ACCEPTED
01-15-00304-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/6/2015 12:00:00 AM
CHRISTOPHER PRINE
CLERK
No. _____________________-CV
IN THE COURT OF APPEALS FILED IN -
1st COURT OF--APPEALS
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FOR THE FIRST OR FOURTEENTH DISTRICT OF TEXAS HOUSTON, -
--- TEXAS
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4/4/2015- 9:26:24
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__________________________________________________________________
CHRISTOPHER -- A. PRINE
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----Clerk
IN RE AMERICAN FISHERIES, INC.
FILED IN
Original Proceeding from the 157th Judicial District1stCourt,
COURT OF APPEALS
HOUSTON, TEXAS
Harris County, Texas
4/6/2015 12:00:00 AM
Trial Court Cause Nos. 2013-29749
CHRISTOPHER A. PRINE
The Honorable Randy Wilson Clerk
__________________________________________________________________
AMERICAN FISHERIES, INC.’S
EMERGENCY MOTION FOR TEMPORARY RELIEF
Xenos Yuen
State Bar No. 2223250
xy@yuenlawoffice.com [email]
Andrew Gass
State Bar No. 07747800
ag@yuenlawoffice.com [email]
Diane M. Guillerman
State Bar No. 24012740
dmg@yuenlawoffice.com [email]
SIEGEL, YUEN & HONORE, P.L.L.C.
6100 Corporate Drive, Suite 580
Houston, Texas 77036
Telephone: (713) 541-6256
Fax: (713) 541-9409
COUNSEL FOR RELATOR,
AMERICAN FISHERIES, INC.
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TO THE HONORABLE FIRST OR FOURTEENTH COURT OF APPEALS:
Pursuant to Texas Rule of Appellate Procedure 52.10, American Fisheries,
Inc., relator, files this Emergency Motion for Temporary Relief to accompany its
petition for Writ of Mandamus and in support of this motion would show the court
as follows:
1. On March 23, 2015, the Honorable Randy Wilson entered an oral
order striking the deposition of Relator’s key witness Feng Shao, who was deposed
in Hong Kong, People’s Republic of China, without any stated reason as to why
such sanction was being imposed.
2. At this hearing Plaintiff orally requested the Court to reconsider its
motion in light of the severity of the sanction. Judge Wilson requested Plaintiff
submit a written motion to reconsider his ruling.
3. Plaintiff complied with the court’s request and submitted Plaintiff’s
Motion to Reconsider Order to Strike Feng Shao’s Deposition Testimony; and
simultaneously filed a request for an Emergency Hearing on the matter.
4. Unfortunately, the court did not address Plaintiff’s request for the
emergency hearing.
5. Finally, on April 2, 2015, at the Pre-trial Conference, the Court
entertained Relator American Fisheries, Inc.’s request to reconsider the court’s
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order striking Feng Shao’s deposition testimony and denied Plaintiff’s motion by
declining to reverse its earlier ruling.
6. We are now on the eve of trial with the underlying case set for trial on
Monday, April 6, 2015 at 8:30 a.m.
7. Relator seeks a stay of trial on the merits to allow this appellate court
to resolve the issues raised in Relator’s petition for writ of mandamus concerning
the exclusion of evidence which goes to the heart of Relator’s case, effectively
denies Relator reasonable opportunity to prosecute the case and defend against
counter-claims, and is an imposition of unwarranted death penalty or other severe
sanctions against Relator thus making the trial a waste of judicial resources.
FACTUAL & PROCEDURAL BACKGROUND
8. Feng Shao is a third party defendant, sued by both Plaintiff and
Defendants in this case for various causes of actions. Defendant Feng Shao is a
citizen of the People’s Republic of China and resides in that country. Defendant
Feng Shao has already answered in the lawsuit, pro se. Plaintiff, with permission
of the trial court and at great expense, arranged and conducted the oral deposition
of Feng Shao.
