ACCEPTED
01-15-00322-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/9/2015 3:11:12 PM
CHRISTOPHER PRINE
CLERK
01-15-00322-CV
NO. _________
______________________________________________________________________________
FILED IN
1st COURT OF APPEALS
IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS
AT HOUSTON, TEXAS 4/9/2015 3:11:12 PM
______________________________________________
CHRISTOPHER A. PRINE
Clerk
IN RE ERNESTO CARRILLO AND
TEXAS LPG STORAGE COMPANY,
RELATORS
____________________________________________
From the 245th District Court of Harris County, Texas
The Honorable Roy Moore, presiding
Trial Court Cause No. 2014-30215
In the Matter of the Marriage of Evangelina Lopez Guzman Zaragoza and Miguel Zaragoza
Fuentes and Co-Respondents, Elsa Esther Carrillo Anchondo, Robert Dale Caucom, Ernesto
Carrillo, Raoul Gisler, Abbingdon Marine, Inc., Cadogan Properties, Inc., Dade Aviation, Inc.,
Ezar Management, LLC, Ezar Properties, LP, Texas LPG Storage Company, and
Texas Overseas Gas Corp.
______________________________________________
RELATORS ERNESTO CARRILLO’S AND TEXAS LPG STORAGE COMPANY’S
MOTION FOR EMERGENCY STAY OF THE UNDERLYING PROCEEDINGS AND TRIAL
______________________________________________
Ricardo L. Ramos Lucy H. Forbes
State Bar No. 24027648 State Bar No. 24007321
RICARDO L. RAMOS, PLLC THE FORBES FIRM, PLLC
440 Louisiana, Suite 1450 2114 Woodcrest Drive
Houston, Texas 77002 Houston, Texas 77018
Telephone: (713) 227-7383 Telephone: (832) 620-3030
Facsimile: (713) 227-0104 Facsimile: (832) 532-3789
rick@rr-familylaw.com lucy@forbesfirm.com
ATTORNEYS FOR RELATORS, ERNESTO CARRILLO AND TEXAS LPG STORAGE CO.
** ORAL ARGUMENT REQUESTED **
________________________________________________________________________
April 9, 2015
Relators Ernesto Carrillo and Texas LPG Storage Company ask this Court
for an emergency stay of the underlying proceedings and trial and would show this
Honorable First Court of Appeals as follows:
INTRODUCTION
Relators are Ernesto Carrillo and Texas LPG Storage Company. Real Party
in Interest is Evangelina Lopez Guzman Zaragoza. Respondent is the Honorable
Roy Moore of the 245th Judicial District Court in Harris County, Texas.
Relators have filed a Petition for Writ of Mandamus. They now file
contemporaneously with that Petition, this Motion for Emergency Stay of the
Underlying Proceedings and Trial. At present there is no trial setting, but there are
underlying proceedings.
Relators notified all parties by electronic filing that a motion for emergency
stay has been be filed. See TEX. R. APP. P. 52.10(a). At around 2:06 p.m. today,
counsel Ricardo Ramos for Relators called counsel for Real Parties in Interest,
Jeannie McDowell, who was out of the office, so he left a message with Marissa at
her office, and emailed all other counsel, indicating Relators’ intention to file this
emergency motion to stay.
This Petition for Writ of Mandamus arises from the 245th District Court’s
denial of Relators’ Plea to the Jurisdiction. The underlying matter is a Petition for
Divorce, filed by Real Party in Interest, Evangelina Lopez Guzman Zaragoza, to
1
dissolve a marriage from 1953 between she and Miguel Zaragoza Fuentes.
Evangelina filed for divorce in Juárez in 1959, and the Second Civil Court,
in the City of Ciudad Juárez, 1 in the State of Chihuahua, Mexico dissolved her
marriage to Miguel Zaragoza Fuentes in 1959.
Relators supplied the 245th with the necessary information under Texas
Rule of Evidence 201. The trial court’s duty to take judicial notice was mandatory.
The Mexican Divorce Records establish that there is no marriage, which deprives
the 245th of subject matter jurisdiction over a divorce action. Moreover,
Evangelina’s Texas counsel presented for admission into evidence P-2, which is
the original and translated versions, of the Mexican Divorce Sentence and the
Mexican Divorce Certificate, at the Plea to the Jurisdiction hearing, and had no
objections to Relators’ translations. Yet, the 245th refused to take judicial notice of
the Mexican Divorce Records, which showed they have been divorced since 1959,
and the 245th lacks subject matter jurisdiction to divorce them; thereby abusing its
discretion.
