`
`ACCEPTED
`13-24-00042-CV
`THIRTEENTH COURT OF APPEALS
`CORPUS CHRISTI, TEXAS
`2/14/2024 4:50 PM
`Kathy S. Mills
`CLERK
`
`No. 13-24-00042-CV
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`In the Thirteenth Court of Appeals
`Corpus Christi-Edinburg, Texas
`
`
`IN RE SPACE EXPLORATION TECHNOLOGIES CORP.
`AND LAUREN KREUGER
`
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`ORIGINAL PROCEEDING FROM CAUSE NO. 2020-DCL-03939
`444TH DISTRICT COURT OF CAMERON COUNTY, TEXAS
`HON. DAVID A. SANCHEZ, PRESIDING
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`REAL PARTIES IN INTEREST JOSE RUIZ’S AND HUMBERTO
`GARCIA’S MOTION TO ABATE
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`TO THE HONORABLE THIRTEENTH COURT OF APPEALS:
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`Real Parties in Interest Jose Ruiz and Humberto Garcia file this motion to
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`abate and respectfully show in support:
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`On January 11, 2024, Relators filed their petition for writ of mandamus
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`challenging the issuance of a new trial order entered by the Honorable David A.
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`Sanchez on December 12, 2023. On January 12, 2024, this Court requested a
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`response be filed by January 22, 2024.
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`The first ground for Relators’ petition is that the new trial order signed by the
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`trial court is facially invalid because it does not sufficiently explain the reasons for
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`granting the new trial. While the trial court’s order articulates a legally valid reason
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`1
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` FILED IN
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` 13th COURT OF APPEALS
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`CORPUS CHRISTI/EDINBURG, TEXAS
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` 2/14/2024 4:50:43 PM
`
` KATHY S. MILLS
`
` Clerk
`
`
`
`
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`for granting a new trial, i.e., incurable jury argument, the order fails to refer to record
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`support for its conclusion or to specify the arguments it found were incurable.
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`Texas Rule of Appellate Procedure 44.4 authorizes this Court to abate this
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`proceeding to allow the trial court to issue a new order that specifically states the
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`reasons for granting the new trial. It provides:
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`(a) Generally. A court of appeals must not affirm or reverse a
`judgment or dismiss an appeal if:
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`(1)
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`the trial court’s erroneous action or failure or refusal to act
`prevents the proper presentation of a case to the court of
`appeals; and
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`the trial court can correct its action or failure to act.
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`(2)
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`
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`(b) Court of Appeals Direction if Error Remediable. If the
`circumstances described in (a) exist, the court of appeals must
`direct the trial court to correct the error. The court of appeals will
`then proceed as if the erroneous action or failure to act had not
`occurred.
`
`TEX. R. APP. P. 44.4; see Bella Palma, LLC v. Young, 601 S.W.3d 799, 801 (Tex.
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`2020) (allowing abatement to clarify intent of trial court’s order); Green v. State,
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`906 S.W.2d 937, 940 (Tex. Crim. App. 1995) (abating appeal and directing trial
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`court to issue statutorily required findings of fact and conclusions of law); Gonzalez
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`v. Gonzalez, No. 13-20-00532-CV, 2022 WL 2163881, at *3 (Tex. App.—Corpus
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`Christi–Edinburg June 16, 2022, pet. denied) (mem. op.) (noting court abated appeal
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`to allow trial judge to clarify final judgment); Stevens v. State, No. 08-14-00042-CR,
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`2016 WL 3563977, at *1 (Tex. App.—El Paso June 29, 2016, pet. ref’d) (mem. op.;
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`2
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`
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`not designated for publication) (noting court abated appeal to allow “the trial court
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`to consider whether it should correct” its new trial orders); In re A.P., No. 07-10-
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`00481-CV, 2011 WL 780525, at *3 (Tex. App.—Amarillo Mar. 7, 2011, Order)
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`(abating to allow trial court to determine whether orders accurately reflected court’s
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`decision and whether orders could be corrected).
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`Because this Court is tasked with a merits-based review of the trial court’s
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`order, good cause exists to abate this original proceeding to allow the trial court to
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`amend its order to provide a sufficient explanation for its grant of a new trial. See In
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`re Rudolph Automotive, LLC, 674 S.W.3d 289, 301 (Tex. 2023) (orig. proceeding)
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`(order that provides no basis for parties and appellate court to confirm court’s
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`determination was the result of careful assessment of actual evidence in case is
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`conclusory).
