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					                         NO. 09

                       IN THE SUPREME COURT OF TEXAS
                                  AUSTIN, TEXAS




   In re Joseph Charles Rubiola aka J.C. Rubiola, Gregory Allan Rubiola,
Catherine Rubiola, JGL Design-Build, LLC aka JGL Design Build and Michael
    Cortez, Individually and DBA The Heights Design and Construction,


                                                                             Relators




             MOTION FOR EMERGENCY TEMPORARY RELIEF



                                         * *   *


    Original Proceeding from the 131st Judicial District Court, Bexar County, Texas;
       Trial Court No. 2008-CI-13072; Honorable John Gabriel, Judge Presiding
                      Court of Appeals Number 04-09-00115-CV
                                         * * *




THE LAW OFFICE OF BEN SHUB
BEN SHUB
State Bar No. 18316100
111 W. OLMOS
SAN ANTONIO, TEXAS 78212
Telephone: (210)829-7183
Telecopier: (210)930-9353


Elizabeth Conry Davidson
State Bar No. 00793586
1802 Blanco Road
San Antonio, Texas 78212
Telephone: (210)653-4100
Telecopier: (210) 568-4036


ATTORNEYS FOR RELATORS
TO THE HONORABLE COURT OF APPEALS:


      COME NOW Relators, Joseph Charles Rubiola aka J.C. Rubiola, Gregory Allan


Rubiola, Catherine Rubiola, JGL Design-Build, LLC aka JGL Design, Build and Michael


Cortez, Individually and DBA The Heights Design and Construction, and files this, their


Motion for Immediate Temporary Relief, pursuant to Texas Rules of Appellate Procedure


29.5(b) and 52.10 requesting an emergency stay of all proceedings in the trial court


during the pendency of their Petition for Writ of Mandamus that is being filed


simultaneously with this Motion, and in support thereof would show this Court the


following:


                                             I.


       On December 8, 2008, Judge John Gabriel, the Respondent herein, ordered that he


was denying the Relators' motion to compel arbitration in the underlying lawsuit. A


motion for reconsideration was heard on February 11, 2009, and the court also denied


that motion.


       The Petition for Writ of Mandamus, being filed simultaneously with this Motion is


accompanied by the sworn record including verified copies of the challenged order and


all other relevant documents, including the reporter's records from the hearings.


                                             II.


       A stay of the underlying proceedings in this case is appropriate pursuant to Tex.


R. APP. P. 29.5. While an appeal from an interlocutory ruling is pending, the trial court


retains jurisdiction of the case, but the trial court must not make an order that interferes
with or impairs the jurisdiction of the appellate court or effectiveness of any relief sought


or that may be granted on appeal. Tex. R. App. P. 29.5(b).


                                             III.


       This Court should grant Relators' request for a stay of the underlying proceedings


because if the case is not stayed, action in the underlying proceeding will interfere with


the jurisdiction of this Court and will impair the effectiveness of the relief sought or that


may be granted in this mandamus proceeding. See Tex. R. App. P. 52.10(b). Specifically,


the Relators were ordered to produce discovery on or before February 25, 2009. See


Order attached as "Exhibit A." The Relators filed a Petition for Writ of Mandamus with


the Fourth Court of Appeals on February 24, 2009, which was denied the same day. See


Memorandum Opinion attached as "Exhibit B."


       The Relators have responded to the discovery requests and produced numerous


documents to the Real Parties in Interest, while simultaneously pursuing relief from the


courts in terms of an order compelling arbitration. Despite this, On March 10, 2009 the


Salmons filed Plaintiffs' Third Motion to Compel and for Sanctions. On April 7, 2009 the


parties unsuccessfully mediated the case and the same day, the Salmons set their Third


Motion to Compel and for Sanctions for a hearing on April 13, 2009. That setting was


dropped but the hearing has been reset for Friday, April 17, 2009. See Fiat attached as


"Exhibit C." Additionally, the trial of the case is currently set for June 22, 2009. See Trial


Setting Notice attached as "Exhibit D."


