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In re WPGL, LLC

Court of Appeals of Texas, Fourth District, San Antonio

June 20, 2018

IN RE WPGL, LLC; Lin Indrio, Inc.; and Lloyd Moody

          Original Mandamus Proceeding[1]

          Sitting: Marialyn Barnard, Justice, Rebeca C. Martinez, Justice, Luz Elena D. Chapa, Justice.

          MEMORANDUM OPINION

          PER CURIAM.

         On May 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).

         DISSENTING OPINION

          Marialyn Barnard, Justice

         Because 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.

         Background

         Castillon 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.

         Subsequently, 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.

         During 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."

         After 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.

         Thus, 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 ...


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