in Re Manhattan Vaughn, JVP ( 2015 )


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  •                                                                                       ACCEPTED
    01-15-00349-CV
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    6/2/2015 3:46:15 PM
    CHRISTOPHER PRINE
    CLERK
    No. 01-15-00349-CV
    FILED IN
    1st COURT OF APPEALS
    IN THE COURT OF APPEALS                HOUSTON, TEXAS
    AT HOUSTON                   6/2/2015 3:46:15 PM
    CHRISTOPHER A. PRINE
    Clerk
    IN RE MANHATTAN I VAUGHN, JVP
    Original Proceeding Regarding
    Cause No. 2013-76550
    In the 80th Judicial District Court of Harris County, Texas
    RELATOR'S REPLY TO REAL PARTIES IN INTEREST'S RESPONSE
    TO RELATOR'S PETITION FOR WRIT OF MANDAMUS
    J.J. Knauff
    State Bar No. 24032517
    jknauff@tmlfpc.com
    Michael A. Miller
    State Bar No. 14100650
    mmiller@tmlfpc.com
    Clark S. Butler
    State Bar No. 00793437
    cbutler@ tmlfpc.com
    THE MILLER LAW FIRM
    3811 Turtle Creek Blvd., Suite 1950
    Dallas, Texas 75219-4535
    (469) 916-2552
    (469) 916-2555- Telefax
    COUNSEL FOR RELATOR
    MANHATTAN I VAUGHN, JVP
    ORAL ARGUMENT REQUESTED
    TABLE OF CONTENTS
    Table of Contents ..................................................................................................... 11
    Index of Authorities ................................................................................................. iii
    Arguinent ................................................................................................................... 1
    1. Su1nn1ary of Argun1ent .................................................................................... 1
    2. Rebuttal to Appellee's Brief. ........................................................................... 1
    Prayer for Relief ...................................................................................................... 12
    Ce1iificate of Service .............................................................................................. 13
    Certificate of Compliance ....................................................................................... 13
    Verification .............................................................................................................. 14
    11
    INDEX OF AUTHORITIES
    Cases
    In re BP Prods. N. Am., Inc.,
    
    263 S.W.3d 106
    (Tex. App.-Houston [1st Dist.] 2006, orig. proceeding) .... 2
    Rules
    TEX. DISCIPLINARY R. OF PROF. CONDUCT 3.08 ...................................................... 11
    TEX. R. CIV. P. 193 ................................................................................. 5, 6, 9-10, 10
    111
    ARGUMENT
    1.     Summary of Argument.
    Respondent's Order violated Relator's due process rights because there was
    no notice of a hearing on the First Amended Third Motion to Compel.
    Additionally, Respondent abused his discretion by granting more relief than was
    requested by requiring production of the Privileged Notes and Box that were not
    the subject of any valid, pending noticed motion. Finally, Respondent abused his
    discretion by ordering production of the Privileged Notes when they were clearly
    subject to the attorney-client and/or work product privileges because they were
    created after counsel was hired, after litigation was anticipated, and the Privileged
    Notes were transcribed by a representative acting upon instructions from counsel.
    2.     Rebuttal to Response by Real Parties in Interest.
    A.     Real Parties In Interest incorrectly recite the factual/procedural history
    of this case by asserting that Relator failed to comply with the trial
    court's instruction when such an assertion is not supported by the
    record.
    The Real Parties In Interest (hereinafter "Plaintiffs") assert the trial comi
    instructed Relator to "produce all documents responsive to Plaintiffs' requests or
    submit a privilege log for documents claimed to be protected by attorney-client
    privilege for in camera review. Contrary to the [trial court's] instruction, Relator
    produced a privilege log claiming attorney-client and work product privileges for
    Reply to Response to Petition for Writ of Mandamus                       Page 1
    all documents contained in the box" (Response ~ 11 ). The foregoing assertion that
    Relator acted in a manner that was contrary to the trial court's instruction is
    demonstrably false because the trial court did not limit its instruction to just
    attorney-client privilege as shown in the following hearing excerpts:
    I'm going to order the Defendant to prepare a privilege log to
    documents that sound like they may be responsive but to which you're
    claiming a privilege. Then those documents can be reviewed in
    camera by the Court.
    (TAB 1 10 p. 27/18-24).
    If it's not in the box and you haven't turned over to the Plaintiff
    everything in the box, then at least prepare a log so we understand
    what it is that either hasn't been produced to them or the Court so they
    have the ability to challenge it if they believe it's something that's
    discoverable that you haven't produced.
    (TAB 10 p. 58/4-10). The foregoing insttuctions by the trial court were clear,
    concise, and not limited to only "atton1ey-client privilege" as Plaintiffs have
    alleged.    In fact, Jason Gibson, counsel for Plaintiffs, restated the trial comi's
    instruction when he stated:
    [T]hey're going to produce a list or a privilege log-- either produce it,
    tell us what's in there or, if they're going to claim privilege, then give
    us a privilege log; and then we'll take that up separately.
    (TAB 10 p. 59/16-20).
    1
    As used herein, "TAB" references each tab in the appendix to Relator's Petition for Writ of
    Mandamus and the evidence contained therein is incorporated fully herein.
    Reply to Response to Petition for Writ of Mandamus                                 Page2
    The foregoing excerpts establish Plaintiffs' assertions lack merit.            On
    December 5, 2014 the trial court ordered that Relator provide a privilege log (TAB
    10 p. 27/21-25, p. 30/3-5, p. 57/24-58/10), and on December 8, 2014 Relator
    complied with the order (TAB 16, Ex. G). Therefore, this Comi should disregard
    the foregoing complaints in detennining the merits of Relator's Mandamus
    Petition.
    B.     Plaintiffs' argument that Relator had multiple opportunities to be heard
    does not remedy the lack of notice and violation of Relator's due process
    rights.
