# In re Warwick Constr., Inc. Supreme Court of Texas, No. 26-0206 **In re Warwick Constr., Inc., No. 26-0206, is before the Supreme Court of Texas. Key issue: Justice Young dissented from the denial of mandamus to three construction companies whose request under Rule 190.5(b) to reopen discovery on an alleged design change was refused by the trial court on the eve of trial, saying denial was premature and the trial should have been stayed.** Practice areas: civil procedure, construction law ## Key issues - Justice Young dissented from the denial of mandamus to three construction companies whose request under Rule 190.5(b) to reopen discovery on an alleged design change was refused by the trial court on the eve of trial, saying denial was premature and the trial should have been stayed. - The Court had asked for a response but trial was set to begin before it was due, and the response to the stay motion offered only a conclusory defense of the discovery ruling. ## Factual History Warwick Construction, the general contractor on the Sea Life San Antonio amusement center, sued Sea Life Center San Antonio, LLC on August 12, 2020, for at least $976,383.42 in unpaid construction work, and Sea Life counterclaimed for over $6 million alleging construction defects and delay; Warwick in turn asserted defense-and-indemnity claims against its subcontractors, including Relators Bustamante Construction and DLC General Construction Services and Real Parties in Interest Jeans Waterproofing and T.L. Ramsey Heating and Air (Petition for Writ of Mandamus filed (Relator), PDF p. 17). The parties exchanged more than 50,000 pages of written discovery, and in 2024 the subcontractors' experts were retained to review construction defects such as improper concrete pouring or waterproofing application, because no party then alleged that design defects caused the Project's deficiencies (Petition for Writ of Mandamus filed (Relator), PDF pp. 17-18). On July 14, 2025, the docket control order's discovery deadline passed, and on July 16, 2025, the parties jointly moved for a continuance because discovery could not be finished; the court reset trial to May 4, 2026 (Petition for Writ of Mandamus filed (Relator), PDF pp. 18-19). The same day, Jeans and T.L. Ramsey moved to designate the Project's original architects and engineers as responsible third parties, alleging they failed to provide adequate drawings after Sea Life switched from a fiberglass build-up system to a thin elastomeric coating (Petition for Writ of Mandamus filed (Relator), PDF pp. 19-20). At the first deposition in the case, on August 18, 2025, Jeans's representative repeated those design allegations, and Relators say that until then the case had focused on construction defects (Petition for Writ of Mandamus filed (Relator), PDF pp. 20-21). The trial court granted the responsible-third-party designations on October 9, 2025 (Petition for Writ of Mandamus filed (Relator), PDF p. 22). ## Procedural History This is an original proceeding for writ of mandamus. On October 16, 2025, Warwick and the defendants other than Sea Life filed an opposed joint motion for a modified docket control order under Texas Rule of Civil Procedure 190.5(b) to reopen discovery and set a new schedule tied to the May 4, 2026 trial date; Sea Life opposed, arguing the case was five years old, the prior order had expired, and nothing material had changed (Petition for Writ of Mandamus filed (Relator), PDF pp. 22-23). After a hearing on October 30, 2025, the court orally denied the motion, and its "Judge's Notes" reflect the denial but it signed no written order (Petition for Writ of Mandamus filed (Relator), PDF pp. 23-24). The Fourth Court of Appeals (San Antonio) denied mandamus relief on February 11, 2026 (Petition for Writ of Mandamus filed (Relator), PDF p. 48). In this Court, Relators sought mandamus and a stay of trial; the Court ordered a response, but trial was scheduled to begin before the response would have been due, and the Court denied the petition on April 24, 2026, dismissing the emergency motion for temporary relief as moot (Young, J., dissenting, PDF p. 1). ## Issues Presented Relators present three issues (Petition for Writ of Mandamus filed (Relator), PDF p. 16): 1. Whether Relators have an adequate remedy by appeal. 2. Whether the trial court abused its discretion by refusing to reopen discovery when the trial date had been moved more than three months and the record reflected that matters had materially changed after the discovery period ended. 3. Whether the trial court abused its discretion by misapplying the law. ## Standard(s) of Review Relators say mandamus issues to correct a clear abuse of discretion when there is no adequate remedy by appeal, that review of a trial court's determination of the legal principles controlling its ruling is much less deferential than review of its fact findings, and that a trial court has no discretion to determine what the law is or apply it to the facts, even when the law is unsettled (Petition for Writ of Mandamus filed (Relator), PDF p. 25). An appeal is inadequate if a party's ability to present a viable claim or defense at trial is "completely vitiated or severely compromised" (Petition for Writ of Mandamus filed (Relator), PDF p. 26). ## Legal Arguments **Issue 1: whether Relators have an adequate remedy by appeal.