Second Dos Republicas Coal Partnership lawsuit against Maverick County abated by Judge Abascal
By: Jose G. Landa, Copyright 2015, Eagle Pass Business Journal, Inc.
A second lawsuit filed by foreign-owned Dos Republicas Coal Partnership against Maverick County, Texas, Maverick County Commissioners Court, and Maverick County Judge David R. Saucedo regarding the denial of a County Flood Plain Development Permit by County Judge Saucedo acting as the County Flood Plain Administrator was abated until an earlier lawsuit filed in the 293rd Judicial District Court, which denied Dos Republicas the overturn of the denial of the County permit requested, is decided on appeal by the Texas Fourth Court of Appeals or the Texas Supreme Court announced 365th Judicial District Judge Amado J. Abascal, III, after a pre-trial hearing heard on Friday, March 13, 2015, in Eagle Pass, Texas.
Maverick County General Counsel Poncho Nevarez argued to Judge Abascal that Dos Republicas’ method or modus operandi of filing two simultaneous lawsuits in two different state district courts in Maverick County was deceptive and had wrong intentions, which Dos Republicas attorney Bill Cobb denied.
Nevarez argued to Judge Abascal that the second Dos Republicas lawsuit pending in his 365th Judicial District Court was subject to Res Judicata, that is, the legal issues contested had already been decided by Judge Cynthia Muniz in her 293rd Judicial District Court on October 9, 2014 and that that decision was currently on appeal by Dos Republicas before the Texas Fourth Court of Appeals in San Antonio, Texas. Nevarez argued that both Dos Republicas’ lawsuits are one and the same and should have been filed together or consolidated in one district court instead of filing them separately in two district courts.
Nevarez further argued that the second lawsuit against Maverick County and its officials falls under Res Judicata and the matter cannot be raised again, either in the same court or in a different court, as it had already been previously determined under the first lawsuit in the 293rd Judicial District Court by Judge Muniz and that both lawsuits are the same.
Nevarez argued to Judge Abascal that “It’s a real simple argument, the plaintiff filed two lawsuits and they were filed within minutes of each other. One of them landed in the 293rd and the other one landed in this court. The one that landed in the 293rd was a Writ of Mandamus. The one here is a lawsuit on the grounds of their allegation as to the denial of the permit was abuse of discretion by the county judge.”
Nevarez explained that the only difference on the second lawsuit was that Dos Republicas substituted Maverick County with Commissioners Court, who is already a party attributed to the other defendants. “Their allegation against Maverick County in bringing them into the lawsuit is so they can pay,” argued Nevarez.
Nevarez opined that Dos Republicas could have filed just one lawsuit and, if they later had changes to it, they could amend the original lawsuit. Nevarez questioned Dos Republicas for having filed two lawsuits when they could have filed just one.
Nevarez noted that the original first lawsuit was based on the allegation that County Judge Saucedo abused his discretion as the County Flood Plains Administrator by denying Dos Republicas’ permit to develop or construct the Eagle Pass Mine over the 100 Year FEMA Flood Plain on or near Elm Creek, which over 60 percent of the open surface coal mine boundary permit is within the 100 Year FEMA Flood Plain. “Every cause of action stems from that allegation,” argued Nevarez.
Nevarez argued to Judge Abascal that during the first Dos Republicas lawsuit hearing held on October 9, 2014 before Judge Cynthia Muniz, Dos Republicas had the opportunity to present the merits of their case with evidence and an expert and that after hearing all of the evidence, testimony, and arguments of counsel, 293rd Judicial District Judge Cynthia Muniz ruled that County Judge David R. Saucedo had not abused his discretion in denying Dos Republicas the County Flood Plain Development Permit for the construction of the Eagle Pass Mine on the banks of Elm Creek.
It is well-documented that the Elm Creek is a direct tributary of the Rio Grande River and discharges its creek waters into the Rio Grande at approximately one mile upstream of both the City of Eagle Pass Regional Water Treatment Plant and City of Piedras Negras Municipal Water Treatment Plant.