    Plaintiffs do not contest that they failed to provide proper notice of the
    hearing on their Amended Third Motion to Compel; rather, they contend the issues
    had been before the trial court for months and Relator "had a month's notice of the
    hearing on Plaintiffs' Amended Third Motion to Compel" (Response              ~~   26, 14,
    25). Plaintiffs' statement of "a month's notice" of the hearing on the Amended
    Third Motion to Compel fails to direct this Court to any evidence of such notice,
    contradicts the facts, and contradicts Plaintiffs' judicial admission that notice of a
    hearing on Plaintiffs initial "Third Motion to Compel" was given on December 22,
    2014 but "[ s]even days before the hearing, Plaintiffs filed an Amended Third
    Motion to Compel"         (Response~      13). The lack of proper notice on the Atnended
    Third Motion to Compel is precisely what Relator complains about in its
    Reply to Response to Petition for Writ of Mandamus                           Page3
    Mandamus (Mandamus Statement of Facts § I (B)(vi)-(vii); Mandamus Argument
    §III (A)).
    Further, Plaintiffs' allegation that Relator's due process rights were not
    violated because it "had four separate opportunities to provide argument and
    evidence" does not hold water given the fact that only one of the "four separate
    opportunities" was properly noticed?                 The "four separate occasions" where
    argument was entertained actually consisted of a hearing on Relator's Special
    Exceptions on November 21, 2014 (unnoticed), Plaintiffs' Motion to Compel
    Responses to Requests for Production Nos. 38, 40, 42, and 46 on December 5,
    2014 (noticed), and the Januaty 23, 2015 hearing on Plaintiffs' Amended Third
    Motion to Compel (unnoticed) (Mandamus Summary of Facts § I (B)(ii); TAB 8;
    TAB 15). Relator could not find an additional hearing where it had the opportunity
    to "provide argument and evidence" in this matter. 3 Moreover, Relator objected in
    2
    Although Plaintiffs attempted to compel responses to Nos. 38, 40, 42, and 46 at the December
    5, 2014 hearing, they attempted to expand the compelled discovery to include all of their
    requests for production without notice or an opportunity for Relator to respond and Relator
    objected to inclusion of any additional requests for lack of notice and for not being properly
    before the trial comi (TAB 10 p. 21/14-22/14, p. 44/14-17, p. 45/18-46/13, p. 47/21-p. 4817,
    52/6-5311 0)
    3
    Relator assumes the other "opportunit[y]" referenced is either the telephonic hearing on
    December 10, 2014 on Relator's Emergency Motion for Rehearing or the April 7, 2015 Status
    Conference telephonic hearing. The December 10 hearing was almost exclusively based upon
    arguments in support of the admission of the affidavit of Tom Kramer and not the merits of the
    Motion to Compel (TAB 11; TAB 13). The April 7 hearing, like so many of the other hearings,
    was not specifically represented that it was to discuss the merits of any motion to compel; rather,
    it was represented to be a conference to "review the status of pending motions, a proposed new
    docket control order, and the progression of the case generally before the court" (TAB 24).
    Reply to Response to Petition for Writ of Mandamus                                   Page4
    writing (TAB 6; TAB 9; TAB 18; TAB 19) and at each improperly noticed hearing
    whenever the arguments were brought up (TAB 6; TAB 10 p. 21/5-22/14, p.
    26/18-22, p. 36/20-37/3, p. 39/25-40/7, p. 50/5-10; TAB 20 p. 3/13-4/12, p. 6/9-15,
    10/20-11/15, p. 12/3-18).
    More importantly, Plaintiffs' argument is a red herring that fails to address
    the pressing issue before this Court, namely, whether the trial court granted more
    relief than requested when it heard and granted a motion to compel discovery
    based upon a motion that was superseded by operation of law and, as such, there
    was no relevant motion upon which relief could be granted. Thus, the trial court
    either entered a void order or it granted more relief than was requested. Because
    Relator objected to the lack of notice and violation of its due process rights at
    eve1y turn and because the trial court entered a void order or an order granting
    more relief than was requested, this Court should grant the Mandamus Petition.
    C.     Plaintiffs' waiver argument fails because they rely upon the wrong
    standard.
    Relying on Rule 193.3(a)-(b), Plaintiffs maintain Relator waived its
    objections based upon privilege because it did not provide a privilege log at the
    time it answered discovery (Response p. 15-19); however, this asse1tion fails for
    four reasons. First, Relator originally lodged objections to Requests for Production
    Further, the April 7 status conference was the forum where the trial court issued the complained-
    of order compelling the Privileged Notes.
    Reply to Response to Petition for Writ of Mandamus                                 PageS
    Nos. 38, 40, 46, and 48 based upon the attorney-client, work product, and/or joint
    defense privileges. (TAB 10 p. 57/1-3; TAB 16, Ex. G). Second, Relator was not
    required to complete a privilege log for items that are covered by the attorney-
    client or work product privileges and argued as much to the trial court (TAB 10 p.
    41110-11; TAB 20 p. 47/14-20). See In re BP Prods. N. Am., Inc., 
    263 S.W.3d 106
    , 112 (Tex. App.-Houston [1st Dist.] 2006, orig. proceeding) (citing TEX. R.
    Crv. P. 193.3(c) and stating, "When a privilege is asserted under Rule 193.3(c), a
    patiy need not comply with TEX. R. Crv. P. 193.3(a) and (b), which require, upon
    request, a description of the information or materials withheld, often referred to as
    a privilege log, and an asse1iion of a specific privilege for each item or group of
    items withheld."). Third, the trial court never ruled that the lack of a privilege log
    constituted waiver; rather, it implicitly overruled such an argument by allowing
    Relator to remedy this alleged failure by timely submitting such a log without
    penalty (TAB 10 p. 27/21-25, p. 30/3-5, p. 32/8-9, p. 57/24-58/10; TAB 20 p.
    46/1-16). Because a privilege log was not required under the rules, Plaintiffs'
    argument lacks merit and should be disregarded by the Court.
