Appeals court reverses judge's decision to compel discovery on abated case

David Yates Apr. 12, 2011, 6:42am

Judge Donald Floyd, 172nd District Court, abused his discretion by compelling discovery on an abated construction defect lawsuit, an appeals court ruled on Thursday.

Brent and Tatayana Mainwaring filed suit against Ronnie Anderson and his company, Anderson Construction, on Jan. 10, 2010, in Jefferson County District Court.

According to the lawsuit, in 2005 the Mainwarings contracted with Anderson to build a home located on Moore Road in Beaumont.

Although the couple moved into the home in September 2008, they contend construction was never finished and the home still contains numerous defects in the roof trusses and framing, air conditioning, mortar and masonry, exterior doors and windows and weep holes.

Court records show Anderson made an offer of settlement for the defects.

However, eight months later, the Mainwarings filed an amended petition adding additional defects they had not included in their original petition.

The amended petition included allegations that the attic was improperly insulated, window flashing improperly installed, there were no expansion joints in the exterior brick walls, no ventilaqtlion in the foundation, inadequate sealing and improper grading and drainage.

The additional defects had not been addressed in Anderson's settlement offer.

Anderson argued the Mainwarings refused to allow officials to inspect the home and declined to respond to his settlement offer, which is required by Texas civil law, court papers say.

The Mainwarings alleged that they rejected Anderson's settlement offer, and moved to compel discovery responses from Anderson.

According to the Residential Construction Liability Act, a trial court is required to abate an action when a claimant fails to provide the required notice of defect or fails to follow the procedures which include giving the contractor a reasonable opportunity to inspect the property and providing the contractor with a written explanation for the rejection of the contractor's settlement offer.

The case was abated in December 2010. On Jan. 13, Anderson filed a verified
supplemental plea in abatement. Anderson alleged that the Mainwarings failed to provide written notice concerning the newly alleged defects and complained the Mainwarings were attempting to circumvent the inspection and resolution procedure of the RCLA.

"Over Anderson's objection that the lawsuit had been abated, the trial court granted the
Mainwarings' motion to compel discovery," justices wrote.

On Feb. 3 Judge Floyd granted the plaintiffs' motion to compel discovery, prompting Anderson to file an appeal Feb. 22.

Texas justices seated on the Ninth Court of Appeals in Beaumont conditionally reversed the ruling on April 7, stating that the order will only take effect unless Judge Floyd refuses to vacate his Feb. 3 order.

"The trial court had no discretion to compel discovery while the case was abated, and Anderson, who has been compelled to respond to discovery during a period the case was under an automatic abatement, has no adequate remedy on appeal," states the appellate court's per curiam opinion.

"Accordingly, we conditionally grant the petition for writ of mandamus. The writ will issue only if the trial court fails to vacate its order of February 3, 2011, and fails to refrain from proceeding with the case until a motion to reinstate is filed that establishes compliance with the notice and inspection requirements of the Residential Construction Liability Act."

The Mainwarings are represented by the Beaumont Law Office of Keith Kebodeaux.

Attorney David Jones represents Anderson Construction.

Trial case No. E185-627
Appeals case No. 09-11-00072-CV

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