in Re Kenneth Vern Gibbs and Candace Gibbs Walton

ACCEPTED 06-15-00002-CV SIXTH COURT OF APPEALS 06-15-00002-CV TEXARKANA, TEXAS 1/12/2015 4:29:33 PM DEBBIE AUTREY CLERK No. ___________________ ______________________________________________________________________________ FILED IN IN THE COURT OF APPEALS FOR THE 6th COURT OF APPEALS TEXARKANA, TEXAS SIXTH DISTRICT OF TEXAS 1/12/2015 4:29:33 PM AT TEXARKANA DEBBIE AUTREY _____________________________________________________________________________ Clerk IN RE KENNETH VERN GIBBS, CANDACE GIBBS WALTON Defendants / Relators, Cause no. CV-14-41665 HONORABLE LAURINE J. BLAKE, The 336th Judicial District Court Respondent, and Fannin County, Texas PENTEX FOUNDATION and JOSHUA UNGER, TRUSTEE of GBU FRIENDS AND ASSOCIATES TRUST Plaintiffs and Real Parties in Interest. RELATORS’ MOTION FOR EMERGENCY STAY ROBERT G. HOGUE, P.C. 4514 Cole Avenue, Suite 600 Dallas, Texas 75205-4193 Phone: (214) 559-7107 Fax: (214) 559-7101 Email: robhogue@msn.com LAW OFFICES OF CHRISTY LEE, P.C. 777 Main Street, Suite 600 Fort Worth, Texas 76102 Telephone: (817) 504-6075 Telecopier: (800) 437-7901 Email: clee@christyleelaw.com ATTORNEYS FOR RELATORS / DEFENDANTS KENNETH VERN GIBBS AND CANDACE GIBBS WALTON JANUARY 12, 2015 TO THE HONORABLE SIXTH COURT OF APPEALS, AT TEXARKANA: Pursuant to Texas Rule of Appellate Procedure 52.10, Relators / Defendants Kenneth Vern Gibbs and Candace Gibbs Walton file this Motion for Emergency Stay in connection with their pending Petition for Writ of Mandamus, and in support would show the following: 1. This is a lawsuit for alleged breach of a realty and mineral rights contract. The Relators / Defendants sought transfer of venue by motion, on grounds of proper venue in Tarrant County rather than Fannin County. After a hearing on the Relators’ motion to transfer, the Fannin County trial court, Honorable Laurine J. Blake, Respondent, granted the motion to transfer venue and ordered the case transferred to Tarrant County by Order signed on September 30, 2014. See Attachment A. The trial court then held a hearing on the Plaintiff and Intervener’s motion to reconsider the transfer, and on November 21, 2014 — more than 30 days after signing of the September 30, 2014 transfer Order — signed an “Order on Motion to Reconsider Order to Transfer Venue” [see Attachment B], which purported to vacate the September 30 transfer Order and retain venue in Fannin County. 2. Because the Respondent’s November 21, 2014 “Order on Motion to Reconsider Order to Transfer Venue” was signed after the trial court lost plenary jurisdiction on October 30, 2014 (i.e., thirty days after signing of the original transfer Order), the reconsideration Order is void. See In re Chester, 309 S.W.3d 713, 719 (Tex. App.—Houston [14th Dist.] 2010, original proceeding) (“The trial court abused -2- its discretion by vacating its September 30, 2014 transfer order after its plenary power had expired. The trial court's September 30, 2009 order is void.”).1 Due to the reconsideration Order being void, the Relators need not show lack of adequate remedy on appeal. See id. at 715 (“When an order is void, the relator need not show that it did not have an adequate appellate remedy, and mandamus relief is appropriate. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam)”). 