    D.     Plaintiffs' argument that Relator's policy manual and the Kramer
    affidavit establish the notes/report were in the regular course of
    business are not supported by evidence.
    Plaintiffs allege the Privileged Notes are not privileged because they were
    kept in the regular course of business as required by Relator's written policies
    Reply to Response to Petition for Writ of Mandamus                        Page6
    (Response p. 20-28). This argument is conclusory and fails to account for the only
    relevant evidence regarding how the Privileged Notes came to exist-the affidavit
    of Gary Latnbert.
    Relator's policies and procedures do not apply to establish the Privileged
    Notes were completed in the regular course of business. A simple comparison
    between various fonnal reports submitted in camera with the Privileged Notes
    facially establishes that the Privileged Notes were not the type of document
    contemplated by the policies and procedures (Compare Privileged Notes with TAB
    25). For instance, the Privileged Notes are handwritten and/or typed but have no
    heading, are not on letterhead, and are unsigned (In camera Privileged Notes). By
    contrast, a fonnal accident report would be similar to that found in TAB 25, 4 which
    is on letterhead, has questions to answer with blank spaces, contains sections for
    preventive measures, corrective actions, incident evaluation, and is signed by the
    person or persons conducting the investigation (TAB 25).
    Although the policies show a report is generally completed after an accident,
    m this case no formal report was completed because litigation counsel was
    involved from day one, the investigation was turned over to counsel, and the only
    credible evidence before the trial court was Gary Lambert's testimony that he
    created the notes and typed summary in an effort to report to litigation counsel
    4
    TAB 25 is a representative example of a formal rep01i that was contained in the Relator's privilege log and before
    the trial court to determine the merits of Relator's privilege objections (TAB 19, Ex. 4).
    Reply to Response to Petition for Writ of Mandamus                                                   Page7
    regarding the accident (Tab 20 p. 47/2-13, p. 3911-4117; Tab 19, Ex. 5).
    Specifically, Gary Lambert attested, "Mike Miller [Relator's counsel] arrived at
    the TAMU site within hours after the accident. Mike Miller asked me to sit in on
    meetings and report back to him regarding those meetings. My notes and other
    documents I generated were the result of those instructions . . . [and] I thought
    [they] would be confidential" (TAB 20 p. 39/23-41117, p. 63/8-64116; TAB 19, Ex.
    5).   The foregoing affidavit establishes the genesis of the notes as being an
    instruction from litigation counsel, Mike Miller, to report to him regarding the
    accident. Further, the affidavit of Tom Kramer establishes that Relator anticipated
    litigation immediately upon learning of the accident and retained litigation counsel
    to investigate and prepare for possible litigation (TAB 6). Thus, Relator met its
    initial burden to prove an applicable privilege and the trial court eiTed by
    ovenuling the privileges and ordering such records be produced.
    In addition and assuming arguendo the attorney-client or core work product
    privileges do not apply, which is denied, the Privileged Notes are "other work
    product" and are only discoverable upon a showing of "substantial need" and that
    Plaintiffs are "unable without undue hardship to obtain the substantial equivalent
    of the material by other means." In re 
    BP, 263 S.W.3d at 113
    . In this case,
    however, Plaintiffs never showed a substantial need or that the substantial
    equivalent of the information from the Privileged Notes could not be obtained by
    Reply to Response to Petition for Writ of Mandamus                      PageS
    other means. In fact, the trial comi noted Plaintiffs would have an opportunity to
    detennine whether a report actually existed once they deposed Gary Lambert (TAB
    10 p. 55/9-12).          Notwithstanding the foregoing, Plaintiffs were given the
    opportunity to depose Lambert but failed to ask a single question regarding the the
    observations of Lambert or the content of the notes or alleged report (TAB 20 p.
    50/20-25). Further, Plaintiffs sought to re-depose Gary Lambert and the scope of
    this deposition was discussed by the trial court wherein it stated, without objection
    by counsel, that Lambert could be asked about his factual observations, factual
    investigation, what he observed, what he found, and the names or identities of
    witnesses he spoke with (TAB 20 p. 73/7-12). Lambert's Privileged Notes are not
    needed in order for Plaintiffs to obtain substantially the same infonnation as in a
    deposition. As a result, mandamus should issue.
    E.     Plaintiffs' assertion that Relator concealed 1,200 pages of documents for
    months is not supported by the record.
    Plaintiffs allege Relator wrongfully concealed or did not disclose 1,200
    pages of documents that may have been responsive to discovery requests. These
    assertions are not supported by the rules of procedure or the record.
    The Rules provide that a "party must amend or supplement the statement if
    additional privileged infom1ation or material is found subsequent to the initial
    response. Thus, when large numbers of documents are being produced, a party may
    Reply to Response to Petition for Writ of Mandamus                       Pagc9
    amend the initial response when documents are found as to which the party claims
    privilege." TEX. R. C1v. P. 193, n. 3. The Rules further contemplate that discovery
    must be amended or supplemented "reasonably promptly" after the party discovers
    a response to written discovery is incoiTect or incomplete. TEX. R. CIV. P. 193.5.
    Tom Kramer stated in his affidavit that the existence of the Privileged Notes
    was unknown until after November 18, 2014 when Plaintiffs' counsel informed
    Relator's counsel that he believed a report existed and Kramer began his Quixotic
    quest to find such a report (TAB 6 p. 4). Kramer attested he discovered a box of
    documents containing the Privileged Notes and immediately turned them over to
    Relator's counsel (TAB 6 p. 4). Shortly thereafter, Relator made the existence of
    the Privileged Notes known to Plaintiffs and the trial court on December 1, 2014
    (TAB 6). On December 5, 2014 the trial court ordered that a privilege log be
    submitted and Relator complied with this order on December 8, 2014 (TAB 14,
    Ex. F).     Because Relator did not actively conceal records but, rather, timely
    supplemented, this Court should disregard Plaintiffs' hyperbole and grant
    Mandamus.
