in Re PlainsCapital Bank

NUMBERS 13-16-00210-CV & 13-16-00463-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

PLAINSCAPITAL BANK, Appellant,

v.

RICARDO DIAZ MIRANDA, Appellee.

On appeal from the 275th District Court
of Hidalgo County, Texas.

NUMBER 13-16-00464-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE PLAINSCAPITAL BANK

On Petition for Writ of Mandamus.
 ORDER ABATING APPEAL
AND REFERRING CASE TO MEDIATION
Before Justices Rodriguez, Benavides, and Longoria
Order Per Curiam

In cause number 13-16-00210-CV, appellant PlainsCapital Bank (“PlainsCapital”)

appeals the final judgment of the underlying jury trial against appellee Ricardo Diaz

Miranda (“Miranda”). In cause number 13-16-00463-CV, PlainsCapital appeals a post-

trial “Order Granting [Miranda’s] Motion to Compel Acceptance of Payment and for

Release of Lien.” In cause number 13-16-00464-CV, PlainsCapital filed a petition for writ

of mandamus and accompanying emergency motion to stay the trial court’s August 19,

2016 order that required PlainsCapital to accept payment and release of lien. On August

19, 2016, this Court granted that request and ordered the trial court’s order stayed

pending further order of this Court, or until the case is finally decided. See TEX. R. APP.

P. 52.10(b).

On January 26, 2017, this Court submitted the above-referenced causes after

receiving oral arguments from all parties. After full consideration of the issues involved

in these causes, the Court has determined that these appeals and original proceeding

should be referred to mediation.

Accordingly, we ABATE these causes and ORDER them to mediation as follows.

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

2
2. All parties must confer with their mediator within seven days of the date
of this Order to establish a date and place for the mediation. The parties
shall agree on a date for the mediation that is consistent with the
mediator’s schedule and is no later than thirty days after the date of this
Order. In the event the parties cannot agree on a date, the mediator
shall select and set a date. The mediator shall notify the Court of the
date selected for the mediation.

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

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

5. Mediation is a mandatory, non-binding settlement conference conducted
with the assistance of a mediator. The mediation proceeding will be
confidential within the meaning of the Texas Civil Practice and
Remedies Code sections 154.053 and 154.073. See TEX. CIV. PRAC. &
REM. CODE ANN. §§ 154.053, 154.073 (West, Westlaw through 2015
R.S.).

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

7. The mediator will negotiate a reasonable fee with the parties. The
mediator's fee will be borne equally by the parties unless otherwise
agreed by the parties, and will be paid directly to the mediator. If the
parties do not agree upon the fee requested by the mediator, the Court
will set a reasonable fee, which shall be taxed as costs. See id. §
154.054 (West, Westlaw through 2015 R.S.).

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

3
 9. If mediation fully resolves the issues in these cases, the parties must file
a joint or agreed motion with this Court seeking dispositive relief within
seven days of the conclusion of the mediation. If the parties need more
time to effectuate the terms of the settlement agreement, they must,
within seven days of the conclusion of mediation, file a joint or agreed
motion for an extension of time to file their disposition motion.

It is FURTHER ORDERED that these cases are ABATED pending this Court’s

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

IT IS SO ORDERED.

PER CURIAM

Delivered and filed the
2nd day of February, 2017.

4