in Re LDF Construction, Inc. and Lynn D. Foster ( 2009 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00315-CV

LDF Construction, Inc., Lynn D. Foster,

Mark W. Todd Architects, Inc. and

Mark W. Todd,

                                                                                    Appellants

 v.

Sam Bryan, Connie Bryan, and Sammy

R. Bryan, DDS, P. A.,

                                                                                    Appellees

No. 10-08-00348-CV

IN RE LDF CONSTRUCTION, INC. AND LYNN D. FOSTER

Original Proceeding

10-08-00407-CV

IN RE MARK TODD AND MARK W. TODD ARCHITECTS

Original Proceeding

From the 278th District Court

Walker County, Texas

Trial Court No. 24,273

ABATEMENT ORDER FOR MEDIATION

        The Legislature has provided for the resolution of disputes through alternative dispute resolution (ADR) procedures.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 154.001-154.073 (Vernon 2005).  The policy behind ADR is stated in the statute: “It is the policy of this state to encourage the peaceable resolution of disputes . . . and the early settlement of pending litigation through voluntary settlement procedures.”  Id. § 154.002 (Vernon 2005).  Mediation is a form of ADR.  Mediation is a mandatory but non-binding settlement conference, conducted with the assistance of a mediator.  Mediation is private, confidential, and privileged.

        We find that this appeal and these original mandamus proceedings are appropriate for mediation.  See id. § 154.021(a) (Vernon 2005); 10th Tex. App. (Waco) Loc. R. 9.  Accordingly, we order the parties to the appeal and original proceedings to participate in mediation.  We strongly recommend the inclusion of the Amicus, Matlack/Van Every Design, Inc. and Joyce Matlack, individually, (and any other party in the trial court proceeding), in the mediation process as well.

        The parties are ordered to confer and attempt to agree upon a mediator.  Within fourteen days after the date of this Order, LDF Construction, Inc. 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 cases did or did not settle, including, as an alternative, “settlement” by agreeing to proceed to binding arbitration, 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 each party must pay a proportionate share of the agreed-upon fee directly to the mediator.

        Failure or refusal to attend the mediation as scheduled and to actively participate therein 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 abate the appeal and original proceedings for mediation.

PER CURIAM

Before Chief Justice Gray,

        Justice Reyna, and

        Justice Davis

Order issued and filed February 11, 2009

Appeal and original proceedings abated for mediation

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803 S.W.2d 272, 293 (Tex. Crim. App. 1990). Because the objection at trial was different than the error asserted on appeal, we find that the error was not preserved for review. Point one is overruled.

      In point two, Daniels asserts the testimony of Mrs. Bates and Mr. Bonds about the effects of the burglary upon them and other family members was inadmissible. Since Daniels did not object to the testimony, however, we find he failed to preserve his point of error. Tex. R. App. P. 52(a). Even if the alleged error had been preserved, we find the evidence was admissible during the punishment phase of the trial. Tex. Code Crim. Proc. Ann. 37.07 § 3(a)(Vernon Supp. 1994); Stavinoha v. State, 808 S.W.2d 76, 78-79 (Tex. Crim. App. 1991); Miller-El v. State, 782 S.W.2d 892, 896 (Tex. Crim. App. 1990). Point two is overruled.

      In his last point, Daniels asserts that the jury argument of the prosecutor allowed the jury to improperly consider acts for which he was not on trial. Apparently he is referring to the prosecutors argument that the crimes committed were violent in nature and that Daniels could have assaulted someone during the burglaries. Entry to both habitations was gained by kicking in the front doors and at the Bate's home, he tried to get Mrs. Bates to get out of her car and come into the house. From this testimony, the jury could have deduced that Daniels was violent and could have intended to assault Mrs. Bates inside the house.

      Daniels reliance on Marin in support of his third complaint—about the prosecutor's jury argument—comes closer to the mark. Id. Here too, he concedes that no objection was made at trial. The failure to object to improper jury argument waives any complaint about the error, unless the argument is so egregious that no instruction to disregard could possibly cure it. Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989). Error in jury argument is not waived by a failure to object where the argument is manifestly improper, violates some mandatory statute, or injects some new fact harmful to the defendant's case. Id. In determining whether a statement is manifestly improper, harmful, and prejudicial, we look at the record as a whole. See id.  

      Even though Daniels failed to preserve this point for appellate review because he did not object to the complained of argument, we find the argument to be a reasonable deduction from the evidence. See Green v. State, 698 S.W.2d 776, 779 (Tex. App.—Fort Worth 1985, writ ref'd). Alternatively, we find that the prosecutor's argument was not so egregious that an instruction to disregard would have corrected the complaint. See Willis, 785 S.W.2d at 385. Point three is overruled.

      Because the trial judge had no duty to act on the first two complaints in the absence of an objection and because the prosecutor's argument was a reasonable deduction from the evidence, we conclude that Daniels right to a fair trial was not abridged. See Marin, 851 S.W.2d at 279.

      We affirm the judgment.

                                                                               BOBBY L. CUMMINGS

                                                                               Justice

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

Affirmed

Opinion delivered and filed November 23, 1994

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