in Re CVR Energy, Inc., CVR Partners, LP, CVR Refining, LP, Gary-Williams Energy Company, LLC

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ACCEPTED 01-15-00877-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/15/2015 4:07:10 PM CHRISTOPHER PRINE CLERK NO. 01-15-00715-CV FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS IN THE FIRST DISTRICT COURT OF APPEALS 10/15/2015 4:07:10 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk IN RE CVR ENERGY, INC. AND CVR REFINING, LP, RELATORS Original Proceeding th From the 268 Judicial District Court of Fort Bend County, Texas Cause No. 2015-DCV-220330 The Honorable Brady G. Elliott, Presiding RELATORS’ EMERGENCY MOTION TO STAY UNDERLYING LITIGATION PENDING RESOLUTION OF PETITION FOR WRIT OF MANDAMUS Phillip D. Sharp Lee M. Smithyman State Bar No. 18118680 Kansas State Bar No. 09391 MARTIN, DISIERE, JEFFERSON & SMITHYMAN & ZAKOURA, CHARTERED WISDOM, L.L.P. 750 Commerce Plaza II Building 808 Travis, 20th Floor 7400 West 110th Street Houston, Texas 77002 Overland Park, Kansas 66210-2362 (713) 632-1700 – Telephone (913) 661-9800 – Telephone (713) 222-0101 – Facsimile (913) 661-9861 – Facsimile sharp@mdjwlaw.com lee@smizak-law.com Application for pro hac admission pending 1 TO THE HONORABLE COURT OF APPEALS: On October 12, 2015, Judge James Shoemake denied the relator’s motion for leave to designate the real parties in interest/plaintiffs’ employer, Wynnewood Refining Company, LLC as a responsible third party. Rec. Tab 16. On October 14, 2015, the relators initiated this mandamus proceeding asking the Court to compel Judge Shoemake to vacate his order denying the motion for leave and to grant the motion. The relators now seek emergency interim relief, asking this Court to order a stay of the quickly approaching October 20, 2015 trial setting of the underlying case in order to avoid otherwise unavoidable error and harm in trying the underlying proceeding without allowing the jury to consider the negligence, if any, of the entity that controlled the premises on which the explosion occurred and who employed Mann and Smith, as well as to allow this Court the opportunity to thoughtfully consider the pending petition for writ of mandamus. ANALYSIS AND AUTHORITIES During the pendency of a mandamus proceeding, this court is authorized to grant temporary relief, including a stay of an underlying trial. Tex. R. App. P. 10; see also, e.g., J.G. v. Murray, 915 S.W.2d 548, 551 (Tex. App.—Corpus Christi 1995, no writ). The facts support such relief here. This matter arises out of a tragic accident occurring in Wynnewood, Oklahoma. On September 28, 2012, Russell Mann and Billy Smith, while in the 2 course and scope of their employment for Wynnewood Refining Company, were assisting in a re-start of a boiler at the Wynnewood Refinery, when the boiler suddenly exploded, killing both. See Rec. Tab 2 at ¶¶ 15-17. On September 30, 2013, the real parties in interest, sued the relators and Wynnewood Refining Company, alleging that Wynnewood’s acts and omissions proximately caused Mann and Smith’s deaths. See id. Wynnewood was a defendant in the underlying case from that point until April 22, 2015, when, despite the fact that the real parties continued to believe Wynnewood’s acts or omissions proximately caused Mann and Smiths deaths (see Rec. Tab 8), the real parties non-suited their claims against Wynnewood. Rec. Tab 14. Less than a month later, on May 18, 2015, the relators amended their disclosures to identify Wynnewood as a responsible third party and timely moved for leave to designate Wynnewood as a responsible third party pursuant to the Texas Civil Practice and Remedies Code. Rec. Tab 9. The trial court denied the motion for leave to designate Wynnewood as a responsible third party on October 12, 2015, eight days before trial in the underlying proceeding is scheduled to commence. See