                                                                                                      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. ______________

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

                  RELATOR'S MOTION FOR EMERGENCY STAY

       Relator asks the Court for an emergency stay of the trial and proceedings in the

District Court. This case is set for trial on the trial court's docket on May 11, 2015 at 9:00

a.m. Therefore, Relator respectfully requests that this Court waive the ten day period for

considering motions pursuant to Tex. R. App. P. 10.3(3) and issue a ruling granting stay on

or before May 8, 20 15.

                                      A. Introduction

        1.    Relator is Descon Construction, L.P.; real party interest is Rio Grande City

Consolidated Independent School District.

       2.     Respondent is The Honorable Ana Lisa Garza, Judge Presiding in the 229th

Judicial District Court of Starr County, Texas.

       3.     Real Party in Interest, Rio Grande City Consolidated Independent School

District, filed suit against Des con Construction, L.P. in the 229th Judicial District, Starr

County, Texas, in the case styled Rio Grande City Consolidated Independent School District

v. Descon Construction L.P., Cause No. DC-14-46.

       4.     Relator attaches a certificate of compliance certifYing that on May 4, 2015, they

notified Real Party in Interest by telephone that a motion for temporary relief would be filed.



                                               I
Tex. R. App. P. 52.10(a). This motion is being served on Real Party in Interest and

Respondent electronically contemporaneously with the filing of this motion.

       5.     Relator has filed a petition for writ of mandamus, served on both the Real Party

in Interest and Respondent, establishing its right to mandamus relief based on Respondent's

orders which allowed Real Party in Interest to name six new individuals and entities as

defendants a week before trial, despite the fact that none of the newly named individuals and

entities have been served and are not before the Court.

       Respondent has been notified that underlying counsel does not represent the newly

added parties and that there may be a conflict between the parties. Nonetheless, the Court

ordered counsel for Relator to provide information regarding those entities on one hour'

notice without having the opportunity to contact counsel for any of the entities. It is believed

that similar demands would be made on issues including disclosure of evidence and securing

the witnesses for trial. Respondent denied Relator's motion to abate or motion for

continuance so that service could be had and counsel for the entities could appear.

       Trial, which is projected to last three to four weeks, is less than one week away. As

of this date, Relator does not know if the newly named parties will waive service and appear

at trial, or allow a default to be taken against them. In either instance, due to the timing of

Respondent's actions, it may not be possible to develop an appellate record that adequately

preserves the defenses to the allegation that Relator is jointly and severally liable with the

newly named individuals and entities.




                                               2
       In the absence of a stay, the subject matter of this mandamus will be mooted by trial.

If Relator is forced to proceed to trial in this construction defect case under the theory that

it is jointly and severally liable with six unserved entities and individuals with whom it may

be adverse, its appellate rights will be compromised. Additionally, Relator will suffer

irreparable injury and overwhelming loss of resources which, in all likelihood, cannot be

fully remedied on appeal or in a subsequent proceeding.

       6.     Real Party in Interest Rio Grande City Consolidated Independent School

District does not agree to this motion. The remaining parties either agree to this motion or

have not responded to attempts to confer, but are believed, in good faith, to be in agreement

with this motion as set forth in the attached affidavit.

                                B. Argument & Authorities

       7.     The Court may grant temporary relief pending its determination of an original

proceeding. Tex. R. App. P. 52.10(b).

       8.     This emergency stay is necessary to maintain the status quo of the parties and

to preserve the Court's jurisdiction to consider the merits of the original proceeding. In re

Reed, 901 S.W.2d 604,609 (Tex. App.-San Antonio 1995, orig. proceeding).

       9.     This motion is verified by counsel for Relator.

                                        C. Conclusion

       10.    Relator seeks mandamus relief to preserve its rights to develop a defense and

appellate record. In the absence of mandamus relief, Relator will be allocated liability for

individuals and entities who are not before the Court. This case is set on the court's docket



                                               3
for May 11, 2015 at 9:00a.m. If stay is not granted, this mandamus will be rendered moot

by trial.

                                          D. Prayer

        11.   For the reasons stated in this motion, Relator asks the Court for an emergency

stay to maintain the status quo of the parties and preserve the Court's jurisdiction to consider

the merits ofRe1ator's original proceeding.




                                               4
                      Respectfully submitted,

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




Date: May4,2015       By:   u~~
                            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
                            GabrielS. Head
                            State Bar No. 24055642
                            ghead@cbylaw.com

                      ATTORNEYS FOR RELATOR,
                      DESCON CONSTRUCTION, L.P.