    F.     Evidence proffered by Plaintiffs is objectionably and not admissible.
    Plaintiffs refer this Court to the affidavit of Jonathan Sneed (TAB 16, Ex.
    A), the affidavit of Casey Jordan (TAB 16, Ex. B), various texts and emails, and a
    transcribed recording of a call allegedly between Gmy Lambert and Jonathan
    Reply to Response to Petition for Writ of Mandamus                      Page 10
    Sneed in an effort to suppmi their arguments         (Response~   20) (TAB 16, Ex. I; TAB
    20 p. 51/24-52/3, p. 62/15-20). Sneed and Jordan were both attmneys for the law
    finn representing Plaintiffs at the time of the affidavits and Relator objected to
    these affidavits as as incompetent under Rule 3.08 of the TEXAS DISCIPLINARY
    RULES OF PROFESSIONAL CONDUCT, legally invalid because they did not
    aver the facts were true and conect, hearsay, and conclusory (TAB 18; TAB 19;
    TAB 20 p. 39/23-40/3). To the extent Plaintiffs rely on the foregoing affidavits,
    texts, emails and/or other self-serving but unauthenticated documents, Relator
    objects and prays the Court disregard same in determining the merits of this
    Mandamus.
    The only relevant and admissible evidence before the trial court regarding
    the privilege issues was contained in the affidavits of Tom Kramer and Gary
    Lambert (TAB 6; TAB 19, Ex. 5). This evidence was what the trial court should
    have reviewed to determine the applicability of the attorney-client and work
    product privileges and both affidavits establish the propriety of the privileges.
    Because the trial court ruled the Privileged Notes were not privileged and should
    be produced even though the privileges were established, this Comi should grant
    Mandamus.
    Reply to Response to Petition for Writ of Mandamus                            Page 11
    G.     Conclusion
    For the reasons contained in this pleading and the Petition for Writ of
    Mandamus, Relator prays this Court will grant it the extraordinary relief requested
    because to do otherwise would cause undue harm to Relator. The production of
    the Privileged Notes cannot be cured on appeal.
    PRAYER FOR RELIEF
    WHEREFORE, Relator respectfully requests that:
    (1)    this Court determine the Privileged Notes are privileged and should not be
    produced;
    (2)    this Court grant Relator's Application for Writ of Mandamus directed to
    Respondent, and command him to (1) vacate his order, and any subsequent
    order in compliance with same, as addressed herein, and (2) sign, and cause
    to be entered in the court minutes, an Order denying Plaintiff's Motion to
    Compel; and
    (3)    this Court grant such other and ftniher relief to which Relator may show
    itself justly entitled, including costs regarding this original proceeding.
    Respectfully submitted,
    Is/ J.J. Knauff
    J.J. KNAUFF
    State Bar No. 24032517
    i knauff@tmlfpc.com
    THE MILLER LAW FIRM
    3811 Turtle Creek Blvd., Suite 1950
    Dallas, Texas 75219-4535
    (469) 916-2552
    (469) 916-2555- Telefax
    ATTORNEYS FOR RELATOR
    Reply to Response to Petition for Writ of Mandamus                             Page 12
    CERTIFICATE OF SERVICE
    I hereby certify that a true and conect copy of the foregoing document has
    been fmwarded viae-filing to all counsel of record as listed below on this 2nd of
    June 2015.
    Respondent
    Honorable Lany Weiman
    Judge, 80 1h Judicial District Court of Ranis County
    Attorneys (or the Plaintiff
    Jason Gibson
    The Gibson Law Fim1
    440 Louisiana, Suite 2400
    Houston, Texas 77002
    Plaintiffs' Counsel
    Is/ J.J. Knauff
    J.J. KNAUFF
    CERTIFICATE OF COMPLIANCE
    I hereby certify that this Petition was prepared using Microsoft Word, which
    indicated that the total word count (exclusive of those items listed in rule 9 .4(i)( 1)
    of the Texas Rules of Appellate Procedure, as amended) is 2,898 words.
    Is/ J.J. KNAUFF
    J.J. KNAUFF
    Reply to Response to Petition for Writ of Mandamus                         Page 13
    No. 01-15-00349-CV
    IN THE COURT OF APPEALS
    AT HOUSTON
    IN RE MANHATTAN I VAUGHN, JVP
    Original Proceeding Regarding
    Cause No. 2013-76550
    In the 80th Judicial District Court of Harris County, Texas
    SUPPLEMENTAL AFFIDAVIT
    STATE OF TEXAS                         §
    §
    COUNTY OF DALLAS                       §
    BEFORE ME, the undersigned authority, on this day personally appeared
    J.J. KNAUFF, who is personally known to me and, who, after being duly sworn
    according to law, deposed and said:
    "My name is J.J. Knauff. I am of sound mind, over the age of twenty-one
    (21) years old, capable of making this affidavit, have never been convicted of a
    felony, and have personal knowledge of the facts stated herein and affinn that the
    following is true and correct.
    Reply to Response to Petition for Writ of Mandamus                    Page 14
    "I am an attorney of record for Relator in the Underlying Suit, Cause No.
    2013-76550, in the 80 1h Judicial District Court of Ranis County, Texas (the
    "Underlying Suit"). I have reviewed the pleadings, discovery, conespondence,
    and other documents that have been generated and served in this matter. I have
    also attended the many of the depositions taken in this matter and have taken
    depositions in this matter. As a result, I have personal knowledge of the pleadings
    and discovery filed and served in the Underlying Suit, including those filed by
    Relator and those by other parties. I have read Relator's Petition for Writ of
    Mandamus and Reply to Response to Relator's Petition for Writ of Mandamus, and
    all factual statements made therein are true and correct."
    "Attached hereto as the Record in this original proceeding are true and
    correct copies of the following documents and attachments thereto:
    TAB 24:        Notice of Status Conference;
    TAB 25:        Relator's Accident Investigation              Repoti:   Derr        Isabel
    (MV_LAMBERT.000199-000216);
    TAB 26:        Affidavit of J.J. Knauff.