Rec. Tab 16. For the reasons noted in the relators’ petition for writ of mandamus, which the relators incorporate by reference but will not repeat here, there is no proper basis to deny 3 the motion for leave and the trial court abused its discretion by denying the motion. See Petition for Writ of Mandamus. The relators have filed an emergency motion in the trial court, asking it to reconsider its order denying the motion for leave and asking, in the alternative, for a stay of the quickly approaching trial to allow this Court the opportunity to consider the petition for writ of mandamus. Exhibit 1. However, the trial court has, to date, refused to schedule a hearing despite the relators’ request for same, and has not ruled on the emergency motion. 1 While the relators believe that the facts will establish at trial that they are not liable to the real parties, they cannot agree to try the case under the present procedural posture. Pursuant to the trial court’s improper ruling on the motion for leave, the jury would be improperly precluded from considering whether the real parties’ employer, who was also in control of the premise on which the explosion occurred, proximately caused the damage about which the real parties’ complain.2 1 In the event the trial court ultimately orders the trial stayed pending this mandamus proceeding, the relators’ will withdraw their motion in this Court. If the trial court grants the motion for reconsideration, the relators’ will dismiss their petition for writ of mandamus. 2 Indeed, there are other impediments to trying the underlying case at this time as the real parties are ostensibly seeking to try their wrongful death claims piecemeal, without all of the wrongful death beneficiaries represented in the lawsuit. See Rec. Tab 15. To recover an enforceable judgment under Texas’s wrongful death statutes, as the real parties’ seek to do, all of a deceased individual’s wrongful death beneficiaries are required to present their claims in a single lawsuit. Avila v. St. Luke's Lutheran Hosp., 948 S.W.2d 841, 850 (Tex. App.—San Antonio 1997, writ denied). Tex. Health Enters., Inc. v. Geisler, 9 S.W.3d 163, 169 (Tex. App.—Fort Worth, pet. dism’d) (holding a judgment “cannot stand” where the record shows that all statutory beneficiaries are not parties to the lawsuit, or that the wrongful death claims have not been 4 The trial cannot properly go forward under these facts. See, e.g., In re Energy Resources Technology GOM, 2012 WL 4754006 at * 1-2 (Tex. App.—Houston [14th Dist.] Oct. 4, 2012, orig. proceeding) (holding that trial court’s improper denial of a motion for leave to designate a responsible third party requires reversal by mandamus such that a trial cannot proceed until the legal error is corrected); In re Lewis Casing Crews, Inc., 2014 WL 3398170 at * 2 (Tex. App.—Eastland July 10, 2014, orig. proceeding) (same); In re Arthur Andersen LLP, 121 S.W.3d 471, 481, 486 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) (same); In re Greyhound Lines, Inc., 2014 WL 1022329 at * 4 (Tex. App.—Dallas Feb. 21, 2014, orig. proceeding). Accordingly, the relators’ respectfully request that the Court issue an order staying the trial in the underlying proceeding during the pendency of this mandamus proceeding. WHEREFORE for the reasons noted above and in their petition for writ of mandamus, the Relators pray that this Court issue a temporary stay of the trial in the underlying proceedings lasting for the pendency of this mandamus proceeding. brought for the benefit of all the statutory beneficiaries). The relators have filed a plea in abatement in the trial court on this issue, but still await a ruling from the trial court on it. 5 Respectfully submitted, MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. By: /s/ Phillip D. Sharp Phillip D. Sharp Texas State Bar No. 18118680 808 Travis, 20th Floor