ACCEPTED
TWELFTH COURT OF APPEALS
TYLER, TEXAS
1/13/2015 4:07:39 PM
CATHY LUSK
CLERK
NO. ____________
FILED IN
12th COURT OF APPEALS
In the Court of Appeals TYLER, TEXAS
1/13/2015 4:07:39 PM
Twelfth Judicial District CATHY S. LUSK
Tyler, Texas Clerk
IN RE COUNSEL FOR GOUGHNOUR, Relators
EMERGENCY MOTION FOR TEMPORARY RELIEF
(Filed contemporaneously with a Petition for Writ of Mandamus)
From the 241st District Court of Smith County, Texas
I. SUMMARY OF MOTION
Simultaneously with this motion, Relators are filing a Petition for Writ of
Mandamus seeking review of a sanctions order signed by Respondent; the
underlying case is pending in the 241st District Court of Smith County under Cause
No. 11-2216-C. Relators’ petition shows that the sanctions order was an abuse of
Respondent’s discretion and that they are entitled to mandamus relief. Relators
request that the Court of Appeals stay the sanctions order (and any attempt to enforce
the sanctions order) while it considers the merits of their petition and challenges to
the sanctions order.
EMERGENCY MOTION FOR TEMPORARY RELIEF PAGE 1 OF 6
II. BACKGROUND
Relators are attorneys representing Deborah Patterson (Howard) Goughnour,
remainder beneficiary of the Deborah Patterson Howard Trust, in the matter styled
In re the Deborah Patterson Howard Trust, Cause No. 11-2216-C pending before
the 241st District Court of Smith County, Texas, a suit involving claims that the real
party in interest, Robert H. Patterson, Jr., breached his fiduciary duty as trustee of
the Deborah Patterson Howard Trust. On April 22, 2014, Respondent, the Hon. Jack
Skeen, Jr., presiding judge of the 241st District Court, ordered that Relators pay
$14,000 in attorneys’ fees to the Deborah Patterson Howard Trust as a monetary
sanction under Texas Rule of Civil Procedure 215.3 and held each of Relators jointly
and severally liable for such payment (the “Sanctions Order”). Relators seek relief
from this Sanctions Order.
As discussed in their Petition for Writ of Mandamus, Relators are entitled to
mandamus relief because (a) Respondent abused his discretion (i) by sanctioning
Relators for conduct that is not a violation of any discovery rule or order, (ii) by
sanctioning Relators (who are not “parties”) under a rule which only permits
sanctions against “parties,” (iii) by sanctioning all five Relators jointly and severally
when there was no relationship between the sanctioned conduct and four of the five
Relators, (iv) by awarding attorney’s fees without the necessary evidence required
by the Texas Supreme Court in Long v. Griffin and El Apple I, Ltd. v. Olivas, (v) by
EMERGENCY MOTION FOR TEMPORARY RELIEF PAGE 2 OF 6
failing to consider the availability of less stringent sanctions as required by the Texas
Supreme Court in TransAmerican Natural Gas Corp. v. Powell and American Flood
Research, Inc. v. Jones, and (vi) by disregarding Texas Rule of Civil Procedure
191.2 and the Smith County Local Rules, and because (b) Relators have no adequate
appellate remedy.
III. EMERGENCY
On September 17, 2014, the real party in interest moved for an order holding
Relators in contempt for failing to comply with the Sanctions Order. On December
5, 2014, Respondent signed a show cause order requiring Relators to appear in the
courtroom of the 241st District Court of Smith County, Texas on January 21, 2015
at 9:00 a.m. “to then and there show cause why [Relators] have not complied with
the [Sanctions Order].” If the Court of Appeals does not stay the Sanctions Order,
Relators may be held in contempt for failing to comply with a void order and
subjected to loss of property and/or liberty while this extraordinary proceeding is
pending.
IV. PRAYER
WHEREFORE, premises considered, Relators respectfully request that the
Court of Appeals stay the Sanctions Order until the Court of Appeals issues its ruling
in this extraordinary proceeding, and Relators respectfully request such other and
further relief to which they are justly or equitably entitled.
