in Re FH Partners, LLC

• Court: Court of Appeals of Texas
• Decided: January 20, 2015
• Docket: 14-15-00003-CV
• Status: Published

Opinion

ACCEPTED 14-15-00003-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 1/20/2015 3:14:04 PM CHRISTOPHER PRINE CLERK

No. 14-15-00003-CV

IN THE COURT OF APPEALS OF TEXAS FILED IN 14th COURT OF APPEALS FOURTEENTH DISTRICT HOUSTON, TEXAS 1/20/2015 3:14:04 PM HOUSTON CHRISTOPHER A. PRINE Clerk IN RE: FH PARTNERS, LLC, Relator

Petition for Writ of Mandamus from the 113th District Court Trial Court Cause No. 2008-60397 the Honorable Michael Landrum presiding

__________________________________________________________________

GUS H. COMISKEY III’s RESPONSE TO RELATOR’S MOTION TO STAY PROCEEDINGS IN TRIAL COURT __________________________________________________________________

John H. McFarland Texas State Bar No. 00794270 Direct Dial: 713.222.1114 jmcfarland@jmmllp.com JOYCE, MCFARLAND + MCFARLAND LLP 712 Main Street, Suite 1500 Houston, Texas 77002 Facsimile: 713.513.5577

ATTORNEYS FOR REAL PARTY IN INTEREST GUS H. COMISKEY III A/K/A TREY COMISKEY RESPONSE TO RELATOR’S MOTION TO STAY PROCEEDINGS IN TRIAL COURT

Real Party in Interest Gus H. Comiskey III aka Trey Comiskey

requests that the Court deny the motion for stay filed by Relator FH

Partners, LLC. Rule 52.10 of the Texas Rules of Appellate Procedure

controls:

(a) Motion for Temporary Relief; Certificate of Compliance. The relator may file a motion to stay any underlying proceedings or for any other temporary relief pending the court's action on the petition. The relator must notify or make a diligent effort to notify all parties by expedited means (such as by telephone or fax) that a motion for temporary relief has been or will be filed and must certify to the court that the relator has complied with this paragraph before temporary relief will be granted.

(b) Grant of Temporary Relief. The court--on motion of any party or on its own initiative--may without notice grant any just relief pending the court's action on the petition. As a condition of granting temporary relief, the court may require a bond to protect the parties who will be affected by the relief. Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided.

These sorts of motions are routinely granted. But FH’s petition for

mandamus addresses an order the trial court entered on September 29,

2014. FH waited over three months to challenge the order. Further, the trial

court set trial for March 30, 2015. A stay would necessarily delay trial of this

2 almost seven year-old case. The Court should not permit FH to delay trial

by delaying its challenge to the trial court’s September 29, 2014 order.

Further, Comiskey incorporates the arguments presented by their

response to the Amended Petition for Mandamus. The Court should deny

FH’s motion as moot.

PRAYER

WHEREFORE, Real Party in Interest Gus H. Comiskey III aka Trey

Comiskey request that the Court deny the motion for stay filed by Relator

FH Partners, LLC.

Respectfully submitted,

JOYCE, MCFARLAND + MCFARLAND LLP

/s/ John H. McFarland John H. McFarland Texas State Bar No. 00794270 Direct Dial: 713.222.1114 jmcfarland@jmmllp.com 712 Main Street, Suite 1500 Houston, Texas 77002 Telephone: 713.222.1112 Facsimile: 713.513.5577

ATTORNEYS FOR REAL PARTIES IN INTEREST GUS H. COMISKEY III A/K/A TREY COMISKEY 3 CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing document has been forwarded in the manner indicated, as prescribed by the Texas Rules of Appellate Procedure, on January 20, 2015, to:

R. Scott Williams Law Offices of Scott Williams 6150 Richmond Avenue, Suite 118 Houston, Texas 77057 Phone: 713.785.0000 Fax: 713.785.0078 Email: rswillatty@aol.com

/s/ John H. McFarland John H. McFarland