in Re Descon Construction, L.P.

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    ACCEPTED 04-15-00276-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 5/4/2015 9:23:55 PM KEITH HOTTLE CLERK 04-15-00276-CV No. ____________________ IN THE FOURTH COURT OF APPEALS FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 5/4/2015 9:23:55 PM KEITH E. HOTTLE Clerk DESCON CONSTRUCTION, L.P., Relator ___________________________________________________________________________ From the 229th District Court of Starr County, Texas Case No. DC-14-46 ___________________________________________________________________________ ORIGINAL PETITION FOR WRIT OF MANDAMUS ___________________________________________________________________________ Karen L. Landinger State Bar No. 00787873 klandinger@cbylaw.com Stephanie O’Rourke State Bar No. 15310800 sorourke@cbylaw.com Stanley W. Curry, Jr. State Bar No. 05274000 scurry@cbylaw.com Robert M. Smith State Bar No. 18677400 rmsmith@cbylaw.com Gabriel S. Head State Bar No. 24055642 ghead@cbylaw.com Cokinos, Bosien & Young 10999 IH-10 West, Suite 800 San Antonio, Texas 78230 (210) 293-8700 (Office) (210) 293-8733 (Fax) ATTORNEYS FOR RELATOR, DESCON CONSTRUCTION, L.P. EMERGENCY RELIEF REQUESTED No. ____________________ DESCON CONSTRUCTION, L.P., Relator ___________________________________________________________________________ IDENTITY OF PARTIES AND COUNSEL ___________________________________________________________________________ Relator certifies that the following is a complete list of the parties, the attorneys, and other person who has any interest in the outcome of this lawsuit. Relator: Descon Construction, L.P. Counsel for Defendant/Relator Descon Construction, L.P.: Trial: Appellate: Stephanie O’Rourke Karen L. Landinger Stanley W. Curry, Jr. Cokinos, Bosien & Young Robert M. Smith 10999 IH-10 West, Suite 800 Gabriel S. Head San Antonio, Texas 78230 Cokinos, Bosien & Young (210) 293-8700 (Office) 10999 IH-10 West, Suite 800 (210) 293-8733 (Fax) San Antonio, Texas 78230 klandinger@cbylaw.com (210) 293-8700 (Office) (210) 293-8733 (Fax) sorourke@cbylaw.com scurry@cbylaw.com rmsmith@cbylaw.com ghead@cbylaw.com ii Respondent: The Honorable Ana Lisa Garza District Judge 229th Judicial District Court of Starr County Starr County Courthouse 401 N. Britton Avenue, Room 304 Rio Grande City, Texas 78582 (956) 487-2636 (Office) (956) 487-4093 (Fax) alglaw1@aol.com asaenz@co.starr.tx.us Counsel for Interested Parties: Attorneys for Interested Party, Rio Grande City CISD Norman Jolly Michael B. Jolly Law Office of Norman Jolly 405 Main, Suite 1000 Houston, Texas 77002 (713) 237-8383 (Office) (713) 237-8385 (Fax) normanjollypc@sbcglobal.net mikejolly@aol.com lawjp@earthlink.net ericjarvis@rocketmail.com twentysixpoint2@me.com medina_nancy@sbcglobal.net Attorneys for Interested Party, Rio Grande City CISD Martie Garcia Vela 100 West 5th Street Rio Grande City, Texas 78582 (956) 488-8170 (Office) (956) 488-8129 (Fax) martie.garcia@gmail.com iii Attorneys for Interested Party, ERO International, L.L.P. John R. Griffith Griffith Law Group 801 E. Fern Avenue, Suite 170 McAllen, Texas 78501 (956) 971-9446 (Office) (956) 971-9451 (Fax) jrg@rgvfirm.com gh@rgvfirm.com Attorneys for Interested Party, Halff Associates, Inc. and Menton J. Murray, III, P.E. Grant Gealy Mills Shirley, L.L.P. 3 Riverway, Suite 100 Houston, Texas 77058 (713) 571-4206 (Office) (713) 225-0844 (Fax) ggealy@millsshirley.com psutton@millsshirley.com Attorneys for Interested Party, AAS Consulting, Inc. d/b/a Advance Air Systems Douglas M. Walla Andrew M. Williams & Associates 5909 West Loop South, Suite 550 Bellaire, Texas 77401 (713) 840-7321 (Office) (713) 839-1302 (Fax) doug@amwlawfirm.com admin2@amwlawfirm.com admin1@amwlawfirm.com iv Attorneys for Interested Party, C.A. Ray & Son Painting Contractors, Inc. Marc E. Villarreal R. Kyle Hinkle Hinkle & Villarreal, P.C. 719 S. Shoreline Blvd., Suite 300 Corpus Christi, Texas 78401 (361) 883-0620 (Office) (361) 883-0612 (Fax) mvillarreal@southtxdefense.com rkhinkle@southtxdefense.com afrees@southtxdefense.com Attorneys for Interested Party, Faires Plumbing Co., Inc. David J. Dunn Dunn, Weathered, Coffey, Rivera & Kasperitis, P.C. 611 S. Upper Broadway Corpus Christi, Texas 78401 (361) 883-1594 (Office) (361) 883-1599 (Fax) Dunndj@swbell.net vanesa@dwcrk.net kellycreel@swbell.net Attorneys for Interested Party, Limon Masonry, Inc. Brian C. Lopez Brittany C. Cooperrider Engvall & Lopez, L.L.P. 1811 Bering, Suite 210 Houston, Texas 77057 (713) 787-6700 (Office) (713) 787-0070 (Fax) blopez@eltexaslaw.com bcooperrider@eltexaslaw.com mmufti@eltexaslaw.com v Attorneys for Interested Party, C & M Contracting, Inc. David C. Garza Liliana Elizondo Garza & Garza, L.L.P. 680 East St. Charles, Suite 300 P.O. Box 2025 Brownsville, Texas, 78250 (956) 541-4914 (Office) (956) 542-7403 (Fax) dgarza@garzaandgarza.com lelizondo@garzaandgarza.com Attorneys for Interested Party, RGV-R&R Construction Services, L.L.C. David W. Medack James P. Davis Heard & Medack, P.C. 9494 Southwest Freeway, Suite 700 Houston, Texas 77074 (713) 772-6400 (Office) (713) 772-6495 (Fax) dmedack@heardmedackpc.com jdavis@heardmedackpc.com Mloonahm@heardmedackpc.com Chernandez@heardmedackpc.com Attorneys for Interested Party, Daniel Vasquez, Individually and d/b/a Twin City Glass John A. Guerra Louis A. Gross Brock Person Guerra Reyna, P.C. 17339 Redland Road San Antonio, Texas 78247-2304 (210) 979-0100 (Office) (210) 979-7810 (Fax) jguerra@bpgrlaw.com lgross@bpgrlaw.com cvaldez@bpgrlaw.com cmahoney@bpgrlaw.com laniol@bpgrlaw.com vi Attorneys for Interested Party, Zarate Suspended Ceiling, Inc. John A. Guerra Louis A. Gross Brock Person Guerra Reyna, P.C. 17339 Redland Road San Antonio, Texas 78247-2304 (210) 979-0100 (Office) (210) 979-7810 (Fax) jguerra@bpgrlaw.com lgross@bpgrlaw.com cvaldez@bpgrlaw.com cmahoney@bpgrlaw.com laniol@bpgrlaw.com Attorneys for Interested Party, Zarate Suspended Ceiling, Inc. Michael G. Dunnahoo Rymer, Moore, Jackson & Echols, P.C. 2801 Post Oak Blvd., Suite 250 Houston, Texas 77056 (713) 626-1550 (Office) (713) 626-1558 (Fax) mdunnahoo@rmjelaw.com lkelly@rmjelaw.com Attorneys for Interested Party, D&J Site Construction, Inc. David J. Dunn Dunn, Weathered, Coffey, Rivera & Kasperitis, P.C. 611 S. Upper Broadway Corpus Christi, Texas 78401 (361) 883-1594 (Office) (361) 883-1599 (Fax) Dunndj@swbell.net vanesa@dwcrk.net kellycreel@swbell.net vii Attorneys for Interested Party, Perez Consulting Engineers Gregory N. Ziegler Dean Siotos Macdonald Devin, P.C. 3800 Renaissance Tower 1201 Elm Street Dallas, Texas 75270-2130 (214) 744-3300 (Office) (214) 747-0942 (Fax) Gziegler@MacdonaldDevin.com dsiotos@macdonalddevin.com mwhite@macdonalddevin.com Lholsomback@macdonalddevin.com Dpainter@macdonalddevin.com Attorneys for Interested Party, KBM Air Conditioning, Inc. Jason L. West Brock Person Guerra Reyna, P.C. 17339 Redland Road San Antonio, Texas 78247-2302 (210) 979-0100 (Office) (210) 979-7810 (Fax) jwest@bpgrlaw.com Attorneys for Interested Party, Tri City Steel and Fabrication, Inc. Thomas A. Mailloux II Brock Person Guerra Reyna, P.C. 17339 Redland Road San Antonio, Texas 78247-2302 (210) 979-0100 (Office) (210) 979-7810 (Fax) tmailloux@bpgrlaw.com blawrence@bpgrlaw.com viii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvi STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii STATEMENT OF ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii ISSUES PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xviii I. Respondent abused her discretion by ordering the joinder of additional individuals and entities pursuant to Rule 28 II. Respondent abused her discretion by asserting jurisdiction over parties that have not been served III. Mandamus is proper because Respondent issued orders beyond her jurisdiction IV. Mandamus is proper because Relator has not adequate remedy at law STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Descon Construction, L.P. is an existing legal entity that does not do business in any other name and is not known by any other name. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. RGCCISD brought suit against Descon Construction, L.P.. . . . . . . . . . . . . 3 C. After the pleadings deadline, and two weeks before trial, RGCCISD amended its pleadings to add multiple new parties.. . . . . . . . . . 3 D. RGCCISD filed documents confirming that Descon Construction, L.P. is a separate and existing legal entity.. . . . . . . . . . . . . . . . . . . . . . . . . 4 ix E. Descon Construction, L.P. confirms that it is a separate and existing legal entity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 F. After being made aware that Descon Construction, L.P. is a legal entity and the only proper defendant, RGCCISD added more parties claiming that they were interchangeable under Rule 28.. . . . . . . . . 5 G. Descon Construction, L.P. filed verified proof that it is a separate existing legal entity and the proper Defendant.. . . . . . . . . . . . . . . 6 H. Descon Construction, L.P. moved for continuance or abatement so that the parties could be corrected or, if added, could conduct discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. RGCCISD filed business records affidavit of a website builder who did work for one of the newly named parties. . . . . . . . . . . . . . . . . . . . . 7 J. Respondent allowed RGCCISD to add six new parties just ten days before trial, and refused to grant a continuance or abatement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 K. Respondent ordered counsel for Descon Construction, L.P. to act as counsel for the six separate individuals and entities even after being informed of non-representation and potential conflict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 B. It is an abuse of discretion to join parties under Rule 28 without proof that any of the parties are doing business under an assumed name.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 1. Descon Construction, L.P. is a legal entity separate from any of the newly added parties.. . . . . . . . . . . . . . . . . . . . . . . . 10 x 2. To invoke Rule 28, RGCCISD had to prove that the six new parties were, in fact, doing business under an assumed name.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3. There is no evidence that any of the six additionally named parties were doing business as Descon Construction, L.P.. . . . . . . 14 4. Rule 28 cannot be used to join additional defendants to the law suit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 C. It is an abuse of discretion to assert jurisdiction over parties that have not been served. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 1. Only defendants who have been sued and served are subject to the jurisdiction of the trial court.. . . . . . . . . . . . . . . . . . . 17 2. RGCCISD sued and served only Descon Construction, L.P.. . . . . . 19 D. Mandamus is proper because Respondent issued orders beyond her jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 E. Mandamus is proper because Relator has no adequate remedy at law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 VERIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 APPENDIX AND RECORD.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Tab 1: May 1, 2015 Hearing Transcript of Pretrial Motions Tab 2: Defendant Descon Construction, L.P.’s Supplemental Objection and Motion to Strike Plaintiff’s Thirteenth Amended Original Petition (all versions) and Motion to Abate and Response to Plaintiff’s Rule 28 Motion xi Tab 3: Plaintiff’s TRCP 28 Motion to Substitute Named Defendants Omitted by Defendants’ Disclosures and to Compel Defendants to Properly Identify Any Other Parties Tab 4: Plaintiff’s TRCP 28 Motion to Substitute Named Defendants Omitted by Defendants’ Disclosures and to Compel Defendants to Properly Identify Any Other Parties Tab 5: Plaintiff’s Thirteenth Amended Original Petition (dated March 20, 2015) Tab 6: Plaintiff’s Thirteenth Amended Original Petition (dated April 24, 2015) Tab 7: Plaintiff’s Thirteenth Amended Original Petition (dated April 27, 2015) Tab 8: Defendant Descon Construction, L.P.’s Objection and Motion to Strike Plaintiff’s Thirteenth Amended Original Petition Tab 9: Plaintiff’s Thirteenth Amended Original Petition (dated April 29, 2015) Tab 10: Plaintiff’s Notice of Intent to Use Business Records xii INDEX OF AUTHORITIES Cases: BACM 2002 PB2 Westpark Dr. LP v. Harris County Appraisal Dist., No. 14-08-00493-CV, 2009 WL 2145922 (Tex. App.—Houston [14th Dist.] June 21, 2009, no pet.). . . . . . . . . . . . . . . . . . 13 Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex.1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Cockrell v. Estevez, 737 S.W.3d 138 (Tex. App.—San Antonio 1987, no writ). . . . . . . . . . . . . . . . . . 18 In re Allcat Claims Serv., L.P., 356 S.W.3d 455 (Tex. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 In re Ford Motor Company, 165 S.W.3d 315 (Tex. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 In re Freedom Bible Research Inst., No. 04-14-00550-CV, 2014 WL 5838941 (Tex. App.—San Antonio Nov. 12, 2014, no pet.).. . . . . . . . . . . . . . . 15, 16, 18, 21 In re Green Oaks Hosp. Subsidiary, L.P., 297 S.W.3d 452 (Tex. App.—Dallas 2009, no pet). . . . . . . . . . . . . . . . 20, 21 In re McAllen Med. Ctr., Inc., 275 S.W.3d 458 (Tex. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 21, 22 In re Suarez, 261 S.W.3d 880 (Tex. App.—Dallas 2008, no pet.). . . . . . . . . . . . . . . 20, 21 In re SW. Bell Tel. Co., 35 S.W.3d 602 (Tex. 2000) (orig. proceeding).. . . . . . . . . . . . . . . . . . . . . . . . . . . 21 xiii In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 KAO Holdings, L.P. v. Young, 261 S.W.3d 60 (Tex. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 KM-Timbercreek, LLC v. Harris Cnty. Appraisal Dist., 312 S.W.3d 722 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). . . . . . . 13, 14 Manufacturers’ Hanover Trust Co. v. Kingston Investors Corp., 819 S.W.2d 607 (Tex. App.—Houston [1st. Dist.] 1991, no writ).. . . . . . . . . . . . 12 Mapco, Inc. v. Carter, 817 S.W.2d 686 (Tex. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 19 Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846 (Tex. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Roe v. Ladymon, 318 S.W.3d 502 (Tex. App.—Dallas 2010, no pet.).. . . . . . . . . . . . . . . . . . . . . . . 11 Rosenthal v. Terrazo Nat’l Tile & Marble, Inc., 742 S.W.2d 55 (Tex. App.—Houston [14th Dist.] 1987, no writ). . . . . . . . . . 19, 20 Seidler v. Morgan, 277 S.W.3d 549 (Tex. App.—Texarkana 2009, pet. denied). . . . . . . . . . . . . . . . . 12 Sixth RMA Partners v. Sibley, 111 S.W.3d 46 (Tex. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16, 17 W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32 (Tex. App.—Houston [14th Dist.] 2006, no pet.). . . . . . . 12, 19, 20 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 21, 22, 23 Werner v. Colwell, 909 S.W.2d 866 (Tex. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 xiv Codes and Rules: Tex. Bus. Orgs. Code § 152.056. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Tex. Bus. Orgs. Code § 154.001(a)(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Tex. Gov’t Code § 22.221(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii Tex. R. Civ. P. 28.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Tex. R. Civ. P. 124.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18 Tex. R. App. P. 52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Texas Uniform Limited Partnership Act, Tex. Rev. Civ. Stat. Ann. art. 6132b, § 45 (expired). . . . . . . . . . . . . . . . . . . . . 9, 11 Texas Revised Uniform Partnership Act. Business Organizations Code § 152.001 et. seq.. . . . . . . . . . . . . . . . . . . . . . . 10, 11 xv STATEMENT OF THE CASE This is a construction defect case. Real Party in Interest, Rio Grande City Consolidated Independent School District (“RGCCISD”), brought suit against Descon Construction, L.P. in the case of Rio Grande City Consolidated Independent School District v. Descon Construction, L.P., Cause No. DC-14-46, for negligence, breach of contract, and implied warranty of good and workmanlike manner. Descon Construction, L.P. appeared and answered. Less than two weeks before trial, RGCCISD filed their Thirteenth Amended Original Petition which named six new separate and distinct parties to the action. RGCCISD also filed a motion to substitute parties under Rule 28, claiming that all of the six newly named individuals and entities were also known as, or doing business as, Descon Construction, L.P. Descon Construction, L.P. filed objections and affidavit evidence establishing that it was a separate legally existing entity as named, and was the proper party to the suit. Descon Construction, L.P. also sought to abate or continue the suit based on the attempt to join new unserved individuals and entities. On May 1, 2015, Respondent, The Honorable Ana Lisa Garza, Judge Presiding in the 229th Judicial District Court of Starr County, Texas, entered orders denying all of Descon Construction, L.P.’s objections and motions to strike both the amended pleadings and Rule 28 motion. Respondent granted Real Party in Interest’s Rule 28 motion joining six unserved individuals and entities. Respondent also denied Descon Construction, L.P.’s motion to abate xvi or continue the action. This case is set for jury trial on May 11, 2015. A request for emergency relief is being filed with this motion. STATEMENT OF JURISDICTION This Court of Appeals has jurisdiction over this matter under 22.221(b) of the Texas Government Code, which provides “[e]ach court of appeals for a court of appeals district may issue all writs of mandamus, agreeable to the principles of law regulating those writs, against a judge of a District or County court in the court of appeals district.” STATEMENT REGARDING ORAL ARGUMENT In light of this Court’s previous rulings, Relator believes that the matters in this Petition are well settled. Therefore, Relator does not seek oral argument at this time. However, in the event that Real Party in Interest requests and is granted oral argument, Relator also requests argument. xvii ISSUES PRESENTED I. Respondent abused her discretion by ordering the joinder of additional individuals and entities pursuant to Rule 28. II. Respondent abused her discretion by asserting jurisdiction over parties that have not been served. III. Mandamus is proper because Respondent issued orders beyond her Jurisdiction. IV. Mandamus is proper because Relator has not adequate remedy at law. xviii TO THE HONORABLE FOURTH COURT OF APPEALS: Pursuant to Texas Rule of Appellate Procedure 52, Relator, Descon Construction, L.P., requests this Court issue a writ of mandamus directing The Honorable Ana Lisa Garza, Judge Presiding in the 229th Judicial District Court of Starr County, Texas, to vacate its order granting RGCCISD’s Rule 28 motion, allowing RGCCISD to file amended pleadings, and denying Relator’s objections and motion to strike the amended pleadings and motion for abatement and continuance. STATEMENT OF FACTS Respondent has entered an order allowing RGCCISD to join six separate and distinct individuals and entities to a lawsuit one week before trial. (Tab 1, p. 26). Respondent refused to grant a continuance or abate the action so that the six new parties could conduct discovery or prepare a defense. (Tab 1, p. 26). None of the six new parties have been served. The trial court based its ruling entirely on Rule 28. (Tab 1, p. 26). A. Descon Construction, L.P. is an existing legal entity that does not do business in any other name and is not known by any other name. Descon Construction, L.P. is a Texas limited partnership. (Tab 2, Exhibit C) (Tab 3, Exhibit A) (Tab 4, Exhibit E & F). On January 2, 2004, Descon Construction, L.P. entered into a contract with RGCCISD for the construction of La Grulla Elementary School. (Tab 2, Exhibits C & C-A). The only parties to the contract were Descon Construction, L.P. and RGCCISD. (Tab 2, Exhibits C & C-A). The project was completed in 2005. (Tab 2, Exhibit C). 1 In 2006, Texas Descon, L.P. was formed. (Tab 2, Exhibit C). Texas Descon, L.P. is a separate legal entity from Descon Construction, L.P. (Tab 2, Exhibit C) (Tab 2, Exhibit A). Texas Descon, L.P.’s general partner is Descon 4S, LLC. (Tab 2, Exhibit C). Through a negotiated arms-length agreement, Texas Descon, L.P. purchased the goodwill of Descon Construction, L.P. (Tab 2, Exhibit C). It did not acquire Descon Construction, L.P.’s liability in general, or as related to the RGCCISD contract. (Tab 2, Exhibit C). In 2009, Descon Construction, L.P. filed a certificate of cancellation indicating that it was closing its business. (Tab 4, Exhibit G). Its general partner at the time was Descon Management, L.L.C.1 (Tab 4, Exhibit G). Descon Construction, L.P. was reinstated on September 2012. (Tab D, Exhibits E & F). Its general partners at the time of reinstatement were Descon Management, L.L.C. and Maco Management, L.L.C. (Tab 4, Exhibits F & J). Maco Management, L.L.C. has since dissolved. (Tab 3, Exhibit A). Descon Management, L.L.C. is an existing limited liability corporation and continues to be the general partner of Descon Construction, L.P. (Tab 3, Exhibit A). Since the time it was reinstated, Descon Construction, L.P. has existed as a recognized legal entity in the State of Texas through the present date (Tab 2, Exhibit C) (Tab 3, Exhibit A) (Tab 4, Exhibits E & F). 1 Descon Management, L.L.C. was dissolved in December, 2009 and was reinstated in 2012. (Tab 3, Exhibit A). 2 B. RGCCISD brought suit against Descon Construction, L.P. On January 29, 2014, RGCCISD brought suit against Descon Construction, L.P. for negligence, breach of contract, and implied warranty of good and workmanlike manner. Descon Construction, L.P. appeared and answered. In the lawsuit, RGCCISD seeks more than $15 million dollars in damages. The deadline for RGCCISD to file supplemental and amended pleadings was April 14, 2015. (Tab 2, Exhibits A & B). From the inception of suit until that deadline, RGCCISD filed numerous amended petitions. RGCCISD’s “Thirteenth Amended Original Petition” was filed on March 20, 2015. (Tab 5). Each petition, including the RGCCISD’s “Thirteenth Amended Original Petition” named Descon Construction, L.P. as the Defendant. (Tab 5). C. After the pleadings deadline, and two weeks before trial, RGCCISD amended its pleadings to add multiple new parties. On April 24, 2015, ten days after the pleading deadline, RGCCISD filed another petition that was also titled “Plaintiff’s Thirteenth Amended Original Petition.” (Tab 6). In that pleading, however, “RGCCISD sues Texas Descon, L.P. fka Descon Construction, L.P., for purposes of enforcing its substantive rights, pursuant to Texas Rule of Procedure 28.” (Tab 6). On April 27, RGCCISD filed another petition that was also titled “Plaintiff’s Thirteenth Amended Original Petition.” (Tab 7). This time, RGCCISD took a shotgun approach to naming new parties and added “J. Wayne Medlin aka/dba Descon 4S, L.L.C., aka/dba Descon Construction, L.P., aka/dba Texas Descon, L.P.,”. . . alleging that “each 3 named entity and person are doing business under assumed names and as defendants pursuant to Texas Rule of Civil Procedure 28 and may sue the partnerships, assumed or common names of defendants for purposes of RGCCISD enforcing its substantive rights.” (Tab 7.). RGCCISD also named Michael C. Smith as a partner of Texas Descon, L.P. RGCCISD asserted that, under Rule 28, no service of process was necessary. (Tab 7). D. RGCCISD filed documents confirming that Descon Construction, L.P. is a separate and existing legal entity. At the time it filed its new pleadings, RGCCISD also filed a motion pursuant to Rule 28 to “substitute named defendants omitted.” (Tab 3). In that motion, RGCCISD asserted that all of the named entities were operating under an assumed name (presumably, but not identified, as Descon Construction, L.P.) and, therefore, were parties to the existing suit. (Tab 3). In support of this allegation, RGCCISD attached a web page purportedly published by Texas Descon, L.P., which claims that it was formed as a successor company to carry on the tradition and reputation of Descon Construction, L.P. (Tab 3. Exhibit A). However, one of the other exhibits attached to RGCCISD’s motion is a Maintenance Correction Memorandum to Entity Record which confirms that Descon Construction, L.P. was in existence and had been reinstated. (Tab 3, Exhibit A). A certificate of reinstatement for Descon Construction, L.P. was also included in RGCCISD’s exhibits. (Tab 3, Exhibit A). The tax clearance letters and reports were also attached. (Tab 3, Exhibit A). Therefore, RGCCISD’s motion was accompanied by significant evidence establishing that Descon 4 Construction, L.P. was re-instated and now is a separate and existing legal entity. (Tab 3, Exhibit A). E. Descon Construction, L.P. confirms that it is a separate and existing legal entity. On April 28, 2015, Descon Construction, L.P. filed its objection and motion to strike the amended pleadings. (Tab 8). As part of their objections, Descon Construction, L.P. confirmed that Descon Construction, L.P. was an existing entity that was not doing business under an assumed name. (Tab 8). Descon Construction, L.P. also affirmed that Texas Descon, L.P. is not its successor in liability for the contract. (Tab 8). On the same day, Descon Construction, L.P. filed a second amended answer containing verified denials as to the identity and capacity of Descon Construction, L.P. as an entity also known as or doing business under any other name. (Tab 2, Exhibit C-C). F. After being made aware that Descon Construction, L.P. is a legal entity and the only proper defendant, RGCCISD added more parties claiming that they were interchangeable under Rule 28. On April 29, 2015, fifteen days after the pleading deadline and after being notified of the correct party name, RGCCISD filed yet another Thirteenth Amended Petition.2 (Tab 9). This time, RGCCISD modified the title slightly by adding “(b)” on the end of the title, thus titling the document, “Plaintiff’s Thirteenth Amended Original Petition (b).” (Tab 9). In this 4th version of RGCCISD’s Thirteenth Amended Petition, RGCCISD named “J. Wayne 2 The fact that RGCCISD has filed four 13th Amended Petitions not only makes referring to the record difficult, but violates the rules of civil procedure. See Tex. R. Civ. P. 46 (“The original petition, first supplemental petition, second supplemental petition, and every other, shall each be contained in one instrument of writing.”). 5 Medlin aka/dba Descon Management, L.L.C., aka/dba Maco Management, L.L.C., aka/dba Michael C. Smith aka/dba Descon 4S, L.L.C., aka/dba Descon Construction, L.P., aka/dba Texas Descon, L.P., each individually, dba and fka Descon Construction, L.P.” RGCCISD again asserts that no service is necessary under Rule 28. (Tab 9). RGCCISD accompanied its petition with an amended “TRCP 28 Motion to Substitute,” and reattached the same exhibits confirming that Descon Construction, L.P. is a legal and existing separate entity. (Tab 9). G. Descon Construction, L.P. filed verified proof that it is a separate existing legal entity and the proper Defendant. Consequently, on April 30, 2015, Descon Construction, L.P. filed its supplemental objection and motion to strike RGCCISD’s Thirteenth Amended Original Petition and motion to abate and response to RGCCISD’s Rule 28 motion. (Tab 2). In that motion, Descon Construction , L.P. again confirmed that it was a legal existing entity, that it was the proper party to the suit, and that it was not known by any other name. (Tab 2, Exhibit C). Descon Construction, L.P. also detailed the relationships of each of the separate individuals and entities. (Tab B, Exhibit C). In support of its motion and objections, Descon Construction, L.P. attached the affidavit of Michael C. Smith, who confirmed that Descon Construction, L.P. is an existing Texas limited partnership and that it was a separate and distinct entity from Texas Descon, L.P. (Tab 2, Exhibit C). Smith also confirmed that Descon Construction, L.P. has never done business as Texas Descon, L.P. (Tab 2, Exhibit C). 6 H. Descon Construction, L.P. moved for continuance or abatement so that the parties could be corrected or, if added, could conduct discovery. In addition to establishing proof of its existence as the correct defendant and only party to the contract, Descon Construction, L.P. moved the Court to abate or continue the case. (Tab 2, Exhibit C). None of the newly added parties had been served. I. RGCCISD filed business records affidavit of a website builder who did work for one of the newly named parties. On the day that the matter was set for hearing, RGCCISD filed a notice of intent to use business records of a company named MPC studios. (Tab 10). The attached records contain correspondence with Texas Descon, L.P. The records contain a handwritten note by an unidentified individual that notes that Texas Descon, L.P. entered into a licensing agreement with Descon Construction, L.P. for its goodwill. (Tab 10). The handwritten notes are undated. (Tab 10). J. Respondent allowed RGCCISD to add six new parties just ten days before trial, and refused to grant a continuance or abatement. On May 1, 2015, just ten days before trial, Respondent heard the parties’ competing motions. (Tab 1, pp. 13-26). No evidence was presented that any of the proposed new parties were doing business as, or were known as, Descon Construction, L.P. (Tab 1, pp. 13-26). Despite the uncontroverted evidence that Descon Construction, L.P. is a separate and existing legal entity, Respondent granted RGCCISD’s Rule 28 motion and allowed it to join six new parties. (Tab 1, p. 26). Respondent also denied Descon Construction, L.P.’s motion 7 to abate or continue the trial. (Tab 1, p. 26). It is undisputed that none of the new parties have been served. K. Respondent ordered counsel for Descon Construction, L.P. to act as counsel for the six separate individuals and entities even after being informed of non- representation and potential conflict. After issuing orders, Respondent verbally ordered counsel for Descon Construction, L.P. to produce information regarding the registered agents for the six newly named parties and ordered that counsel make those parties available for trial. (Tab 1, pp.168-172). Counsel explained that they did not represent any party other then Descon Construction, L.P. and that representation of those entities could cause conflict. (Tab 1, pp.168-172). Despite counsel’s clear admonishments regarding conflict, the court demanded that counsel produce the information in one hour, before 5:00 p.m. that day. (Tab 1, p. 172). Under threat of contempt, counsel for Descon Construction, L.P. conducted a public records search through the secretary of state to provide the identity and address of the registered agents of each of the six different entities. SUMMARY OF THE ARGUMENT Mandamus relief is proper when a trial court exerts jurisdiction over individuals and entities that have not been served and are not before the court. Respondent in this case entered an order commanding six new persons and entities to trial with one week of notice. None of the individuals or entities have appeared or even been served. 8 Respondent’s ruling is based on Texas Rule of Civil Procedure 28, which allows for the substitution of names when it is shown that the defendant already involved in the litigation was doing business under another name. Significantly, the rule governs substituting names for one entity, not adding or joining parties. Rule 28 is procedural and does not change the substantive rights of parties. The Texas Supreme Court and this Court have made it clear that, before Rule 28 can be invoked, there must be evidence that the parties sought to be substituted are actually doing business in the assumed name. Evidence that a person or entity is referenced by a common name is not sufficient to invoke Rule 28. None of the evidence presented even suggests that any of the newly named individuals or entities are doing business as Descon Construction, L.P. Instead, the evidence conclusively established that all of the entities are separate legal entities and individuals doing business in their own name. Therefore, Rule 28 has no application to the facts of this case. Respondent’s order results in a ruling that each of the general partners, limited partners, registered agents, and entities sharing a common registered agent are interchangeable for purposes of service, discovery, and liability. There is no interpretation of any law in the State of Texas to support such a complete and total disregard for the Texas Uniform Limited Partnership Act. Nor is there any interpretation of law in the State of Texas to support the notion that individuals and entities can be dragged into court on one week’s notice to answer claims in excess of $15 million when they have not even been served. 9 Respondent’s abuse of discretion in this matter is clear. Because Respondent is asserting jurisdiction over individuals and entities that have not been served or appeared, no showing that Relator lacks an adequate remedy at law is required. However, under the extreme facts of this case, Descon Construction, L.P. has no adequate remedy at law. ARGUMENT AND AUTHORITIES A. Standard of Review. “A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” In re Ford Motor Company, 165 S.W.3d 315, 317 (Tex. 2005) (quoting Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)). A trial court has no discretion in determining what the law is or applying the law to the facts, even when the law is unsettled. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004). A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Walker, 827 S.W.2d at 840. B. It is an abuse of discretion to join parties under Rule 28 without proof that any of the parties are doing business under an assumed name. 1. Descon Construction, L.P. is a legal entity separate from any of the newly added parties. Descon Construction, L.P. is a limited partnership as defined by the Texas Revised Uniform Partnership Act. Although the partnership was temporarily dissolved after the completion of the contract giving rise to the underlying claims, it was fully reinstated in 10 2012, before RGCCISD brought suit. It remains an existing legal entity, and has appeared and answered in the underlying suit to confirm that it is the properly named party. In 1993, the Texas Legislature passed the Texas Revised Uniform Partnership Act (TRPA) in 1993 and which “unequivocally embrace[d] the entity theory3 of partnership by specifically stating . . . that a partnership is an entity distinct from its partners.” Tex. Rev. Civ. Stat. Ann. art. 6132b-2.01, Comment of Bar Committee-1993; see In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 463-64 (Tex. 2011). The TRPA, codified in the Texas Business Organizations Code, plainly provides that “[a] partnership is an entity distinct from its partners,” and “[a] partner is not a co-owner of partnership property.” Tex. Bus. Orgs. Code §§ 152.056, 154.001(c). Further, it is the partnership interest that is a partner’s “personal property for all purposes.” Id. § 154.001(a); see Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 855 (Tex. 2011) (noting that the general partner of a limited partnership is not an owner of the limited partnership’s property). The fact that Texas recognizes limited partnerships, and other business organizations, as separate legal entities means that a limited partnership and the partners thereto are not interchangeable in court proceedings. See Roe v. Ladymon, 318 S.W.3d 502, 515-16 (Tex. App.—Dallas 2010, no pet.) (holding that limited partner is a distinct legal entity from the partnership and is not bound by an arbitration agreement, even when the limited partner 3 Under the entity theory of partnership law the partnership is an entity separate and distinct from its partners. See 1 Alan R. Bromberg & Larry E. Ribstein, Bromberg and Ribstein on Partnership § 1.03(a)-(b) (Release No. 31, 2011-12 Supp.). 11 signed as a representative of the partnership); W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 45-46 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding that individuals would have been liable for work performed under d/b/a name, but that once the individuals formed a corporation, they could rely on the corporate form to shield them from individual liability); Manufacturers’ Hanover Trust Co. v. Kingston Investors Corp., 819 S.W.2d 607, 611 (Tex. App.—Houston [1st. Dist.] 1991, no writ) (holding that court could not force the sale of property owned by a Texas limited partnership in a suit against the partners, where the Texas limited partnership was not a party). Under Texas Law, Descon Construction, L.P. is a separate and distinct legal entity from any of the other named defendants. 2. To invoke Rule 28, RGCCISD had to prove that the six new parties were, in fact, doing business under an assumed name. For a party to take advantage of Rule 284 and sue in its common name, “there must be a showing that the named entity is in fact doing business under that common name.” Seidler v. Morgan, 277 S.W.3d 549, 553 (Tex. App.—Texarkana 2009, pet. denied). For example, although others may commonly and informally use the name of the premises location to refer to a particular entity, this does not mean that the entity is “doing business under” the premises name as an assumed or common name. Id. 4 Rule 28 provides: Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on motion by any party or on the court’s own motion the true name may be substituted. Tex. R. Civ. P. 28. 12 Examples of evidence that proves a person or entity is doing business under an assumed name include evidence that an entity was making demands and notices under the assumed name or that combined accounting procedures, such as payments on accounts, with the entity sought to be joined. Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003) (holding that Sixth RMA used the assumed name RMA Partners by sending notices on RMA Partners letterhead and collecting debts owed to Sixth RMA under the name RMA Partners). However, records such as tax statements, appraisal records, and account information which indicate that one entity may refer to itself as another entity is not evidence that the entities are actually doing business as one another. KM-Timbercreek, LLC v. Harris Cnty. Appraisal Dist., 312 S.W.3d 722, 730 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (references to separate entity in property records did not show that the entity was operating under an assumed name); see BACM 2002 PB2 Westpark Dr. LP v. Harris County Appraisal Dist., No. 14-08-00493-CV, 2009 WL 2145922, at *6–7 (Tex. App.—Houston [14th Dist.] June 21, 2009, no pet.) (finding HCAD’s designation of BACM as the property owner instead of Parkwest Place in its records was insufficient to show the operation in an assumed name). In KM-Timbercreek, LLC, the appellant complained that the trial court erred in denying its Rule 28 motion to substitute the name Timbercreek with Yorktown. 312 S.W.3d at 730. In support of its argument, the appellant pointed to evidence that Yorktown was the property owner according to tax records as evidence that Timbercreek was operating under 13 the name Yorktown. Id. However, the Houston First Court of Appeals rejected the argument stating: This argument ignores the specific language used in Rule 28, which frames the appropriate inquiry as not whether HCAD refers to or addresses an entity by a particular name, but whether that entity actually does business under the common name. Although HCAD’s appraisal records, account information, property tax statements, notice of appraised value, and order determining protest might be some evidence that HCAD refers to Timbercreek as Yorktown, without more, it is not evidence that Timbercreek conducts its business under the common name of Yorktown. Id. These cases demonstrate the distinction between an entity that is known by a different name and entity that does business using a different name. 3. There is no evidence that any of the six additionally named parties were doing business as Descon Construction, L.P. To support its Rule 28 motion, RGCCISD submitted documents of the Secretary of State and Texas Comptroller of Public Accounts. Those documents merely establish the separate legal existence of the limited partnerships and limited liability corporations that Respondent added to the proceeding. These documents, if anything, negate the application of Rule 28 because the entities took legal steps to demonstrate their separate legal existence. The only other documents that RGCCISD submitted in support of their Rule 28 motion was a snapshot of a page from Texas Descon, L.P.’s website.5 That website indicates that Texas Descon, L.P. entered into a licencing agreement with Descon Construction, L.P. 5 To be admissible as proof, a business records affidavit must be served on the other party at least 14 days before trial. Tex. R. Evid. 902 (1)(A). The affidavit, which was served on the day of hearing and less than 14 days before trial was not properly before the court. 14 in 2006 – before Descon Construction, L.P. was re-instated as a limited partnership. Even if Texas Descon, L.P.’s statements could be imputed to Descon Construction, L.P., the statements merely show that Texas Descon, L.P. has a right to Descon Construction, L.P.’s reputation and tradition. It does not show that Descon Construction, L.P. is doing business as Texas Descon, L.P. Nor does its show that Texas Descon, L.P. is doing business as Descon Construction, L.P. The distinction is important. In In re Freedom Bible Research Inst., this Court previously granted mandamus relief from an order that allowed “Freedom Bible Research Institute” and “Body of Christ Camp” to be substituted, pursuant to Rule 28 of the Texas Rules of Civil Procedure, for the parties named in the lawsuit as “Fred McCulloch and Betty McCulloch d/b/a Freedom Bible Research Institute, A Free Church a/k/a Body of Christ Camp.” No. 04-14-00550-CV, 2014 WL 5838941, at *4 (Tex. App.