Evangelina has initiated two proceedings pending in two different countries:
in Juárez, Mexico, she wants the 1959 Mexican divorce annulled, and in the 245th
in Harris County, she claims she is still married, and wants a divorce. She cannot
collaterally attack the Mexican Divorce Records in the 245th.
1
The city of Ciudad Juárez is commonly referred to as Juárez.
2
All of her experts who testified at the Plea to the Jurisdiction hearing agreed
that the Juárez courts are the proper forum, and the only court with jurisdiction, for
an annulment of 1959 Mexican divorce, under Mexican law and procedure, where
Evangelina’s annulment proceeding is ongoing.
The Relators have no legitimate connection to this family matter. Ernesto
Carrillo is Miguel’s employee and Texas LPG Storage is Carrillo’s company.
Evangelina is forum shopping. Only one of these countries’ courts can have
subject matter jurisdiction over the legitimacy of the 1959 Mexican divorce. And
that court, according to Evangelina’s own experts, is the one in Juárez.
Relators seek to have this Court stay the underlying proceedings and the trial
so that it may consider their Petition for Writ of Mandamus, whereby they
requested that this Court command the 245th vacate its Order Denying the Plea to
the Jurisdiction, mandate that it sign an Order dismissing the lawsuit and all its
claims so that the court with jurisdiction in Juárez can adjudicate Evangelina’s
claim, and for all other relief to which they are entitled.
ARGUMENT AND AUTHORITIES
This Court may grant temporary relief pending its determination of an
original proceedings. See TEX. R. APP. P. 52.10(b). This emergency stay is
necessary to maintain the status quo of the parties and to preserve this Court’s
jurisdiction to consider the merits of the original proceeding.
3
The 245th District Court lacks subject matter jurisdiction over this divorce
case because, first, Relators supplied the 245th with the necessary information
under Texas Rule of Evidence 201 for it to take judicial notice of the Mexican
Divorce Records. The trial court’s duty to take judicial notice was mandatory. The
Mexican Divorce Records establish that there is no marriage, which deprives the
245th of subject matter jurisdiction over a divorce action. Moreover, Evangelina’s
Texas counsel presented for admission into evidence P-2, which is the original and
translated versions, of the Mexican Divorce Sentence and the Mexican Divorce
Certificate, at the Plea to the Jurisdiction hearing, and had no objections to
Relators’ translations. (1-RR-34-35, 67, 161, 166-67). Yet, the 245th refused to
take judicial notice of the Mexican Divorce Records, which showed they have been
divorced since 1959, thereby abusing its discretion.
Second, the matter of the legitimacy of Evangelina’s and Miguel’s 1959
Mexican divorce is pending in a simultaneous proceeding in the City of Juárez, in
the State of Chihuahua, in Mexico, which Evangelina initiated, where she seeks to
annul the divorce under Mexican law. The courts in Juárez, Chihuahua in Mexico,
which dissolved the marriage in 1959, have jurisdiction, not the 245th Judicial
District Court in Harris County.
Evangelina’s own experts all testified that the Juárez, Chihuahua court is
competent and has jurisdiction to decide her annulment of the 1959 Mexican
4
divorce action, which is pending. And the Mexican lawyer representing her in that
lawsuit testified at the Plea to the Jurisdiction hearing that Evangelina has the
resources and is zealously pursuing her claim to the annul the marriage there.
Finally, that same Mexican lawyer is representing Evangelina in another
proceeding in Juárez, brought by Miguel, to enforce the 1959 Mexican divorce.
Evangelina initiated the underlying divorce proceeding in the 245th District
Court claiming she is married, when at the same time, she is asking the Mexican
courts to determine whether she really is. She cannot collaterally attack the 1959
Mexican divorce here.
Evangelina is forum shopping. It’s that simple.
Both Mexico’s and Texas’ courts cannot have subject matter jurisdiction.
It’s apparent from the witnesses and testimony at the Plea to the Jurisdiction
hearing that only the Juárez court that dissolved the marriage in 1959 has
jurisdiction, and is a competent court, to consider her challenge to the 1959
Mexican divorce.
Third, and finally, Relators have no legitimate connection to this family
matter between Evangelina and Miguel. Carrillo works for Miguel. Evangelina’s
claims against Relators purport to arise out of or depend upon a matrimonial
fiduciary relationship that has not existed for over fifty years, no claims against
them can survive dismissal.
5
Accordingly, the Juárez court is already considering Evangelina’s annulment
of divorce and has jurisdiction to do so. The 245th has no subject matter
jurisdiction.
Thus, Relators respectfully request that this Court stay the underlying
proceedings and trial, and for all other relief to which they might be entitled, while
it considers their Petition for Writ of Mandamus.