Houston, TX 77002 Telephone: (713) 632-1700 Facsimile: (713) 222-0101 sharp@mdjwlaw.com SMITHYMAN & ZAKOURA, CHARTERED By: /s/ Lee M. Smithyman Lee M. Smithyman KS Supreme Court #09391 750 Commerce Plaza II 7400 West 110th Street Overland Park, KS 66210-2362 Telephone: (913) 661-9800 Facsimile: (913) 661-9863 lee@smizak-law.com Application for admission pro hac vice pending ATTORNEYS FOR RELATORS 6 CERTIFICATION & VERIFICATION The undersigned has reviewed the emergency motion for stay and concluded that every factual statement therein is true and correct. /s/ Philip D. Sharp Philip D. Sharp CERTIFICATE OF COMPLIANCE This is to certify that this computer-generated Petition for Writ of Mandamus contains 994 words and complies with rule 9.4 of the Texas Rules of Appellate Procedure. /s/ Philip D. Sharp Philip D. Sharp Dated: October 15, 2015 CERTIFICATE OF CONFERENCE This is to certify that my office has conferred with counsel for the real parties in interest regarding the relief requested in this motion. The real parties are opposed to the relief requested. /s/ Philip D. Sharp Philip D. Sharp Dated: October 15, 2015 7 CERTIFICATE OF SERVICE I hereby certify that true and correct copies of the foregoing instrument have been forwarded to all known counsel of record in accordance with the Texas Rules of Civil Procedure on this the15th day of October, 2015, via the method indicated below: Gary M. Riebschlager The Riebschlager Law Firm 801 Congress, Suite 250 Houston, TX 77002 gary@riebschlagerlaw.com cecilia@riebschlagerlaw.com via e-filing Richard L. Tate Tate, Moerer & King, LLP 206 South Second Street Richmond, TX 77469 rltate@tate-law.com via e-filing Sidney F. Robert Brent Coon & Associates 300 Fannin, Suite 200 Houston, TX 77002 sidney.robert@bcoonlaw.com belinda@bcoonlaw.com via e-filing David M. Medina The Medina Law Firm 5800 Memorial Drive, Suite 890 Houston, TX 77007 davidmedina@justicedavidmedina.com via e-filing 8 The Honorable James H. Shoemake 434th JUDICIAL DISTRICT COURT Fort Bend County Justice Center 1422 Eugene Heimann Circle Courtroom: Room 3I Telephone: 281-341-4409 Via e-filing /s/ Philip D. Sharp Philip D. Sharp Dated: October 15, 2015 9 APPENDIX Index to Appendices Tab 1 CVR Energy’s Motion for Reconsideration or Stay TAB 1 Filed 10/14/2015 4:20:08 PM Annie Rebecca Elliott District Clerk Fort Bend County, Texas Nereyda Flores CAUSE NO. 13-DCV-209679 LEEANNA MANN and KARl SMITH, § IN THE DISTRICT COURT OF Plaintiffs § § vs. § § FORT BEND COUNTY, TEXAS CVRENERGY,INC.,CVRPARTNERS,LP, § CVR REFINING, LP, GARY-WILLIAMS § ENERGY COMPANY, LLC, WYNNEWOOD§ REFINING COMPANY, LLC § Defendants § 434TH JUDICIAL DISTRICT DEFENDANTS' EMERGENCY MOTION FOR RECONSIDERATION OR STAY COME NOW Defendants CVR Energy, Inc., CVR Partners, LP, and Gary-Williams Energy Co., LLC (the "CVR Entities'') and file this Emergency Motion for Reconsideration or Stay and respectfully request that the Court reconsider its denial of their Motion for Leave to Designate Wynnewood Refining Company as a responsible third party or stay the captioned proceedings pending resolution of the mandamus proceedings regarding the Court's order denying the motion for leave. 1. Trial in this matter is set for October 20,2015. 2. On October 12,2015, the Court issued an order denying the CVR Entities' motion for leave to designate Wynnewood Refining Company as a responsible third party. 3. The CVR Entities will be filing a petition for writ of mandamus in the court of appeals later this afternoon, asking it to issue a writ of mandamus directing the Court to vacate its order denying the motion and granting the CVR Entities' motion for leave to designate Wynnewood as a responsible third party. See Exhibit 1- Petition for Writ of Mandamus. 