        If the trial court applies discovery sanctions and/or proceeds forward to the trial of


this matter during the pendency of this original proceeding, it will nullify any relief that
Relators could hope to obtain as a result of filing this mandamus proceeding. If this Court


does not stay the trial court proceedings and the case moves forward to a trial, this will


impair and possibly negate any relief that may be granted by this Court, namely a finding


that the case should be sent to arbitration.


                                               IV.


       A stay is necessary to ensure that the Relators are not deprived of the benefits of

their arbitration agreement.    See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272-73


(Tex. 1992) (party forced to litigate in court will be "deprived of the benefits of the


arbitration clause it contracted for, and the purpose providing a rapid, inexpensive


alternative to traditional litigation would be defeated."). The Supreme Court of Texas has


deemed it necessary and appropriate to stay trial court proceedings during the pendency


of an original proceeding seeking to overturn a trial court order refusing to compel


arbitration. See In Re Merrill Lynch Trust Company FSB, Merrill Lynch Life Insurance


Company, and Henry Medina, Cause No. 04-0865 (stay order issued January 24, 2005).!

       If this case is not stayed during the pendency of this mandamus proceeding and the


appeal, plaintiff in the underlying case will continue efforts to engage in pre-trial


discovery, including repeated efforts to seek overly broad and harassing discovery and


requesting discovery sanctions against the Relators, which would thwart the protections


afforded Relators under the Federal Arbitration Act:


         Time    and time    again courts have       concluded that the purposes   of
         arbitration under the Federal Arbitration Act are to facilitate and expedite
         the resolution of disputes, ease court congestion, and provide disputants


 http://www.supreme.courts.state.tx.us/opinions/Case.asp?FilingID=25431
        with a less costly alternative to litigation.    It can hardly be said that
        discovery under the Federal Rules of Civil Procedure pending arbitration
        in this case would further those goals.


Recognition Equip., Inc. v. NCR Corp., 532 F. Supp. 271, 275 (N.D. Tex. 1981); see also


Lummus Co. v. Commonwealth Oil Refining Co., Inc., 273 F.2d 613, 614 (1st Cir. 1959)

(holding that no discovery should be undertaken until it is determined whether the action


should be brought before the court or arbitrator); Stanton v. PaineWebber Jackson &


Curtis, Inc., 685 F.Supp. 1241, 1242 (S.D. Fla. 1988) ("[A]ll discovery between the


parties must be stayed pending arbitration. 'An agreement to arbitrate is an agreement to


proceed under arbitration and not court rules... .'").


                                             V.


       An immediate emergency stay of all proceedings in this case in the trial court is


also necessary because, despite the Relators' best efforts to respond to discovery requests,


the Real Parties in Interest have set their Third Motion to Compel and for Sanctions for a


hearing on the morning of April 17, 2009, and trial is set in this case for June 22, 2009.


       The discovery sought by the plaintiffs below includes documents such as tax


returns that are confidential and private documents and would not be discoverable in an


arbitration proceeding. If the proceedings are allowed to continue in the trial court, they


would interfere with and impair the jurisdiction of this Court and the effectiveness of any


relief sought or that may be gained in this appeal. All of the issues that are raised in the


lawsuit pending in the trial court are required to be included in arbitration, and none


should be resolved by the trial court, including discovery issues. Consequently, this Court


should stay the proceedings below to preserve the rights of the parties and to prevent
prejudice because any rulings by the trial court on the merits of the case would clearly


impair the effectiveness of the relief that the Relators seek. See, e.g., McAllen Med. Ctr.,


Inc. v. Cortez, 66 S.W.3d 227, 238 (Tex. 2001) (vacating trial court's severance order


while interlocutory appeal from certification order was pending to protect the court of


appeals' jurisdiction); Garcia v. Marichalar, 185 S.W.3d 70, 73 (Tex. App. - San


Antonio 2005, order on mot.) (holding that trial court had no authority to grant an


extension to cure deficiencies in an expert report, and therefore its dissolution of its


former order interfered with or impaired the appellant's right in his interlocutory appeal


to seek a dismissal with prejudice).


                                             VI.


