David Mauk v. Pipe Creek Water Well, LLC and Robert Rae Powell

ACCEPTED
04-14-00906-cv
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
1/15/2015 4:42:26 PM
KEITH HOTTLE
CLERK

No. 04-14-00906

IN RE: DAVID MAUK § IN THE FOURTHFILED IN
4th COURT OF APPEALS
Relator § SAN ANTONIO, TEXAS
§ 01/15/2015 4:42:26 PM
§ COURT OF APPEALS
KEITH E. HOTTLE
§ Clerk
§
§ SAN ANTONIO, TEXAS

MOTION TO STAY TRIAL COURT PROCEEDINGS
__________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

Defendant Appellant and now real party in interest (“Relator”) herein, David

Mauk, files this Motion to Stay Trial Court Proceedings pending the Fourth Court

of Appeals’ determination of Appellant’s Notice of Interlocutory Appeal resulting

from the trial court’s denial of Defendant’s Amended Motion to Dismiss for Lack of

Jurisdiction-Tex. Civ. Prac. Rem. Code §101.106(f) (“Plea to the Jurisdiction”) and

shows:

A. INTRODUCTION

1. Adolfo Ruiz, with the law firm of McKamie Krueger, LLP, State Bar No.

17385600, is the lead counsel for the filing party. Mr Ruiz’s address and contact

information are as follows: 941 Proton Road, San Antonio, Texas 78258; telephone

no. (210) 546-21-22; fax no. (210) 546-2130; e-mail address

adolfo@mckamiekrueger.com. The record will reflect that Relator, David Mauk, is

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a governmental employee and General Manager for the Bandera County River

Authority and Ground Water District (“BCRAGD”) a political subdivision of the

State of Texas created in 1971, by the 62nd Texas Legislature under House Bill 988

and the provisions of Article XVI, Section 59 of the Texas Constitution.1

BCRAGD’s governing body is comprised of a board of directors. Tex. Water Code

§36.051. The board may delegate to the general manager full authority to manage

and operate the affairs of the district. Tex. Water Code §36.056.

2. Relator filed his accelerated Interlocutory Appeal as a result of the trial court’s

order denying Defendant’s Plea to the Jurisdiction pursuant to Tex. R. App. P. 28.1.

Relator perfected his Interlocutory Appeal pursuant to Tex. R. App. P. 28.1 (b) by

filing his Notice of Interlocutory Appeal with the Bexar County District Clerk and

the Fourth Court of Appeals on December 22, 2014, and December 24, 2014,

respectively. Plaintiffs/Appellees received notice of the filings on the same date.

(See Appendix #1 and #2).

3. After filing Relator’s Notices of Interlocutory Appeal, Plaintiffs/Appellees

filed their Motion for Mediation on December 29, 2014, setting the motion for

hearing before the Bexar County Alternate Dispute Resolution District Judge,

Antonia Arteaga, for January 14, 2015. (See Appendix #3). Relator filed an

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A copy of the trial court’s record was not available to Relator’s attorney in the preparation of this
motion.
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Advisory to the Court notifying Judge Arteaga of the stay of proceedings pursuant

to Tex. Civ. Prac. & Rem. Code §51.014(b) and arguing to the court at the hearing

that the trial court has no jurisdiction to consider Plaintiffs’/Appellees’ Motion for

Mediation. In the alternative, subject to Relator’s Plea to the Jurisdiction, Relator

requested Judge Arteaga to wait on ordering mediation until the determination of

Relator’s Plea to the Jurisdiction, because a ruling on the Plea to the Jurisdiction in
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Relator’s favor will end the litigation. (See Appendix #4). Despite Relator’s

arguments, Judge Arteaga ordered that the parties participate in mediation the first

week of March 2015.

B. ARGUMENT & AUTHORITIES

4. A plea to the jurisdiction contests the trial court’s power to determine the

subject matter of the controversy. Texas Hwy. Dep’t v. Jarrell, 418 S.W. 2d 486,

488 (Tex. 1967); American Pawn & Jewelry, Inc. v. Kayal, 923 S.W. 2d 670, 672

(Tex. App. –Corpus Christi 1996, writ den’d); State v. Benavides, 772 S.W. 2d 271,

273 (Tex. App.–Corpus Christi 1989, writ den’d). Subject matter jurisdiction is

essential to the authority of the Court to decide a case. Texas Ass’n of Bus. v. Texas

Air Bd., 852 S.W. 2d 440, 443 (Tex. 1993). Want of jurisdiction arrests a cause of

action at any stage in the proceeding. Liberty Mut. Ins. Co. v. Sharp, 874 S.W. 2d

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Relator also requested, in the alternative, that the trial court wait until after the parties dispositive
motions are filed and ruled upon by the trial court.
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736, 739 (Tex. App.–Austin 1994, writ den’d). Without subject matter jurisdiction,

a court cannot render a valid judgment. Garcia Marroquin v. Nueces County Bail

Bd., 1 S.W. 3d 336, 374 (Tex. App.–Corpus Christi 1999, n.p.h.) Subject matter

jurisdiction is not presumed and cannot be waived. Continental Copy Products Co.

v. Cazarez, 937 S.W. 2d 444, 448-49 n.2 (Tex. 1996).

5. The trial court’s denial of Relator’s Plea to the Jurisdiction is immediately

appealable under Tex. Civ. Prac. & Rem Code §51.014(a) (8).

