in Re Stephanie Rios ( 2015 )

ACCEPTED
04-15-00557-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/4/2015 7:00:05 PM
KEITH HOTTLE
CLERK
04-15-00557-CV
No. ______________ FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
9/4/2015 7:00:05 PM
IN THE COURT OF APPEALS KEITH E. HOTTLE
Clerk
FOR THE FOURTH DISTRICT OF TEXAS
SAN ANTONIO, TEXAS
In Re Stephanie Rios, Relator
Original Proceedings from the County Court at Law,
Sitting as a Probate Court, Starr County, Texas
The Honorable Romero Molina Presiding
From Cause No. PR-14-016
PETITION FOR WRIT OF MANDAMUS
Followed by an Emergency Motion to Abate & Preserve Docket Control Order
Flor E. Flores
THE LAW FIRM OF FLOR E. FLORES, PLLC
700 N. Flores St., Ste. E
Rio Grande City, Texas 78582
Tel: (956)263-1786
Fax: (956)263-1750
Email: ffloreslaw@gmail.com
Attorney for Stephanie Rios, Relator
1
IDENTITY OF PARTIES AND COUNSEL
PARTIES COUNSEL
Relator:
Stephanie Rios Flor E. Flores
THE LAW FIRM OF FLOR E. FLORES, PLLC
700 N. Flores St., Ste. E
Rio Grande City, Texas 78582
Tel: (956)263-1786
Fax: (956)263-1750
Email: ffloreslaw@gmail.com
Respondent:
County Court at Law, sitting as a Probate Court, Starr County, Texas
Honorable Romero Molina
Real Parties In Interest:
Maria Adriana Flores Gilberto Falcon
THE LAW OFFICE OF GILBERTO FALCON, PLLC
320 Lindberg Ave.
McAllen, Texas 78501
Email: gilberto@gilbertofalconlaw.com
Roel “Robie” Flores
FLORES ATTORNEYS AT LAW
3331 N. Ware Rd.
McAllen, Texas 78501
Email: robieflores@att.net
Attorney Ad Litem:
Minerva Garza
LAW OFFICE OF BALDEMAR GARZA AND MINERVA GARZA, PLLC
200 East Second Street
Rio Grande City, Texas 78582
Email: garzalawoffice@aol.com
2
TABLE OF CONTENTS
Identity of Parties and Counsel…………………………………………………..…2
Index of Authorities……………………………………………………………...4, 5
Statement of Jurisdiction …………………………………………………………..6
Statement of the Case……………………………………………………………7, 8
Issues Presented…………………………………………………………………….9
A. Did the trial court clearly abuse its discretion when it granted a continuance
of the trial, over Relator’s written and oral objections, when Real Party in
Interest failed to show good cause? …………………………………….19-21
B. Did the trial court clearly abuse its discretion in granting a trial continuance,
over Relator’s written and oral objections, to allow Real Party in Interest to
conduct discovery outside the deadlines imposed by the Agreed Docket
Control Order, when Real Party in Interest failed to show that she exercised
due diligence in utilizing the procedures for discovery afforded by the Texas
Rules of Civil Procedure?.........................................................................20-25
C. Did the trial court clearly abuse its discretion when it granted a continuance
of the trial, over Relator’s written and oral objections, to allow Real Party in
Interest to conduct discovery outside of the deadlines imposed by the Docket
Control Order?..........................................................................................26-28
Statement of Facts……………………………………………………………..10-14
Argument & Authorities……………………………………………………….15-28
Conclusion……………………………………………………………………..29-31
Prayer………………………………………………………………………….32-33
Certificate of Compliance………………………………………………………...34
Certificate of Service……………………………………………………………...35
Appendix………………………………………………………………………36-37
3
INDEX OF AUTHORITIES
Case Law Pages
Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)……………………….15, 18, 26
CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1966)……………………………...15
Fritsch v. J.M. English Truck Line, Inc., 151 Tex. 168 (Tex. 1952)...........16, 17, 20
Gabaldon v. General Motors Corp., 876 S.W.2d 367, 370
(Tex.App.—El Paso, 1993…………………………………………………24
Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 477 (Tex. 1997)…………………16
In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998)………………………...16
In re H & R Block, 159 S.W.3d 127, 132 (Tex. App. Corpus Christi 2004)……...16
In re Luna, 12-07-00185-CV (Tex.App.—Tyler, 2007)……………...16, 19, 21, 22
In re Prudential Ins. Co., 148 S.W.3d 124, 13536 (Tex. 2004) …………………15
In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 210-11 (Tex.2004)……….....16
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)…………15
Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000)..18, 26
MCI Telecommunications Corp. v. Texas Utilities Elec. Co.,
995 S.W.2d 647, 650-51 (Tex. 1999)………………………………………26
Nat’l Union Fire Ins., Co. v. CBI Indus., Inc., 907 S.W.2d 517,
520 (Tex. 1995)………………………………………………………...18, 26
Sanchez v. Duke Energy Field Services, Inc., No.
04-05-00926-CV, 2006 WL 2546365, at 2
(Tex.App.—San Antonio Sept. 6, 2006)…………………………...18, 26, 27
State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984)……………………………….16, 20
4
State v. Wood Oil Distrib., Inc., 751 S.W.2d 863 (1988)…………16, 17, 20, 21, 25
Villegas v. Carter, 171 S.W.2d 624, 626 (Tex. 1986)………………………...16, 20
Verkin v. SW Cent 1, 784 S.W.2d 92 (Tex. App. 1990)…………………………..23
Wagner & Brown v. E.W. Moran Drilling Co., 702 S.W.2d 760,
769 (Tex.App.—Fort Worth 1986……………………………………...18, 26
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)……………………………..15
Statutes Pages
Tex. R. Civ. P. 247……………………………………………………17, 19, 24, 27
Tex. R. Civ. P. 251………………………………………………………..17, 19, 27
Tex. R. Civ. P. 252………………………………………………..17, 20, 21, 23, 24
5
STATEMENT OF JURISDICTION
This court has jurisdiction over this petition for writ of mandamus under
Section 22.201 and 22.221(b) of the Texas Government Code.
6
STATEMENT OF THE CASE
The underlying case involves an Application to Appoint Dependent
Administrator of the Estate of Artemio Rios, deceased, and an Application to
Determine the Heirs of Artemio Rios, deceased. Both applications were filed by
Stephanie Rios, Relator and the biological daughter of Artemio Rios.
The cases originated in the County Court at Law, sitting as a Probate Court,
of Rio Grande City, Starr County, Texas, in Cause No. PR-14-13 and Cause No PR-
14-16, both styled In the Estate of Artemio Rios, deceased.
Real Party in Interest Maria Adriana Flores filed a Petition for Intervention
for Determination of the Right of Inheritance on March 4, 2015, alleging to be the
common law wife of Artemio Rios, deceased. Relator disputes that a common law
marriage between her father and Real Party in Interest existed. Relator filed a
Demand for a Jury Trial solely on the issue of whether a common law marriage
existed between Real Party in Interest and Decedent. A Special Jury Trial was
scheduled for September 3, 2015.
Real Party in Interest filed a Motion for Continuance of the Trial on
September 1, 2015, on the ground that she had not yet had an opportunity to depose
Relator, her biological brother and heir to Artemio Rios, and a non-party. Relator
objected to those depositions on the ground that the discovery deadlines imposed by
the Texas Rules of Civil Procedure, incorporated into the Agreed Docket Control
7
Order had expired and objected to the trial continuance by way of argument at the
hearing held on September 1, 2015 and the written Response and Objection to the
Motion for Continuance incorporated by reference into the oral argument. The trial
court granted a continuance of the trial, without a showing of good cause and due
diligence, and after several resets at the request of Real Party in Interest over
Relator’s objections.
Relator complains that Respondent clearly abused its discretion in granting a
trial continuance to allow Real Party in Interest to conduct discovery after the
expiration of the discovery deadline and disregarding the Agreed Docket Control
Order. Relator further complains that Respondent clearly abused its discretion in
opening the discovery period two (2) days before the scheduled trial date to allow
Real Party in Interest to take depositions of witnesses when Real Party in Interest
completely failed to exercise due diligence in conducting discovery during the
discovery period, in contravention to the Texas Rules of Civil Procedure and the
Agreed Docket Control Order.
8
ISSUES PRESENTED
A. Did the trial court clearly abuse its discretion when it granted a continuance
of the trial, over Relator’s written and oral objections, when Real Party in
Interest failed to show good cause?
B. Did the trial court clearly abuse its discretion in granting a trial continuance,
over Relator’s written and oral objections, to allow Real Party in Interest to
conduct discovery outside the deadlines imposed by the Agreed Docket
Control Order, when Real Party in Interest failed to show that she exercised
due diligence in utilizing the procedures for discovery afforded by the Texas
Rules of Civil Procedure?
C. Did the trial court clearly abuse its discretion when it granted a continuance
of the trial, over Relator’s written and oral objections, to allow Real Party in
Interest to conduct discovery outside of the deadlines imposed by the Docket
Control Order?
9
STATEMENT OF FACTS
Relator Stephanie Rios was the biological daughter of Artemio Rios,
deceased. Artemio Rios died as a result of an automobile accident on November 30,
2013. Relator filed a wrongful death suit in Cause No. DC-13-971 in the 381st
Judicial District Court, Rio Grande City, Starr County, Texas. Relator subsequently
also filed an Application for Appointment of Dependent Administrator under Cause
No. PR-14-13 in the County Court at Law, sitting as a Probate Court, Rio Grande
City, Starr County, Texas. [Apx. 1]. Relator also filed an Application to Determine
Heirship in Cause No. PR-14-16 in the County Court at Law, sitting as a Probate
Court, Rio Grande City, Starr County, Texas. [Apx. 2]. Relator’s wrongful death
suit is set for Trial on October 19, 2015. [Apx. 3].
Real Party in Interest Maria Adriana Flores filed a Petition in Intervention for
Determination of the Right of Inheritance on or about March 4, 2015, claiming to be
the common law wife of Artemio Rios, deceased. [Apx. 4]
Since the Intervention was filed, both cases were set for hearings on Relator’s
pending applications and at every hearing set, Real Party in Interest requested a reset
by way of oral motions for continuances of the hearings. Relator objected to every
reset of the case and the trial court nonetheless granted each request for a
continuance. The trial court set the case for a hearing on all pending
applications/motions for March 26, 2015. Again, Real Party in Interest requested a
10
reset, and again, over Relator’s objections, the trial court granted the reset and
ordered the parties to enter into a docket control order and set the case for trial.
Relator filed a Motion to Compel Discovery and after a hearing, Real Party in
Interest was ordered to respond to Relator’s discovery by July 30, 2015. [Apx. 5].
Relator attempted to prepare a Docket Control Order, sent Real Party in Interest’s
attorney an email requesting tentative trial dates, and counsel never responded.
[Apx. 6] Relator filed a Motion for Docket Control Order on June 11, 2015 and said
motion was set for a hearing on July 23, 2015. [Apx. 7] On the same date, the
parties entered into an Agreed Docket Control Order, which was signed by the Court
on the same date. [Apx. 8] Said Agreed Docket Control Order set all the deadlines,
including deadlines to complete discovery, as per the Texas Rules of Civil
Procedure.
Relator took depositions of Real Party in Interest and three witnesses
disclosed in Real Party in Interest’s response to Relator’s discovery. [Apx. 9] These
witnesses were disclosed late and only after the filing of a Motion to Compel. The
depositions of the Real Party in Interest and her witnesses were set for July 31, 2015
by agreement of the parties and later moved to August 4, 2015 at Real Party in
Interest’s request. Said depositions were noticed after the discovery deadline by
agreement of the parties, as allowed by the Texas Rules of Civil Procedure, and due
to Real Party in Interest’s failure to timely disclose in response to discovery requests.
11
Real Party in Interest for the first time attempted to engage in discovery and
sent Relator’s counsel a letter with tentative deposition dates on August 6, 2015,
after the expiration of the discovery deadlines as per the Agreed Docket Control
Order. [Apx. 10]. Real Party in Interest, however, attempted to set those depositions
in the wrongful death case filed by Relator individually and on behalf of the Estate
of Artemio Rios, her deceased father, and filed in Cause No. DC-13-971 in the 381st
Judicial District Court, Starr County, Texas. Id. Real Party in Interest also filed an
intervention in that case. Defendant in Cause No. DC-13-971 filed a Motion to
Quash and for Protective Order on the ground that the depositions of the parties
noticed by Real Party in Interest had already been taken. [Apx. 11]. Real Party in
Interest was notified, and in that case also, failed to exercise due diligence and failed
to participate in those depositions. Moreover, Real Party in Interest’s intervention
had also already been stricken at the time she noticed depositions of the parties.
[Apx. 12]. Real Party in Interest incorrectly claimed in her argument on the
continuance of the trial in this case that Relator not only failed to cooperate in
scheduling depositions, that said depositions were noticed unilaterally because of
Relator’s failure to cooperate, and that Relator filed an untimely Motion to Quash
and for Protective Order. Relator denies those allegations as evidenced by the
documents attached in Appendix 8 – 11 and in fact, never filed a Motion to Quash
and for Protective Order.
12
Real Party in Interest again sent another correspondence attempting to notice
depositions in Cause No. DC-13-971. [Apx. 13]. Real Party in Interest noticed
depositions for August 25, 2015 and Relator filed a timely Motion to Quash and for
Protective Order on the ground that the depositions were noticed after expiration of
the discovery deadlines as per the Docket Control Order, that Real Party in Interest
failed to comply with the Texas Rules of Civil Procedure in noticing the deposition
of a non-party, and that Real Party in Interest failed to comply with the Texas Rules
of Civil Procedure in failing to properly schedule depositions in Cause No. PR-14-
16. [Apx. 14]. Real Party in Interest filed Amended Notices of Intent to Depose on
August 31, 2015 and Relator again filed a second timely Motion to Quash and for
Protective Order on the same grounds. [Apx. 15].
Real Party in Interest filed a Motion for Continuance of the Trial on August
30, 2015, alleging that she had not had an opportunity to depose witnesses. [Apx.
16]. Relator timely filed a Response and Objection to the Motion for Continuance
on August 31, 2015. [Apx. 17, 17-A through 17-K]. The trial court set the case for
a hearing on Real Party in Interest’s motion for continuance for September 1, 2015.
At that hearing, Real Party in Interest urges a trial continuance to allow her to depose
Relator and her witnesses and further claims that Relator could not quash the
depositions the motions to quash required a five (5) day notice of a hearing on said
motions had been filed less than five (5) days of the September 1, 2015 hearing.
13
Real Party in Interest fails to point out that her untimely request to depose witnesses
days before the trial necessitated the filing of said motions to quash. Real Party in
Interest also fails to point out that she was attempting to schedule depositions after
the expiration of the discovery period as per the Agreed Docket Control Order.
More significantly, Real Party in Interest fails to point out that during the six
(6) months period since her intervention was filed, she completely failed to exercise
due diligence in scheduling deposition or conducting any discovery whatsoever,
even though she requested several resets of this case. In addition, when Real Party
in Interest, through her counsel, entered into the Agreed Docket Control Order, she
was well aware that a Demand for Jury Trial had been made and filed by Relator and
that Relator had made at least two attempts to set the matter for trial. After two
docket control order hearings, a trial date was secured by agreement of all parties.