3. The Court of Appeals may grant temporary relief pending its determination of an original proceeding. TEX. R. APP. P. 52.10(b); see also In re Lumbermens Mut. Cas. Co., 184 S.W.3d 729, 730 (Tex. 2006) (orig. proceeding). In the present case, a stay of all litigation events and discovery relating to the Plaintiffs’ case is necessary to maintain the status quo, avoid waste of judicial and party resources, ensure compliance with mandatory elements of the Texas Rules of Civil Procedure,2 and preserve the transferee Court’s jurisdiction to consider the merits of the case. In re Lumbermens, 184 S.W.3d at 729; see also In re Reed, 901 S.W.2d 604, 609 (Tex. App.–San Antonio 1995, orig. proceeding). 1 A motion to reconsider an order transferring venue does not extend the trial court’s plenary power beyond thirty days. See id. at 716-19 (citing In re Darling Homes, No. 05-05-00497- CV, 2005 WL 1390378 (Tex. App.—Dallas June 14, 2005, orig. proceeding). 2 See TEX. R. CIV. P. 87 (“The determination of a motion to transfer venue shall be made promptly by the court”) and TEX. R. CIV. P. 89 (“If a motion to transfer venue is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the proper court; and the costs incurred prior to the time such suit is filed in the court to which said cause is transferred shall be taxed against the plaintiff. The clerk shall make up a transcript of all the orders made in said cause, certifying thereto officially under the seal of the court, and send it with the original papers in the cause to the clerk of the court to which the venue has been -3- 4. Nor do the Relators need to show prejudice or negate laches in order to obtain mandamus relief. See In re Chester, 309 S.W.3d at 718 (“laches is not applicable when the order subject to the mandamus proceeding is void”) citing Zimmerman v. Ottis, 941 S.W.2d 259, 262 (Tex. App. —Corpus Christi 1996, orig. proceeding) (“Since mandamus relief in the present case is premised on the entry of a void order, it would not serve the interests of justice or those of the parties to invoke laches as an excuse to ignore that order, and thus to allow the parties to expend further time and effort in connection with a lawsuit that must ultimately be dismissed by the [trial] court or reversed on appeal for want of jurisdiction.”). However, even if a prejudice showing were required, the Relators would meet it in that absent emergency and mandamus relief, the Relators (as well as the Real Parties in Interest) will have to engage in discovery and prepare for trial in a trial court that lacks jurisdiction. See id. 5. The Relators attach a certificate of compliance certifying that on January 5, 2015, their counsel notified the Respondent and the Plaintiffs / Real Parties in Interest by correspondence that a motion for temporary relief would be filed. TEX. R. APP. P. 52.10(a). See Attachment C. 6. Accordingly, in order to avoid waste of judicial and party resources in a trial court that has lost jurisdiction, the Court of Appeals should issue a temporary order staying all proceedings and discovery in the Fannin County trial court pending resolution of the Relators’ Petition for Writ of Mandamus. changed.”) [emphases supplied] -4- WHEREFORE, PREMISES CONSIDERED, Relators request that this Motion for Emergency Stay be granted, and that the Court enter an Order staying all discovery, hearing, litigation, and pre-trial and trial scheduling matters in this case pending further order of the Court of Appeals. Respectfully submitted, ROBERT G. HOGUE, P.C. By: s/ Robert G. Hogue Robert G. Hogue State Bar No. 09811050 4514 Cole Avenue, Suite 600 Dallas, Texas 75205-4193 Phone: (214) 559-7107 Fax: (214) 559-7101 LAW OFFICES OF CHRISTY LEE, P.C. By: s/ Christy L. Lee Christy L. Lee Texas State Bar No. 24052302 777 Main