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
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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
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City of Austin – Law Department
P. O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2185
Facsimile: (512) 974-1311
ATTORNEYS FOR APPELLANTS
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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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the City of Austin AndMarc A. Ott, in His Official Capacity as City Manager of the City of Austin v. Utility Associates, Inc. and Mr. v. Bruce Evans, a Resident of Austin
Combined Opinion