14
ARGUMENT AND AUTHORITIES
Mandamus is an extraordinary remedy that is available only in limited
circumstances. CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1966) (orig.
proceedings) (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.
proceedings)). Mandamus is appropriate “only to correct a clear abuse of discretion
or the violation of a duty imposed by law when there is no other adequate remedy
by law.” Id. “In order to obtain mandamus relief, a relator must show both that the
trial court has clearly abused its discretion and that relator has no adequate appellate
remedy.” In re Prudential Ins. Co., 148 S.W.3d 124, 13536 (Tex. 2004); Walker,
827 S.W.2d at 83940.
“A trial court abuses its discretion if it reaches a decision ‘so arbitrary and
unreasonable as to amount to clear and prejudicial error of law.’” Walker v. Packer,
827 S.W.2d 833, 839 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916,
917 (Tex. 1985). “Appellate courts will not intervene to control incidental trial court
rulings when an adequate remedy by appeal exists.” In re Prudential Ins. Co. of
Am.,148 S.W.3d 124, 136 (Tex. 2004)(orig. proceeding); Walker, 827 S.W.2d at
840. “But a party will not have an adequate remedy by appeal (1) when the appellate
court would not be able to cure the trial court's discovery error, (2) when the party's
ability to present a viable claim or defense at trial is vitiated or severely
compromised by the trial court's discovery error, or (3) when the trial court disallows
15
discovery and the missing discovery cannot be made a part of the appellate record
or the trial court, after proper request, refuses to make it part of the record.” In re
Van Waters & Rogers, Inc., 145 S.W.3d 203, 210-11 (Tex.2004) (orig.
proceeding); In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig.
proceeding); Walker, 827 S.W.2d at 843.
The denial of a motion for continuance is an incidental trial ruling ordinarily
not reviewable by mandamus. Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 477
(Tex. 1997). An exception to this general rule occurs when special circumstances
are present. Id. Special circumstances are present when other errors exist that are
themselves properly reviewed on petition for writ of mandamus. Id.; In re H & R
Block, 159 S.W.3d 127, 132 (Tex. App. Corpus Christi 2004, orig. proceeding
[mand. dismissed]); In re Luna, 12-07-00185-CV (Tex.App.—Tyler, 2007).
“It is well established that the granting or denial of a motion for continuance
is within the trial court’s sound discretion.” State v. Wood Oil Distrib., Inc., 751
S.W.2d 863 (1988) (citing Villegas v. Carter, 171 S.W.2d 624, 626 (Tex. 1986));
State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984). “The exercise of discretion will not
be disturbed on appeal unless the record discloses a clear abuse of discretion.” Id.
“It is also well established that the failure of a litigant to diligently utilize the rules
of civil procedure for discovery purposes will not authorize the granting of a
continuance.” Fritsch v. J.M. English Truck Line, Inc., 151 Tex. 168 (Tex. 1952).
16
“A trial court will not be required to grant a motion for continuance, at the risk of
committing error in overruling it, when the allegations in the motion examined in
light of the record show beyond cavil a complete lack of diligence…” Id. at 858.
“A party who does not diligently utilize the procedures for discovery can seldom
claim reversible error when the trial court refuses a continuance.” State v. Wood Oil
Distributing, Inc., 751 S.W.2d 863, 865 (Tex. 1988).
Texas Rules of Civil Procedure 247 further states that “[n]o cause which has
been set upon the trial docket of the court shall be taken from the trial docket for the
date set except by agreement of the parties or for good cause upon motion and notice
to the opposing party.” Tex. R. Civ. P. 247; Tex. R. Civ. P. 251. The rules further
state that “[t]he failure to obtain the deposition of any witness residing within 100
miles of the courthouse or the county in which the suit is pending shall not be
regarded as want of diligence when diligence has been used to secure the personal
attendance of such witness under the rules of law….” Tex. R. Civ. P. 252. Rule 252
further requires that “if a continuance is sought to depose a witness, the motion must
include the following information: 1.) the witness’s name and address (street,
county, and state of residence); and 2.) a description of the testimony the witness
will probably give and what the party expects the testimony to prove. Id.
Agreed docket control orders are governed by contract principles. “When a
contract is not ambiguous, the construction of the written instrument is a question of
17
law for the court that is reviewed de novo.” MCI Telecommunications Corp. v.
Texas Utilities Elec. Co., 995 S.W.2d 647, 650-51 (Tex. 1999); Coker v. Coker, 650
S.W.2d 391, 393 (Tex. 1983). “Whether a contract is ambiguous is a question of
law that must be decided by examining the contract as a whole in light of the
circumstances present when the contract was entered.” Nat’l Union Fire Ins., Co. v.
CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995); Sanchez v. Duke Energy Field
Services, Inc., No. 04-05-00926-CV, 2006 WL 2546365, at 2 (Tex.App.—San
Antonio Sept. 6, 2006, pet. denied); see also Wagner & Brown v. E.W. Moran
Drilling Co., 702 S.W.2d 760, 769 (Tex.App.—Fort Worth 1986, no writ)(court
must determine from expressions used in a written contract whether there has been
a meeting of the minds). “If a written contract is worded so that it can be given a
definite or certain legal meaning, then it is unambiguous.” Nat’l Union Fire Ins.
Co., 907 S.W.2d at 520; Coker, 650 S.W.2d at 393. “An ambiguity does not arise
simply because the parties offer forceful and diametrically opposing interpretations.”
Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000);
Sanchez, 2006 WL 2546365 at 2. “Rather, a contract is ambiguous only if two or
more reasonable interpretations are genuinely possible after application of the
pertinent rules of interpretation to the face of the instrument.” Sanchez, 2006 WL
2546365 at 2.
18
I. Real Party in Interest Failed to Show Good Cause
“A continuance shall not be granted except for sufficient cause supported by
affidavit, or by consent of the parties, or by operation of law.” In Re Luna, 12-07-
00185-CV (Tex.App.—Tyler, 2007). Texas Rules of Civil Procedure 247 further
states that “[n]o cause which has been set upon the trial docket of the court shall be
taken from the trial docket for the date set except by agreement of the parties or for
good cause upon motion and notice to the opposing party.” Tex. R. Civ. P. 247; Tex.
R. Civ. P. 251.
Relator contends that Real Party in Interest’s motion for continuance and her
argument at the hearing on said motion are devoid of any showing of good cause. In
her motion, Real Party in Interest simply states that “counsel has previously noticed
the opposing parties in this case, and they improperly quashed the depositions…”
The verified affidavit attached to her motion for continuance is also devoid of any
reason, justification or ground which constitutes good cause for the granting of a
continuance. What Real Party in Interest fails to state in her motion is that she was
attempting to schedule depositions just days before the scheduled trial and past the
expiration of the discovery deadlines as per the Agreed Docket Control Order.
Absent an agreement between the parties to allow for depositions past the expiration
of discovery deadlines, Real Party in Interest was required to show good cause for a
continuance, which she failed to do. Relator further contends that Real Party in
19
Interest could not show good cause for the granting of a continuance when Real
Party in Interest had already unreasonably delayed the proceedings by requesting
resets over Relator’s objections, all of which were granted by the trial court, also
absent good cause.
II. Real Party in Interest Failed to Exercise Due Diligence
“It is well established that the granting or denial of a motion for continuance
is within the trial court’s sound discretion.” State v. Wood Oil Distrib., Inc., 751
S.W.2d 863 (1988) (citing Villegas v. Carter, 171 S.W.2d 624, 626 (Tex. 1986));
State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984). “The exercise of discretion will not
be disturbed on appeal unless the record discloses a clear abuse of discretion.” Id.
“A trial court will not be required to grant a motion for continuance, at the
risk of committing error in overruling it, when the allegations in the motion
examined in light of the record show beyond cavil a complete lack of diligence…”
Id. at 858. “A party who does not diligently utilize the procedures for discovery can
seldom claim reversible error when the trial court refuses a continuance.” State v.
Wood Oil Distributing, Inc., 751 S.W.2d 863, 865 (Tex. 1988).
“The failure to obtain the deposition of any witness residing within 100 miles
of the courthouse or the county in which the suit is pending shall not be regarded as
want of diligence when diligence has been used to secure the personal attendance
of such witness under the rules of law….” Tex. R. Civ. P. 252. Rule 252 further
20
requires that “if a continuance is sought to depose a witness, the motion must include
the following information: 1.) the witness’s name and address (street, county, and
state of residence); and 2.) a description of the testimony the witness will probably
give and what the party expects the testimony to prove. Id.
In Wood, Wood asked for a continuance “[o]n the morning of the trial…to
obtain additional time to take depositions of the State’s witnesses….” State v. Wood
Oil Distrib., Inc., 751 S.W.2d 863 (Tex. 1988). “Wood also sought the continuance
in order to discovery more detailed information from the State….” Id. Wood had
not conducted discovery during the two years in which suit was pending. Id. The
Supreme Court held that the trial court did not abuse its discretion because Wood
did not prove diligence. Id. The Court said that Wood’s inability…to take the
deposition of State’s witnesses was ‘a predicament of its own making.’ Id. The
Court further stated “that is a risk Wood took by not diligently pursuing discovery.”
Id. “To reward such conduct with a new trial is manifestly improper.” Id.
Moreover, in Luna, a trial was scheduled for May 21, 2007 by Agreed Docket
Control Order. In Re Luna, 12-07-00185-CV (Tex.App—Tyler, 2007). On May 4,
2007, Luna filed a motion for continuance of the trial “requesting that the trial be
continued for sixty days because she needed additional time…to obtain deposition
testimony...to obtain precise details concerning the nature, depth, and breadth of the
operational agreement in effect at the time of this incident….” Id. A hearing was
21
held on May 15, 2007, and the trial court denied said motion. Id. Luna [sought]
“’mandamus relief from the respondent trial court’s denial of her motion for
continuance’….[and] ‘also filed a motion for an emergency stay of all proceedings
pending…disposition of her petition.’” Id. The Court denied mandamus relief and
held that “the record does not affirmatively show the diligence necessary for Luna
to obtain a continuance to conduct additional discovery.” Id.
Realtor contends that Real Party in Interest has failed to show any exercise of
due diligence on her part to engage in discovery. Real Party in Interest’s motion for
continuance fails to emphasize that she failed to engage in any discovery during the
pendency of the suit and that on the eve of trial, she attempts to take depositions after
expiration of the discovery deadlines. Like in Luna, Real Party in Interest has failed
to show due diligence in utilizing the discovery procedures afforded to all parties by
the Texas Rules of Civil Procedure. Moreover, also like in Luna, Relator contends
that the record in this case does not affirmatively show the diligence necessary for
Real Party in Interest to obtain a continuance to conduct additional discovery.
Additionally, Relator contends that Real Party in Interest’s motion for
continuance should have been denied because in addition to failing to show good
cause and due diligence, her motion for continuance is not in substantial compliance
with Rule 252, which requires that “when requesting additional time for discovery,
a party must fulfill six requirements under oath: 1.) the testimony is material; 2.)
22
proof of materiality; 3.) show of diligence; 4.) cause of failure, if known; 5.)
evidence not available; 6.) continuance is not for delay only but so that justice be
done. Tex. R. Civ. P. 252; Verkin v. SW Cent 1, 784 S.W.2d 92 (Tex. App. 1990).
Real Party in Interest counsel filed a motion for continuance and attached an affidavit
to said motion. In his affidavit, Real Party in Interest’s counsel simply states “I am
hereby acquainted with the facts stated in the Motion for Continuance.” The motion
itself states that “counsel has previously noticed the opposing parties in this case,
and they improperly quashed the depositions…” It further states that “depositions
are scheduled for September 1, 2015 at 9:00 a.m.; 10:30 a.m. and 1:30 p.m.” Relator
filed a written response and objection to Real Party in Interest’s motion for
continuance, and incorporated written arguments into oral arguments at the hearing
on said motion, controverting the statements in the motion and objecting to its non-
compliance with the rules. Relator contends that Real Party in Interest failed to
comply with Rule 252 in that she has completely failed to show that she exercised
due diligence in trying to obtaining depositions and conduct any discovery within
the six (6) months that her intervention had been pending; has failed to completely
state a cause for her failure to do so; has failed to show that evidence was not
available during that time; and has failed to show how her request for a continuance
is for anything other than to delay the case, an impermissible attempt to obtain
evidence and conduct discovery past the discovery deadlines, and cause prejudice to
23
Relator. Real Party in Interest has further failed to state in her motion for
continuance “the type of information sought” in the depositions she attempts to
notice. Gabaldon v. General Motors Corp., 876 S.W.2d 367, 370 (Tex.App.—El
Paso, 1993, no writ). In fact, Real Party in Interest’s motion for continuance is
devoid of any of the information required by Texas Rule of Civil Procedure 252.
The strict requirements of Rule 252 clearly state that ‘if a continuance is sought to
depose a witness, the motion must include…’ the above stated requirements. Tex.
R. Civ. P. 252. The language in Rule 252 is mandatory, and Real Party in Interest’s
motion for continuance does not satisfy those mandatory requirements. Most
importantly, Real Party in Interest’s motion for continuance also fails to state that
the discovery period had expired at the time she attempted to schedule depositions.
Real Party in Interest’s motion for continuance is devoid of any showing of
due diligence in procuring depositions of witnesses in this case. In fact, Real Party
in Interest has failed to satisfy the requirement and describe the attempts she has
made in a period of six (6) months to secure discovery of evidence. Rule 247 further
imposes mandatory language when a party moves for a trial continuance to conduct
discovery. Rule 247 specifically requires that Real Party in Interest show good cause
and due diligence, none of which Real Party in Interest showed in her motion for
continuance or argument at the hearing on said motion. Real Party in Interest’s only
argument in her attempt to show good cause was that she had not taken depositions
24
yet. However, Real Party in Interest failed to emphasize that her attempts to depose
witnesses were all made after the expiration of the discovery deadlines. Real Party
in Interests attempts to show due diligence was to produce correspondence and
emails showing her attempts to notice depositions, but Real Party in interest also
failed to emphasize that the correspondence and email sent were for attempts to
schedule depositions in a case not before the Probate Court, and most importantly,
also beyond the Docket Control Order and the Texas Rules of Civil Procedure
deadlines. Real Party in Interest attempts to show good cause and due diligence
in scheduling depositions within a week from the scheduled Trial. Real Party in
Interest’s failure to conduct discovery and take depositions was not the result of
accident or mistake, but rather the result of conscious indifference. Relator has no
adequate remedy at law because the trial court’s order opening discovery two (2)
days before the scheduled trial and clearly way past the expiration of the discovery
deadlines now subject Relator and her witnesses that Real Party in Interest could
have taken during the six-month period from the filing of the petition in intervention
to the date of trial. “A party who does not diligently utilize the procedures for
discovery can seldom claim reversible error when the trial court refuses a
continuance.” State v. Wood Oil Distributing, Inc., 751 S.W.2d 863, 865 (Tex.
1988).