6. The perfection of an interlocutory appeal from a trial court denying the Plea

to the Jurisdiction stays all proceedings in the trial court, including trial on the merits,

pending the resolution of the appeal. Tex. Civ. Prac. & Rem. Code §51.014(b).

7. Also, the trial court is prohibited by statute, Tex. Civ. Prac. & Rem. Code

§51.014(b), from retaining jurisdiction of trial court proceedings while an appeal

from an interlocutory order is pending. Tex. R. App. P. 29.5.

8. Irrespective of §51.014(b) statutory stay, the Appellate Court may grant a

Motion to Stay as a temporary order when an appeal from an interlocutory order is

perfected in order to preserve the Relator’s rights until the disposition of the appeal.

Tex. R. App. P. 29.3.

9. Relator is requesting a stay of the trial court proceedings because the trial

court’s order for Relator to participate in mediation at this stage interferes with or

impairs the jurisdiction of the Appellate Court, the effectiveness of any relief sought

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by Relator, and the relief that may be granted to Relator on appeal. Before the Court

of Appeals has an opportunity to consider Relator’s filed dispositive Plea to the

Jurisdiction, the trial court determined that it has jurisdiction of this litigation and

ordered the parties to mediation in early March to obtain a final resolution of this

case. The trial court ignored Relator’s attorney’s alternative request to give the Court

of Appeals more time to make its determination on Relator’s Plea to the Jurisdiction.

The trial court’s action impairs the Appellate Court’s jurisdiction and the

effectiveness of the relief sought by Relator on appeal. Tex. R. App. P. 29.5. The

Court of Appeals’ determination of Relator’s Plea to the Jurisdiction will materially

advance the ultimate termination of the litigation by determining if the trial court has

jurisdiction to consider Plaintiffs’/Appellees’ case against Relator rendering

mediation moot if Relator’s Plea to the Jurisdiction is granted.

10. Relator includes a verification herein to establish facts not in the record and

not within the court’s knowledge in its official capacity. Tex. R. App. P. 10.2. Said

facts are set forth in Attachments #1 through #4 herein and described in the index.

C. CONCLUSION

11. An order staying the trial court proceedings is necessary not only because of

the immediate stay granted by statute Tex. Civ. Prac. & Rem. Code §51.014(b), but

because participation in court ordered mediation prior to the Court of Appeals’

determination of Relator’s Plea to the Jurisdiction, that may end the litigation, will

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place Relator in an unfair status, by taking away or severely restricting his ability to

legally seek dismissal of the case brought by Plaintiff/Appellees against Relator.

Also, Relator will be forced to expend time and resources to participate in a good

faith mediation when dispositive issues that will be beneficial to Relator are still

outstanding. Such a circumstance makes the required good faith mediation

impossible.

D. PRAYER

For the reasons stated in this motion, Relator asks relief from the Court of

Appeals to maintain the status quo of the parties; preserve the Court of Appeals’

jurisdiction; and stay all trial court proceedings to include trial court ordered

mediation the first week of March 2015.

CERTIFICATE OF CONFERENCE

I certify that I have conferred with Appellees’ counsel, Megan H. Kucera, by

telephone about the merits of Relator’s Motion for Stay of Trial Court Proceedings

and she is opposed to the motion.

Respectfully submitted,

MCKAMIE KRUEGER, LLP
941 Proton Road
San Antonio, Texas 78258
210.546.2122 Telephone
210.546.2130 Facsimile

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CERTIFICATE OF SERVICE

I certify that a true and correct copy of Relator’s Motion to Stay Trial Court
Proceedings has been served on the party listed below by electronic service and that
the electronic transmission was reported as complete. My e-mail address is
adolfo@mckamiekrueger.com.

Keith P. Miller
Megan H. Kucera
Law Offices of Keith P. Miller, PC
14350 Northbrook, Suite 150
San Antonio, Texas 78232

/s/ Adolfo Ruiz
Adolfo Ruiz

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No. 04-14-00906-CV

IN THE FOURTH COURT OF APPEALS
at SAN ANTONIO, TEXAS
__________________________________________________________________
DAVID MAUK

Appellant

PIPE CREEK WATER WELL, LLC and ROBERT RAE POWELL

Appellees

__________________________________________________________________

Cause No. 2013-CI-00386; Appeal from the 408th Judicial District Court, Bexar
County, Texas
__________________________________________________________________

APPENDIX TO RELATOR’S MOTION TO STAY
__________________________________________________________________

Exhibits:

TAB 1: Notice of Interlocutory Appeal and Supersedeas (Accelerated) on the
Denial of Plea to the Jurisdiction, filed with the Bexar County District
Clerk, and served on opposing counsel Megan Kucera via facsimile on
December 22, 2014.

TAB 2: Notice of Interlocutory Appeal, filed with the Fourth Court of Appeals
at San Antonio, Texas and served on opposing counsel Megan Kucera
via facsimile on December 24, 2014.
TAB 3: Plaintiffs’ Motion for Mediation, filed with the Bexar County District
Clerk, and served by opposing counsel Megan Kucera via facsimile on
December 29, 2014.

TAB 4: Defendant’s Advisory to the Court and in the Alternative, Motion to
Postpone Referral of Matter to Mediation, served on opposing counsel
Megan Kucera via facsimile on January 9, 2015 and filed with the
Bexar County District Clerk on January 12, 2015.
TAB 1
TAB 2
TAB 3
TAB 4