** **Relators:** The denial keeps them from deposing Sea Life's representatives, who claim over $6 million in damages and controlled the design team, and from reopening the expert designation period for a month to address the alleged design defects, so the ruling goes to causation, responsibility, and allocation of fault, and the excluded discovery will not appear in any appellate record (Petition for Writ of Mandamus filed (Relator), PDF pp. 29-32). Sea Life itself said the case "really comes down to what the experts say" (Petition for Writ of Mandamus filed (Relator), PDF p. 31). **Real Parties:** No response to the petition is described in the filings reviewed; the dissent says the response to the stay motion gave only a conclusory assertion that the trial court's discovery decision was justified (Young, J., dissenting, PDF p. 1). **Issue 2: whether Rule 190.5(b) required reopening discovery.** **Relators:** Rule 190.5(b) imposes a mandatory duty to allow additional discovery once trial is set more than three months after the discovery cutoff and matters have materially changed, and both conditions were met: trial was reset to May 4, 2026, nearly nine months after the July 14, 2025 cutoff, and the designation of the design team as responsible third parties and the Jeans deposition were material changes (Petition for Writ of Mandamus filed (Relator), PDF pp. 28, 33-35). **Real Parties:** Sea Life told the trial court the case was five years old, the prior order had expired, and no material changes had occurred (Petition for Writ of Mandamus filed (Relator), PDF p. 23). **Issue 3: whether the trial court misapplied the law.** **Relators:** The court read a nonexistent "new information" requirement into the rule, treated the parties' prior knowledge of the product change and their earlier experts as a reason to deny discovery, and relied on the case's age, which Rule 190.5(b) does not mention (Petition for Writ of Mandamus filed (Relator), PDF pp. 36-37). Knowing a waterproofing material changed is not knowing that architectural or engineering services were omitted, a contractor is not responsible for design defects in plans supplied by others (Tex. Bus. & Com. Code Section 59.051(a)), and allowing the designers to be designated while refusing discovery about them put them on the verdict sheet with no chance to investigate (Petition for Writ of Mandamus filed (Relator), PDF pp. 38-39). **Real Parties:** Sea Life emphasized that Relators were on the Project, had the plans, and had retained prior experts (Petition for Writ of Mandamus filed (Relator), PDF p. 38). ## Stated Reasons the Court Should Take the Case Relators argued that the trial court's ruling rests on a fundamental misinterpretation of Rule 190.5(b), that they have no adequate remedy by appeal, and that this Court should intervene (Petition for Writ of Mandamus filed (Relator), PDF pp. 29, 39). ## Practice Area Tags civil-procedure, construction-law ## Procedural Posture/Vehicle Original proceeding (petition for writ of mandamus) after the Fourth Court of Appeals denied relief; denied April 24, 2026, with Justice Young dissenting from the denial (Young, J., dissenting, PDF p. 1). ## Amicus Involvement None ## Court's Reasoning The Court gave no reasons; the only writing is Justice Young's dissent from the denial, which is one Justice's view, not a holding (Young, J., dissenting, PDF p. 1). He expressed no final view on whether the discovery ruling was error, but was troubled enough that he would have stayed the trial until the Court could decide, noting that trial would likely moot the petition and that the Court has the authority to protect its jurisdiction (Young, J., dissenting, PDF pp. 1-2). Because the Court had never construed Rule 190.5(b), whose language appears mandatory, and Relators' ability to proceed at trial might be "completely vitiated or severely compromised," any victory below would be clouded by a compelling appellate issue and the trial might be wasted (Young, J., dissenting, PDF p. 2). He did not regard the Court's decision on the stay as unreasonable, suggested the trial court could still allow limited last-minute discovery on the design issue, and said that if it did not and Relators were prejudiced he expected the court of appeals and, if necessary, this Court to consider whether a violation of the rule probably caused an improper judgment (Young, J., dissenting, PDF pp. 2-3). ## Disposition Petition for writ of mandamus denied, and the joint emergency motion for temporary relief dismissed as moot (Young, J., dissenting, PDF p. 1). ## Vote Breakdown Justice Young dissented from the denial of the petition for writ of mandamus (Young, J., dissenting, PDF p. 1). --- Source: The SCOTX Report, https://scotxreport.com/cases/26-0206. AI-generated summary of the Court's opinion, orders and the parties' briefs, with pin cites to the page of each document; verify against the Court's own documents at search.txcourts.gov.