25
III. Agreed Docket Control Order
Agreed docket control orders are governed by contract principles. “When a
contract is not ambiguous, the construction of the written instrument is a question of
law for the court that is reviewed de novo.” MCI Telecommunications Corp. v.
Texas Utilities Elec. Co., 995 S.W.2d 647, 650-51 (Tex. 1999); Coker v. Coker, 650
S.W.2d 391, 393 (Tex. 1983). “Whether a contract is ambiguous is a question of
law that must be decided by examining the contract as a whole in light of the
circumstances present when the contract was entered.” Nat’l Union Fire Ins., Co. v.
CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995); Sanchez v. Duke Energy Field
Services, Inc., No. 04-05-00926-CV, 2006 WL 2546365, at 2 (Tex.App.—San
Antonio Sept. 6, 2006, pet. denied); see also Wagner & Brown v. E.W. Moran
Drilling Co., 702 S.W.2d 760, 769 (Tex.App.—Fort Worth 1986, no writ)(court
must determine from expressions used in a written contract whether there has been
a meeting of the minds). “If a written contract is worded so that it can be given a
definite or certain legal meaning, then it is unambiguous.” Nat’l Union Fire Ins.
Co., 907 S.W.2d at 520; Coker, 650 S.W.2d at 393. “An ambiguity does not arise
simply because the parties offer forceful and diametrically opposing interpretations.”
Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000);
Sanchez, 2006 WL 2546365 at 2. “Rather, a contract is ambiguous only if two or
more reasonable interpretations are genuinely possible after application of the
26
pertinent rules of interpretation to the face of the instrument.” Sanchez, 2006 WL
2546365 at 2.
Texas Rules of Civil Procedure 247 further states that “[n]o cause which has
been set upon the trial docket of the court shall be taken from the trial docket for the
date set except by agreement of the parties or for good cause upon motion and notice
to the opposing party.” Tex. R. Civ. P. 247; Tex. R. Civ. P. 251.
Real Party in Interest filed her Petition in Intervention six (6) months prior to
the date of the scheduled Trial. Real Party in Interest joined in the Agreed Docket
Control Order setting the case for Trial on September 3, 2015. It is significant to
emphasize that the Agreed Docket Control Order was entered into after the second
request for a docket control order by Relator. Approximately two (2) months passed
between the first hearing on Relator’s Motion for Docket Control Order and the
second. During that period of time, Real Party in Interest failed to engage in
absolutely any discovery. On July 23, 2015, the Agreed Docket Control Order was
executed by all parties and signed by the Court. During the period of time between
the filing of the intervention and the trial, Real Party in Interest failed to conduct any
discovery. On the eve of trial, Real Party in Interest attempted to notice depositions,
after the discovery deadlines have passed, and without proving any due diligence in
attempting to conduct discovery or procure depositions of the witnesses.
27
Relator contends that principles of contract apply to the Agreed Docket
Control Order executed between the parties. That agreement clearly states that all
deadlines, including the deadline to complete discovery, were set as per the Texas
Rules of Civil Procedure. The Texas Rules are very clear that discovery begins on
the date the suit is filed up to thirty (30) days before trial. There is no ambiguity in
the Agreed Docket Control Order executed between the parties and no reason for the
agreement of the parties to be undone by the trial court or Real Party in Interest. The
trial court provided no justification for undoing the agreement of the parties and
opening the discovery deadline to allow Real Party in Interest to take depositions
just days before the scheduled trial, especially when the agreement governs the
deadlines in this case. Relator contends that the trial court clearly abused its
discretion in opening the discovery deadlines in contravention to valid Agreed
Docket Control Order and further in rewarding Real Party in Interest with the
opportunity to take depositions after expiration of the discovery deadlines, when
Real Party in Interest failed to show good cause and due diligence. The trial court’s
actions in ignoring the docket control order are in contravention with the rules of
law and applicable case law, and constituted a clear abuse of discretion.
28
CONCLUSION
The trial record is clear that Real Party in Interest intervened in the probate
matters and did absolutely nothing after the intervention. Real Party in Interest
claims to have been the common law wife of Artemio Rios, decedent, and not only
has she failed to produce any evidence or substantial witnesses to support her claim,
but has also engaged in zero discovery. Real Party in Interest, during the six-months
period she has been in this litigation, has done nothing other than request reset after
reset, and after agreeing to a trial date, files a Motion for Continuance of the trial
just five (5) days before the trial is set to begin, claiming she hasn’t had the
“opportunity” to depose Relator and some of her witness. It was not Real Party in
Interests lack of opportunity to depose, but an absolute lack of due diligence on her
party. The Texas Rules are very clear that discovery begins on the date the suit is
filed up to thirty (30) days before trial. On the eve of trial, Real Party in Interest
tries to come up with some evidence, through depositions, to prove her claim. With
the assistance of the trial court, Real Party in Interest was given yet another
opportunity to do the work she should have done during the discovery period. Both
Real Party in Interest and the trial court have completely ignored the fact that the
parties agreed to the Docket Control Order and that that Order and the Texas Rules
of Civil Procedure are clear as to the discovery deadlines. Real Party in Interest’s
29
failure to diligently utilize the procedures for discovery disprove any attempted
showing of good cause for the granting of a trial continuance to conduct discovery.
Relator will be prejudiced by the granting of a continuance in this case
because the trial court not only gave Real Party in Interest even more time but most
significantly, has allowed Real Party in Interest to do the work that she should have
done to prove her case within the deadlines imposed by the Agreed Docket Control
Order. Real Party in Interest has had more than sufficient time to conduct discovery
and obtain evidence to prove her alleged claim of common law and has failed to do
so. Relator contends that the trial court abused its discretion in granting the trial
continuance and opening discovery to allow Real Party in Interest to take depositions
and attempt obtain evidence to prove her claim of common law marriage, essentially
shifts the burden to Relator to disprove the claim. Relator has been diligent in
conducting discovery, secured evidence, and procured witnesses to dispute Real
Party in Interest’s alleged claim of common law marriage to Relator’s deceased
father while Real Party in Interest has caused nothing but delays in these proceedings
and has failed to do anything to prove her alleged claim of common law marriage.
By granting the trial continuance, the trial court has allowed Real Party in
Interest to bypass the Texas Rules of Civil Procedure and the Agreed Docket Control
Order, giving her the opportunity to obtain evidence to prove her case, when she has
displayed a complete lack of diligence in doing so within the deadlines imposed by
30
the rules. The trial court’s action clearly amounts to abuse of discretion, especially
when the trial court had previously allowed Real Party in Interest resets of the
matters pending before the court to prepare her case. Relator further contends that
the trial court’s actions of opening the discovery period to allow Real Party in
Interest to take depositions outside the discovery deadlines is not only a clear abuse
of discretion but extremely prejudicial to Relator, who vehemently disputes the Real
Party in Interest’s common law marriage with Relator’s father and has worked
diligently to counter Real Party in Interest’s claim and prepare for trial. To excuse
Real Party in Interest’s lack of due diligence and allow her to conduct discovery in
contravention with the rules and the Agreed Docket Control Order constitutes a clear
abuse of discretion by the trial court. The trial court in its ruling allowed Real Party
in Interest to take the deposition of Relator, her biological brother, and a non-party
and ordered Relator to make herself and her brother available for depositions on or
before September 10, 2015. Relator has no adequate remedy at law and moves this
Court for a writ of mandamus to stay those depositions and the trial date rescheduled
to September 17, 2015, and directing Respondent to abate all further proceedings in
this matter until this Honorable Court rules in this matter.
31
PRAYER
Relator requests that this Court grant her Petition for Writ of Mandamus and
Order the County Court at Law, sitting as a Probate Court, Starr County, Texas, to
vacate its Order dated September 1, 2015 granting Real Party in Interest’s trial
continuance and opening the discovery period to allow Real Party in Interest to take
depositions of witnesses outside the Docket Control Order deadlines. Relator further
requests that this Court enter an emergency order abating all further proceedings
before the County Court at Law and to preserve the Docket Control Order and its
deadlines in all respects which was entered by the parties on July 23, 2015, closing
the discovery period as per the Texas Rules of Civil Procedure incorporated into the
Docket Control Order. Relator further requests that this Court abate the depositions
ordered by the trial court to be taken on or before September 10, 2015 and the trial
set for September 17, 2015 at 9:00 a.m. until a further date after a decision by this
Court. Relator further requests that this Court remand the case for trial without
further discovery, and any filing of motions past the deadline to file motions, and for
any and all other relief, in law or in equity, to which Relator may be justly entitled
to.
32
Respectfully Submitted,
/S/FLOR E. FLORES
Flor E. Flores
THE LAW FIRM OF FLOR E. FLORES, PLLC
700 N. Flores St., Ste. E
Rio Grande City, Texas 78582
Tel: (956)263-1786
Fax: (956)263-1750
Email: ffloreslaw@gmail.com
Attorney for Stephanie Rios, Relator
33
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4, I hereby certify that this
Petition for Writ of Mandamus contains 4,995 words. This is a computer generated
document created in MicroSoft Word 2013, using 14-point typeface for all text,
except the footnotes which are 12-point typeface. In making this certificate of
compliance, I am relying on the word count provided by the software used to prepare
the document.
/S/FLOR E. FLORES
Flor E. Flores
34
CERTIFICATE OF SERVICE
I, Flor E. Flores, certify that on this the 4th day of September, 2015, I served,
with prior notice, a copy of this Petition for Writ of Mandamus, to all required
parties as per the Texas Rules of Civil Procedure and Texas Rules of Appellate
Procedure, as follows:
VIA HAND DELIVERY
VIA CMRRR NO: 7014 1820 0001 7960 7289
Hon. Romero Molina
504 N. Britton Ave.
Rio Grande City, Texas 78582
VIA ELECTRONIC MAIL: gilberto@gilbertofalconlaw.com
Gilberto Falcon
THE LAW OFFICE OF GILBERTO FALCON, PLLC
320 Lindberg Ave.
McAllen, Texas 78501
Attorney for Real Party in Interest Maria Adriana Flores
VIA ELECTRONIC MAIL: robieflores@att.net
Roel “Robie” Flores
FLORES ATTORNEYS AT LAW
3331 N. Ware Rd.
McAllen, Texas 78501
Attorney for Real Party in Interest Maria Adriana Flores
VIA ELECTRONIC MAIL: garzalrawoffice@aol.com
Minerva Garza
LAW OFFICE OF BALDEMAR GARZA AND MINERVA GARZA, PLLC
200 East Second Street
Rio Grande City, Texas 78582
Attorney Ad Litem for Unknown Heir of Artemio Rios, Deceased
/S/FLOR E. FLORES
35
APPENDIX
1. Application for Appointment of Dependent Administrator
2. Application to Determine Heirship
3. Agreed Amended Docket Control Order – Cause No. DC-13-971
4. Petition in Intervention for Determination of Right of Inheritance
5. Oder on Applicant’s Amended Motion to Compel Discovery & for Sanctions
6. Email to Real Party in Interest’s Attorney Re: Docket Control Order and late
Discovery
7. Applicant’s Motion for Docket Control Order
8. Agreed Docket Control Order – Cause No. PR-14-16
9. Amended Notices of Intention to Take Video and/or Oral Depositions, with
Subpoena Duces Tecum of Maria Adriana Flores, Ana Belia Rios, Beatriz
Rios, and Felix Rios, Jr.
10. August 6, 2015 letter from Real Party in Interest’s Attorney attempting to
schedule Depositions in Cause No. DC-13-971
11. Defendant’s Motion to Quash Depositions of Stephanie Rios Noticed by
Intervenor Maria Adriana Flores and Motion for Protective Order
12. Order Granting Defendant’s Motion to Strike Maria Adriana Flores
Individual Capacity’s Plea in Intervention
13. Letter from Real Party in Interest dated August 18, 2015 attempting to
schedule depositions in Cause No. DC-13-971
14. Applicant’s Motion to Quash Depositions of Stephanie Rios, Artemio Rios,
Jr. and Hugo Alaniz, Jr.
15. Amended Notice of Intent to Take the Video and/or Oral Deposition of
Stephanie Rios, Artemio Rios, Jr. and Hugo Alaniz, Jr.
36
16. Real Party in Interest’s Motion for Continuance
17. Relator’s Response & Objection to Motion for Continuance (17 and 17-A
thru 17-K)
37
0cloc(
MAY 0 I 20r{
IN TIIE ESTATE OF
li RT
ARTEMIO RIOS, s
9
$
$ SI'ARR COUNTY,TF]XAS
TO THE IIONORARLE JUDGE
OF COUITT
COMES NOW, STEPHANTE LEE
RIOS. ApplcanL. ,nd files Lhrs
Appticaron
ApFoinrmenrofDepsndenr Adjrnj
$mlor oa Lhe Flae oI ARTEMIO
RloS, Dec.rsld xnd
..use oracr'or wjllshow Lu!o rhrs
coun rhe ioltoung:
is m individul doniciled in and
restding al l8j0 Cuadalupe St, Rio
^. Texa 78j82, SlaF Coulr_ Texas, and jj
CiLl,
_Applicanr Crando
a.r0rg ,n Lhr rnrtrer try and rhroush
her dtrt)
iullDrized rdrEsenhhe. Thr app|canr
r Lhe dccedor\ daugncr drd ha\4n rL.r!{trr rrc
cskre ofARTEMTO RIOS, Deceased
Deceden! died on Novenber 30,
201:l h Rio Crdde CiLy. SLan CourLy. Tcx{ ar $eaee
ol 19 yeds. Thedcccdenrdied inle$arc
L
This Coun ha j uisdrcrion ord verue isproper
because Al.RrrMtO RrOS Deccasrd
war
doniciled.nd had a n\ed ptace ofEsidcnce
in drh.ounrr, r( Lho trDr oi dcrLh h Sr..
CounLv
Decedenr owned propeny described gcDerxt
], as real pbper' snh an unknou eilue a(
de dme oI tiling tlis applaion
Decedem owned propcny dcscribcd
Eenemily !s F,:omr propcly wi(h an unknorD
wlue aL the rine offitine rhis apptiadon
Appr.ur.on beball.of Deccdent, fited a wrlngfLt
dsarh slir curcnLly pendoe uDder
-
Cause No DC-ll971. in the l8l'L Jndicjat Dhhcr cour1.
sLa,r Co!nly, Texas. tor damages ,o
excss ofOne Mnlion DoUan ($t,000,000.00)
v,
Tle @es, ages, meiul shlus, addre$es. dd Elanon ps !o decedenr of each her ro
lhe d@edenL is a follows:
STEIHANIE LEE RIOS (razsrle.l
Ager l8
Single
lElo cuadatupe Sl.
Rio Gande Ciry, Tex$ 78582
s@coury,Texas
ARTEMIO tuOS, JR. (lb,l
1810 cuadallpe SL
Rio c@de CiLy, Texas 78582
SuE Cobly, rexas
u
As far a knoq by Lhe aFpLjcanr ar dre riDe ofttrc fi jDe otLh6.ppLtcaLt.n. rh.
tiLkNing
child *d presuinably bom 6 rtre decedenr. burpaLcnry rsdtrpurert
AMYRTOS
5691Tmpi@St.