    "The documents and attachments contained in Exhibits "24-25" above are
    true and conect copies of the originals."
    FURTHER, AFFIANT SAYETH NOT.
    Reply to Response to Petition for Writ of Mandamus                       Page 15
    SUBSCRIBED AND SWORN TO BEFORE ME on this                             2nd   day of June
    2015, to cetiify which witness my hand and seal of office.
    of{_ -2. fftL
    Notary Public in and or the
    State of Texas
    Reply to Response to Petition for Writ of Mandamus                                 Page 16
    3/27/2015 4:43:08 PM
    Chris Daniel - District Clerk Harris County
    Envelope No. 4680862
    By: ALEX CASARES
    Filed: 3/27/2015 4:43:08 PM
    Cause No. 2013-76550
    JOSEFINA GARCIA, Individually              §        IN THE DISTRICT COURT OF
    and as Heir to the Estate of ANGEL         §
    GARCIA (Deceased); and ORBELINDA           §
    HERRERA, as Next Friend of ASHLEY          §
    GARCIA and BRYAN GARCIA (Minors)           §
    §
    v.                                         §        HARRIS COUNTY, TEXAS
    §
    MANHATTANjVAUGHN,JVP,                      §
    TEXAS CUTTING & CORING, LP,                §
    TEXAS CUTTING & CORING, GP, INC.           §
    and LINDAMOOD DEMOLITION, INC.             §         80 1h JUDICIAL DISTRICT
    NOTICE OF STATUS CONFERENCE
    PLEASE TAKE NOTICE a Status Conference will be held on Tuesday, April 7,
    2014 at 4:30p.m. in order to review the status of pending motions, a proposed new docket
    control order and the progression of the case generally before the court. Please note the
    call-in number is 713.345.9879, passcode: 3686100#.
    Respectfully Submitted,
    THE GIBSON LAW FIRM
    Jason A. Gibson
    State Bar No. 24000606
    Casey L. Jordan
    State Bar No. 24090599
    The Lyric Centre
    440 Louisiana, Suite 2400
    Houston, Texas 77002
    Ph: (713) 650-1010
    Fax: (713) 650-1011
    ATTORNEYS FOR PLAINTIFFS
    TAB24
    CERTIFICATE OF SERVICE
    I certify a copy of this document was served to all counsel of record by first class
    regular mail and/or fax on March 27, 2015.
    Casey L. Jordan
    2
    TAB24
    Manhattan Vaughn                713.332.7250 (office)
    Manhattan¥                                             PO Box 11610
    College Station, Texas 77842
    g79.268.7540 (racsimtle)
    ACCIDENT INVESTIGATION REPORT FOR INJURY/ PROPERTY DAMAGE
    Company: BiggE Equipment Company, Cub eros Trucking & Derr Isabel
    TruckDriver: CuberosTrucking Roberto Lara 281·414-5534
    Vehicle Driver: Avary Edwards 512-970-5932
    Date & Time oflncident: 10/22/13 4:48pm.
    Date ofReport: 10/23/13
    Location of Property Damage: A&M University Joe Rout St. & Houston St.
    Type of Damage: Vehicle damage to left front fender of2004 Jeep Cherokee
    Estimated CostofDamage: Unknown
    Description oflncident: BiggE Equipment was erecting a 330 Ton Crane on the north end of Kyle
    Field, College Station Texas.
    William Bailey with BiggE Equipment hired Cub eros Trucking from Porter Texas to deliver different
    pieces of the crane's boom.
    All trucks were instructed to drive north on Houston St., offload and exit back to the south on
    Houston St same as entering the project
    Derr Isabel Superintendent Rick Fayard instructed the Cuberos truck driver 2·3 times do not turn
    north out of the gate but to the south on Houston St.
    The truck driver disregarded the instructions and backed to the south and drove towards the north
    on Houston St. He moved over into the southbound lane to clear the corner for the right hand turn
    onto Joe Rout St.
    The 2004 Jeep was legally in her lane of traffic at the stop sign on the corner of Joe Rout St. and
    Houston St.
    When she observed the trailer moving toward her driver side front fender she started honking her
    horn to warn the truck driver.
    The truck driver completed his right turn and clipped the front left fender of her vehicle.
    Gary Lam bert with Manhattan Vaughn questioned the driver as to why he didn't follow instructions
    on how to exit the project and he said he wanted to turn right onto Joe Rout, and then back the rig past
    Houston St. and turn back to the south on Houston.
    I immediately ask him if he planned on backing his truck towards one way traffic without a flagger to
    stop oncoming traffic. No answer?
    I met with the BiggE supervisor and Instructed him to prohibit this driver from any future deliveries
    to the Kyle Field Project.
    Gary Lambert
    Manhattan Vaughn Safety Department
    glambert@manl1attanvaughn.com
    214·687-1651
    Kyle Field College Station Texas
    TAB25                                   MV_LAMBERT.000199
    *CountY          . .                                             l'ioCit\1               ,;.        .      .
    · Name.         BR.A.ZOS                                         1Nllma      CQllE~E; STA1lON
    NGROIW.ORIF·CI?ASH_Nf)TATINTER$EC'l'JON,!:RHS"/NTERSECTTNGROADOR~CE~.
    tAl
    N.
    tnt.
    .
    lil Ve& 1RdW;{. rHY,Y
    O No ~- · lR Num.