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`Sarah Durham, counsel for Real Party in Interest Hector Garcia, Jr., has
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`indicated she is not opposed to the relief requested in this motion. The undersigned
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`counsel has also conferred with counsel for Relators, who stated they are opposed to
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`an abatement. Counsel for Relators suggested that instead, the undersigned counsel
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`should simply ask the Court to issue the extraordinary writ of mandamus against the
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`trial court, which pursuant to the Rules of Appellate Procedure, would require this
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`Court to issue a full written opinion. TEX. R. APP. P. 52.8(d). And the result would
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`be to order the trial court to issue a revised order stating the reasons for granting a
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`3
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`
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`new trial, followed by another mandamus proceeding challenging the reasons stated
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`in the revised order. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290
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`S.W.3d 204, 215 (Tex. 2009) (orig. proceeding) (directing trial court to “specify the
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`reasons it refused to enter judgment on the jury verdict and ordered a new trial as to
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`Columbia”); see, e.g., In re Kirby Offshore Marine Operating, LLC, No. 13-22-
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`00377-CV, 2023 WL 3568902, at *3 (Tex. App.—Corpus Christi–Edinburg May
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`19, 2023, orig. proceeding) (mem. op.) (second mandamus proceeding after court
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`amended new trial order at Real Party In Interest’s request). In the interest of
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`efficiency and judicial economy, this Court should instead abate this proceeding for
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`30 days to allow the trial court time to craft a revised order, and then proceed as
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`directed in Texas Rule of Appellate Procedure 44.4. See Meachum v. State, 273
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`S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding
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`abatement was a more efficient remedy).
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`For the foregoing reasons, Real Parties in Interest respectfully request that the
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`Court abate this proceeding and instruct the trial court to amend the new-trial order
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`to state sufficient explanation for its reason granting a new trial.
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`
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`Respectfully submitted,
`
`
`
`/s/ Brandy Wingate Voss
`Brandy Wingate Voss
`State Bar No. 24037046
`LAW OFFICES OF BRANDY WINGATE VOSS
`208 W. Cano St.
`Edinburg, Texas 78539
`
`4
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`
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`(956) 688-9033
`(956) 331-2230 (fax)
`brandy@brandyvosslaw.com
`
`Sonia Rodriguez
`State Bar Number 24008466
`Cowen Rodriguez Peacock, PC
`6243 IH-10 West, Suite 801
`San Antonio, Texas 78201
`Telephone: (210) 941-1301
`E-mail: efilings@cowenlaw.com
`Counsel for Real Party in Interest
`
`CERTIFICATE OF CONFERENCE
`I certify that I conferred with William Peterson and D. Alan Erwin, Counsel
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`for Relators, who advised that Relators oppose the relief requested in this Motion.
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`Counsel for Real Party in Interest Hector Garcia, Jr. is not opposed to the relief
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`requested in this Motion.
`
`/s/ Brandy Wingate Voss
`Brandy Wingate Voss
`
`
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`5
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`CERTIFICATE OF SERVICE
`
`On February 14, 2024, in compliance with Texas Rule of Appellate Procedure
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`9.5, I served a copy of this Motion by e-service, e-mail, facsimile, or mail to:
`
`D. Alan Erwin
`aerwin@rofllp.com
`ROERIG, OLIVEIRA & FISHER
`LLP
`10225 N. 10th Street
`McAllen, TX 78504
`
`Counsel for Relator Lauren
`Elizabeth Krueger
`
`Sarah Durham
`sarah@blizzardlawfirm.com
`Blizzard & Zimmerman Attorneys
`1174 North 3rd Street
`Abilene, Texas 79601
`
`Michael H. Garatoni
`e-service@daspitlaw.com
`The Daspit Law Firm
`9601 McAllister Freeway, Suite 916
`San Antonio, Texas 78216
`
`Counsel for Hector Garcia, Jr.
`
`
`/s/ Brandy Wingate Voss
`Brandy Wingate Voss
`
`William R. Peterson
`william.peterson@morganlewis.com
`Michelle D. Pector
`michelle.pector@morganlewis.com
`Jared Wilkerson
`jared.wilkerson@morganlewis.com
`MORGAN, LEWIS & BOCKIUS
`LLP
`1000 Louisiana, Suite 4000
`Houston, Texas 77002
`
`David Oliveira
`doliveira@rofllp.com
`ROERIG, OLIVEIRA & FISHER
`LLP
`10225 N. 10th Street
`McAllen, TX 78504
`
`Counsel for Relator Space
`Exploration
`Technologies Corp.