RioCmndeCiry.TexasTB58z
SLacCouhry.Texas
YII,
As te d known by lhe applictur at rhe hre of Lhe fihrg of dns app icatron,.{RTBMIO
RIOS, Decedent, w6 neler ndied.
Th€ inteEs in Decedenas eslarc requtfes mmed,,le ipFonrmeDr ol.a Dependenr
Adm'ntrtra'or ARTEMIO RrOS has died *nho lervnrs a w lt. thc indivrdlalr named jn
rh6 applicarion consrirule aU of rhc Decedcnfs hei6 ed disorbules
and have lon rn rh6
appncauon ed de advNabiliLy ofhavins a Dependcnl Adnnntsldtron S,l.DpflANtE
agree on
LEE RIOS has been designard by the known hens aL Iaw otDecedenr
10 se.!e as Dependenl
Adminhttsbr. The distribulees reqlesl rhar 0o rcrion be Gken ,n lLls ( o0n on ,e djon
@ lhe
sedeme offiedecedenasesEcofier rd Lhe rerum ofa. Lnverory,opprarscmenr, and
tisrot
clains of rhe de@denas cNaLe and se{le all pending clainrs for money dama8es on behalt.of
Decedhas .srsF AI disribLkes join in rhjs rc.lLes ard warve
rc issrancc aDd seN,cc of
citalion. Allesed heirs &d dinriburees .a
Deccdenl whose paremiry is dhplred
have bcen
seryed w'lh Cirado. rhrcugh pesonat
seiviccs
Appl'c&l would be a suraote rop.esenlarive, is enLnlcd ro admnxjraLjor
and ,5 nor
dhqualilied by lowro srve ds aonx.6tErorot dns esate
The adhinkrraror ofrtris e$are shou
d be siver rtrc l.oltowDrg !olej\:
I Tale charge ad possession of DeccdeDas esmle. LnctLLdmg. bd noL Iinrired Lo.
peenar and real popeay
2. Payany dd all dcbrowedbyDecedetrraL the ddreofhhdeah.
l R€piese.r Decedenr in ey and a hrgadon pendingpiorio Decedenfs dearlr
RepEseft Decede.t ir hisarion aisjns
ed a, b.,.".
oul ol.Decedenfs u
-'
Defehdanls $hich inay
J;::::_Tii":il^
XJ.
"-".",,".
The adDinisrraroi shoutd be appoinled penaneDr
adnrtnrftLor puNrtu ro secroo
lllAC) ofrhe Probsle code.
WTJEREFORE, PREMISES CONSTDDR!]I),
s IElllANlt: RIOS. ApptLcror hosn
reque$s rhat Cihrion be issued as requifed
by la,! aod thar appjtrallr be ]nxncdracty
appornLed
a Adoinishlor of Decedenf s esrllc.
'IdE LAN FrnM oF t.Lon
PLLC
RiocmndeCiLy, Texas 7s592
Tel (956) 261-t786
Ia\. (956)263 t75.l
., +ILED
| 0r1-0.tsl:M
r,raY 2 8 20v1
IN TEE ESTATE OF $ TN TIIE C COURT
s
ARTEMO RIOS, s AT L^W Or
s
$ STARR COUNTY, TEXAS
.A.PPLICATION TO DEIERM]NE TIEIRSHTP
The folding ApPlidL STEPHAITIE Rro9 tumtuhes rh. toUowii€ inlnmuon
I aRTEMIO RIoS ("D*edmtl djed on Novmb€! 30, 2013, at tlE aBE oI 39
h FaLon rieighb, StaE C@ty, T€s.
2, A D€p4dmt D4€d6(s 6tate ji Fndmg beioE Lhs
ation uPon
udd
court c:]G Nd PR-1!r3, stJba tu th. Est4t of '(,tm to Rios Ii i' in tlE hst
inssl ol rhe Estate ior L\e Courr b detemine who N rhe heirs and orny hei6 of the
3, Appliat claiN |o be the owr o! aI d a Paft or D(edstr Estak nE
la5l Lhc {iigjls of t]le smial suty nubq ol 033 Tlt lst rlte digrs of hd Tdas
Identin@tion cd.l de 16?
4 Th€ lrdo ed Fsid6.5 of all or Dfr€dent s heus, tlE relatioch]P oI eacl
her b Ddedmi dd dE he intere* of Bre APPIidt and of each ol the hei6 in the EstaE
of De.edstft d follosl
ARTEMIO RIOS, JL
Rjo Grdde Cirt, Td6 78s82
Shat of Real PmPeny
Shd of Pqsn l PloP€rtY:
Rio cdde Gry, TM 745e2
I. ttu eshkalAei D'c6l
^@
\
CAUSE NO, DC-13-9?l
I{UGO AI,ANIZ JR., STEPIIANIE RIOS 6 IN TIIE DISTRICT COURT
d ARTEMIO RIOS, JR, Ibdividurlly lnd s
Oa h.U of ti. Esrar. of ARTEMIO RIOS, I
Praintillr, s
s
$
s
JOANN GONZAj f,Z md s
TLAMES GONZAIEZ, s
$
AND 38f' JUDICTAL DISTfuCT
s
MARIA MAGDAI,ENA FLORES, AS NEXT s
FRIEND OF AIIfY DEL CARMEN RIOS, A s
MINOR CHILD 5
rnletukoFPraintills $
I
s
5
ANDERSON COLUMBIA COM}ANY, INc-, s
I
$ STANR COI,NTY, TEX,AS
AGREED AMENDED DOCKET CONTROL ORDER
Plointiflss InrePcnos, od Defendd! app.&.d dd alE d, dd rhe coun .nter.n the lollowiDg
1. Jury rel4tioFTri.l: octoberl9,2015 rr 9:00 a.m,
2, Dsign.tioborE p..t:
aJ Plaintif*4nre no^; May8,20l5
3.
I3,2015
18,2015
4, Daub.rt/Rob'.&r E€rrtbca (ir fteded): ffisr-?- mrs rt e:oo !.D.
May ll I0,2015
3, Fiul PFTrtrl Corlft.e PuBu@r lo T.R,C,P. # t66: Oclob.r
6. Arl Motiols n lihine sh,U h.6lcd dd h€.d ot 6nal rl.
Tri.l Noteb@ks shall be incompli sth T R C,P, 166, irctudjns sFEiat
srcNED AND ORjIER'ED ON rrtrS _Ld,y of _Eq 2015.
LAPFAE&! S,P.L.L.C.
601 Sa$ter StsEt, Suit€ 650
!d: (713)?3910r5
lreiLhab@iohs.com
chri{opt'q@oFzcjohB.@d
Co Ploi.r't/ InENetur
0rl30/2dj.6 33Pl
4 AmmdnanrofPrudingr(Pllindfi)r Maylll0,20l5
b) Amendnenr ol Plc.dinss (Dcfqrdmo: Iuty6,20L5
5 rhrlPrsjl.i!lcoDterence Purruanrtd l.R.C.t,r td6 O.rober J 20ls
.lc:00r,n.
AllMoions in Linine lhdlbefileddd hddar 6Mt!Etri.L.
T.tul Notabooks aE due No (2) wc.k befoe tinal Pe-TrL,l coo cie.
Ti,rlNorebook sh'l b. in@mpliatrc w"h T R.C.P t66, inoludingsp@ial
SICNED ORDERID ON THIS t0r5.
THE I-AW FIAfi OF IIOR !,
700 N. Flora Srot Sufue E
R o Cad! C'ty, Tdas ?3532
s, P.L.t-c Fax. (956) 263'1750
sun.650
ConNel lbr Ptaintilf / ln t
FIRM, PLLC
(e5o 658.3t@
i (956) 66&8101
Kni( D, Willii
S llo,2l64i5oo
s 240?0854
, Suile 520
' (2t4) 736.9t94
6l^",g,JX
II{ TBE FITATE OF 9 I]t TIIE COIJ]\TY COIJRT AT LAW
$
NRTEMIO RIOS, sor
$
DECE I) 5 ARRCOt TY, TEXaS
PETTTION IN INTERVENTION FOR
DETERMINATION OF RICEr OF INEERITANCE
tu of InhcdbiE wiL'r tbis Coun 6 e Brh of rhe d@6 ot Andio Rios CDenmr"), and
psur to s4rion 2ol .052 of the Texa Bbld codc ed Espedily sbmi6 b llc cout lhc
!
Sr@heir Rios ha filed e Applienon to Dclmidc iship in tlis &rion dd my b€
wid nolie ofihi! Pailion in htrmrion by sddin! o 6py ro hd adomcy, FIor E. FtoE,
d700N no Sr., Sr., E, tuo Ctud. Cify, Texs 73532. Arcmio tuc, J. hs 6lcd o Ejvn of
ldie olrhc ADpliQlion fil.d by scphmie tu6 fiemayt *nn rcd* ofrbis !.tirion
ir ddon by endrng a 6py b his addcs, l33O GuddlulE Cnok, Rjo CEde City, TX
78582. Any rj6 (r b'niot lhbugh [d n*r 6cDd Mdir Masda]@ Flc ha fital a pcrirron
inlnrdenlionofrlcApplidion shc m b€ 3@.d wjth no.i€ of riis p.rition in tnR{rion
Mqi, Ailnua FloFs, is a cidcnr of Se Coury rno r6i at l?2 L4 bbs, Rio
Gadc Ciry. TS5e2 hd ha ajdiciabtc lnr.Esr in rfit pftc..ding 6 rh. @hnon t.w wifc oa
Aenio tu6 ridd E S Cou(y, Tq6, ud dicd incabre on or aboutNowmh.r lO,
2013.
Thar Ais Court ha venue MdjuisdicLion oflhc nader b€@w De.€ie M donioitcd in
To ttc howledge ofPeliLionq, lhc decedenL died intcsrat., lcavins no MI.
u.
Maie Adri@ Ftor B rtuIty otoift ro bc thc omd of sll or o pelt of D€c€ddrs
Esre 6 shc B {'. cl@nt spos. of tf,e d4dhr ar rhc rinc of his denise orhe l]1u this
Thc @s ed Esidd@s of 6tl .f Dc.dent s hm, thc Flsrio6hp of eeh hcir lo
enr md lnc u!. nl.€r oi rhc Petilrond Md of @h of rhe hei6 in lhe EsEle of Deccddr
dd t[e !!e i. r of rhc Pelirionu ed of @ch of Lhc i.i6 in rho Btob of D.c.de.r @ s
Nme: Mdia Adrieo Florcs
t72tat @
cit
tuo GMdc Tx ?35a2
Relatioctupr omon law spow
Sh@ofR@lPrcperty ll2
S ofP.6odlProp..tyi l/2
Nmc. Anehio tuos, J.
AddEs- 1830 GDdslupc Circl.,
Rio cfld. city, Ts 73532
RclalioEhip: child
Sh@ ofEs.Lp | 16 66%
Sha of pson.l pEpertr: 16.66%
Nm.: S hdi. Rios
Add : l33O Gu.dalupe CiEl.,
Rio Gtudc Ciry, T.xa 73542
R.lationship: child
SbeofFdpmperty: 16.66%
s ofFEoMl pFlcny: 16,66%
tuo Cftrde City, TeE ?3532
She ofpcFobd pDpcrry: 16 66%
D.cedent An.dio Rios w6 n@i.d by €nmon taw t Maio Adiida FtoM_ 1lle
Cour! SeCoety, Texs.
All knoM chndEn bon !o or odopted b, De@d hdc b€en lisred lsh kbq
Euiagc ofDe€ldt na ben ln@d
A! olllrcation for indeFld.At rdrinishrio! is p.nding bdor? C.Msdcrti.tu.
ClE No B not n nc.t s a parry in trle adninisratior poc€dings.
h de €mon la* sifc or dE deedeDt ed h4 slanding s d inEBr.! pdson wilt be
']|r
!trc.lcd by lhc pob61c po6-di!gs. MnaA.Litu!Flo re norlroviden wib noli@ ofde
pFbarc F*.dinss ed for good su. deircs ro r. . 6 d ;FE$.d pcmd bd b.
on. of rh. De..dols heiE h lie pFb& pFecdrSs.
PRAYER TOR RELIEI
Th.t rhc Pctiriolq h aq@ of lne f&15 smeding lhis pelirion od slae lie rollowinEl
Ttur Pdition r Equ6l rhis Cod ro Bi.w lnis i nLion md pdirion md sho d de
cou 6rd il !6r.r, ro cntcr llos ordc6 n.@s$ry ed dul6ri*d wirrl ardio{!siD@dridn
& LiirioM slat6 tlEt sbc udcEllrd! rhlr by 6lDS ihis peufion ia I cdcnLion tor
Pctitond cqu6B rhis Coun dcGtuiE od st hlish who is .nLidci ro dE disiibuhon oa
Llrc Coun my d€n Int.denor Mda A
Artemio Rios Estate
FlorFloEs !lbd. May 13,2015 ar 1209 pM
ro 's'rb€rto@s b€norarcon aw.com'
ccr Nad a LA1
Oh Apdl 1si, lsenlboth ol you an emaitrequeslinq lenralNe tna dates so we coutd nnatze the Oocket Conrrol
OrderrheJudgeinstructed!sloslbmilnrhsmaller.Isn@M6y13thand havenolEcevedacspons,"
from you. l am requesling one lasl lrhetnaldales n June lrcmyou so can gel lhis casescheduted tr tdont
rcceive a esponse, l wjll subm l a Dmkd conlrolord€r wjlhoul you inpul hnk thavewaited tong enouqh
Addrl'onally. yourdiscovery €sponses a€ ovedue Pl€ase atlow th's etecllon c corespondenc€ lo setoe as a
Iomarcq*sl for€sponses by no lat€rlhan lhe end otlhebusiness day on Monday, May 13,2015 Lftdonot
Eceive sad rcsponses I wilL be liling a Ntot on for conlempl and forsanclons.
Tnank yN loryour prompt atlenl on 10 lhese malleF
li\tt.\4).t LdLttr, knq.\tr^ 2nl| 4tl:t)it
The Law Fim of Flor E. Flores, PLLC
7tl0 N.I.lorcs St., Stc. E
tuo G.,nde (iio,'le$s 78581
'rer (956)263,1786
|ix: (956)263-1750
\ \ \. fflo.csla\ .com
trlo.cnr(@goin.(,m
Fir€d:05111/2015
NTHEISTATEOF O NTHE COU\TI COURT
s
5 ^T
LAW
s
$ STAXR COUITTY, TEXAS
TO TIIf, HONORABLE JUDCf, OF SAID COURT:
coMES \Ow, STEPIId\IE RIOS, rhe Aptlicanr l. Lh s lcion, .nd Rques for a
D..keLConrclConfeence, and in suppon dercotwtllsho$ unro lhis Cour fie fotlow'.e:
Thh prc.ecdi4 h i conreied mader *heEby rhe Appliconr is seeking b be appoinled
rcpresenorive of de Enate ol ARTEMIO RIOS. Applk.nr is lhc biological daugh@r ol
ARTEMIO RIOS, dec&$d. MARIA ADRrA\A FloRtrs hd nled lnrd.dion dajmin!
an
ro b. de common LN wife of ARTE:VIIO RIOS, de.elsed I!,{RL{ ADRIA\A FLORES is
STEPHAME RIOS e reprsenraLile ofAXTEMIO RIOS'
6Ee ThE maoerha be.n pendingsince Mry l,2011.
