in Re Daniel W. Warren, Beneficiary of the Daniel Steven Weiner 1996 Trust ( 2015 )

No. ________________
FILED IN
1st COURT OF APPEALS
IN RE DANIEL W. WARREN, § IN THE FIRST HOUSTON, TEXAS
Relator. § 5/26/2015 11:29:49 AM
CHRISTOPHER A. PRINE
§ Clerk
§ COURT OF APPEALS
§
§
§ HOUSTON, TEXAS
RELATOR’S MOTION FOR EMERGENCY STAY
Relator asks the Court for an emergency stay on the trial court proceedings.
A. INTRODUCTION
1. Relator is Daniel W. Warren, the Real Party in Interest is Andy I. Weiner,
and the Respondent is the Honorable Christine Butts.
2. Relator files his Petition for Writ of Mandamus concurrently with this
Motion for Emergency Stay, which raises serious questions about Respondent’s
jurisdiction over this case and authority to proceed after her plenary power over
the case expired.
3. Relator attaches a certificate of compliance certifying that on May 26,
2015, he notified Respondent and Real Party in Interest by email that a motion
for temporary relief would be filed. (Tex. R. App. P. 52.10(a)).
4. On March 10, 2015 Relator nonsuited his case and on March 16, 2015
Respondent signed his order of dismissal.
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5. At the time of his nonsuit, Relator was the sole petitioner in the case and
the Real Party in Interest was the sole respondent in the case. Accordingly,
Relator had an absolute right to nonsuit his entire case and end the controversy
under the holding of Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex.
1982).
6. Nonetheless, Respondent has continued the case and made rulings
pertaining to a Counter and Cross-Petition filed in the same case after Relator
nonsuited his case and after she signed his Order of Dismissal, contrary to the
holding of Greenberg v. Brookshire.
7. Trial of this case is set for July 6, 2015. If this case goes to trial, Relator’s
absolute right to nonsuit his case will be gone forever.
8. Accordingly, Relator requests a stay of the trial court proceedings pending
resolution of his Petition for Writ of Mandamus.
B. ARGUMENT & AUTHORITIES
9. The Court may grant temporary relief pending its determination of an
original proceeding. (Tex. R. App. P. 52.10(b)).
10. This emergency stay is necessary to maintain the status quo of the parties
and to preserve the Appeal Court’s jurisdiction to consider the merits of the
original proceeding. In re Reed, 901 S.W.2d 604, 609 (Tex. App.—San Antonio
1995, orig. proceeding).
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C. CONCLUSION
11. Relator requests an emergency stay on the trial court proceedings to
prevent Respondent from proceeding with this case if it is ultimately
determined that she lacks jurisdiction over it.
D. PRAYER
12. For the reasons stated in this motion, Relator asks the Court for an
emergency stay of the trial court proceedings to maintain the status quo of the
parties and preserve the Court’s jurisdiction to consider the merits of Relator’s
original proceeding.
Respectfully submitted,
Cantrell & Cantrell, PLLC
/s/ Carol A. Cantrell
Carol A. Cantrell
State Bar No. 24043592
3700 Buffalo Speedway, Ste. 520
Houston, Texas 77098
(713) 333-0555
(713) 333-0550 (facsimile)
ATTORNEY FOR RELATOR
CERTIFICATE OF CONFERENCE
I certify that I conferred with counsel for the Real Party in Interest, counsel for
Katherine Warren, and Respondent’s Associate Judge and attempted to reach an
agreement about the trial court proceeding after Daniel’s nonsuit. We have been
unable to reach an agreement because the Real Party in Interest and the
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Respondent wish to continue the trial court proceedings in this case.
/s/ Carol A. Cantrell
Attorney for Relator
CERTIFICATE OF SERVICE
I certify that a copy of Relator’s Motion for Emergency Stay was served on the
parties below by electronic service on May 26, 2015.
Sarah Patel Pacheco Thomas R. Conner
Kathleen Tanner Beduze Conner & Lindamood, P.C.
Crain Caton & James 1221 Lamar, Suite 1010
Five Houston Center, Houston, TX 77010
1401 McKinney, 17th Floor tom@lawcl.com
Houston, TX 77010 713-654-8115 (facsimile)
pacheco-efile@craincaton.com ATTORNEY FOR KATHERINE R.
713-658-1921 (facsimile) WARREN
ATTORNEY FOR ANDY
WEINER
I certify that a copy of Relator’s Motion for Emergency Stay was served on
Respondent Christine Butts by fax and certified mail on May 26, 2015 to the
following address.
The Honorable Christine Butts
Probate Court No. 4, Harris County
201 Caroline St., 7th Floor
Houston, Texas 77002
Tel: 713-368-6767
Fax: 713-368-7171
/s/ Carol A. Cantrell
Attorney for Relator
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CERTIFICATE OF COMPLIANCE
Under Texas Rule of Appellate Procedure 52.10(a), I certify that on May 26,
2015 I notified all parties to the original proceeding by fax and email that a
motion for temporary relief would be filed.
/s/ Carol A. Cantrell
Attorney for Relator
STATE OF TEXAS §
HARRIS COUNTY §
VERIFICATION
Before me, the undersigned notary, on this day personally appeared Carol A.
Cantrell, the affiant, a person whose identity is known to me. After I
administered an oath, affiant testified as follows:
1. “My name is Carol A. Cantrell. I am over 18 years of age, of sound mind,
and capable of making this verification. The facts in this verification are within
my personal knowledge and are true and correct.
2. I am the attorney for Relator. All the documents included with the Motion
for Emergency Stay are true copies.”
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~
Carol A. Cantrell
Attorney for Relator
Sworn to and subscribed before me by Carol A. Cantrell on May 26, 2015.
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