Richard Bednar, Diamond Energy Services, LP, DESMD X LLC and WSB Investments, LLC v. HMS Texas Holdings, LLC Brett Jensen and Colleen Jensen ( 2021 )

Order filed September 14, 2021
In The
Fourteenth Court of Appeals
____________
NO. 14-21-00481-CV
____________
RICHARD BEDNAR, DIAMOND ENERGY SERVICES, LP, DESMD X
LLC AND WSB INVESTMENTS, LLC, Appellants
V.
HMS TEXAS HOLDINGS, LLC BRETT JENSEN AND COLLEEN
JENSEN, Appellee S
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2020-51453
ABATEMENT ORDER
We have determined that this case is appropriate for referral to mediation, an
alternative dispute resolution process. See Tex. Civ. Prac. & Rem. Code §§
154.021—.073. Mediation is a forum in which an impartial person, the mediator,
facilitates communication between parties to promote reconciliation or settlement.
Id.§ 154.023(a). Any communication relating to the subject matter of the appeal
made by a participant in the mediation proceeding is confidential. See Tex. Civ.
Prac. & Rem. Code § 154.053. After mediation, the parties shall advise the court
whether the case settled, or whether any further negotiation efforts are planned.
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The court ORDERS the appeal ABATED for a period of sixty days and
refers the underlying dispute to mediation. Any party may file a written objection
to this order with the clerk of this court within 10 days of the date of this order.
See Tex. Civ. Prac. & Rem. Code § 154.022. If this court finds that there is a
reasonable basis for the objection, the objection shall be sustained and the appeal
reinstated on this court’s active docket. See id.
The court ORDERS that the mediation be held within 60 days of the date of
this order. The court ORDERS that all parties or their representatives with full
settlement authority shall attend the mediation process, with their counsel of
record. The court FURTHER ORDERS that within 48 hours of completion of
the mediation, the parties shall advise the court in writing whether the case settled.
If mediation fully resolves the issues in the case, the court ORDERS the
parties to file a motion to dismiss the appeal, other dispositive motion, or a motion
for additional time to file the dispositive motion, within 10 days of the conclusion
of the mediation.
The court ORDERS the appellate timetable in this case suspended for 60
days from the date of this order.
The appeal is ABATED, treated as a closed case, and removed from this
court’s active docket for a period of sixty days. The appeal will be reinstated on
this court’s active docket after sixty days. Any party may file a motion stating
grounds for reinstating the appeal before the end of the sixty-day period.
Any party may also file a motion to dismiss the appeal or other dispositive
motion at any time. Any party may file a motion to extend the abatement period
for completion of mediation or to finalize a settlement.
PER CURIAM
Panel Consists of Chief Justice Christopher and Justices Hassan and Poissant.
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RULES FOR MEDIATION
i. Definition of Mediation. Mediation is a process under which an impartial person, the
mediator, facilitates communication between the parties to promote reconciliation,
settlement or understanding among them. The mediator may suggest ways of resolving
the disputes, but may not impose his own judgment on the issues for that of the parties.
ii. Agreement of Parties. Whenever the parties have agreed to mediation they shall be
deemed to have made these rules, as amended and in effect as of the date of the
submission of the dispute, a part of their agreement to mediate.
iii. Consent to Mediator. The parties consent to the appointment of the individual named as
mediator in their case. The Mediator shall act as an advocate for resolution and shall use
his best efforts to assist the parties in reaching a mutually acceptable settlement.
iv. Conditions Precedent to Serving As Mediator. The mediator shall not serve as a
mediator in any dispute in which he has any financial or personal interest in the result of
the mediation. Prior to accepting an appointment, the Mediator shall disclose any
circumstances likely to create a presumption of bias or prevent a prompt meeting with the
parties. In the event that the parties disagree as to whether the Mediator shall serve, the
Mediator shall not serve.
v. Authority of the Mediator. The Mediator does not have the authority to decide any
issue for the parties, but will attempt to facilitate the voluntary resolution of the dispute
by the parties. The Mediator is authorized to conduct joint and separate meetings with
the parties and to offer suggestions to assist the parties achieve settlement. If necessary,
the Mediator may also obtain expert advice concerning technical aspects of the dispute,
provided that the parties agree and assume the expenses of obtaining such advice.
Arrangements for obtaining such advice shall be made by the Mediator or the parties, as
the Mediator shall determine.
vi. Commitment to Participate in Good Faith. While no one is asked to commit to settle
their case in advance of mediation, all parties commit to participate in the proceedings in
good faith with the intention to settle, if at all possible.
vii. Parties Responsible for Negotiating Their Own Settlement. The parties understand
that the Mediator will not and cannot impose a settlement in their case and agree that they
are responsible for negotiating a settlement acceptable to them. The Mediator, as an
advocate for settlement, will use every effort to facilitate the negotiations of the parties.