       Furthermore, if a stay is not granted, the plaintiffs below will gain an unfair


advantage in preparing for trial.      The Relators will be unable to propound discovery


requests and take depositions without fear of waiving their right to arbitration.        See


Central Nat. Ins. Co. of Omaha v. Lerner, 856 S.W.2d 492, 494-95 (Tex. App.-Houston


[1st Dist] 1993, orig. proceeding). And to the extent Relators are able to prepare for a


trial without invoking the judicial process, they will be deprived of the benefits of


arbitration by being forced to engage in the costly and time-consuming process of getting


ready for trial.


                                             VII.


       If the Real Parties in Interest are permitted to continue to conduct discovery and


seek discovery sanctions against the Relators during the pendency of this original


proceeding, it would impair, if not destroy, the effectiveness of any relief this Court
might award. One of the key purposes of arbitration is to provide disputants with a less


costly alternative to litigation, and that benefit will be lost forever if Relators are forced


to participate in costly and time-consuming discovery. Consequently, this Court should


stay the entire underlying proceeding pending its decision on the issue of whether the trial


court erred in not compelling arbitration.


                               CONCLUSION AND PRAYER


       Relators pray that the Court grant their motion for immediate temporary relief and


stay all proceedings in the underlying case pending its determination of and ruling on


Relators' petition for writ of mandamus. Relators also request any other relief to which


they may be justly entitled.


                                                  Respectfully submitted,


                                                  THE LAW OFFICE OF BEN SHUB
                                                   111 W. OLMOS
                                                  SAN ANTONIO, TEXAS 78212
                                                  Telephone: (210) 829-7183
                                                  TelecppkK1(210) 930-9353




                                                      ;e Bar No. 18316100


                                                  Elizabeth Conry Davidson
                                                   State Bar No. 00793586
                                                   1802 Blanco Road
                                                   San Antonio, Texas 78212
                                                  Telephone: (210)653-4100
                                                   Telecopier: (210) 568-4036


                                                   ATTORNEYS FOR RELATORS
         CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 52.10


      The undersigned certifies that it has made a diligent effort to notify all parties by
expedited means that a motion for temporary relief has been or will be filed as required
by Texas Rule of Appellate Procedure 52.10.




                                                 Ben Shub
                                                   lizabeth Conry Davidson




                            CERTIFICATE OF SERVICE


       I hereby certify that a true and correct copy of the foregomg instrument was
delivered via certified mail, return receipt requested, facsimile or hand-delivery
following in accordance with the Texas Rules of Appellate Procedure on this the
day of April, 2009.


Bryan A. Woods
8626 Tesoro Drive, Suite 500
San Antonio, Texas 78217
Telephone: (210) 824-3278
Facsimile: (210) 824-3937


Attorney for Real Parties in Interest, Brian and Christina Salmon


The Honorable John Gabriel
Judge, 131st Judicial District Court, Bexar County, Texas
Bexar County Courthouse
lOODolorosa
San Antonio, Texas 78205


Respondent



                                           BpN SHUB
                                           ELIZABETH CONRY DAVIDSON
-bB. 13.2009 11:23AM        BAYNE SNELL & KRAUSE                                  WO. 933    P.    2/5


                                     CAUSE NO. 2008-CM3072

   BRIAN SALMON AND CHRISTINA                     §             IN THE DISTRICT COURT
   SALMON                                         §
                                                  §
                                                  §
                                                  §
   VS.                                            §             166th JUDICIAL DISTRICT
                                                  §
                                                  §
                                                  §
   JOSEPH CHARLES RUBIOLA aka                     §
   J.C. RUBIOLA, GREGORY ALLAN                    §
   RUBIOLA, CATHERINE RUBIOLA                     §
   JGL DESIGN-BUILD, LLC                          §
   aka JGL DESIGN BUILD AND                       §
   MICHAEL CORTEZ, INDIVIDUALLY                   §
   AND dba THE HEIGHTS DESIGN                     §
   AND CONSTRUCTION                               §             BEXAR COUNTY, TEXAS

                                              ORDER


           On the 11m day of February, 2009, came on to be considered Defendants' Motion

    for Reconsideration of the Court's previous ruling regarding Defendants' Motion to

    Quash and for Protective Order, Motion to Compel Arbitration, Motion to Abate and

    Motion to Strike ADR and Jury Docket Settings. The Court ORDERS that Defendants'

    Motion for Reconsideration is denied.