CONCLUSION
Relators Ernesto Carrillo and Texas LPG Storage Company respectfully
request that this Court grant this Motion for Emergency Stay of the Underlying
Proceedings and Trial, in order to preserve the status quo pending this Court’s
determination of the merits of this original proceeding. They seek all other relief to
which they might be entitled.
6
Respectfully submitted,
/s/ Ricardo L. Ramos
______________________________
Ricardo L. Ramos
State Bar No. 24027648
RICARDO L. RAMOS, PLLC
440 Louisiana, Suite 1450
Houston, Texas 77002
Telephone: (713) 227-7383
Facsimile: (713) 227-0104
rick@rr-familylaw.com
Lucy H. Forbes
Texas State Bar No. 24007321
The Forbes Firm, PLLC
2114 Woodcrest Drive
Houston, Texas 77018
Telephone: (832) 620-3030
Facsimile: (832) 532-3789
E-mail: lucy@forbesfirm.com
ATTORNEYS FOR RELATORS, ERNESTO
CARRILLO AND
TEXAS LPG STORAGE COMPANY
i
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above Relators Ernesto Carrillo’s
and Texas LPG Storage Company’s Motion for Emergency Stay of the Underlying
Proceedings and Trial has been served electronically through the electronic filing
manager; in the alternative, it has been served by fax, or by email, as permitted
under TEX. R. APP. P. 9.5(b) (1) – (2) and the TEX. R. CIV. P. 21(a)(1) - (2) on this
the day of 9th April, 2015:
Jeanne Caldwell McDowell Mary Olga Lovett
jcm@houstontrialattorneys.com lovettm@gtlaw.com
Rebekah H. Birdwell Greenberg Traurig, L.L.P.
rhb@houstontrialattorneys.com 1000 Louisiana, Suite 1700
The Law Offices of Jeanne Caldwell Houston, Texas 77002
McDowell Fax: (713) 374-3505
603 Avondale
Houston, Texas 77006
Fax: (713) 655-1725
Lindsey Short Kevin D. Jewell
Adam J. Morris Chamberlain, Hrdlicka, White,
Short Carter Morris, LLP Williams & Aughtry
1177 West Loop South, Suite 700 1200 Smith Street, Suite 1400
Houston, TX 77027 Houston, Texas 77002
Facsimile: 713-759-9650 Facsimile: 713-658-2553
The Honorable Roy L. Moore
Presiding Judge, 245th District Court
Harris County Civil Courthouse
201 Caroline, 15th Floor
Houston, Texas 77002
___________________________
Lucy Forbes
ii
CERTIFICATE OF COMPLIANCE - EXPEDITED NOTIFICATION
Under Texas Rule of Appellate Procedure 52.10(a), I certify that on April 9,
2015, I notified/made a diligent effort to notify by expedited means, all parties to
the original proceeding by the method identified below, that a motion for
emergency stay had been, or would be, filed.
By telephone call at 2:06 p.m. by By electronic service
speaking to Marisa
Jeanne Caldwell McDowell Mary Olga Lovett
jcm@houstontrialattorneys.com lovettm@gtlaw.com
Rebekah H. Birdwell Greenberg Traurig, L.L.P.
rhb@houstontrialattorneys.com 1000 Louisiana, Suite 1700
The Law Offices of Jeanne Caldwell Houston, Texas 77002
McDowell Fax: (713) 374-3505
603 Avondale
Houston, Texas 77006
Fax: (713) 655-1725
By email By email
Lindsey Short Kevin D. Jewell
Adam J. Morris Chamberlain, Hrdlicka, White,
Short Carter Morris, LLP Williams & Aughtry
1177 West Loop South, Suite 700 1200 Smith Street, Suite 1400
Houston, TX 77027 Houston, Texas 77002
Facsimile: 713-759-9650 Facsimile: 713-658-2553
By electronic filing
The Honorable Roy L. Moore
Presiding Judge, 245th District Court
Harris County Civil Courthouse
201 Caroline, 15th Floor
Houston, Texas 77002
/s/ Ricardo L. Ramos
______________________________
Ricardo L. Ramos
iii
CERTIFICATE OF CONFERENCE
As required by Texas Rule of Appellate Procedure 10.1(a)(5), I certify that
by telephone call at 2:06 p.m., I conferred, or made a reasonable attempt to confer,
with counsel for Real Party in Interest, Jeanne Caldwell McDowell, about the
merits of this Motion for Emergency Stay of the Underlying Proceedings and Trial
with the following result:
□ opposes motion
□ does not oppose motion
□ agrees with motion
□ would not say whether motion is opposed
X did not return my message regarding the motion
/s/ Ricardo L. Ramos
______________________________
Ricardo L. Ramos
iv