in Re Kenneth Vern Gibbs and Candace Gibbs Walton ( 2015 )

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.
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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