            The Court further denies Defendant's oral motion to stay proceedings and

    discovery pending Defendants seeking appellate relief regarding the Court's previous

    ruling regarding Defendants' Motion to Quash and for Protective Order, Motion to

    Compel Arbitration, Motion to Abate and Motion to Strike ADR and Jury Docket

    Settings.


            The Court grants Defendants' oral request to extend the deadline to respond to

    Plaintiffs'   Request   for   Disclosures,    Interrogatories,   Requests   for   Production    of


    Documents and Request for Description of Withheld Information and to produce

    documents      responsive to    Plaintiffs'   Request for Production    of Documents within
■tB. 13.       :23AM     BAYNE SNELL & KRAUSE                                          1933    P.   3/5


    Defendants'   possession,   custody    or control   at   Plaintiffs'   counsel's   office without

    objection to February 25, 2009.

           IT IS SO ORDERED.

           SIGNED on the              day of February, 2009.




                                               JUDGE PRESIDING




    APPROVED AS TO FORM:




    BRYAN A. WOODS
    State Bar No. 21952600
    8626 Tesoro Drive, Suite 500
    San Antonio, Texas 78217
    210/824-3278 - 210/824-3937(fax)




     Sate Bar No. 18316100
     111 West Olmos Drive
     San Antonio, Texas 78212
     210/829-7183 - 210/829-0734(fax)
FEB. 13.2009 11:23AM     BAYNE SNELL & KRAUSE                               NO. 933    P. 4/5


                                  CAUSE NO. 2008-CI-13072


   BRIAN SALMON AND CHRISTINA                §               IN THE DISTRICT COURT
   SALMON                                    §
                                             §
                                             §
                                             §
   VS.                                       §               166m JUDICIAL DISTRICT
                                             §
                                             §
                                             §
   JOSEPH CHARLES RUBIOLA aka                §
    J.C. RUBIOLA, GREGORY ALLAN              §
    RUBIOLA, CATHERINE RUBIOLA               §
    JGL DESIGN-BUILD, LLC                    §
    aka JGL DESIGN BUILD AND                 §
    MICHAEL CORTEZ, INDIVIDUALLY             §
    AND dba THE HEIGHTS DESIGN               §
    AND CONSTRUCTION                         §               BEXAR COUNTY, TEXAS

                                          ORDER


                  On the 5th day of February, 2009, came on to be considered Defendants'

    Motion     to Extend Deadline for Discovery Responses. The Court ORDERS that

    Defendants' motion to extend is granted in part and denied in part. The Court grants

    Defendants' request to extend the deadline for Defendants to provide full and complete


    responses to Plaintiffs' requests for disclosures, request for production, interrogatories

    and requests for description of withheld information, without objection, together with all

    documents within their possession, custody or control responsive to Plaintiffs' request

    for production at Plaintiffs' counsel's office to February 18, 2009. All other relief

    requested in this motion is denied.

             IT IS SO ORDERED.


             SIGNED on the          day of February, 2009.




                                             JUDGE PRESIDING
FEB. 13. 2009 11:23AM   BAYNE SNELL & KRAUSE   NO. 933   P.   5/5


    APPROVED AS TO FORM:




    BRYAN A. WOODS
    State Bar No. 21952600
    8626 Tesoro Drive, Suite 500
    San Antonio, Texas 78217
    210/824-3278 - 210/824-3937(fax)




    BEN SHUB
    State Bar No. 18316100
    111 West Olmos Drive
    San Antonio, Texas 78212
    210/829-7183- 210/829-0734(fax)
FEB. 13.2009 11:23AM      BAYNE SNELL & KRAUSE                          10.933     P.   1/5
                                 RYAN A. WOODS
                                ATTORNEY AT LAW
                            8626 TESORO DRIVE, SUITE 500
                                SAN ANTONIO, TEXAS 78217
                               TELEPHONE TELECOPIER
                              (210)824-3278 (210)824-3937



    Name:                Ben Shub

   Telecopier:           829-0734

    Number of Pages (Including Cover):

    Date:                February 12, 2009

    Re:                  No. 2008-CI-13072
                         Brian and Cristina Salmon v. Rubiola, et al


    Message:


    Enclosed you will find two Orders regarding Defendants' Motion to Extend Deadline for
    Discovery Answers and Defendants' Motion for Reconsideration. Please approve them
    as to form and fax them back to me at your earliest convenience.

