the City of Waco v. Armando Fuentes, III ( 2010 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-09-00126-CV

The City of Waco,

                                                                                    Appellant

 v.

Armando Fuentes, III,

                                                                                    Appellee

From the 414th District Court

McLennan County, Texas

Trial Court No. 2003-875-3

ORDER

            The City of Waco appeals a monetary judgment in favor of Armando M. Fuentes, III on a personal injury claim against the City.  One of the issues presented on appeal pertains to the qualification of Fuentes’s personal physician, Dr. Riggs, to testify about causation.

            The record on this issue appears to be incomplete.  Portions of a deposition of Dr. Riggs appear to have been considered by the trial court possibly as well as hand-written objections by the City.  However, the appellate record does not currently include this information; so it is difficult for this Court to know what the trial court considered when determining whether to allow Dr. Riggs to testify about causation.  So that no more judicial time and resources are needlessly consumed by the Court in resolving this issue, the parties will be required to brief a question for the Court:  May this Court require the trial court to complete the record on appeal with the item or items considered by the trial court when determining whether Dr. Riggs should be allowed to testify about causation?  Briefing on this question, however will not be ordered at this time as discussed below.

            For the parties to properly brief the above question, the parties may have to work with the trial court to identify the item or items considered in determining the ability of Dr. Riggs to testify about causation and determine the extent to which the items were retained by the trial court or trial court clerk.  In order to accomplish this task, the trial court may need to hold a hearing.  Because the trial court may need to hold a hearing, this proceeding should be abated.

            However, before we abate this appeal or proceed any further with the request for briefing, we find that this appeal is appropriate for mediation.  See Tex. Civ. Prac. & Rem. Code Ann. § 154.021(a) (Vernon 2005); 10th Tex. App. (Waco) Loc. R. 9.

            The parties are ordered to confer and attempt to agree upon a mediator.  Within fourteen days after the date of this Order, the City of Waco is ordered to file a notice with the Clerk of this Court which either identifies the agreed-upon mediator or states that the parties are unable to agree upon a mediator.  If the notice states that the parties are unable to agree upon a mediator, this Court will assign a mediator.

            Mediation must occur within thirty days after the date the above-referenced notice agreeing to a mediator is filed or, if no mediator is agreed upon, within thirty days after the date of the order assigning a mediator.

            No less than seven calendar days before the first scheduled mediation session, each party must provide the mediator and all other parties with an information sheet setting forth the party’s positions about the issues that need to be resolved.  At or before the first session, all parties must produce all information necessary for the mediator to understand the issues presented.  The mediator may require any party to supplement the information required by this Order.

            Named parties must be present during the entire mediation process, and each corporate party must be represented by a corporate employee, officer, or agent with authority to bind the corporate party to settlement.

            Immediately after mediation, the mediator must advise this Court, in writing, only that the case did or did not settle and the amount of the mediator’s fee paid by each party.  The mediator’s fees will be taxed as costs.  Unless the mediator agrees to mediate without fee, the mediator must negotiate a reasonable fee with the parties, and the parties must each pay one-half of the agreed-upon fee directly to the mediator.

            Failure or refusal to attend the mediation as scheduled may result in the imposition of sanctions, as permitted by law. 

            Any objection to this Order must be filed with this Court and served upon all parties within ten days after the date of this Order, or it is waived.          

            We refer this appeal to mediation.

                                                                        PER CURIAM

Before Chief Justice Gray,

            Justice Davis, and

            Judge Littlejohn^[1]

            (Justice Davis concurring with a note)*

Referred to mediation

Order issued and filed July 14, 2010

Do not publish

*           (”Justice Davis joins only the referral to mediation.  He does not join the language of the Order concerning briefing or abatement.”)

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[1] The Honorable Janet P. Littlejohn, Judge of the 150th District Court of Bexar County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code.  See Tex. Gov't Code Ann. § 74.003(h) (Vernon 2005).