—San Antonio Nov. 12, 2014, no pet.). There, this Court observed: Rule 28 is a procedural rule that simply provides that if an individual or entity conducts business under an assumed name, it may be sued in that name. See Tex. R. Civ. P. 28; Chilkewitz v. Hyson, 22 S.W.3d 825, 830 (Tex. 1999). Under this rule a suit against FBRI would be effective to commence a suit against Fred and Betty because Fred and Betty filed an assumed name certificate and were doing business as Freedom Bible Research Institute. The McClintocks’ position poses the opposite that the suit against Fred and Betty was effective to commence a proceeding against FBRI and the Camp. Such a conclusion would require some evidence that FBRI and the Camp were doing business as Fred and Betty McCulloch. Id. 15 Even if the web site of Texas Descon, L.P. constituted some evidence that Descon Construction, L.P., as currently organized and reinstated, was doing business as Texas Descon, L.P., such fact would not be effective to commence a suit against Texas Descon, L.P. The problem, as in In re Freedom Bible Research, is that RGCCISD brought suit against Descon Construction, L.P. See id. To commence a proceeding against Texas Descon, L.P., there would have to be evidence that Texas Descon, L.P. was doing business as Descon Construction, L.P., which the website disproves. Unlike the defendants in Sixth RMA, there is no evidence that Descon Construction, L.P. was actually doing business under the name Texas Descon, L.P., or that Texas Descon, L.P. was actually doing business under the name Descon Construction, L.P. See 111 S.W.3d at 52-53. Moreover, none of the evidence submitted by RGCCISD even suggests that Descon Management L.L.C., Michael C. Smith, J. Wayne Medlin, Descon 4S L.L.C., or Maco Management, L.L.C. were doing business as Descon Construction, L.P. or vice versa. None of the evidence submitted suggests that any of the newly named parties interacted with RGCCISD through an assumed name at any time through the completion of the underlying contract. Yet, Respondent ordered each of these separate and existing entities to be joined by name – without service – a week before trial. Respondent’s actions constitute an abuse of discretion. See In re Freedom Bible Research Inst., 2014 WL 5838941, at *4 (abuse of discretion shown where trial court ordered the substitution of parties without proof that the entities were doing business under an assumed name). 16 4. Rule 28 cannot be used to join additional defendants to the law suit. Plaintiff cited Sixth RMA Partners, L.P., for the proposition that the individuals and entities identified in Plaintiff’s Thirteenth Amended Petition could be added to the lawsuit. See 111 S.W.3d at 53. However, Plaintiff ignores the holding in Sixth RMA: “Rule 28 requires that the correct legal name be substituted.” See 111 S.W.3d at 53 (emphasis added). The Supreme Court’s holding mirrors the text of Rule 28: “on a motion by any party or on the court’s own motion the true name may be substituted.” Tex. R. Civ. P. 28 (emphasis added). In other words, any time that a Rule 28 motion is granted, the number of the defendants in the case should always remain the same; only the name should change. This is why Rule 28 is a procedural mechanism that does not alter substantive rights. In this case, Plaintiff attempted to join six additional defendants to the lawsuit under the guise of a Rule 28 motion to substitute names. Respondent granted the false Rule 28 motion, adding six defendants to the case and abusing her discretion in doing so. C. It is an abuse of discretion to assert jurisdiction over parties that have not been served. 1. Only defendants who have been sued and served are subject to the jurisdiction of the trial court. No judgment may be rendered against a person who has been neither sued nor served. See, e.g., Tex. R. Civ. P. 124. Unless and until a person has been sued and served, that person is not a party to the lawsuit, and is not subject to the trial court’s jurisdiction. Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991). The purpose of citation is to give the court 17 jurisdiction over the defendant, satisfy due-process requirements, and to give the defendant the opportunity to appear and defend. Cockrell v. Estevez, 737 S.W.3d 138, 140 (Tex. App.—San Antonio 1987, no writ). A judgment cannot be rendered against a defendant unless the defendant was served with process, accepted or waived service, or made an appearance. Tex. R. Civ. P. 124; Werner v. Colwell, 909 S.W.2d 866, 869-870 (Tex. 1995); Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991). In KAO Holdings, L.P. v. Young, the plaintiff sued the limited partnership, and not the general partner, but nonetheless obtained a default judgment against both. 261 S.W.3d 60, 61 (Tex. 2008). The Texas Supreme Court stated as follows: Partners against whom judgment is sought should be both named and served so that they are on notice of their potential liability and will have an opportunity to contest their personal liability for the asserted partnership obligation. Id. at 64 (footnote omitted). Respondent’s order is a ruling that forces six named individuals and entities to trial without the benefit of service, discovery, or defense. As to Descon Construction, L.P., it forces Descon Construction, L.P. to trial under theories of joint and several liability that have not been developed. Respondents use of Rule 28 to eviscerate Relator’s substantive rights constitutes a clear abuse of discretion. See In re Freedom Bible Research Inst., 2014 WL 5838941, at *4 (abuse of discretion shown where trial court ordered the substitution of parties without proof that the entities were doing business under an assumed name). Lack of 18 jurisdiction is fundamental error – an objection to lack of jurisdiction may be raised at any time, and that objection cannot be waived. See id; Mapco, Inc., 817 S.W.2d at 687. 2. RGCCISD sued and served only Descon Construction, L.P. Up until April 24, 2015, Descon Construction, L.P. was the only party to be named in this proceeding. As of this date, Descon Management, L.L.C., Michael C. Smith, J. Wayne Medlin, Descon 4S, L.L.C. and Maco Management, L.L.C. have not been served. Yet, Respondent has ordered Descon Management, L.L.C., Michael C. Smith, J. Wayne Medlin, Descon 4S, L.L.C., and Maco Management, L.L.C. to appear at trial and answer RGCCISD’s charges against them. The evidence submitted by both the Relator and the Real Party in Interest confirms that each of the named parties and individuals are separate existing legal entities. A lawsuit against A d/b/a B is only a lawsuit against A, when A and B are separate legal entities. See W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 46 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (recognizing the difference between (I) individuals doing business under an assumed name, and (ii) individuals doing business through an actual business entity); Rosenthal v. Terrazo Nat’l Tile & Marble, Inc., 742 S.W.2d 55, 56 (Tex. App.—Houston [14th Dist.] 1987, no writ) (petition against “Bennett Rosenthal, individually and doing business as 9201 Partnership, Ltd.” “plainly allege[d] a cause of action against only one defendant.”). When a plaintiff sues and serves A d/b/a B, assuming B is an entity 19 separate and distinct from A, then the jurisdiction of the trial court has not attached to B. See id. Instead, the plaintiff must separately sue and serve the other legal entity. RGCCISD has tried to blur the line between the separate and distinct legal entities by inserting the phrase “aka/dba” in between each entity and individual. However, this act is merely one of nomenclature and does not change the identity or substantive rights of the separately existing entities. See W & F Transp., Inc., 208 S.W.3d at 46; Rosenthal, 742 S.W.2d at 56. Therefore, Respondent does not have jurisdiction over Descon Management, L.L.C., Michael C. Smith, J. Wayne Medlin, Descon 4S, L.L.C. or Maco Management, L.L.C. because those individuals and business entities have not been served. Nonetheless Respondent has issued an order making those individuals and business entities parties to RGCCISD’s lawsuit, and making Descon Construction, L.P. jointly and severally liable for their actions. D. Mandamus is proper because Respondent issued orders beyond her jurisdiction. “Generally, mandamus relief lies when the trial court has abused its discretion and the relator has no adequate remedy by appeal.” In re Suarez, 261 S.W.3d 880, 882 (Tex. App.—Dallas 2008, no pet.). “If an order is void, however, a relator need not show it does not have an adequate remedy to be entitled to mandamus relief.” In re Green Oaks Hosp. Subsidiary, L.P., 297 S.W.3d 452, 456 (Tex. App.—Dallas 2009, no pet). When a trial court issues an order beyond its jurisdiction, the order is void, constitutes an abuse of discretion, and is correctable by mandamus without a showing that the relator lacks an 20 adequate appellate remedy. In re SW. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); In re Green Oaks Hosp. Subsidiary, L.P., 297 S.W.3d at 456; In re Suarez, 261 S.W.3d at 882. When a trial court allows for improper substitution pursuant to Rule 28 and asserts jurisdiction over separate entities, a relator lacks an adequate remedy at law and is entitled to mandamus relief without further showing. In re Freedom Bible Research Inst., No. 04-14-00550-CV, 2014 WL 5838941, at *3 (Tex. App.—San Antonio Nov. 12, 2014). E. Mandamus is proper because Relator has no adequate remedy at law. In the alternative, Descon Construction, L.P. would show that the combined actions of Respondent in adding six new and unserved parties ten days before trial, denying abatement and continuance, and ordering counsel for Relator to act as counsel for the six newly named parties, is so extreme as to render this an exceptional case where mandamus relief is appropriate. The adequacy of an appellate remedy must be determined by balancing the benefits of mandamus review against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). In evaluating benefits and detriments, a court must consider whether mandamus will preserve important substantive and procedural rights from impairment or loss. In re Team Rocket, L.P., 256 S.W.3d at 262. In Prudential, the Supreme Court departed from the categorical view of mandamus entitlement espoused in Walker6 and instructed that the 6 827 S.W.2d 833, 839 (Tex. 1992). 21 adequacy of an appellate remedy depends on the circumstances of a case and that mandamus is appropriate when the benefits of mandamus review outweigh the detriments. Prudential, 148 S.W.3d at 137. By 2008, the Texas Supreme Court made the extent of its departure from Walker clear when it focused specifically on the unnecessary costs and delays that would be incurred if mandamus was denied to correct an abuse of discretion. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 466 (Tex. 2008). A reviewing court must consider whether mandamus will spare litigants and the public “the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” Team Rocket, 256 S.W.3d at 262 (quoting Prudential, 148 S.W.3d at 136). In Prudential, the Supreme Court has recognized that “[m]andamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss.” 148 S.W.3d at 136. Several of those important substantive and procedural rights are lost under the trial court’s orders which results in liability for Descon Construction, L.P. for the acts and associations of six or more separate entities who have no time to prepare a defense, and whose interests may stand in conflict to those interests of Descon Construction, L.P.. Additionally, due to the timing of the court’s orders on the eve of trial, Descon Construction, L.P. has no opportunity to participate in discovery and develop defenses responsive to theories of assumed name, common name, d/b/a, a/k/a, limitations and joint and several or vicarious liability. 22 It is beyond dispute that there will be a substantial waste of the litigants’ time and money if they were to proceed to trial without the error being corrected. At a minimum, such action will result in a convoluted appeal of a trial projected to last between three to four weeks. Where a trial court’s error will cause a waste of judicial resources, an appellate court may properly consider that factor in determining the adequacy of an appeal to remedy the error in question. See Walker, 827 S.W.2d at 843. Furthermore, RGCCISD’s untimely Thirteenth Amended Petition inserts new issues into the case that were never pleaded and are completely baseless, e.g. correct application of partnership liability law and piercing the corporate veil doctrine. By allowing RGCCISD to add six new parties and denying the motion for continuance, the Respondent is forcing litigants to proceed to a trial on issues that no one has prepared for. Descon Construction, L.P. asserts that it is the only rightful party before this Court. However, even if the individuals and entities listed in RGCCISD’s Thirteenth Amended Petition are proper defendants, a stay of the proceedings is necessary. If any of the other named and unserved parties were forced to trial at this stage in the proceedings, they would be forced with choosing between (i) waiving personal jurisdiction and trying a case with a week of preparation and (ii) allowing RGCCISD to take a default judgment against them. The potential waste of resources, when combined with the possibility that any subsequent appeal may be hindered by Descon Construction, L.P.’s inability to conduct discovery to build an adequate appellate record, supports the conclusion that an appeal would 23 not adequately protect the parties rights. Relator submits that mandamus review should issue here to spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings. PRAYER WHEREFORE, PREMISES CONSIDERED, Relator Descon Construction, L.P., respectfully requests that this Honorable Court grant a Writ of Mandamus directing the 229th District Court of Starr County, Texas to: 1. Vacate its order granting Plaintiff’s First Amended Rule 28 Motion to Substitute Named Defendants and to compel defendants to properly identify any other parties. 2. Grant Relator’s Motion to Strike the 13th Amended Petition (all versions) and to continue or abate. 3. And for any other relief to which Relator may be entitled. 24 Respectfully submitted, COKINOS, BOSIEN & YOUNG 10999 IH-10 West, Suite 800 San Antonio, Texas 78230 (210) 293-8700 (Office) (210) 293-8733 (Fax) Date: May 4, 2015 By: /s/ Karen L. Landinger Karen L. Landinger State Bar No. 00787873 klandinger@cbylaw.com Stephanie O’Rourke State Bar No. 15310800 sorourke@cbylaw.com Stanley W. Curry, Jr. State Bar No. 05274000 scurry@cbylaw.com Robert M. Smith State Bar No. 18677400 rmsmith@cbylaw.com Gabriel S. Head State Bar No. 24055642 ghead@cbylaw.com ATTORNEYS FOR RELATOR, DESCON CONSTRUCTION, L.P. 25 CERTIFICATE OF SERVICE I certify that a copy of the Original Petition for Writ of Mandamus was served on the following on the 4th day of May, 2015: RESPONDENT The Honorable Ana Lisa Garza District Judge 229th Judicial District Court of Starr County Starr County Courthouse 401 N. Britton Avenue, Room 304 Rio Grande City, Texas 78582 (956) 487-2636 (Office) (956) 487-4093 (Fax) alglaw1@aol.com asaenz@co.starr.tx.us INTERESTED PARTIES Attorneys for Interested Party, Rio Grande City CISD Norman Jolly Michael B. Jolly Law Office of Norman Jolly 405 Main, Suite 1000 Houston, Texas 77002 (713) 237-8383 (Office) (713) 237-8385 (Fax) normanjollypc@sbcglobal.net mikejolly@aol.com lawjp@earthlink.net ericjarvis@rocketmail.com twentysixpoint2@me.com medina_nancy@sbcglobal.net Attorneys for Interested Party, Rio Grande City CISD Martie Garcia Vela 100 West 5th Street Rio Grande City, Texas 78582 (956) 488-8170 (Office) (956) 488-8129 (Fax) martie.garcia@gmail.com 27 Attorneys for Interested Party, ERO International, L.L.P. John R. Griffith Griffith Law Group 801 E. Fern Avenue, Suite 170 McAllen, Texas 78501 (956) 971-9446 (Office) (956) 971-9451 (Fax) jrg@rgvfirm.com gh@rgvfirm.com Attorneys for Interested Party, Halff Associates, Inc. and Menton J. Murray, III, P.E. Grant Gealy Mills Shirley, L.L.P. 3 Riverway, Suite 100 Houston, Texas 77058 (713) 571-4206 (Office) (713) 225-0844 (Fax) ggealy@millsshirley.com psutton@millsshirley.com Attorneys for Interested Party, AAS Consulting, Inc. d/b/a Advance Air Systems Douglas M. Walla Andrew M. Williams & Associates 5909 West Loop South, Suite 550 Bellaire, Texas 77401 (713) 840-7321 (Office) (713) 839-1302 (Fax) doug@amwlawfirm.com admin2@amwlawfirm.com admin1@amwlawfirm.com 28 Attorneys for Interested Party, C.A. Ray & Son Painting Contractors, Inc. Marc E. Villarreal R. Kyle Hinkle Hinkle & Villarreal, P.C. 719 S. Shoreline Blvd., Suite 300 Corpus Christi, Texas 78401 (361) 883-0620 (Office) (361) 883-0612 (Fax) mvillarreal@southtxdefense.com rkhinkle@southtxdefense.com afrees@southtxdefense.com Attorneys for Interested Party, Faires Plumbing Co., Inc. David J. Dunn Dunn, Weathered, Coffey, Rivera & Kasperitis, P.C. 611 S. Upper Broadway Corpus Christi, Texas 78401 (361) 883-1594 (Office) (361) 883-1599 (Fax) Dunndj@swbell.net vanesa@dwcrk.net kellycreel@swbell.net Attorneys for Interested Party, Limon Masonry, Inc. Brian C. Lopez Brittany C. Cooperrider Engvall & Lopez, L.L.P. 1811 Bering, Suite 210 Houston, Texas 77057 (713) 787-6700 (Office) (713) 787-0070 (Fax) blopez@eltexaslaw.com bcooperrider@eltexaslaw.com mmufti@eltexaslaw.com 29 Attorneys for Interested Party, C & M Contracting, Inc. David C. Garza Liliana Elizondo Garza & Garza, L.L.P. 680 East St. Charles, Suite 300 P.O. Box 2025 Brownsville, Texas, 78250 (956) 541-4914 (Office) (956) 542-7403 (Fax) dgarza@garzaandgarza.com lelizondo@garzaandgarza.com Attorneys for Interested Party, RGV-R&R Construction Services, L.L.C. David W. Medack James P. Davis Heard & Medack, P.C. 9494 Southwest Freeway, Suite 700 Houston, Texas 77074 (713) 772-6400 (Office) (713) 772-6495 (Fax) dmedack@heardmedackpc.com jdavis@heardmedackpc.com Mloonahm@heardmedackpc.com Chernandez@heardmedackpc.com Attorneys for Interested Party, Daniel Vasquez, Individually and d/b/a Twin City Glass John A. Guerra Louis A. Gross Brock Person Guerra Reyna, P.C. 17339 Redland Road San Antonio, Texas 78247-2304 (210) 979-0100 (Office) (210) 979-7810 (Fax) jguerra@bpgrlaw.com lgross@bpgrlaw.com cvaldez@bpgrlaw.com cmahoney@bpgrlaw.com laniol@bpgrlaw.com 30 Attorneys for Interested Party, Zarate Suspended Ceiling, Inc. John A. Guerra Louis A. Gross Brock Person Guerra Reyna, P.C. 17339 Redland Road San Antonio, Texas 78247-2304 (210) 979-0100 (Office) (210) 979-7810 (Fax) jguerra@bpgrlaw.com lgross@bpgrlaw.com cvaldez@bpgrlaw.com cmahoney@bpgrlaw.com laniol@bpgrlaw.com Attorneys for Interested Party, Zarate Suspended Ceiling, Inc. Michael G. Dunnahoo Rymer, Moore, Jackson & Echols, P.C. 2801 Post Oak Blvd., Suite 250 Houston, Texas 77056 (713) 626-1550 (Office) (713) 626-1558 (Fax) mdunnahoo@rmjelaw.com lkelly@rmjelaw.com Attorneys for Interested Party, D&J Site Construction, Inc. David J. Dunn Dunn, Weathered, Coffey, Rivera & Kasperitis, P.C. 611 S. Upper Broadway Corpus Christi, Texas 78401 (361) 883-1594 (Office) (361) 883-1599 (Fax) Dunndj@swbell.net vanesa@dwcrk.net kellycreel@swbell.net 31 Attorneys for Interested Party, Perez Consulting Engineers Gregory N. Ziegler Dean Siotos Macdonald Devin, P.C. 3800 Renaissance Tower 1201 Elm Street Dallas, Texas 75270-2130 (214) 744-3300 (Office) (214) 747-0942 (Fax) Gziegler@MacdonaldDevin.com dsiotos@macdonalddevin.com mwhite@macdonalddevin.com Lholsomback@macdonalddevin.com Dpainter@macdonalddevin.com Attorneys for Interested Party, KBM Air Conditioning, Inc. Jason L. West Brock Person Guerra Reyna, P.C. 17339 Redland Road San Antonio, Texas 78247-2302 (210) 979-0100 (Office) (210) 979-7810 (Fax) jwest@bpgrlaw.com Attorneys for Interested Party, Tri City Steel and Fabrication, Inc. Thomas A. Mailloux II Brock Person Guerra Reyna, P.C. 17339 Redland Road San Antonio, Texas 78247-2302 (210) 979-0100 (Office) (210) 979-7810 (Fax) tmailloux@bpgrlaw.com blawrence@bpgrlaw.com /s/ Karen L. Landinger Karen L. Landinger 32 IN THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS Descon Construction, L.P., Relator ___________________________________________________________________________ From the 229th District Court of Starr County, Texas Case No. DC-14-46 ___________________________________________________________________________ APPENDIX* Tab 1: May 1, 2015 Hearing Transcript of Pretrial Motions Tab 2: Defendant Descon Construction, L.P.’s Supplemental Objection and Motion to Strike Plaintiff’s Thirteenth Amended Original Petition (all versions) and Motion to Abate and Response to Plaintiff’s Rule 28 Motion Tab 3: Plaintiff’s TRCP 28 Motion to Substitute Named Defendants Omitted by Defendants’ Disclosures and to Compel Defendants to Properly Identify Any Other Parties Tab 4: Plaintiff’s TRCP 28 Motion to Substitute Named Defendants Omitted by Defendants’ Disclosures and to Compel Defendants to Properly Identify Any Other Parties Tab 5: Plaintiff’s Thirteenth Amended Original Petition (dated March 20, 2015) Tab 6: Plaintiff’s Thirteenth Amended Original Petition (dated April 24, 2015) Tab 7: Plaintiff’s Thirteenth Amended Original Petition (dated April 27, 2015) 33 Tab 8: Defendant Descon Construction, L.P.’s Objection and Motion to Strike Plaintiff’s Thirteenth Amended Original Petition Tab 9: Plaintiff’s Thirteenth Amended Original Petition (dated April 29, 2015) Tab 10: Plaintiff’s Notice of Intent to Use Business Records 34 Tab 1 DC-14-46, RGCCISD v. Descon Construction et al 1 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 COURT REPORTER'S RECORD 2 VOLUME 1 OF 1 VOLUMES 3 4 TRIAL COURT CAUSE NO. DC-14-46 5 RIO GRANDE CITY ) IN THE DISTRICT COURT CONSOLIDATED INDEPENDENT ) 6 SCHOOL DISTRICT ET AL ) ) 7 v. ) DUVAL COUNTY, TEXAS ) 8 DESCON CONSTRUCTION, ERO, ) LIMON MASONRY, C & M, ) 9 TRI CITY GLASS, ET AL ) 229TH JUDICIAL DISTRICT 10 ____________________________________________ 11 12 PRETRIAL MOTIONS 13 14 ____________________________________________ 15 16 On the 1st day of May, 2015, the following proceedings 17 came to be heard in the above-entitled and numbered cause, in 18 the courtroom of the 229th Judicial District Court, at the 19 Starr County Courthouse in Rio Grande City, Texas, before the 20 Honorable Ana Lisa Garza, District Judge. 21 These proceedings were reported by computerized 22 stenotype machine by Mr. Ramiro Hernandez, Official Court 23 Reporter for the 229th Judicial District; court reporter's 24 record produced by computer with software-assisted translation 25 of shorthand symbols to English. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 2 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 2 3 APPEARANCES: 4 MR. NORMAN JOLLY MR. MICHAEL B. JOLLY 5 MR. HAMILTON G. RUCKER ATTORNEYS AT LAW 6 405 MAIN, SUITE 1000 HOUSTON, TEXAS 77002 7 PHONE: 713-237-8383 FAX: 713-237-8385 8 ATTORNEYS FOR PLAINTIFF 9 MS. MARTIE GARCIA VELA ATTORNEY AT LAW 10 100 WEST 5TH STREET RIO GRANDE CITY, TEXAS 78582 11 PHONE: 956-488-8170 FAX: 956-488-8129 12 ATTORNEY FOR PLAINTIFF 13 MILLS SHIRLEY LLP 14 MR. GRANT GEALY, PARTNER ATTORNEY AT LAW 15 ONE CITY CENTRE 3 RIVERWAY, SUITE 100 16 HOUSTON, TEXAS 77056 PHONE: 713-225-0547 17 FAX: 713-225-0844 E-MAIL: ggealy@millsshirley.com 18 ATTORNEY FOR HALFF ASSOCIATES, INC 19 ANDREW M. WILLIAMS & ASSOCIATES MR. DOUGLAS M. WALLA, OF COUNSEL 20 ATTORNEYS AT LAW 5909 WEST LOOP SOUTH, SUITE 550 21 BELLAIRE, TEXAS 77401 PHONE: 713-840-7321 22 FAX 713-839-1302 EMAIL: doug@amwlawfirm.com 23 ATTORNEY FOR AAS CONSULTING, INC. 24 25 Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 3 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 2 3 APPEARANCES CONTINUED 4 HEARD & MEDACK, P.C. MR. JAMES "JIM" DAVIS 5 ATTORNEYS AT LAW 9494 SOUTHWEST FREEWAY, SUITE 700 6 HOUSTON, TEXAS 77074 PHONE: 713-772-6400 7 FAX: 713-772-6495 E-MAIL: jdavis@heardmedackpc.com 8 ATTORNEYS FOR R & R CONSTRUCTION 9 RYMER, MOORE, JACKSON & ECHOLS, P.C. 10 MR. MICHAEL G. DUNNAHOO ATTORNEYS AT LAW 11 2801 POST OAK BOULEVARD, SUITE 250 HOUSTON, TEXAS 77056 12 PHONE: 713-626-1550 FAX: 713-626-1558 13 E-MAIL: mddunnahoo@rmjelaw.com ATTORNEYS FOR ZARATE SUSPENDED CEILINGS 14 15 GARZA & GARZA, L.L.P MR. DAVID C. GARZA 16 ATTORNEYS AT LAW 680 E. SAINT CHARLES, SUITE 300 17 BROWNSVILLE, TX. 78520 PHONE: 956-541-4914 18 FAX: 956-542-7403 E-MAIL: dgarza@garzaandgarza.com 19 ATTORNEYS FOR C & M CONTRACTING 20 ROERIG, OLIVEIRA & FISHER, L.L.P. 21 MR. DAVID G. OLIVEIRA ATTORNEYS AT LAW 22 SUITE 9, PRICE PLAZA BUILDING 855 WEST PRICE ROAD 23 BROWNSVILLE, TEXAS 78520 PHONE: 956-542-5666 24 FAX: 956-542-0016 E-MAIL: doliveira@rofllp.com 25 ATTORNEYS FOR DESCON CONSTRUCTION Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 4 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 2 3 APPEARANCES CONTINUED 4 5 COKINOS, BOSIEN & YOUNG MR. JOHN SMITH, MR. GABRIEL S. HEAD, MR. JAY FARWELL 6 ATTORNEYS AT LAW 10999 WEST IH-10, SUITE 800 7 SAN ANTONIO, TEXAS 78230 PHONE: 210-293-8713 8 FAX: 210-293-8733 EMAIL: jfarwell@cbylaw.com 9 ATTORNEYS FOR DESCON 10 HINKLE & VILLARREAL, P.C. MR. R. KYLE HINKLE 11 ATTORNEYS AT LAW 719 S. SHORELINE, SUITE 300 12 CORPUS CHRISTI, TEXAS 78401 PHONE: 361-883-0620 13 FAX: 361-883-0612 E-MAIL: rkhinkle@southtxdefense.com 14 ATTORNEYS FOR C. A. RAY AND SON 15 DUNN, WEATHERED, COFFEY, RIVERA & KASPIRITIS, P.C. 16 MR. PAT KASPIRITIS ATTORNEYS AT LAW 17 611 S. UPPER BROADWAY CORPUS CHRISTI, TEXAS 78401 18 PHONE: 361-883-1594 FAX: 361-883-1599 19 ATTORNEYS FOR FAIRESS CONSTRUCTION AND FOR D & J SITE CONSTRUCTION 20 ENGVALL & LOPEZ, LLP 21 MR. BRIAN C. LOPEZ, PARTNER MS. BRITTANY CRAVENS COOPERRIDER, ASSOCIATE 22 1811 BERING DRIVE, SUITE 210 HOUSTON, TEXAS 77057 23 PHONE: 713-787-6700 FAX: 713-787-0070 24 E-MAIL: blopez@eltexaslaw.com, bcooperrider@eltexaslaw.com ATTORNEYS FOR LIMON MASONRY 25 Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 5 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 2 3 APPEARANCES CONTINUED 4 MR. JASON WEST ATTORNEY FOR KBM AIR CONDITIONING 5 6 7 MACDONALD DEVIN MR. GREGORY N. ZIEGLER, SHAREHOLDER 8 ATTORNEYS AT LAW 3800 RENAISSANCE TOWER 9 1201 ELM STREET DALLAS, TEXAS 75270 10 PHONE: 214-744-3300 FAX: 214-747-0942 11 EMAIL: gziegler@macdonalddevin.com ATTORNEYS FOR PEREZ CONSULTING ENGINEERS 12 13 MR. JOHN A. GUERRA MR. LOUIS A. GROSS 14 ATTORNEYS AT LAW 17339 REDLAND ROAD 15 SAN ANTONIO, TEXAS 78247-2304 PHONE: 210-979-0100 16 FAX: 210-979-7810 ATTORNEYS FOR ZARATE SUSPENDED CEILING, INC., AND 17 DANIEL VASQUEZ, D/B/A TWIN CITY GLASS 18 19 MR. JOHN R. GRIFFITH, MR. OSCAR O. LOPEZ ATTORNEY AT LAW 20 801 E. FERN AVENUE, SUITE 170 MCALLEN, TEXAS 78501 21 PHONE: 956-971-9446 FAX: 956-971-9451 22 ATTORNEY FOR ERO INTERNATIONAL, LLP 23 24 25 Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 6 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: If you want to start coming 2 forward so we can see what we are going to take first, 3 in what order we are going to take it up first. My 4 first question to everybody is -- okay, gentlemen, go 5 ahead and make your appearances for the record. We are 6 now on record on DC-14-46 Rio Grande City I.S.D. versus 7 Descon Construction LP et al. If we can go ahead and 8 start with the plaintiffs. 9 MR. N. JOLLY: Good morning, Your Honor, 10 Norman Jolly, Mike Jolly, Hamilton Rucker, Marty Vela. 11 I think that's all of us for the Plaintiff. And James 12 Parker. 13 THE COURT: Okay. I was going to say well 14 you've got another guy standing there and you are not 15 saying anything. 16 MR. N. JOLLY: Sorry. 17 THE COURT: Okay. And now for the defense, if 18 y'all will just start at this table. 19 MR. GEALY: Grant Gealy for Halff Engineering. 20 MR. WALLA: Doug Walla for AAS Consulting Inc. 21 MR. DAVIS: James Davis for R & R 22 Construction. 23 MR. DUNNAHOO: Michael Donnahoo for Zarate 24 Suspended Ceilings. 25 MR. GARZA: Good Morning, Your Honor, David Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 7 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 Garza on behalf of C & M Contracting. 2 MR. OLIVEIRA: David Oliveira for Descon. I 3 apologize, I don't haveM a card. 4 THE COURT: That's okay. 5 MR. SMITH: Robert Smith for Descon. 6 MR. HEAD: Gabriel Head for Descon. 7 MR. FARWELL: Jay Farwell for Descon. 8 MR. HINKLE: Kyle Hinkle for C. A. Ray and 9 Son. 10 MR. KASPERITIS: Your Honor, Pat Kasperitis 11 for appearing for David Dunn for D & J Site Construction 12 and for Fairess Plumbing. 13 MR. B. LOPEZ: Brian Lopez and Brittany 14 Cooperrider for Limon Masonry. 15 MR. WEST: Jason West for KBM Air 16 Conditioning. 17 MR. ZIEGLER: Greg Ziegler for third-party 18 defendant Perez Consulting Engineers. 19 MR. GUERRA: John Guerra, co-counsel for 20 Zarate Suspended Ceilings and we also represent together 21 with Bruce Gross for Twin City Glass. 22 THE COURT: Is that everybody? 23 MR. N. JOLLY: Everyone that's here, but there 24 are some people missing. 25 THE COURT: That's tough because it's 10:00, Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 8 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 and I am not going wait. So we are going forward. 2 Okay. Y'all can be seated. So I think the first thing 3 we probably should do is take up if there's any more 4 motions for leave to designate responsible third 5 parties. I know that I see that Limon Masonry filed 6 that motion so is there anyone here for Limon Masonry? 7 MR. B. LOPEZ: Your Honor. 8 THE COURT: You need to come forward and 9 identify yourself because my court reporter is not going 10 to remember your names. You are too many so that's -- 11 MR. B. LOPEZ: Yes, ma'am. Brian Lopez for 12 Limon Masonry. We did have the Motion for Leave to Name 13 New Parties, Descon I believe also filed that. 14 MR. SMITH: Yes, Your Honor. 15 MR. B. LOPEZ: If Descon files that we'll 16 withdraw because we are in agreement for Limon. 17 THE COURT: I think I already granted that. 18 MR. N. JOLLY: This is a new one. 19 THE COURT: This is a new one? 20 MR. B. LOPEZ: Yes. 21 THE COURT: Okay, so you are going to abandon 22 that pleading. 23 MR. B. LOPEZ: Yes because Descon is in 24 agreement with us. 25 MR. N. JOLLY: We are not because they want to Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 9 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 delay the case and sue another party, bring him in, by 2 citation, not just designate. 3 THE COURT: Well, with reference to 4 designation, I mean, is that correct that you actually 5 want to bring them in other than just designate them? 6 MR. SMITH: Yes, Your Honor. 7 THE COURT: We are too late in the game don't 8 you think? 9 MR. SMITH: Well, Your Honor, if I could 10 quickly explain. There was a particular, uh -- Robert 11 Smith for Descon -- there was a particular, uh, 12 Plaintiff's expert, uh, Mr. Wallace, who prepared a 13 report and who complained in his report or said in his 14 report that Perez Engineers was the responsible party 15 with regard to complaints about design and, uh, we 16 took -- his deposition actually was supposed to have 17 been taken a couple months ago and he just flat did not 18 get it on his calendar and it was pushed back a month 19 when he was available again so we just took his 20 deposition about not even a month ago, Your Honor, and 21 Mr. Wallace at that time said my, my report was 22 generated and was based upon looking at documentation 23 that was not the correct documentation. The correct 24 documentation was a submittal that was submitted and I 25 didn't realize that and we asked him if he had changed Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 10 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 his, uh, report at any time and he said, "No, a decision 2 was made between me and the other experts and 3 Plaintiff's counsel not to change my report. I am here 4 today to give my opinions about it." And he gave his 5 opinions and he said, "My ultimate opinion is that this 6 wall needs to be replaced. My opinion has not changed 7 with regard to that." We requested him and his 8 background was that no Perez was not the responsible 9 party for that because they weren't involved in the 10 design of what was actually built, that it was a new 11 entity, a new company Pavestone that generated the 12 documentation with regard to the construction of that 13 particular wall and their engineer that developed the 14 design of that wall. Descon had a purchase order and 15 purchased the wall materials as well as the engineered 16 drawings. So, at the deposition of Mr. Wallace for the 17 first time we hear that, no, Perez is not the 18 responsible party for that wall, Pavestone and their 19 engineer is, uh, but we never changed our report, we 20 never gave any heads up that we're changing our report, 21 that we have looked at anything else, or that anything 22 has changed. We came back and within, uh, days we 23 waited for the transcript and within days the, uh, 24 motion was filed to join them as a, uh, third-party with 25 regard to the lawsuit and also to designate them as a Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 11 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 responsible third-party. 2 Your Honor, uh, we went ahead and, uh, we 3 believe that we have done it timely. He has known, 4 Mr. Wallace has known since our reports, our expert 5 reports were generated back in August. We said wait a 6 minute, Wallace has looked at the wrong documents. Uh, 7 so he's known since August that he had looked at the 8 wrong documents. And during that time period he didn't 9 look at them until shortly before his depo and then he 10 changed his opinions. So, that's why we are seeking at 11 this late date to bring in a third-party and to not only 12 just designate them as a responsible third-party, but we 13 actually have a contractual claim against them, via our 14 purchase from them of this wall system including the 15 engineered drawings that now for the first just weeks 16 ago Plaintiff says is defective engineering, defective 17 design. 18 THE COURT: Well, if you were dealing with 19 them wouldn't you have known about it? You just said 20 that. 21 MR. SMITH: We knew about them but their 22 complaint was about Perez, who is in the lawsuit. 23 THE COURT: What's your response? 24 MR. SOLIS: 25 MR. N. JOLLY: Nothing personal but counsel is Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 12 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 not -- either hasn't read the transcript of the witness 2 or has not been informed what it accurately states 3 because what the witness said was that he had not 4 changed his opinion and that the design was adequate. 5 That's on page 113 of the transcript. May I hand it to 6 you? 7 THE COURT: Okay. 8 MR. N. JOLLY: So the -- all the superfluous 9 stuff about the block changing, that didn't change his 10 opinion. The metal engineers and engineer that works at 11 the block company and in some other state didn't come 12 out to the job, didn't install anything, didn't do one 13 single thing at the job. The submittal engineer is not 14 being criticized. The opinion is still the same. This 15 is just the same to delay the case. 16 THE COURT: You don't have a problem with the 17 designation just having them brought in to the lawsuit. 18 MR. N. JOLLY: Exactly. As we said before you 19 get your third-party designation now and in between now 20 and when the jury gets the charge you can decide whether 21 or not the jury should get that party's name submitted. 22 THE COURT: Right. That's what I am asking. 23 MR. N. JOLLY: We would object at that time, 24 uh -- 25 THE COURT: Depending on what the evidence Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 13 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 shows. 2 MR. N. JOLLY: Correct. But at this time 3 that's -- 4 THE COURT: I am going to allow him to bring 5 him in as a third-party designation, but not as a party 6 into the lawsuit. It's too late. 7 MR. N. JOLLY: May I have this back, Your 8 Honor? 9 THE COURT: Yes. Okay so we are done with 10 Descon's Motion for Leave to File Third-party Petition 11 and Designate Responsible Third-party, and with Limon 12 Masonry's Motion for Leave to Designate, that was 13 abandoned. Is there any other motions for leave to 14 designate any other parties? (pause) Okay. So we've 15 gotta whole lot of motions to strike, motions to 16 exclude, motions for summary judgment. 17 MR. OLIVEIRA: David Oliveira for Descon, we 18 have a Motion to Strike 13th Amended Petition on the 19 basis they have added six new parties that have not been 20 served and we believe that, uh, it's too late in the 21 game and I think if you take that motion up and you 22 agree with us, that, uh, that you won't have to argue 23 the other hundred motions that are pending. 24 THE COURT: Okay, let me look for that because 25 that's not on my list. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 14 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COORDINATOR: Yes it's just that they have 2 been filing -- 3 THE COURT: So y'all are still filing. 4 THE COORDINATOR: Whose motion is that, 5 please? 6 THE COURT: Descon's. 7 MR. OLIVEIRA: Descon's motion, Motion to 8 Strike, it's Objections and Motion to Strike Plaintiff's 9 13th Amended Original Petition. 10 THE COURT: Thirteenth amended? 11 MR. OLIVEIRA: Thirteenth amended original 12 petition. 13 THE COURT: Okay. 14 MR. OLIVEIRA: We have a hard copy. 15 THE COURT: I have one. 16 MR. OLIVEIRA: Okay. 17 THE COURT: Okay let's go ahead and take that 18 up. 19 MR. OLIVEIRA: Okay, Your Honor, basically the 20 Plaintiffs recently filed four pleadings captioned 21 Plaintiff's 13th Amended Original Petition. In three 22 editions of the pleadings they purport to join six to 23 eight new parties: Texas Descon LP, uh, Wayne Medlin 24 Descon Management LLC, MayCo Management, LLC, Michael 25 Smith, and then Descon 4S LLC. Three of these four Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 15 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 additions of the pleadings were served on April 24th, 2 27th and 29th of, uh, this year, just in other words in 3 the last two weeks or well actually one of them in the 4 last, uh, two days ago I guess. 5 Uh, obviously, Your Honor, we object to, uh, 6 for a number of reasons. First and foremost the 7 deadline for joinder of parties was, uh, I believe in 8 June 27th, 2014, almost a year ago. Secondly, the 9 deadline to file supplemental or amended pleadings which 10 these aren't was April 14th. So, they are clearly, they 11 have blown two different deadlines. 12 Your Honor, additionally, they haven't served 13 any of these people. Uh, an answer won't be due 14 wouldn't be due anyway even if they served them before, 15 uh, uh, before the trial date of Monday, and obviously 16 these are new parties that are going to require -- be 17 required to hire, uh, additional counsel and hire their 18 own counsel and, uh, I don't see how we can go to trial 19 with six to eight new parties. 20 MR. N. JOLLY: Done? Judge they are not new 21 parties. May I approach? Your Honor, the defendants 22 are incorrectly named so they are not new parties and, 23 uh, you know, I've known David a long time, I don't 24 expect him to be familiar with Rule 28, but it's mainly 25 something that is, uh, inures to the benefit of a Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 16 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 plaintiff, not always but usually. And, uh, and the 2 reason is is because it's there to prevent the 3 shenanigans that have been going on. So namely with 4 regard to Descon's failure to identify these parties as 5 potential parties in their disclosures, you know, ha, 6 ha, I am not going to call anyone any names or make any 7 accusations -- 8 THE COURT: Well don't do that. 9 MR. N. JOLLY: -- but just to, to come in here 10 and say some submittal engineer is a potential party and 11 try to bring him into the case, but not tell us that 12 Descon has changed its name, is, uh, completely 13 inappropriate. Those names should have been given to us 14 a long time ago and it's a good thing the legislature 15 thought of this in advance and that's why they wrote 16 Rule 28. The Supreme Court has looked at it, looked at 17 it many times. The landmark case is called RMA 18 Partners, uh, 2003, Texas Supreme Court case. And in 19 that case the same arguments -- 20 THE COURT: So in other words, you did some 21 research and found out that they had different names or 22 they had changed here names. 23 MR. N. JOLLY: Right. 24 THE COURT: In the last however long. 25 MR. N. JOLLY: Right. In this, this -- the Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 17 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 drama gets even deeper because this is something we 2 found out when we were told at a recent meeting with the 3 guy that tried to resolve this case that Descon didn't 4 exist any more, that they were defunct, so of course we 5 take statements like that pretty seriously and our 6 internet guru got online and found a company online 7 named Texas Descon LP. It's Exhibit A. It's the first 8 screen shot on the home page. And you can see right 9 there on Exhibit A that, uh, this gentleman, Michael 10 Smith says on January 25th, 2006 Descon Construction -- 11 which isn't the exact name of the Descon entity in this 12 case, it's Descon Construction LP, and if you read 13 further, "was renamed to its successor company," 14 something that should have been given to us in 15 disclosures a long time ago. Texas Descon LP. Entering 16 a license agreement. Something else that should have 17 been given to us a long time ago. To carry on the 18 tradition and reputation of Descon Construction LP which 19 is the correct name of the party to the construction 20 agreement in this case. Signed by its representative -- 21 this is significant -- Wayne Medlin also known as Jerry 22 Medlin, Jerry Wayne Medlin, J. Medlin. He goes by a 23 variety of different abbreviations. The successor 24 company, Texas Descon LP was found by Michael Smith. 25 You know, and the rules have changed about what you can Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 18 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 get from the Secretary of State now, so this is the -- 2 this is it. This is all you can get. The other things 3 you can keep them in your back pocket, naming the 4 partners, uh, things that should have been given to us 5 in disclosures but weren't, those sorts of things that 6 are now not filed with the Secretary of State, the 7 things that are filed with the Secretary of State are 8 right here and it goes from 1975 up 'til present. 9 Dissolved, reinstated, same two guys, over and over 10 again, Mr. Medlin, Mr. Smith. Change in the name around 11 2012, it's the same people, same address on 10th Street, 12 things that should have been given to us in disclosures. 13 MR. OLIVEIRA: Your Honor -- 14 MR. N. JOLLY: I am not finished, David, thank 15 you. 16 MR. OLIVEIRA: I'm sorry, she looked at me, I 17 have a response. 