for leave.

       1.     Trial in this matter is set for October 20,2015.

       2.     On October 12,2015, the Court issued an order denying the CVR Entities' motion

for leave to designate Wynnewood Refining Company as a responsible third party.

       3.     The CVR Entities will be filing a petition for writ of mandamus in the court of

appeals later this afternoon, asking it to issue a writ of mandamus directing the Court to vacate

its order denying the motion and granting the CVR Entities' motion for leave to designate

Wynnewood as a responsible third party. See Exhibit 1- Petition for Writ of Mandamus.

       4.     For the reasons noted in their motion for leave, their reply to the plaintiff's

objections to the motion for leave, their supplemental memorandum in support of the motion for

leave, as well as their petition for writ of mandamus, there is no proper basis to deny the jury the

                                                 1
opportunity to evaluate Wynnewood's responsibility for the deaths at issue in this lawsuit.

Accordingly, the CVR Entities respectfully request that the Court either (1) vacate its order

denying their motion for leave and issue an order granting the motion for leave or (2) remove

this matter from the October 20, 2015 trial docket and order the matter stayed pending the

resolution of the mandamus proceedings in the court of appeals.

                                            Respectfully Submitted,

                                            MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.




                                            By:       Is/ Phillip D. Sharp
                                                      Phillip D. Sharp
                                                      Texas State Bar No. 18118680
                                                      808 Travis, 20th Floor
                                                      Houston, TX 77002
                                                      Telephone: (713) 632-1700
                                                      Telefacsimile: (713) 222-0101
                                                      Email: sham@mdjwlaw.com



                                                         Is/ Lee M Smithyman
                                                      Lee M. Smithyman
                                                      SMITHYMAN & ZAKOURA, CHARTERED
                                                      KS Supreme Court #09391
                                                      750 Commerce Plaza II,
                                                      7400 W. 11 Oth Street
                                                      Overland Park, KS 66210-2362
                                                      Telephone: (913) 661-9800
                                                      Telefacsimile: (913) 661-9863
                                                      Email: lee@smizak-law.com

                                                      ATTORNEYS FOR DEFENDANTS




                                                  2
                            CERTIFICATE OF CONFERENCE

       I hereby certify that on October 14, 2015, my office attempted to confer with Plaintiffs'
counsel Gary Riebschlager and Richard Tate. I was unable to reach either gentleman, and can
only assume that they oppose the relief requested in this emergency motion. If an agreement can
be reached to obviate the need for the Motion to Reconsider or Stay, I will so notify the court.


                                                     Is/ Phillip D. Sharp
                                                   Phillip D. Sharp




                                               3
                              CERTIFICATE OF SERVICE

        I hereby certify that true and correct copies of the foregoing instrument have been
forwarded to all known counsel of record in accordance with the Texas Rules of Civil Procedure
on this the 14th day of October, 2015, via email and facsimile:

       Gary M. Riebschlager                                          Facsimile: 713-228-2210
       The Riebschlager Law Firm
       801 Congress, Suite 250
       Houston, TX 77002
       gazy@riebschlagerlaw.com
       cecilia@.riebschlagerlaw.com

       Richard L. Tate                                               Facsimile: 281-341-1003
       Tate, Moerer & King, LLP
       206 South Second Street
       ~c~ond, TX 77469
       rltate@tate.law.com

       Sidney F. Robert                                              Facsimile: 713-225-1785
       Brent Coon & Associates
       300 Fannin, Suite 200
       Houston, TX 77002
       sidney.robert@bcoonlaw.com
       belinda@bcoonlaw.com

       David M. Medina                                               Facsimile: 713-583-5915
       The Medina Law Firm
       5800 Memorial Drive, Suite 890
       Houston, TX 77007
       davidmedina@iusticedavidmedina.com

       Adraon D. Greene                                              Facsimile: 713-599-0777
       Ryan B. Brown
       Galloway, Johnson, Tompkins, Burr & Smith
       1301 McKinney, Suite 1400
       Houston, Texas 77010
       agreene@gallowayjohnson.com
       rbrown@gallowa;xjohnson.com


                                                     Is/Phillip D. Sharp
                                                  Phillip D. Sharp




                                              4
                                                                                                           Filed
                                                                                          10/14/2015 4:22:32 PM
                                                                                           Annie Rebecca Elliott
                                                                                                    District Clerk
                                                                                         Fort Bend County, Texas
                                                                                          Nereyda Flores

                              CAUSE NO. 13-DCV-209679

LEEANNA MANN and KARl SMITH,        §                    IN THE DISTRICT COURT OF
              Plaintiffs            §
                                    §
vs.                                 §
                                    §                    FORT BEND COUNTY, TEXAS
CVR ENERGY, INC., CVR PARTNERS, LP, §
CVRREFINING,LP,GARY-WILLIAMS        §
ENERGY COMPANY, LLC, WYNNEWOOD §
REFINING COMPANY, LLC               §
               De&ndanu             §                    434TH JUDICIAL DISTRICT

ORDER ON DEFENDANTS' EMERGENCY MOTION FOR RECONSIDERATION OR
                            STAY

       The Court has considered Defendants' Emergency Motion for Reconsideration or Stay
and finds:

                    The Motion for Reconsideration is meritorious and should be granted.
                    Accordingly, the Court VACATES its October 12, 2015 order denying
                    Defendants' Motion for Leave to Designate Wynnewood Refining
                    Company, LLC as a responsible third party, and GRANTS the Motion for
                    Leave to Designate Wynnewood Refining Company, LLC as a responsible
                    third party.

                    The Motion for Stay should be granted. Accordingly, the Court removes
                    the captioned matter from the October 20, 201 S trial docket. The trial will
                    be rescheduled after the final resolution of the mandamus proceedings
                    pending in the First or Fourteenth Court of Appeals.

      Signed this _ _ _ _ day of October, 2015.



                                                  Judge Presiding




                                              5
