Opinion
No. 12-13-00186-CV
06-21-2013
ALAN UTZ & ASSOCIATES, INC. v. ALL SAINTS EPISCOPAL SCHOOL, RED DOT BUILDING SYSTEMS, INC., COOPER PLASTERING, INC., CECIL PADGETT D/B/A PADGETT & SON MASONRY, PADGETT MASONRY, LLC, ALTO CONCRETE FLOORS, INC., JOHN ODEN D/B/A METAL & MORE, INC., COX CONTRACTOR COMPANY, INC., AND BREEDLOVE NURSERY & LANDSCAPE COMPANY AND FITZPATRICK ARCHITECTS
ORDER REFERRING CASE TO MEDIATION
The court has determined that this case should be referred to mediation prior to briefing. TEX. CIV. PRAC. & REM. CODE ANN. §§ 154.001-.154.052 (Vernon 1997), §§ 154.053, 154.073 (Vernon Supp. 2001), §§ 154.054 - 154.072 (Vernon 1997). Accordingly, it is ORDERED that this case be mediated under the following terms and conditions:
1. The court appoints the following mediator in this case:
Mr. Jerry L. AthertonIf instead, the parties prefer to select their own mediator, they must (a) promptly agree upon a mediator, (b) within seven days of this Order, notify the court in writing, with a copy to the court-appointed mediator, that the court-appointed mediator's services will
6757 Old Jacksonville Hwy.
Tyler, TX 75702
(903) 509-1200
not be needed, and (c) within seven days of this Order, provide the court with the name and address of the mediator they selected. Any arrangements for mediation using an agreed-upon mediator must comport with the time restrictions set forth in this Order.
2. All parties must confer with the mediator within fourteen days of the date of this Order to establish a date and place for the mediation proceeding. The parties shall agree on a date for the mediation proceeding that is consistent with the mediator's schedule and is no later than six weeks after the date of this Order. In the event the parties cannot agree on a date, the mediator shall select and set a date;
3. In the discretion of the mediator, each party may be required to provide a confidential memorandum and/or information sheet setting forth the issues of the case and their positions on those issues. Additionally, upon request of the mediator, the parties shall produce all information the mediator deems necessary to understand the issues of the case. The memorandum and/or information sheet and other information produced to the mediator will not be made a part of the file in this case and will be destroyed by the mediator at the conclusion of the mediation proceeding;
4. All parties to this matter or their authorized representatives, accompanied by their counsel, must appear and attend the mediation proceeding;
5. Mediation is a mandatory, non-binding settlement conference conducted with the assistance of a mediator. The mediation proceeding will be confidential within the meaning of Texas Civil Practice and Remedies Code sections 154.053 and 154.073.
6. Unless otherwise agreed, the mediation proceeding will not be recorded;
7. The mediator will negotiate a reasonable fee with the parties. The mediator's fee will be borne equally by the parties unless otherwise agreed to by the parties, will be taxed as costs, and will be paid directly to the mediator. If the parties do not agree upon the fee requested by the mediator, the court will set a reasonable fee, which shall be taxed as cost. TEX. CIV. PRAC. & REM. CODE ANN. § 154.054;
8. Within two days after the conclusion of the mediation proceeding, the mediator shall certify to this Court as follows: (a) whether the parties appeared as ordered, (b) whether the case was settled, and (c) whether the mediation fees were paid in accordance with the court's order or as otherwise agreed to by the parties; (d) the dollar amount of the mediation fee paid by each party; and
9. If mediation fully resolves the issues in this case, the parties must file a joint or agreed motion seeking dispositive relief, within seven days of the conclusion of the mediation.
If the parties need more time to effectuate the terms of the settlement agreement, they must within seven days of the conclusion of mediation, file a joint or agreed motion for an extension of time to file their dispositive motion.
It is FURTHER ORDERED that this referral will not delay or modify any time period relating to the disposition of this case unless specifically ordered by this Court.
WITNESS the Honorable James T. Worthen, Chief Justice of the Court of Appeals, 12th Court of Appeals District of Texas, at Tyler.
GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at my office this 21st day of June 2013,A.D.
CATHY S. LUSK, CLERK
12th Court of Appeals
____________________________
By: Katrina McClenny, Chief Deputy Clerk