    Please call if you have any questions,


     iin/erely,


          anvA. Woocfs

    Enclosures


    cc:      Mr. & Mrs. Brian Salmon




    IF YOU EXPERIENCE ANY DIFFICULTY WITH THE TRANSMISSION OF THIS TELEFAX,
    PLEASE CONTACT PAULA OLIVER AT 210/824-3278
02/17/2009 TUE   10:59     FAX    210    930    9353                        LAW       OFFICES                                                     0001



                                                       :[: a: * * * * :I: * * * * * * * * * * * * * *

                                                       «::]:           TX   REPORT                 ***
                                                       * * * * * :l: :f.:[: * :|: * * * 3: t. * $ * 3: $ *




                     TRANSMISSION          OK


                     JOB    NO.                          4356
                     DEPT.       ID                      66
                     DESTINATION ADDRESS                 8243937
                     PSWD/SUBADDRESS
                     DESTINATION          ID
                     ST.    TIME                         02/17          10:58
                     USAGE T                             00'33
                     PGS.                                      4
                     RESULT                              OK




     FEB. 13.2009 11:23AM               BAYNE SWELL & KRAUSE                                                               NO. 933     P.   2/5


                                                   CAUSE NO. 2008-CM3Q72

         BRIAN SALMON AND CHRISTINA                                         §                                IN THE DISTRICT COURT
        SALMON                                                              §
                                                                            §
                                                                            §
                                                                            §
        VS.                                                                 §                                166th JUDICIAL DISTRICT
                                                                            §
                                                                            §
                                                                   ■        §
         JOSEPH CHARLES RUBIOLA aka                                          §
         J.C. RUBIOLA, GREGORY ALLAN                                         §
         RUBIOLA, CATHERINE RUBIOLA                                         §
         JGL DESIGN-BUILD, LLC                                              §
         aka JGL DESIGN BUILD AND                                           §
         MICHAEL CORTEZ, INDIVIDUALLY                                       §
         AND dba THE HEIGHTS DESIGN                                          §
         AND CONSTRUCTION                                                    §                               BEXAR COUNTY, TEXAS

                                                                       ORDER


                 On the 11th day of February, 2009, came on to be considered Defendants1 Motion

         for Reconsideration of the Court's previous ruling regarding Defendants' Motion to

         Quash and for Protective Order, Motion to Compel Arbitration, Motion to Abate and

         Motion to Strike ADR and Jury Docket Settings. The Court ORDERS that Defendants'

         Motion for Reconsideration is denied.

                 The Court further denies Defendant's oral motion to stay proceedings and

         discovery pending Defendants seeking appellate relief regarding the Court's previous
                                   MEMORANDUM OPINION



                                            No. 04-09-00115-CV


    IN RE Joseph Charles RUBIOLA a/k/a/ J.C. RUBIOLA, Gregory Allan RUBIOLA,
    Catherine RUBIOLA, JGL DESIGN-BUILD, LLC a/k/a JGL DESIGN BUILD and
            Michael CORTEZ, individually and d/b/a THE HEIGHTS DESIGN AND
                                             CONSTRUCTION


                                      Original Mandamus Proceeding1

PER CURIAM


Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice


Delivered and Filed:      March 4, 2009


PETITION FOR WRIT OF MANDAMUS DENIED


           On February 24, 2009, reiators filed a petition for writ of mandamus and a motion for


emergency temporary relief. The court has considered reiators' petition for writ of mandamus and


is of the opinion that reiators are not entitled to the relief sought. Accordingly, the petition for writ


of mandamus and the motion for emergency temporary relief are DENIED. See Tex. R. APP. P.


