in Re Kenneth Vern Gibbs and Candace Gibbs Walton

Court of Appeals of Texas

in Re Kenneth Vern Gibbs and Candace Gibbs Walton

DecidedJanuary 12, 2015

Docket06-15-00002-CV

StatusPublished

This text of in Re Kenneth Vern Gibbs and Candace Gibbs Walton (in Re Kenneth Vern Gibbs and Candace Gibbs Walton) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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in Re Kenneth Vern Gibbs and Candace Gibbs Walton, (Tex. Ct. App. 2015).

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ACCEPTED 06-15-00002-CV SIXTH COURT OF APPEALS 06-15-00002-CV TEXARKANA, TEXAS 1/12/2015 4:29:33 PM DEBBIE AUTREY CLERK No. ___________________

______________________________________________________________________________ FILED IN IN THE COURT OF APPEALS FOR THE 6th COURT OF APPEALS TEXARKANA, TEXAS SIXTH DISTRICT OF TEXAS 1/12/2015 4:29:33 PM AT TEXARKANA DEBBIE AUTREY _____________________________________________________________________________ Clerk

IN RE KENNETH VERN GIBBS, CANDACE GIBBS WALTON

Defendants / Relators, Cause no. CV-14-41665

HONORABLE LAURINE J. BLAKE, The 336th Judicial District Court

Respondent, and Fannin County, Texas

PENTEX FOUNDATION and JOSHUA UNGER, TRUSTEE of GBU FRIENDS AND ASSOCIATES TRUST

Plaintiffs and Real Parties in Interest.

RELATORS’ MOTION FOR EMERGENCY STAY

ROBERT G. HOGUE, P.C. 4514 Cole Avenue, Suite 600 Dallas, Texas 75205-4193 Phone: (214) 559-7107 Fax: (214) 559-7101 Email: robhogue@msn.com

LAW OFFICES OF CHRISTY LEE, P.C. 777 Main Street, Suite 600 Fort Worth, Texas 76102 Telephone: (817) 504-6075 Telecopier: (800) 437-7901 Email: clee@christyleelaw.com

ATTORNEYS FOR RELATORS / DEFENDANTS KENNETH VERN GIBBS AND CANDACE GIBBS WALTON JANUARY 12, 2015 TO THE HONORABLE SIXTH COURT OF APPEALS, AT TEXARKANA:

Pursuant to Texas Rule of Appellate Procedure 52.10, Relators / Defendants

Kenneth Vern Gibbs and Candace Gibbs Walton file this Motion for Emergency Stay

in connection with their pending Petition for Writ of Mandamus, and in support

would show the following:

1. This is a lawsuit for alleged breach of a realty and mineral rights

contract. The Relators / Defendants sought transfer of venue by motion, on grounds

of proper venue in Tarrant County rather than Fannin County. After a hearing on

the Relators’ motion to transfer, the Fannin County trial court, Honorable Laurine J.

Blake, Respondent, granted the motion to transfer venue and ordered the case

transferred to Tarrant County by Order signed on September 30, 2014. See

Attachment A. The trial court then held a hearing on the Plaintiff and Intervener’s

motion to reconsider the transfer, and on November 21, 2014 — more than 30 days

after signing of the September 30, 2014 transfer Order — signed an “Order on

Motion to Reconsider Order to Transfer Venue” [see Attachment B], which

purported to vacate the September 30 transfer Order and retain venue in Fannin

County.

2. Because the Respondent’s November 21, 2014 “Order on Motion to

Reconsider Order to Transfer Venue” was signed after the trial court lost plenary

jurisdiction on October 30, 2014 (i.e., thirty days after signing of the original transfer

Order), the reconsideration Order is void. See In re Chester, 309 S.W.3d 713, 719

(Tex. App.—Houston [14th Dist.] 2010, original proceeding) (“The trial court abused -2- its discretion by vacating its September 30, 2014 transfer order after its plenary

power had expired. The trial court's September 30, 2009 order is void.”).1 Due to

the reconsideration Order being void, the Relators need not show lack of adequate

remedy on appeal. See id. at 715 (“When an order is void, the relator need not show

that it did not have an adequate appellate remedy, and mandamus relief is

appropriate. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig.

proceeding) (per curiam)”).

