in Re Valero Refining-Texas, L.P.

ACCEPTED 01-15-00566-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/21/2015 4:04:44 PM CHRISTOPHER PRINE CLERK

No. 01-15-00566-CV FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS In the 10/21/2015 4:04:44 PM CHRISTOPHER A. PRINE Court of Appeals for the Clerk

First District of Texas

IN RE VALERO REFINING—TEXAS, L.P.,

Relator.

Original Proceeding from the 212th District Court Galveston County, Texas Cause No. 12CV1541

UNOPPOSED MOTION TO DISMISS MANDAMUS AS MOOT

I.

In response to Valero’s motion to abate, the Court ordered this case “abated and remanded to allow Judge Grady the opportunity to provide her reasons for reaffirming Judge Griffin’s order granting a new trial.” See Order of September 16, 2015, Exhibit A, CR4-5. Further, the Court ordered “the trial court clerk to file, within 30 days of the date of this order or, if the trial court schedules a hearing, within 30 days of that hearing, a supplemental clerk’s record containing Judge Grady’s order stating her reasons for reaffirming the original order granting a new trial with the Clerk of this Court.” Id.; CR5. 48256_1

Promptly following this Court’s order of abatement, the trial court set an oral hearing on September 25, 2015, at which time Judge Grady heard arguments of counsel and took under consideration Valero’s Motion Requesting the Trial Court to Provide Its Reasons for Refusing to Enter Judgment on the Jury Verdict. CR35. Both sides briefed their arguments in the trial court and provided their positions at the hearing as to whether Judge Grady could set aside her previous order and render judgment on the verdict.

II.

Within the 30 days’ time provided under this Court’s abatement order, on October 12, 2015, Judge Grady set aside her previous ruling, and she signed an order ruling that “the new trial Order of December 30, 2014 should be set aside or vacated, and the Final Judgment of December 30, 2014 should be reinstated, in conformity with the jury verdict.” See Order Granting Defendant's Motion to Reconsider the Order Granting Motion for New Trial of Plaintiffs Vernon Fox and Mikki Fox, attached as Exhibit B, CR16-17. The Order signed on October 12, 2015 recites that the appellate deadlines will run from the date of the order setting aside the new trial: “In a situation such as this when ‘a new trial is granted and later withdrawn, the appellate deadlines run from the later order granting reinstatement rather than the earlier order.’ In re Baylor Med. Ctr, at Garland, 280 S.W.3d 227,231 (Tex. 2008) (orig. proceeding).” CR16. 48256_1 2

On October 13, 2015, the Galveston County District Clerk filed a clerk’s record containing Judge Grady’s order, in compliance with this Court’s directive. CR16. The clerk’s record contains this Court’s abatement order, and it contains the trial court’s ruling that sets aside the new trial and reinstates the jury verdict.

III.

It now appears this mandamus proceeding is moot and should be dismissed because Valero has received the relief requested in its mandamus petition. See In re Gonzales, 03-12-00611-CV, 2013 WL 238736, at *1 (Tex. App.—Austin Jan. 17, 2013, orig. proceeding); In re Luna, 317 S.W.3d 484, 484 (Tex. App.— Amarillo 2010, orig. proceeding). In its mandamus petition, Valero requested an order “compelling the trial court to vacate the new trial order and reinstating judgment on the jury’s verdict.” Mand. Pet. at 36.

With that relief having been granted by the trial court on Valero’s motion, following the abatement granted by this Court, Valero now requests that the Court lift its abatement and dismiss this mandamus proceeding. All costs in the appellate courts will be borne by the party incurring those costs.

PRAYER Relator, Valero Refining—Texas, L.P. requests that the Court lift its

abatement and dismiss this mandamus action without prejudice. Valero further prays for any other relief to which it is entitled. 48256_1 3

Respectfully Submitted:

David W. Burns HOGAN & HOGAN State Bar No. 00785735 db@tekellbook.com By: /s/ Richard P. Hogan, Jr. TEKELL, BOOK, ALLEN & MORRIS, LLP Richard P. Hogan, Jr. 1221 McKinney, Suite 4300 State Bar No. 09802010 Houston, Texas 77010 rhogan@hoganfirm.com 713.222.9542–telephone Jennifer Bruch Hogan 713.655.7727–facsimile State Bar No. 03239100 jhogan@hoganfirm.com James F. Bennett James C. Marrow State Bar No. 46826 State Bar No. 24013103 jbennett@dowdbennett.com jmarrow@hoganfirm.com Megan Heinsz Pennzoil Place State Bar No. 56377 711 Louisiana, Suite 500 mheinsz@dowdbennett.com Houston, Texas 77002 DOWD BENNETT, LLP 713.222.8800–telephone 7733 Forsyth Boulevard 713.222.8810–facsimile St. Louis, Missouri 63105 314.889.7300–telephone Alex M. Miller 314.863.2111–facsimile State Bar No. 00791263 alex.miller@valero.com THE VALERO COMPANIES One Valero Way San Antonio, Texas 78249 210.345.2857–telephone 210.345.4567–facsimile

ATTORNEYS FOR RELATOR VALERO REFINING—TEXAS, L.P. 48256_1 4

CERTIFICATE OF CONFERENCE Counsel for Relator has conferred with counsel for Real-Parties-In-Interest,

Iain G. Simpson, and Real-Parties-In-Interest are unopposed to this motion.

