United Scaffolding, Inc. v. James Levine

NUMBER 13-14-00377-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

UNITED SCAFFOLDING, INC., Appellant,

v.

JAMES LEVINE, Appellee.

On appeal from the 172nd District Court
of Jefferson County, Texas.

ORDER ABATING APPEAL AND
REFERRING CASE TO MEDIATION

Before Chief Justice Valdez and Justices Rodriguez and Garza
Order Per Curiam

In this workplace accident case, appellant United Scaffolding, Inc. (USI) appeals

from the judgment entered in favor of appellee James Levine.1 Levine's claims against

1 Pursuant to a docket-equalization order from the Texas Supreme Court, this case is before the
Court on transfer from the Ninth Court of Appeals in Beaumont. See TEX. GOV'T CODE ANN. § 73.001
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USI were first tried to a jury in 2008. The 2008 jury found that both USI and Levine acted

negligently, apportioned fifty-one percent responsibility to USI, and awarded Levine

$178,000 in damages for future medical expenses but no damages for past expenses.

Levine filed a motion for new trial, which the trial court granted on the grounds that the

jury's finding of zero past damages was not supported by the great weight and

preponderance of the evidence.2 Levine's claims were tried for a second time in 2014.

At this trial, the jury found only that USI acted negligently and awarded Levine damages

for past and future expenses totaling approximately $1.9 million. On appeal, USI

contends: (1) Levine's claims sounded in premises liability and the simple negligence

question submitted to the jury did not support Levine's recovery; and (2) the trial court

erred in granting Levine's motion for new trial because sufficient evidence supported the

2008 jury's finding of zero past damages and, as such, this Court should reinstate the

verdict from the first trial.

The Court has determined that this appeal should be referred to mediation.

Accordingly, it is ORDERED that this appeal be ABATED and the issues in this appeal

be mediated under the following terms and conditions:

1. The parties must promptly agree upon a mediator and, within seven
days of this Order, notify the Court in writing of the name and address
of the mediator selected. If the parties are unable to agree upon a
mediator, they must so notify the Court within the seven day period
and the Court will appoint a mediator.

2. All parties must confer with their mediator within seven days of the
date of this Order, or in the case of a court appointed mediator, within
seven days of the appointment of the mediator, to establish a date

(West, Westlaw through 2013 3d C.S.).
2 In two rounds of mandamus proceedings, USI challenged the trial court's new trial order for lack

of specificity in its use of "in the interest of justice" language. See In re United Scaffolding, Inc., 287 S.W.3d
274 (Tex. App.—Beaumont 2009, orig. proceeding); In re United Scaffolding, Inc., 301 S.W.3d 661 (Tex.
2010); In re United Scaffolding, Inc., 315 S.W.3d 246 (Tex. App.—Beaumont 2010, orig. proceeding); In re
United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012). In the end, the Supreme Court ordered the trial
court to amend its order to resolve the ambiguity and specify its reason for granting the new trial. See In
re United Scaffolding, Inc., 377 S.W.3d 685, 689–90.
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 and place for the mediation. The parties shall agree on a date for
the mediation that is consistent with the mediator’s schedule and is
no later than sixty days after the date of this Order. In the event the
parties cannot agree on a date, the mediator shall select and set a
date. The mediator shall notify the Court of the date selected for the
mediation.

3. In the discretion of the mediator, each party may be required to
provide a confidential memorandum and/or information sheet setting
forth the issues of the case and their positions on these issues.
Additionally, upon request of the mediator, the parties shall produce
all information the mediator deems necessary to understand the
issues of the case. The memorandum and/or information sheet
and other information produced to the mediator will not be made a
part of the file in this case and will be destroyed by the mediator at
the conclusion of the mediation proceeding.

4. All parties to this matter or their authorized representatives,
accompanied by their counsel, must appear and attend the
mediation proceeding. The mediation shall be for a full day.

5. Mediation is a mandatory, non-binding settlement conference
conducted with the assistance of a mediator. The mediation
proceeding will be confidential within the meaning of the Texas Civil
Practice and Remedies Code sections 154.053 and 154.073. See
TEX. CIV. PRAC. & REM. CODE ANN. §§ 154.053, 154.073 (West,
Westlaw through 2013 3d C.S.).

6. Unless otherwise agreed, the mediation proceeding will not be
recorded.

7. The mediator will negotiate a reasonable fee with the parties. The
mediator's fee will be borne equally by the parties unless otherwise
agreed by the parties, and will be paid directly to the mediator. If
the parties do not agree upon the fee requested by the mediator, the
Court will set a reasonable fee, which shall be taxed as costs. TEX.
CIV. PRAC. & REM. CODE ANN. § 154.054 (West, Westlaw through
2013 3d C.S.).

8. Within two days after the conclusion of the mediation, the mediator
shall certify to this Court as follows: (a) whether the parties
appeared as ordered, (b) whether the case settled, and (c) whether
the mediation fees were paid in accordance with the court's order or
as otherwise agreed by the parties.

9. If mediation fully resolves the issues in this case, the parties must file
a joint or agreed motion with this Court seeking dispositive relief
within seven days of the conclusion of the mediation. If the parties
need more time to effectuate the terms of the settlement agreement,
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 they must, within seven days of the conclusion of mediation, file a
joint or agreed motion for an extension of time to file their disposition
motion.

It is FURTHER ORDERED that this case remain ABATED pending this Court’s

review of the mediator’s report and until further order of this Court.

IT IS SO ORDERED.

PER CURIAM

Delivered and filed the 20th
day of January, 2015.

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