Street, Suite 600 Fort Worth, Texas 76102 ATTORNEYS FOR RELATORS / DEFENDANTS KENNETH VERN GIBBS AND CANDACE GIBBS WALTON -5- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above Motion has been served on the Respondent, the parties and counsel listed below, on this 12th day of January, 2015, as indicated: Honorable Laurine J. Blake Via USPS next-day mail 336th Judicial District Court 101 E. Sam Rayburn Drive, Suite 200 Bonham, Texas 75418 RESPONDENT Mr. T. Scott Smith Via email per Rule 11 Agreement Attorney and Counselor at Law 120 S. Crockett Street Sherman, Texas 75090 ATTORNEY FOR THE PLAINTIFF / REAL PARTIES IN INTEREST Howard Kirk Gibbs Via email per Rule 11 Agreement 9929 Crawford Farm Drive Fort Worth, TX 76244 DEFENDANT, PRO SE s/ Christy L. Lee Christy L. Lee -6- VERIFICATION Before me, the und ersigned nocary, on th is day persona lly appea red Chris ty L. Lee, th e affiant, a person whose identit y is known 10 me. /\.fter I admi nistered an oath to affi an t , affiant testifi ed: M: nam e is C hri s1:1 L. Lee. I am over 18 :'cars of age, and am compete nt to 1 make thi s affid av it . I have perso nal knowledge of th e facts se t OU ! in th is affidavit , and they arc a ll true a nd correct. I am an atto rn ey who is li ce nsed 10 practice lavv in the Sta te of Texas. I a1n counse l of reco rd for the Rclators I Defe nd a nt s in this litiga tion. T he faCLs in this Mot ion arc within my personal knowledge anJ are true and co rrect. Al l of Lhc document s a ttached Lo the Motion a rc true and correct copies. C hri st" l.. l.cc STATE OF ALASKA § § THIRD JUDICIAL DISTRICT § BEFORC ME , t he undersigned authority, on th is date persona lly appeared Ch risty L. Lee, known to me to he t he person whose name is subscri bed lO the foregoing instrument, and sworl'. and acknowledged that he executed the sa me and that t lw s tatement:-. contained t herein arc wit h in her persona l knowledge and arc true and correct. TO CERTIFY WHICH WITNESS MY HAND AND SEAL OF OFFICE on t his Ji!.... day o f Janua ry, 201 5. . ~\\\\\\11111////~ ~~t>.. M. Ho//@ N >tary Pu blic, in ~)r the State of ~~'(" ............. Q~ ..• ~~ ~,~~ .... J\laska M:· Con1111i->s ion cxpirL·s: (J, hV /~ d-UI §'1.·..i.. '.(/)~ ;:s ·~ •• ~ 5 ~ [NOTARY~ == ~lf-~.. PUBLIC/~§ ~ u>·· ~- •• :;::: ~ # ~..··~~~ ,,,.;•.,-.,,,, 16 ~:.frf·····~··c~s ~ CERTIFICATE OF COMPLIANCE ~//J/ifi11~\\\, U nd er Texas Rui c of Appell ate Procedure 52 . I O(a), I certify t hat o n Janua ry ~ 20 15, I no tifi ed the Respo ndent a nd cou nse l for the Pla in tiffs I Rea l Parri es in Int eres t tha t a motion ro r tcmpora rv reli ef wo uld he fil ed. C hri sty L. Lee 7 Attachment A Attachment B Attachment C 225 E. Fireweed Lane, Ste. 200 Anchorage, Alaska 99503 Phone: 907.339.9931 Fax: 800.437.7901 777 Main Street, Ste. 600 Fort Worth, Texas 76102 January 5, 2015 Phone: 817.504.6075 Fax: 800.437.7901 via Fax: 903-640-1826 clee@christyleelaw.com Judge Blake www.christyleelaw.com 101 E. Sam Rayburn Drive, Suite 200 Bonham, TX 75418 via email Scott Smith P.O. Box 354 Sherman, TX 75091-0354 via email Howard Kirk Gibbs 9929 Crawford Farm Drive Forth Worth, TX 76244 Re: Cause No. CV-14-41665 Pentex Foundation vs. Kenneth Vern Gibbs, et al. To Whom This May Concern: Kenneth Gibbs and Candace Walton, Defendants / Relators will be filing a Motion for Emergency Stay in the Court of Appeals for the Sixth District of Texas, at Texarkana, in this matter. If you have any questions, please contact our office. Very truly yours, LAW OFFICES OF CHRISTY LEE, P.C. Christy L. Lee