In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-05-240 CV
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IN RE RANDY HALL AND R. H. BUILDERS, INC.
The underlying litigation is a suit for breach of contract and to recover damages for construction defects and for deceptive trade practices. See Tex. Prop. Code Ann. § 27.002 (Vernon Supp. 2005); Tex. Bus. & Com. Code Ann. §§ 17.46(b)(5), (7), 17.50(a)(2) (Vernon 2002 & Supp. 2005). The relators, Randy Hall and R. H. Builders, Inc., agreed to mediate their dispute with the real parties in interest, Thomas Bravenec and Peggy Bravenec, and further agreed not to file any motions while the case was being mediated. After the trial court signed the agreed order for mediation, the relators moved to dismiss the action on jurisdictional grounds. The motion contends the trial court lacks jurisdiction over the controversy because the Bravenecs failed to comply with a statutory prerequisite to initiating an action for damages arising from an alleged construction defect by exhausting their administrative remedies. See Tex. Prop. Code Ann. § 426.005 (Vernon Supp. 2005). The record provided to this Court bears no indication of an ongoing proceeding before the Residential Construction Commission, and the trial court has not ruled on the substance of the motion to dismiss. The court states in its order that the court will "take up" the motion to dismiss if mediation is unsuccessful. The trial court merely enforced the parties' agreement not to file motions until after they participated in the agreed mediation. The order at issue in this petition involves an incidental procedural ruling for which mandamus is not appropriate.
In an amended motion to stay, the relators say discovery is proceeding, and they ask that we stay the discovery. Relators do not tell us whether the discovery is limited to the jurisdictional issues, nor do they provide us with the Rule 11 agreed order. They do not say mediation has been completed. The trial court's order of May 9, 2005 says the parties have agreed and the court has ordered depositions postponed until after mediation. Relators have not shown this Court they have asked the trial court to further stay or limit the discovery.
Accordingly, the motion for emergency relief and the petition for writ of mandamus are denied.
WRIT DENIED.
PER CURIAM
Opinion Delivered June 10, 2005
Before Gaultney, Kreger and Horton, JJ.