01-15-00400-CV
No. ________________
IN RE DAVID WARREN, § IN THE FIRST FILED IN
Relator. § 1st COURT OF APPEALS
HOUSTON, TEXAS
§
4/29/2015 2:33:25 PM
§ COURT OF APPEALS
CHRISTOPHER A. PRINE
§ Clerk
§
§ HOUSTON, TEXAS
RELATOR’S MOTION FOR EMERGENCY STAY
Relator asks the Court for an emergency stay on the trial court proceedings.
A. INTRODUCTION
1. Relator is David W. Warren, the Real Party in Interest is Andy I. Weiner,
and the Respondent is the Honorable Christine Butts.
2. Relator files his Petition for Writ of Mandamus concurrently with this
Motion for Emergency Stay.
3. Relator attaches a certificate of compliance certifying that on April 29,
2015, he notified Respondent and Real Party in Interest by fax and email that a
motion for temporary relief would be filed. (Tex. R. App. P. 52.10(a)).
4. On March 10, 2015 Relator nonsuited his case and on March 16, 2015
Respondent signed his order of dismissal.
5. Because Relator was the sole petitioner in the case, his dismissal should
have summarily ended the case. Greenberg v. Brookshire, 640 S.W.2d 870, 872
(Tex. 1982). Nonetheless, Respondent has allowed the Real Party in Interest to
1
join Relator in a Counter and Cross-Petition filed after Relator nonsuited his
case and after she signed his Order of Dismissal. Trial of this case is set for July
6, 2015.
6. Relator has filed a Petition for Writ of Mandamus contemporaneously with
this Motion for Emergency Stay asking the Appeal Court to compel the
Respondent to proceed no further in this case.
7. Relator’s Petition for Writ of Mandamus raises serious questions about
Respondent’s jurisdiction to rule on matters pertaining to a nonsuited case after
her plenary power has expired.
8. Respondent continues to hear discovery matters pending at the time
Relator nonsuited his case, including a dispute over a discovery subpoena
served on Rice University to produce Relator’s confidential education records
protected by the Family Educational Rights and Privacy Act of 1974 (FERPA).
9. Respondent has physical possession of the records in camera and has
determined that they should be released.
10. Accordingly, Relator is in imminent danger that his privacy rights under
FERPA will be violated without a stay on the proceedings in this case. Absent a
stay, he will not be able to cure Respondent’s discovery errors.
B. ARGUMENT & AUTHORITIES
11. The Court may grant temporary relief pending its determination of an
2
original proceeding. (Tex. R. App. P. 52.10(b)).
12. This emergency stay is necessary to maintain the status quo of the parties
and to preserve the Appeal Court’s jurisdiction to consider the merits of the
original proceeding. In re Reed, 901 S.W.2d 604, 609 (Tex. App.—San Antonio
1995, orig. proceeding).
C. CONCLUSION
13. Relator requests an emergency stay on the trial court proceedings to
prevent the violation of his privacy rights under FERPA and to prevent
Respondent from making further rulings in this case if it is ultimately
determined that she lacks jurisdiction over this case.
D. PRAYER
14. For the reasons stated in this motion, Relator asks the Court for an
emergency stay to maintain the status quo of the parties and preserve the
Court’s jurisdiction to consider the merits of Relator’s original proceeding.
Respectfully submitted,
Cantrell & Cantrell, PLLC
/s/ Carol A. Cantrell
Carol A. Cantrell
State Bar No. 24043592
3700 Buffalo Speedway, Ste. 520
Houston, Texas 77098
(713) 333-0555
(713) 333-0550 (facsimile)
ATTORNEY FOR RELATOR
3
CERTIFICATE OF CONFERENCE
I certify that I have conferred with counsel for the Real Party in Interest and
counsel for Katherine Warren by email and I have also conferred with
Respondent’s associate judge by email and have attempted in good faith to
reach an agreement about the motion to stay. We have been unable to reach an
agreement because the Real Party in Interest and the Respondent wish to
continue the trial court proceedings.
/s/ Carol A. Cantrell
Attorney for Relator
CERTIFICATE OF SERVICE
I certify that a copy of Relator’s Motion for Emergency Stay was served on the
parties below by electronic service on April 29, 2015.
Sarah Patel Pacheco Thomas R. Conner
Kathleen Tanner Beduze Conner & Lindamood, P.C.
Crain Caton & James 1221 Lamar, Suite 1010
Five Houston Center, Houston, TX 77010
1401 McKinney, 17th Floor tom@lawcl.com
Houston, TX 77010 713-654-8115 (facsimile)
pacheco-efile@craincaton.com ATTORNEY FOR KATHERINE R.
713-658-1921 (facsimile) WARREN
ATTORNEY FOR ANDY
WEINER
I certify that a copy of Relator’s Motion for Emergency Stay was served on
Respondent Christine Butts by hand delivery on April 29, 2015 to the following
4
address.
The Honorable Christine Butts
Probate Court No. 4, Harris County
201 Caroline St., 7th Floor
Houston, Texas 77002
Tel: 713-368-6767
/s/ Carol A. Cantrell
Attorney for Relator
CERTIFICATE OF COMPLIANCE
Under Texas Rule of Appellate Procedure 52.10(a), I certify that on April 29,
2015 I notified all parties to the original proceeding by email and fax that a
motion for temporary relief would be filed.
/s/ Carol A. Cantrell
Attorney for Relator
STATE OF TEXAS §
HARRIS COUNTY §
VERIFICATION
Before me, the undersigned notary, on this day personally appeared Carol A.
Cantrell, the affiant, a person whose identity is known to me. After I
5