18 MR. N. JOLLY: There's more. So to our 19 astonishment, I guess, you know, something new happens 20 every day that's good isn't it? We actually get an 21 affidavit from the gentleman, Mr. Smith, in this 22 response claiming that this website was not created with 23 his authority, and I think that was last Friday? Well 24 so we gotta subpoena you know, you know -- I didn't know 25 this, but you go to the bottom of a website, and then Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 19 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 whoever dreams up that website their name is down there, 2 and then whoever owns the website is called, uh, domain 3 registration, but we don't get that information. We 4 should have been given it in disclosures, but the domain 5 registration says Texas Descon. We have to go over to 6 Ireland or Switzerland to find out who actually owns 7 that. Or, we could get it in disclosures. 8 So -- 9 THE COURT: Well I would opt to going to 10 Switzerland. 11 MR. N. JOLLY: Agreed. Agreed. 12 (Laughter). 13 THE COURT: So, uh, so we take a subpoena and 14 we go over to this MPC studios and got the documents 15 from MPC studios yesterday. May I approach? The, the 16 MPC studios is the entity that created the Texas Descon 17 LP successor, renamed, formerly known as the party that 18 contracted to build this building. They are Descon. 19 And that's what Rule 28 says. If Mr. Medlin and Mr. 20 Smith are operating these entities by whatever Descon 21 name they are calling it today, those two guys are doing 22 business as Descon Construction, Descon Construction LP, 23 Texas Descon, it doesn't frankly matter, and what the 24 Supreme Court has said is you don't have to serve them, 25 they are separate legal entities, the Supreme Court says Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 20 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 it doesn't matter, uh, you don't have to serve. Them if 2 there is a fact question -- and there is -- then it's a 3 question of fact for the Court. They don't have to be 4 served. That is completely wrong. The Texas Supreme 5 Court addresses that in RMA Partners. They don't have 6 to be served. The Supreme Court says that if some facts 7 established that these two gentlemen are operating these 8 Descon entities as their assumed name, their common 9 name, then it is presumed they were served from the 10 original filing of the lawsuit and had been on notice 11 since day one. Mr. Medlin is the representative in the 12 contract, Mr. Medlin was the registered agent, he and 13 Mr. Smith had been in business together for seven five 14 years -- 35 years, it's -- that's in his affidavit where 15 he claimed -- and you notice everybody dealing with MPC, 16 their name is the same name. I guess they are his sons, 17 his rogue sons, cooking up this website. So, you know, 18 gonna live by the sword you got to die by it. The 19 gentlemen, or parties, their names need to be 20 substituted pursuant to rule 28. All of the same 21 arguments have been made repeatedly, they were made at 22 the Supreme Court and they failed. 23 The second reason that these folks are in this 24 case is because they contracted to be in the case. The 25 contract -- and by the way these very same -- Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 21 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 Mr. Griffith is here now. The very same issues relate 2 to ERO. ERO changed its name and has an assumed name 3 that they actually filed. Oh, the Supreme Court -- I'm 4 sorry, a different Court not the, not the Court in RMA 5 Partners, a different Court that has interpreted Rule 28 6 has said I don't even have to go get the assumed name 7 certificate. There just has to be a fact question. So 8 if you go to the actual contract -- may I approach? 9 These are just a few pages from the agreement. This is 10 the contract to construct Grulla Elementary that's the 11 subject of this litigation. And you can see there on 12 the first page the owner is the Rio Grande City 13 Consolidated Independent School District. The 14 contractor Descon Construction LP. That's the company 15 that's been renamed, according to it's website, Texas 16 Descon LP. And the reason I give you 4th page of the 17 agreement is because there's legal significance to 18 Mr. Medlin being the contractor's representative. And 19 he signs the document Wayne Medlin, President. He had 20 written on there "partner" but he struck that out 21 because the names of the partners haven't been given to 22 us. To this day they don't have to file them with the 23 Secretary of State. He struck that out because I guess 24 he didn't -- he was thinking about this in advance, I 25 don't know. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 22 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 The very last page, this paragraph 13.2, Your 2 Honor, is the reason that Mr. Medlin's signature and 3 name as the representative is significant because he 4 agreed to bind himself, him, his partners, the unnamed 5 partners that we can't get from the secretary any more, 6 successors, Texas Descon LP, legal representatives, 7 Mr. Medlin is their legal representative signing this 8 document. He personally bound himself to the covenant, 9 agreements, and obligations in the contract documents. 10 Contract documents includes the construction agreement, 11 the addendum, the plans, the spec, the project manual, 12 it goes on and on. 13 THE COURT: Okay, well I think I get it. 14 MR. N. JOLLY: The only difference with this 15 clause and the clause with ERO is ERO's clause says 16 "with regard to these covenants" it doesn't also say 17 with regard to these covenants and contract documents. 18 That's the only difference. Either way the partners, 19 successors -- 20 THE COURT: Are you done? 21 MR. N. JOLLY: -- and representatives are all 22 parties. 23 THE COURT: Are you done? 24 MR. N. JOLLY: I think so. 25 THE COURT: Short response. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 23 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. HEAD: Gabriel Head on behalf of Descon. 2 Mr. Jolly has not only confused everything with respect 3 to entities that -- 4 THE COURT: I am not confused. Just give me 5 the response without making -- 6 MR. HEAD: Michael C. Smith is the person who 7 is a partner. Michael C. Smith has an affidavit. 8 That's Descon LP. He wants to sue Texas Descon LP who 9 is not -- it was not created by Michael C. Smith, it was 10 created by a wholly different person, Michael D. Smith. 11 They are not entities that are related. He has in his 12 affidavit that Descon LP is still in existence and he 13 also says he never assigned this contract to Texas 14 Descon. Mr. Jolly cites Texas Rule of Civil Procedure 15 28 which says you can sue somebody in their correct name 16 but nowhere in that Supreme Court case does it say you 17 you don't have to serve them. As a matter of fact there 18 are Texas Supreme Court cases and other cases under Rule 19 28 that say you still have the serve the person, and if 20 he wanted to hold all these partners and these different 21 entities to a judgment, as a matter of fact the Civil 22 Practice and Remedies Code section 31 says you can't 23 have a judgment against a person who has not received 24 citation. All we are asking is give them citation. The 25 rule says you can sue somebody under their legal name. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 24 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 Yes you can name them but you still have to serve them. 2 Wayne Medlin is the registered agent for Descon LP. 3 Michael D. Smith is the registered agent for Texas 4 Descon LP. He also wants to bring in Mr. Medlin 5 individually when he signed the contract in his capacity 6 as President of Descon LP. He also wants to bring in 7 Mr. Michael C. Smith individually. He's not been served 8 at all. He also wants to bring in another general 9 partner, MayCo Management LLC. Their registered agent 10 is Michael C. Smith. They have not been served either. 11 What Mr. Jolly is trying to do is hold Descon liable for 12 actions there by other people, other parties, other 13 individuals, other entities that on their own need to be 14 served. 15 The other thing that he's trying to do is 16 essentially pierce the corporate veil which he's not 17 pled. How is Mr. Smith, Michael C. Smith liable for a 18 contract he's not a signatory to? Neither is Texas 19 Descon LP. And in his affidavit he says Texas Descon 20 was never assigned or sold the contract. Texas law says 21 even if you are a successor company, you are not liable 22 for the previous company's liabilities unless they have 23 been specifically, it specifically says liabilities have 24 to be bought. There's no evidence of that. What we 25 have is a website. He's going off of a website which Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 25 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 one of the managers for Descon LP says, "I didn't 2 write". Even in all that stack, that affidavit, you 3 will not find the name Michael C. Smith, you'll find the 4 name Michael D. Smith, two totally different people. So 5 what Mr. Jolly has done is he's trying tried to say 6 there's this conspiracy. There's this web that we 7 didn't disclose this information. Well they are not 8 proper parties, that's why we didn't disclose it. They 9 are not a successor company. They didn't build the 10 school. The person who built the school was Descon LP. 11 They signed the contract. They have been served. We 12 are here. The other people haven't been served, they 13 don't have lawyers. So all we are saying is, if you 14 want those people in the suit, you got to serve them 15 with citation. It's a fundamental due process. Even 16 when you read Rule of Civil Procedure 28 it doesn't even 17 mention citation in there. It says that you can sue 18 somebody under their assumed name. Sure he doesn't have 19 to have an assumed name certificate, but one doesn't 20 exist. Mr. Smith's affidavit says that Texas Descon 21 didn't operate under assumed name for this project. 22 Texas Descon didn't even exist until 2006 and this 23 school was completed in 2005. So these breach of 24 contract actions again these other people, we believe 25 that they are inappropriate. But even if Mr. Jolly Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 26 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 feels they are appropriate, these people should be 2 served with citation and allowed to defend themselves 3 because my client, Descon, we may have claims against 4 them and we can't try a lawsuit on other people's 5 actions, which he's trying to hold us for. 6 THE COURT: Okay, well the Court is going to 7 go ahead and deny your Motion to Strike the 13th Amended 8 Petition and I am going to grant Plaintiff's First 9 Amended T.R.C.P. 28 Motion to Substitute Named 10 Defendants Omitted by Defendants' Disclosures and to 11 compel defendants to properly identify any other parties 12 and you are to do that by today. 13 Okay what else do we have to take up? Well we 14 have got a lot but I don't know what order you all want 15 to take these in. We have a lot of motions for summary 16 judgment, no evidence motions for summary judgment, 17 we've got traditional motions for summary judgment. 18 MR. ZIEGLER: Your Honor, Grez Ziegler for 19 Perez Engineering. Uh, the last time we had a hearing I 20 had a summary judgment and I argued it in front of you. 21 I was the last party brought in. I would kind of like 22 to be the first party let out if I could since I was the 23 last one brought in, uh, less than three months ago. I 24 don't believe we have a ruling. 25 THE COURT: Which is the one that I ruled on? Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 27 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COORDINATOR: Yes, there was and there was 2 an order. 3 MR. ZIEGLER: Yes, ma'am. 4 THE COORDINATOR: No, I don't have an order on 5 that, on yours. 6 MR. ZIEGLER: So we refiled it yesterday. 7 THE COORDINATOR: You did? 8 MR. ZIEGLER: Yes. 9 THE COURT: Because I did make a ruling on 10 that did I not? 11 THE COORDINATOR: Yes, and it was granted. 12 THE COURT: Your motion was granted. 13 THE COORDINATOR: It's just that we didn't 14 have an order. 15 THE COURT: Everything is by eFiling now. 16 MR. ZIEGLER: Yes, Your Honor, so we have, uh, 17 when he filed it somehow I know you probably know this 18 there are probably thousands of eFilings, so I think it 19 got lost in the thousands of eFilings, but yesterday at 20 the Court coordinator's request we filed it again. 21 THE COURT: The district clerk's office just 22 started doing this how long ago? 23 DEPUTY DISTRICT CLERK: Six months ago. 24 THE COURT: So, it goes to them and they send 25 it to our Court. So maybe that's why. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 28 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COORDINATOR: We'll get the order right 2 now. 3 MR. ZIEGLER: If that's the case, I have 4 nothing else to bring to the Court's attention. 5 THE COURT: You are excused. 6 MR. ZIEGLER: Thank you, Your Honor. 7 THE COURT: Thank you, sir. Okay. Is there 8 any other motions that it would make sense to take them 9 first before I start taking up all the motions for 10 summary judgment? I know there was a Plaintiff's Motion 11 to Compel and for Sanctions. 12 MR. WEST: Judge, Jason West for KBM Air 13 Conditioning. I only answered in this case in the last 14 two weeks. I have filed a Motion for Leave to File a 15 Late Motion for Summary Judgment. I filed the Motion 16 for Summary Judgment but I also filed a Motion for 17 Continuance given my late arrival to this case. Uh, it 18 may be beneficial to the Court to go ahead and hear my 19 Motion for Leave to File the Motion for Summary Judgment 20 and the Motion for Summary Judgment. That would in 21 theory make the Motion for Continuance moot if, uh, I am 22 let out of the case. 23 THE COURT: Okay. That makes sense. Do you 24 have an objection to doing it that way? 25 MR. N. JOLLY: To let his client out of the Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 29 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 case? 2 THE COURT: Yes. 3 MR. N. JOLLY: KBM? No objection to let his 4 client out of the case. 5 THE COURT: Okay. 6 MR. N. JOLLY: Which I assume you are 7 withdrawing your continuance, Jason. 8 MR. WEST: Obviously, if I am out of the case, 9 I will withdraw my Motion for Continuance. 10 THE COURT: Okay, well then I need an order. 11 MR. HEAD: Your Honor, the Plaintiff has not 12 sued them, Descon has sued them. Descon recently 13 dropped their claims against KBM. 14 MR. WEST: If I may, Judge, uh, when I 15 initially filed my Motion for Summary Judgment there was 16 claims pending from the Plaintiff and Third-party 17 Plaintiff. Subsequently I spoke with Plaintiff's 18 counsel, he has stated to me that they are -- his client 19 is not making any claims for damages related to my 20 client's scope of work. 21 THE COURT: Okay. 22 MR. N. JOLLY: That's correct. 23 MR. WEST: And -- 24 MR. N. JOLLY: Which is H.V.A.C. installation 25 exclusively. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 30 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Okay. 2 MR. WEST: And in my understanding of the law 3 would be that that essentially moots, uh, most of the 4 complaints that -- well all the complaints they would 5 have against me on their third-party petition. 6 MR. HEAD: Uh -- 7 THE COURT: Well, you have to state your name 8 for the record. 9 MR. HEAD: I'm sorry. I'm trying to find the 10 motion, I apologize, Your Honor. Gabriel Head on behalf 11 of Descon. If the plaintiff is dropping all claims 12 related to the construction of the H.V.A.C. system, 13 then -- 14 MR. N. JOLLY: No, no, no, no. No, no. I 15 hate to interrupt. 16 MR. HEAD: Well I, I -- well you got to get it 17 right. 18 MR. N. JOLLY: Well I did. I thought I said 19 related to the H.V.A.C. installation. That's it. 20 That's all KBM did. 21 MR. HEAD: Okay. Well then I don't understand 22 what claims you still are making on the construction 23 site. 24 MR. N. JOLLY: The air-conditioning system 25 needs to be cleaned, it needs to be cleaned because Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 31 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 there's so much dirt going into the building but it 2 doesn't need to be cleaned because it wasn't installed 3 incorrectly. 4 MR. HEAD: Okay. 5 THE COURT: Okay you are saying it was not 6 installed. 7 MR. N. JOLLY: It was installed correctly -- 8 THE COURT: Okay. 9 MR. N. JOLLY: -- and the things that need to 10 be done to the H.V.A.C. -- 11 THE COURT: It's that you said not installed 12 correctly. 13 MR. N. JOLLY: Did I say that? I hate to do 14 that. 15 THE COURT: So it was installed correctly in 16 other words. 17 MR. N. JOLLY: That's right. 18 THE COURT: Okay. 19 MR. N. JOLLY: I sent an e-mail to Jason of 20 our expert that said the same thing and he said if 21 you'll just come say it on the record that's good enough 22 for me. 23 MR. HEAD: -- I guess -- 24 THE COURT: I'm seeing if it's on the list. 25 Sir, state your name and state what you wanted to say. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 32 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. HEAD: Gabriel Head for Descon. In our 2 response there's a section of, of Mr. Holder, which is 3 Plaintiff's expert report, saying that specifically what 4 he says is that there's design issues. 5 THE COURT: Who is Mr. Holder? 6 MR. HEAD: One of their experts. 7 THE COURT: Okay. 8 MR. HEAD: And then he says that this design 9 issue should have been caught specifically with the VAV 10 boxes and it wasn't constructed in accordance with the 11 code. If they are saying that they are not making that 12 claim any more, that would have been something that KBM 13 Air did. 14 MR. N. JOLLY: The installer, the installer 15 doesn't determine whether it follows code, it's the NEP 16 Engineer. 17 MR. WEST: He just said it's a design issue. 18 MR. N. JOLLY: It's a design issue, Your 19 Honor. 20 MR. HEAD: If that's what they are saying then 21 the only claim that we have left against KBM Air was 22 that in accordance with their subcontract they were 23 supposed to provide us with insurance that had a 24 certificate and named us as an additional insured and if 25 he has that and I missed it. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 33 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 (Mr. West showing him a 2 document.) 3 MR. WEST: That was attached to your motion 4 for summary judgment response. 5 MR. HEAD: It doesn't show us as an additional 6 insured. 7 MR. WEST: Certificate holder? 8 MR. HEAD: That's right. As a matter of fact 9 I can show you exactly what it's supposed to look like 10 and it's not there. 11 MR. WEST: Judge, if I may give this to you so 12 you can take a look at it. 13 THE COURT: It does say certificate holder 14 Descon Construction. 15 MR. HEAD: Your Honor, it says certificate 16 holder but on the subcontract -- we are trying to find 17 our response in all these motions. (pause). 18 MR. WEST: Judge, if I may during the pause I 19 don't want to waste any time. We are going to make an 20 argument that regardless of their position on the 21 certificate, the reality is there's been no claims made 22 against my client, whether they are listed as an 23 additional insured or not, there's no damages related to 24 that, and we should be let out on that issue. 25 MR. HEAD: If he's dropped his claims on that Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 34 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 issue then -- 2 THE COURT: He has. 3 MR. HEAD: -- then he's correct. 4 THE COURT: That's on the record so KBM 5 Air-conditioning Motion for Continuance is now moot, 6 that's taken off the list, KBM air-conditionings Motion 7 for Leave to File a Motion for Summary Judgment is 8 denied because it's now moot also. 9 MR. HEAD: Well but not on the construction 10 issue. He's supposed to provide us with insurance that 11 names us as an additional insured and that certificate 12 does not. It just says we are a certificate holder. It 13 has to specifically name us as additional insured and he 14 has provided no evidence that it does do that. 15 MR. WEST: And, Judge, our position would be 16 again if there's no claims against us, they have 17 suffered no harm. 18 MR. HEAD: That's not true. It doesn't matter 19 with additional insurance whether or not the claims are 20 related to him. They -- we are an insurance holder of 21 their policy, whether it's their work or not. He's now 22 arguing the policy. What we are arguing is that KBM 23 didn't provide us with that, and they were supposed to 24 pursuant to the contract. 25 THE COURT: And what does that have to do with Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 35 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 the motion for summary judgment? 2 MR. HEAD: He filed a No-evidence Motion for 3 Summary Judgment, we filed a Breach of Contract action 4 against him for failure to provide that insurance. 5 MR. WEST: But judge the, the insurance still 6 only applies to the extent that you are making a claim 7 against our scope of work. 8 MR. HEAD: No, that's the indemnity, not the 9 insurance. 10 THE COURT: So what you are saying that they 11 have to stay? 12 MR. HEAD: I am saying they didn't give us the 13 insurance they are supposed to. We are supposed to have 14 that insurance and we have gotta Breach of Contract 15 claim against them for failure to provide it. Our 16 damages haven't been determined because we don't know 17 what they are yet. It's a simple breach of contract 18 action. 19 THE COURT: Aren't you putting the cart before 20 the horse? 21 MR. HEAD: No. No. We are supposed to have 22 the additional insurance right now as part of this case. 23 Technically that additional insurance is supposed to 24 have kicked up and be paying my client for the defense 25 of this case. Because we didn't get it, because he Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 36 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 didn't provide the certificate, my client doesn't have 2 the benefit of what it contracted for. 3 THE COURT: Are you saying that naming them as 4 a certificate holder is pretty much the same thing -- 5 MR. WEST: Well that was -- 6 THE COURT: -- as additional insured? 7 MR. WEST: That is my argument, Judge. To me 8 it sounds like he has a dispute with his insurance 9 company. This sounds like an insurance dispute which 10 probably isn't really the matter that's before the Court 11 today and in this trial. 12 THE COURT: It kind of does sound like that, 13 sir. 14 MR. HEAD: But it's not. It would be an 15 insurance dispute if the insurance company would deny 16 that they are an additional insured. We don't have 17 anything to give them. Or, if they say you are an 18 additional insured but we are not going to give you 19 coverage. That would be between me and them. But in 20 order to even get there I have to give them a 21 certificate that shows us as being additional insured. 22 That one does not. It just says we are a certificate 23 holder. There's supposed to be a box on there that says 24 additional insured. It's not there. 25 MR. WEST: My argument would be that this, Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 37 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 this is an issue again that sounds like an insurance 2 issue that's really not right for decision -- shouldn't 3 really be a part of this litigation. This is a 4 construction defect case. 5 MR. GUERRA: If I may, I am John Guerra, 6 co-counsel with Mr. West. If the only issue that I am 7 hearing then is whether or not we -- my client 8 designated them as an additional insured, as I 9 understand the pleadings then, Plaintiff is not making a 10 claim that our client did anything wrong in terms of the 11 installation. 12 THE COURT: Right. 13 MR. GUERRA: So therefore the claims against 14 Descon have nothing to do with the work our client did. 15 So they can't be held liable to the Plaintiff for any 16 work our client did if the Plaintiff is not complaining 17 about the work our client did. 18 THE COURT: I agree. 19 MR. GUERRA: So, therefore this whole 20 insurance thing is moot to try and keep us in, and I 21 don't see how our client should be held liable or kept 22 in this case for trial. 23 MR. HEAD: They are mixing apples and oranges, 24 Your Honor. Pursuant to the contract that says that you 25 are supposed to provide us insurance on -- it, it, it -- Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 38 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 it's, uh, paragraph nine of the subcontract. Provide us 2 insurance in accordance with exhibits 2 and exhibits 3. 3 This is exhibit 3. And if I may, Your Honor. See what 4 it says right there? In the box it says name Descon LP 5 as an additional insured. Well KBM's does not do that. 6 So, it's not an argument with the insurance company 7 because we can't even make that argument yet. They were 8 supposed to provide us with that. So, we have nobody to 9 argue with. 10 THE COURT: But doesn't there have to be a 11 finding first that they did something wrong before this 12 kicks in? 13 MR. HEAD: That would be indemnity. That 14 would be the indemnity, which is a contractual 15 indemnity. Our insurance -- there doesn't have to be a 16 finding -- 17 THE COURT: So they are not saying they did -- 18 the Plaintiffs are not saying they did anything wrong 19 but you are. 20 MR. HEAD: No, I am saying that irrespective 21 of whether or not they did anything wrong, we are 22 supposed to have insurance coverage because when you are 23 an additional insured -- 24 THE COURT: But what does that have to do with 25 the summary judgment? That's an insurance issue. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 39 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. HEAD: It's not, though, it's a breach of 2 contract issue between Descon and KBM. It Has nothing 3 to do with the insurance company. 4 THE COURT: But you are not before the Court 5 on a breach of contract between the two of you. 6 MR. HEAD: I am. 7 MR. WEST: In the third-party petition they 8 have pled a breach of contract. 9 THE COURT: Oh. 10 MR. WEST: I would note that in the contract 11 they are relying on it mentions the fact that no 12 payments will be approved for the subcontractor without 13 these documents having been issued to the general 14 contractor. Look, we have been paid in full. Obviously 15 when we provided the certificate of liability to them at 16 the time, they accepted it. I -- look I don't think 17 there's a breach of contract here. Everybody was happy 18 with it, we provided the documents that we were supposed 19 to, it lists them as a certificate holder. If, if there 20 is an issue here it sounds like it's a dispute between 21 them and the insurance company and that's something 22 that's really not proper for this Court at this time and 23 it doesn't seem like a reason to keep us in this case. 24 MR. HEAD: Your Honor, again he's mixing 25 apples and oranges. I don't have a dispute with the Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 40 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 insurance company. I have a dispute with them because 2 they didn't give me the insurance that I contracted for. 3 I have no insurance company to go to. Now I do have a 4 breach of contract action against him -- 5 THE COURT: Which you are claiming should be 6 before this jury? 7 MR. HEAD: Yes, because it says specifically 8 in our petition that they were supposed to provide us 9 among other things insurance in accordance with the 10 contract. His motion is strictly about the work he 11 performed, not about the insurance he provided. His -- 12 this issue that he's arguing is not even before you in 13 accordance with his motion. 14 THE COURT: But your breach of contract is no 15 it about the work he performed, it's about the failure 16 to provide this insurance. Right? 17 MR. HEAD: It's about -- well I sued them for 18 both. He's come after the issues saying there's no 19 defects with our work. Plaintiff has dropped those 20 saying he's not pursuing even us for the defects with 21 the installation of the H.V.A.C. 22 THE COURT: Doesn't it make sense to sever 23 that portion of the lawsuit, if you have this breach of 24 contract issue, to prevent confusion of the issues with 25 the jury? Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 41 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. HEAD: But I don't know if -- 2 THE COURT: Because they are going to be 3 hearing this defect case which they are not making 4 allegations about a defect in respect to their work, so 5 if it's all a breach of contract between the two of you, 6 with respect to these insurance issues, shouldn't it be 7 severed in order not to confuse the jury? 8 MR. HEAD: No, it shouldn't because it's all 9 the same -- it's all the same project, it's all the same 10 contracts. I am entitled to bring my compulsory 11 counterclaim against him in this action. 12 THE COURT: Well I can sever it though. 13 MR. HEAD: Then we don't -- part of what we 14 are telling the jury is we didn't get these things that 15 we were supposed to get. He breached the contract. 16 THE COURT: But you are going to be talking 17 about insurance to the jury? 18 MR. HEAD: I am going to be talking about the 19 breach of the contract to the jury. 20 THE COURT: That you are not a named policy 21 holder in accordance a with the contract. 22 MR. HEAD: That's right. I'm not. 23 MR. WEST: But, Judge, one last thing I would 24 like to raise. If you'll notice on that certificate of 25 insurance, it was provided back to them, back to them at Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 42 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 the time of this contract. More than four years have 2 passed, the breach of contract statute of limitations is 3 four years. If that's their argument for how we 4 breached the contract and not our scope of work, 5 that's -- I mean at the end of the day that's an easy 6 winner. 7 MR. HEAD: Well it's not an easy winner 8 because these issues didn't even come up. We are 9 entitled to the discovery rules -- 10 THE COURT: But didn't you contract this 11 breach of the contract and this was signed in '05. 12 MR. HEAD: It was but we didn't know it was a 13 breach until we got sued and then we went to go look -- 14 THE COURT: Wouldn't you have noticed at the 15 time that the contract was entered into that you were 16 listed as a certificate holder and not an additional 17 insured? 18 MR. HEAD: No. Not necessarily. 19 THE COURT: Why not? I mean you are noticing 20 it now, what kept you from noticing it then? 21 MR. HEAD: The timing -- 22 THE COURT: You all relied upon that and acted 23 upon that when you did the work and you accepted -- 24 MR. HEAD: We accepted the certificate. 25 THE COURT: -- the contract and the Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 43 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 certificate and you didn't argue back then that you were 2 not listed as an additional insured, that you were just 3 listed as a certificate holder, and now how many years 4 later after 2005 are you bringing this up? 5 MR. HEAD: We didn't know we needed to bring 6 it up or that it was a breach of contract until we got 7 sued for defect. 8 THE COURT: But you accepted this document 9 back when the construction was being performed. 10 MR. HEAD: But we didn't know it was a breach 11 at the time. 12 THE COURT: But you would have still had to 13 have had yourself listed as an insured and not as a 14 certificate holder. Correct? 15 MR. HEAD: We would have to have ourselves 16 listed as a certificate holder but, Your Honor, it's 17 a fact issue -- 18 THE COURT: As an additional insured not as a 19 certificate holder. Not then. 20 MR. HEAD: It is a fact issue whether or not 21 they named us as an additional insured on the policy. 22 They didn't bring it up in their motion, they didn't 23 bring up anything about payment and acceptance or 24 anything like that in their motion, and so there's no 25 evidence on this issue before the Court. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 44 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Well -- 2 MR. HEAD: Except for the our showing that 3 they breached the contract per the contract provision 4 article nine -- 5 THE COURT: But how are you showing that? 6 MR. HEAD: We submitted the contract and their 7 certificate that does not name us as an additional 8 insured. He's saying now that by merely being a holder 9 you are. Well that's a fact question. It's not a legal 10 question. 11 MR. WEST: Judge, I -- 12 MR. HEAD: And he didn't raise statute of 13 limitations either. 14 MR. WEST: The reality is they knew at the 15 time that they weren't listed as an additional insured. 16 It's a form that they require in their contract. In 17 fact we are not supposed to receive a single payment 18 until we provide that form to them, but we are here 19 today because we finished the project, we got paid, it 20 was all done way back in 2005, 2006, and to be honest 21 with you one of the reasons this wasn't raised as an 22 issue is because our understanding of the breach of the 23 contract initially was related to our scope of work, 24 which has been resolved, thanks to Mr. Jolly's position, 25 on behalf of the Plaintiff. They are raising this kind Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 45 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 of as a red herring to try to keep us in the case, uh, 2 and probably to be honest with you to keep our motion 3 for continuance alive, when at the end of the day, uh, 4 there's no harm. They again -- our scope of work is not 5 at issue. We are out of the case. 6 MR. HEAD: Your Honor, he's arguing things 7 that are nowhere in his motion, and he could have filed 8 a response to my motion on these specific issues and he 9 did not. The fact of the matter is that KBM was sued 10 over a year ago. And, it's -- we sued them, we served 11 them. He filed a motion for summary judgment, we filed 12 a response that said you breached the contract. He's 13 raised -- he has not raised any issue. We have raised a 14 fact issue saying that you did not provide that 15 insurance that you were supposed to. He has not put any 16 evidence before the Court that that is wrong. He's come 17 up here and he's argued it but he's not given any 18 evidence, and pursuant to a no-evidence motion, we have 19 given you some evidence to raise a fact issue on whether 20 or not that certificate gives us the insurance that we 21 are supposed to. 22 MR. WEST: The last thing I'll say, Judge, is 23 the contract which they attached to their own motion 24 speaks to the fact that we weren't supposed to get paid, 25 we weren't supposed to move forward with the project Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 46 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 unless we provided the certificate. We provided the 2 certificate, you have it in front of you, it was 3 attached to their motion, it shows that in 2005 they had 4 this information. 5 THE COURT: Right. 6 MR. WEST: The statute of limitations is going 7 to apply to any argument that can be made. 8 THE COURT: Okay, so with reference to your 9 Motion for Continuance you are dropping it, with 10 reference to your Motion for Leave to File Late Motion 11 for Summary Judgment you are dropping that -- or you are 12 pursuing that and asking that I grant your Motion for 13 Summary Judgment? 14 MR. WEST: That is correct, Your Honor. 15 THE COURT: Okay well then that relief that 16 you are requesting is hereby granted. Submit your 17 orders to that effect. 18 MR. WEST: We have submitted them 19 electronically, Your Honor, I believe they'll be with 20 the Court already. 21 THE COURT: Okay. So you submitted three 22 orders. With the -- or you are going to abandon the 23 Motion for Continuance so that's going to be considered 24 abandoned. 25 MR. WEST: That's correct. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 47 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: So then I am going to grant your 2 Motion for Leave to File the Late Motion for Summary 3 Judgment and grant the Motion for Summary Judgment and 4 what about for the severance? 5 MR. WEST: Judge, we would ask that we be 6 severed from the action. I think that there's really no 7 argument to keep us in at this point. 8 THE COURT: Okay, all that is granted. 9 MR. WEST: I have the orders here but I have 10 also filed them electronically. 11 THE COURT: Yeah, well give them to me so I 12 can have them so I can keep track of what I am doing. 13 MR. WEST: There you go, Judge. 14 THE COURT: I am going to sign these, Ana. 15 THE COORDINATOR: Okay. 16 MR. WEST: Obviously with the Motion to Sever 17 we'll need a new case number. 18 THE COURT: Right. 19 THE COORDINATOR: It will be DC-14-46-A. 20 THE COURT: Go ahead and write it in here. 21 Okay and then we had Plaintiff's Motion to Compel and 22 for Sanctions. 23 MR. OLIVEIRA: Judge, if I could real quick 24 just to get a clarification on your previous ruling, I 25 understand you denied our motion to strike the 13th Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 48 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 amended petition but we also have. 2 THE COURT: Yes. 3 MR. OLIVEIRA: Part of the relief we requested 4 was to abate slash continue the case until the parties 5 get served and, uh, I just needed a ruling on that as 6 well. 7 THE COURT: I am going to deny that. 8 MR. OLIVEIRA: Thank you, Your Honor. 9 MR. WALLA: Your Honor if I may, Doug Walla 10 for AAS Consulting. Our motion is almost identical to 11 Mr. West's motion. We also had an H.V.A.C.-related 12 party. We did what's called the testing and air 13 balancing. We didn't install the A. C. we just tested 14 it after it was installed and wrote up a report. The 15 Plaintiff has no claims against us whatsoever. Uh, the 16 only -- I filed a Motion for Summary Judgment seeking 17 complete dismissal. Uh, the -- Descon has their breach 18 of contract claim against us, the same as he had with 19 Mr. West. The fundamental difference is we actually 20 provided insurance. Maryland Casualty Company now 21 Zurich N. A., uh -- 22 THE COURT: So your form says additional 23 insured. Rather than just certificate holder. 24 MR. WALLA: Yes, and they are -- and Zurich 25 has actually picked up their defense and is defending Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 49 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 them now as an additional insured. So, we -- 2 THE COURT: Even though the Plaintiffs are 3 claiming that you did not wrong. 4 MR. WALLA: That's correct. 5 THE COURT: Is that what you are doing or not? 6 MR. N. JOLLY: We have not suit AAS, Your 7 Honor. 8 THE COURT: So you have no opposition to AAS's 9 Motion for Summary Judgment and No-evidence Motion for 10 Summary Judgment. 11 MR. N. JOLLY: Well on this party here the 12 only thing I could say in response to that question is 13 we take no position and, uh -- 14 THE COURT: So you could care less if they 15 stay in or stay out. 16 MR. N. JOLLY: As much as I like Doug, you 17 know, if he deserves for his client to get out, I really 18 haven't studied their motions, I frankly don't know 19 anything about it. 20 THE COURT: You haven't made any claims 21 against their client's work? 22 MR. N. JOLLY: I am not positive. I don't 23 know. I could say I don't think we have, but right now 24 I just haven't studied the test and balance issues. I 25 could confer with the attorney from our office that Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 50 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 covered the engineer's deposition and get back to you. 2 THE COURT: You might want to do that. 3 MR. HEAD: That would be helpful for us. 4 MR. WALLA: Mr. Jolly, your last petition 5 dismissed AAS, made no claim against AAS. 6 MR. N. JOLLY: Correct. 7 MR. WALLA: So there's no pending claim 8 against AAS. 9 MR. N. JOLLY: There no pending cross-claims 10 against any of the subcontractors to any party that has 11 a contract with my client. 12 MR. WALLA: And in my motion for summary 13 judgment, Bill Holder and Ed Stacy, your two experts 14 related to H.V.A.C., both said that they had no problem 15 with the TAB work and that they -- no damage resulted 16 from the TAB -- 17 THE COURT: With reference to what work? 18 MR. WALLA: It's called TAB. 19 MR. N. JOLLY: Test and balance. 20 MR. WALLA: Test and balance. TAB. Once KBM 21 or another contractor puts the air-conditioning system 22 in, we go out and check the air flow, and the water 23 flow, and the humidity and all that stuff -- 24 THE COURT: Okay. 25 MR. WALLA: And their two experts -- and their Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 51 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 testimony is attached to my Motion for Summary 2 Judgment -- uh, they said in the Exhibit A and B, I 3 believe to my Motion for Summary Judgment -- 4 MR. SOLIS: I take Doug at his word. If 5 that's what the testimony is, and it's attached the his 6 motion for summary judgment, I take him at his word, 7 provided he doesn't leave before we get to the, uh, 8 motion to equalize strikes. 9 THE COURT: Okay. 10 MR. WALLA: I'll stay here for that. 11 MR. N. JOLLY: Thank you Doug. 12 MR. WALLA: And the other issue would be we 13 actually did provide the insurance and Zurich is 14 defending them so that whole argument that they had is 15 moot. 16 MR. HEAD: If he's saying there's not any 17 questions with respect to construction of their work 18 then -- 19 THE COURT: I would be listening to this, Mr. 20 Jolly, if I were you. 21 MR. N. JOLLY: I'm listening, Your Honor. 22 MR. HEAD: If he's saying -- 23 THE COURT: Because he said the word 24 construction. 25 MR. N. JOLLY: That's what they do. They, you Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 52 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 know -- 2 THE COURT: I don't know, I mean, I just want 3 to make sure because -- 4 MR. SOLIS: If Doug has a summary judgment and 5 points out that our experts have no complaints against 6 AAS I take him at his word. 7 MR. HEAD: If what he's saying is that they 8 don't have any issues with the construction and the test 9 and balance, then no. 10 THE COURT: You are not opposed. That's what 11 he just said. 12 MR. HEAD: What is the difference between we 13 contracted with them to perform the test and balance -- 14 THE COURT: No, that's what I -- I'm asking 15 you. 16 MR. HEAD: Yes. 17 THE COURT: I'm saying that's what he just 18 said. Do you agree with that? 19 MR. HEAD: I am trying to make sure I 20 understand what Mr. Jolly says because each time I speak 21 he stands up as though I'm wrong. I am just trying to 22 make sure I understand. 23 MR. N. JOLLY: Well let's put it this way. 24 THE COURT: He's not opposed to the summary 25 judgment. Are you? Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 53 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. HEAD: Uh, (pause) Well we raised our 2 issues and it's kind of the same as KBM. Is what it 3 sounds like. 4 THE COURT: So you are opposed to me letting 5 them out. 6 MR. HEAD: It sounds like it's the same issue 7 with KBM 8 MR. WALLA: Well it isn't, because your issue 9 with KBM -- 10 THE COURT: I am going to grant your Motion 11 for Summary Judgment. 12 MR. WALLA: Thank you, Your Honor. We did 13 provide the insurance and you know that. So I filed 14 this -- 15 MR. HEAD: I might agree then, but you got it. 16 THE COURT: Okay, gentlemen, stop talking to 17 each other, that's inappropriate. 18 MR. WALLA: That order was e-Filed and it 19 includes a severance. Would that be a dash B? 20 THE COORDINATOR: Yes. That would be B. 21 THE COURT: Okay. Then we had Fairess 22 Plumbing Company Inc.'s amended No-evidence Motion for 23 Summary Judgment. 24 MR. KASPERITIS: Your Honor, Pat Kasperitis, I 25 filed that on behalf of Fairess -- Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 54 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Am I pronouncing that right? 2 MR. KASPERITIS: Uh, Fairess -- 3 THE COURT: Fairess. 4 MR. KASPERITIS: Yes. 5 THE COURT: Okay. 6 MR. KASPERITIS: Our motion is along the lines 7 of the same thing. Mr. Jolly has -- none of the experts 8 for Mr. Jolly's -- that he's presented for deposition 9 have made any complaints about the plumbing and that's 10 what we pointed out on our summary judgment so on that 11 end I don't believe there's a liability issue regarding 12 Fairess. The contractual issues are the same. The 13 summary judgment evidence that they filed in response. 14 THE COURT: Same thing. 15 MR. KASPERITIS: Each one -- they used three 16 letters for my client, for my client -- not for my 17 client, for my client's insurers about the insurance 18 coverage. Each of the three letters say you are an 19 additional insured. So, there's no dispute that they 20 got named as an additional insured, and there's no 21 dispute that the plumbing wasn't an issue in any of 22 the-- 23 MR. HEAD: We don't oppose. 24 THE COURT: Okay. Well then Fairess' Motion 25 for Summary Judgment -- the Amended No-evidence Motion Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 55 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 for Summary Judgment is hereby granted. 2 MR. KASPERITIS: When I filed the motion and 3 the orders I did not file an order of severance so I am 4 going to have to supplement that. 5 THE COURT: Okay. If you'll do that that will 6 be C. 7 THE COORDINATOR: C. 8 THE COURT: Okay. If you'll take care of 9 that. 10 MR. KASPERITIS: Yes, Your Honor, I will. Oh 11 what they gave me was a front and back. I think you 12 want two pages, right? I filed it electronically. 13 THE COURT: You can scan it, right? 14 THE COORDINATOR: Yes, we can scan it. 15 THE COURT: She can Stan it. If you'll give 16 it to me I'll sign it and she can scan it. 17 MR. KASPERITIS: Okay, thank you. 18 THE COURT: Thank you, sir. Okay then we had 19 Zarate Suspended Ceilings' Traditional and No-evidence 20 Motion for Summary Judgment. 21 MR. DUNNAHOO: Mike Donnahoo and John Guerra 22 here for Zarate. Judge, similar issues in this case. 23 My client, however, didn't have anything to do with the 24 air-conditioning. My client installed the suspended 25 ceilings. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 56 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Okay. 2 MR. DUNNAHOO: My client also installed some 3 sheetrock walls and laid some roll insulation on top of 4 the suspended ceilings. We were sued for breach of 5 contract, breach of warranty, negligence, et cetera. In 6 depositions none of Plaintiffs' experts and none of 7 Plaintiff's fact witnesses had any complaints or 8 criticisms of the work that Zarate performed. Where it 9 gets interesting is that Descon claims that Zarate 10 Suspended Ceilings was responsible for installing what's 11 called rigid board insulation inside CMU walls, two inch 12 thick. 13 THE COURT: That's like the pink stuff? 14 MR. DUNNAHOO: Yes, two inch thick boards that 15 are adhered somehow. We never provided any submittals 16 for that, that was never contemplated by the contract. 17 The division that our roll installation belongs in is 18 07212, a construction division, that's a standard. Also 19 that is board insulation, but we didn't do the board 20 installation, and Descon knows that. Descon bought the 21 board insulation. Descon knows that another subcontract 22 in this case installed that rigid board installation 23 because Descon's superintendent wrote down on a daily 24 basis what each subcontractor was doing. Again this is 25 a traditional evidence -- motion for no evidence -- Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 57 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 traditional evidence motion for summary judgment sorry. 2 THE COURT: Ha, ha. Traditional. Right. 3 MR. DUNNAHOO: Exactly so in exhibit L I 4 provided, uh, about 2 months worth of superintendent 5 daily job logs where they indicate that it's some other 6 subcontractor that's doing that. So, not only do we not 7 do it, not only do we not submit it, but Descon had 8 knowledge back in August of 2004 that we weren't doing 9 what this is that they are saying we were supposed to do 10 now, installing the rigid board insulation. The statute 11 of limitations has run. We didn't do the work, they 12 know we didn't to it, but the statute has run. 13 Negligence statute has run, all the other limitations 14 have run. There's no evidence. Plaintiff is not making 15 any claim against us for our work. The only one is 16 Descon and Descon knows who the correct party is, but 17 Descon is going to try to keep us in this case anyway. 18 MR. HEAD: Your Honor, the Plaintiff has 19 raised issues with the board installation, I think 20 there's no dispute about that. Pursuant to their 21 contract Zarate's contract it does say they shall 22 provide all labor, materials, equipment, and insurance 23 for board and bat installation. We are talking about 24 the board insulation. He's saying somebody else 25 performed it. They had a contractual obligation to us Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 58 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 to make sure that it was done in accordance with the 2 subcontract and accordance with all building codes. 3 That's what we contracted for. What they are trying to 4 get up here and say now is well somebody else installed 5 it. Well you had a contractual obligation to us to make 6 sure it was installed correctly and that's, that's 7 what's before the Court. Whether it was -- the 8 Plaintiff says it was not installed correctly, and 9 that's what we had a contract with them to do. Doesn't 10 matter who installed it. They had an obligation to us 11 to make sure it was installed correctly. It doesn't 12 matter who bought it. They had an obligation to us to 13 install it correctly. 14 THE COURT: Did you hire two different people 15 to do it or what? Because the contract with them says 16 they should do it but then why did the other people do 17 it? 18 MR. HEAD: That is a fact question that I 19 can't answer right now, but their contract says that 20 they are responsible to us for it. 21 Additionally, there's the insurance issue that 22 we discussed with KBM that I am assuming that the Court 23 is fully apprised regarding the certificates and 24 additional insured information, so I won't go into that 25 any further, but that's the issue is their contract -- Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 59 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Doesn't that seem like a factual 2 question here? If your contract says you are supposed 3 to do it but somebody else did it, and his manager that 4 was on the site was saying, you know, they checked 5 somebody else in as doing it, but I mean you've gotta 6 contract that says you are responsible. 7 MR. DUNNAHOO: When they see that we are 8 allegedly not performing the work that we all allegedly 9 agreed to do, when they see that we are not doing it, 10 that gives rise to their claim against us for breach of 11 contract. The discovery rule does not apply to toll 12 limitations because they had actual knowledge. These 13 are -- Exhibit L our documents that Descon produced -- 14 THE COURT: You are claiming that somebody 15 else did it, they hired someone else to do it, and they 16 never asked you to go oversee and check and see if the 17 other people were doing it right. 18 MR. DUNNAHOO: Exactly. 19 THE COURT: And your Traditional Motion for 20 Summary Judgment Evidence supports that position. 21 MR. DUNNAHOO: Correct, Your Honor, and one 22 more thing. There is no evidence that we did the work. 23 They are trying to say alternatively that since the 24 Plaintiff is complaining that something was done wrong, 25 that liability somehow flows to us. Well there's -- Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 60 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: All of your evidence is attached 2 to your Tradition Motion for Summary Judgment, okay? So 3 I am going to hold that in abeyance and look at all that 4 and I will give you all a decision by this afternoon. 5 MR. DUNNAHOO: Thank you, Your Honor. 6 MR. HEAD: Thank you, Your Honor. 7 THE COURT: So I can look at the attached 8 evidence. 9 MR. HEAD: And can I add one thing or are you 10 finished with this? 11 THE COURT: No, go ahead. 12 MR. HEAD: I was going to say that he's only 13 focusing on the labor aspect of it. Now but there's 14 another important part of it is was the installation 15 done correctly. We allege that there's nothing wrong 16 with the installation, but the Plaintiff says there is 17 something wrong with it. So we just discovered that 18 there was an issue with the installation last year. 19 MR. N. JOLLY: I just have a point. I believe 20 that the party that installed the actual bat 21 installation was R & R. 22 MR. DUNNAHOO: I think it was actually Limon 23 Masonry, that's what the Descon superintendent wrote 24 down daily. 25 MR. N. JOLLY: Okay so R & R didn't do the Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 61 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 bat. 2 MR. DAVIS: James Davis for R & R 3 Construction. This might be a good point to interject. 4 I filed a No-evidence Motion for Summary Judgment. In 5 answer to your question Norman, R & R did -- the only 6 section of sheet waterproofing which is the rigid board 7 installation at the retaining wall, a $3,000 contract. 8 MR. N. JOLLY: Oh. 9 MR. DAVIS: My understanding is that the Limon 10 Masonry did all the pink insulation for the remainder of 11 the CMU walls. So -- 12 MR. N. JOLLY: I was just going to ask who. I 13 thought R & R did the bat -- the rigid board insulation. 14 THE COURT: NO, you are saying that who did 15 it? 16 MR. HEAD: Well the person who is written down 17 on the daily logs as actually installing it is Limon 18 Masonry. We have a contract with Zarate that says that 19 they will install and it will be done correctly, so 20 whoever installs it installs it. 21 THE COURT: Right. I mean, I hear what you 22 are saying. So Perez was already let out on their 23 motion for summary judgment. Right? 24 THE COORDINATOR: That's correct. 25 MR. N. JOLLY: Yes, ma'am. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 62 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: So then we have third-party Perez' 2 Second Traditional Motion for Summary Judgment and we 3 took care of that. 4 THE COORDINATOR: That's been taken care of. 5 THE COURT: And then we have C. A. Ray and Son 6 Painting Contractors Inc., Motion for Summary Judgment. 7 MR. HINKLE: Kyle Hinkle for C. A. Ray and Son 8 Painting. 9 THE COURT: What's your last name, sir? 10 MR. HINKLE: Hinkle. 11 THE COURT: Hinkle okay. 12 MR. HEAD: I may be able to short cut this. 13 These are kind of the same arguments brought up and if 14 the Plaintiffs have month issue with the painting, then 15 we don't need to discuss it. 16 THE COURT: Do you have any issue with C. A. 17 Ray and Son Painting Contractor? 18 MR. N. JOLLY: Well, I mean, if counsel is 19 telling us that the only thing C. A. Ray did was paint, 20 that would be true, we would have no issues with the 21 paint, assuming that's what their contract says. 22 MR. HINKLE: Yes. 23 THE COURT: So no one objects to letting them 24 out. 25 MR. N. JOLLY: We don't. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 63 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: I am going to grant C. A. Ray and 2 Son Painting Contractor's Motion for Summary Judgment. 3 Then we have, uh -- let me take up all the summary 4 judgments and then I'll look at the other motions. R & 5 R Construction Services', uh, No-evidence Motion for 6 Summary Judgment. 7 MR. DAVIS: Yes, Your Honor, James Davis again 8 for R & R Construction. Uh, in the Plaintiff's most 9 recent petition, as we have already discussed, they 10 dismissed all of our claims against the subcontractors 11 including R & R. I think Descon, uh, has the only 12 remaining claims and they include, uh, breach of 13 contract, negligence, however in their response to my 14 summary judgment the only evidence that they submitted 15 was on the breach of contract for failing to provide 16 insurance certificate. Uh, I think we have discussed 17 this. My -- and I've gotta motion and order for 18 severance, I think it's more proper in a declaratory 19 judgment action to discuss the insurance issues between 20 Descon and my client's insurers. 21 MR. HEAD: Your Honor, we have already argued 22 this. I think it's a breach of contract between the 23 contractor and the subs, it doesn't relate to insurance, 24 but since you heard us before I won't go into it. 25 THE COURT: I am going to grant R & R's Motion Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 64 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 for No-evidence Motion for Summary Judgment and that 2 will be severed into D. now. 3 MR. DAVIS: Thank you, Your Honor, here's an 4 order. 5 THE COURT: Thank you. 6 MR. DAVIS: Thank you. 7 THE COURT: Then we have, uh, Daniel Vasquez 8 d/b/a Twin City Glass' No-evidence Motion for Summary 9 Judgment and for Severance. 10 MR. GUERRA: John Guerra and Louis Gross for 11 Twin City Glass. 12 MR. GROSS: Good morning, Your Honor. 13 THE COURT: Morning. 14 MR. GROSS: Your Honor, if I may. 15 THE COURT: Go ahead. 16 MR. GROSS: My client installed the exterior 17 window system, the exterior doors, and the curtain wall 18 system at the elementary school. There have been no 19 complaints about the doors or the curtain wall system to 20 date from any of the Plaintiffs. Plaintiff has not made 21 a claim at this point against my client. 22 THE COURT: Well I am granting your Motion for 23 Leave to File Late Motion for Summary Judgment by the 24 way. 25 MR. GROSS: Thank you, Your Honor. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 65 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Okay. What is the, uh, 2 Plaintiff's position here? No allegations of anything, 3 any wrongdoing? 4 MR. N. JOLLY: The Plaintiff is not making a 5 claim against any of the subcontractors. 6 THE COURT: Okay. 7 MR. N. JOLLY: But, uh, I know that Twin City 8 installed the windows, and there's plenty of complaints 9 about the windows. We make those claims directly to the 10 party that we have privity with, so -- 11 MR. HEAD: And -- 12 MR. N. JOLLY: We are not agreeing that 13 between City's scope of work is released. 14 MR. HEAD: Yes, Your Honor, the Plaintiff has 15 made claims specifically with respect to clerestory 16 windows and with respect to the window system installed. 17 They are saying that -- 18 THE COURT: So this is different than with any 19 of the other subs that have been let out up to now 20 because there are complaints. 21 MR. HEAD: Yes, Your Honor. 22 THE COURT: With reference to the work that 23 Twin City Glass did. 24 MR. HEAD: Yes, Your Honor. 25 THE COURT: Okay. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 66 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. HEAD: And I can show you the sections in 2 the expert reports where they show -- where they allege 3 leaks in the clerestory windows as another issue with 4 respect to whether or not there was supposed to be a 5 sill pan in the window system that they provided and 6 installed, and Plaintiffs made complaints about both of 7 these. We had a subcontractor -- 8 THE COURT: As are you. 9 MR. HEAD: Yes. 10 MR. GROSS: Your Honor, if we can break down 11 the actual claims that the expert Joan Partida is 12 making, we would argue that these are not any issues 13 necessarily related to the clerestory window or the 14 functioning of the clerestory window. These are issues 15 that are related to other subcontractors' work. It just 16 happens to be some leaking that was found in the area of 17 the clerestory window. 18 And, Your Honor, the only issue has been with 19 one or two clerestory windows in this entire school. 20 And specifically there's an argument that there's been 21 deterioration of the ceiling joints there, Your Honor. 22 Now this is ten years after the fact that somebody is 23 coming in and saying your ceiling joints are gone. 24 There's been expert testimony from Plaintiff's expert 25 that that's basically the life of ceiling joints. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 67 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 Generally they don't even last that long, Your Honor, 2 and there's been testimony that there's been no 3 maintenance schedule with the ceiling joints from the 4 school. So, we would argue, Your Honor, that that's not 5 necessarily any evidence of any wrongdoing on the part 6 of my client. 7 We also argue, Your Honor, that a sill pan was 8 not utilized. A different window system was in fact 9 utilized for this particular school. It's a system that 10 actually costs more that utilized molients to drain off 11 water as opposed to an aluminum framing sill pan system. 12 Now this system was more expensive, it was installed by 13 our client, it was approved by the architect, it was 14 approved by the general contractor, Your Honor, and we 15 would argue that this new system there's been no 16 arguments that this new system in fact failed, uh, just 17 that it wasn't done per, uh, the original contracts 18 which were subsequently changed, Your Honor. So, uh, we 19 would argue that none of the evidence that has been 20 presented has anything to do with, uh, the scope of work 21 of my clients. 22 MR. HEAD: Your Honor, he filed a no-evidence 23 motion saying there's no evidence. These are all fact 24 issues. Mr. Partida stated in his deposition, he was 25 asked do you see any leaking around the clerestory Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 68 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 windows, he says yes. Now he also finds the reasons why 2 and those are the ones I told you. 3 THE COURT: I am going to deny Twin City's 4 Motion for Summary Judgment. 5 MR. GROSS: Thank you, Your Honor. 6 THE COURT: Is there any other summary 7 judgments, traditional or no-evidence? (pause) Okay I 8 don't see any more. 9 Okay, now we have a bunch of motions to strike 10 and exclude expert testimony and motions to compel, so 11 what I will take up -- 12 MR. GRIFFITH: Your Honor, John Griffith for 13 ERO as an administrative matter, uh, we have agreed to 14 the severance for Perez Consulting Engineers, uh, and 15 both, uh, Perez and ERO have dropped their nonsuit of 16 their motions for sanctions and attorneys fees against 17 each other. The attorney for, uh, Perez wanted to leave 18 and I told him I would make that announcement and we'll 19 submit an order on the severance but we agreed to the 20 severance. 21 THE COURT: Okay. 22 THE COORDINATOR: That would be then E? 23 DC-14-46-E? On the Perez? 24 MR. GRIFFITH: Perez motion for severance. 25 THE COURT: No, she's saying the new cause Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 69 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 number on the severed cause. We hadn't given them a 2 number? 3 THE COORDINATOR: No. 4 THE COURT: That would be E then. 5 MR. GRIFFITH: I will submit an order. 6 THE COURT: Okay. Let's start with Limon 7 Masonry's Motion to Strike Affidavit and Exclude 8 Appraisal Report. Are you all ready for that? 9 MS. COOPERRIDER: Yes, Your Honor. 10 Essentially the issue with this -- 11 THE COURT: You need to state your name for 12 the record. 13 MS. COOPERRIDER: It's Brittany Cooperrider. 14 The issue with the affidavit is that Thelma Ruelas, who 15 works for the school district, signed an affidavit 16 saying she's the maker and keeper of this appraisal 17 report. This was produced after Ms. Ruelas' deposition, 18 even though the record was created before her 19 deposition. We never had a chance to question her about 20 it at her deposition, and the issue is that I don't 21 believe she's the appropriate person to be sponsoring an 22 appraisal report because she didn't say in her 23 deposition that she is an appraiser or made or kept 24 these records. I believe an appraisal was performed 25 probably in anticipation of this litigation so the Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 70 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 Plaintiffs could prove up their damages and they are 2 trying to introduce it through her, and I believe the 3 more appropriate party would be whoever for American 4 Appraisal had prepared that appraisal report, and all of 5 that evidence is in the Motion To Strike. 6 MR. SMITH: If I could, I want at -- 7 THE COURT: State your name. 8 MR. SMITH: Robert Smith for Descon. Descon 9 did join in and adopt, uh, Lemon's arguments and motion 10 with regard to this, and I just have one thing I would 11 like to add, if that's all right. With regard to the 12 appraisal -- purported appraisal report that she is, uh, 13 supposedly discussing with regard to Ms. Ruelas' 14 affidavit, Court should note it's attached to the motion 15 and it's attached to the affidavit, is that it is 16 two pages out of I believe a 48 page or 38 page 17 document. Uh, there is no appraisal attached to it, 18 there is only, uh, the final dollar numbers. Uh, it 19 appears to be an insurance-related document, uh, for, 20 uh, I assume renewals or insurability, but without 21 having any of the other portions of that document or the 22 attachments to that document we have no idea as to what 23 it is. They have basically excerpted the one -- the 24 two pages -- 25 THE COURT: So y'all didn't get that in Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 71 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 discovery? 2 MR. SMITH: We did not get that in discovery, 3 Your Honor. 4 THE COURT: Did you request it? 5 MR. SMITH: We have requested it since it was 6 attached as that document. We have asked where's the 7 rest of the document. 8 MR. N. JOLLY: We'll get that to them, but no 9 one ever asked for an appraisal report ever in the 10 litigation, and the Plaintiff produced it because it's 11 their business record and Ms. Ramey is the custodian of 12 that record because she's the business director. School 13 districts are required to insure their property for 14 replacement cost and replacement cost for Grulla is 15 relevant, uh, highly probative information because, uh, 16 you have to know whether or not the damages for 17 remediation exceed the replacement cost of the property 18 because you can't get more than replacement costs for 19 remediation in Texas. So, the documents is a business 20 record kept by the school district, uh, it's been 21 properly noticed, there's a business records affidavit, 22 timely, following the rules. Uh, I can tell you the 23 other 45 pages are, are the other properties. Uh, but 24 we will go get them and, uh, produce them. 25 THE COURT: Okay. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 72 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MS. COOPERRIDER: Your Honor, my objection 2 would still be this is hearsay because it's being 3 offered for proof that the building cost $60 million. 4 We have never had a chance to question anyone who 5 prepared the appraisal, and Ms. Ruelas is just -- I 6 guess we have to accept it as truth that this is the 7 fact. We would like to see the underlying facts and be 8 able to question whoever prepared this, how that was 9 prepared -- 10 THE COURT: Who prepared the appraisal? 11 MR. N. JOLLY: You know, we go to these 12 depositions and if someone neglects to ask a question 13 what's the replacement cost of this building according 14 to Rio Grande City School District, that's not -- I 15 can't force them to ask the appropriate questions. This 16 is something that's relevant to any remediation claim is 17 whether the remediation exceeds the value of the 18 property, whether it's a car, any improvement to real 19 property. Who did the appraisal? I don't know the 20 author of the appraisal but I know that the document is 21 a business record kept by Rio Grande City School 22 District in the ordinary course of business, and then 23 they have to then take that number and insure the 24 building with a replacement cost policy. 25 MS. COOPERRIDER: Your Honor, the key part of Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 73 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 the rule is made and kept by. That's what the rule 2 requires. The affidavit sponsoring to be a hearsay 3 exception made. It wasn't made by Rio Grande City 4 Schools. It was made by American Appraisal, the 5 appraisal company who prepared this report. And if it 6 had been disclosed we would have asked about that, we 7 would have asked to depose someone from American 8 Appraisal, but it wasn't pruduced until just on the eave 9 of trial. 10 MR. N. JOLLY: The rule doesn't say made by. 11 THE COURT: Okay. I am going to deny your 12 motion to strike. Okay. Then we have Limon Masonry's 13 Motion to Exclude Expert Testimony from John Kenneth 14 O'Bannon. 15 MR. GARZA: Can I take the lead on that, Your 16 Honor? 17 THE COURT: I'm sorry? 18 MR. GARZA: Can I take the lead on that? I 19 have one filed for C & M Contracting. 20 THE COURT: Okay sure. 21 MR. SMITH: And Descon. 22 THE COURT: So these are similar -- these 23 are -- all these three defendants are all filing motions 24 to exclude the testimony from John Kenneth O'Bannon. 25 MR. SMITH: Yes, Your Honor. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 74 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Okay, well go ahead and state that 2 on the record. Which defendants are pursuing this 3 motion? 4 MR. SMITH: Your Honor, Robert Smith for 5 Descon. Descon has joined in the motions filed by the 6 other two parties. 7 THE COURT: Which is Limon, Descon and who 8 else? 9 MR. GARZA: C & M Contracting Inc. 10 MR. GRIFFITH: And ERO, Your Honor. 11 THE COURT: Okay. Here's Descon's. 12 MR. GRIFFITH: They are all the same motions. 13 THE COURT: So it's Descon's, Lemon's, and who 14 are the other two defendants that joined in? 15 MR. GRIFFITH: ERO. 16 THE COURT: ERO and who else? ERO, Limon, 17 Descon and? 18 MR. GARZA: C & M Contracting. 19 THE COURT: C & M. 20 MR. GARZA: Yes, Your Honor. 21 THE COURT: Okay. 22 MR. GARZA: Your Honor, may I provide you with 23 a courtesy copy of what was e-Filed? 24 THE COURT: Sure. 25 MR. GARZA: And there's two cases behind the Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 75 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 motion, Your Honor. 2 THE COURT: Okay. 3 MR. GARZA: As I understand the present 4 posture with the Court's prior rulings, and what has 5 been stated by Plaintiff's counsel's statements, when we 6 filed that motion there was no -- there was a 7 cross-claim against all the subcontractors. My client C 8 & M is a subcontractor. The school district has made it 9 clear there's no claims being made against the 10 subcontractors. So, the remaining claims against me are 11 by Descon, which was the general contractor with which I 12 had a contract. They are seeking breach of contract, 13 contribution, indemnity, all that from us. But this 14 motion is still extremely important to my client because 15 the claims that the Plaintiff is making against Descon, 16 if it prevails on the claims dealing with the roof 17 system -- my client did the roof. If it prevails on the 18 claims dealing with the roof that potential figure or 19 amount could be assessed against me if Descon prevails 20 on its claims against me. 21 THE COURT: Okay. 22 MR. GARZA: I know the Court has a lot of 23 documents in front of it. The Court has heard a lot of 24 things and I could -- what we did, Your Honor, is I went 25 through Mr. O'Bannon's testimony and highlighted his Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 76 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 testimony and I would like to just repeat it for the 2 Court, but I am going to give you the real short version 3 of what Mr. -- of what my motion says. 4 THE COURT: Okay. 5 MR. GARZA: Mr. O'Bannon acknowledges he has 6 no specialized knowledge, training, skill, or experience 7 dealing with roofs, roof systems, or roof installations. 8 Mr. O'Bannon picks up the phone one day, calls a buddy 9 of his, and says can you prepare a quote for me on 10 replacing the roof system at Grulla Elementary? And 11 I'll assume that this buddy has, you know, knowledge 12 about roofs and stuff. That buddy then prepares a 13 one-page quote, which is attached as Exhibit A to my 14 motion, Your Honor, (pause) Should be there. 15 THE COURT: What exhibit did you say? 16 MR. GARZA: I think it's Exhibit A. 17 THE COURT: I have Exhibit B right after the 18 end of your motion, and that's the videotape deposition. 19 MR. GARZA: It's attached there but I want to 20 get the -- here it is. 23-C. Here, Your Honor. Your 21 Honor this is, uh, co-counsel with me *Monica Wilkins. 22 MS. WILKINS: Hello. 23 MR. GARZA: This is what the Plaintiff -- or I 24 am going to say not the Plaintiff, but this is what 25 someone is going to try to show against my client. This Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 77 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 one-page document, not even signed by Mr. McIntyre. Now 2 this is what it is. So then I put in my motion and I 3 went through a series of detailed questions with 4 Mr. O'Bannon, and what I just want to do is highlight -- 5 THE COURT: Y'all can sit down back there. 6 MR. GARZA: I want to highlight in my argument 7 right now, uh, there's a lot of quotes out of -- you can 8 see my motion is not very long, Your Honor, and I 9 attached the relevant parts, but as to this one-page 10 document I asked him specifically. "He did no 11 independent investigation to confirm the validity of 12 those figures?" He said he does not consider himself an 13 expert on roofing systems, that he has no specialized 14 knowledge concerning installation or construction of 15 roofing systems, and that he "has no specific training 16 dealing with the installation or construction of roofing 17 systems." That quote is meant to be a complete 18 replacement of the roof system that's been there through 19 ten years and weathered various storms. It goes on and 20 I ask him as to that one-page quote on page six of my 21 motion. I am citing from his testimony. Uh, he did not 22 receive any other documents to support that quote from 23 Mr. McIntyre, he did not do any of the independent 24 investigations to confirm the validity of Mr. McIntyre's 25 figures, he has no documents in his file confirming Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 78 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 Mr. McIntyre's quote, he does not know what methodology 2 was used to come up with the figures on his quote, he 3 has no documents that Mr. McIntyre relied on for his 4 calculation on his quote. He does not know what 5 publications, if any, Mr. McIntyre relied on for his 6 calculation and his quote. He has no idea what 7 treatises, if any, Mr. McIntyre relied on for his 8 calculations. He has no idea what books, if any, 9 Mr. McIntyre relied on for his calculations. He has no 10 figures from Mr. McIntyre for labor to perform the 11 replacement of the roof, and he did no independent 12 investigation to determine what the labor cost would be 13 for replacing the roof. O'Bannon has no information on 14 prices that will be needed for the materials to be used 15 to replace the roof at Grulla Elementary School. In my 16 motion I also point out, uh, that, uh, he had no 17 knowledge whether Mr. McIntyre had ever built or worked 18 on the school building in South Texas including Starr 19 County. Uh, doesn't have any idea about what 20 Mr. McIntyre may have done in South Texas. What 21 Mr. O'Bannon has done is has been basically an estimator 22 for 32 years. What he did is he got information from 23 different sources and some of the other parties will 24 address some of his points, but it's clear under the 25 case law, Your Honor, and I know there's a limit of Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 79 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 time. His testimony -- 2 THE COURT: Well whatever we don't finish by 3 noon we can take up at 1:30 because I've gotta to swear 4 a new attorney in at lunch time. 5 MR. GARZA: His testimony, Mr. O'Bannon's 6 testimony, as to my client C & M and as to the issues of 7 roof repair and roof replacement, constitutes no 8 evidence. Now there's a lot of cases cited and I don't 9 need to tell the Court because the Court knows very 10 well, you know, the Robinson and Daubert and stuff. 11 What I do have, Your Honor, are two cases involving your 12 predecessor, cases here from the 229th District Court, 13 which were reversed and rendered because they let in 14 expert testimony which should not have been allowed in. 15 And I know the Court's time is valuable and the last 16 thing you would want to do is have to try a case for 17 several weeks and then at the end just reversed and 18 rendered because expert testimony came in that should 19 not have come in. 20 THE COURT: And the Plaintiff shouldn't want 21 that either. 22 MR. GARZA: And the Plaintiff should not want 23 that either. There's two cases. One was Texas Mutual 24 Insurance Company and I provided the Court with copies 25 of those cases. That's a workers comp case and it dealt Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 80 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 with medical, uh, causation. 2 THE COURT: Which case is that? 3 MR. GARZA: Texas Mutual, but I am no not 4 really going to speak to that one very much -- 5 THE COURT: Okay. That's 143 SW 3rd, 117. 6 MR. GARZA: They are both reversed and 7 rendered from the 229th, your Court predecessor, both 8 writ denied or review denied by the Texas Supreme Court. 9 The one I would like to show to the Court would be the 10 Goodyear case, Your Honor. 11 THE COURT: Okay. 12 MR. GARZA: And if you go to page 9 of the 13 Goodyear case -- and I will point out that the Plaintiff 14 had filed a response to my motion to exclude Mr. uh, 15 O'Bannon and Mr. O'Bannon talks about how he's been 16 there for 32 years and done estimating and so forth. 17 And as I read this case I sort of came to the conclusion 18 that I could take a little part of this decision. If 19 the Court goes to the bottom of page 9 where the foot 20 note 116 starts. 21 THE COURT: Okay. I see that. Talks about 22 this expert that was excluded and resulted in the 23 reversal and rendering of the case. Yet a man that had 24 a bachelor's degree in chemist, a Master degree in 25 Polymer Science and Engineering -- he had a lot of Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 81 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 credentials. And it goes on and says, "Although Crate's 2 background includes research generally into the adhesion 3 of properties of various materials, none of his 4 experience is specific to tires. He has no background 5 in tires, does not consider himself an expert on them. 6 He admitted the vast amount of his experience in failure 7 analysis has been related to products other than tires." 8 And then you go further down and you get to 9 about 7 or 8 lines up it says where the Court finds it 10 says, "Although this background may have enabled Crate 11 to discuss adhesion failures generally, he was not 12 qualified to opinion on the specifics of the actual 13 subject matter for which he was called to testify. 14 Accordingly we hold that Crate was not qualified as an 15 expert in the field of tire failure analysis, therefore 16 his testimony amounts to legally insufficient evidence 17 to a manufacturing defect." And very simply, Your 18 Honor, uh, if the Court would take the time and read the 19 motion entirely it basically says you have an expert who 20 has no specialized knowledge, training, et cetera in 21 roofing systems. He gets a one page quote that the 22 Court has in front of you. He says, "I have no on his 23 supporting documentation." And even if I concede to the 24 other parties that he has 30 or 32 years of experience 25 as a cost estimator, he would sort of be like Mr. Crate. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 82 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 He may have been a cost estimator for 32 years just like 2 Mr. Crate may have been talking about adhesion issues 3 for 32 years or many years, but he was not an expert in 4 this particular field. Mr. O'Bannon didn't get up and 5 say I am an expert on roofs, I know what it costs to 6 replace a roof, I replaced a hundred roofs in my 7 lifetime, none of that. And that in a nutshell, Your 8 Honor, is our argument. 9 So he would move to strike and exclude all 10 this testimony, his testimony as it relates to roof and 11 roof repairs. 12 THE COURT: Okay. Mr. Jolly? 13 MS. COOPERRIDER: Your Honor, I would just 14 like to say we join Mr. Garza's argument. This is 15 Limon -- 16 THE COURT: Right, it's on the record that all 17 four defendants joined in that argument. 18 MS. COOPERRIDER: We have our own motion 19 pending. We just have to put on our own summary 20 judgment evidence. The one page quotes are the same -- 21 THE COURT: I mean, if it's the same argument 22 I get it. 23 MS. COOPERRIDER: Okay. Thank you, Your 24 Honor. 25 THE COURT: Okay. Mr. Jolly? Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 83 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. N. JOLLY: Yes, Your Honor. I believe 2 Mr. Garza started out explaining that Kenny O'Bannon is 3 not a roofer. That's true. He's an estimator. He's 4 not a mason. He's not an H.V.A.C. installer, he's an 5 estimator. 6 THE COURT: What is an estimator? 7 MR. N. JOLLY: An estimator calculates 8 remediation costs. 9 THE COURT: And that's all he does. 10 MR. N. JOLLY: That's right. And he relies on 11 the other experts who opinion whether or not the work is 12 necessary, and this gentleman opines on whether or not 13 the charges are reasonable in our community. 14 THE COURT: Do you have another guy that's 15 doing the roof issues? 16 MR. N. JOLLY: Correct. 17 THE COURT: Do you? 18 MR. N. JOLLY: Yes, Your Honor. 19 THE COURT: And he's listed as an expert also? 20 MR. N. JOLLY: Yes, Your Honor. 21 Mr. O'Bannon -- 22 THE COURT: He's going to talk about the same 23 thing pretty much? 24 MR. N. JOLLY: The other expert is the one who 25 says that the work is necessary. And the case -- Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 84 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: And does not talk about how much 2 it's going to cost or does also talk about how much it's 3 going to cost? 4 MR. N. JOLLY: The other experts can rely upon 5 the estimator, and the estimator can rely upon the 6 people who say the work needs to be done. So, they 7 all -- 8 THE COURT: But what I am saying does the 9 roofer also talk about how much it's going to cost or he 10 just says what needs to be done? 11 MR. N. JOLLY: They can do both. They can do 12 both. 13 THE COURT: Okay. 14 MR. N. JOLLY: There is no redundancy because 15 the roof expert is relying upon the estimator and vice 16 versa. I will point out this is not a comp case and 17 medical causation is not relevant. Tire tread 18 separation is a whole other gig. There's a case if you 19 haven't heard of is called McGinty versus Hennen. 20 THE COURT: Do you have the cite? 21 MR. N. JOLLY: It's a June -- Texas Supreme 22 Court, June 29th, 2012. That is the landmark case on 23 construction estimators testifying in Texas. 24 THE COURT: What is the, uh, what's the style? 25 MR. N. JOLLY: M-C-G-I-N-T-Y. And I apologize Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 85 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 I don't have the case with me. 2 THE COURT: Okay. 3 MR. N. JOLLY: McGinty versus Hennen, 4 H-E-N-N-E-N. Real interesting case. The estimator on 5 that case had actually estimated some pending matters 6 that we had, and we immediately terminated him and 7 located someone else and low and behold we found Kenny 8 O'Bannon. So, we actually acted on this case and made 9 sure we located someone that was appropriate. 10 Mr. O'Bannon's line item response to every complaint 11 about his testimony is on Exhibit A to our response. He 12 goes through and explains in the italics portions. It's 13 an affidavit. He explains his response to every 14 complaint that's been made. 15 The other complaint that the estimate or the 16 quotes from subs are on one page. I think the other 17 complaint was he didn't take any measurements and that's 18 true. He may have taken some measurement, but for the 19 most part he doesn't take measurements. He doesn't need 20 to. He has the plans. The measurements are on the 21 plans. So the fact that the man didn't measure 22 everything in the building is irrelevant. He has all 23 the measurements. The complaint about the estimate or 24 the estimates from subs for the mason or roofer or 25 whoever that Kenny accumulates from the people that he Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 86 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 can trust and know are reliable in the community, the 2 complaint that it is on one page is really -- doesn't 3 have much merit, and the reason I say so is because each 4 of those for the various trades and portions of work for 5 the remediation, they may have been on one page and then 6 he ends up with numerous pages, and come to find out 7 when the architect was estimating this building before 8 they ever built it, the architect, who is not an 9 estimator, the architect used one page to estimate the 10 entire costs for the whole building. 