Court of Appeals of Texas, Fourth District, San Antonio
IN RE WPGL, LLC; Lin Indrio, Inc.; and Lloyd Moody
Original Mandamus Proceeding
Sitting: Marialyn Barnard, Justice, Rebeca C. Martinez,
Justice, Luz Elena D. Chapa, Justice.
7, 2018, relators filed a petition for writ of mandamus, the
real party in interest later filed a response, and relators
filed a reply. After considering the petition, the response,
and the reply, this court concludes relators are not entitled
to the relief sought. Accordingly, the petition for writ of
mandamus is DENIED. See Tex. R. App. P. 52.8(a).
Marialyn Barnard, Justice
I believe the trial court erred by ordering relators WPGL,
LLC, Lin Indrio, Inc., and Lloyd Moody (collectively
"WPGL") to provide real party in interest Castillon
Construction, Inc. with notice and an opportunity to observe
and inspect any testing or corrective action taken by WPGL on
the real property in question, I would conditionally grant
relator's petition for writ of mandamus and order the
trial court to vacate its order. Accordingly, I respectfully
dissent to the majority's opinion and order denying the
petition for writ of mandamus.
Construction submitted a bid proposal to Lloyd Moody for
construction of a convenience store on real property
("the convenience store property") owned by WPGL,
LLC. According to Lloyd Moody, it discovered defects in the
construction among other issues relating to the project.
Lloyd Moody claims Castillon Construction abandoned the
project before it was completed.
Castillon Construction filed a mechanics and
materialman's lien on the convenience store property and
brought suit against WPGL for judicial foreclosure and breach
of contract. In its answer, WPGL asserted counterclaims for
fraudulent lien, negligence, breach of contract, and fraud.
the discovery process, Castillon Construction filed a
"Motion to Coordinate Invasive Testing." In that
motion, Castillon Construction asked the trial court to
"notify [Castillon Construction's] attorney at least
thirty (30) days in advance so it may have its agents,
representatives and experts present at the time that testing
is being performed." WPGL opposed the motion, arguing it
exceeded the bounds of discovery as set forth in Rule 196.7
of the Texas Rules of Civil Procedure, which governs
discovery motions relating to entry upon real property.
See Tex. R. Civ. P. 196.7. At the hearing, counsel
for Castillon Construction stated that if the trial court
granted the motion, he would not "talk to anyone when I
get there. I am going to go out there with my experts."
He explained that if WPGL takes any invasive action at the
convenience store property, i.e., breaks concrete, etc., he
would "simply either take pictures, take notes, take
measurements, and go home." He stated he would "not
do anything but be there for those reasons."
the hearing, the trial court rendered an order granting
Castillon Construction's motion, ordering as follows:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED in the event
any of the Defendants perform any invasive testing consisting
of partially or fully tearing down any portion of a wall or
roof constructed by the Plaintiff or cutting into concrete
already in existence that was poured by the Plaintiff for the
purpose of testing or examining Plaintiff's work related
to complaints, Defendants shall provide Plaintiff's
attorney with fourteen (14) days advance notice of a date and
time to allow Plaintiff the opportunity to inspect the tested
area for purposes of taking measurements, photographs,
videos, and testing.
considering the motion, the argument of Castillon
Construction's attorney, and the order, it appears the
trial court has ordered WPGL to give counsel for Castillon
Construction fourteen-days' notice of the date and time
of any invasive testing WPGL intends to perform so that
counsel for Castillon Construction and its experts can be
present to take measurements, photographs, videos, and
conduct its own testing. Because ...