in the Estate of Consuella Perkins Ulbrich

Opinion

ACCEPTED 04-14-00812-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 12/29/2014 3:58:55 PM KEITH HOTTLE CLERK

04-14-00812-CV

IN THE COURT OF APPEALS FOR FILED IN 4th COURT OF APPEALS THE FOURTH DISTRICT OF TEXAS SAN ANTONIO, TEXAS SITTING AT SAN ANTONIO 12/29/2014 3:58:55 PM KEITH E. HOTTLE Clerk IN THE ESTATE OF CONSUELA PERKINS ULBRICH

_________________________________________________________________ On appeal from Probate Court No. One, Bexar County, Texas Honorable Polly Jackson Spencer, presiding

APPELLANTS' MOTION FOR TEMPORARY ORDER STAYING ENFORCEMENT OF THE SUMMARY JUDGMENT

TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS:

Now comes, Douglas Ulbrich (“Movant”), and files this motion for

temporary order staying enforcement of the summary judgment pursuant to TRAP

Rule 24 as required to suspend the summary judgment entered on November 5,

2014, and in support of his motion he would show:

1 On November 5, 2014, the Court entered an Order Granting Motion for

Summary Judgment - Docket seq. 44, vol. 2144, page 1963, 2 pages, including

findings that Movant, who is the surviving spouse, is not entitled to his claim to

set aside his 160 acre ranch as his probate homestead for his use and benefit.

1 2 Movant filed a notice of appeal from the Summary Judgment in Cause No.

2011-PC-0686 on November 21, 2014.

3 On December 18, 2014, the trial court announced that it intended to sign an

order appointing three special commissioners to determine whether Movant's rural

homestead, which he claims as his probate homestead, can be partitioned in kind.

The Court also announced that it intended to sign an order on December 29, 2014

requiring Movant to turn over keys to his ranch to his adult step-children, who

claim a right to use and enjoyment of the Estate's 25% undivided interest.

4 Movant respectfully submits that the imminent threat of interference with

his rights to the exclusive use and enjoyment of his probate homestead requires

intervention by this Court in order to avoid irreparable harm and injury, which

would occur if Movant's adult step-children are allowed to interfere with his

constitutional right to the use and enjoyment of his rural homestead pending a

decision on appeal.

5 To wit, Movant reasonably anticipates that his adult step-children will

attempt to enter upon the subject property, which Movant claims as his rural

homestead, sell his livestock, hunt his game including exotic Axis deer, enter into

leases, and generally cause him financial loss and undue mental and emotional

distress and anxiety by interfering with his exclusive use and benefit of his 2 homestead pending a ruling by this Court as to his probate homestead claim.

6 Movant submits that the Court can issue any temporary orders necessary to

preserve the parties' rights pending its determination of the Movant's appeal

pursuant to TRAP Rule 24.4(c).

7 This request for a stay of enforcement of the judgment is necessary to

maintain the status quo of the parties and to preserve the Court's jurisdiction to

consider the merits of the Movant's appeal. A stay of enforcement of the judgment

is also necessary to avoid a waste of judicial resources on a meaningless

proceeding as a result of Appellee's enforcement of the summary judgment

including the partition and sale of Movant's probate homestead pending appeal.

Therefore, Movant submits that a stay is necessary in order to prevent the

infringement and/or loss of Movant's substantive and procedural rights, which are

the subject of this appeal.

CONCLUSION AND PRAYER

WHEREFORE, Movant respectfully request the Court to grant a temporary

order staying enforcement of the Summary Judgment in order to maintain the

status quo pending a final decision on the appeal. Movant also request such

further relief to which he may be justly entitled.

3 Respectfully submitted,

/s/ Philip M. Ross Philip M. Ross State Bar No. 17304200 1006 Holbrook Road San Antonio, Texas 78218 Phone: 210/326-2100 Email: ross_law@hotmail.com ATTORNEY FOR APPELLANT DOUGLAS ULBRICH

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been e-filed and served on December 29, 2014 by email pursuant to agreement to Kristine Arlitt and William Bailey.

/s/ Philip M. Ross Philip M. Ross