11 THE COURT: Well I mean I have found that 12 there's a lot of people that say a lot of things but end 13 up saying nothing. 14 MR. N. JOLLY: Right. 15 THE COURT: And there's some people that say a 16 few words and say a lot. 17 MR. N. JOLLY: Right. 18 THE COURT: So. 19 MR. N. JOLLY: Exactly. Exactly and it turns 20 out that Mr. Ochoa used some national standards, Kenny 21 O'Bannon uses national standards, R. S. means. It turns 22 out Mr. Ochoa was almost spot on to maybe the tune of 23 200, 300 thousand dollars and this is the pre-bid 24 formulation for raising the money, coming up with the 25 plan and going out for bid. I mean, the one thing Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 87 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 Mr. Ochoa did do right was he got the estimate pretty 2 close. 3 THE COURT: Is this mine or yours? 4 MR. N. JOLLY: You can have it. And he did 5 that on one page. So, I don't think that just because 6 he has a single page -- 7 THE COURT: I am going to read the cases. 8 MR. N. JOLLY: Yes, Your Honor. 9 THE COURT: I am going to read the cases as 10 submitted by Mr. Garza and I am going to read that, uh, 11 case that you say is a landmark case for estimators, and 12 then I will make a decision with reference to that. 13 MR. GARZA: May I briefly respond, Your Honor? 14 THE COURT: Of course. Of course. 15 MR. GARZA: I didn't bring Mr. Lewis' 16 deposition, but he was their roof expert that talks 17 about that the roof needs to be replaced. My 18 recollection is that he as well as the other -- well I 19 am just going to talk about the roof. He was not going 20 to give opinions on the cost of the repair or replacing 21 the roof. He deferred to Mr. O'Bannon. 22 THE COURT: Okay. 23 MR. GARZA: Mr. McGuire, the one-page estimate 24 that you have for the roof, he's not listed as an expert 25 for the Plaintiff, and so Mr. O'Bannon is relying on Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 88 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 hearsay from Mr. -- from the -- on that one page to give 2 his testimony. Again it's going to be very simple. 3 They are expecting him to get up there -- 4 THE COURT: So Mr. McGuire is not an expert? 5 MR. GARZA: He's not an expert, he's not 6 identified as an expert in this case. All his -- I mean 7 what Mr. O'Bannon is going to tell us is hearsay that 8 he's relying on from that person. But when I asked him 9 show me what you got from this person, he got nothing. 10 And we are a week from trial so it's too late for them 11 to go supplement and start sending me stuff. 12 THE COURT: McGuire is not an expert? Or 13 listed as an expert? 14 MR. GARZA: I keep saying McGuire but whatever 15 his name is. 16 THE COURT: Is it McGuire or McGinty -- what 17 is the? 18 MR. N. JOLLY: McGinty is the Supreme Court 19 case. 20 THE COURT: Right. 21 MR. N. JOLLY: Well we -- 22 THE COURT: But the one page from the -- that 23 was given to the estimator that the estimator relied 24 upon, what was his name? 25 MR. N. JOLLY: I don't know who he's referring Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 89 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 to. 2 MR. GARZA: I'm sorry, McIntyre. 3 THE COURT: McIntyre. 4 MR. GARZA: Jerry McIntyre is not designated 5 as an expert by anybody in this case and I don't have 6 anything on him. All I have is this one-page quote 7 that's supposed to support a $675,000 replacement of the 8 roof. And you can read the references in Mr. O'Bannon's 9 deposition, and it's clear when I asked him what do you 10 have from Mr. McIntyre, he has zero, except the one-page 11 document. So my examination of him is what do you have 12 for Mr. McIntyre -- 13 THE COURT: So you are saying he's not relying 14 on another expert. 15 MR. GARZA: He's not relying on another 16 expert, he's relying on a page that was sent to him. 17 MR. N. JOLLY: We disclosed, retained 18 testifying experts, they produced their reports, the 19 bases for their reports are attached. This is the way 20 estimating is done by getting quotes. 21 THE COURT: Okay, well I'll look at the cases 22 and make a decision. 23 MR. GARZA: Thank you, Your Honor. 24 THE COURT: Okay and then we have about 15 25 minutes left so I don't know if there's something we can Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 90 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 take up in 15 minutes. Like I say I would rather work 2 through lunch all the time, but today I've got to swear 3 somebody in. So we have got Plaintiff's Motion to 4 Compel and for Sanctions. We've got Plaintiff's Motion 5 to Compel Defendants to Produce the Full and Complete 6 Expert Files and Everything Referred to and Relied upon. 7 MR. N. JOLLY: That's been satisfied, Your 8 Honor. 9 THE COURT: Okay, that one has been satisfied. 10 MR. N. JOLLY: Correct. Those are both 11 Plaintiff's motions. 12 THE COURT: Were both satisfied? 13 MR. N. JOLLY: Well they were late but I am 14 not going to have a tantrum about it. 15 THE COURT: You are not going to push the 16 Motions to Compel and for Sanctions. 17 MR. N. JOLLY: I got it. 18 THE COURT: Okay. 19 MR. N. JOLLY: You know, I, I, I am not going 20 to push it. 21 THE COURT: Okay, then we've got Descon's 22 Motion, uh, to Strike or Exclude Evidence on Plaintiffs 23 Claims for Attorneys Fees. How long is that going to 24 take to argue? 25 MR. FARWELL: Your Honor, Jay Farwell for Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 91 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 Descon. Not very long. 2 THE COURT: Well I mean if you say five 3 minutes -- 4 MR. FARWELL: I think -- 5 THE COURT: -- if everyone can argue and 6 respond within five minutes I'll take it up, if not we 7 are going to take up after lunch because I have to go 8 and swear this guy in. 9 MR. N. JOLLY: It will take seconds only. 10 There's a new Supreme Court case that just came out I 11 believe April that says -- 12 THE COURT: What is the cite of that case? 13 MR. N. JOLLY: I don't believe I know the 14 cite, I know it was just last month and a lot of 15 people -- 16 THE COURT: Maybe not a cite but a number. 17 Something I can refer to. 18 MR. N. JOLLY: It's in their motion. 19 MR FARWELL: Your Honor, the Plaintiff -- 20 THE COURT: State your name. 21 MR FARWELL: Jay Farwell. 22 THE COURT: Okay. 23 MR FARWELL: The Plaintiff in this case has 24 pled for and is asking for attorneys fees under section, 25 uh, what is it 38.001 of the Civil Practice and Remedies Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 92 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 Code for a breach of contract. 2 THE COURT: And you are arguing for Descon. 3 MR FARWELL: I am arguing for Descon. 4 THE COURT: Because it's Descon's motion. 5 MR. FARWELL: Descon Construction is a limited 6 partnership. 7 MR. N. JOLLY: We agree. We agree that the 8 Supreme Court says you can't collect attorneys fees from 9 a partnership. 10 MR FARWELL: Your Honor, if I could finish my 11 argument. 12 THE COURT: Well if he's agreeing to -- he's 13 agreeing that he's not entitled to attorneys fees. 14 Right? 15 MR. N. JOLLY: From the partnerships. You are 16 entitled to recover attorneys fees from corporations or 17 people and that's it. 18 THE COURT: Is that your argument? 19 MR FARWELL: That's my argument, Your Honor. 20 THE COURT: So then if -- 21 MR FARWELL: If he is not -- if he'll just say 22 on the record that he's not, uh, seeking attorneys fees 23 from any partnerships, then, uh -- 24 MR. N. JOLLY: I didn't say general partners, 25 I didn't say people, I didn't say corporations. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 93 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Okay. Well let's make it very 2 clear exactly what you are saying, Mr. Jolly, because I 3 don't want to be back here on this issue. 4 MR. N. JOLLY: Right. No one can collect 5 attorneys fees in Texas any more against a partnership 6 or an LLC that is a pass through partnership. But if 7 the LLC is a corporation you can. 8 THE COURT: Do you agree with that? 9 MR FARWELL: Yes, Your Honor. 10 THE COURT: Okay. 11 MR. N. JOLLY: You can collect fees from a 12 corporation and a person. 13 THE COURT: Well then -- 14 MR. N. JOLLY: And that's it. 15 MR FARWELL: Just so the record is clear 16 though, then the Plaintiff is not seeking attorneys fees 17 from Descon Construction LP in this case. 18 MR. N. JOLLY: Well I think I made it real 19 clear. Descon Construction LP is a partnership but it's 20 partners are responsible for the attorneys fees if it's 21 a person or a corporation. 22 MR FARWELL: Well I don't agree with that 23 statement of the law but I want to make sure I 24 understand that the Plaintiff is not seeking -- 25 THE COURT: Okay well submit -- Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 94 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR FARWELL: -- attorneys fees from a 2 partnership. 3 THE COURT: Submit an order that both of you 4 sign that says he's not pursuing attorneys fees as 5 against any partnership in accordance with the last, uh, 6 I guess decision -- 7 MR. N. JOLLY: Well it's like this. If a 8 partnership can't pay its debts then it's partners owe 9 them. So we got to make it real clear that he's not 10 going to put together something knocking out the 11 Plaintiff's right to recover attorneys fees from people. 12 THE COURT: Right. 13 MR. N. JOLLY: Or corporations. 14 THE COURT: Right. 15 MR. N. JOLLY: Who were the owners, successors 16 and partners -- 17 THE COURT: So my ruling is as to any person 18 or corporation he can, insofar as the law allows him to 19 collect attorneys fees or recover attorneys fees or 20 claim attorneys fees against thoseentities, but as to 21 any partnerships, which would be in violation of the 22 latest Supreme Court ruling, he cannot. Is that 23 correct? 24 MR FARWELL: Very good, that's very clear, 25 Your Honor. Just for the record -- Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 95 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Okay and submit an order that says 2 that and but do give me the case. Or that, uh, the name 3 of the case. 4 MR FARWELL: Flemming and Associates versus 5 Barton, 425 SW 3rd, 560 -- 6 MR. N. JOLLY: No, it's the later case. 7 MR FARWELL: It's a 14th Court of Appeals case 8 in 2014. 9 MR. N. JOLLY: No, sir. No, sir. The Supreme 10 Court case, that one had petition granted. The Supreme 11 Court case was after that case wasn't it? No? While 12 the petition was pending? Isn't there a Supreme Court 13 case cited? 14 MR FARWELL: Petition has been filed in the 15 case. 16 MR. N. JOLLY: If that's not the correct case 17 I'll give it to you. 18 THE COURT: Okay. 19 MR FARWELL: I believe that could be the 20 correct case. 21 THE COURT: Okay. Anything else gentlemen? I 22 mean that's all I had on my list. Is there more stuff? 23 That needs to be heard? 24 MR. GRIFFITH: Your Honor, ERO had a, uh, 25 Robinson Motion to Exclude the Testimony of the Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 96 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 Non-design Professionals testifying as to design 2 defects. I don't think Plaintiff's counsel is opposed 3 because for the most part his experts, his non-design 4 experts say they were not going to testify or were not 5 qualified to testify -- 6 THE COURT: Tell me that again. It's ERO's 7 motion for what? 8 MR. GRIFFITH: Daubert Motion to Exclude the 9 Testimony of Plaintiff's Non-design Professionals 10 Regarding Alleged Design Defects. Again Mr. uh, Holder, 11 uh, I think Krismer, the rest of them, they said since 12 they are not design professionals they are not going to 13 have any design opinions, but I wanted to make sure. 14 It's almost like a prophilactic measure. That's the 15 order. 16 MR. N. JOLLY: Is this something that was set 17 today? 18 MR. GRIFFITH: Yes. 19 THE COURT: I mean I didn't have it on my 20 list. Was it filed. 21 THE COORDINATOR: No, it was not on the list, 22 but I am going the check here. 23 THE COURT: I had not seen it. 24 MR. N. JOLLY: This is really limine stuff, 25 Judge. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 97 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. GRIFFITH: Yes, I would agree this would 2 normally be limine, but typically if it's something that 3 I don't want to get in front of the jury. I'll do a 4 motion to exclude, that way it's ruled on ahead of time 5 and we don't have to argue when it comes up. That's the 6 only reason I did it, but yeah in general this would be 7 limine but I wanted to exclude it or have a resolution 8 of it before trial. 9 MR. N. JOLLY: We, we -- well we have limine 10 that -- this goes both ways. They on the one hand you 11 don't want someone opining on architecture, but on the 12 other hand they want the janitor to opine on 13 air-conditioning design. So it's in our limine. 14 Really, really, if we want to take up the whole limine 15 right now that could take severa hours and we are 16 willing to stay here to do that. 17 THE COURT: Wait a minute, we are going to 18 take up the limine today. 19 MR. N. JOLLY: Okay good. 20 THE COURT: We'll do it after lunch. 21 THE COORDINATOR: It was set for final 22 pretrial as well. 23 THE COURT: Because we are set for final 24 pre-trial today. We are going to take up everyhting. 25 We are not going to be arguing anything on jury Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 98 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 selection day. There's no way. We are -- all we are 2 going to do jury selection day is pick a jury and start 3 a trial. Everything -- 4 MR. N. JOLLY: All right. 5 THE COURT: -- else we are hearing today. So, 6 I will have you all back here at 1:30 with any other 7 issues that you want me to take up. Including this one. 8 MR. OLIVEIRA: Your Honor, if I could make a 9 suggestion. I don't think we have sat down with, with, 10 uh, Norman on the motion in limine. 11 THE COURT: Have lunch have lunch together. 12 MR. OLIVEIRA: We should have. 13 THE COURT: I am ordering you to have lunch 14 together. Go to I guess you can go to Casa De Adobe, 15 there's probably room for all of you upstairs or 16 something. 17 MR. OLIVEIRA: If not, if the other thing -- 18 THE COURT: Or go to Caro's or somewhere. 19 MR. OLIVEIRA: If we can get together maybe 20 before we, uh, give us a little bit of time. 21 THE COURT: Do you all want -- guys you all 22 are not listening here. Okay, so focus. So why don't 23 y'all go I've a quick lunch, if you want to eat together 24 eat together, if you don't want to I can't force you to 25 do that. But, be back here by 1:00. Start talking. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 99 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 See what you can work out and agree upon and I guess 2 1:30 is not going to be enough time for you all to agree 3 on anything, so I guess I can get back on the bench at 4 2:00. 5 MR. OLIVEIRA: That's fine, Your Honor, give 6 us an hour. 7 THE COURT: That way you can just shorten your 8 arguments and, uh, get your agreements together and 9 whatever y'all can't agree upon then I will decide, but 10 that way I am not sitting here saying well judge we did 11 agree to number one and didn't agree to number two but 12 then maybe number 3 and -- no. I mean, y'all sit down, 13 talk, work on whatever you have to work out, and 14 whatever you can't work out I'll take it up at 2:00. 15 MR. OLIVEIRA: Be happy to do that thank you, 16 Your Honor. 17 THE COURT: If y'all want to leave your stuff 18 here nobody is coming in, nobody is going to take it, 19 nobody is interested in it I'm sure. 20 (This is the end of the morning 21 session for Friday May 1, 2015, 22 Judge Garza, Starr County, 23 Texas.) 24 25 Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 100 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 101 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 2 (P.m. session for Friday May 1, 3 2015, Judge Garza, Starr 4 County, Texas.) 5 THE BAILIFF: All rise, the 229th District 6 Court is back in session, Honorable Ana Lisa Garza 7 presiding. 8 THE COURT: Okay. The record will reflect we 9 are back on the record in cause number DC-14-46. We 10 took care of all the hearings in the morning, however, 11 we do have some pre-trial matters and motions in limine. 12 So do you want to go ahead and let me know what the 13 agreements are? Or better yet what the agreements are 14 not. So let's start with the motion in limine. 15 MR. N. JOLLY: There's a number of agreements 16 and disagreements. We are still working on Lemon's. 17 THE COURT: See y'all were supposed to confer 18 about all this stuff before you even got here. 19 MR. N. JOLLY: We have been working on it real 20 hard. 21 MR. GRIFFITH: There's so many parties. I 22 don't care, it doesn't matter to me if there's 1, 9, 20, 23 or a hundred. You were supposed to confer on your 24 motions in limine before you came here. 25 MR. SMITH: I am ready to proceed, Your Honor. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 102 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Well but you didn't confer. 2 MR. N. JOLLY: We did. 3 MR. SMITH: We did. We have. 4 THE COURT: I told you to to do it at lunch 5 time. 6 MR. N. JOLLY: That's true we did blow it on 7 that. 8 THE COURT: Did you exchange witness lists? 9 MR. SMITH: We did. 10 THE COURT: Exhibit lists? 11 MR. N. JOLLY: Yes. 12 MR. SMITH: Everything has been exchanged. 13 THE COURT: Did you do proposed jury charges? 14 I know that in th end -- 15 MR. N. JOLLY: Yes. 16 MR. SMITH: Yes. 17 THE COURT: We don't know what's going to 18 happen when the evidence but you are supposed to 19 exchange -- 20 MR. SMITH: It was all exchanged. 21 MR. N. JOLLY: That's been done. 22 MR. SMITH: It's all been done. 23 THE COURT: So it's just the in limine? 24 MR. N. JOLLY: That and the motion to equalize 25 strikes. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 103 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Okay. 2 MR. N. JOLLY: And because Doug Walla is 3 staying around here for that, could we do that now so he 4 can hit the road? His client has been released. 5 THE COURT: Okay. 6 MR. N. JOLLY: By summary judgment. 7 THE COURT: Okay. Well let's take care of the 8 motions to equalize strikes, unless Mr. Walla wants to 9 bill more hours while he sits here and waits. 10 MR. N. JOLLY: Yeah. I think he's ready to get 11 back to Houston. 12 THE COURT: Okay, let's go ahead and take care 13 of the motion to equalize strikes. 14 MR. N. JOLLY: Remember, Your Honor, last time 15 we were here we indicated that the, uh, Descon and the 16 third parties they are not, uh, adverse to one another, 17 they are essentially one side, and, uh, there had been 18 an inadvertent production of an e-mail indicating there 19 was to be conference calls between the Defendants. Uh, 20 they inadvertently produced that to the Plaintiff. The 21 conference call has been cancelled, but it seemed to 22 imply at minimum that there had been previous plans for 23 future defense strategy conference meetings, whatever 24 you want to call it. Uh, so we sent some discovery out 25 for joint defense agreements and everybody of course Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 104 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 said that there weren't any, but on the other hand, they 2 are cooperating and they are meeting and we are not 3 invited to meetings, we are not invited to conference 4 calls. And so I have known Doug a long time and I asked 5 him to stay here, to tell you his opinion on that. 6 MR. WALLA: I don't know that I really have an 7 opinion on it. I can tell you that, uh, we had a couple 8 conference calls among counsel for the various 9 Defendants. I don't know if all the Defendants were on 10 those conference calls. I participated in one myself 11 and one of our associates participated in one. I don't 12 know if there were any more beyond that. That's the 13 only two that I can think of. 14 The substance of any of those conference calls 15 I cannot get into, I am going to assert that that's 16 privileged, it's work-product among other things, and I 17 can't talk about work-product. That privilege continues 18 whether I am out of the case or in the case. 19 I can say "Yes" or "No," yes we had, uh, 20 two scheduled or maybe three scheduled telephone 21 conferences of which two I can tell you without 22 reservation of that. The third one never happened and 23 the substance of them I can't talk about. 24 MR. N. JOLLY: And the Plaintiffs were never 25 invited to these conference calls and it always involved Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 105 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 Descon and the third parties that Descon and ERO had 2 sued. Right? 3 MR. WALLA: I know it involved some 4 Defendants, which ones I don't remember. I know I was 5 involved and I know Descon was involved, beyond that I 6 don't know. 7 MR. N. JOLLY: The point is there's no 8 antagonism between the parties notwithstanding the 9 third-party claims and they are one side and they should 10 get the same number of strikes. 11 MR. SMITH: Your Honor, if I could respond. 12 THE COURT: Well go ahead and argue your 13 motion. I mean, what are you -- 14 MR. N. JOLLY: That's it. 15 THE COURT: What are you requesting? 16 MR. N. JOLLY: The Court has discretion to 17 determine if there is antagonism or if there is not 18 antagonism and on the one hand they want to file 19 third-party claims and drag their subs in, but on the 20 other hand they want to strategize and not act 21 antagonistic throughout the case to the prejudice of the 22 Plaintiff. And then on the other hand they are going to 23 get together during jury selection and assist each other 24 with strikes. So, at a bear minimum they should be 25 ordered no communication whatsoever on strikes, but Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 106 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 right now we are asking for you to decide, and it is 2 within your discretion, it's in the rule -- the cited 3 rules in our motion, it's, it's, uh, towards the end in 4 the two hundreds right before jury selection. I can't 5 tell you the exact number, but it's in that range, and 6 antagonism, the question of antagonism is a question for 7 you. If they get ten strikes and we get six then they 8 get to strike more people when they are not 9 antagonistic. So, we are asking you to decide that they 10 are one side and to equalize the strikes. 11 MR. SMITH: Your Honor, basically -- 12 THE COURT: You need to identify yourself for 13 the record. 14 MR. SMITH: I'm sorry. Robert Smith 15 representing Descon. Basically I believe Limon has 16 filed a response, we filed a response to this. 17 Basically there is more than ample evidence that there 18 is antagonism certainly exhibited through the Summary 19 Judgment motions that we went through this morning. Uh, 20 we have attached copies of interrogatory answers and 21 request for disclosures responses where Descon is 22 seeking, uh, their claims against all the third parties. 23 Uh, with regard to that, seeking monitary damages and 24 different amounts for the different parties. We made 25 claims and are seeking claims with regard -- for example Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 107 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 the glass people with issue to their glass work, we 2 sought with regard to the different products and the 3 different work that the different third parties have 4 done. There's been ample, ample showing of, uh, of the 5 fact that there are claims, realistic claims that are 6 being made and there is antagonism between the parties. 7 With regard to, uh, the action that 8 Plaintiff's counsel is discussing, I don't believe that 9 there has been a single -- 10 THE COURT: Sir, you can sit down and then 11 stand up when it's your turn. 12 MR. B. LOPEZ: Yes, ma'am. 13 MR. SMITH: I don't believe there's been a 14 single telephone call in this case where everybody was 15 involved in or even around the majority was involved in. 16 Uh, there have been discussions related to matters, uh, 17 totally unrelated to, uh, or totally related to issues, 18 uh, regarding for example scheduling and like that, that 19 have no -- 20 THE COURT: Well but if it was just scheduling 21 then you would have had the plaintiffs involved also 22 wouldn't you? 23 MR. SMITH: No, ma'am, because the way the 24 scheduling in this matter took place was we contacted 25 Plaintiff's counsel and said here's what we need for Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 108 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 depositions, give us dates. They gave dates to my 2 lawfirm. My lawfirm then went to all the other 3 Defendants, third-party Defendants and said these are 4 the dates that Plaintiff's counsel has given us, let's 5 get together and figure out which ones are acceptable to 6 the most people to get these depose done. We acted as 7 the intermediary on it and that was as to all 21 8 depositions with the exception of the last one which was 9 handled by Limon Masonry. 10 THE COURT: Well then if that's all it was 11 then why can't Mr. Walla say that? That's not 12 privileged. 13 MR. SMITH: Well there were others. 14 THE COURT: If you were just talking about 15 setting up depositions and things of that nature. 16 MR. SMITH: We addressed settlement issues, we 17 addressed a lot of things, but we did not collude with 18 regard to the defense of the case. 19 MR. WALLA: My only concern is I don't think I 20 can talk about any substance whether it's insubstantial 21 substance or substantial substance, if that's a way to 22 phrase it, because I think once you open that door the 23 whole enchilada is subject to privilege in my opinion 24 and I don't -- it's kind of an ethical slippery slope 25 and I don't want to cross that line. So, I freely admit Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 109 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 we had a conference call. 2 MR. N. JOLLY: Mr. Smith is saying there's 3 scheduling, they are scheduling depose, but they are not 4 including us in scheduling? I mean all the parties need 5 to be involved in scheduling, you know, and I mean if -- 6 THE COURT: I am going to grant the motion to 7 equalize the strikes. 8 MR. N. JOLLY: Thank you, Your Honor. 9 THE COURT: Okay, what else? You are excused, 10 Mr. Walla. 11 MR. WALLA: Thank you, Your Honor. 12 MR. N. JOLLY: Thank you, Doug. 13 THE COURT: What about the motions in limine? 14 Let's start with Descon and get me the hard copies of 15 those motions. Or let's start with the Plaintiff's and 16 Descon and then we'll take it from there. 17 MR. SMITH: Do you want Descon to address the 18 Plaintiff's first or Plaintiffs to address Descon's 19 first. 20 THE COURT: Let me have Plaintiffs address 21 Descon first and then anybody else's after that. And 22 then we'll go through each individual Defendant that's 23 staying in this case. 24 MR. N. JOLLY: Can I remain seated? 25 THE COURT: Yes, go ahead. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 110 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. N. JOLLY: Thank you, Judge. We agree to 2 number 1, we disagree -- 3 THE COURT: Hold on. Hold on. We are 4 starting with Plaintiff's motion in limine. 5 MR. N. JOLLY: Oh, okay. Let's take it from 6 there and start with, you know, granted -- what's agreed 7 and what's not agreed. So, let's start with page 2. 8 MR. N. JOLLY: 1, 2, 3 are agreed. 9 THE COURT: Okay, so I am going to grant 10 those. Okay. 11 MR. N. JOLLY: Four is denied -- I'm sorry, 12 disagreed. Ha, ha, ha. 13 THE COURT: Okay, so then I need to decide 14 number four. Right? 15 MR. N. JOLLY: That really is something that 16 would depend on how they asked the question. 17 THE COURT: I am not even getting this. 18 MR. N. JOLLY: Well you see the thing is that 19 there's one lawyer in particular who isn't here and he 20 wanted to know how things worked at our office and I 21 told him that was none of his business: Who is the time 22 keeper, I asked him to tell us what he meant by time 23 keeper -- I mean the point is that the attorney is 24 keeping the time. If he wants names of other people at 25 my office it's just privileged that's all. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 111 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: I am going to grant -- I mean or 2 talk to me. 3 MR. SMITH: Your Honor, the issue with regard 4 to the time keeper is that, uh, when we are provided, if 5 we are provided with time sheets or background sheets 6 with regard to the claim for attorneys fees, uh, one of 7 the issues will be well who figured out or who kept 8 track of the time that's recorded here. 9 THE COURT: Like a paralegal's time or what? 10 MR. SMITH: We have not been presented with 11 any time records so far, but yes it would be like if Mr. 12 Jolly has an entry for 50 hours for researching 13 something, all right, who kept track of that 50 hours to 14 figure out whether it's reasonable and necessary? 15 THE COURT: Well I assume he would. 16 MR. N. JOLLY: That's right. 17 THE COURT: That's how I did it when I was 18 still practicing law, I mean, I kept my own track of my 19 own hours. 20 MR. SMITH: I would assume so, Your Honor, but 21 we don't know that because we don't have the records. 22 THE COURT: Well you don't have them yet. 23 MR. SMITH: No. I understand and that's -- 24 that would be the question. It may be in the records. 25 It may list who the time keeper is. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 112 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: I am just going to carry that 2 over. 3 MR. SMITH: Okay. 4 THE COURT: Okay number five. 5 MR. SMITH: There was an issue with regard to, 6 uh, the subject schools are pretty good. Uh, somebody 7 raised an objection with regard to that language. I 8 don't remember who it was. 9 MR. GRIFFITH: The -- 10 MR. SMITH: It was with reference to the 11 language pretty good that they had an issue with it. 12 Uh, as far as asking questions about well did this work, 13 was it okay -- 14 THE COURT: Fact witnesses cannot speculate of 15 expert subject matters, and I am not going to allow that 16 so I am going to grant that. Number six. 17 MR. GRIFFITH: Can you grant modified just as 18 to expert subject matter because there's going to be a 19 lot of -- if we ask somebody like a A/C tech about it 20 being hot or cold and they say no. 21 THE COURT: That's not expert material. 22 MR. GRIFFITH: Right but I think if we ask 23 them -- 24 THE COURT: Give me some credit here. I mean, 25 if the question is is it hot or cold and they are asking Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 113 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 a lay witness that, that's not expert testimony. And I 2 can overrule or sustain an objection there. I am not -- 3 I -- and I don't think anybody is going to go out there 4 and argue well all the, you know, all the students and 5 principles and teachers said that everything was pretty 6 good so then obviously there's nothing wrong with this 7 school. I mean, is that what you all are referring to 8 here or what? That's not expert opinion and, you know, 9 to confuse the jury by asking one of the principles or 10 administrators when you went out to the school what did 11 you think about it? Oh well I thought the school was 12 pretty good or I thought it was, you know, decent. 13 Well, what are y'all referring to here? 14 MR. GRIFFITH: All we want to make sure is 15 that if we ask somebody did you have any problems with 16 something particular that it won't be construed as 17 expert testimony. The people can make observations 18 about whether the wall is sweating or not. 19 THE COURT: Yeah, I mean, -- 20 MR. GRIFFITH: -- or the ceiling tiles -- 21 THE COURT: -- if you have an administrator on 22 the stand and you are asking him questions about the 23 air-conditioning, was it cool, was it hot, it was fine. 24 Well I am going to allow that. You don't need an expert 25 to say is it hot or cold or reasonably cool or whatever. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 114 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 I mean, no. I mean that -- some of these motions in 2 limine. 3 MR. N. JOLLY: Sorry, Your Honor. 4 THE COURT: Yeah ha, ha I mean. I am going to 5 grant that and I am going to keep a close eye on that 6 and like I tell you an administrator, school principal, 7 teacher, even a student can tell you oh we thought it 8 was pretty cool in here. I know you are not going to 9 have students testifying, I don't think, but I mean we 10 all know what is expert testimony and what is not. So, 11 anyway. 12 Number 6, personal income of Plaintiff's 13 experts and income or revenue of Plaintiff's expert or 14 attorney, I mean, that's granted. I don't even think 15 that you would even object to that would you? 16 MR. SMITH: Our only issue with it was whether 17 it addressed the, uh, income or revenue of the experts 18 with regard to the work on this -- 19 THE COURT: No, of course you can ask them how 20 much are you getting paid. 21 MR. N. JOLLY: We don't object to that. 22 THE COURT: That's different than asking can I 23 go to your house in Tahiti or don't you have 20 houses 24 across the United States or across the world -- well not 25 the United States but all over the world or, you know, Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 115 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 how much do you make, what was your income last year. I 2 mean, I think that's irrelevant, but you can certainly 3 ask questions about how much money are you getting paid 4 for this, are you getting paid 300 dollars an hour, 250 5 dollars an hour, I mean that's -- you all already know 6 that, I don't have to tell you. Okay, number seven that 7 should be granted. I certainly don't think anybody has 8 an issue with that. Does anybody have an issue with 9 number 7? 10 MR. SMITH: Somebody did. I don't remember 11 who. 12 THE COURT: Well it's not happening. That's 13 granted. The source of any funds used to design or 14 construct -- 15 MR. N. JOLLY: That was agreed. 16 THE COURT: 9? 17 MR. N. JOLLY: 9 is disputed. 18 MR. GEALY: Your Honor, there are MET expert 19 that testified in another lawsuit which I was involved. 20 THE COURT: Which expert? 21 MR. GEALY: Edgar Stacy, and he's their 22 air-conditioning expert, and he testified in that case 23 essentially to the exact opposite of what he's 24 testifying in this case. At his deposition he 25 acknowledged that and in fact changed his testimony in Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 116 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 this case on some of those issues that he had testified 2 to opposite in another case. Now, he's already changed 3 his opinion to now be consistent with it so I am not 4 sure that's going to be an issue but I just don't want 5 to get caught up in some argument, uh, that there's a 6 limine on that when he's already acknowledged it, he's 7 already changed his opinion, uh, under sworn testimony. 8 THE COURT: Why would you bring in his 9 testimony from another school? 10 MR. GEALY: Because he testified the exact 11 opposite in this case and then when confronted with 12 this -- 13 THE COURT: Regarding his expert opinion? 14 MR. GEALY: Right and when confronted with his 15 prior testimony he changed his opinion in this case. 16 MR. N. JOLLY: This deals with establishing 17 that the other building is substantially similar to 18 Grulla Elementary before you can do that. That's all it 19 addresses. 20 MR. GEALY: These were not issues that were 21 related just to the building, they were relate to -- 22 THE COURT: You are allowed to -- you have 23 wide latitude in cross-examination, so I am going to 24 deny that one. Okay number ten. 25 MR. SMITH: Number ten was agreed in Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 117 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 reciprocal for both parties. 2 THE COURT: Okay. Number 11. 3 MR. SMITH: Was agreed, 12 was agreed, Your 4 Honor. 5 THE COURT: 13? 6 MR. SMITH: Somebody had an issue with 13. 7 MR. B. LOPEZ: Brian Lopez for Limon Masonry. 8 I want to make sure that we are able to talk about not 9 necessarily using the words fulfilling their mission 10 statement, but that the school is open and operational, 11 kids have been able to go there. I want to make sure 12 that we are able to establish that through the 13 testimony. 14 THE COURT: But that doesn't have anything to 15 do with construction defects. I mean, we could have -- 16 this courtroom could be full of termites and we are 17 still conducting courtroom business and that doesn't 18 mean that that should be given any weight to whether or 19 not there's a, you know, a defect here or not or that 20 the guys that came and did the pest control did it right 21 or did it wrong. I am going to grant number 13. I 22 think that goes without saying. This is a small 23 community, people know that people are going to school, 24 and that people are going to Grulla Elementary. No. I 25 mean, I am going to grant their, uh, request and you are Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 118 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 not going to talk about it because people already know 2 and I am not going to let you confuse them by saying 3 well yeah the school is -- everybody is going to school 4 so that must mean there's nothing wrong. I don't know, 5 I mean, I don't think that it makes any sense to be able 6 to go into that or talk about that. 7 MR. OLIVEIRA: Your Honor, I think where it 8 comes in is on damages. I mean, you are talking about, 9 uh, is the school, uh, still fit to be used. Uh, I 10 think those are factors that a jury can, can hear and so 11 I think it is relevant, I think it should come in. 12 THE COURT: Well I don't. So y'all, you 13 know -- I disagree. Number 14. 14 MR. SMITH: Agreed. 15 THE COURT: 15? 16 MR. SMITH: Number 15 somebody had an issue 17 with that. 18 MR. N. JOLLY: Limon Masonry. That was Brian 19 Lopez' objection about Limon Masonry. 20 MR. GRIFFITH: Your Honor, I actually joined 21 in it too and I think the concern was that it crossed on 22 Plaintiff's expert to be pretty wide-ranging. We are 23 not going to say the words find millions in damages, but 24 I want to talk about what they do, their methodology. 25 THE COURT: You will be allowed to ask them Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 119 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 isn't it true that you always get hired by the 2 Plaintiff's side. 3 MR. GRIFFITH: Those are the questions. 4 THE COURT: Or 90 percent of your work is 5 from -- because I practiced law on both sides and that's 6 par for the course. If you are going to hire an expert 7 that always testifies for the defense, like some doctors 8 that we had before in the Valley, and other times you 9 know I was on the Plaintiff's side and when, you know, 10 hired people that generally, you know, saw things our 11 way, if you will, I don't know if that should be on the 12 record Ramiro or not, that was a long time ago. But, 13 nevertheless I will allow you to go into that. You will 14 be allowed to cross examine the experts fully about 15 isn't it true that you always get hired by one side or 16 the other. They can do it to the defense experts and 17 the defense lawyers can do it to the Plaintiff's 18 experts. You can go into that. I don't know if you can 19 say and you always find millions of dollars in damages. 20 I mean, I think -- well let me think. 21 MR. GRIFFITH: They always find damages and 22 they are always going to say to our experts well you 23 never find damages. 24 THE COURT: Well true. 25 MR. N. JOLLY: That's not true. There's been Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 120 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 buildings that these guys have looked at and they didn't 2 find anything wrong, so to sit there and say that, it's 3 not true. 4 MR. GRIFFITH: Well if it's not supported by 5 the evidence. 6 THE COURT: Then say no it's not true. 7 MR. N. JOLLY: I'm sorry. 8 THE COURT: Then the expert will say no it's 9 not true. 10 MR. N. JOLLY: Yeah. Right. That's true. Or 11 say not true. 12 THE COURT: Yes it's true that -- well okay, 13 we are all getting off the subject here. I am going to 14 deny number 15 and you can -- you have wide latitude in 15 your cross-examination on both sides. 16 MR. GRIFFITH: Thank you, Your Honor. 17 THE COURT: Number 16. 18 MR. SMITH: I believe 16, 17 and 18 are 19 agreed. On 19 there was an issue raised on that. 20 THE COURT: Is there leaks at all campuses? I 21 mean is that a fact? 22 MR. GRIFFITH: Actually it is true with regard 23 to air. Air comes and goes out of buildings everywhere. 24 Plumbing leaks, water leaks, no. So I mean it's just so 25 vague it's kind of hard to make a motion in limine if Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 121 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 there are leaks in the building. 2 THE COURT: I am going to grant the 3 Plaintiff's request. You are not going to go around 4 saying there's leaks at all campuses, no. Okay number 5 20. 6 MR. SMITH: There was an issue with that, 7 uh -- 8 THE COURT: Why would you bring that up? 9 MR. GRIFFITH: The only reason this one came 10 up was because of the issue of failure to mitigate. I 11 mean, obviously the Plaintiff has obligation to mitigate 12 and this seemed to tread into that area. Plan or does 13 not plan to make repairs, well they have a duty to 14 mitigate so to the extent that's an issue on the 15 attempted limine to talk about it. They need to repair 16 as they go also. 17 THE COURT: Well, I mean, I think that depends 18 on the kind of repair. If it's just a plumbing leak, of 19 course they have -- they should, you know, they have a 20 responsibility to mitigate that, I mean, they -- 21 MR. GRIFFITH: Well if they have -- 22 THE COURT: If they have like the, I mean, if 23 the roof is caving in, I mean -- 24 MR. GRIFFITH: Agreed but for example the 25 chiller goes down and they are not fixing it because Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 122 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 they want to replace it with another chiller and then 2 they run the building with one chiller for a year. 3 That's all their decision, and that's their failure to 4 mitigate. They could have fixed or replaced and they 5 chose not to. Those are elements that are going to go 6 into the case. 7 THE COURT: Well but that's not exactly what 8 number 20 says. 9 MR. GRIFFITH: True and that's why I wasn't 10 really sure, I mean it doesn't say we cannot bring their 11 failure to mitigate. 