Applimr STEPI{ANIE RIOS hd filcd , J!ry D.mand on ft. isiuc ofcommon lae
ndiag! an,l dl plnns app.&ed for a heari.g in Uis man{ on Mrch 26, 201J. The Coln
Or!i*e'i lhe panEs ro edr.r rnto a do.ker conml order and seL fte daner for dal. Since L\en.
AppLhanr has madr requc$ for Trial dncs from lnr!frcnor's counsel and non hale been
Applica fil.d awonsluldedh cNe on behallofher tarher,ARTtr}rIO RIOS. decs$d
rdfie33l'Jud'cioLDudc!Cou(!^deidcsehserlorTdrlonOdobeil9,20l5.Thisnate.
hsb.enconrinuedon..sdrhepsdiessillnorasreeroflothercontinusce thk hadshs ro
b. (solv.d beforc rhe {rongfuL dedh kial.
Allpanns, indudin8 lnredcnor II{RIA ADRUu\A FLORXS, h6 had sufficrcnr rime
Lo ensase in di$ove!- ro finrLize rheprcbale mr(flandprcc.ed 1o rial on th. common Laq issue,
which needs o be.esoLved b.forc ihew.onsfuLderfi cssepmceed! ro trial. AppL'chra$.dr dar
5 daJ_s h necesary o prcvent hinh
WEI.REIORE, PREnflSES CONSIDERED, STEPdANIE RIOS, Aptlrcml 8bd
hrer for Tdal on rh. McriB, md for sny rd ,ll oAd Eli.f, ir lN or in .qunt o which
R€pond. n.y b€ jdly en tl.d6.
R6F.tflllt $bmille4
TS'L FM TqNR E. FLONES'
OF TLLC
700 N FloG st, St
E
tuo CFndc CirY, TerG 73512
T.L(956)261_l?36
Fq: (95O 26r_ 1750
EFAiI:
Bv, /gFLOR f,. FLORFI
9EBrgre4x!-9rs!8ucE
I, Flor E Flor.., by cdiry $don lhis rtE!:!9 d.v of rue 2015 d de ad codt copv
]I!A.EMA!,I
v!A-E!4Ae:
VI-{ ELECTRONIC FILINCi
TH' LAW OFTICE OF GILAERTO FAICON' PLIT
McAIl.n, Tcxa 73501
)turvrJor ltuenent Mo'o A.lrino Ftotu!
1t!!!o8-E MBES--
ft ?Nr4t6t h tu tud.41d.dp Atq k@dd
IN TI1I ESTAT' O}' s IN TIII COU\ry COURT
I
AX,TEMIO fuOS, I
s
STAIR COU\TYi TEXAS
OR'f,ROI AT'PLICANTIS MOTION TO COMPIL & FOR SAIVCTIONS
. rhc Coun @nidcr.d App ir&r s Mor on ro
Cohp.l& lor Sdflrcns. and aner rcviewing rhc pL*d'ncs and he ne arcu(hrotcouset. rhe
coud noalhe opinion rhrl erd morion shoutd bc GIIANTED.
The Coun ORDERS lnrsrenor MARIA ADRIA,\ A FLORi'SI
L To P3) Applienr's dromey, FLor!. FtoEs, $e slm ofS7O0.m tor$endccsiq,otntjng
6i5 Morion b Compcl and tor Ssctions on b€hrtfofsTEplll-Vf, RroS.
2. To prcdue dcmenb h Appiitrl s Reqfs tor P,odu on of Deumens s,din five
15)&rsorr h€iis n s ddrcrorby
'h
I To p.ovidc resp.nses oAppticdrs Re,]l66 fo.Disct6uEs wnhin five (5) dlts ota
,20r5.
.1 To pmvide fs-..e6 F ]\ppticanfs FiNL s.r otlnLerosarnes drhin five (5) da': ofa
hqi.g i. rhis msner or by ,2olj.
Ihe coun fuihs oRDERS and mks a Jud'c al findins rhar |ne Admissions *ru.d uno
lnrdenor 34 dc.md adhiftd ,nd pEvenr tfledenor tdm presenunc evidcnce ar trnt which
conftr.tr nane6 *hich have be€n dehedadmined.
The Coun tunher ORDERS dal:
l. Thel cfrcnor r plead in8s be nnck n and LeminoB dny fuans d G.overy b) tncdqor
2. Prchrbir lnrencnor Fom iilFdrcing &y documen6 d dd shich reE equen.d jn
dtrcovq- and noL pnnued.
CAUSE NO. PR.I+I6
IIi T}IX ISTATE OF
s I\ TEf, COUNTY COURT
$
s
!
$ STAITR COU\TY, TXXAS
ORDIRON A}PLIC{XT'S MOITON I COVPIL& FOR sANCTIONS
rhe coln lon'derd qppti!&,3 \ronon
b
Compeia lor Sandionl' and sner rcvic*idg LhepteadinCs
and hlanDgarsmenrofcounset. ge
CounEofd. opinron thar said hodon shautd b. TXD C
Thr coln ORDERS tnredenor MARIA ADRIAT\A
ILORXSI
L rop3) Appliqfsadomcy, FtorE. FtoEs, dcsuD of$700 i]O
a.! rh. ieesiryotnting
Morjon b compet and for soc ons on behalfoa
'nh sl uHs^rx Rros.
?. loproduedocMcnb inAppt,.das Rcqusr Iof pnrdua,on or Docunenawj$in
fivc
T5)&y\ofr heJnng h dris mJnerorby
I To pmvide rcsponses b Appliqm s Requcsb tor Dn.lo:ns wd d tjve (5) dals ofa
4 To pmvide ssqcE @ apptrsnrs tri^r ser oa Incnogmrjes
hannsin rhis h,n{ or by
The coutr tud\er oItDERs aid maks , ,!dic,l finding rhd dc Admjssions ed unro
fcruenor aE demen admrd.d and prve tikdcnor rdm prc*nhnB evidencc d oiat qhich
controv.e manen shih hrvc been deem.,l adniien
The coln tuahd ORDERS rar.
L T]1e Inroenots pteadings h€ erick.n
dd r.minatcs dy 6fner djsoverl by rnbn.nor
2. PrchibiL tnuo-e'or trom inhduc,ng my deudenE
ar ,nd shhh *eE Equsred in
oKovery od norprcdued
SICNEDON:
JUDCE
CAUSENO,
I]Y TIIE ESTATE OF
t
ARTEItroRtoq I
- : arlAw
S STARR COTA"TY,
TP,JTAS
Do.td Contror
, rhe cou .dnsid..cd Appt,canas
Conlecne. Mo.ion b
ft. coud s* mrq Julv 23, 2o1s
'nis
aor a he atinE dn
6/122015
s,cNrDon
.1l5PLLC
.,+.t:; ,
AUG 2 0 2015
CAUSENO PIt-\,.l. \rp
Cl.r" + i"q*
SIARRCOTNry,IE).AS
DOC]GT CONTROL ORDER
BE REMEMBERiD lnAI ON dryol 201i, ad€kd
JurlTialreqEied Yes
B. I)ead ine ro rcqlen foflury:
n.a..:,erio. In.l q oO >.d
{ Pre.Tral6 eEn.e i5 ser for (Prrr3 Nokbd rmadbo)
E. The dadhne to'fitingaLl disposit'
The coun will $hedule o
hariig oi eid moion, upod de filng df tre.
Thededhne forfitiiS: td sposit'\e ,u,nn,D morions
herngon e'd morionsupon lhe fihng
The deadhne for dcngnarion of expen * ni$ses tor D€fendmt G) ,,. rV'f l
H. The deadL'ne lor desigration ol expen vM6scs lor PlaintifG) is TftCP
The dead ,ne ror !omplerion ofdi*o\err for DdcnLlrnr (r) trr TNI P
The dsd
'tu
ror (ompletion ofdb6v!.J rorPtamtifi(,1L [4tp
Ih" dtudL'r forn".dnr .or atlp'e.o ng. o hrn frno.nr\.rj 7-7C P
L. -hedm.'oe ro' amenomel .Irllpl"dns.forh"Ps" r
causE No. PR'14-015
s
s
s
s
DECEASED s STARR COUNTY, TEXAS
AMENDED NOTICE OF INTENTTO TAKE THE VIDEO AND/OR OTLAL
DEPOSITION OF SIEPHANIE RIOS
STEPHANIE RIOS, Plamtiii. by and thrclgh hef allomeyolrecord, Flor E. Floes.
700 N. Flores Streel. Ste E Rio Grande CiV T€x€s 74542
PLEASE TAKE NOTICE thal ihe Vrdeo and/or Oral oeposnion of STEPHANIE RIOS
wiLl be taken pu6uanl io the prcv sions of Ru es 200 and 201 Iexas Ru es of Ovil
Proc€dure al Law oftice of Roel "Robie F ofes 3331 N. Wa€ Rd MoAllen, Texas 78501
Respondenl In lhe abore captioned cals€ will lake the Video and/or OEL Deposilion oI
STEPHANIE RIOS, on
conlinu ng day to day unlilcompleted.
It he€by reqlesled lhat the Plaintfl, S'EPHANIE Rlos appea. in such trme a nd
s
place lorthe purpose ofgMng h6 depos tion in this cause, Mlich depos ton when laken
may be lsed in €vidence dunng ihe t.ialof said cause, and wilconlinue from dav to day
Respectfuly submitled
The Frm ofRoe "RobE" Fores
(956) 631-7188 ofllce
Emarl: @bieiorcslaw@alt.net
Hon. Ro€l'Robie Flores
srare BarNo 07167020
AIIoTney Io. MARIA ADRIANA FLORES
rJob ruober ?616r 6000!
Certificate of Service
I ceR'ry thal a 1ru6 @py of the AJITIENDED NollCE oF INTENT TO TAKE THE
VIDEO AND,OR ORAL OEPOSITIoN OF STEPHANIE RIOS was seded on bv hand
delivery, by fa6imile, or by email, bv @nified mai retum Eceipt €quesled each anom6v
oi€cord or nyin aeodancewithlhe Texas Rules or Ovrl Pbc€durc on lhegldav
Flor E Flores
7o0 N Flores st@t Ste E
Rio G€nde city, Texas 78532
Fa* 956,263.1750
Emarl:tfl oeslaw@gmail com
Gilbeno Falcon
^ Faxi(956)487-6336
Email:€neonandoqaza@gmail com
Ho.. Roel 'Robte" Flores
Atlomey lor MARIA AoRIANA FLORES
r rob Nube. 7633r ao00e
SUBPOENA DIJCES TECUM TO THE DEPOSITION OF
STEPHANIE RIOS
(EXHlBllA )
The term !o!'or 'deponent rele6lo STEPHANIE RIOS Ljnl€ss(
othee se specined the I'me w thin whLch maleials are soughl s the past len I0)
vears Trelcms docur€rt! wr'lhos ano records ateu'sInl| s'rhibil r" lhen
l:sromarr o-oaa .ense ano w lour limiraloa rhe lollowng lems '€odrdless of
'n.lloed
ongm orlo€lion, whether prnred, re@rded, rilmed, or feprcduced bvanvoLher
mechanica prccess or wnnen or poduced by h.nd whelher or nol clarded to be
pdvieqed aga nst discovery on anyground, and whelhefan onsrnal master or copv
writt€n or Recorded stat€menl ofthe Pa.tv Proboundino lhissubb@na
padY
C-!.99€ !e!r!!4! any.nd a I slalements prevously made by lhe
p@poundrng this subpoena duces lecum concernng the subject matler ol lhis
lawsuit whch is n tha possession, cuslody, orco.tro lhe party lo *hom this
subooena is drected ( Rlle 166b.2.q.). Forthe plrpose ollhE request. a
sralemenl previous y hade is (a) a wrtten peBon makng . (b) a stenogfaphic
mechani€|, eleclncalorother type ol r€codirq. or any t€nscriplion theeol
which is a substani a ly velballm rec talof a slalement made bv lhe pe6on and
contemDo€neo!slv recorded
Photoaraphs: Each and every photogEph in vour possesslof orslbject lo
vour @ntol and or dlv tqllve or anv'L'r pfolog aon '''prrl he€o'rsroi
:vaibole $ nrch oeoicls r"ne6 €le rs 1l Io lh6 lawsJ I Fo'fepuDo+sorlhis
subpoena, lhe lerm photograph would include the video pornon oi anv mouon
pElue. vdeo-lape, or other recorded medra
3. Pr€oaration forthis d€.osition: any and all documenls, repons pape6
coresponden@, pholog€phs. and nemoranda e thef i. vour possessron or
lnder yolr conlo re atrng lo lhe occlren@ mad€ the basis of thrs lamlit
p'epared or reviewed pnorto lhis depos't'on In preparatDn lor ih s dePosition
a copy ofyour curenl driver's rcense
5
Reports ofErpe.ts: Any and aildocuments and langible thrngs ncluding all
lanqrble repofts, physi€lmodels, complications oi data, and olhermalenal
prepared by an expeftwho may be called as a. etp€Ls lrialor deposilion
i€siimony, and anysuch marenalprepared bv an expert used ror consullaron
lnvestioator's Reports: The nafre a
reDorts ofany private lnvesliqato6 empioved bvvou in @nn€c1ion witlr lhs ese
a Panies and wltn€sses: The names and addfesses ol anvpotenla partiesor
witness€s lhatcan be oblained ffom any comfrunication orolher papeB In you
possess on, custody, of conlol
LrqD .rb-A.76d6r 6ooro
causE No. PR-la-016
IN THE ESTATE OF 5 IN COUNTY COURT
s
s
s
DECEASEO s STARR COUNTY, TEXAS
AMENOED NOIICE OF INTENT TO TAKE THE VIDEO AND/OR ORAL
OEPOSITION OF ARTEMIO RIOS JR,
ARTEMIO RIOS JR., P ainLitr. by and lhDugh her altornev ol record, Flot E Floes
700 N. Flor€s steet Ste E Rio Grande Ctv T€ss 74542.
PLEASE TAKE NOTICE thatlhe Video and/or 016l Deposition oIARTEMIO RIOS
JR. wil be taken purslanl lo the p@vsrons of Rlles 200 and 20r, Texas Rules oi Civil
Prcced uE at Law otfice of Roel 'Robie Flores 3331 N. ward Rd McA len T€xas 74501 .
