The opinion
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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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