12 THE COURT: I think Mr. Jolly is talking about 13 the future. If they get a recovery are they going to 14 make the repairs or are they required to make the 15 repairs, and I don't think you should go into that, so I 16 am going to grant number 20. 17 MR. GRIFFITH: If they made a recovery yeah we 18 would agree. 19 THE COURT: But, you know, if it's little 20 things, you know, we'll see. That's not what number 20 21 says. Okay, number 21. 22 MR. SMITH: 21, Your Honor, the issue with 23 that was, uh, their requirement or duty to continue to 24 maintain the facilities and the machinery and 25 specifically for example the H.V.A.C. system in Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 123 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 accordance with manufacturer's, uh, information on it, 2 and like that. Uh, there is going to be an issue as to 3 whether the school district conducted proper maintenance 4 or conducted the required maintenance and repairs and 5 they were questioned with regard to, uh, whether they 6 went outside of the internal maintenance department to 7 obtain bids or request for proposals, uh, with regard to 8 repairs that they are claiming in this lawsuit. I 9 believe that, uh, whether -- what their history was and 10 how many times they went and obtained any bids or 11 request for proposals is certainly as relevant as how 12 many internal work orders did you have and then -- 13 within the school district to do the school as well. 14 THE COURT: Mr. Jolly? 15 MR. N. JOLLY: I am confused. 16 THE COURT: I am too. Because I mean for you 17 to have -- I mean, I presume there was discovery 18 exchanged whereby you were given some information about 19 what repairs were done on each specific item that they 20 are claiming is defective or not designed properly or 21 malfunctioning or whatever. 22 MR. N. JOLLY: I will withdraw that one. 23 How's that? 24 THE COURT: Okay. I mean, you did exchange 25 discovery in that regard. Right? Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 124 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. SMITH: We did, Your Honor, and we have 2 been provided with thousands and thousands of records 3 regarding maintenance, repairs -- 4 THE COURT: Okay. He's withdrawing that one 5 anyway. Okay, number 22 that any other building or the 6 subject buildings -- 7 MR. SMITH: We are in agreement. 8 THE COURT: Okay number 23? 9 MR. SMITH: I didn't have a problem with that 10 but somebody did. 11 THE COURT: Did anyone have an issue with 12 that, 23? Okay that's granted. Number 24. Is that 13 agreed or not? 14 MR. SMITH: That was not. There's going to be 15 an issue as to whether or not any certain employees or 16 employees of the school district requested, uh, repairs 17 because the repairs -- the request for repairs, 18 according to the testimony, uh, is an internal process 19 where it comes from -- the maintenance department is 20 over here in part of the school district as a whole, and 21 the school is the one they generate a work order or work 22 request or contract request, uh, from the school 23 district and it goes out to the maintenance department 24 and then goes out. So, there's going to be definitely 25 an issue as to whether or not the school itself has Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 125 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 issued or requested any repairs. 2 THE COURT: But like requested from Descon or 3 from any subs or from whoever? 4 MR. SMITH: Well we asked and addressed it 5 with regard to Descon or any subs and, and, all that was 6 a separate issue, but even requesting it internally. 7 MR. GRIFFITH: Your Honor, really this is the 8 failure to mitigate. That's the concern we have with 9 all these repairs. They say we can't discuss it. That 10 keeps us from discussing one of our affirmative defenses 11 which is their failure to mitigate. They have an 12 obligation and duty to mitigate. As long as we can 13 bring up failure to mitigate issues, then we have no 14 problem with any of this. 15 THE COURT: Uh-huh. 16 MR. GRIFFITH: With the caveat that we can 17 discuss failure to mitigate to the extent it's 18 applicable. 19 THE COURT: Mr. Jolly? 20 MR. N. JOLLY: I'll withdraw that. 21 MR. GRIFFITH: That covers 23 true 27 as long 22 as we can discuss failure to mitigate -- 23 MR. N. JOLLY: No, we disagree that emergency 24 doesn't need to be declared on number 25, we disagree. 25 THE COURT: Okay, number 25 I mean y'all -- Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 126 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 y'all are gonna argue that -- 2 MR. SMITH: One of their experts opines that 3 it's a life safety issue and there will be an issue and 4 I'm sure testimony with regard to what the life safety 5 issue is and whether an emergency has been declared. 6 MR. N. JOLLY: The life safety issue was 7 solved with rerouting the buses and putting up some 8 "caution don't pass this line" tape. 9 THE COURT: I am going to grant number 25. 10 MR. B. LOPEZ: May I chime in quickly on that 11 one? The one issue on the life safety is that he 12 actually says quote "it is my obligation to inform you 13 that I have observed defects that in my professional 14 opinion pose a threat of serious injury." Those are his 15 words. 16 THE COURT: Right. 17 MR. B. LOPEZ: So certainly that needs to go 18 towards an emergency. We believe that we have the -- 19 THE COURT: He just said it had been resolved. 20 MR. B. LOPEZ: I think we disagree as to 21 whether or not it had been resolved. 22 THE COURT: No, that it was resolved by 23 someone going in there and taking other measures and -- 24 MR. B. LOPEZ: So the measures with the 25 possibility of the walls falling down has been resolved. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 127 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: That's what he just said. Didn't 2 you just say that? 3 MR. N. JOLLY: The errors -- 4 THE COURT: I mean he didn't specify which 5 ones. 6 MR. N. JOLLY: The areas were cordoned off. 7 MR. N. JOLLY: The condition still exists. 8 THE COURT: He's saying the safety measures 9 that they took was, I guess, keeping kids out of that 10 area? 11 MR. N. JOLLY: Right. 12 MR. B. LOPEZ: We are not talking about the 13 retaining walls, we are talking about the actual walls 14 of the school. You are saying there are no kids that 15 are going there by the school -- by the walls of the 16 school. 17 MR. N. JOLLY: The areas of concern have been 18 cordoned off. 19 MR. B. LOPEZ: Okay. 20 THE COURT: Okay. Number 26. 21 MR. SMITH: I think that's agreed. 22 THE COURT: Number 27. 23 MR. SMITH: 27 relates to the same issues on 24 mitigation and whether they maintain. We believe that 25 we should be allowed to go into the question or the Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 128 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 issue of mitigation since that's one of our defenses and 2 whether they complied with their obligation to maintain 3 their own equipment. 4 MR. N. JOLLY: The problem with this is that 5 they try to get the janitor, uh, to say that if there 6 was anything wrong with the structural masonry he could 7 fix it. The janitor resolved any problems. 8 THE COURT: We'll carry that over, we'll carry 9 that over, and depending on who the witness is, and 10 y'all can approach the bench on that. 11 MR. N. JOLLY: Thank you. 12 THE COURT: Okay, number 28. 13 MR. SMITH: 28 somebody raised a -- oh yeah. 14 MR. GRIFFITH: Your Honor -- 15 MR. N. JOLLY: We'll withdraw that one. 28 is 16 withdrawn. 17 THE COURT: Number 29? 18 MR. N. JOLLY: 29 agreed. 19 MR. SMITH: Agreed. 20 THE COURT: 30? 21 MR. SMITH: 30 is the same as the prior one 22 that you addressed regarding emergency conditions. 23 MR. N. JOLLY: That's repetitive isn't it? 24 MR. SMITH: Yes. 25 MR. N. JOLLY: Withdrawn. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 129 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. SMITH: 31 -- 2 THE COURT: Is 31 agreed or not? 3 MR. SMITH: It was not agreed. 4 MR. GRIFFITH: It's not agreed. It goes to 5 argument. They can't limine out -- I guess the caviat 6 is if we can't say there's no such thing as a perfect 7 building then we have to acknowledge that there are -- 8 all buildings are perfect? I mean it doesn't make any 9 sense. I mean to me that's just not really the subject 10 for motion in limine, it's argument. 11 MR. N. JOLLY: Carry that one over, Your 12 Honor. 13 MR. GRIFFITH: Truly you I can not say there's 14 such a thing as a perfect building. No one can say 15 that. 16 THE COURT: No one can say that there's such a 17 thing as a perfect building. 18 MR. GRIFFITH: Right so why am I liminied from 19 say there's no such thing. 20 THE COURT: Because it's kind of a matter of 21 perception, right? 22 MR. GRIFFITH: Yeah. 23 THE COURT: Yeah, let's just carry that over 24 and see how it applies here. Number 32. 25 MR. SMITH: That wasn't agreed to. I don't Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 130 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 remember what the issue was or who had the issue. I 2 believe that it goes over to the same ideas of safe 3 environment and the emergency -- 4 THE COURT: I guess we can carry that over 5 and-- 6 MR. SMITH: Okay. 7 THE COURT: -- and see what you are going to 8 do with that. 9 MR. SMITH: Uh, 33, I think the issue there 10 was, uh, that there were -- I don't believe that anybody 11 is going to say until the lawyers were hired, but there 12 will be a, uh, issue as to when the problems arose was 13 during that time period. 14 THE COURT: Well I am going to grant that. I 15 am going to grant number 33. 16 MR. SMITH: Okay, number 34 Plaintiff has the 17 medical personnel to maintain the subject schools. Uh, 18 with regard to that, uh, the, the issue is not 19 necessarily that they have adequate personnel to 20 maintain the schools, but that if they passed an 21 adequate number of people to this particular school, 22 that they had issues with maintenance and all that they 23 have by testimony the phones and the personnel to do it, 24 but they didn't do it. 25 MR. N. JOLLY: There's no maintenance expert Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 131 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 designated. 2 THE COURT: I am going to grant number 34. 3 Number 35? Is that granted or not? 4 MR. SMITH: That was agreed. 36 was agreed. 5 37 agreed. 38 -- actually 38, 39, 40, 41, 42, were all 6 agreed. 43 was agreed. And then somebody had an issue 7 on 44. 8 MR. GRIFFITH: No. 9 THE COURT: Mr. Jolly, what are you saying 10 there? I mean, I don't understand that one. 11 MR. N. JOLLY: We just had problems with, uh, 12 attorneys asking fact witnesses basically to answer a 13 jury charge question. 14 THE COURT: Well they know they -- I mean, you 15 can't ask a lay witness anything that's required from an 16 expert witness. I mean, but then there could be 17 objections, I mean, that the person is not qualified to 18 make such a -- let's just carry that one over and see 19 how it applies. 20 MR. SMITH: Okay. 21 THE COURT: Number 45. 22 MR. SMITH: I think we agreed to 45, 46, 47, 23 both 47s. 24 THE COURT: Ha, ha. 47 and 47 A. 25 MR. SMITH: 48. 48, 49, 50, 51 and 52 I Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 132 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 believe were all agreed to. Number 53 -- 2 THE COURT: We are not going to talk about 3 insurance. So that should be granted and that's 4 granted. 5 MR. SMITH: Number 54 was agreed. Number 6 55 -- 7 MR. GEALY: Your Honor, let me address number 8 55. This is Grant Gealy. This is on the HVAC air 9 conditioning system. If what we are talking about is 10 the question to the head maintenance person from La 11 Grulla who is in charge of maintaining the HVAC system, 12 if he has any problems with it that he's been unable to 13 resolve and getting an answer. That's all I want to 14 ask. I am not going to ask him about, you know, design 15 issues, but I do want to be able to ask him about his 16 experience in being the head maintenance guy of the 17 H.V.A.C. system 18 THE COURT: Would there be a problem with that 19 question? I don't think that's an expert opinion. 20 MR. N. JOLLY: Well, provided it stops right 21 there because it typically doesn't. 22 THE COURT: Yeah, that's where it would stop. 23 MR. GEALY: The reason I say that is because 24 it does say do you have a problem. 25 THE COURT: Let's carry it over. I am not Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 133 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 going to have a problem with that question of a 2 maintenance person, you know, as long as you be careful 3 where you are going with that, I mean, obviously they 4 have no expertise. 5 MR. GEALY: Right and I don't intend to ask 6 him design questions. 7 THE COURT: You can ask him questions about 8 his experience with the unit or whatever. Okay, number 9 56. 10 MR. SMITH: 56, 57, 58, 59, 60 were agreed to. 11 THE COURT: Okay. 12 MR. N. JOLLY: 61 is withdrawn. 13 THE COURT: Okay. 14 MR. SMITH: 62. 15 MR. N. JOLLY: Limon Masonry. 16 MR. B. LOPEZ: On 62, Judge, that goes back to 17 the latitude you talked about on cross examination. 18 Questioning these experts to talk about that this is 19 their line of work to go from school to school and find 20 these problems. It's not unique just to this one. 21 MR. N. JOLLY: This is for charges for other 22 schools. 23 THE COURT: I am not going to allow that. I 24 grant number 62. I already said you could ask them 25 general questions in cross-examination about do you Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 134 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 always get hired -- isn't it true you always get hired 2 by the plaintiffs, and you always find something wrong 3 with the schools, and fine. But you can't go into -- 4 you went to Roma I.S.D. and you found this problem with 5 Roma aI.S.D., and then you went to a school in San 6 Antonio South or whatever and you did the same thing and 7 you got paid so much money for it, no. 8 MR. B. LOPEZ: Not relevant. 9 THE COURT: No. I don't think so. 10 MR. B. LOPEZ: Okay. 11 THE COURT: Number 63. 12 MR. N. JOLLY: That's withdrawn. Redundant. 13 THE COURT: 64? 14 MR. SMITH: We agreed. 15 THE COURT: 65? 16 MR. SMITH: 65 actually 65 and 66 goes again 17 to the mitigation issue and, uh, we believe that we 18 should be allowed to go into, uh, the maintenance 19 history and all as to mitigation of damages. 20 THE COURT: I don't think the Plaintiffs have 21 a problem with the mitigation issue per se, do you 22 gentlemen? 23 MR. N. JOLLY: No. No. 24 THE COURT: I mean nobody wants this case to 25 come back, no matter what. So I mean we all know what Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 135 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 the law is and you get mitigation. If you pled it, if 2 it's relevant, it comes in. 3 MR. N. JOLLY: Yes, ma'am. 4 MR. SMITH: I believe that was the only issue 5 that was raised with those two. 6 THE COURT: So I mean 65 and 66 I guess we 7 would carry over. 8 MR. SMITH: Okay. 9 THE COURT: Because mitigation does come in. 10 MR. SMITH: 67 we agreed. 68 there was an 11 issue of that about some prior lawsuit or -- 12 THE COURT: That's granted, that's not 13 relevant. 14 MR. SMITH: Okay. 15 THE COURT: Number 69? 16 MR. SMITH: 69 was agreed, 70 and 71 were 17 agreed. 72, uh, was not agreed. 18 MR. GRIFFITH: Your Honor, the only reason I 19 was concerned about 72, obviously an expert cannot 20 testify to something which they are not qualified. I 21 don't even know why that would be the subject of a 22 motion in limine. 23 MR. N. JOLLY: That's withdrawn. 24 THE COURT: Okay. 25 MR. GRIFFITH: Your Honor, since we are Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 136 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 arguing about experts. We have that order excluding 2 testimony from non-design professionals as to design 3 expertise. Basically what we talked about this morning 4 before we realized we had all the motions in limine. 5 Uh, I don't know if counsel has a problem with that if 6 it works both ways. If the do non-design experts cannot 7 testify about design issues only the design experts can, 8 and I know from taking their -- the Plaintiff's experts 9 depositions the non-design experts all said they weren't 10 going to talk about design so I don't think there's 11 really a problem to exclude that. 12 MR. B. LOPEZ: Your Honor, I have one 13 clarification on the motion in limine. Number 68 it 14 does mention the Plaintiff. I just want to make sure 15 that that goes to all parties. In other words what's 16 good for the Plaintiff is also good for the Defendants 17 as well. 18 THE COURT: Exactly. 19 MR. B. LOPEZ: Thank you, Your Honor. 20 MR. N. JOLLY: All these limine orders apply 21 to every party in the case. Right? 22 THE COURT: Right. 23 MR. N. JOLLY: Thank you, Your Honor. 24 MR. GRIFFITH: That's even better. 25 THE COURT: So, with those last statements Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 137 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 that Mr. Griffith just made what is your position on 2 that, Mr. Jolly? I mean, are you in agreement that the 3 non-design experts are not going to talk about design 4 defects? 5 MR. N. JOLLY: No. There are experts who will 6 testify to the practical effect of the design defect on 7 the building system and what he's trying to do is he's 8 trying to exclude Mr. Holder's testimony about the 9 effect of the air-conditioning design and we are not 10 going to agree to that. The man is not a professional 11 engineer. He's not the one providing the opinion about 12 what is defective with the design, but he installed 13 air-conditioning systems and evaluated those systems for 14 over 50 years. So, he can opine on what the effect of 15 the design has on the practical -- on the system. 16 MR. GRIFFITH: Your Honor, the concern I have 17 is as you knokw now the certificate of merit is required 18 just like with doctors now, to sue engineers and 19 architects you actually have to have an architect or 20 engineer in the field make those opinions that they did 21 something wrong. That's the way the State legislature 22 has required the proof to be, and so my concern is that 23 you can't just get a person that is an HVAC contractor 24 or person that does exactimate programs and have them 25 opine that the design professionals did or did not do Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 138 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 something properly. I mean, that clearly is not 2 allowed. It would be like having a lay person testify a 3 doctor did something wrong. That's not allowed. 4 MR. N. JOLLY: And -- I'm sorry. 5 MR. GRIFFITH: And so, so my concern is that 6 before one of the design professionals -- non-design 7 professionals -- 8 THE COURT: Can we get like into specifics 9 here? Because you are talking in a very broad manner. 10 MR. GRIFFITH: Uh-huh. 11 THE COURT: Is there a motion that you have 12 before the Court -- 13 MR. GRIFFITH: Yes. 14 THE COURT: -- where you are trying to strike 15 one of his experts based on these statements that you 16 are making that you've gotta design -- a non-design 17 expert talking about a design defect. Is there a 18 specific expert that you are seeking to strike so that 19 we can just go ahead and argue that motion. 20 MR. GRIFFITH: I am not striking, I am 21 limiting the testimony. Bill Holder has a lot of things 22 he can say to this jury that are completely valid for 23 him to say. He just can't get into design perameters 24 and even he acknowledged that. That's my concern. I 25 don't know what they are going to testify to -- Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 139 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Well then why -- 2 MR. GRIFFITH: We want to do a motion in 3 limine and before they bring up design issues we 4 approach. That might be better than just excluding it. 5 THE COURT: Do you have an issue with that 6 procedure? 7 MR. N. JOLLY: I would suggest carrying it 8 because -- 9 THE COURT: Yeah, let's carry it. 10 MR. N. JOLLY: When you hear the man's 11 testimony you are going to immediately -- 12 THE COURT: We'll carry it. When it gets to 13 that point you can approach the bench. 14 MR. GRIFFITH: As long as before they solicit 15 any design -- 16 THE COURT: Right. 17 MR. GRIFFITH: -- expertise from a non-design 18 professional, we have a chance to discuss it with you. 19 THE COURT: Right, we'll approach the bench 20 and if we have to take it outside the presence of the 21 jury, we'll do that. Okay. 22 MR. GRIFFITH: Thank you, Your Honor. 23 THE COURT: Okay, so that was the Plaintiff's 24 motion in limine. Correct? 25 MR. SMITH: Yes, Your Honor. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 140 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Now, we have Descon's. Let me 2 look at that one. And then before you leave we need to 3 talk about the trial, how long y'all think it's going to 4 take. And I am not going to be taking breaks just so 5 you know. Even though I have Court the Duval County, or 6 Jim Hogg County, I will will get a visiting Judge to go 7 to those counties. I am not going to break in between 8 the trial, I am not going to do that, and I think 9 somebody said it was going to take three weeks. No it's 10 not. We'll be here at 8:00 o'clock in the morning and 11 if we have to go through 6, 7 or 8:00 o'clock at night, 12 we are going to do that. If we have to work on the 13 weekend, we are going to do that. We are not going to 14 take three weeks to try this case. So FYI, if you have 15 vacation plans or whatever, sorry. We are going to try 16 this case until we finish it. Just so you know. So you 17 might as well get cosy here here. Get a hotel room 18 because you are going to spend a lot of time in Starr 19 County and you are going to do it in an efficient 20 manner. If we have to start at 7 a.m., and I can get 21 the jury here at 7 am, that's what we'll do. So I hope 22 you are all early risers. 23 MR. OLIVEIRA: Can we have an agreement, uh, 24 that, uh, I guess by 5:00 p.m., uh, each day that, uh, 25 whoever is presenting witnesses will agree to tell you Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 141 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 who the witnesses are? 2 THE COURT: Absolutely. You are going to do 3 that. 4 MR. OLIVEIRA: Because that will expedite 5 things a lot. 6 THE COURT: Yes, because you are going to, you 7 know, you are not going to be trying, you know, 8 preparing for cases that are, I mean, for witnesses that 9 are not even going to be called until three days later, 10 you are going to prepare for the witnesses that are 11 going to be called the next day. So, yes you all need 12 to exchange, you know, witness list and, you know, you 13 don't have to strategize -- give away your whole 14 strategy, but you do have to tell each side what 15 witnesses you are going to call the next day so they can 16 prepare. I mean, that's fair game here. Come on. 17 MR. OLIVEIRA: It does expedite things. I 18 guess if we do start on Monday, assuming that we get to 19 any witnesses on that Monday after voir dire, we just 20 could ask that by Friday afternoon they tell us who 21 their first one or two witnesses will be. 22 THE COURT: Okay. They are going to tell you 23 what their first four witnesses are going to be and then 24 y'all are going to do the same. 25 MR. OLIVEIRA: Okay. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 142 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Are we starting at 9 or at 1:30 2 for jury selection? 3 ASSISTANT COORDINATOR: Jury is 1:30. 4 MR. OLIVEIRA: We won't get into my witnesses 5 on Monday then. 6 THE COURT: Probably not. And you are not 7 going to take hours upon hours on voir dire either. 8 MR. OLIVEIRA: How much time will you give us 9 on voir dire? 10 THE COURT: I mean you do have to ask them 11 obviously a lot of questions, do you have kids in 12 school, are they teachers, are they affiliated with the 13 school in any way shape and form. I understand you have 14 to get into that in voir dire and voir dire the jury 15 completely. I think we got some -- I hope we brought 16 some extra -- Eduina. I hope we gotta lot of extra 17 jurors because last time we almost didn't make it. 18 ASSISTANT COORDINATOR: Yes, ma'am. 19 THE COURT: Did we get extra jurors called? 20 ASSISTANT COORDINATOR: We requested 550. 21 THE COURT: How much do we usually request? 22 ASSISTANT COORDINATOR: 400. 23 THE COURT: 400. So we have 550 coming in. I 24 probably should have gotten more. Hopefully that will 25 be enough if not I'll send the sheriff to go bring them Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 143 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 in. 2 MR. GRIFFITH: We haven't talked about -- you 3 are talking about equalizing strikes for side but would 4 it be like 12 per side? 5 THE COURT: We'll talk about that in a few 6 minutes at the end or we'll talk about it that morning 7 but I just want you all to make, you know, don't make 8 any assumptions that we are going to be breaking in the 9 middle of the trial because that just -- that's bad news 10 for both sides. I mean, people can -- people start 11 talking in front of the juries, they go to restaurants, 12 then somebody talks about it a little too loud, so then 13 they hear something. I don't go for that. I don't like 14 that. I mean we are going to try this case and we are 15 going to do it efficiently, and we are going to start 16 early in the morning, and we are going to work late in 17 the evenings, and I think the jury would probably 18 appreciate that anyway. I know most jurors do want to 19 work late because they don't want to be here for three 20 to four weeks. Then they are going to end up hating one 21 side or the other, and whoever is the hated one will be 22 in a lot of trouble. So, I mean y'all have to, you 23 know, you don't have to say the same thing five times 24 because if you do, I mean, you know, all of you have 25 tried a lot of cases, I don't have to tell you. We've Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 144 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 all been on the ends of zero verdicts and, you know, 52 2 million dollars verdicts, so we kind of already know 3 that. Nobody is -- 4 MR. GRIFFITH: We tried -- 5 THE COURT: I don't see any spring chickens in 6 the courtroom. 7 MR. GRIFFITH: We tried these cases before and 8 they typically take 3 weeks or 4 weeks just so you know, 9 you may want to consider paying the jury a little extra 10 because they are going to be there for -- I mean there 11 really is, even if we work 7 to 7 every day getting it 12 done in two weeks would be -- 13 THE COURT: I would hope you all would enter 14 into a lot of stipulations, and look at qualifications 15 and figure out do you really have to go through the 20 16 papers that your expert wrote because guess what? The 17 jury is not going to care. I am telling you. They are 18 not. So y'all think about how you are going to play 19 that because if you want to piss them off, well hey you 20 know that's your call, but I am not going to put up with 21 any redundant testimony. And I mean I am just telling 22 you now. 23 MR. GRIFFITH: I agree. We put on 23 24 witnesses on last week in Hidalgo County in three days. 25 THE COURT: 23 witnesses? Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 145 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. GRIFFITH: In three days. 2 THE COURT: Oh okay. Who was the Judge? 3 MR. GRIFFITH: Bobby Flores. And we did the 4 same thing, we started at 8 went to 6, 6:30. 5 THE COURT: And you finished the case? Or 6 what? In a week? 7 MR. GRIFFITH: On good Friday week. 8 THE COURT: Wow. 9 MR. GRIFFITH: We got the jury verdict back. 10 THE COURT: How long did it take? 11 MR. GRIFFITH: Monday to Thursday. 12 MR. GRIFFITH: It wasn't a construction case. 13 THE COURT: Oh. I thought it was a 14 construction case, wow. 15 MR. GRIFFITH: But 23 witnesses is a lot of 16 witnesses. 17 THE COURT: Yes 23 witnesses is a lot of 18 witnesses. 19 MR. GRIFFITH: It was construction related. 20 THE COURT: I mean just, you know, get to the 21 good stuff quick and I think the jury will appreciate 22 that, from both sides. Okay, let's get to Descon's 23 motion in limine. So, uh, number 1 let's talk about 24 what's agreed and let's start with what's agreed. 25 MR. N. JOLLY: That's agreed. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 146 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Number one is agreed. Number 2? 2 MR. N. JOLLY: Disagreed. 3 THE COURT: Okay what the hell does that mean? 4 (Laughter) 5 MR. SMITH: It's arguing, arguing the charge 6 that Descon wants you to answer this question no or 7 Limon wants you to answer this question this way or like 8 that trying to cut and dice the, uh, the charge or the 9 questions submitted, uh, as to particular, particular 10 parties. It's a comment on, on their evaluation of it, 11 Your Honor. 12 MR. N. JOLLY: Well we got the right to argue 13 that answering the breach of contract question is did 14 Descon breach its contract. 15 THE COURT: I am going to overrule number 2. 16 Number 3? 17 MR. N. JOLLY: That's disagreed. 18 THE COURT: Okay. Explain number 3 to me 19 please. 20 MR. SMITH: With regard to the idea of trying 21 to define what bias is, like that, and trying to create 22 a, uh, create a situation for the jury, uh, that doesn't 23 need to be addressed with regard to that. 24 THE COURT: Okay, give me an example of what 25 you are talking about because I am not getting it. And Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 147 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 I am not afraid to say that. I am just not. 2 MR. SMITH: I'll tell you what I'll just 3 withdraw it. Number 4. 4 THE COURT: Okay number 4. 5 MR. N. JOLLY: That's agreed. 6 THE COURT: Okay, number 5? 7 MR. N. JOLLY: Disagreed. 8 THE COURT: I'm sorry? 9 MR. N. JOLLY: Disagreed. 10 THE COURT: Five is disagree. 11 MR. SMITH: All 5 asks for is that an 12 opportunity be made to examine any exhibits before they 13 are presented or are brought into the courtroom to be 14 shown to the jury. 15 THE COURT: Why is that unreasonable? You can 16 bring them into the courtroom. 17 MR. N. JOLLY: You have to bring it into the 18 courtroom. 19 THE COURT: Yeah. 20 MR. SMITH: I mean bringing it in like 21 uncovered or whatever and that's all. 22 MR. N. JOLLY: I won't do that. That's not 23 the way we roll. 24 MR. SMITH: That's all. 25 MR. N. JOLLY: I won't do that, promise. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 148 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: So I am going to sustain it 2 insofar as don't anybody show any exhibits to the jury 3 until the other party has agreed or the Court has ruled 4 regarding that. Number 6. 5 MR. N. JOLLY: We agree with everything on 6 page 3, 6 through ten. 7 THE COURT: Okay. 8 MR. N. JOLLY: 11, 12 and 13 agreed. 9 THE COURT: Okay. 14? 10 MR. N. JOLLY: Disagree. 11 THE COURT: Isn't this kind of the same thing? 12 MR. N. JOLLY: We are not gonna pull any fast 13 ones. 14 MR. SMITH: Basically all we are asking is 15 that we get -- 16 THE COURT: I mean he's not going to have to 17 show them to you outside and say hey can I have your 18 permission, you know, to -- no. But yes he should not 19 show them to the jury until you've agreed or I've ruled 20 if there's an objection. 21 MR. SMITH: I agree, Your Honor, and I point 22 out that these are all couched for all parties. 23 THE COURT: Right. Exactly. I agree. So 24 it's all counsel not Defendant's counsel. It's opposing 25 counsel I guess without first allowing opposing counsel Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 149 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 to review the same outside the presence of the jury, 2 offering them before the Court and obtaining a ruling if 3 such is needed. So that will be sustained. 4 Number 15. 5 MR. N. JOLLY: Agreed. 16 is agreed. 17 is 6 agreed. 7 THE COURT: What about 18? Are you alleging 8 they withheld any evidence? 9 MR. N. JOLLY: Well, there's contracts that 10 are missing, file -- project files that are missing, you 11 know, it's going to probably likely come up but if you 12 want to carry that and see. 13 THE COURT: We'll carry that over and see what 14 happens. Number 19? 15 MR. N. JOLLY: Agreed. 20 is agreed. 21 is 16 agreed. 17 THE COURT: 22. 18 MR. N. JOLLY: 22, uh, I mean this is similar 19 to Mr. Gealy's, uh, issue about other lawsuits because 20 one of the masonry defects at this school is identical 21 to one at another school in Edinburg involving the same 22 mason. It may come up, it may not but -- 23 THE COURT: Carry it over. 24 MR. N. JOLLY: Okay. 25 THE COURT: 23. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 150 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. N. JOLLY: Agreed, 24 is agreed, 25 and 2 26. 3 THE COURT: 27. 4 MR. N. JOLLY: Obviously the school district 5 is entrusted with children. I am not going to bring up 6 financially challenged but, you know, they are entrusted 7 with children. The financially challenged -- 8 THE COURT: I would allow the first part but 9 not that it should prevail because it's financially 10 challenged or super poor or the most poor or whatever so 11 that will be sustained as modified. 12 MR. N. JOLLY: We agree with that. 13 THE COURT: Number 28. 14 MR. N. JOLLY: I disagree with that. 15 THE COURT: So do I. That's overruled. 29. 16 MR. N. JOLLY: We disagree with that one too. 17 Of course we are going to show exhibits first. 18 THE COURT: Yeah, I mean there's gotta be -- 19 that should be sustained. 20 MR. N. JOLLY: Yes, ma'am. 21 THE COURT: I am sustaining number 29. Number 22 30? 23 MR. N. JOLLY: Agreed. 31 is agreed and again 24 32 is agreed with all the parties except the mason. The 25 previous lawsuit. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 151 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. B. LOPEZ: For 32 representing mason, 2 that's exactly the same as Plaintiffs 68 which you 3 already ruled on and it's not in the same case. 4 Whatever Limon may have done in some other school has 5 nothing to do with what happened at La Grulla. 6 MR. N. JOLLY: It probably won't come up but 7 it might if they open the door for example. 8 THE COURT: I'll carry it over just in case 9 the door is opened. 10 MR. B. LOPEZ: Thank you, Your Honor. 11 THE COURT: I will make a ruling at that 12 point. 13 MR. B. LOPEZ: Thank you, Your Honor. 14 THE COURT: Number 33. 15 MR. N. JOLLY: That's disagreed. The problem 16 with the way it was written is that he might try to 17 exclude consulting experts that the retained testifying 18 experts are relying on like the estimator for example. 19 THE COURT: We'll carry that over. 34? 20 MR. N. JOLLY: This is the appraisal report 21 for the replacement cost appraisal of the property. 22 THE COURT: We'll carry that you over. 35? 23 MR. N. JOLLY: We agree. 24 THE COURT: 36? 25 MR. N. JOLLY: We disagree with 36. And this Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 152 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 is an important part of the case like this. 2 THE COURT: I am overruling number 36. 37? 3 MR. N. JOLLY: Agreed. 4 MR. B. LOPEZ: There is one issue on 37 for 5 Limon we have an issue with Descon's in the sense that 6 they agree on it. There's several exhibits that have 7 been submitted by Descon which include this and so we 8 just want to point that out. The expert report -- 9 THE COURT: Are you saying 36 or 37? 10 MR. B. LOPEZ: I'm sorry 37. Just one thing I 11 want to point out on 37 is just about those expert 12 reports. I agree with the statement but the reports for 13 some reason are in Descon's exhibit list. I don't 14 believe they should go back to the jury. 15 MR. SMITH: I don't disagree with that, Your 16 Honor, and I am not sure we went through -- and we 17 amended our exhibit list yesterday to try and take out 18 duplicatives and issues like that. I thought that had 19 been taken care of but perhaps not. 20 MR. B. LOPEZ: And it goes for everybody. But 21 Descon has it in theirs. 22 THE COURT: Right. 23 MR. N. JOLLY: There are things in the expert 24 report that they rely on: Photos, standards -- 25 THE COURT: We'll carry it over to see what Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 153 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 the specifities are when it comes up. Okay, 38. 2 MR. N. JOLLY: Agreed, 39 agreed, 40 agreed, 3 41, 42, 43, agreed with everybody except Limon if they 4 open the door on other lawsuits. 5 THE COURT: Okay. 6 MR. N. JOLLY: And then 44 agreed. And 45 we 7 disagree with that. Experts are allowed to talk to each 8 other. 9 THE COURT: Any response? (pause) Okay I am 10 going to overrule 45. 46? 11 MR. N. JOLLY: Uh, well I just don't want to 12 get put in a box where I can't make comments about 13 whether or not somebody was credible or truthful. 14 THE COURT: I mean you can argue, you just 15 can't say like I think he's a liar because I have 16 experiences with him and he's the biggest liar in town. 17 MR. N. JOLLY: Ha, ha, yeah I agree with that. 18 THE COURT: Ha, ha, ha so you've got to watch 19 that. 20 MR. SMITH: And that's what we are trying to 21 address. 22 THE COURT: But I am going to allow, I mean, 23 at argument you certainly you could testify, you know, 24 did you see that witness? He couldn't even look at you 25 when he was testifying, and that's kind of an attack on Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 154 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 their credibility, which I think every -- everybody can 2 argue about at a closing argument, I mean, so I am going 3 to overrule that but just be careful. I mean, it's not 4 going to be your personal opinion, it's going to be 5 based on what you saw at trial. Right? I mean not your 6 personal opinion, based on your personal dealings with 7 that person. 8 MR. SMITH: That's -- 47 goes to the personal 9 opinion versus what you just mentioned. 10 MR. N. JOLLY: We agree with 47. 11 THE COURT: Okay. 12 MR. N. JOLLY: 48, 49. 13 THE COURT: Okay. 14 MR. N. JOLLY: Disagree on 50. 15 THE COURT: I mean well 46 -- I'm sorry, I 16 said I overruled that. I'm sustaining it as modified. 17 You can talk about credibility at argument or when you 18 are cross-examining I guess your questions will be, uh, 19 certainly they'll be undertones about credibility, I'm 20 sure, but you can't say regarding your personal opinion 21 based on your personal dealings. So I guess that goes 22 hand in hand with 47 to some extent. So just be careful 23 there. Y'all know what the rules are. Okay 49 and 50. 24 MR. N. JOLLY: Agreed. 50 disagreed. 25 MR. SMITH: Your Honor, with regard to number Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 155 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 50 Mr. Salinas Jr., made -- 2 THE COURT: Well hold on. What happened to 3 49? 4 MR. SMITH: That was agreed. 5 THE COURT: Okay. Because there's no spaces 6 there. Okay number 50 what? 7 MR. SMITH: I'm sorry I didn't see that. 8 Number 50, Mr. Arcadio Salinas Jr., made a number of 9 opinions regarding the design of the school, the 10 placement of the school, the construction of the school, 11 all matters which he was not, uh, he didn't have a 12 background in, didn't have expertise in and has not been 13 designated as an expert witness with regard to any of 14 that. He, uh, rather freely and openly just kind of 15 blurts all these things out which was an abundance of 16 caution. We raised this in the motion in limine, uh, 17 that he's a fact witness and can certainly testify with 18 regard to -- 19 THE COURT: To what he saw. 20 MR. SMITH: -- the situations, it's just he's 21 just kind of blurts before anybody -- 22 THE COURT: Like what would he say? 23 MR. SMITH: He says he knew from day one that 24 this was a horrible school cause nobody would design a 25 school on the side of the hill. Uh, he said that the Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 156 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 design was totally inappropriate for South Texas. He 2 makes numerous -- two or three hours worth of statements 3 like that. 4 THE COURT: Mr. Jolly, did he do that? 5 MR. N. JOLLY: Judge, that's not my 6 recollection. He, he's asked and what other problems 7 are are you aware of and somebody asks what are the 8 problems you are aware of and he'll let you know. 9 THE COURT: Okay, well make sure he doesn't 10 blurt out any expert, you know, testimony that's within 11 the realm of an expert and not a lay person. I am going 12 to sustain that. Of course he can talk about his 13 personal observations. 14 MR. N. JOLLY: Right. 15 THE COURT: And issues and things of that 16 nature, regarding the construction or the alleged 17 defects, but he can't, you know, talk like he's an 18 expert. 19 MR. N. JOLLY: Yes, ma'am. 20 THE COURT: Because he's not. Okay what else? 21 MR. SMITH: That's it for Descon's motion, 22 Your Honor. 23 THE COURT: Who else has a motion in limine? 24 MR. B. LOPEZ: Limon has one, I think we 25 circulated it. I don't know if there are any Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 157 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 objections. 2 THE COURT: I don't know if I have that one. 3 ASSISTANT COORDINATOR: Which one. 4 THE COURT: Limon's. 5 MS. COOPERRIDER: It was e-Filed but I can 6 give you another paper copy if you would like one. 7 THE COURT: Okay. 8 MR. B. LOPEZ: The other thing I might 9 suggest, Your Honor, because a lot of these issues have 10 already been covered in front of the Court, if we could 11 take a couple minutes to confer with Plaintiff's counsel 12 and Descon and see which one we have already discussed. 13 THE COURT: Okay. 14 MR. GRIFFITH: That also would work with ours 15 because I think pretty much everything in ours has 16 already been discussed. Uh, and to the extent that what 17 has been agreed to on those is agreed on ours and we are 18 fine. 19 THE COURT: Why don't you all look at them and 20 I will take my messages on my phone. 21 (After a brief recess the 22 hearing resumed.) 23 THE COURT: Cause number DC-14-46, back on 24 record, Rio Grande City I.S.D. versus Descon. We're on 25 third-party Defendant Limon Masonry's proposed motion. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 158 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 Let's start with number 1. 2 MR. N. JOLLY: One is disagreed. 3 MR. B. LOPEZ: Your Honor, the only -- 4 MR. N. JOLLY: Well this is the one we already 5 covered about the previous. 6 THE COURT: Unless opens the door agreed. 7 MR. N. JOLLY: Yeah agreed. 2, 3, 4 agreed. 