Respondent i. the above caploned €usewilltake the Video andlor Oral Deposition of
ARTEMIO RIOSJR,, on Nd
ontrnurng day lo day untl@mpleted
ll is hereby requesled lhal the Pantifl, ARTEMIo Rlos JR appearln such time
and plaG for$e purpos6 ofgiving his deposilion in thrs cause, which deposition when
taken, maybe used in evidence dunng the tdalolsaid cause, and willconlinue tom dav
Respecif ully s!bm'lted,
The Fkm of R@l"Rob e'Flores
(9s6) 631-7133 Oifce
Ems r obienoeslaw@att.net
Hon Roel'Robre' Flores
stale Bar No 07167020
Atlomey IoT MARIA ADFIANA FLORES
r hh \uober 7636r o0002
Certificare of SeNice
| @nfy lhai a lru€ @py ofine AMENDEO NOTTCE OF TNTENT TO TAXE THE
VIDEO ANO/OR ORAL oEpOStTtON OF ARTEM|o R|OS JR, s serued on by hand
delivery, bylaFimile, or byemai, by ceriified m.it, return re4ipl r€quested each anomey
or re@rd orparty
'n
a@rdan@ with lh€ TeEs Rltes otCMtprocedue on ther4day
Flor E. Ftores
700 N FroEs Sreel Ste E
RD Grande CiV, Tess ?85S2
Fak 956.263.1750
Email:filoedaw@gmait.com
Rene ca@
Gilberto Far@n
^ Faxr(956x€7 6336
Emarl:reneodandogaa@smait.@m
nz ru," lz,--
Hon. Ro6l "Robie' Flores
Atlomey tor MARIA ADRIANA FLORES
rrob Nuber zi!6r Amol
SUBPOENA DUCES'TECUM TOTHE OEPOSITION OF
ARTEMIO RIOS JR-
IEXHIBIT "A"I
Thetem yo! or'deponeni releb to ARTEIT/I|O RIOS JR., Untess
otheMise speciiied lhe lrhe wilhin which malerials a€ sought is the past ten O0)
yea.s. The tems document. 'w llngs."afd ,lecords'aE used rn this exhrb rn lher
clsloharyb.o.d sense and Inclldedwrthout rmtalon rhe following ilems. regad ess of
onqin or localion, wheihef printed, recoded nlmed, orrepbduced by anyothe.
mechanica pD@ss or winen or podlc€d bV hand whelher or not claimed io be
pnvileg€d aoanstdFcoveryo. anygDund, andwhetheranonojnal, mast€r,o.@py.
Writt.n orRecorded Stalenontoflh€ Partv Proooundin. this subboena
ducos lecum: Anyand alslatemenls pfeviously hade by lh6 pa
popoundrng lhis slbpoena dues tecum concemrng lhe sublst natteroflhis
lawsurl which is inlhe possession, coslody ordnto the parly to whom this
subpoena sdirected. (Rule 166b.2.9.). Forrhe purpose ofths requesi, a
slalement prevjously made is (a) a wnften pe6on making [ (b) a stenographc
mechanica, electrca or oth6r lype of recording. o.any lEnscnp on theeol
whch is€ slbslanlrally verbal m Gcita ofa statement made by the pe6on a.d
contem@.ansuslv r*oded.
2. Phoroor.ohs: Each and every pholograph in yolrpossession of subtedr to
your conl.ol, and/o. any negat ve ol any slch photograph, f€ pnnt thereofrsnot
avai able, $h .h depicts mallers elevant to this lawslrl. For lhe purposes of rhis
subpoena, the term photograph would hclude lh€ vdeo poftion of any dolioo
pictlre, video-lape, or olher recorded media.
3 Prcbaration for this d€position: Any and alldoc!nents. reporls, p6pe6,
@respondence, photographs, and memoanda, either r your possessionor
under your contrclrelatng 1o the occuren.e made the basis oilh's laclit,
p€pa€d or eviewed prjor to thE depostrion in pepaElion for this deposition.
Orivei's License: A copy or your cutrenL dnveas lrcense
5
Rebo.is ofErp6rrs: Any and alldocuments and tafgblethings, ncLudrnq all
tangible reporis, physica models. comphcalions oldata and other material
prepaEd by an expen who may be.aled as an etperl's lrial or deposil on
teslimony and anysuch malenalprepared byan €xpert used for.onsuhalion
(even rf rt was prepared n anticipaL on of litigal on of lof lnar) the @nsuri ng
expens opinions or impressrons have been €v ewed by a testitl.g expen.
Invslioator's Reoorrs: The name addesses, telephone n!hbe6, and
replris olanyp.ivate inveslgators empoyed byyou n conneclronwrlh this case.
P.rties and Witnesses: The names and add.esses oI any potentiaL panies or
w nesses that can be obtained iiom any communrcal@n orother papec In you
possess on, custodv, or conrrol
rrob lulber 7o36r b0oo4
I!11 5ik >
causE No, PR-t+016
IN THE ESTATE OF s IN COUNTY COURT
s
ARTEMIO RIOS, s
DECEASEO 5 STARR COUNTY, TEXAS
AMENDED NOTICE OF INTENTTO TAKE THE VIDEO AND/ORORAL
DEPOSITION OF HUGO ALANIZ JR.
To: HUGO ALANIZ JR,, P aintiff, by and lhrouqh her adomey of r*ord, Flor E. Flores
700 N. Flores Slreel, sle E Rio Grande cV. TeEs 74542
PLEASE TAKE NOTICE lhatlhe Vldeo and/or O€lOeposition ot HUGO ALANIZ
JR. wlLlbe t ken DuBuanl lo lhe Drcvisions or Rures 2Oo and 201 Texas RuLes of CivI
Pocedu€ at Law office of Roel Robie' Flores 3331 N Ware Rd, McA len, TeEs 78501 .
R€spond€nt in the above captloned @usewilllake the Vids and/o. o€lo€posilion of
HUGO AI.ANIZ JR,, on nd
@ntinuing day lo day unlilcomplel
llishe€by.equested thatlhe Plarntrfi, HUGo ALANIZ JR, appearinsuch timeand
placeiorthe purpose ofgiving his depos tion in thrs cause, wh ch depos tion, when taken,
may be lsed in evidenc6 du.ing the l al ot said cause and will contrnue frcm day to day
Respecttutly subm(ed,
The Fim of R@l'Robre" Flores
(956) 631-7188 office
Eha'l: @b'efl o€slaw@an.nel
srare Ba. No. 07167020
Anomey for MARIA ADRIANA FLORES
lrob Nubcr 76a6t 40005
Certificate ot Ssrvic.
I ceniry thal a true @py olthe AMENOEO NOTICE OF INTENTTO TAKE tHE
VIDEO AND/oR oRAL DEPOSITION OF HIJGo ALANIZ JR. was s€p€d on by hand
delivery, byf.6rm e, orbyemail, byc€nined mail. relurn Ecelpt Equested each.ltom€y
of r*od or party in a@rdanc6 wlth the Texas Rul6s of CMI Prccedure on the ay
Flor E. Florcs
700 N Floes st€Et Ste E
GEnde city, Texas 73532
Far 956 263.1750
Emaif flloreslas@gmail.@m
Gibeno Fal@n
ru
- Fd: (956X€7$336 .,
Emarl:enedandosa%@smd @m
"
/1-.
Hon. Roel Robie" FloEs
Aitoney ior MARIA AORIAIIA FLORES
trdb rrbef 7r!61 60006
SUBPOENADUCES TECUM TO THE OEPOSITION OF
HUGO ALANIZ JR.
(EXHta[ "A)
Th6 tem'you or'deponeft, reters to HUGoaL-ANtzJR., untess
olheMise specrled rhe lime wrlhin which maieria s are suQhl is the past len (10)
yea6. The lems'doclments 'writhgs and 're.ords' are lsed in rhis exhrb h rhei.
customary broad s6nse€nd Inctlded withoul rmitation lhefollowing tems, relardtess of
ongrn o. ocalron, whetherprlnt€d, E6rded, timed, or reprcdu.ed bya.yother
mechanrcalpo@ss ofwrinen orp.odued by hand wherherornol claned to be
pnvibged againsr dlscoveryon anyground. and whelh€. an ongina . master orcopy,
WrlttenorR€cordedSt.tcmgntof theParrvprcpoundtnothtssub@ena
popounding lhis subpoena d!c€s lecum @ncernrngthe subject maher of thts
lareuil whEh is in lhe possessDn, custody, orconlrctrhe pany b whom thts
subpoena 6 drccled (Rule 1 66b.2 g ). For the purpose of rhis feqlest , a
statement previolsy hade B (a) a wriften peMn makins ir, (b). sienogEphic.
mechanr€|. elech€lo. olher type of record nq , orany tEnscrpl on lherml
which isa substantrally vedatim recrlatofa statement made bvLhe oe6on and
6nremporaneously ecorded.
2. Photoqralhsr Each and every pholosraph in yolrpossess@n orsubjecl ro
yourcont@|, and/orany negative ol ahysu.h photogEph ta pnnt thefeof is not
ava lable, which depcls matteF .elevanr lo this tawsu . For the olrNses of this
s-bpoera. rre tem phoroq.aph *ortd n. rude.Fe r'deo Don on ol anv mol,on
pcrlre, vdeo-laoe. orolher re@rded media.
3 prepaEtion forthls d6oosition: Anyand atdocufrents, repons, pape.s,
@despondene phologEphs, and memoranda. eithe.rn youf oossesson o.
under yolr @n!rc| relatrns lo the occurenc made rhe basts oflhis awsuit
prepa Ed or €viewed pno. b lhis depos tion n preparat on lor lhis deposit on.
Driver's License: A copy ofVo!r c!rent dnvers ti@nse
R€po.ts ofExo.rts: Anyand altdocuments and tangjbte lhings. r.cludrng all
langiblereports, physi€l models,@mpticauonsordala,and othermalerial
prepared by an erpen who may be called as an experl s kiator deposirion
teslrmony. and anysuch materiat prepared by a. expe.l lsed forconsuttation
(even if it was prepar€d in anlicipaton ot ftgaUon or lor tnaD it rhe @nsuttrng
e4ens oprnons or mp€ssions have beeh r€viewed by a tesiitrng expert.
Inv€stidalo.'s Reports: The name, add16sses, letephone numbe6, and
repons or any pnvale invesligatoG employed by you In connectio. wrth lhrs €se
I Parti€s and Witn6ss€s: The names and add.esses otany porenti€tDartes or
witnesses lhat can be oblain€d iiom any communicatof or
possess on custooy, or conlrcl
rrob ,ube, ?3e6r @0dd7
+ A(a181tb
causE No. PR-14016
IN THE ESTATE OF 6 IN COUNTYCOURT
s
ARTEMIO RIOS, s
s
DECEASED s STARR COUNTY, TEXAS
IMOTION FOR CONTINUANCE
TO THE HONORABLE JIJDGE OF SAID COURT:
This MoTroN FoR CoNTTNUANCE is brought by ROEL ROSTE FLORES,
Movant, on b6half ol MARIA AORIANA FLORES. In supporl olsad motion, Mo€n(
I. Th6 case is pres€ntly sel for a hea.ing on September 1,2015, al9:00 a.m.
in SlaE Counly, Texas.
2. Movanl, co!.sel has prevrously noticed the opposing parlies in this ese,
and theylmpEpenyquash€d the deposillon, argurng lhey had b*n depose
even though they were not deposed in lhis €se- Inaddiion, deposition are
schedlled forSeptember l,2015 atS.00 6.m,10:30a.m. and 1.30 p.m.
3. Movant!motonforconlrnuance6nolsoughlsolelyfordelaybd that justice
Movant p.a/srhe co-n granl rhe roi on lorconrnuan.e be qrarled.
R6sp6.lfully submlned,
FLORES ATTORNEYS AT LAW
Toi (e5€)631-7r€3 orficd
Fax {es6) 6s1 7263 Fax
07167420
rrob Nurber r66dr 6ooor
SaEh W. Flores
stal€ Ba. No 24045340
Attom€ys for MARIA ADRIANA FLORES
CERTIFICATEIESE8!4CE
I enit ihar a ttue and @rect copy of lh€ roresoins l!!!tf:!olIoBleo!!MlA!:leE
has be€n etued by hand dolivory, by lacsimlle, or by cedlne! mall, relum r@ipl
requesled, on lhis rhe dayorAugust, 2015 on the following:
700 N Frores slre€i Sle E
Rio Gcnde City, IeEs 74532
Email;flloresla hall.@h
Far (956)4875336
EmailrEner andoga@@ghail.@m
lJob 7668t 6000!
^ub.r
STATE OF TEXAS
COUNTY OF HIDALGO
BEFORE ME, the undeFigned aurhority, petunaly appeaGd R@t " Robje" Bora
, wllo, by he duly h, deposed asto tomi
"My name is ROEL "ROB|E' FLORES, , am a ltcnEed anorney in the Slare or
Texas and I am h€reby acquainted with the facts siated In the Motion tor Coniinuan€ |
heeby state that the racrs h the Motion lor Continlan€ ae true and corect to th€ besr
sisned on Ausud/2, 201s.
ROEL 'ROBIE' FLORES
Slgn€d under oarh b€foe me
lrob Nukf 766r) 60oos
causE No, PR-1rt.016
IN THE ESTATE OF s tN colrNw
5
ARTEMIO RIOS, s
DECEASED s STARR COUNTY. TEXAS
ORDER ON MOTION FOR CONIINUANCE
,2015, rhe Louil @nsdered tle Motor torconnnLance
ol MARIA ADRIANA FLORES. Movani andordeB:thal lhis Mouon is GRANTED and tT
lsTHEREFOREOROEREDth6lrheheanng is resetfol
,20r5,
M
20r5.
JUOGE PRESIDING
.c Roel "Robi." Ftores
Fai (s56) 631,726S
Email rob efl orestaw@au.f et
700 N FtoesStE€l ste E
Rio Gr.nde City, Texas 78562
Far 956.263.1750
EFail:mo@staw@gmart @m
Far. (9s€)447-6336
Emarl.cneonandogau@gnait com
rJob Nurb-r 7663r 6ooor
CAUSE NO
IN THE ESTATE OF 5
s
ARTEMIO RIOS, 5
s
DECEASEO 5 TEXAS
MOfION FOR CONiINUANCE
TO THE HONORABLE JUDGE OF SAID COURT:
This MOTIoN FoR CONTTNUANCE is brolght by ROEL ^RoatE" FLoRES,
Movant, on behalf ot MARTA ADRTANA FIORES. In suppod ot sad mohon, Movant
L This case 6 presenuy set for a Jury Tnal hea.ing on September 3 201 5 al
9:Oo a.m.In StarCounty, Texas.
2. Movant, counselhas lssued notEes ofdeposirion for rhe followrngw ness
Stephanie Rios. Adenio Rlos, Jr . and Hugo Alanrz Jr. and are eheduted
lor Seplember 1,2015 al9.00 a.m,10130 a h. and 1:30 p.m.
