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

Opinion

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.

1 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).

2 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

3 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

4 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.”

5 ~ Carol A. Cantrell Attorney for Relator

Sworn to and subscribed before me by Carol A. Cantrell on May 26, 2015.

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