                  5
                                CERTIFICATE OF SERVICE

      I ce1iify that a copy of Relator's Motion for Emergency Stay was served on the following on
May 4, 2015, before 10:00 p.m. local time of the recipient as indicated:

RESPONDENT
       The Honorable Ana Lisa Garza
       District Judge
       229'h 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)
       alglaw 1@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)
       normanjollvoc@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
       Mmiie Garcia Vela
       I 00 West 5th Street
       Rio Grande City, Texas 78582
       (956) 488-8170 (Office)
       (956) 488-8129 (Fax)
       mmiie.garcia@gmail.com




                                               6
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 Patiy, 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@amwlawfinn.com
admin1@amwlawfirm.com

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 Clu·isti, Texas 78401
(361) 883-0620 (Office)
(361) 883-0612 (Fax)
mvillarreal@southtxdefense.com
rkhinkle@southtxdefense.com
afrees@southtxdefense.com




                                         7
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 7840 I
(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

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




                                         8
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

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
(21 0) 979-0 I 00 (Office)
(210) 979-7810 (Fax)
jguerra@bpgrlaw.com
lgross@bpgrlaw.com
cvaldez@bpgrlaw.com
cmahoney@bpgrlaw.com
laniol@bpgrlaw.com




                                         9
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

Attorneys for Interested Patty, 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




                                        10
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



                                                   KAREN L. LANDINGER




                                       11
STATE OF TEXAS                                    §
BEXAR COUNTY                                      §

                            AFFIDAVIT OF ROBERT M. SMITH

         Before me, the undersigned notary, on this day personally appeared ROBERT M. SMITH,
the affiant, a person whose identity is known to me. After I administered an oath to affiant, affiant
testified:

       1.      "My name is ROBERT M. SMITH. I am over 18 years of age, of sound mind, and
               capable of making this affidavit. The facts stated in this affidavit are within my
               personal knowledge and are true and correct.

       2.      "Relator has filed a petition for writ of mandamus contemporaneously with this
               Motion.

       3.      "This case is set for trial on the trial court's docket for May 11, 2015 at 9:00a.m.

       4.      "All interested parties affected by this motion have been notified of the filing of the
               mandamus and of Relator's request for emergency relief to stay the underlying
               proceedings.

       5.      "Real Party in Interest Rio Grande City Consolidated Independent School District
               opposes this motion."

       6.      "Defendants Halff Associates, Inc., and Menton J. Mmmy III P.E. agree to this
               motion."

       7.      "Defendant D & J Site Construction, Inc., agrees to this motion"

       8.      "Defendant Faires Plumbing Co., Inc., has been granted summmy judgment in this
               case, but affirmatively stated that it has no opposition to this motion."

       9.      "Defendant Limon Masomy Inc., is unopposed to this motion."

       10.     "Defendant ERO International, LLP., Daniel Block, & Eli R. Ochoa, are not opposed
               to this motion.

       11.     "Defendant C&M Contracting, Inc., is not opposed to this motion."

       12.     "Defendants Daniel Vasquez, Individually and dba Twin City Glass, and Zarate
               Suspended Ceiling, Inc., has not responded to undersigned's attempts to confer as of
               the time of filing."

       13.     "Defendants AAS Consulting, Inc., dba Advance Air Systems, C.A. Ray & Son
               Painting Contractors, Inc., RGV -R&R Construction Services LLC., Perez Consulting

                                                 12
              Engineers and KBM Air Conditioning, Inc., have been granted summmy judgment
              and are no longer in this suit."

FURTHER AFFIANT SA YETH NOT.




        Sworn to and subscribed before me by ROBERT M . SMITH on this, the 4th day of May,
2015.



                                                 Notary Public in and for the State of Texas




                                            13
                 CERTIFICATE OF CONFERENCE AND COMPLIANCE

        Under Texas Rule of Appellate Procedure 52.1 O(a), I certifY that on May 4th, 2015, I notified
Rio Grande City Consolidated Independent School District, through counsel of record, Norman Jolly,
by telephone that a motion for temporary relief would be filed. A copy of this motion was served
on Norman Jolly electronically at the time of filing. All other pmiies to this proceeding were also
notified that a motion for tempormy relief would be filed and were electronically served.




                                                              KAREN L. LANDINGER
                                                              Attorney for Relator




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