3 Movanl, counsel is requesting addrhona limeto prepared fortnal.
3 Movanlsmotonforconllnuanceisnoisoughlsot€tyfordetaybdthallustce
Movanl p.als lhe @un grantthe motion lofoontinlance be granted
R6sp6ctfuily submrtted
FLORES ATTORN EYS AT LAW
Ter: (e5€) 631 7133Oflrce
Fax (s56)631-7263 Fax
BY:
Sble AarNo.07167020
Sabh W. Floros
srate Bar. No 24045340
Anorneys for MARIA AORIANA FLORES
CERIIFICATE OF SERVICE
l@nifylhai airueand corecl@pyof lh€ fofego ng MOTION FORCONNNUANCE
has b€en eNed by hand deliv€ry, by facslmie, or by certili€d mail, €turn €ceipt
Eque(ed. on rhis lhe Al day orAugusl, 2015 on the followinq:
700 N Flor6 Slr6etSle E
Rio GBnde Cay T.xas 78582
Emairfiloreslaw@ghail.6h
Ehailx€neorlandosa%@shail.com
rJdb Nurber 7313r 40003
STA]E OF TEXAS
COUNTY OF HIDALGO
BEFORE ME the undgr€igned autho.ity, peBonat/yappeaed Roei. Robie" Ftores
, wlro, bym€ duly m, deposed as folowsi
'My name is ROEL "ROBTE FLORES, I am a ti@nsed ailorney in rhe siaie of
TeB and | .m her€by acquainied $th th€ facts staled in the Moflon for Continuan@. I
hereby stale lhal th6 f6cts n th6 Motion tor continuan@ a.€ true and 6red to the b€st
Siqred on Aususl ,2015.
ROEL'ROBIE" FLORES
Sjgned under oath beto€ me
IN THE ESTATE OF
IN COUNTY COURT
5
ARTE |o RIOS, 5
DECEASED
s
5 STARR COUNTY, TEXAS
N MOTION FOR CONTINUANCE
2015. rhe coun consid€red lh€ Molron forcontrnuance
ol llrARlA ADRtAitA FLORES, MovanL and odeEi
thal rhrs Motjon is GRANTED and tT
lS IHEREFORE ORDEREDtha hehea.ing is €ser.o-
201s,
SIGNED ON
2015.
JUDGE PRESIDING
F i(956)631-726S
Email bbi€f torestawasl.,ner
70O N Flor€s StE€r Ste E
Rio cEnde Chy, Teras 7OSS2
En|ail;no.€sraw@gmait.com
Ehair:reneonandogau @qm.it @m
rJob Nubsf 76d3t odoro
Filed: 8/31/2015 10:45:48 AM
Dennis D. Gonzalez
County Clerk
Starr County, Texas
Lilly Guerrero
CAUSE NO. PR-14-016
IN THE ESTATE OF § IN THE COUNTY COURT AT LAW
§
ARTEMIO RIOS, § SITTING AS A PROBATE COURT
§
DECEASED § STARR COUNTY, TEXAS
APPLICANT’S RESPONSE & OBJECTION TO
INTERVENOR’S MOTION FOR CONTINUANCE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Applicant STEPHANIE RIOS, and files this Response and Objection to
Intervenor’s Motion for Continuance, and in support thereof will show unto this Court as follows:
I. Procedural History
On May 1, 2014, Applicant STEPHANIE RIOS filed an Application for Appointment of
Dependent Administrator in this Court under Cause No. PR-14-013, styled In the Estate of Artemio
Rios on May 1, 2014. See attached Exhibit “A.” On May 28, 2014, Applicant further filed in this
Court an Application to Determine Heirship under Cause No. PR-14-016, styled In the Estate of
Artemio Rios. See attached Exhibit “B.” Applicant STEPHANIE RIOS was Artemio Rios,
Decedent’s, biological daughter. See attached Exhibit “C.”
On August 1, 2014, Intervenor MARIA ADRIANA FLORES filed a Petition in
Intervention for Determination of Right of Inheritance and an Opposition to Application for Letters
of Administration both under Cause No. PR-14-016. See Exhibits “D” and “E.” These matter
has been set for a hearing on the following dates since Intervenor’s filing of her Petition in
Intervention: January 15, 2015; February 19, 2015; March 19, 2015; and March 26, 2015.
Applicant was prepared to proceed on the Appointment of Administrator and Determination of
Heirship, and all hearings were reset at Intervenor’s oral and/or written Motions for
Continuance, and all over Applicant’s objections.
The hearing on March 26, 2015 was set by the Court to proceed with all pending matters.
Intervenor again made a request for a reset and the Court granted said request, also over
Applicant’s objection. At that hearing, Court instructed the parties to enter into a Docket Control
Order and set the case for Trial. Applicant made attempts to confer with Intervenor’s counsel to
select a trial date and enter into a Docket Control Order. See attached Exhibits “F” and “G.”
Intervenor’s counsel never responded to said requests.
Consequently, Applicant filed a Motion for Docket Control Order on June 10, 2015 and
said motion was set for a hearing on August 20, 2015. A Docket Control Order, setting this case
for a Special Trial on September 3, 2015 at 9:00 a.m. was signed by all counsel of record and by
this Honorable Court. See attached Exhibit “H.” Said Docket Control Order dictate the deadlines
in this case.
During the time of the filing of the Intervention and the signing of the Docket Control
Order, Applicant engaged in discovery, as Applicant disputes Intervenor’s claim that she was
Decedent’s common law wife. Applicant served Intervenor with Requests for Disclosures, First
Set of Interrogatories, Requests for Admissions, and Requests for Production. See attached
Exhibit “I.” Due to Intervenor’s failure to timely respond to said discovery, Applicant filed a
Motion to Compel and for Sanctions and Intervenor was ordered to respond to the discovery by
July 30, 2015.
In her discovery responses, Intervenor for the first time identified several witnesses who
allegedly have knowledge of the common law marriage. Applicant immediately requested and by
agreement, obtained dates to depose and later deposed three witnesses and Intervenor. See
attached Exhibit “J.”
During the same period of time between the filing of her Petition in Intervention and the
signing of the Docket Control Order, Intervenor has engaged in zero (0) discovery. Now, days
before the Trial, Intervenor has attempted to Notice Depositions of Applicant and her sibling, and
a non-party. Intervenor attempts to notice depositions outside the discovery period and improperly
served the notice on the non-party. In her Motion for Continuance Intervenor alleges that “counsel
has previously noticed the opposing parties in this case, and they improperly quashed the
depositions, arguing they had been deposed even though they were not deposed in this case.”
Intervenor’s statements are incorrect as the only depositions previously quashed were those
noticed in Cause No. DC-13-971, not in PR-14-013 or PR-14-016. Applicant filed her first Motion
to Quash in this case on August 28, 2015 on the ground that said depositions were noticed after
the discovery deadline had passed but also because Intervenor failed to come to an agreement on
taking of depositions, improperly noticing the deposition of a non-party, and failing to meet the
requirements of the Texas Rules of Civil Procedure in scheduling depositions.
Prior to the above-referenced filings, Applicant STEPHANIE RIOS filed a wrongful
death suit in the 381st Judicial District Court under Cause No. DC-13-971, styled Hugo Alaniz, et
al v. Anderson Columbia, individually and on behalf of her father, ARTEMIO RIOS’ estate. The
lawsuit was filed within thirty (30) days of the death of ARTEMIO RIOS, Applicant’s father.
That case was set for trial and a continuance was granted. It was later reset, and Trial is currently
for October 19, 2015. See attached Exhibit K.” The parties in that suit have engaged in extensive
discovery, including the taking of many depositions of witnesses and experts. The parties intend
to proceed to Mediation in late September 2015, as per the last discussions between the parties’
attorneys. Intervenor MARIA ADRIANA FLORES filed an Intervention but her Intervention
was stricken upon Defendant’s Motion to Strike. Although having been in that case for almost a
year, Intervenor engaged in little to no discovery in that case and failed to participate in any of the
depositions taken to date. Any further delay before this Court will cause extreme prejudice to
Applicant, as the parties are preparing for mediation and trial in the wrongful death suit and must
dispose of the common law marriage dispute and obtain the administration of the estate of
Decedent prior to mediation and Trial in the wrongful death suit.
II. Response & Objection to a Continuance
“It is well established that the granting or denial of a motion for continuance is within the
trial court’s sound discretion.” Villegas v. Carter, 171 S.W.2d 624, 626 (Tex. 1986); State v.
Crank, 666 S.W.2d 91, 94 (Tex. 1984). “The exercise of discretion will not be disturbed on appeal
unless the record discloses a clear abuse of discretion.” Id. “It is also well established that the
failure of a litigant to diligently utilize the rules of civil procedure for discovery purposes will not
authorize the granting of a continuance.” Fritsch v. J.M. English Truck Line, Inc., 151 Tex. 168
(Tex. 1952). “A trial court will not be required to grant a motion for continuance, at the risk of
committing error in overruling it, when the allegations in the motion examined in light of the record
show beyond cavil a complete lack of diligence…” Id. at 858. “A party who does not diligently
utilize the procedures for discovery can seldom claim reversible error when the trial court refuses
a continuance.” State v. Wood Oil Distributing, Inc., 751 S.W.2d 863, 865 (Tex. 1988).
Texas Rules of Civil Procedure 247 states that “[n]o cause which has been set upon the
trial docket of the court shall be taken from the trial docket for the date set except by agreement of
the parties or for good cause upon motion and notice to the opposing party.” Tex. R. Civ. P. 247;
Tex. R. Civ. P. 251. The rules further state that “[t]he failure to obtain the deposition of any witness
residing within 100 miles of the courthouse or the county in which the suit is pending shall not be
regarded as want of diligence when diligence has been used to secure the personal attendance of
such witness under the rules of law….” Tex. R. Civ. P. 252. Rule 252 further requires that “if a
continuance is sought to depose a witness, the motion must include the following information: 1.)
the witness’s name and address (street, county, and state of residence); and 2.) a description of the
testimony the witness will probably give and what the party expects the testimony to prove. Id.
Furthermore, in Wood, Wood asked for a continuance…to take depositions of the State’s
witnesses. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863 (Tex. 1988). Wood had not conducted
discovery during the two years in which suit was pending. Id. The Supreme Court held that the
trial court did not abuse its discretion because Wood did not prove diligence. Id. The Court said
that Wood’s inability…to take the deposition of State’s witnesses was ‘a predicament of its own
making.’ Id.
Like in Wood, Intervenor’s petition was filed over a year ago. During that period of time,
Intervenor has failed to conduct any discovery. Now on the eve of trial, Intervenor attempts to
notice depositions, after the discovery deadlines have passed, and without proving any due
diligence in attempting to conduct discovery or procure depositions of the witnesses.
Moreover, Intervenor’s motion for continuance is not in substantial compliance with the
rules. Rule 252 requires that “when requesting additional time for discovery, a party must fulfill
six requirements under oath: 1.) the testimony is material; 2.) proof of materiality; 3.) show of
diligence; 4.) cause of failure, if known; 5.) evidence not available; 6.) continuance is not for delay
only but so that justice be done. Tex. R. Civ. P. 252; Verkin v. SW Cent 1, 784 S.W.2d 92 (Tex.
App. 1990). Intervenor’s counsel filed a motion for continuance and attached an affidavit to said
motion. In his affidavit, Intervenor’s counsel simply states “I am hereby acquainted with the facts
stated in the Motion for Continuance.” The motion itself states that “counsel has previously
noticed the opposing parties in this case, and they improperly quashed the depositions…” It further
states that “depositions are scheduled for September 1, 2015 at 9:00 a.m.; 10:30 a.m. and 1:30
p.m.” Applicant contends that Intervenor failed to comply with Rule 252 in that she has completely
failed to show any diligence in obtaining depositions within the year that her intervention has been
pending; has failed to completely state a cause for her failure to do so; has failed to show that
evidence was not available during that year; and has failed to show how her request for a
continuance is for anything other than to delay the case and cause prejudice to Applicant.
Intervenor has further failed to state in her motion for continuance “the type of information sought”
in the depositions she attempts to notice. Gabaldon v. General Motors Corp., 876 S.W.2d 367,
370 (Tex.App.—El Paso, 1993, no writ). Intervenor’s motion for continuance also fails to state
that the discovery period has expired.
Intervenor’s motion for continuance is devoid of any showing of due diligence in procuring
depositions of witnesses in this case. In fact, Intervenor has failed to satisfy the requirement and
describe the attempts she has made in a period of one (1) year to secure discovery of evidence.
Applicant STEPHANIE RIOS will be prejudiced with the granting of a continuance in
this case. Applicant is preparing her wrongful death suit for mediation in September 2015 and
Trial in October 2015. The delaying of this case will prevent mediation and trial to proceed in her
wrongful death suit. Intervenor has had more than sufficient time to conduct discovery and obtain
evidence to prove her alleged claim of common law and has failed to do so. Applicant has
diligently conducted discovery, secured evidence, and procured witnesses to dispute Intervenor’s
alleged claim of common law marriage to Applicant’s deceased father while Intervenor has caused
nothing but delays in these proceedings.
III. Prayer
WHEREFORE, PREMISES CONSIDERED, Applicant STEPHANIE RIOS, ask this
Court to deny Intervenor MARIA ADRIANA FLORES’ motion for continuance, and for such
other and further relief to which Applicant may be justly entitled to, in law or in equity.
Respectfully Submitted,
THE LAW FIRM OF FLOR E. FLORES, PLLC
700 N. Flores St.
Rio Grande City, Texas 78582
Tel. (956)263-1786
Fax. (956)263-1750
Email: ffloreslaw@gmail.com
BY: /S/FLOR E. FLORES
Flor E. Flores
State Bar No. 24065235
Counsel for Applicant Stephanie Rios
LAPEZE & JOHNS, PLLC
601 Sawyer Street, Ste. 650
Houston, Texas 77007
Tel: (713)739-1010
Fax: (713)739-1015
Email: chris@lapezejohns.com
BY: /S/CHRIS K. JOHNS
Chris K. Johns
State Bar No. 24002353
Co-Counsel for Applicant Stephanie Rios
CERTIFICATE OF SERVICE
I, Flor E. Flores, hereby certify that on this the 31st day of August, 2015, a true and correct copy
of the foregoing Applicant’s Response & Objection to Intervenor’s Motion for Continuance, has
been upon all parties of record in accordance with the Texas Rules of Civil Procedure.
VIA ELECTRONIC FILING
VIA EMAIL: gilberto@gilbertofalconlaw.com
Gilberto Falcon
THE LAW OFFICE OF GILBERTO FALCON, PLLC
320 Lindberg Ave.
McAllen, Texas 78501
Attorney for Intervenor
VIA ELECTRONIC FILING
VIA EMAIL: robieflores@att.net
Roel “Robie” Flores
FLORES ATTORNEYS AT LAW
3331 N. Ware Rd.
McAllen, Texas 78501
Attorney for Intervenor
VIA ELECTRONIC FILING
VIA EMAIL: garzalawoffice@aol.com
Minerva Garza
THE LAW OFFICE OF BALDEMAR GARZA & MINERVA GARZA
200 E. Second St.
Rio Grande City, Texas 78582
Attorney Ad Litem
/S/FLOR E. FLORES
FLOR E. FLORES
LBEoruro-/*
l
.AUSE No. fl '* [L/^e I DENNI$
nv'
Ai]n c0. TX
iIN'THE IIS]'A'|E O}' 6 u, couv2:$ RT
n
ARTE1WIO ruOS. E AT woF
$
Deceosed R
STA COI]NTY. TE.XAS
.A"PPI,IC.4, FOR INTMB OFD NDENT ADMI]:{IST
TO TIilE HO,NORAI]]LE JIJDGE OF COURT
coi'{Es NO\4/, STEPITANIE LEE RIOS. A icant, and files tliis A lication for
Approiirtnir:rLt o1'Depe.'rlerit Administrator of the Estate o RTEIVIIO RtrOIi, Dec ased. and for
icar-rse rrr\. fnltn*,i...
of actLon vlill show unto this CoultI rlrc r.vtrvYYlllE;.
tJ,
i
i
l^
I Appirc;ant is an individr,ral domiciled in and resid at 1830 Guadalupe S , Rio Grande
1^' , .ir
Ulty, lexas 78582, Starr County, Texas, and is acting i this matter by and tlt Lrgh heL duly
.r I
authorlzed rel)resentatir/e, Tlie applicant is the c'leceden daLrghtel and hzrs ar.r terest in the
iestate of AR.TEItdIOT R.IOS, Deceaseci.
il.