8 5 just depends on if there's some files that are 9 missing. We can ask where are your files. I didn't 10 keep it and I don't know. 11 MR. B. LOPEZ: I'll be candid, Your Honor, we 12 produced everything we have. It's just a contract is 13 what we have. However, I don't know whether or not we 14 kept documentation that has anything to do with the work 15 we did ten years ago. Just on one and two. I don't 16 know that it's relevant whether or not -- 17 THE COURT: Carry it over and see where that 18 goes. Number 6? 19 MR. N. JOLLY: 6 is agreed. 20 THE COURT: 7? 21 MR. N. JOLLY: Well, I mean if the man is no 22 longer in business might be one thing. Certainly I am 23 not going to bring up whether he's bankrupt or having 24 financial difficulties, but if he's out of business. 25 THE COURT: You can say he's out of business Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 159 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 but not why. 2 MR. B. LOPEZ: Okay. 3 THE COURT: So that will be granted. 4 MR. B. LOPEZ: Thank you, Your Honor. 5 THE COURT: Okay. 6 MR. N. JOLLY: Agreed on number 8. I had no 7 idea who these guys -- or have been in jail for 8 something, I don't care. Agreed on 9, 10, 11, 12, 13. 9 Disagree on 14. 10 MR. B. LOPEZ: Only issue on 14, Your Honor, 11 is just to the extent any of the experts are going to 12 testify just as we have already established in their 13 written report that they produced, not somebody who is 14 going to raise something new we have no knowledge of. 15 MR. N. JOLLY: Okay, there's things in the 16 report, then their deposition is taken, and if somebody 17 doesn't ask the appropriate question during the 18 deposition you can't expect them to tell them every 19 single opinion they might have. 20 THE COURT: I am going to deny that one. 21 Number 15? 22 MR. N. JOLLY: Agreed. 23 MR. B. LOPEZ: 16 is withdrawn, Your Honor. 24 THE COURT: Okay. 17? 25 MR. N. JOLLY: Agreed. 18 agreed, 19 agreed, Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 160 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 20 and 21 and 22 are agreed. 2 MR. B. LOPEZ: 23 is withdrawn. 3 MR. N. JOLLY: Okay. 24 is agreed. 25 is 4 not. 5 MR. B. LOPEZ: Again our issue on 25 is just 6 related to the insurance question. 7 MR. N. JOLLY: Well what's good for the goose. 8 THE COURT: I am going to deny number 25. 9 MR. N. JOLLY: 26 is agreed, 27, 28, 29 are 10 agreed, 30 is agreed, 31 is not. 11 MR. B. LOPEZ: 31 is withdrawn. 12 MR. N. JOLLY: 32, disagreed. 13 MR. B. LOPEZ: This goes back to the 14 documents. 15 THE COURT: He said agreed. 16 MR. B. LOPEZ: He said agreed? 17 MR. N. JOLLY: No, no 32 is disagreed. 18 THE COURT: Oh disagreed. I thought you said 19 agreed. 20 MR. B. LOPEZ: If we can treat it the way we 21 did the other one we can carry it over when we get 22 there. 23 MR. N. JOLLY: That's fine. 24 THE COURT: That's fine. 33? 25 MR. B. LOPEZ: Withdrawn. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 161 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: 34? 2 MR. B. LOPEZ: Everything else is agreed to. 3 MR. N. JOLLY: No, no 34 is not agreed. You 4 can't exclude all witnesses. 5 MR. B. LOPEZ: I think that's just the rule in 6 and of itself, but once we invoke the rule that will 7 take care of that. 8 MR. N. JOLLY: Experts are allowed in the 9 courtroom. 10 MR. B. LOPEZ: Okay, we can take that up when 11 the trial starts. 12 THE COURT: Okay we'll carry it over. 13 MR. N. JOLLY: 35 is agreed. 36, 37, 38 and 14 39 are agreed. 15 THE COURT: Okay. We need to keep all the 16 motions in limine together so I can have them at trial. 17 I need all of these in a notebook for trial so I can 18 refer to them. 19 ASSISTANT COORDINATOR: Okay. 20 MR. GRIFFITH: Your Honor. 21 THE COURT: Okay what was that? 22 MR. GRIFFITH: Your Honor, as long as I can 23 rely on the motions in limine that have been granted so 24 far, then I don't need to get a ruling on my motion in 25 limine because it's pretty much the same things. I only Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 162 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 had one that I had an issue on which is number 63. I am 2 withdrawing everything -- well I am withdrawing subject 3 to the fact that I'll be able to rely -- everything else 4 has been reciprocal so far. 5 THE COURT: Right. Everything is reciprocal. 6 MR. GRIFFITH: And it applies to all parties. 7 On that -- given that fact then I can withdraw mine 8 except for I need to know whether Mr. Jolly will agree 9 to number 63. 10 MR. N. JOLLY: Yes. 11 MR. GRIFFITH: Okay. 63 is just discussing -- 12 there are no punitive damages pled, just discussing the 13 financial condition of ERO, their revenue stream, what 14 they are doing, those kind of things. What kind of 15 money they are making. 16 THE COURT: Okay. 17 MR. GRIFFITH: That's all I have, Your Honor. 18 THE COURT: Okay, Mr. Garza. 19 MR. GARZA: Your Honor, may I give you a 20 courtesy copy of the motion in limine? 21 THE COURT: Okay. 22 MR. GARZA: I had filed 47 items but again 23 with all the prior rulings by the Court I think 44 have 24 gone away as long as I understand they are all 25 reciprocal. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 163 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Right. 2 MR. GARZA: The 3 I have and I discussed with 3 Mr. Jolly I understood he was opposed to them. Number 4 33 says testimony that this defendant -- my client again 5 is the roofer, Your Honor, C & M contracting -- that, 6 uh, any testimony that my client may have violated any 7 federal or state statute or building codes without first 8 proving that those codes apply. Uh, there's been a lot 9 of testimony by different experts about what codes may 10 have applied and I think that it's incumbent upon the 11 Plaintiff to first establish what code applies before 12 they have experts opining on alleged violations. 13 THE COURT: Okay we'll carry that over. 14 MR. GARZA: Okay. I am going to jump to 15 another one and leave the last one at the end. Number 16 43, Your Honor. It's handwriting and other markings on 17 exhibits. This should be for everybody. If anybody 18 introduces an exhibit that has any handwritten notes on 19 it, we need to establish before it's presented to the 20 jury whose notes they were. I mean, if it's an expert 21 and he wrote on the notes that's one thing, but we don't 22 want somebody who may have written things on a document 23 that have not been presented until it's established who 24 it is. That's number 43. 25 MR. N. JOLLY: There's been a bunch of Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 164 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 documents produced with handwriting on them and during 2 deposition, uh -- 3 THE COURT: We'll carry it over, we'll look at 4 the handwritten parts. 5 MR. N. JOLLY: Yes, it just depends really. 6 Some I might agree but some the witness may have been 7 questioned about it. 8 THE COURT: Okay. 9 MR. GARZA: The other one I have, Your Honor, 10 is number 36, references to hearsay sources which also 11 sort of goes with number 45 which the Court had ruled on 12 earlier on Descon Construction. In my particular case 13 as the Court knows you took under advisement our motion 14 to exclude Mr. O'Bannon's testimony. He relied on that 15 one-page document from a person who to my knowledge has 16 not been identified as a consulting expert and his 17 testimony he never got any supporting documentation. 18 So, I need to make sure that I, if the Court doesn't 19 grant my motion as it pertains to my client, C & M, I 20 need to be able to -- the Plaintiff has to be able to 21 establish before he starts asking him about that 22 document, you know, under the hearsay rules to make sure 23 it's not hearsay before it can come in. That's the 24 intent of 36, which I think goes hand in hand with the 25 45 from before. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 165 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: I'll carry that over also. 2 MR. GARZA: That's all I have, Your Honor, 3 thank you. 4 MR. GEALY: Your Honor, on behalf of Halff, we 5 only have I think two issues, that's number 3 and 4. 6 And otherwise as Mr. Griffith has said to the extent 7 rulings have been made on prior motions that those apply 8 equally. 9 THE COURT: Okay we'll go ahead and carry that 10 over. And which other one? 11 MR. GEALY: Just 3 and 4. 12 THE COURT: Do you agree to number 4 Mr. 13 Jolly? 14 MR. N. JOLLY: No, Your Honor. That, that's 15 the one about opining on negligence. I think experts 16 are entitled to -- 17 MR. GEALY: Without laying a proper predicate. 18 MR. N. JOLLY: I agree to that. 19 THE COURT: That's all he's saying, without 20 laying the proper predicate. 21 MR. N. JOLLY: Oh, okay. Yes we plan to do 22 that. 23 THE COURT: Okay. 24 MR. GEALY: Thank you. 25 MR. GROSS: Your Honor, Louis Gross on behalf Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 166 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 of Twin City Glass. 2 THE COURT: Okay. 3 MR. GROSS: Your Honor, our motion in limine 4 has been submitted to all parties, it was reviewed by 5 Plaintiff and counsel for Descon, and no objections, 6 Your Honor. Easiest way would be just to submit it as 7 agreed. 8 MR. N. JOLLY: Well, yeah, I didn't see 9 anything in there that wasn't duplicative. That was the 10 conversation we had. 11 MR. SMITH: That was my quick review was that 12 it's all been covered so we have no objection. 13 MR. N. JOLLY: Wasn't there one at the very 14 end, John, that, uh, was perhaps additional? 15 MR. GUERRA: You said you didn't have a 16 problem but you thought Descon might. 17 MR. N. JOLLY: Oh. 18 MR. SMITH: Well let me look at it. 19 MR. N. JOLLY: Well there's one here about the 20 welfare of the children, that's the only one I think 21 that has already been covered though that the safety of 22 the children is relevant. 23 MR. SMITH: I don't have an objection. 24 THE COURT: Okay. So everything is agreed to. 25 Okay. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 167 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. DUNNAHOO: Your Honor, Michael Donnahoo 2 for Zarate Suspended Ceilings. I filed a motion in 3 limine and order granting same circulated among counsel. 4 I don't believe there's been any opposition filed to it. 5 Uh, I would however state that I probably need to 6 withdraw number 27 on mine which, uh, dealt with -- 7 THE COURT: I don't have a copy of that one in 8 front of me. Do you have one? 9 MR. DUNNAHOO: Yes, I have, Your Honor. 10 Number 27 dealt with defense cooperation and, uh, so I 11 want to withdraw that subject to the Court's ruling from 12 earlier today. 13 THE COURT: Okay. So that's withdrawn. 14 MR. DUNNAHOO: Number 27. 15 THE COURT: Everything else is agreed. 16 MR. DUNNAHOO: It's pretty duplicative. 17 There's an issue that Descon's counsel and I have 18 discussed. 19 MR. SMITH: We have an understanding about, 20 uh, about how we are going to be presenting subcontracts 21 and all with regard to, uh, uh, presenting them, but not 22 referring to them as a duty or like that until after 23 they come into evidence. 24 THE COURT: Okay. I am not following you. 25 MR. SMITH: I just wanted to make known that Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 168 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 the extent that our discussion is that in identifying 2 who the parties are and all we will be referring to the 3 subcontract that they had a subcontract to do work as 4 set out in there, that that would be the extent of it, 5 that that we would not go into, uh, delegating duties to 6 them, that that wouldn't come up until subcontracts were 7 admitted. 8 THE COURT: Okay. 9 MR. DUNNAHOO: That is my understanding of our 10 discussion and agreement. 11 THE COURT: Okay. Anything else? 12 MR. N. JOLLY: The only other thing we had, 13 Your Honor, was we were trying to subpoena Mr. Smith and 14 haven't been able to find him, but I assume that I 15 believe he's still the designated representative of 16 Descon for trial. If we can have an agreement that if 17 we need to call the gentleman -- 18 MR. SMITH: Michael C. Smith is the designated 19 representative and my understanding is he'll be here. 20 MR. N. JOLLY: Okay. And so now that we have 21 some newly identified Smith family members, uh, the 22 Plaintiff needs leave to add those people to the witness 23 list and cooperation from Descon to make them available 24 during our case in chief within 24 hour notice. 25 MR. SMITH: Your Honor, we cannot agree to Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 169 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 that with anybody that's been added. I know the Court's 2 ruling and I am not ignoring that. I have not talked to 3 these people beyond providing them with a copy of the 4 pleading and telling them to forward it on to their 5 insurance carriers and forwarded it on to their legal 6 counsel. We will inform them of the Court's ruling. I 7 probably already have, uh, through the office, of the 8 Court's ruling, but I can't stand here today and say 9 that I have their understanding and cooperation and will 10 be able to bring them here. 11 MR. N. JOLLY: Well and the same would apply 12 to Wayne Medlin. 13 MR. SMITH: I have not discussed it with 14 Mr. Medlin. Mr. Medlin has issues, health issues, uh, 15 mental issues. In fact I am not even sure that 16 Mr. Medlin has the capacity to be sued, mentally, 17 without the appointment or somebody to represent his 18 interests. Those are all issues that, uh, he's going to 19 have to deal with or his family deal with. 20 THE COURT: This is the first time that comes 21 up? 22 MR. SMITH: He basically has dimentia. 23 THE COURT: Is this the first time that this 24 comes up? 25 MR. SMITH: We have never been asked to -- Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 170 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 with regard to Wayne Medlin to produce him for 2 deposition or anything else. We did not, uh -- it's 3 never been addressed because it's never been an issue, 4 Your Honor. 5 MR. N. JOLLY: Well, he's the legal 6 representative in the contract and we have consistently 7 indicated that everybody signing agreements, everybody 8 signing documents, everybody acting as representative, 9 everybody identified in everything might be called as a 10 witness and Mr. Medlin is one of the presidents of the 11 predecessor to Texas Descon. Uh, you know, I mean 12 without -- I, I -- I don't know how you know what the 13 man's condition is but, uh, you know, you did -- we did 14 manage to get a real quick affidavit from Mr. Smith. 15 MR. SMITH: Mr. Smith is available and Mr. 16 Smith will be here. It's Michael C. Smith. Mr. Medlin 17 I became aware of it and all when we tried to talk to 18 him or someone in our office tried to discuss with him 19 what you filed last week, and I was told that he 20 repeated the same thing four or five times in the first 21 couple minutes of discussion. Hi, how you doin', who 22 are you? 23 MR. N. JOLLY: These other Smiths are 24 relatives, they are sons, nephews, cousins, you know, 25 they are going around changing the name of the party Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 171 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 defendant in this case. 2 MR. SMITH: Well I understand that's 3 Plaintiff's counsel's position, I understand the Court's 4 decision, but certainly I don't agree with what 5 Plaintiff's counsel has represented. Uh, we have made 6 it known to them, he's basically asking me if I can 7 produce, if I can agree today that they'll be here and 8 be ready for trial as a witness and we have given them 9 the, uh, pleading, we have told them to put their 10 insurance companies on notice, we told them to get their 11 counsel involved and to talk to their counsel about it 12 and figure out what needs to be done. We will have 13 either told them already today or certainly will by 14 tomorrow morning what the Court's ruling has been and we 15 will have to discuss with them and their counsel what 16 the involvement of their counsel, us, or anybody else is 17 going to be. So, all I'm saying is no I cannot stand 18 here right now before the Court and positively state 19 that yes these people will be here and will be available 20 for trial. 21 MR. N. JOLLY: How about this, Your Honor? 22 How about if we are provided the -- a reliable address 23 to contact these gentlemen and serve them with a 24 subpoena? 25 MR. SMITH: As far as -- I have no problem Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 172 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 with that as far as I know, you know, where Texas Descon 2 is, you know, where Michael C. Smith, you've sued them 3 before. 4 MR. N. JOLLY: Every time my guy walks in 5 there he's told he can't see them. So, you know, they 6 are avoiding process. Frank has been over there three 7 times. 8 THE COURT: You are to provide an address 9 immediately. 10 MR. SMITH: I will, Your Honor. I don't know 11 where this Frank has gone to. Michael D. Smith as I 12 understand it resides in, uh -- outside of San Antonio. 13 THE COURT: Do you have the address? 14 MR. SMITH: Not on me but I will provide it to 15 Mr. Jolly. 16 THE COURT: Okay you need to do it by 5:00 17 o'clock today. You have an hour. What else? 18 MR. N. JOLLY: That's it from the Plaintiff. 19 MR. B. LOPEZ: Your Honor, just one thing to 20 take it up on another point. There are different 21 exhibit lists that are circulated. What's not 22 circulated are actual physical copies of the exhibits. 23 We have some objections to Descon's and to the 24 Plaintiff's exhibits. Uh, but might make more sense if 25 we are going to start on that Monday at 1:30, maybe we Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 173 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 can all produce all physical exhibits some time that 2 morning and we can hash it out there. 3 THE COURT: Guys, didn't you all -- I told you 4 all to exchange exhibits and lists before today. 5 MR. SMITH: Your Honor -- 6 THE COURT: That way we would be ready today 7 because in the morning I've gotta docket. I have a 8 criminal docket that I have to contend with that morning 9 and that's why I said we are not going to be doing any 10 pre-trial matters that day. We are going to do 11 everything on Friday even if we have to work until 12 midnight, I don't care. Okay? I can be here until 13 midnight today. 14 MR. SMITH: Your Honor, we provided a trial 15 exhibit list, we went through and in view of some 16 objections and also looking at it to eliminate where 17 things were listed twice and all, we did an amended 18 exhibit list, we have provided a FTP link and uploaded 19 all of our exhibits on that. Uh, it was done, uh, 20 yesterday morning. 21 THE COURT: So yesterday y'all exchanged 22 exhibits, everybody? 23 MR. B. LOPEZ: Limon Masonry did produce the 24 exhibits. 25 MR. N. JOLLY: I think that I understood Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 174 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 exhibit list as opposed to exhibits but we are going to 2 do the exact same thing that Descon has done. 3 THE COURT: Generally shouldn't you all 4 already know what the exhibits are when the exhibit 5 list -- the list names the exhibit and it's probably 6 contract between whatever, whatever, and whoever. 7 MR. SMITH: Some of them. 8 THE COURT: Everybody should kind of already 9 know what the exhibits are, I mean, unless there's some 10 demonstrative or something that no one has shown each 11 other, I mean, what are we talking about here? 12 MR. SMITH: There's some -- 13 THE COURT: I'm talking to him. 14 MR. B. LOPEZ: From Limon Masonry standpoint, 15 there are numerous demonstratives that are on the list 16 that should not go back to the jury because they are 17 demonstratives. They can be shown to the jury but not 18 to go back to the jury. 19 THE COURT: Well they are not going to go to 20 the back. 21 MR. B. LOPEZ: Second thing, the reports which 22 we believe are hearsay, any of the experts or parties 23 can testify about it, but those reports shouldn't go 24 back. 25 THE COURT: Right. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 175 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. B. LOPEZ: Short of that we actually filed 2 all our objections to all parties' exhibits and are 3 prepared to argue them right now. 4 THE COURT: Okay. Are you all ready to go on 5 those arguments? 6 MR. SMITH: We can. 7 MR. N. JOLLY: I guess what we are talking 8 about is Mr. Lopez wants to have a hearing on the 9 Plaintiff's Exhibit list? 10 MR. B. LOPEZ: No, my issue with Descon and 11 with the Plaintiff really more to Descon, some I think 12 are the same. 13 THE COURT: What exhibits are you objecting 14 to? Come forward and let's just do it. 15 MR. B. LOPEZ: Okay. 16 THE COURT: Did you file an objection already? 17 MR. B. LOPEZ: We filed the objections, our 18 objections to all parties' exhibits. 19 MR. SMITH: Your Honor, I hate to ask but you 20 gave me an hour to get the -- I need to get somebody 21 to -- can I go out in the hallway -- 22 THE COURT: Yeah, take a couple minutes and 23 just hold on Mr. Lopez. I will let the Plaintiff 24 address the objections to their exhibits while you step 25 out and make the call for all of those people's Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 176 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 addresses. 2 MR. SMITH: Thank you, Your Honor. 3 THE COURT: Why don't I see your motion 4 objecting to their exhibits? 5 MR. B. LOPEZ: I can see when we filed it. 6 THE COURT: I see your trial exhibits, your 7 exhibit list, your contentions, your proposed findings 8 of fact. 9 MR. B. LOPEZ: I think when he filed it 10 yesterday. 11 THE COURT: Oh, okay. Do you have an extra 12 copy? 13 MR. B. LOPEZ: I have one. Let me see if I 14 have gotta second one, Your Honor. (Pause) May I 15 approach? 16 THE COURT: Yes. Okay, so let's talk about 17 the objections to the ones that you have against Rio 18 Grande City I.S.D. 19 MR. B. LOPEZ: Yes, Your Honor. We tried to 20 group them because some are covering the same issues. 1 21 through 24 are the same. Plaintiff correctly provided 22 some that were -- that had insurance in there and 23 they -- then they have some that do not have insurance. 24 We just want to make sure the ones that mention the 25 insurance do not go back. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 177 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. N. JOLLY: We are going to redact 2 insurance. 3 MR. B. LOPEZ: Okay. 4 THE COURT: Okay. 5 MR. N. JOLLY: I thought we had done them all, 6 but if somebody sees the word insurance just let me 7 know. 8 THE COURT: Yeah, with reference to the 9 objections, if you see the word insurance redact it 10 okay? Number 26. 11 MR. B. LOPEZ: We are going off the fifth 12 amended list. It just says on there excerpts from 13 contracts. I don't have a problem with any excerpts at 14 all, we just want to make sure that it's a contract 15 that's already in evidence. 16 MR. N. JOLLY: It will be one that's in 17 evidence. 18 THE COURT: Okay. 19 MR. B. LOPEZ: 27 and 28 if that's part of the 20 experts -- I'm sorry, if that's part of the Plaintiff's 21 production we have no objection to that. 22 MR. N. JOLLY: It is. It was the project file 23 that the Plaintiff maintained during construction. 24 THE COURT: Okay. 25 MR. B. LOPEZ: 29, Your Honor, I think relates Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 178 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 to Ruben Villarreal, some reports that he did. 2 MR. N. JOLLY: They are in the binders. 3 MR. B. LOPEZ: And the issue I think with 4 those is he has not -- this is hearsay and he has not 5 actually testified about those reports. It's a piece of 6 paper saying what -- something that he says. He's never 7 actually gone and testified about that. He has not been 8 produced about that. 9 THE COURT: Who is Ruben Villarreal? 10 MR. N. JOLLY: He was hired to walk around and 11 take pictures and report back. 12 THE COURT: The ex-mayor? 13 MR. N. JOLLY: I am not really sure, Your 14 Honor, I know his nickname is Chino. 15 THE COURT: Oh, the construction guy. 16 MR. N. JOLLY: I guess. 17 THE COURT: Okay. And so? 18 MR. N. JOLLY: Business records have been 19 produced, experts are going to rely on them. 20 MR. B. LOPEZ: We haven't seen them so if it's 21 something that -- 22 MR. N. JOLLY: Yes they have, it's in the 23 binders that we produced, and so have the photos have 24 been produced. 25 THE COURT: So you've given everybody a copy Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 179 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 of your -- 2 MR. N. JOLLY: Correct -- 3 THE COURT: -- exhibits. 4 MR. N. JOLLY: And Mr. Griffith wanted -- 5 during one deposition found out about the pictures, uh, 6 because a lot of them were included in the binders that 7 were produced, but a lot of them weren't and so an I.T. 8 person went through his old computer and found them and 9 printed all the pictures out and found them and we 10 produced them. 11 THE COURT: Okay. Of course you can make your 12 objections during trial. 13 MR. B. LOPEZ: We just want to seem them. 14 Once we see them we may withdraw that. 15 THE COURT: Right. Of course for like for the 16 record you are going to have to make your objections 17 anyway even though we are going through the exhibits 18 right now. 19 MR. B. LOPEZ: Sure. We had objected to 31 20 and 32, we are okay with those. I am assuming it was 21 part of what was produced. 22 MR. N. JOLLY: It was produced, maintenance 23 orders or requests. 24 THE COURT: Okay. 25 MR. B. LOPEZ: 33 through about 72 the only Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 180 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 thing we are objecting to those are those are the expert 2 reports that we have already discussed that should not 3 go back. 4 THE COURT: They are not going to go back. 5 MR. N. JOLLY: Well these are pictures from 6 the reports, they C.V., excerpts from codes that were 7 referred to in the reports. 8 THE COURT: But he's talking about the report 9 itself. 10 MR. B. LOPEZ: I am not objecting to the C.V., 11 I am not objecting to references to code, or pictures, 12 just the report itself. 13 THE COURT: Right. 14 MR. N. JOLLY: We are not going to offer a 15 full report into evidence. 16 MR. B. LOPEZ: Okay. With those being 17 withdrawn we are okay with the rest as to the experts, 18 Your Honor. 19 THE COURT: Okay. 20 MR. N. JOLLY: There's nothing being 21 withdrawn. 22 THE COURT: Right. It's just not -- 23 MR. B. LOPEZ: It's not being offered -- 24 THE COURT: Guys -- 25 MR. N. JOLLY: There's no offer. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 181 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Guys, it's not -- ya, that's 2 enough. You know what goes back and what doesn't, you 3 know, let's move on. 4 MR. B. LOPEZ: Okay. 72 through I believe 5 it's 79, as long as all of those -- we just didn't know 6 what they were, if that's stuff that's already been 7 produced we're fine with that. 8 MR. N. JOLLY: Okay. 9 MR. B. LOPEZ: 80 and 81 is talking about 10 defects map and legend. There was a document that was 11 produced I believe. If that's what that's referencing 12 we are okay with that, otherwise I don't know what it 13 refers to. 14 MR. N. JOLLY: There is one that will have 15 every single defect from every piece of testimony on one 16 final document. 17 MR. B. LOPEZ: That's the color -- 18 MR. N. JOLLY: Is that the one you want? 19 MR. B. LOPEZ: I just want to make sure that's 20 what it is. 21 MR. N. JOLLY: Yeah we produced that. 22 MR. B. LOPEZ: Okay. Then we are okay with 23 that, we just didn't know what it was. 24 THE COURT: Okay. 25 MR. B. LOPEZ: 85 through 97 we have no Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 182 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 problem with. The exemplars we believe which is 98 2 through 100 of the brick-tie, the brick, and the mock 3 wall, those are demonstrative. We have no problem with 4 the jury seeing them, but they shouldn't go back. 5 MR. N. JOLLY: That's right. 6 MR. B. LOPEZ: 100 through 103, 104, no 7 problems. 105 again is a demonstrative and 106 is a 8 demonstrative no problem with the jury seeing it but it 9 shouldn't be an exhibit. 10 THE COURT: Okay, you don't even have to say 11 that any more. 12 MR. B. LOPEZ: Thank you, Your Honor. 13 MR. N. JOLLY: The GPR, are you objecting to 14 that? 15 MR. B. LOPEZ: Just the part, uh, -- 16 MR. N. JOLLY: Demonstrative aide. 17 MR. B. LOPEZ: The actual report I have no 18 problem. 19 MR. N. JOLLY: The GPR costs 16, $20,000 and 20 we are not giving that over to anybody. 21 MR. B. LOPEZ: Uh -- 22 MR. N. JOLLY: It doesn't belong to me. But 23 it's a demonstrative aide. 24 MR. B. LOPEZ: We have no problems then, Your 25 Honor, with the understanding that we have already Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 183 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 covered some of these and we don't need to take up the 2 Court's time until we get to, uh, 122. I just didn't 3 know who -- when it says Defendant I am assuming that's 4 Descon? 5 MR. N. JOLLY: Descon and potentially ERO. 6 MR. B. LOPEZ: We have no objection on that. 7 123 is demonstrative, we don't need to cover that. 8 (Pause) 9 THE COURT: Go over everything again and then 10 unless there's anything glaring you can make your 11 objections as they are offering the exhibits. 12 MR. B. LOPEZ: We don't have any objection. 13 THE COURT: I guess with regards to Descon I 14 don't think there's -- is there anything that's just 15 glaring here or that we have to take up now that we 16 wouldn't take up while the exhibits are being offered? 17 MR. B. LOPEZ: You've already given us 18 guidance. 19 THE COURT: Okay. 20 MR. B. LOPEZ: It's going to be the same for 21 Descon, we have the same complaint about them. 22 MR. SMITH: Just so we are clear on it before 23 I left yesterday to come down here I told Mr. Lopez we 24 went through and tried to eliminate the duplications, 25 and tried to address some of his objections, uh, so the Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 184 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 list that he's going off of with us has been changed. 2 There was filed -- I got the filing notice but I don't 3 have a copy with me -- of an amended trial list exhibit 4 list that didn't add any new exhibits. 5 MR. N. JOLLY: Mine? 6 MR. SMITH: No mine. It didn't add any new 7 exhibits it just took out, uh, exhibits that were 8 duplicates and that, uh, he had objections to and like 9 that. So I told him if he wants to go through and see 10 if we have satisfied him I'll address that with him and 11 I think we can take care of it based on what you've 12 already ordered. 13 MR. B. LOPEZ: With the understanding as long 14 as everything that you've already discussed, they agree 15 with that, we are fine with that. 16 THE COURT: Okay. What else? 17 MR. N. JOLLY: That's it. 18 THE COURT: Is there any other issues that we 19 need to take up before Monday? Monday of trial. 20 MR. GEALY: Your Honor, there's some documents 21 out of Mr. Stacy's file, who is the Plaintiff's expert, 22 that have not been produced, that were not produced at 23 the time of the deposition. I made Mr. Jolly aware of 24 that, he said he's going to go back and get those for me 25 but I have not gotten them yet. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 185 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. N. JOLLY: I forwarded that to Mr. Stacy 2 and I haven't heard from him yet, so I will follow up 3 and we'll let grant know by e-mail -- 4 MR. GEALY: That's fine. 5 MR. N. JOLLY: -- while we are driving back. 6 MR. GEALY: That's fine, I have spoken to him 7 about it. 8 MR. N. JOLLY: Thanks for the reminder. 9 THE COURT: Anything else. 10 MR. B. LOPEZ: Rule 166, which you asked us to 11 comply with, it does mention deposition excerpts. I 12 don't know who is going to testify live, but I don't 13 know that we need to take them up if they are coming 14 live. At least for Limon's purposes -- 15 THE COURT: I want to know from the Plaintiff 16 right now which of your experts are coming live. 17 MR. N. JOLLY: Right now four days in a row 18 worth, uh, Bill Holder, Roland Partida, Randy Lackner 19 and that's about all we have planned out so far. 20 THE COURT: That are coming live. 21 MR. N. JOLLY: Correct. 22 THE COURT: And for Descon who is coming live? 23 MR. SMITH: As far as experts would be, uh, 24 the gentleman from Wes Chany, I have been working with 25 them and Legal Arms, Your Honor, that's -- I need to Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 186 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 rethink on, uh, that based on the Court's earlier 2 rulings on summary judgments, but I believe that's the 3 only one as far as experts other than, uh, former people 4 with, uh, non-retained that were with, uh, Descon -- 5 THE COURT: Like who? 6 MR. SMITH: Joe Betancourt who was the, uh, 7 employee of Descon back at the time, it was a job 8 superintendent, Michael C. Smith who we have told the 9 Court would be available and would be here as a 10 representative of Descon, uh, they are the only ones 11 right now that, uh, I would think. We have an H.V.A.C 12 gentleman designated, but I am not sure that we will be 13 bringing him, uh, based on things that have gone on. 14 THE COURT: And Limon? 15 MR. B. LOPEZ: We are bringing the 16 representative from Limon Masonry. 17 THE COURT: Who? 18 MR. B. LOPEZ: Rolando Limon is going to 19 testify, and then one expert Mr. Castro who is our 20 expert witness, and that's all. 21 THE COURT: Anybody else? 22 MR. KASPERITIS: Your Honor, our witness list 23 had only two people on it which was the representative 24 of, uh, D & J Site Construction, the corporate 25 representative who may testify live and then, uh, our Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 187 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 expert witness Eric Moody, so that's -- it's Mark 2 Goldhamer will be the corporate representative and Eric 3 Moody is our expert. 4 MR. DUNNAHOO: For Zarate Suspended Ceilings, 5 Fred Zarate will be here to testify as well as our 6 expert witness Matt *Ostrika. 7 MR. GARZA: On behalf of C & M Contracting 8 we'll have our expert Rob Hernandez. The company has 9 been closed for several years, the owner of the company 10 died. I could bring the widow, I am not sure I want to 11 put her through that. 12 (Laughter). 13 THE COURT: Whatever works. 14 MR. GARZA: For sympathy I contemplated 15 bringing her, but right now it would be just that person 16 and of course myself to the extent that I have to 17 testify on my attorneys fees and opposition to any claim 18 for attorneys fees. 19 MR. GEALY: For Halff Engineers, Trey Murray 20 and Bill Harris. 21 THE COURT: David? 22 MR. OLIVEIRA: I am with Descon. 23 THE COURT: That's right. Okay. 24 MR. GROSS: Louis Gross for Twin City Glass. 25 Our corporate representative Daniel Vasquez and our Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 188 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 expert Darren *Lasker. 2 MR. O. LOPEZ: Oscar Lopez. For ERO it would 3 be. Eric Green and Dan Medley. 4 MR. DUNNAHOO: You are not bringing Block? 5 MR. O. LOPEZ: Block I'm sure will be here 6 but -- 7 THE COURT: Sometimes less is more. 8 MR. SMITH: I just wanted to bring up, I know 9 nobody really mentioned themselves, I know there's 10 attorneys fees issues. I assume people that have 11 designated attorneys fees issue experts they'll be here 12 and testifying. 13 MR. N. JOLLY: I will be here every day. 14 THE COURT: What else do we have to -- well 15 okay hold on then. How many are going to call witnesses 16 by deposition? I mean, are we talking about 20? 17 MR. N. JOLLY: No. 18 THE COURT: 10, 15, how many? 19 MR. N. JOLLY: We are going to call probably 20 four or five tops. 21 MR. SMITH: Assuming that the necessary 22 Plaintiff's depositions or Plaintiff's witnesses are 23 presented, we will have deposition excerpts. If Mr. 24 Jolly has anybody that he can positively say he's not 25 bringing, then yes we will address excerpts. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 189 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Let me make it easy for you. All 2 the week, weekend, and during the week, you all will 3 trade deposition excerpts, and you will have them ready 4 to go because I am not going to have any B.S.ing during 5 the trial, oh we need to take a break and bring our I.T. 6 guy in or I don't know what happened, Judge. If that 7 happens you are going to read it. 8 MR. N. JOLLY: Oooo! 9 THE COURT: I am not going to wait for any 10 I.T. guys that are not available, that are not here, 11 that the computer fell apart, I am not going to put up 12 with that. We are going to try this case, we are going 13 to get it done, you are going to have your excerpts, you 14 better have your I.T. guys, your backups, you do 15 whatever you have to do, but when it's time to call that 16 witness, that witness, that deposition is going to be on 17 a screen and played or you are going to read it because 18 I am not going to wait. 19 MR. SMITH: To aide in that, Your Honor, would 20 it be possible to ask the Court, uh, to require 21 everybody to designate off of their expert list, the 22 list that they have already filed, uh, designation of 23 experts, anybody that they are not going to call by a 24 certain date. Then we'll know. 25 MR. N. JOLLY: You know, they just they -- Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 190 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 this goes on and on and on. Give them an inch and they 2 want a mile, and they are going to have ours for weeks 3 while we are in trial and we have theirs yes but, you 4 know, now they are able to respond to it -- 5 THE COURT: You all -- all am saying is 6 whoever you designated that you said -- and you've 7 already said on the record who you are calling live and 8 who you are not. Whoever you are not calling live, 9 trade your excerpts and do it now. 10 MR. SMITH: Okay. 11 THE COURT: Like that way you know what you 12 have to respond to -- like they know -- you know what 13 they are going to put on so you know what portions you 14 need to play in response to that, and which of your 15 experts you want to -- portions you want to play in 16 response to what he just told you he was going to put 17 on. So, -- 18 MR. SMITH: Well -- 19 THE COURT: Just do it. I don't care if you 20 have to work all weekend, I did it. My poor kids, you 21 know, were at home while I was at that time office, 5 in 22 the morning till midnight or two or three in the morning 23 and, you know, David Oliveira knows because we did all 24 those crazy Phen Phen cases and all that other stuff and 25 we were never home, we always were working. We all got Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 191 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 up super early, went to bed super late working, and that 2 happens when you are in trial. 3 MR. SMITH: No problem, Your Honor, we'll have 4 them done. 5 THE COURT: For both sides. 6 MR. N. JOLLY: Yes, ma'am. 7 THE COURT: What else? 8 MR. SMITH: Uh, (pause) Just -- 9 THE COURT: Y'all better look at those jury 10 charges again. 11 MR. SMITH: Oh they need to be -- 12 THE COURT: I am not going to take 20 hours on 13 the charge conference. No way in hell is that going to 14 happen. I mean we are going to look at -- you all are 15 going to know what went before the jury and what was 16 enough regarding the causes of action and what should go 17 in and what shouldn't and we are not going to take 20 18 hours on a charge conference. 19 MR. N. JOLLY: His is 230 pages now. 20 MR. SMITH: Well it will be drastically 21 changed since all of the, uh, subcontractors have been 22 chopped out. We have the breach of warranty, breach of 23 contract issues, and the questions with regard to each 24 of them I had to go through, so we will go through and 25 take out now what needs to come out. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 192 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: I mean if I were you I would start 2 now because y'all don't have a lot of time. 3 MR. SMITH: No, we are, Your Honor. 4 THE COURT: You have what like a week? 5 MR. B. LOPEZ: Yes, ma'am. 6 MR. SMITH: A week. 7 THE COURT: Unless you go settle it. 8 MR. N. JOLLY: That's been tried. 9 THE COURT: Well keep trying. 10 MR. SMITH: So you want us here 9:00 o'clock 11 on Monday. 12 THE COURT: Yeah. I want you here at 9 clock, 13 even though we are not going to do jury selection until 14 1:30, but that way if, you know, many a case has settled 15 at, you know, courtroom steps, you know, and that way if 16 there's any other issues we'll take them up then, and 17 you know, if there's any major issues guys and I mean 18 this is the way we prepared back then and if there's any 19 major issues that we have not talked about today that 20 you know is going to be just a sticking point, do a 21 letter brief and have it ready. I mean, we did that all 22 the time, David and I when we worked on those cases and, 23 you know, we knew it was an issue that was going to come 24 up and we just did a little bit of extra work and that 25 way I don't have to say let's take a recess and let me Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 193 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 go look and let me get on Lexis or Westlaw or whatever 2 and let me look for it and let me get -- just get the 3 cases, hard copy, and bring them and do like a one-page 4 or a half-page, you know, letter brief and say look this 5 issue is going to come up, we know it's going to come 6 up, and you all know already what's going to come up 7 because you have been fighting for who knows how long 8 already, and so you all know what's going to come up at 9 trial and there's going to be particular points of 10 contention that both of you are going to be digging your 11 heels in, and I am going to have to make a quick 12 decision so, you know, help he me out here and help 13 yourself out because the longer y'all keep that jury in 14 that box I am telling you the more pissed off they are 15 going to get, and like I am saying I don't know what 16 side they are going to be mad at, but they are going to 17 be mad at someone and it's not going to be me. So, uh, 18 so just get it together and that way when we send them 19 to the back, when we need to get them out of the 20 courtroom so we can discuss legal issues, that way it 21 will flow really fast and I will have case law in front 22 of me and letter briefs in front of me to where I can 23 read, them and just go back and maybe confirm, and make 24 a decision, and we move on. 25 What else do you all think is going to come Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 194 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 up? Is there anything off the top of your head? We 2 usually take a jury break in the morning like 20 3 minutes, and we do one in the afternoon also because, 4 you know, they have got to stretch their legs or 5 whatever, they get tired of sitting in there in the jury 6 box all day, so we'll do that. 7 We'll do like -- generally I do an hour and a 8 half lunch break but I think I am probably going just 9 going to be doing an hour. So, we can, you know, just 10 get it going. So, if you can have your staff, you know, 11 bring sandwiches from Subway or something and maybe I'll 12 do that for the jury also on some of the days and that 13 way we can get them in there, and get them out, and 14 we'll be done because I hate sending -- I mean, y'all 15 don't want the jury out there anyway. 