    12 Rily,y
    Ipari     1   Num
    13 Sfreat
    IPmlilc
    SlJl!.llt
    Nli.me            JOE ROUIT BL,VD,
    .             I" S1reet
    I3Ufllx
    ~~r OWI'J~                   CUBEROS~ELOY
    0 Lest:ee   Nlime ~Acldreaa- '24737 ROBERT l)R. PORTER. 1X. 77365
    Prootct Ill Yw QJ;Xpl~I26F'ui.      l lr~_;!!&$P~ MAXUM CASUALTYXNSURANCE                            I~:.R.il$p. ,......,.,.. ,.,..,.no•
    All.   R&~~p   No Q!Sltetnptl Raep.'JYPt;   11..... ~                                                ,....,.,     • ....,......,u16._..." ~
    TAB25                                                       MV_LAMBERT.000200
    Unit Pnln.                           TlllOrlv C}fharThan VAh!e!H                                  owner'!~   Nam&                                                   o.vnet's Addl1!&9
    ~~--~~~~~~~~~~--~--------~~~~~--------r---------~~~~~--------~
    !T--------------------+----------------·--~--------------------~
    Unit
    Num.
    lr.m
    1 ~.10,001.., LllS.
    omAtlsPORiiNG
    HAZAROOUSMA"'Ia!!AL
    0    llH,APACrrY
    .I28Vell,
    lOper.         1
    (29 camor
    Ito Type        2
    ICon1er
    liD Num. 00546:!088C
    ~·                                                                        Canle(&
    'c:Qoii; Marne
    FULKERSON 1k FUlKERSON               PtlmaiV Addr. 1920 KING RICHARDS CT.. MONTGOMERY           TX 17316
    5 SOROv.y. 31Veh. I[J~GVW                 Hlu:Mttt 0Yeai~2HazMat       IHazMat                321-laz:Mat IHOMat
    l\!Ao:au 1 Type 11J!ilGWiRt113tOtOtOI Rel&:l!led[liNo !CtauNum.t....JIIDNum.L....LJI 1 1 1 ICiasaN1.!m.LJIIONum-L..L.Jr 1 1 1 1
    33caroo       hraner 1 1Unll   IORGVW                     J$4Trlr.     1rrotler 2 lunit  IORGVW                  I~Trlr.
    Body style 5 I'       JNum. 2. IOGVWR 1 1 1 1 rOt jl"fpe           1 I            I»urn. IOGWJR 1 1 t 1 1 1 (Type
    w   e
    ~=~35Soq.1 ~3
    36Seq.2                                                    S5Seq.3                          35Seq.4
    'V..ltlci&Oo!icisl!mestlolllnnrOI>lnlonl
    ~=Axles
    andRoadwa
    3         ~~:~Tire$                              10
    jI  6
    1
    2
    65
    n
    I
    48
    e     .
    l!lYeSilgatl)l'~ ~!fB!ive O!ltnfOO of.;vnat' ~
    lOirlboti       MaV lillve, COn1!l!>.        !Ill
    COlli!.
    1
    S9
    Cern!.
    1
    40
    Roa&
    2
    41
    W&athot Ugh! EmeMg R~~ Roadway Swfaea Trame
    · 42
    TYfl!l
    1
    Allgnmeil; Condftlon Control
    1
    43
    1
    44
    gs
    {AIIlldl AlkfiUona1 Sheets It         ~-·
    Unit. 1 (towing 'Otl.it 2} waG Na on Houston St.
    D:dve~    of units 1 & 2 attempted to turn east
    onto Joe Routt but was not able. to ~ t:he
    turn ouoCGeeful.ly, D:eivo.r of Units 1 & 2
    sta.f:.Qd be backed onto Houston St. into tha SB
    lana o~ t::avel to attal:llpt t.he tW':I1 av!U%\. Unit
    3, which wu ~Stopped by a. flagman south of
    the .interaeotJ.on on ll:ou~:~ton St., was allowed
    .. to prooe&d to t:ha intarsaction. Unit 3 t:hazl
    ~ 04llla to a stop in tha NB lane of travel at the
    a   atop s.:l.gn for the intorseation. llet'o~ Unit 3
    <11 bc.lqan to turn, driver of Units 1 & 2 :began t:o
    ~ turn eut onto Joe P.oute :from t.he SB lane of!
    ~ 1Iot1aton St. Uo.it. 2 than t.tt:.t:uek unit 3 as she
    !   :z:e:mainad stopped at tha stop 8ign. D:r:iver of
    11Aits 1 & 2 statad he did not saa trnit 3
    stopped at tl\e atop sign,
    Witne~rs              Information:
    • *    Continued "'           *
    T!me Nolilled            !How
    lf24HRMM) I 1 d$ I 3 I 5 II Notified WITNESS
    ~m. 905008245
    District/
    Area         I     I       I        I       I       I          I
    TAB25                                                               MV_LAMBERT.000201
    ~~~. 3 l~t 1 ID=!DlfJ:mll~ TX l~l¥1l                                                        t.:VAFLV         l'viN',1,:J.;4,G~W,4,8~.S,4.,4 1 Cr~tOtfid~·,s,4,
    voo.      . l!i·Van . tvelt. ·                                                                     l\i'eh,
    ~ 91 I'0'Na!mll\>otl'cliafiiei/lln
    TBo"'             $la!ll      I t-lum.                                          I t..w-        End.                                                            IL   .J.JJ_L.f.t         _t_ _t_ .I
    ~~~--~--~~~~~~
    (UIJ---II--+--t---.----------------+-t--ll--+--t--+-t-+--+--h:.Not":App!!cabfll.Airohoi."81UI
    .lij~ir--t---r-+---------------------------------------+-4-~-+~--4--.f--~~-4:~~~~~
    ~
    )Fln.Resp.
    (Name                                                               I fill. Reap.
    NIJm;
    --
    Fln:Resp.
    Pl!cmlNum.
    JTowed
    TO
    TAB25                                                      MV_LAMBERT.000202
    taw Enforcementand OOOT U&e ONLY
    FormCR-31/112010
    I
    cas& 10
    13'"i022...000
    .     3                                1wor enm 10                                                     I               Pail~ofUU
    ~~~ ~::                                     Taken To                                                      'raker~ By
    Data of~_
    rtj                               ~rr~lh
    24H
    L....L-iL ..l              I        I   I       1i1                      I
    ~~
    1
    .LJ       ..lit
    I
    I        I   I       I       I        I               I
    L...tJ       ..!. },       I        I   I           iL       .I          I
    l ...t J     .J..    Jl    t        t   I                        I       I               I
    l .l    it   ...!_   iL    I        I           J                        I       1       I
    !l ...tiL ...tit           1            I               I.. I            I               I
    Unit       Ptstl.