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Derre'dent die,J on November 30,2013 in Rio Gra : City, Stalr County, Te[as at the age
iof 39 yearsr, T'he decedent died inrestate. I
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This Cour:t ha.s jr.rrisdiction and veltlle is pr.oper. be .rse A|I'REMIO liiXOS lDeceased was
at the tine of deiith in CoLrnty.
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Deoedr:nt owned. property described generally as I propelty with an unkr]own value at
the time of filing this appiication.
' Decedent owned property describecl generally a rersonai propertl, ovitfr lan unknown
value ait the tirne of filing this application,
l
I
Apftlicant, on behalf of Decedent, frleci a vwoltg cleath sLrit clui.e,ntly nincling rinder
Cause No, trCl-l '.)-g71, in the 381,r J'dicial District CoL, Stalr Cor,rnty, Te>
R
1r
Wed, Apr 1,2015 at 1:56 PM
issue of a common law marriage. At the last
Order and set altrial date. I spoke with Chico
.I am getting ready to prepare the Order and
the trial may itake at lerast two days since. I
N. $lores lSt., gte, .[i
https//mqil.go4le.$om/nrail/u/0/?r.li=lgik:=6'i'00a43108&view=pt&q=in%3Asent%20gi .com &qs= true&search= query&th = I 4c765T e50... | I
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Flor iFloresi .
Cc: Nadia LA1 .:floreslawassist0l@gmail.comr
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Gilbr-'rto, Amber: I
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Oril\pril 1st, I sent both of vou an email requesting tentative tri[{ dates so we could finalize
the Docket Control
ordelrtlrerJudger instrtrctr:cl t.ts to submit in this malter. lt is novr{'l'rry ,3th and
I have not received a response
from you' I ant tequersting one last time trial dates in June tromldou'so r can get
this case scheduled, lf I don,t
reoeive a resp'onse, I willl r;urbmit a Docket control order wtho+i]your input. riirinX
I have waited tong enough.
Adpitionally, discovery responses are overdue. Please arr{vf tnis electronic correspondence to serve
Yojrr as a
forlnal request for res;ponses by no later than the end of the nu{iiress oay on rvonday,
tVtay 18, 2015. lf I do not
reoeive sqid responses, I will be filing a Motiorr for Contempt arif for Sanctions
ll
Thiink yotr for your prompt ;rttention to these matters. i
Fk>:r Ii. F'lor:cs
'l'ex'as,l'4fer Lowyers -
I\i.ring,\'tar.r 20/ j,ctncl.20/ 5
The Law fiir.rn of Filor E. Flores, PLLC
700 N. Florei; St,, Str::. Ii
Rio Grande Cin','Iexas 7B5BZ
'l'ol: (956):Zti13-1'f86
trax: (956),lfii3-1750
$,W$'. [1]oreslaur.conl
[l l o re s] :ru,@)gmar L c;o n"t
httos://mail.ooo0le-com/nrall/u/o/?rLi=!1i ift:::2/fy62431og&vie_w= nt&o= ino/nl tnf.aleonf aw nnm.tnq=trr pRcparnh=nr prrr,tlh= 1 AdAcAOaah 1 t,1
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AU6 2 0 2015
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CI.EfiK STASR CO. TX
ll
AT LAW
STARR COLINTY, TI]XAS
Iitlt zulMIiMlSERED that on ti "J day of ,2015, a docket
codtrol cr:nfen:flcer was held.
l
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A. Jury T'rifl requested: Yes
B. Deadlinp to request for jury:
C. l'his case is sr:t for'Irial qloO >-rn.
D. r\ .Pre-Trial conference is set for . (Pre-Trial Notbbook is mandatory)
E. l"he dr:a$line for filing all dispositive summary and pretrial motions by
I)efendzint (s) is _ The court will schedule a
h.earing po it,iiO rnotio* up* th" ftlirrg of ru*".
l'he dr:rabline for filing all dispositive summary r and pretrial motions by
[:'laintiff(r;) is _ The court will schedule a
hiearing prL said motions upon the fiiing.
G. 'Jlhe dr:rapline for designation of expert witnesses Defendant (s) tq' VfrT/
H. llhe deadliLne for designation of expert witnesses Plaintiff (s) is: TECP
l. llhe dea$line for completion of discovery for (s) is: TlIC P
J. llhe drlahline for completion of discovery for P ru (s) ls:
t'
m cp
t,
I\. llhe d,radline for amendment of allpleadings for
l
jDefendant (s) is:
TNC P
TnCf
I
L. llhe deadline for amendment of all pleadings for Plaintiff (s) is: ,
tvl. l.'he d,:adline to submit to mediation is Manda 0
F (S) ATTORNEY/
F/o, €- Fl,'"
s: 't K0
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/1/ F/on, 8/.
/a '?56
r, (rst 2b 3 - /75,
s) ATTORMY
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kimail - ehile I exas.oov - hr Accepted - 4663%3
# qlr
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r:,;!1tri[{ii
$ Flor Flores
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eFifeTexas.gtov ...' Iriling Accepted - 4663943
1 me$sage
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r
ttto-fignlV@pfi leterxas. g;civ < No-Reprly@efiletexas. gov> Wed, Apr 1, 2015 at 1:53 PM
To: f{f ores lairy@{lrnaril. c om
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J.tEl'lll_[ Filing Accepted
[*F' IEi{ril$.gr]rr
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l
Envelope Number: 4663943
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ThS filin$ belh:w v,rgs reviewed and has been accel by the clerk$ office. Be sure to click
thdLlin[< pelc,ur to retneve your file stamped copy of document filed.
https://mailllioogle.cdm/mailrrr"t/O/?ui::2&ik=ir700a43108&view= nt&d= pR-1r'-16Rcq=rrr pp-c n arr t 9-th- 1 A raAEl ^/^onELA^o ^t ^r- a t ^a^E r -
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CAUSE NO. PR.
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I]\ THE IIISTITTII OF I
t* THE COUNTY CO
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$
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A,RfEn/nIO RIO{i $
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I AT LAW OF
nnbnasin:u l $
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i STARR COUNTY, TE
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,F WRITTEN DISCOVT]R
I t:fltvfn$ N,OW, STIEPHANIE RIOS, Appti in the above entitled and numbered
cauEe, arnd pursuant to the lfexas Rule of Civil procedu Rule 191.4, files this First Certificate of
Srritten f,riscovely and certifies that on this 26th day ,
March 2015, Applicant forwarded the
n rr I
tollciwrng to opposiing counsel.
l
I. .Afotrtlicnnt's Rule 194 Requestfor to Intervenor; and
2:.. First Set oJ'Interrog
.Aptrtlticunt's
for Adtnissions, and Requests
,fQr Production to Intervenor.
Respectful submitted,
Ttre Law RM oF FIon B. FIonns. PLLC
700 N. Flo St., Ste, E
Rio Gr ity, Texas 18582
Tel: (956) 3-r786
Fax: (956) 3-r750
Email: tt] (
Flor
State No.24065235
Attot for Applicant Stephanie Rios
Cause No. PR-1II-16; In the ll,state of Artenio Rios. Deceased
Aprurcawr's lirnsl. rlEn.nrrcATE oF WRrfinN Drscoveny
1t
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I, Irlor Flores, hereby certiSr that on this the tn
day pf March,, 2015, a true and correct
of 's First CetiJicate of Written Disco werp served unto all parties of record,
th the Texas Rules of Civil Procedure:
ONI
ILBERTO FALCOI'I.
Maria Adriana Fl.ores
E. Flores
-14-16; Ilt the Estate of Artemio Rios, Deceasetl
Page2 of2
Irrnsr CrinrmrcerE or WRrrrEN DrscovERy
Gmail - eFileTexas.oov -Fili - 6306743
lAccepted
I
I
Flor Flores
I
I
i-*'-
I
I
I
Fri, Jul 31, 2015 at 2:42 PM
HFlll"[ Filing Accepted
TEHlffi,grlrr' Envelope Number: 6306743
berlow wQs reviewc.d and has been accel by the clerks office. Be sure to click
llour to retrieve your file stamped copy of document filed.
Flor Flores
Fri, Jul 31, 2015 at 2:44 pM
filllllJ Filing Accepted
qTn}fr,*$.ffw
THHfi$. Envelope Number: 690731S
g filini beforrv wds rerviewed and has been accept by the clerks office. Be sure to click
ri link pelory to relrieve your file stamped copy
of tl document filed.
hffnq'//maillnmfonhm/mailf /..lli- dgjt.-^1 n^reinog'i^..,_^rea_Fr 4t 4^o_^_L-,,^o--_--
Gmail - eFileTexas.gov - Accepted - 6307396
Flor Flores
r';{ rn x rl{L
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eFilbTe
1 mgssage
s.99v .: Nlo-Reply@efiletexas. gov>
Fri, Jul 31, 2015 at 2:52 pM
Lcofn
Filing Accepted
Envelope Number: 6307396
ow!/qs rr;'viewed and has been accep by the clerks office, Be sure to click
v to rqtrierve your file stamped copy oi. document filed.
m/rnail/]r-r,t0l?ui,=2&i k= a700a431 Og&view= ot&o= nr-,t4_ 1 68.os=rrr rarv 2lh= 4 A aaEo Aefrriffe^? g * _. E" r^
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-
Gmail - eFileTexas.gov - - 6307474
Flor Flores
lit
eFil .-IFif iing Accepted - 6307474
1me
Fri, ,Jul 31, 2015 at 2:50 PM
Filing Accepted
ll$,-$*tt" Envelope Number: 6307474
w wqs reviewed and has been accel by the clerkS office. Be sure to click
to retrieve your file stamped copy of document fildd.
I
lll, l
l*^- 'rt- ,"",
^ii ^ ^i* ,* ^
it t,,t^t^, .l-4oit.--?,ta- ,^r na 6. .: ^
Flled: 2/1 /2O15 '| :01:01 PM
Eloy R. Garcia, District Clerk
Stan County, Texas
Brendaly GuerreroFiled: 8/31/2015 10:45:48 AM
CAUSE NO. DC-13-971 Dennis D. Gonzalez
County Clerk
HUGO ALANIA JR., STEPHANTE RrOS $ rN THE DTSTRTCT COURT Starr County, Texas
And ARTEMIO RIOS, JR,Individually $and Lilly Guerrero
On Behalf of the Estate of ARTEMIO RIOS, S
Plaintffi, S
s
And $
s
JOANN GONZALEZ, and S
RAMES GONZALEZ, S
$
AND $ 381't JUDICIAL DISTRTCT
$
MARHMAGDALENAFLORES,ASNEXT $
FRIEND OX'AMY DEL CARMEN RrOS, A $
MINOR CHILD S
Intervenor-Plaintilfs $
$
Y.$
$
ANDERSON COLIMBIA COMPAIYY,INC" $
$
Defendant $ srARR COITNTY, TEXAS
AGREED AMENDED DOCKET CONTROL ORDER
Feb.
BE IT REMEMBERED THAT' ON 2nd DAY OF Jamuy, 2015, counsels for
Plaintiffs, Interuenors, and Defendan! appeared and agleed, and the Court entered the following
order:
1. Jury selection-Trial: Octoberl9' 2015 at 9:00 a.m.
2. Desiguation of ExPerts:
a) Plaintiffs/lntervenors: May 8,2015
b) Defendant: June 15,2015
3. Discovery Deadlines:
a) Plaintiffs/Intervenors: September 18' 2015
b) Defendant: September 18,2015
Seot.
4. DaubertlRobinson Hearings (if needed), ffist -\2015 at 9:00 a.m.
a) Amerndment of Pleadings (Plaintiff): May 1l 10, 2015
tr) Amendment of Pleadings (Defendant): July 6,2015
Itinal Pre-Trial conference Pursuant to T.RC.P. # 166z october 7 , 20ls
art 9:00 e'.m.
l\ll Motirrns in limine shall be filed and heard at final pretrial.
llrial Nolebooks are due two (2) weeks before Final Pre-Trial Conference.
llrial Notebooks shall be incompliance with T.R.C.P. 166, including special issues.
SIGITED AND ORDERED ON THIS 2 d^y o1 Feb. 2015.
Luis Garza
Keith W.lapeze
State Bar No. 24010176
Taylor Shiprnan
State Bar No. 24079323
Christopher,K. Johnsr
State Bar No. 240021353
LAPEZTI & IOHNS, P.L.L.C.
601 Sawyer Street, Suite 650
Houston' TX:"77007
Phone: ('713) 739-1010
Fax: (713) 7'39-l0li'
tay lor@ lqp4qhrm. cronn
keith@lapezej ohns. com
christopher@lapezej,ohns. com
C ouns e I .for P I ai nt iff' / Interv enor
01/30/2015 EF1'l Ft{H S582631?50 Law Firm of E 0002/0002
rt) Amendment of Fleadings (Plainriff): M il 10,20t5
b) Arnendment of Pleadiugt (Defendant): Ju 6,2015
l'inal Pre-l'rial Conference Pursuant to 1'.R,C.P # 166: October _r 201s
at 9;00 s.m.
All Motions in liminp shall be filed and heard at pretrial.
Trial Notebooks are due rwo (Z) weeks before Final Trisl Cqnference,
I
TrialNotebooks shall be incompliance with T,R.C, I 66, incljuding special tssues,
SIGNED AND ORI}ERED ON THI$ 20r5.
Jose Luis Garza
38lst Dlstrlct Ju
Kei W;Lapeze
Staie N0.24010176 No. 24065235
Sfipman THE W FIRM OF fLOR E. FLORES,
No. 240?9323 700 N. lores $treet, Suite E
K. Johns Rio Ciry,,Texas 78582
Sti i No, 24002353 Phone: (956) 263- I 786
LI & JOIINS, P,L-I,.C. Fax: ( ) 253- 1;7s0
60 i,er Street, Suire 650 fllsr
I TX 77007 Jbr PlaintilJs
(713) 73e..r010
F ls) 739-10r5
LO_rn
kei sJ0npurg..9a
t! ohns.oom
C lM Plaintiff / Intervenor
L. Ramirez
BarNo.16506200
RAMIREZ LAW FIRM, PLLC
Hackberry Ave.
TX 78501
: (956) 668-8t00
(956) 668-8101
for Intervenor
tr\
No.21648500
Braich
N0.24033198
P. Geer
No.00786389
Williams
State No.24070854
1044 N. Central Exprcssway, Suite 520
Dalla Texas 7523 I
Qt4)736-9433
t4)736-9994
for Defendant