                                                                                   ACCEPTED
                                                                               03-16-00586-CV
                                                                                     12538658
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                          9/6/2016 11:37:42 AM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
                        NO. 03-16-00565-CV,
                        NO. 03-16-00586-CV
__________________________________________________________________
                                                       FILED IN
                                                        3rd COURT OF APPEALS
                                                            AUSTIN, TEXAS
                              IN THE                    9/6/2016 11:37:42 AM
                    THIRD COURT OF APPEALS                JEFFREY D. KYLE
                          AUSTIN, TEXAS                         Clerk
__________________________________________________________________

                  CITY OF AUSTIN AND MARC A. OTT,
             IN HIS OFFICIAL CAPACITY AS THE CITY MANAGER
                       FOR THE CITY OF AUSTIN,
                                                   Appellants,

                                  V.

                   UTILITY ASSOCIATES, INC., AND
                  MR. V. BRUCE EVANS, A RESIDENT
                    OF AUSTIN, TEXAS, INDIVIDUALLY,
                                                   Appellees.
__________________________________________________________________

    ON APPEAL FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL
                                DISTRICT
                     CAUSE NO. D-1-GN-16-002931
__________________________________________________________________

      APPELLANTS’ UNOPPOSED MOTION TO CONSOLIDATE
__________________________________________________________________


                                 Matthew W. Tynan
                                 CITY OF AUSTIN LAW DEPARTMENT
                                 P. O. Box 1546
                                 Austin, Texas 78767-1546
                                 Telephone: (512) 974-2185
                                 Facsimile: (512) 974-1311
                                 matthew.tynan@austintexas.gov
                                 ATTORNEYS FOR APPELLANTS
TO THE HONORABLE THIRD COURT OF APPEALS:

      Appellants, the City of Austin and Marc A. Ott, City Manager for the City of

Austin, Texas, (the “City”) ask the Court to grant this Motion to consolidate two

pending appeals which arise from the same District Court case originally filed in

Travis County, Texas

      There are presently two (2) cases pending in this Court that arise from Utility

Associates, Inc. and Bruce V. Evans v. The City of Austin and Marc A. Ott, Cause

Number D-1-GN-16-002931, filed in the 98th District Court, Travis County, Texas.

The appeals arise from a ruling by the Honorable Orlinda Naranjo granting

temporary injunctive relief and a ruling by the Honorable Karin Crump partially

denying the Appellants’ Plea to the Jurisdiction.

                            PROCEDURAL HISTORY

      After a hearing, held on August 3, 2016, Judge Naranjo granted the

Appellees’ application for a temporary injunction and entered a written order to

this effect on August 5, 2016. The Court reached its’ ruling, in part, on the

conclusion that Appellee Utility Associates had established sufficient standing to

obtain injunctive relief.

      The City filed its interlocutory appeal of the District Court’s August 5, 2016

Order on August 24, 2016 and the matter was docketed as Case No. 03-16-00565-

CV.    This interlocutory appeal is brought under Texas Civil Practices and


                                                                                   2
Remedies Code §51.014(a)(4) and is an accelerated appeal pursuant to Rule 28 of

the Texas Rules of Appellate Procedure.

      On August 18, 2016 Judge Crump held a hearing on the Appellants’

Amended Plea to the Jurisdiction. During this hearing the Appellants challenged

the Courts jurisdiction over the Appellees’ claims as well as the jurisdictional

standing of Appellee Utility Associates. Judge Crump granted the Appellants’

Plea with regard to the whole of the Appellees claims outside §252.061 of the

Texas Local Government Code. However, the Court denied Appellants’ Plea in

part because Judge Crump indicated she was not able to disturb Judge Naranjo’s

determination of jurisdictional standing for Utility Associates. The Court opined

that such a challenge would need to be brought to this Court through a proper

appeal of the issue. The District Court entered the Order of Judge Crump on

August 25, 2016.

      The City filed its interlocutory appeal of the District Court’s August 25,

2016 Order on September 1, 2016 and the matter was docketed as Case No. 03-16-

00586-CV. This interlocutory appeal is brought under Texas Civil Practices and

Remedies Code §51.014(a)(8) and is an accelerated appeal pursuant to Rule 28 of

the Texas Rules of Appellate Procedure.

                                 ARGUMENT

      Judicial economy favors consolidation of these appeals because the issues on


                                                                                3
appeal from these two rulings of the District Court are fundamentally identical.

Both appeals challenge whether Appellee Utility Associates established standing in

this matter as a losing bidder to a non-public works contract so as to satisfy the

subject matter jurisdiction of the Court and obtain the relief requested. As both

appeals arise from the same lawsuit, and from the same factual and legal basis, the

Clerk’s Record filed with the Court in each appeal would be essentially the same

save the addition of the Reporter’s Record from the hearing on the Plea to the

Jurisdiction and the August 25, 2016 Order of the District Court in Case No. 03-

16-00586-CV.

                                  CONCLUSION

      For the purposes of clarity, efficiency, and in the interest of judicial

economy, the City asks this Court to consolidate the two pending appeals, Case

No. 03-16-00565-CV and Case No. 03-16-00586-CV. The City also requests that

the docketing deadlines be reset to reflect a starting date of the day on which the

requested consolidation is granted.

                                RESPECTFULLY SUBMITTED,

                                ANNE L. MORGAN, CITY ATTORNEY
                                MEGHAN L. RILEY, CHIEF LITIGATION

                                /s/ Matthew W. Tynan
                                MATTHEW W. TYNAN
                                State Bar No. 24072489
                                matthew.tynan@austintexas.gov


                                                                                 4
City of Austin – Law Department
P. O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2185
Facsimile: (512) 974-1311

ATTORNEYS FOR APPELLANTS




                                  5
                      CERTIFICATE OF CONFERENCE

I hereby certify that counsel for Appellants has conferred with the below listed
counsel with regard to the submission of this Motion and have determined that the
Appellees do not oppose this request.

                                             /s/ Matthew W. Tynan
                                             MATTHEW W. TYNAN


                         CERTIFICATE OF SERVICE

This is to certify that I served a copy of the foregoing on all parties, or their
attorneys of record, in compliance with the Texas Rules of Civil Procedure, this 6th
day of September, 2016.

Via e-Service to:

Peter B. Barlow                              Shelby A. Jordan
pbarlow@sgrlaw.com                           sjordan@jhwclaw.com
Peter M. Crofton                             JORDAN, HYDEN, WOMBLE,
Benjamin P. Deninger                         CULBRETH & HOLZER, P.C.
SMITH GAMBRELL &                             1250 S. Capital of Texas Hwy
RUSSELL, LLP                                 Suite 330
100 Congress Avenue                          Austin, Texas 78746
Suite 2000                                   (361) 884-5678 Telephone
Austin, Texas 78701                          (361) 888-5555 Fax
(512) 498-7617 Telephone
(512) 879-5032 Fax                           ATTORNEYS FOR MR. V.
                                             BRUCE EVANS
ATTORNEY FOR UTILTY
ASSOCIATES, INC.



                                      /s/ Matthew W. Tynan
                                      MATTHEW W. TYNAN




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