                                                                                                            ACCEPTED
                                                                                                       04-14-00906-cv
                                                                                            FOURTH COURT OF APPEALS
                                                                                                 SAN ANTONIO, TEXAS
                                                                                                  1/19/2015 3:46:30 PM
                                                                                                         KEITH HOTTLE
                                                                                                                CLERK

                                    NO. 04-14-00906-CV

                         IN THE FOURTH COURT OF APPEALS
                                                                                 FILED IN -
                               at SAN ANTONIO, TEXAS                    4th COURT OF--APPEALS
                                                                                                 - ----
                                                                         SAN ANTONIO,      --- -     TEXAS
                                                                                   - - ---- LE ------
                                                                        01/19/2015
                                                                                - ID3:46:30
                                                                                 -                 - PM
                                                                                                    -
                                                                            ---- VO ------
                                       DAVID MAUK                           KEITH---E.    -- HOTTLE
                                                                                     -
                                                                               ---- Clerk
                                          Appellant

                                              v.
                                                                                   FILED IN
                                                        4th COURT OF APPEALS
             PIPE CREEK WATER WELL, LLC and ROBERT RAE POWELL
                                                                          SAN ANTONIO, TEXAS
                                                                        01/20/2015 12:51:00 PM
                                          Appellees
                                                                           KEITH E. HOTTLE
                                                                                 Clerk

 Cause No. 2013-CI-00386; Appeal from the 408th Judicial District Court; Bexar County,
                                       Texas




            RESPONSE TO MOTION TO STAY TRIAL COURT PROCEEDINGS


TO THE HONORABLE JUDGE OF SAID COURT:

       NOW COME Plaintiffs and Respondents, PC DRILLING AND SERVICE, LLC d/b/a

PIPE CREEK WATER WELL, LLC and ROBERT RAE POWELL, and present this, their

Response to Defendant and Relator DAVID MAUK’s Motion to Stay Trial Court Proceedings

and would show the following:

       1.      On January 9, 2013, Plaintiffs filed their Original Petition against DAVID MAUK

in his individual capacity for certain defamatory statements made by him outside the course and

scope of his employment as General Manager for the Bandera County River Authority and

Groundwater District. Shortly thereafter, Defendant filed his first Motion to Dismiss, alleging

1 - Response to Motion to Stay Trial Court Proceedings
the trial Court did not have jurisdiction pursuant to Texas Civil Practice and Remedies Code

§101.106(f).   On or about April 22, 2013, after examining the pleadings and hearing the

arguments of counsel, the Honorable Judge Cathleen Stryker denied Defendant’s Motion without

prejudice. More than a year later, on October 8, 2014, Defendant filed a second Amended

Motion to Dismiss for Lack of Jurisdiction again alleging the trial Court did not have jurisdiction

pursuant to Texas Civil Practice and Remedies Code §101.106(f). On or about December 8,

2014, after examining the pleadings and hearing the arguments of counsel, Defendant’s Second

Motion to Dismiss was denied by the Honorable Richard Price.

         2.    On December 22, 2014, Defendant filed its Notice of Interlocutory Appeal. On

December 29, 2014, Plaintiffs filed a Motion for Mediation. Plaintiffs’ Motion was heard by the

Honorable Antonia Arteaga on January 14, 2014, and after hearing the arguments of counsel,

Judge Arteaga order the parties to mediate this case with mediator, Joseph Casseb, the first week

of March, 2015. Defendant and Relator now seek a stay of that mediation from this Honorable

Court.

         3.    This State has a strong policy favoring the use of alternative dispute resolution. It

is Plaintiffs’ desire to mediate this case in March and attempt to reach an amicable settlement

with the Defendant. This matter has been pending for more than two years. Discovery is

substantially complete and the question of the trial Court’s jurisdiction has been twice examined

and on both occasions, affirmed. This case is ripe for mediation and there is a reasonable

probability of settlement.

         4.    Texas Civil Practice and Remedies Code § 51.014(b) does not prohibit the trial

court from retaining jurisdiction or provide for an automatic stay of the trial court proceedings as


2 - Response to Motion to Stay Trial Court Proceedings
alleged by Defendant and Relator. Tex. Civ. Prac. & Rem. Code § 51.014 (Vernon 2014). Texas

Civil Practice and Remedies Code §51.014(a) clearly enumerates twelve specific types of

interlocutory appeals which are entitled to an automatic stay of trial or all trial court proceedings

under § 51.014(b). Id. at § 51.014(a). Section 51.014(a)(8), the provision relied upon by

DAVID MAUK, provides for a stay upon an the interlocutory appeal from an order granting or

denying of plea to the jurisdiction filed by a “governmental unit” as that term is defined by §

101.001. Id. at § 51.014(a)(8). Because DAVID MAUK is not a “governmental unit” as defined

by § 101.001, he is not statutorily entitled to an automatic stay of all trial court proceedings. Id.

at § 101.001.     Any stay of the mediation or other trial court proceedings would be at the

discretion of this Honorable Court.

       WHEREFORE, PREMISES CONSIDERED, PC DRILLING AND SERVICE, LLC

d/b/a/ PIPE CREEK WATER WELL, LLC and ROBERT RAE POWELL pray that the Court

deny Relator DAVID MAUK’s Motion to Stay Trial Court Proceedings and allow this case to

proceed to mediation as ordered.


                                              Respectfully submitted,

                                              Law Offices of Keith P. Miller, P.C.
                                              Independence Plaza II
                                              14350 Northbrook, Suite 150
                                              San Antonio, Texas 78232
                                              Tel: (210) 524-9040
                                              Fax: (210) 267-2982
                                                      /s/ Megan Kucera
                                              By:___________________________
                                              KEITH P. MILLER
                                              State Bar No. 14093725
                                              MEGAN H. KUCERA
                                              State Bar No. 24076449
                                              Attorneys for Plaintiffs

3 - Response to Motion to Stay Trial Court Proceedings
                                   CERTIFICATE OF SERVICE

       I hereby certify by my signature below that a true and correct copy of the foregoing has
been served by:

       ___ Certified Mail Return Receipt Requested
       ___ First Class Mail
       _X_ Telecopier and/or
       ___ Hand-delivery
       ___ EService

       To the following:

              William M. McKamie
              Adolfo Ruiz
              McKamie Kruger, LLP
              941 Proton Road
              San Antonio, Texas 78258
              Telecopier: (210) 546-2130
              adolfo@mckamiekrueger.com

       On the 19th day of January, 2015.

                                                   /s/ Megan Kucera
                                                   ________________________________
                                                   Megan H. Kucera




4 - Response to Motion to Stay Trial Court Proceedings