The Mediator does not warrant or represent that settlement will result from the mediation
process.
viii. Authority of Representatives. PARTY REPRESENTATIVES MUST HAVE
AUTHORITY TO SETTLE AND ALL PERSONS NECESSARY TO THE
DECISION TO SETTLE SHALL BE PRESENT. The names and addresses of such
persons shall be communicated in writing to all parties and to the Mediator prior to the
mediation.
ix. Time and Place of Mediation. The Mediator shall fix the time of each mediation
session. The mediation shall be held at the office of the Mediator, or at any other
convenient location agreeable to the Mediator and the parties, as the Mediator shall
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determine.
x. Identification of Matters in Dispute. Prior to the first scheduled mediation session,
each party shall provide the Mediator with confidential information in the form requested
by the Mediator setting forth its position with regard to the issues that need to be
resolved.
At or before the first session, the parties will be expected to produce all information
reasonably required for the Mediator to understand the issues presented. The Mediator
may require any party to supplement such information.
xi. Privacy. Mediation sessions are private. The parties and their representatives may
attend mediation sessions. Other persons may attend only with the permission of the
parties and with the consent of the Mediator.
xii. Confidentiality. Confidential information disclosed to a Mediator by the parties or by
witnesses in the course of the mediation shall not be divulged by the Mediator. All
records, reports or other documents received by a mediator while serving in that capacity
shall be confidential. The Mediator shall not be compelled to divulge such records or to
testify in regard to the mediation in any adversary proceeding or judicial forum. Any
party that violates this agreement shall pay all fees and expenses of the Mediator and
other parties, including reasonable attorney's fees incurred in opposing the efforts to
compel testimony or records from the Mediator.
The parties shall maintain the confidentiality of the mediation and shall not relay on, or
introduce as evidence in any arbitral, judicial, or other proceeding: a) views expressed or
suggestions made by another party with respect to a possible settlement of the dispute; b)
admissions made by another party in the course of the mediation proceedings; c)
proposals made or views expressed by the Mediator; or d) the fact that another party had
or had not indicated willingness to accept a proposal for settlement made by the
Mediator.
xiii. No Stenographic Record. There shall be no stenographic record made of the mediation
process.
xiv. No Service of Process at or near the Site of the Mediation Session. No subpoenas,
summons, complaints, citations, writs or other process may be served upon any person at
or near the site of any mediation session upon any person entering, attending or leaving
the session.
xv. Termination of Mediation. The mediation shall be terminated: a) by the execution of a
settlement agreement by the parties; b) by declaration of the Mediator to the effect that
further efforts at mediation are no longer worthwhile; or c) after the completion of one
full mediation session, by a written declaration of a party or parties to the effect that the
mediation proceedings are terminated.
xvi. Exclusion of Liability. The Mediator is not a necessary or proper party in judicial
proceedings relating to the mediation. Neither Mediator nor any law firm employing
Mediator shall be liable to any party for any act or omission in connection with any
mediation conducted under these rules.
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xvii. Interpretation and Application of Rules. The Mediator shall interpret and apply these
rules.
xviii. Fees and Expenses. The Mediator's daily fee shall be agreed upon prior to mediation
and shall be paid in advance of each mediation day. The expenses of witnesses for either
side shall be paid by the party producing such witnesses. All other expenses of the
mediation, including fees and expenses of the Mediator, and the expenses of any witness
and the cost of any proofs or expert advice produced at the direct request of the Mediator,
shall be borne equally by the parties unless they agree otherwise.
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Fourteenth Court of Appeals
MEDIATORS REPORT
Date: ____________________________
Christopher A. Prine, Clerk
301 Fannin, Room 245
Houston, TX 77002
Re: Appellate number:
Case style:
In compliance with this court’s order dated ________________________________, I
conducted a mediation
proceeding in this case on _____________________________.
The mediation [ did / did not ] result in a [ full / partial ] resolution of the matters in
dispute. To my
knowledge, further negotiation efforts [ are / are not ] planned.
The parties and mediator have agreed that the mediator shall be paid as follows:
$_______________________ paid by ______________________
$_______________________ paid by ______________________
$_______________________ paid by ______________________
$_______________________ paid by ______________________
Mediator:
Address:
Telephone
E-Mail Address
Return immediately after mediation to:
14th Court of Appeals; 301 Fannin, Room 245, Houston, Texas 77002
(713) 274-2800
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