/s/ Richard P. Hogan, Jr. Richard P. Hogan, Jr. Dated: October 21, 2015

48256_1 5

CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing was forwarded to all counsel of record by the Electronic Filing Service Provider, if registered; a true and correct copy of this document was forwarded to all counsel of record not registered with an Electronic Filing Service Provider and to all other parties as follows:

Counsel for Real-Parties-In-Interest:

Iain G. Simpson SIMPSON, P.C. 1333 Heights Boulevard, Suite 102 Houston, Texas 77008 Via TexFile

Alton C. Todd THE LAW FIRM OF ALTON C. TODD 312 S. Friendswood Drive Friendswood, Texas 77546 Via TexFile

Respondent:

The Honorable Patricia Grady 212th Judicial District Court 600 59th Street Galveston, Texas 77550 Via US Mail

/s/ Richard P. Hogan, Jr. Richard P. Hogan, Jr. Dated: October 21, 2015

48256_1 6

Exhibit A Order of September 16, 2015 CR(Oct. 13, 2015)4-5

9/16/2015 4:06 AM JOHN D. KINARD District Clerk Galveston County, Texas

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER OF ABATEMENT

Appellate case name: In re Valero Refining—Texas, L.P. Appellate case number: 01-15-00566-CV Trial court case number: 12CV1541 Trial court: 212th District Court of Galveston County

On June 29, 2015, relator, Valero Refining—Texas, L.P., filed a petition for writ of mandamus seeking to vacate the trial court’s December 30, 2014 order granting a new trial and the successor trial judge’s April 16, 2015 order denying Valero’s motion to reconsider the original order granting a new trial. Although the original December 30, 2014 order, signed by the Honorable Bret Griffin, stated Judge Griffin’s reasons for granting the motion for new trial, the April 16, 2015 order, signed by the Honorable Patricia Grady, did not state Judge Grady’s reasons for her refusal to enter judgment on the jury verdict. Real parties in interest, Vernon and Mikki Fox, filed a response on August 27, 2015.

On September 11, 2015, Valero filed a motion to abate the above-captioned mandamus proceeding, informing this Court that it had simultaneously filed in the trial court a “Motion Requesting the Trial Court to Provide Its Reasons for Refusing to Enter Judgment on the Jury Verdict.” Valero seeks an abatement of this mandamus proceeding until October 31, 2015, to allow Judge Grady to consider its motion and provide her reasons for why she will not reconsider the December 30, 2014 order granting a new trial and enter judgment on the jury verdict. The Foxes do not oppose the motion to abate.

Mandamus will not issue against a new trial judge for what a former one did. See In re Baylor Med. Ctr. at Garland; 280 S.W.3d 227, 228 (Tex. 2008); see also TEX. R. APP. P. 7.2(b) (“If the case is an original proceeding under Rule 52, the court must abate the proceeding to allow the successor to reconsider the original party’s decision.”). When a successor trial judge enters an order reaffirming the original grant of a motion for new trial, “[t]hat order is effectively an order refusing to enter judgment on the jury verdict and affects the rights of the parties no less than did the orders of the original judge.” In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 214 (Tex. 2009); see also In re Baylor Med. Ctr. at Garland, 289 S.W.3d 859, 861 (Tex. 2009) (“[T]he trial court abused its discretion by refusing to enter judgment on the jury verdict and granting a new trial without specifying its reasons for doing so.”). Courts

presume that the successor judge had specific reasons for entering the order reaffirming the original order, and the party challenging the order granting a new trial “is entitled to know those reasons just as much as it would be entitled to know the reasons for the orders entered by the former trial judge.” In re Columbia Med. Ctr., 290 S.W.3d at 214; see also In re Cook, 356 S.W.3d 493, 495 (Tex. 2011) (per curiam) (“Reaffirming the former trial court’s order was tantamount to granting the motion for new trial. Consequently, the successor trial court must provide its own statement of the reasons for setting aside a jury verdict.”).

Here, Judge Grady declined to reconsider Judge Griffin’s original order granting the motion for new trial, but she did not state her reasons for setting aside the jury verdict. Valero is entitled to know those reasons. Valero’s motion to abate this mandamus proceeding is therefore granted, and this case is abated and remanded to allow Judge Grady the opportunity to provide her reasons for reaffirming Judge Griffin’s order granting a new trial. See In re Cook, 356 S.W.3d at 495; In re Columbia Med. Ctr., 290 S.W.3d at 214; In re Baylor Med. Ctr., 289 S.W.3d at 861.

The Court orders the trial court clerk to file, within 30 days of the date of this order or, if the trial court schedules a hearing, within 30 days of that hearing, a supplemental clerk’s record containing Judge Grady’s order stating her reasons for reaffirming the original order granting a new trial with the Clerk of this Court. This case is abated, treated as a closed case, and removed from this Court’s active docket. This mandamus proceeding will be reinstated on this Court’s active docket when a compliant supplemental clerk’s record, and a supplemental reporter’s record, if any, are filed. The Court will also consider a motion to reinstate by either party.

The deadline for Valero to file its reply to the Foxes’ response to the mandamus petition, if any, is extended until ten days after this mandamus proceeding is reinstated in this Court.

It is so ORDERED.

Judge’s signature: /s/ Evelyn V. Keyes Acting individually Acting for the Court

Date: September 16, 2015

Exhibit B Order Granting Defendant's Motion to Reconsider the Order Granting Motion for New Trial of Plaintiffs Vernon Fox and Mikki Fox CR(Oct. 13, 2015)16-17

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