52.8(a).


                                                                        PER CURIAM




           This proceeding arises out Cause No. 2008-CI-13072, styled Brian Salmon and Christina Salmon v. Joseph
Charles Ritbiola aka J.C. Rubiola, et ai, pending in the 166th Judicial District Court, Bexar County, Texas, the
Honorable Martha Tanner presiding. However, the order complained of was signed by the Honorable John D. Gabriel,
presiding judge of the 131st Judicial District Court, Bexar County, Texas.
APR. 13. 2009   1:59PM    BAYNE SNELL & KRAUSE                                  NO. 505   P.   5/16


     and other claims are struck and entering a judgment of liability against same on all

    grounds plead by Plaintiffs, and in addition, awarding Plaintiffs reasonable and

     necessary attorneys fees for the preparation of this Motion to Compel and any

    attendance at any hearing regarding same in an amount that the Court deems just.

            WHEREFORE, Plaintiffs request that this matter be set for hearing and that upon

    hearing, this Court grant this motion in whole or in part and for general relief.

                                                 Respectfully submitted,

                                                 BRYAN A. WOODS
                                                 8626 Tesoro Drive, Suite 500
                                                 San Antonio, Texas 78217
                                                 210/82442/8 - 210/824-3937(fax)


                                                 By:
                                                      8RYAN A. WOODS
                                                      11952600
                                                 ATTORNEY FOR PLAINTIFFS

                                CERTIFICATE OF CONFERENCE

            I attempted to confer with counsel for Defendants but was unable to reach an
    agreement prior to the hearing of this matter.

                                                 FIAT


            The above and foregoing is hereby set for hearing on the 17th day of April, 2009
    at 8:30 a.m. in the Civil Presiding District Court, Bexar County Courthouse.

            SIGNED on the              day of April, 2009.




                                                 JUDGE PRESIDING

                                   CERTIFICATE OF SERVICE

          I, BRYAN A. WOODS, hereby certify that a true and correct copy of the foregoing
    has been sent to Ben Snub, 111 West Olmos Drive, San Antonio, Texas 78212 on this
    the    /ffi» day of April, 2009.



                                                         A. WOODS
                                 OFFICE OF CIVIL JURY ASSIGNMENT CLERK
                                       BEXAR COUNTY COURTHOUSE-ROOM 422
                                             SAN ANTONIO. TEXAS 76205
                                                   (210) 335-2920

                                             December               29,   2008
                              NOTICE        OF    JURY TRIAL              SETTING

BERNARD SHUB
Attorney at        Law
111   W   OLMOS    DR
SAN ANTONIO,          TX    78212-1955




RE:   BRIAN     SALMON      ETAL VS.        JOSEPH        C RUBIOLA ETAL
Cause No:       2008-CI-13072


                The above-styled             and     -numbered cause                   is    set    for
trial     ON THE MERITS         on    the    22nd day of June,                    2009
at  8:30 AM in the 225th District Court.                                    Failure to
appear may result in default or dismissal                                   for want of
prosecution.


                All parties          shall       deliver Motions                 in     Limine,
Motions to Realign Parties                   or Equalize Peremptory Strikes,
and a Proposed Jury Charge                   to all other parties by Noon on
the    last business day prior                   to the above-referenced trial
date.


                 In   the    event    the    trial         is       expected      to    last       ten    (10)
working days          or    longer,    it    is    strongly               suggested that            a
Rule      166 Pretrial Motion be heard at least                               sixty         (60)    days
before the above-referenced                      setting date.


          This cause is also set on the ADR docket on the
11th day of February, 2009 at  8:30 AM  in the   37th  District
Court,      Bexar     County    Courthouse.                You do not have                  to   appear     if   an
Agreed Order of Referral for Mediation is Provided to the ADR
Coordinator three (3) days prior to the setting.  Otherwise,
failure to        appear as noticed may result                             in court         selecting a
mediator       and allocating mediator fees between the parties.

                                                        PETER         SAKAI

                                                        JURY MONITORING JUDGE
CC:




           BERNARD SHUB
           BRYAN HOODS

				
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