in Re David W. Warren, Beneficiary of the David Abraham Weiner 1994 Trust

• Court: Court of Appeals of Texas
• Decided: April 29, 2015
• Docket: 01-15-00400-CV
• Status: Published

Opinion

01-15-00400-CV No. ________________

IN RE DAVID WARREN, § IN THE FIRST FILED IN Relator. § 1st COURT OF APPEALS HOUSTON, TEXAS § 4/29/2015 2:33:25 PM § COURT OF APPEALS CHRISTOPHER A. PRINE § Clerk § § HOUSTON, TEXAS

RELATOR’S MOTION FOR EMERGENCY STAY Relator asks the Court for an emergency stay on the trial court proceedings.

A. INTRODUCTION 1. Relator is David W. Warren, the Real Party in Interest is Andy I. Weiner,

and the Respondent is the Honorable Christine Butts.

2. Relator files his Petition for Writ of Mandamus concurrently with this

Motion for Emergency Stay.

3. Relator attaches a certificate of compliance certifying that on April 29,

2015, he notified Respondent and Real Party in Interest by fax and email that a

motion for temporary relief would be filed. (Tex. R. App. P. 52.10(a)).

4. On March 10, 2015 Relator nonsuited his case and on March 16, 2015

Respondent signed his order of dismissal.

5. Because Relator was the sole petitioner in the case, his dismissal should

have summarily ended the case. Greenberg v. Brookshire, 640 S.W.2d 870, 872

(Tex. 1982). Nonetheless, Respondent has allowed the Real Party in Interest to

1 join Relator in a Counter and Cross-Petition filed after Relator nonsuited his

case and after she signed his Order of Dismissal. Trial of this case is set for July

6, 2015.

6. Relator has filed a Petition for Writ of Mandamus contemporaneously with

this Motion for Emergency Stay asking the Appeal Court to compel the

Respondent to proceed no further in this case.

7. Relator’s Petition for Writ of Mandamus raises serious questions about

Respondent’s jurisdiction to rule on matters pertaining to a nonsuited case after

her plenary power has expired.

8. Respondent continues to hear discovery matters pending at the time

Relator nonsuited his case, including a dispute over a discovery subpoena

served on Rice University to produce Relator’s confidential education records

protected by the Family Educational Rights and Privacy Act of 1974 (FERPA).

9. Respondent has physical possession of the records in camera and has

determined that they should be released.

10. Accordingly, Relator is in imminent danger that his privacy rights under

FERPA will be violated without a stay on the proceedings in this case. Absent a

stay, he will not be able to cure Respondent’s discovery errors.

B. ARGUMENT & AUTHORITIES

11. The Court may grant temporary relief pending its determination of an

2 original proceeding. (Tex. R. App. P. 52.10(b)).

12. This emergency stay is necessary to maintain the status quo of the parties

and to preserve the Appeal Court’s jurisdiction to consider the merits of the

original proceeding. In re Reed, 901 S.W.2d 604, 609 (Tex. App.—San Antonio

1995, orig. proceeding).

C. CONCLUSION 13. Relator requests an emergency stay on the trial court proceedings to

prevent the violation of his privacy rights under FERPA and to prevent

Respondent from making further rulings in this case if it is ultimately

determined that she lacks jurisdiction over this case.

D. PRAYER 14. For the reasons stated in this motion, Relator asks the Court for an

emergency stay to maintain the status quo of the parties and preserve the

Court’s jurisdiction to consider the merits of Relator’s original proceeding.

Respectfully submitted, Cantrell & Cantrell, PLLC /s/ Carol A. Cantrell Carol A. Cantrell State Bar No. 24043592 3700 Buffalo Speedway, Ste. 520 Houston, Texas 77098 (713) 333-0555 (713) 333-0550 (facsimile) ATTORNEY FOR RELATOR

3 CERTIFICATE OF CONFERENCE I certify that I have conferred with counsel for the Real Party in Interest and

counsel for Katherine Warren by email and I have also conferred with

Respondent’s associate judge by email and have attempted in good faith to

reach an agreement about the motion to stay. We have been unable to reach an

agreement because the Real Party in Interest and the Respondent wish to

continue the trial court proceedings.

/s/ Carol A. Cantrell Attorney for Relator

CERTIFICATE OF SERVICE

I certify that a copy of Relator’s Motion for Emergency Stay was served on the

parties below by electronic service on April 29, 2015.

Sarah Patel Pacheco Thomas R. Conner Kathleen Tanner Beduze Conner & Lindamood, P.C. Crain Caton & James 1221 Lamar, Suite 1010 Five Houston Center, Houston, TX 77010 1401 McKinney, 17th Floor tom@lawcl.com Houston, TX 77010 713-654-8115 (facsimile) pacheco-efile@craincaton.com ATTORNEY FOR KATHERINE R. 713-658-1921 (facsimile) WARREN ATTORNEY FOR ANDY WEINER

I certify that a copy of Relator’s Motion for Emergency Stay was served on

Respondent Christine Butts by hand delivery on April 29, 2015 to the following

4 address.

The Honorable Christine Butts Probate Court No. 4, Harris County 201 Caroline St., 7th Floor Houston, Texas 77002 Tel: 713-368-6767

CERTIFICATE OF COMPLIANCE Under Texas Rule of Appellate Procedure 52.10(a), I certify that on April 29,

2015 I notified all parties to the original proceeding by email and fax that a

motion for temporary relief would be filed.

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