EMERGENCY MOTION FOR TEMPORARY RELIEF PAGE 3 OF 6
Respectfully submitted,
BEARD & HARRIS, P.C.
& CANTEY HANGER, LLP
By: /s/ Jim E. Bullock
Ty Beard
State Bar No. 00796181
Donald Harris
State Bar No. 00796709
Craig Daugherty
State Bar No. 05404300
BEARD & HARRIS, P.C.
100 Independence Place,
Suite 101
Tyler, Texas 75703
Telephone: (903) 509-4900
Facsimile: (903) 509-4908
ty@beardandharris.com
don@beardandharris.com
craig@beardandharris.com
Jim E. Bullock
Texas Bar No. 00795271
Brian Casper
State Bar No. 24075563
CANTEY HANGER, LLP
1999 Bryan St.
Suite 3300
Dallas, Texas 75201
Telephone: (214) 978-4100
Facsimile: (214) 978-4150
jbullock@canteyhanger.com
bcasper@canteyhanger.com
Attorneys for Relators
EMERGENCY MOTION FOR TEMPORARY RELIEF PAGE 4 OF 6
CERTIFICATE OF COMPLIANCE
On January 12, 2015, pursuant to Texas Rule of Appellate Procedure 52.10, I
notified Respondent, the Real Party in Interest, and the other parties who appeared
in the underlying matter, that this motion was being filed. At the same time, as a
convenience for the Court of Appeals and a courtesy to the parties, I also inquired
whether there was any opposition to the relief sought by this motion; neither
Respondent nor the Real Party in Interest (nor any of the other parties who appeared
in the underlying matter) replied.
Dated: January 13, 2015 /s/ Jim E. Bullock
Attorney Certifying
CERTIFICATE OF SERVICE
The undersigned certifies that, on this day, a copy of the foregoing was served
in accordance with Texas Rules of Appellate Procedure 6.3 and 9.5, as follows:
(a) on Respondent by and through Denise Langston, Civil Court
Coordinator for the 241st District Court, via e-mail to dlangston@smith-
county.com and via certified mail;
(b) on Robert H. Patterson, Jr., the real party in interest, by and
through his counsel of record in the underlying action, Mary C.
Burdette (via e-mail to mburdette@cnbwlaw.com) and Brandy Baxter-
Thompson (via e-mail to bbthompson@cnbwlaw.com) of CALLOWAY,
NORRIS, BURDETTE & WEBER, PLLC, and Richard H. Lottmann (via e-
mail to Richard@allenlottmann.com) and Gregory T. Kimmel (via e-
mail to Greg@allenlottmann.com) of ALLENLOTTMANNKIMMEL,
P.C., as well as via certified mail sent to CALLOWAY, NORRIS,
BURDETTE & WEBER, PLLC, Attn: Mary C. Burdette, 3811 Turtle
Creek Blvd., Suite 400, Dallas, Texas 75219, and to
ALLENLOTTMANNKIMMEL, P.C., Attn: Richard Lottmann, 3805 Old
Bullard Road, Tyler, Texas 75701;
and that courtesy copies were served on the other parties who have appeared in the
underlying matter as follows:
EMERGENCY MOTION FOR TEMPORARY RELIEF PAGE 5 OF 6
(c) on Nina Ruth Patterson Harris by and through her counsel of
record in the underlying action, Deron R. Dacus (via e-mail to
DDacus@dacusfirm.com) of THE DACUS FIRM, P.C.; and
(d) on Dean Bailey by and through his counsel of record in the
underlying action, David M. Pruessner (via e-mail to
DPruessner@higierallen.com) of HIGIER ALLEN & LAUTIN, P.C.
Dated: January 13, 2015 /s/ Jim E. Bullock
Attorney Certifying
EMERGENCY MOTION FOR TEMPORARY RELIEF PAGE 6 OF 6
in Re: Ty Beard, Jim E. Bullock, Brian Casper, Craig Daugherty and Don Harris
Combined Opinion