4. For the reasons noted in their motion for leave, their reply to the plaintiff's objections to the motion for leave, their supplemental memorandum in support of the motion for leave, as well as their petition for writ of mandamus, there is no proper basis to deny the jury the 1 opportunity to evaluate Wynnewood's responsibility for the deaths at issue in this lawsuit. Accordingly, the CVR Entities respectfully request that the Court either (1) vacate its order denying their motion for leave and issue an order granting the motion for leave or (2) remove this matter from the October 20, 2015 trial docket and order the matter stayed pending the resolution of the mandamus proceedings in the court of appeals. Respectfully Submitted, MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. By: Is/ Phillip D. Sharp Phillip D. Sharp Texas State Bar No. 18118680 808 Travis, 20th Floor Houston, TX 77002 Telephone: (713) 632-1700 Telefacsimile: (713) 222-0101 Email: sham@mdjwlaw.com Is/ Lee M Smithyman Lee M. Smithyman SMITHYMAN & ZAKOURA, CHARTERED KS Supreme Court #09391 750 Commerce Plaza II, 7400 W. 11 Oth Street Overland Park, KS 66210-2362 Telephone: (913) 661-9800 Telefacsimile: (913) 661-9863 Email: lee@smizak-law.com ATTORNEYS FOR DEFENDANTS 2 CERTIFICATE OF CONFERENCE I hereby certify that on October 14, 2015, my office attempted to confer with Plaintiffs' counsel Gary Riebschlager and Richard Tate. I was unable to reach either gentleman, and can only assume that they oppose the relief requested in this emergency motion. If an agreement can be reached to obviate the need for the Motion to Reconsider or Stay, I will so notify the court. Is/ Phillip D. Sharp Phillip D. Sharp 3 CERTIFICATE OF SERVICE I hereby certify that true and correct copies of the foregoing instrument have been forwarded to all known counsel of record in accordance with the Texas Rules of Civil Procedure on this the 14th day of October, 2015, via email and facsimile: Gary M. Riebschlager Facsimile: 713-228-2210 The Riebschlager Law Firm 801 Congress, Suite 250 Houston, TX 77002 gazy@riebschlagerlaw.com cecilia@.riebschlagerlaw.com Richard L. Tate Facsimile: 281-341-1003 Tate, Moerer & King, LLP 206 South Second Street ~c~ond, TX 77469 rltate@tate.law.com Sidney F. Robert Facsimile: 713-225-1785 Brent Coon & Associates 300 Fannin, Suite 200 Houston, TX 77002 sidney.robert@bcoonlaw.com belinda@bcoonlaw.com David M. Medina Facsimile: 713-583-5915 The Medina Law Firm 5800 Memorial Drive, Suite 890 Houston, TX 77007 davidmedina@iusticedavidmedina.com Adraon D. Greene Facsimile: 713-599-0777 Ryan B. Brown Galloway, Johnson, Tompkins, Burr & Smith 1301 McKinney, Suite 1400 Houston, Texas 77010 agreene@gallowayjohnson.com rbrown@gallowa;xjohnson.com Is/Phillip D. Sharp Phillip D. Sharp 4 Filed 10/14/2015 4:22:32 PM Annie Rebecca Elliott District Clerk Fort Bend County, Texas Nereyda Flores CAUSE NO. 13-DCV-209679 LEEANNA MANN and KARl SMITH, § IN THE DISTRICT COURT OF Plaintiffs § § vs. § § FORT BEND COUNTY, TEXAS CVR ENERGY, INC., CVR PARTNERS, LP, § CVRREFINING,LP,GARY-WILLIAMS § ENERGY COMPANY, LLC, WYNNEWOOD § REFINING COMPANY, LLC § De&ndanu § 434TH JUDICIAL DISTRICT ORDER ON DEFENDANTS' EMERGENCY MOTION FOR RECONSIDERATION OR STAY The Court has considered Defendants' Emergency Motion for Reconsideration or Stay and finds: The Motion for Reconsideration is meritorious and should be granted. Accordingly, the Court VACATES its October 12, 2015 order denying Defendants' Motion for Leave to Designate Wynnewood Refining Company, LLC as a responsible third party, and GRANTS the Motion for Leave to Designate Wynnewood Refining Company, LLC as a responsible third party. The Motion for Stay should be granted. Accordingly, the Court removes the captioned matter from the October 20, 201 S trial docket. The trial will be rescheduled after the final resolution of the mandamus proceedings pending in the First or Fourteenth Court of Appeals. Signed this _ _ _ _ day of October, 2015. Judge Presiding 5