    Num.       Num.                                                                               Chlll!28                                                                           CHa~Num.
    I                                                                                                                                                            ---
    Ill              Onmaoet:~ P~ O!Mt ·nmn Vehlc:lel                                                       Own~!'alllltmA                                                Dwni!I'G ~s
    !I
    il
    Unit
    NUm.             O 10.001+ LBS.           OTAANsPORTtNG
    HAZAI\OOUS MAiERJAL                O II+ CAPACITY·l~ve11.
    ()pet.                      I~CA\'IW
    1D 'JW>9          ~~am~
    IONum.
    ~~l's                                                                                C&ll'lel'a
    Name
    ~ 30 Rd.\y.
    Acce&s
    33C&Igo
    Body~
    ~I$5Seq.1
    31VI!ll.
    lY!le
    I$
    IPRGVW
    OGVWRI
    IT !let ~I ~nlt
    Num.
    as aeq.z
    Fo~GVW
    HalM9t 9~:si~HazMa!
    GWIRI        I      I
    PiiiiU\iYAddr.
    I
    $Seq,$
    Hs1M8t
    I I I I I 'Rekw.ed 0 Ko Class Num.L..J 10 Num.LLJ 1 I I 1
    I
    I~Tilr.
    I 1\'pQ                ITmOOrzl~~
    35Sllq. 4
    ilJ-
    ITotsJ
    um.w 10 Nurn.LJ....J 1 1 1 I I
    I    I        I   I
    ITota'
    I
    ~~Tilt.
    I Typo
    Num. Axles                       Nurn. 'lil'es
    !16 Collll butfll(l FIICUll'll                   Gon!nlon            VIII! cw ~focts nn        WIR~tcra     0n1nl011                               luna Roat :wavccnc ltlon•
    i~ Ul111Num.                       m111bu1lnq        MaY Haw Con!rib.                    ml!1butf1              Mev Have Contrtb.        38
    Wea!Mf
    ~
    $9        40
    Ente~ng
    41       42        43
    Road\Ya) Road-Nay Surface                                  r.!1nn
    gB     3                                                                                                                               Cond.               Roada       Typo Allgnmeiil Cond!IIOn Conlml
    lllW$= Naffl11lve          =of
    AddillOI'IIll
    What Happened
    If Nilals91lly)                                   llndle!IIO
    North          I
    1         1         2            1
    fbid oi&Qt.iili •NOi to seale
    1                        1               fJS
    I5
    ""~
    .
    ~
    §
    * * Continued * *
    llme Notltied
    5 1jHow
    3 1-1
    i24HfiliMi. I :J. lfi 1-      Nollft'ed WITNESS
    TlmeAnlved
    lii~HR~- r1d!J~dil
    . m~.nate
    L!&.1LJ.J:JJ, 21 g, ' I :ill
    ln'ml. !~~J:fea~~                         VAN DRESAR, TODD
    10
    Num.         905008245
    Comp. ONo Name P!lnMd)
    ji5   ORI
    Num.l    T1X1 0!2.11! !11 ~~ Jl1 01                     k•llqllMI TEXASA&.M UNIVERSITY POUCE                                                                             Of8frloll
    Ama          I       I        I       I       I       I       I
    TAB25                                                          MV_LAMBERT.000203
    lndtcate North.
    Drawing Not To Scale.
    JOE ROUlT BLVD
    TAB25   MV_LAMBERT.000204
    List all employees involved & craft: check if injured
    _              N/IL              .
    7
    Note: Additional forms are available for Employee Statements, Change Analysis, Sequence
    of Actions & Events, and additional notes. Use as required for the investigation.
    TAB25                   MV_LAMBERT.000205
    Use the following questions and charts (wben appropriate) to assist in identifying the contributing factors and root causes
    .related .to the incident. Space is left for comments.                 .
    Provide a task description (what was llle employee trying to accomplish? Ex. Welding steel beam, unloading truck with
    forklift):
    Empl?yee 9u~Uficatio.ns                j
    1:! .f\·
    Expenence m JOb functlOn: _ _.L~:.t--:-::--:------ Experience on job s i t e - - - - - - - - - - -
    Was this task discussed in the morning b r i e f i n g ? - - - - - - - - - - - - - - - - - - - - - - - -
    Was the employee trained to conduct this task?
    Are special certifications or training required?
    When was llle last safety meeting the employee attended? - - - - - - - - - - - - - - - - - - - - -
    Is there historical infonnation to consider? (Safety reprimands, previous incidents of the same nature etc.) - - - - - -
    Environmental Factors
    Check if any of the listed factors may have contributed to the incident. Explain below.
    Lighting                                                     Excessive noise
    Ventilation                                                  Outside weather
    Temperature extremes                                         Fire I explosion hazard
    Congestion I close clearance                                 Chemieal spill/ exposure
    Confined space (penni! req?)                                 Other hazardous conditions in work area (explain below)
    Tools I Equipment /Material                                 0
    Were tools and/or equipment involved in the incident? +yJM-r-------------------
    Were inspections on tools and equipment current? -~N-:-()..=-':------------------
    Were the tools and equipment proper for the job? --...>-::,__v__________________
    Was lock out I tag out required? _     Used properly?_
    Was facility material or property invol ed? ....o..::...:o
    Was there damage or defects? --~1-)_     0_ _ _ ________________                _ _ _ _ _ _ _ _ _ _ __
    _ _--:-..,.,...----------
    Were the tools, equipment, and material adequate and meet applicable regulations? .lJ_b
    Procedures I Poll des
    ls a written procedure provided for the task? ..f-.,...=--
    If not, why?     l.,.l.Qd '?:c s, D +\:
    Are there circumstances dictating the procedure could not be followed?