9. Mr. Shao is a former representative of Plaintiff’s and his testimony is
of paramount importance to Plaintiff’s case, particularly to defend against the
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counterclaims alleged by the Defendants, National Honey Inc., dba National
Commodities Company, Jun Yang and his wife, Lin Huang Yang (collectively,
“NHI Defendants”). His testimony regarding main issues in the case cannot be
obtained through any other witness.
10. Further, NHI Defendants have alleged various civil causes of action,
including civil RICO, fraud, and other torts entwined with the criminal conviction
of Defendant Jun Yang -- in the severed case, 2013-29749A – and the deposition
conducted in Hong Kong was ordered by the Court to cover those issues as well.
11. Plaintiff, after discovering the collusion between Feng Shao and the
NHI Defendants as a result of the NHI Defendant’s allegations and discovery, then
filed claims against Feng Shao for breach of fiduciary duty and other contractual
violations, for exceeding his authority, his ultra vires acts, which were not
authorized by the Plaintiff before Feng Shao left his position with AFI. Indeed,
Feng Shao exceeded his official capacity and committed breach of his fiduciary
duties when he formed Linghai (USA) Inc., which he testified was at the behest of
and with the assistance of Defendant Lin Yang and, possibly, Jun Yang.
12. By striking Defendant Feng Shao’s oral deposition, which is critical to
Plaintiff’s defense against the NHI Defendants’ counterclaims, it is the equivalent
of imposing a “death penalty” sanction against Plaintiff (and against Feng Shao),
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even though it is an interlocutory order, because an appeal is inadequate under the
circumstances of this case. By striking the deposition, Plaintiff is left with no
testimony to refute the self-serving testimony of Lin Yang and Jun Yang – the only
other individuals with direct knowledge of the circumstances regarding Linghai
and the NHI Defendants’ other allegations. Indeed, even if the jury decides the
NHI Defendants’ did, in fact, breach the contract (the primary issue in the case),
because Feng Shao is implicated in every corner of the counterclaims, the NHI
Defendants’ need only point to the “empty chair” to avoid paying what they rightly
owe to AFI. It is Plaintiff’s belief that striking Defendant Feng Shao’s testimony is
devastating to Plaintiff’s defenses to the Defendants’ counterclaims.
FOR THESE REASONS, American Fisheries, Inc., relator in this case,
respectfully requests this court to grant temporary relief by issuing an order staying
the trial of this case until this court resolves the issues raised in relator American
Fisheries, Inc.’s petition for writ of mandamus seeking relief from that portion of
Respondent’s March 24, 2015 Order striking the deposition testimony of Feng
Shao, as well as, any other relief to which it may be justly entitled.
Respectfully submitted, this 4th day of April, 2015.
SIEGEL, YUEN & HONORE, P.L.L.C.
By: /s/ Xenos Yuen
Xenos Yuen
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State Bar No. 2223250
xy@yuenlawoffice.com [email]
Andrew Gass
State Bar No. 07747800
ag@yuenlawoffice.com [email]
6100 Corporate Drive, Suite 580
Houston, Texas 77036
COUNSEL FOR PLAINTIFF,
AMERICAN FISHERIES, INC.
CERTIFICATE OF CONFERENCE
Pursuant to Texas Rule of Appellate Procedure 52.10 (a), this is to certify
that on April 3, 2015, counsel for Relator notified counsel for the Defendants in
open court of Relator’s intent to file this motion.
/s/ Xenos Yuen ___
Xenos Yuen
CERTIFICATE OF COMPLIANCE
This motion contains 831 words, counted consistent with the Rule of Appellate
Procedure 9.4(i)(3).
/s/ Xenos Yuen ___
Xenos Yuen
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CERTIFICATE OF SERVICE
Pursuant to Tex. R. Civ. P. 21a, this is to certify that a true and correct copy
of the foregoing Emergency Motion for Temporary Relief was served upon
counsel for the Defendants, M.H. Cersonsky, Cersonsky, Rosen & García, P.C.,
1770 St. James Place, Suite 150, Houston, Texas 77056, on this the 3 rd day of
April, 2015.
/s/ Xenos Yuen ___
Xenos Yuen
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