`
`
`
`
`
`
`
`
`
`6
`
`
`
`Automated Certificate of eService
`This automated certificate of service was created by the efiling system.
`The filer served this document via email generated by the efiling system
`on the date and to the persons listed below. The rules governing
`certificates of service have not changed. Filers must still provide a
`certificate of service that complies with all applicable rules.
`Brandy Wingate Voss on behalf of Brandy Wingate Voss
`Bar No. 24037046
`brandy@brandyvosslaw.com
`Envelope ID: 84524796
`Filing Code Description: Motion
`Filing Description: Motion
`Status as of 2/14/2024 4:54 PM CST
`
`Associated Case Party: Jose Ruiz
`
`BarNumber
`
`795306
`
`Name
`Brandy Wingate Voss
`Michael Raphael Cowen
`Melissa Thrailkill
`Shana Elick
`Julie Balovich
`
`brandy@brandyvosslaw.com
`efilings@cowenlaw.com
`melissa@brandyvosslaw.com
`shana@brandyvosslaw.com
`julie@brandyvosslaw.com
`
`TimestampSubmitted
`2/14/2024 4:50:43 PM
`2/14/2024 4:50:43 PM
`2/14/2024 4:50:43 PM
`2/14/2024 4:50:43 PM
`2/14/2024 4:50:43 PM
`
`Status
`SENT
`SENT
`SENT
`SENT
`SENT
`
`Associated Case Party: Space Exploration Technologies Corp.
`
`BarNumber
`15254675
`
`doliveira@rofllp.com
`william.peterson@morganlewis.com
`michelle.pector@morganlewis.com
`jared.wilkerson@morganlewis.com
`
`TimestampSubmitted
`2/14/2024 4:50:43 PM
`2/14/2024 4:50:43 PM
`2/14/2024 4:50:43 PM
`2/14/2024 4:50:43 PM
`
`Status
`SENT
`SENT
`SENT
`SENT
`
`Name
`David G. Oliveira
`William R.Peterson
`Michelle Pector
`Jared Wilkerson
`
`Case Contacts
`
`Name
`Norma Orozco
`
`BarNumber Email
`norma.orozco@morganlewis.com
`
`TimestampSubmitted
`2/14/2024 4:50:43 PM
`
`Status
`SENT
`
`Associated Case Party: LaurenElizabethKrueger
`
`Name
`Dan Alan Erwin
`
`BarNumber
`6653020
`
`aerwin@rofllp.com
`
`TimestampSubmitted
`2/14/2024 4:50:43 PM
`
`Status
`SENT
`
`Associated Case Party: Hector Garcia Jr.
`
`
`
`Automated Certificate of eService
`This automated certificate of service was created by the efiling system.
`The filer served this document via email generated by the efiling system
`on the date and to the persons listed below. The rules governing
`certificates of service have not changed. Filers must still provide a
`certificate of service that complies with all applicable rules.
`Brandy Wingate Voss on behalf of Brandy Wingate Voss
`Bar No. 24037046
`brandy@brandyvosslaw.com
`Envelope ID: 84524796
`Filing Code Description: Motion
`Filing Description: Motion
`Status as of 2/14/2024 4:54 PM CST
`
`Associated Case Party: Hector Garcia Jr.
`
`Name
`Michael Garatoni
`
`BarNumber Email
`e-service@daspitlaw.com
`
`TimestampSubmitted
`2/14/2024 4:50:43 PM
`
`Status
`SENT
`
`Associated Case Party: Humberto Garcia
`
`Name
`Yazmin Campbell
`Terry Reeves
`Sarah Durham
`Morgan Walker
`
`BarNumber Email
`yazmin@blizzardlawfirm.com
`terry.reeves@blizzardlawfirm.com
`sarah@blizzardlawfirm.com
`Morgan@blizzardlawfirm.com
`
`TimestampSubmitted
`2/14/2024 4:50:43 PM
`2/14/2024 4:50:43 PM
`2/14/2024 4:50:43 PM
`2/14/2024 4:50:43 PM
`
`Status
`SENT
`SENT
`SENT
`SENT
`
`
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