3. The Court of Appeals may grant temporary relief pending its

determination of an original proceeding. TEX. R. APP. P. 52.10(b); see also In re

Lumbermens Mut. Cas. Co., 184 S.W.3d 729, 730 (Tex. 2006) (orig. proceeding).

In the present case, a stay of all litigation events and discovery relating to the

Plaintiffs’ case is necessary to maintain the status quo, avoid waste of judicial and

party resources, ensure compliance with mandatory elements of the Texas Rules of

Civil Procedure,2 and preserve the transferee Court’s jurisdiction to consider the

merits of the case. In re Lumbermens, 184 S.W.3d at 729; see also In re Reed, 901

S.W.2d 604, 609 (Tex. App.–San Antonio 1995, orig. proceeding).

1 A motion to reconsider an order transferring venue does not extend the trial court’s plenary power beyond thirty days. See id. at 716-19 (citing In re Darling Homes, No. 05-05-00497- CV, 2005 WL 1390378 (Tex. App.—Dallas June 14, 2005, orig. proceeding).

2 See TEX. R. CIV. P. 87 (“The determination of a motion to transfer venue shall be made promptly by the court”) and TEX. R. CIV. P. 89 (“If a motion to transfer venue is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the proper court; and the costs incurred prior to the time such suit is filed in the court to which said cause is transferred shall be taxed against the plaintiff. The clerk shall make up a transcript of all the orders made in said cause, certifying thereto officially under the seal of the court, and send it with the original papers in the cause to the clerk of the court to which the venue has been -3- 4. Nor do the Relators need to show prejudice or negate laches in order to

obtain mandamus relief. See In re Chester, 309 S.W.3d at 718 (“laches is not

applicable when the order subject to the mandamus proceeding is void”) citing

Zimmerman v. Ottis, 941 S.W.2d 259, 262 (Tex. App. —Corpus Christi 1996, orig.

proceeding) (“Since mandamus relief in the present case is premised on the entry of a

void order, it would not serve the interests of justice or those of the parties to invoke

laches as an excuse to ignore that order, and thus to allow the parties to expend

further time and effort in connection with a lawsuit that must ultimately be dismissed

by the [trial] court or reversed on appeal for want of jurisdiction.”). However, even if

a prejudice showing were required, the Relators would meet it in that absent

emergency and mandamus relief, the Relators (as well as the Real Parties in Interest)

will have to engage in discovery and prepare for trial in a trial court that lacks

jurisdiction. See id.

5. The Relators attach a certificate of compliance certifying that on

January 5, 2015, their counsel notified the Respondent and the Plaintiffs / Real

Parties in Interest by correspondence that a motion for temporary relief would be

filed. TEX. R. APP. P. 52.10(a). See Attachment C.

6. Accordingly, in order to avoid waste of judicial and party resources in a

trial court that has lost jurisdiction, the Court of Appeals should issue a temporary

order staying all proceedings and discovery in the Fannin County trial court pending

resolution of the Relators’ Petition for Writ of Mandamus.

changed.”) [emphases supplied] -4- WHEREFORE, PREMISES CONSIDERED, Relators request that this Motion for

Emergency Stay be granted, and that the Court enter an Order staying all discovery,

hearing, litigation, and pre-trial and trial scheduling matters in this case pending

further order of the Court of Appeals.

Respectfully submitted,

ROBERT G. HOGUE, P.C.

By: s/ Robert G. Hogue Robert G. Hogue State Bar No. 09811050

4514 Cole Avenue, Suite 600 Dallas, Texas 75205-4193 Phone: (214) 559-7107 Fax: (214) 559-7101

LAW OFFICES OF CHRISTY LEE, P.C.

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