16 So, one of the this is that we have done in 17 the past, even -- I have even paid for it before out of 18 my own pocket because I hate for them to be out there 19 because you are going to have witnesses all over the 20 place, people all over the place, attorneys at 21 restaurants and everything, you'll be sitting in a 22 table, right next to someone who is on a jury, or their 23 family member or whatever, something slips out, then 24 it's in the box and I don't want any jury misconduct -- 25 juror misconduct issues here. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 195 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 So, I mean, if we can make life easier by, you 2 know, we all just get Subway platters or, you know, 3 whatever, we'll do that and I will send some back to the 4 jury. I won't say the Plaintiff bought them for you or 5 the Defendants bought them for you, I'll just say the 6 Court got them for you or maybe not, you know, the Court 7 itselfbut you the county got them or the lawyers all got 8 together and paid for your sandwiches on both sides. 9 Maybe that will help also, and I can have them eat in 40 10 minutes and we'll come back out and just keep going, you 11 know, it's in your best interest also to just get this 12 thing behind you, you know so, uh, that's kind of what I 13 am thinking. Of course we wouldn't be doing that on 14 Monday because Monday you are not starting until 1:30 15 with the jury. I think the jury is going to be seated 16 at 12:30 right? 17 ASSISTANT COORDINATOR: Yes, ma'am. 18 THE COURT: We used to have them come in at 19 1:30 and it was a disaster. Then we wouldn't start voir 20 dire until 2:30. So we are doing now is bringing them 21 in and having them seated by 12:30, so you don't want to 22 be here in here at 12 or 12:30 because the jury is going 23 to be coming in and we are going to be sitting them 24 down, but you can be out there or whatever and then you 25 come in at 1:30 and we'll get you started. They'll Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 196 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 already be seated, you'll be able to talk to your 2 partners or whatever local counsel, whatever, and figure 3 out if you want a jury shuffle or not, and if you do 4 well then that's going to prolong it but that's your 5 right. 6 MR. GRIFFITH: How many do you anticipate will 7 be here with 550 requested? 8 THE COURT: I'm sorry? 9 MR. GRIFFITH: How many do you think will 10 actually show up? 11 ASSISTANT COORDINATOR: We requested 500 at 12 the last trial that we had, and we had about maybe 120 13 show up. 14 MR. GRIFFITH: Okay. 15 THE COURT: It's pretty bad. Sometimes, you 16 know, we -- I mean I've had to have people arrested and 17 brought in because I mean we lose them or like well 18 instead of getting two alternates I will end up with 19 one. On all my criminal cases they don't show up. And 20 then half of them say I don't know how to speak English 21 or whatever and well you are a U. S. citizen and took 22 the test and you passed it, but they don't want to be 23 here, I mean, it's ridiculous, it's outrageous, but 24 nevertheless that's just something we have to deal with 25 here but, uh -- Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 197 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. GRIFFITH: Did we discuss how many 2 strikes. 3 THE COURT: No, we haven't done that. Have 4 you all talked about it at all? 5 MR. N. JOLLY: I thought it was 6 per side. 6 MR. GRIFFITH: He said 6 I said 12. The 7 problem is that we do have, even though we are all going 8 to be together, we do have several different camps on 9 our side. We have three defendants and we have got at 10 least 4 third-party defendants on our side. So I would 11 think -- I mean just six seems like not enough maybe 12, 12 10, 12 something like that and they can have the same 13 number, that's fine. So 12 each side that way at least 14 everybody can have some input. 15 THE COURT: I am worried if we do 12 are we 16 going to have enough jurors. 17 MR. N. JOLLY: That's too much. 18 MR. GRIFFITH: That's 24 I can't imagine -- 19 MR. N. JOLLY: Well 8 or 9 that's how much we 20 did the last trial in Zapata. 21 MR. GRIFFITH: 9 is fine. 22 MR. OLIVEIRA: We'll take 9. 23 MR. SMITH: Yeah. 24 THE COURT: Let's do 9 guys and not because I 25 don't want to give them to you. I mean, if it was my Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 198 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 preference I would give both of you 12 or at least 10 2 but I am scared I will lose my jury and I want 3 two alternates because guys I've had trials, believe it 4 or not, where I have lost two out of the jury and both 5 alternates had to go in. I mean crazy. I've never seen 6 that before and now that I am on the bench I see 7 everything and it's crazy. I had a guy not come to 8 Court, he was a juror and he didn't even come, he didn't 9 show up, and I'm like go get him, and they brought him 10 in and I said -- I started the trial without him, I 11 moved up an alternate, and I brought him and said what's 12 your problem, why didn't you come, and he said because I 13 was sleepy. 14 (Laughter). 15 THE COURT: I was like okay, go to the jail 16 and sleep for 12 more hours. 17 (Laughter). 18 THE COURT: It was just ridiculous and we have 19 to be very careful about even doing that because the 20 laws are very particular about when an alternate can go 21 in the box. 22 MR. B. LOPEZ: Right. 23 THE COURT: It may have been error what I did 24 but he's got to be completely like unable to perform his 25 duties. Not just oh I didn't want to go because I was Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 199 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 sleepy. And I went back and looked at it later and I am 2 like God I hope nobody appeals this case. It was a 3 criminal case I think it was. But you know we had to -- 4 we needed to get started but the rules are very clear, I 5 should have waited, and okay now he's here and let's 6 call him sleepy or, you know, doupy or call him whatever 7 you want, but I mean I was like -- 8 MR. OLIVEIRA: Or dummy or something. 9 THE COURT: We couldn't find him and he was at 10 home asleep and finally the sheriffs brought him in 11 about noon and I said well I am not going to wait for 12 him, I mean, I had already started at 9 and then I 13 thought some emergency had happened or like someone in 14 his family had a heart attack or he was in the hospital 15 or something, oh he was sleepy and I was like God how 16 does this, you know, only in Starr County -- well no 17 Duval County crazy stuff happens over there too, the 18 wild wild west I like to call it, but anyway 19 nevertheless do you all have any other questions? 20 How much time do you really think you are 21 going to need for voir dire? Was that going to be your 22 question. 23 MR. B. LOPEZ: No, Your Honor, my question was 24 just from the numbering standpoint. Where do you start 25 with number one and how do they run it across for the Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 200 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 jurors? In other words where they are going to be -- 2 THE COURT: We start number one and go this 3 way and I'm glad you kind of brought that up because we 4 are not going to do general and specific. We are going 5 to do general voir dire. 6 MR. B. LOPEZ: Okay. 7 THE COURT: I am -- they are all going to have 8 numbers, and then like if you ask -- if you ask a 9 question are any of you employees of the Rio Grande City 10 School District or any of your family members, they 11 raise their numbers, you write their numbers down and 12 then you ask them. We are not going to go the way Judge 13 Gabert used to do it which I kind of liked it when I was 14 a lawyer, but now as a judge I don't like it because 15 then, you know, each side goes okay juror number 1, you 16 know, you do all the general and then you go specific, 17 we'll be here until midnight. So, the way we are going 18 to do it is they are going to show their numbers. 19 MR. GRIFFITH: Combined. 20 THE COURT: You write the numbers down and ask 21 them you answered the question, you raised your number 22 when I asked you, you know, if you were a member, you 23 know, worked for the school district, or your family, 24 what do you do, and would it affect you and whatever. 25 You've got to ask your questions right then and there Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 201 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 right after, you know, get the numbers down. 2 MR. GRIFFITH: Obviously if something comes up 3 for cause obviously it's for cause right there. 4 THE COURT: You approach the bench. 5 MR. GRIFFITH: Can we bring three or four in 6 at the very end after they have been excused, we need to 7 talk to these three or four on the for cause. 8 THE COURT: You can leave it until the end of 9 your voir dire and then bring them up. 10 MR. GRIFFITH: Right. 11 THE COURT: Before the other side starts. 12 MR. GRIFFITH: Before? Okay. 13 THE COURT: Or we can do it either way 14 whatever is more efficient. I am not going to hold it 15 against you if you don't do it right then and there. If 16 you want to wait until the end of the voir dire. 17 MR. GRIFFITH: Specially something private. 18 MR. B. LOPEZ: If it's a private matter yes. 19 THE COURT: You need to be careful about the 20 questions you ask them because sometimes they answer a 21 question and sometimes they just infected the whole 22 panel. So you've got to be really careful with some of 23 these defect questions that you are going to ask about 24 because all I need is for somebody to say oh yeah I saw 25 that, you know, the wall was shifting and then it's like Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 202 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 okay here we go, you know, I mean, you've got to be very 2 careful about the invited responses that are going to 3 come from your questions. 4 MR. GRIFFITH: We are used doing it that way, 5 it's not a problem, do the general and specific at the 6 same time, that's how we do it. 7 MR. B. LOPEZ: It's going to be 1 through 9 8 and then 10 starts behind one, right? 9 THE COURT: Right. 10 MR. B. LOPEZ: Those are going to be 11 afterwards. 12 THE COURT: This is going to be the end, 13 right. You start 1, 2, 3, and then let's say number 50 14 is back there, then you start 51 and go that way. How 15 much time honestly, guys, I mean, do you think that you 16 all need for jury selection? 17 MR. GRIFFITH: I need 20 minutes for my 18 architect client. 19 MR. B. LOPEZ: I would like to do about 20 I 20 think. 21 MR. GRIFFITH: And then maybe 20 minutes with 22 the other defendants. 23 MR. GEALY: About 20. 24 MR. B. LOPEZ: Not much time. 25 MR. OLIVEIRA: I think we can do an hour total Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 203 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 per side. 2 THE COURT: About an hour per side? 3 MR. GRIFFITH: Give us a little bit of 4 discretion. 5 THE COURT: A little bit of leeway but don't 6 say an hour and then you are two hours. 7 MR. GRIFFITH: No. 8 MR. OLIVEIRA: I tried cases before Darrel 9 Hester and it was 15 or 20 minutes tops and if you went 10 over it you were dead. 11 THE COURT: Yeah, if you are the only one 12 talking remember guys, you are not doing a good job. 13 They are the ones that are supposed to be talking not 14 you, but I mean, I do know you have to ask certain 15 questions and, you know, tell them a tiny bit about, you 16 know, what the case is about and in a few sentences, but 17 you are not going to go into detail at voir dire. 18 What else guys? What else do you anticipate? 19 I mean you've tried these construction defect cases 20 before. Who else has tried these construction defect 21 cases? Then you all need to tell me because this is my 22 first one -- all the ones we've had in other counties 23 have settled -- what other issues are we looking at? 24 MR. GRIFFITH: A lot of it is taken care of 25 since they are potentially going to be doing a lot of Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 204 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 their witnesses by video, that will make things consist 2 because what we really found on them some witnesses will 3 go 3, three and a half hours which is just insane 4 because your normal case is 20 to 45 minutes is about 5 all the jury can handle, but these guys go for all 6 afternoon. 7 MR. B. LOPEZ: I have a question about the 8 video, Your Honor. If you just give some clarification. 9 I've seen it done both ways. When a witness is called 10 by video the Plaintiff will play their side, the 11 Defendant will play their side, but here we have sort of 12 different parties. Do you want us to coordinate to 13 where we are going to play one video the whole time and 14 that's it? 15 MR. N. JOLLY: We are not agreeing to do that. 16 THE COURT: No, no, no. You play, you play 17 your side and then since they are going to -- everybody 18 is going to be exchanging excerpts. 19 MR. B. LOPEZ: Correct. 20 THE COURT: Then I don't want two of you to 21 play the same thing. 22 MR. GRIFFITH: Right. 23 MR. B. LOPEZ: Okay. So he goes -- Plaintiffs 24 will go first and then everybody else and we'll 25 coordinate it. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 205 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. GRIFFITH: On the defense side. 2 THE COURT: Right. 3 MR. B. LOPEZ: Okay. 4 THE COURT: That's not -- that's agreeable 5 isn't it Mr. Jolly? I mean. 6 MR. N. JOLLY: Well I am not really sure I 7 understand what he's talking about. 8 THE COURT: What he's saying is that you are 9 going to play your portion of your witness, and then 10 let's say Descon plays theirs and then. 11 MR. GRIFFITH: ERO. 12 THE COURT: ERO plays there's but they are not 13 going to be repeating what each other played because 14 they are going to be designating their sections of the 15 deposition. 16 MR. GRIFFITH: We'll coordinate. 17 THE COURT: That's going to be questioning 18 from you that you are going to be playing. 19 MR. OLIVEIRA: Correct. 20 THE COURT: You are not going to be playing 21 questions from him. 22 MR. GRIFFITH: Potentially I could if they 23 actually pertain but what we really needed to is they 24 have their excerpts, they provide them to us, we on the 25 defense side we'll put in together what we have, so what Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 206 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 we have, so there will be just one. 2 THE COURT: So then there was a joint defense, 3 right? Ha, ha, ha. 4 MR. GRIFFITH: It will be now. 5 MR. OLIVEIRA: It will be. 6 MR. N. JOLLY: There was. 7 THE COURT: Well I equalized the strikes 8 anyway so I am just -- I better not open another can of 9 worms here. Okay. 10 MR. GRIFFITH: Well yeah I mean I don't know 11 that there may be some evidence that's good for Descon 12 and bad for them. 13 THE COURT: I just don't want all of you to be 14 playing the same excerpts again and again and again. 15 MR. N. JOLLY: Or the same video they play. 16 THE COURT: In that regard, Mr. Jolly, it does 17 make sense that they would get together on that. 18 MR. N. JOLLY: They have been doing it anyway 19 might as well continue. 20 THE COURT: Exactly. Ha, ha, ha. 21 MR. SMITH: Not exactly, Your Honor. 22 THE COURT: Okay. 23 MR. SMITH: Ha, ha, ha. 24 THE COURT: Well, okay, whatever. 25 MR. OLIVEIRA: You are so cynical. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 207 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE COURT: Okay. Whatever. A ruling has 2 already been made with reference to that. 3 MR. SMITH: Correct. 4 MR. GRIFFITH: Exactly. 5 THE COURT: Let's not fight about that. 6 MR. SMITH: But instead of having Limon just 7 have one sentence because we'll discuss it and that 8 would be my druthers would be that it comes as a group 9 purely for the fact that it would only make sense like 10 that to the jury. 11 THE COURT: I've already said it makes sense. 12 MR. B. LOPEZ: Whatever is going to be 13 fastest. 14 THE COURT: Exactly. And gentlemen, remember, 15 remember, because all of you are highly intelligent 16 beings in this room and you all read statistics and a 17 person's -- the average person, their attention span is 18 15 minutes. 19 MR. N. JOLLY: 15 seconds? 20 THE COURT: 15 minutes. 21 MR. OLIVEIRA: That's Norman's. 22 THE COURT: Even the rosary it takes 12 to 15 23 minutes to pray a rosary. 24 MR. OLIVEIRA: They lose me at 30 seconds. 25 THE COURT: Well there you go. That's why I Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 208 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 said average person not every person. I mean, you know, 2 you start throwing stuff at this jury and, you know what 3 I am talking about. An hour long deposition, they are 4 zoned out after the first I think 10 to 15 minutes. 5 So, I mean y'all know what -- just -- it's 6 like my kid when I call him and I want to talk to him in 7 college, he says mom just give me the main points. 8 (Laughter). 9 THE COURT: He says main points mom, main 10 points. So I am like okay, you need money, I love you, 11 when can I see you, so I am just like -- because I know 12 for the rest he's not listening. So think about that. 13 What else guys? Anything else? 14 MR. GARZA: For purposes of presentation I am 15 assuming obviously the Plaintiff goes first, then you'll 16 go in the order of the defendants Descon, ERO, and get 17 to the -- eventually get to subcontractors. 18 MR. GRIFFITH: There's the Plaintiff, and then 19 there's Descon, ERO, and Halff, which are the main 20 defendants, and then there's the third-party defendants 21 which are now. 22 MR. DUNNAHOO: Limon, C & M, Twin City Glass, 23 D & J, and then Zarate. 24 THE COURT: Say that again. 25 MR. DUNNAHOO: Third-party defendants include Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 209 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 Limon, C & M -- 2 MR. B. LOPEZ: Why Limon goes first? 3 MR. DUNNAHOO: -- Twin City Glass, D & J, and 4 then Zarate. 5 THE COURT: So Plaintiff will go first, then 6 Descon, Limon, C & M. 7 MR. GRIFFITH: No. Plaintiff will go first 8 then Descon then ERO. 9 THE COURT: That's right. 10 MR. GRIFFITH: And then Halff. And those are 11 defendants to the extent that has any importance, and 12 then the third-party defendants are Limon and down that 13 list. 14 THE COURT: Okay. And Limon doesn't want to 15 go first. 16 (Laughter) 17 MR. B. LOPEZ: We'll do whatever you ask, Your 18 Honor. 19 THE COURT: We'll take it up that way. 20 Descon, ERO, Halff, and Limon, C & M, Twin City, D & J 21 and Zarate. Okay anything else? (pause) If there's 22 anything else, uh -- oh, well you know what? I am going 23 to be available next week, right? 24 I had a trial in Jim Hogg County starting on 25 Monday. But I've got -- my son is epileptic and he had Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 210 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 an attack, he's at U. T. Austin, and he had a little, 2 uh, seizure and so we've got an appointment with our 3 neurologist on Thursday, and so the trial in Jim Hogg 4 County is going to take a week, so I am getting a 5 visiting judge. So, I will be in Jim Hogg County on 6 Monday to do my regular docket, but a visiting judge 7 will be taking care of the trial, so then I'll be back 8 here on Monday afternoon -- well really Tuesday because 9 I don't know how long I am going to take at my docket up 10 there. So, if you all need anything Tuesday or 11 Wednesday you all can call my coordinator, and if 12 there's some craziness going on and you need like a 13 telephonic hearing because y'all are not being 14 cooperative, uh, and I am not looking at you Mr. Jolly 15 in a bad way. 16 MR. N. JOLLY: I was looking behind me. 17 (Laughter) 18 MR. OLIVEIRA: He was looking for Mike. 19 THE COURT: If there's any shenanigans going 20 on where somebody doesn't want to give somebody 21 something, or whatever, call Ana Maria Saenz and we'll 22 set up a little conference call because I'll be here 23 anyway and then Wednesday evening I'll probably head up 24 to Austin. 25 MR. GRIFFITH: Will you be back Friday, do you Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 211 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 think? 2 THE COURT: Why? 3 MR. OLIVEIRA: Just in case. 4 THE COURT: I don't know. But I mean you can 5 call Ana Maria and see if there's any issues. I mean I 6 at least would be reachable by phone because I think my 7 nephew is also playing in some game or something in 8 Austin on Friday. 9 MR. GRIFFITH: Wednesday then if we did have 10 something Wednesday would be the best time. 11 THE COURT: Right. Even Monday. Monday 12 Tuesday or Wednesday. 13 MR. GRIFFITH: We are not going to fight 14 enough by Monday to have a problem. 15 THE COURT: Probably not but Tuesday or 16 Wednesday y'all probably will be scratching each other's 17 eyes out. 18 MR. GRIFFITH: Right. 19 THE COURT: Or punching each other or doing 20 who knows what but, uh, who was your mediator? I should 21 have sent you all to Bob Thornton like I wanted to. 22 MR. GRIFFITH: Steve Nelson. We are really 23 far apart though. 24 THE COURT: Well get closer. But anyway, you 25 know, I can't force you to settle. I can't. I wish I Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 212 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 could but I can't. Uh, we'll just have to see how this 2 plays out but, uh, I will be available and, uh, we'll 3 see how much of it we can do the first week. How long 4 did your construction case take in Zapata County? 5 MR. GRIFFITH: We settled it but after four or 6 five days we had only gone through four witnesses. It 7 took a long time. Yeah but because we were doing video 8 I think some -- 9 THE COURT: Was that with Tono Lopez, with 10 Judge Lopez? 11 MR. GRIFFITH: Yes. 12 MR. GUERRA: Yes. 13 THE COURT: He was putting up with you all 14 four witnesses in four days? 15 MR. GRIFFITH: Yes. 16 THE COURT: Well I am not Judge Lopez. He's a 17 lot nicer than I am. 18 MR. N. JOLLY: We were there for two weeks, it 19 wasn't four days. 20 MR. GRIFFITH: But actual -- it took a 21 while -- 22 THE COURT: Oh, it was the same parties? 23 MR. GRIFFITH: -- before we started putting 24 on -- yeah, he was the Plaintiff's attorney. How many 25 witnesses did you get to? Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 213 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. N. JOLLY: I know we were there two weeks. 2 MR. GRIFFITH: But a lot of it was pre-trial 3 stuff and things we were arguing about, and no, I think 4 I only remember four or five witnesses. 5 MR. N. JOLLY: And that particular attorney, 6 uh, for the general contractor, was -- 7 MR. GRIFFITH: Is not here. 8 MR. N. JOLLY: -- was not getting time limits. 9 He was allowed to go on and on and on. 10 THE COURT: That's not going to happen here. 11 MR. N. JOLLY: Whether I paper clip something, 12 the guy had a complaint about everything. 13 THE COURT: That's not going to happen here. 14 MR. GRIFFITH: If we are tighter it won't 15 happen here, but the fact that there's 7 or 8 parties 16 right here tells you that there's at least one expert 17 that's 8 maybe two experts that's 16 -- 18 THE COURT: I am telling you about excerpts 19 and I am telling you to do it this week end and next 20 week, and if you don't do it you are subject to being 21 stricken because I am telling you already, I am telling 22 you to do it now. 23 MR. GRIFFITH: I meant experts. 24 THE COURT: No, no I heard what you said. 25 MR. GRIFFITH: And we have individual Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 214 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 corporate reps that's another 8 so right there you are 2 almost to 30 people. 3 THE COURT: But when you have a corporate 4 rep., that's going to testify, you don't need his whole 5 history. 6 MR. GRIFFITH: No. 7 THE COURT: I mean just stick to the basics 8 like what does the jury have to know in order to make an 9 informed decision here? I don't want to know how many 10 dogs and cats and pets and friends he has, I don't want 11 to know, and what civic organizations, you know. 12 MR. GRIFFITH: Although just to be fair, Your 13 Honor, the school district everybody knows. Everybody 14 knows the children of Starr County. We are coming in -- 15 we are from the Valley but we may be from Hidalgo or 16 Cameron. 17 THE COURT: I am not saying you can't talk -- 18 MR. GRIFFITH: We have to talk about ourselves 19 a little bit. 20 THE COURT: I am not saying you can't humanize 21 them or whatever. 22 MR. OLIVEIRA: Just do it quickly. 23 THE COURT: I don't want to know about the 24 cats and the dogs, I don't want to know, and my kid's 25 this Harvard and/or if they are going to say it, say it Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 215 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 in one sentence. I have 20 grandchildren and I love 2 them and I see them in the weekends and I'm a great 3 grampa okay, fine move on. You tan talk about them to 4 some extent but I don't want to know what are their 5 names and how is little Cici doing and -- 6 MR. OLIVEIRA: No. 7 THE COURT: Is she going to private school or 8 public school or -- 9 MR. OLIVEIRA: No it will be -- 10 THE COURT: -- I am not going to let that 11 happen and I will get really upset, you know, back here 12 and I am really a nice person so but don't push me over 13 the edge. 14 MR. OLIVEIRA: No it will just be the basic. 15 THE COURT: Just what they need to know. Just 16 what they need to know, and they'll love you for it. 17 Just tell them what they need to know. 18 MR. DUNNAHOO: Your Honor, one last thing, a 19 little housekeeping matter. I know you had a very busy 20 day -- 21 THE COURT: I am fine. 22 MR. DUNNAHOO: There was Zarate's Motion for 23 Summary Judgment, and before you take it back to, to 24 read it, I wanted to make sure that you had available 25 the reply that Zarate filed to Descon's response. Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 216 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 MR. SMITH: I think there was the summary 2 judgment, we did a response, they did a reply. 3 MR. DUNNAHOO: I don't know if you had a 4 reply. 5 THE COURT: Did you file it? 6 MR. DUNNAHOO: We did. 7 THE COURT: What am I pending giving you a 8 resolution on? 9 MR. DUNNAHOO: Motion for Summary Judgment for 10 Zarate. 11 MR. GARZA: On behalf of C & M Contracting the 12 Motion to Exclude Mr. O'Bannon testimony as to the roof. 13 THE COURT: Those are the two things I have 14 left? 15 MR. B. LOPEZ: Which Limon joined in as well 16 for the motion to exclude. 17 MR. SMITH: And Descon did as well. 18 THE COURT: Okay. Limon and other defendants 19 join. 20 THE COURT: Okay, guys, have a fun weekend. 21 MR. B. LOPEZ: Thank you, Your Honor. 22 MR. N. JOLLY: Thank you, Judge. 23 THE COURT: Thank you. 24 (END OF HEARING) 25 Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas DC-14-46, RGCCISD v. Descon Construction et al 217 Pretrial Motions, May 1, 2015, Volume 1 of 1 1 THE STATE OF TEXAS ) 2 COUNTY OF STARR ) 3 I, Ramiro Hernandez, Official Court Reporter in and for 4 the 229TH District Court of Starr County, State of Texas, do 5 hereby certify that the above and foregoing pages contain a 6 full, true, and correct court reporter's record of all 7 proceedings heard on the record at the hearing of Pretrial 8 Motions regarding cause number DC-14-46 Rio Grande City 9 Consolidated Independent School District v. Descon 10 Construction et al, all of which occurred in open court and 11 were reported by me. 12 I further certify that this Reporter's Record of the 13 proceedings truly and correctly reflects that no exhibits were 14 offered or admitted. 15 I further certify that the total cost for the preparation 16 of the expedited original and one copy of this Reporter's 17 Record is $2,170.00 and shall be paid by Mr. David Oliveira or 18 his firm. 19 WITNESS MY OFFICIAL SIGNATURE AND CERTIFICATION in accordance with Section 8.11 and 8.11(3) of the Uniform 20 Format Manual for Texas Court Reporters as ordered by the Supreme Court of Texas. 21 /s/ RAMIRO HERNANDEZ 5/3/2015 22 ____________________________________ Ramiro Hernandez, CSR, RPR, CRR, RMR, 23 Official Court Reporter, 229th Judicial District, Starr County, Texas, 24 P. O. Box 185, Hebbronville, Tx. 78361-0185 Phone: 361-279-6233, 956-487-2636 25 Cert. No. 763 Expires 12/31/2016 Heard By The Honorable Ana Lisa Garza, District Judge 229th Judicial District: Starr, Duval & Jim Hogg Counties, Texas Tab 2 Tab 3 Tab 4 Tab 5 Tab 6 Filed: 4/24/2015 3:38:00 PM Eloy R. Garcia, District Clerk Starr County, Texas Dulce Morin CAUSE NO. DC-14-46 RIO GRANDE CITY CONSOLIDATED § IN THE DISTRICT COURT OF INDEPENDENT SCHOOL DISTRICT § § VS. § STARR COUNTY, TEXAS § TEXAS DESCON, L.P. fka § DESCON CONSTRUCTION, L.P., § ERO INTERNATIONAL, LLP, § DANIEL L. BLOCK, ELI R. OCHOA § HALFF ASSOCIATES, INC. and § MENTON J. MURRAY, III, P.E., et al § 229th JUDICIAL DISTRICT PLAINTIFF’S THIRTEENTH AMENDED ORIGINAL PETITION (GRULLA ELEMENTARY SCHOOL) TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Plaintiff, Rio Grande City Consolidated Independent School District (RGCCISD), complaining of Defendants and all third party Defendants, and would respectfully show this Honorable Court as follows: I. Parties Plaintiff is situated in Starr County, Texas and a political subdivision of the State of Texas. Defendants, and Third Party Defendants; Texas Descon, L.P., fka Descon Construction, L.P., ERO International, LLP., Daniel L. Block, Eli R. Ochoa, Halff Associates, Inc., Menton J. Murray, III, P.E., C&M Contracting, Inc., AAS Consulting, Inc., dba Advance Air Systems, C.A.Ray & Son Painting Contractors, Inc., Limon Masonry, Inc., Faires Plumbing Co., Inc., D&J Site Construction, Inc., RGV-R&R Construction Services, LLC., Daniel Vasquez, Individually and dba Twin City Glass, and Zarate Suspended Ceiling, Inc., have appeared in this matter. 1 Descon Construction, L.P., contracted with plaintiff and constructed Grulla Elementary, thereafter it was renamed to its successor company “Texas Descon, L.P.” under a licensing agreement to carry on the business and reputation of Descon Construction, L.P., therefore plaintiff sues Texas Descon, L.P. fka Descon Construction, L.P., for purposes of enforcing its substantive rights, pursuant to Texas Rule of Civil Procedure 28. II. Discovery Control Plan Plaintiff requests that discovery be conducted pursuant to TRCP 190.3(1), Level 3, monetary relief over one million dollars and judgment for all other relief to which Plaintiff is entitled. III. Venue Venue is mandatory in Starr County, Texas pursuant to CPRC sect. 15.011 because this action is for recovery of damages to real property. Venue is also proper in Starr County under the general venue rule CPRC sect. 15.002 because all or a substantial part of events or omissions giving rise to the claims against the Defendants occurred in Starr County. IV. Breach of Contract and Implied and Express Warrant of Good and Workmanlike Manner This suit arises from the construction of the Grulla Elementary school which will be referred to herein as (“the Project”). Defendants, Descon, ERO, Block, Ochoa, Halff & Murray were involved in the design and/or construction of the Project. Plaintiff would show that Defendants’ breach of contract and failure to design and construct the project in a good and workmanlike manner was a proximate cause of damages and losses to Plaintiff. Plaintiff would show Defendants breached their 2 contracts by one or more acts or omissions identified in the previously attached certificates of merit which are incorporated herein and one or more of the following ways: 1. Failure to follow the plans and specifications; 2. Failure to implement and install specified components and materials; 3. Failure to properly sequence work with the various trades; 4. Failure to construct the project pursuant to minimal industry standards; 5. Substituting without authority materials and equipment with cheaper and lower quality materials and failing to properly credit Plaintiff for the cost difference; 6. Failure to comply with applicable codes and standards; and 7. Failure to construct the project in a good and workmanlike manner. VII. CROSS CLAIMS AND NEGLIGENCE Plaintiff cross claims all third party defendants for negligence due to their failure to follow the plans and specifications, failure to construct the project pursuant to minimal industry standards, and failure to construct the project in a good and workmanlike manner, any one of which was a proximate and foreseeable cause of damages to components of the building and structure. Defendant Descon also breached its express warranty within the first year of occupancy by failing to properly correct known defects which were also a proximate cause of plaintiff’s damages. VIII. Interest Plaintiff sues for and is entitled to pre-judgment and post-judgment interest at the maximum rates allowed by law. 3 IX. Damages Plaintiff will show it has sustained actual and physical damages to tangible property in the past, and after completion of the Project, and will sustain in the future, for which the Defendants are liable should not exceed fifteen million dollars and includes, but is not limited to the following: 1. The difference between the value of the Defendant’s workmanship, service and materials and the value actually received; 2. The reasonable and necessary cost to repair/replace Defendants’ defective workmanship; 3. Reasonable and necessary expenses incurred in attempting to mitigate Plaintiff’s losses; 4. Reasonable and necessary costs to provide alternative facilities during the time period the subject building is unusable or impaired; 5. Damages to the Project caused by water intrusion; 6. Reasonable and necessary attorney’s fees pursuant to CPRC Chapter 38, based upon the attorney hours worked, hourly rate, the Arthur Andersen and Johnson factors, plaintiff will move the Honorable Court to determine an appropriate lodestar adjustment by multiplying plaintiff’s attorney’s fees upward, for which presentment is hereby made; and 7. Damage to other portions and contents of Plaintiff’s building separate from the remedial cost damages caused by Defendants; and PLAINTIFF DEMANDS A JURY TRIAL. 4 Respectfully submitted: /s/ Norman Jolly By:_____________________ Norman Jolly TBA# 10856920 Michael B. Jolly TBA# 10856910 James J. Parker TBA# 15488020 Hamilton G. Rucker TBA# 24067850 405 Main, Suite 1000 Houston, Texas 77002 Tel: (713) 237-8383 Fax: (713) 237-8385 Martie Garcia Vela 100 West 5th Street Rio Grande City, TX 78582 Tel: (956) 488-8170 Fax: (956) 488-8129 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing was forwarded to all counsel of record, pursuant to the Rules of Procedure, on this the 24th day of April, 2015. /s/ Norman Jolly ____________________________ Norman Jolly 5 Tab 7 Tab 8 Tab 9 CAUSE NO. DC-14-46 RIO GRANDE CITY CONSOLIDATED § IN THE DISTRICT COURT OF INDEPENDENT SCHOOL DISTRICT § § VS. § STARR COUNTY, TEXAS § DESCON CONSTRUCTION, L.P., et al § § 229th JUDICIAL DISTRICT PLAINTIFF’S THIRTEENTH AMENDED ORIGINAL PETITION (b) (GRULLA ELEMENTARY SCHOOL) TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Plaintiff, Rio Grande City Consolidated Independent School District (RGCCISD), complaining of Defendants named below, and would respectfully show this Honorable Court as follows: I. Parties Plaintiff is situated in Starr County, Texas and is a political subdivision of the State of Texas. Defendants, Descon Construction, L.P., and ERO International, L.P. agreed in their contracts with plaintiff to “bind themselves, their partners, successors, assigns and legal representatives to the other party (RGCCISD) to this agreement and to the partners, successors, assigns, and legal representatives of such other party in respect to covenants agreements and obligations contained in the Contract Documents”, namely the construction agreement they had with plaintiff. Therefore, plaintiff alleges J. Wayne Medlin aka/dba Descon Management, L.L.C., aka/dba Maco Management, L.L.C., aka/dba Michael C. Smith aka/dba Descon 4S, L.L.C., aka/dba Descon Construction, L.P., aka/dba Texas Descon, L.P., each individually, dba and fka Descon Construction, L.P. (hereinafter, collectively referred to as “Descon”) and Daniel Block and Eli R. Ochoa each individually and each aka/dba ERO International, L.L.P., and 1 aka/dba ERO Architects (hereafter, correctively referred to as “ERO”) have privity with plaintiff. Each of the above named entities and persons are doing business under their assumed or common names and pursuant to Texas Rule of Civil Procedure 28 each is liable to Plaintiff for purposes of plaintiff enforcing their substantive rights. Plaintiff would also show that on January 25, 2006 Descon Construction, L.P. was renamed to its successor company Texas Descon, L.P. under a licensing agreement to allegedly carry on the tradition and reputation of Descon Construction, L.P., The successor company Texas Descon, L.P. was founded by its partner Michael C. Smith. No service is necessary on the substituted persons and/or entities as the original commencement of suit was effective notice to each party pursuant to TRCP 28. Defendants, Halff Associates, Inc. and Menton J. Murray, II PE., have appeared and answered. II. Discovery Control Plan Plaintiff requests that discovery be conducted pursuant to TRCP 190.3(1), Level 3, as it seeks monetary relief over one million dollars and judgment for all other relief to which Plaintiff is entitled. III. Venue Venue is mandatory in Starr County, Texas pursuant to CPRC sect. 15.011 because this action is for recovery of damages to real property. Venue is also proper in Starr County under the general venue rule CPRC sect. 15.002 because all or a substantial part of events or omissions giving rise to the claims against the Defendants occurred in Starr County. 2 IV. Breach of Contract and Implied and Express Warranty of Good and Workmanlike Manner This suit arises from the construction of the Grulla Elementary school which will be referred to herein as (“the Project”). Defendants, Descon, ERO, Block, Ochoa, Halff & Murray were involved in the design and/or construction of the Project. Plaintiff would show that Defendants’ breach of contract and failure to design and construct the project in a good and workmanlike manner and breach of express warranties was a proximate cause of damages and losses to Plaintiff. Plaintiff would show Defendants breached their contracts by one or more acts or omissions identified in the previously attached certificates of merit which are incorporated herein and one or more of the following ways: 1. Failure to follow the plans and specifications; 2. Failure to implement and install specified components and materials; 3. Failure to properly sequence work with and between the various trades; 4. Failure to construct the project pursuant to minimal industry standards; 5. Substituting without authority materials and/or equipment with cheaper and lower quality materials and/or equipment and failing to properly credit Plaintiff for the cost difference; 6. Failure to comply with applicable codes and/or standards; 7. Failure to construct the project in a good and workmanlike manner; and 8. Breach of express warranties. 3 V. Negligence of Halff/Murray Plaintiff sues Halff and Murray for their negligence which is a proximate cause of Plaintiff’s damages and losses. VI. Interest Plaintiff sues for and is entitled to pre-judgment and post-judgment interest at the maximum rates allowed by law. VII. Damages Plaintiff will show it has sustained actual and physical damages to tangible property in the past, and after completion of the Project, and will sustain damages in the future, for which the Defendants are liable. Such damages should not exceed fifteen million dollars and include but are not limited to the following: 1. The difference between the value of the Defendant’s workmanship, services and materials and the value actually received; 2. The reasonable and necessary cost to remediate, repair, or replace Defendants’ defective workmanship; 3. Reasonable and necessary expenses incurred in attempting to mitigate Plaintiff’s losses; 4. Reasonable and necessary costs to provide alternative facilities during the time period the subject building is unusable or impaired; 5. Damages to the Project caused by water intrusion; 6. Reasonable and necessary attorney’s fees pursuant to CPRC Chapter 38, based upon the attorney hours worked, hourly rate, the Arthur Andersen and Johnson factors, plaintiff will move the Honorable Court to determine an appropriate 4 lodestar adjustment by multiplying plaintiff’s attorney’s fees upward, for which presentment is hereby made; and 7. Damage to other portions and contents of Plaintiff’s building separate from the remedial cost damages caused by Defendants. VIII. Joint and Several Liability Plaintiff would show that all Descon and ERO entities and partners are vicariously, jointly and severally liable to plaintiff for their respective damages. PLAINTIFF DEMANDS A JURY TRIAL. Respectfully submitted: /s/ Norman Jolly By: _____________________ Norman Jolly TBA# 10856920 Michael B. Jolly TBA# 10856910 James J. Parker TBA# 15488020 Hamilton G. Rucker TBA# 24067850 405 Main, Suite 1000 Houston, Texas 77002 Tel: (713) 237-8383 Fax: (713) 237-8385 Martie Garcia Vela 100 West 5th Street Rio Grande City, TX 78582 Tel: (956) 488-8170 Fax: (956) 488-8129 Eric Jarvis 5804 N. 23rd Street McAllen, Texas 78504 Tel: (956) 451-5247 Fax: (956) 687-4001 5 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing was forwarded to all counsel of record, pursuant to the Rules of Procedure, on this the 29th day of April, 2015. /s/ Norman Jolly ____________________________ Norman Jolly 6 Tab 10