    At Risk Behavior
    Was a safety device bypassed or removed?_,_..-..-::..-·----------------------
    Poor or improper lifting teclmiques? - - - - - - - - - - - , . . - - - - - - - - - - - - - - - -
    Was there a failure to recognize and correct a hazardous condition? _ · - - - - - - - - - " - - - - - - - - - - -
    Was improper loading or placement of materials a factor?.=:.
    Were, tools and equipment properly used? .;;._....-_·--------------~--------
    Was the correct PPE being used by the employee?         _,...   Was it in good condition?
    Conunen~--------------------------------------------------------
    TAB25                                    MV_LAMBERT.000206
    List below the Preventive Measures I Corrective Actioos thai have.been or will be taken to prevent a recurrence of this incident or other incidents of this
    type. Include who has been made responsible for the Preventive Measures/ Corrective Actions and the estimated completion date, The listed actions are to
    be approved for implementation only after the required review and approval signatures a.re obtained.
    I. Responsible   Person-------------                                       Estimated completion d a t e - - - - - Complete------
    2. Responsible P e r s o n - - - - - - - - - - - - - -                       Estimated completion date _ _ _ _ _ _ Complete _ _ _ _ __
    3. Responsible P e r s o n - - - - - - - - - - - - - - - - Estimated completion d a t e - - - - - - Complete------
    4. Responsible P e r s o n - - - - - - - - - - - - - - -                    Em mated c~mpletion d a t e - - - - - - Complete------
    5. Responsible Person _ _ _ _ _ _ _ _ _ _ _ _ __                           Estimated completion date------~ Complete------
    6. Responsible P e r s o n - - - - - - - - - - - - - - Estimated completion d a t e - - - - - - Complete------
    Comments: List attachments and use this section for any comments
    "Why Tree Diagr m", Photographs,
    .                         .
    state (in comments) any Contributing Factors or Preventive measures you feel need to be incorporated.
    2. Project Mana~· SCS
    --'~:..;.&fj~::.-__.~l/l-'::....!f.·1f,t.,.-·_ _ Date JQ.. 2..2.- /3 .
    Co~en:      _______-________________________________________________________________________________
    Check here if the acddent has resulted in OSHA Rerordable ___              ~~Time      _ __                                                  Page4
    TAB25                                             MV_LAMBERT.000207
    Instructions:
    Use this form for Employee Statements, additional notes, sketches, or to prepare a "Sequence of
    Actions and Events" for your investigation. Attach to the incident investigation repott
    ~,4-- ~~.,t
    _r-foy,~..-.              ...,.f!f<...-.. ,~;.." :U;;
    I.?
    frr             J
    -/-c>W
    .
    f,;tf_. ~;{d s~~
    dr~-4-;-o
    /t--rvt./1
    , .,.,
    S ~/'I f"urt/1~
    c/o<~~
    S~r' ~r".-, .,!,.//
    .A-
    ,/?r
    8              _.Av . . r--
    t:'.-,r//
    ~-<.~ /
    ;)~.,/
    /<> --<.:>
    -/2-
    'vtc "c:-(--".4:. u..~ /~~/'
    ~~~                    rp;il-< /
    /UY#?F
    TAB25                                             MV_LAMBERT.000208
    TAB25   MV_LAMBERT.000209
    TAB25   MV_LAMBERT.000210
    TAB25   MV_LAMBERT.000211
    TAB25   MV_LAMBERT.000212
    TAB25   MV_LAMBERT.000213
    TAB25   MV_LAMBERT.000214
    TAB25   MV_LAMBERT.000215
    TAB25   MV_LAMBERT.000216
    No. 01-15-00349-CV
    IN THE COURT OF APPEALS
    AT HOUSTON
    IN RE MANHATTAN I VAUGHN, JVP
    Original Proceeding Regarding
    Cause No. 2013-76550
    In the 80th Judicial District Court of Harris County, Texas
    SUPPLEMENTAL AFFIDAVIT
    STATEOFTEXAS                      §
    §
    COUNTY OF DALLAS                  §
    BEFORE ME, the undersigned authority, on this day personally appeared
    J.J. KNAUFF, who is personally known to me and, who, after being duly sworn
    according to law, deposed and said:
    "My name is J.J. Knauff. I am of sound mind, over the age of twenty-one
    (21) years old, capable of making this affidavit, have never been convicted of a
    felony, and have personal knowledge of the facts stated herein and affirm that the
    following is true and correct.
    TAB26
    "I am an attorney of record for Relator in the Underlying Suit, Cause No.
    2013-76550, in the 80 1h Judicial District Comi of Harris County, Texas (the
    "Underlying Suit"). I have reviewed the pleadings, discovery, correspondence,
    and other documents that have been generated and served in this matter. I have
    also attended the many of the depositions taken in this matter and have taken
    depositions in this matter. As a result, I have personal knowledge of the pleadings
    and discovery filed and served in the Underlying Suit, including those filed by
    Relator and those by other parties. I have read Relator's Petition for Writ of
    Mandamus and Reply to Response to Relator's Petition for Writ of Mandamus, and
    all factual statements made therein are true and correct."
    "Attached hereto as the Record in this original proceeding are true and
    correct copies of the following documents and attachments thereto:
    TAB 24:      Notice of Status Conference;
    TAB 25:      Relator's Accident Investigation                Repmi:   Derr   Isabel
    (MV_LAMBERT.000199-000216);
    TAB 26:      Affidavit of J.J. Knauff.
    "The documents and attachments contained in Exhibits "24-25" above are
    tlue and correct copies of the originals."
    FURTHER, AFFIANT SAYETH NOT.
    SUBSCRIBED AND SWORN TO BEFORE ME on this                      2nd   day of June
    2015, to certify which witness my hand and seal of office.
    s:i~ Y. yvvy/      1
    Notary Public in and for the
    State ofTexas
    

Document Info

Docket Number: 01-15-00349-CV

Filed Date: 6/2/2015

Precedential Status: Precedential

Modified Date: 9/29/2016