Nevarez and Dos Republicas’ Legal Counsel Bill Cobb argued over issues stemming from the first lawsuit and actions taken by both parties after Judge Muniz had signed and cemented her ruling through the issuance of a Judgment in favor of the Maverick County defendants.
Cobb argued to Judge Abascal that there were certain factors which allowed the filing of two lawsuits and their validity to be decided individually and independently of each other. Cobb argued that certain case law and legal precedents allow the filing of two separate lawsuits.
“Defense counsel likes to cite a lot of cases but if we do not read the cases word for word and actually look at the cite we will realize that they like to change a lot of words around. They like to change so it suits their needs.” counter-argued Nevarez. “They do that to deceive us and deceive the court,” added Nevarez.
Cobb replied to Nevarez’s arguments and pointed out to Judge Abascal that there were pending Motions for Summary Judgment filed by both parties which need to be decided.
Nevarez replied that “They cited a whole bunch of cases but none of them have anything to do with Res Judicata. It’s lawyers waiving X,Y and Z for other reasons but not Res Judicata. At some point, we have to raise a flag and say wait a minute there is something going on here,” added Nevarez.
Nevarez primary argument was that both Dos Republicas’ lawsuits are complaining about the same factual and legal situation in which County Judge David R. Saucedo denied Dos Republicas’ County Flood Plain Development Permit and that this legal issue has already been adjudicated and decided after a hearing on the merits by Judge Cynthia Muniz.
Nevarez argued that now the 365th Judicial District Court was being asked to decide the same legal issues and that all the cause of actions stem from that very same transaction litigated in the first lawsuit in Judge Muniz’s court. “All the cause of actions stems from that very transaction, Judge,” argued Nevarez. “They don’t have one leg to stand on this waiver,” added Nevarez.
Judge Abascal asked Nevarez several questions to find out what legal issues are the parties trying to litigate in the second lawsuit pending in his Court. “They had a chance to raise those issues in the Writ of Mandamus but they didn’t. They chose to file two lawsuits. You can’t come back and say well, since we lost this finding regarding abuse of discretion, it’s ok were still alive here in Judge Amado Abascal’s court regarding this other cause of actions. They want two bites of the apple,” said Nevarez.
Nevarez emphasized that Dos Republicas could have raised those issues in the first case but that they didn’t. “The fact that they didn’t is not on your honor, not on us but it’s on them.” said Nevarez.
Nevarez pointed out that the Res Judicata case law is very clear prohibiting the litigation of the same legal issues in another or different lawsuit.
Cobb responded that Dos Republicas and its legal counsel have the legal right to file two separate lawsuits. “It is their job to establish that Maverick County is imperative with all the other parties in the mandamus action. They had not done that. They haven’t provided any argument, they haven’t provided any evidence,” argued Cobb. “They just say they are imperative, well Texas courts don’t take that for granted,” added Cobb.
Cobb cited case law supporting Dos Republicas’ position, stating “In each of those cases it was a motion for summary of judgment, Res Judicata against a governmental agency.”
Cobb proceeded to establish the difference between Dos Republicas’ two lawsuits, pointing out that Dos Republicas is entitled to a jury trial, that the first lawsuit only sought a Writ of Mandamus, and this second lawsuit seeks damages against Maverick County. “In this case, we are seeking monetary damages and in the other case we were seeking a permit,” argued Cobb.
.Cobb argued that if Dos Republicas obtains a favorable judgment in the first lawsuit, then it can not get a second trial in Judge Abacal’s court. “You can’t win them both. If we win the mandamus, then we can’t win before your honor,” argued Cobb.
After hearing all the arguments, evidence, and case law from both Nevarez and Cobb, Judge Abascal ruled that he was going to abate, or place on hold, all the proceedings of the second Dos Republicas’ lawsuit pending in his Court until the parties have completed litigating the first lawsuit and the Texas Fourth Court of Appeals decides the merits of the pending appeal and, if applicable, any party appeals the first case to the Texas Supreme Court. The hearing concluded.
