ACCEPTED 04-15-00555-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 11/17/2015 7:51:52 PM KEITH HOTTLE CLERK
No. 04-15-00555-CV
In the Fourth Court of Appeals at San Antonio ____________________ Shirley Hale Mathis, permanent guardian of the estate of Carlos Y. Benavides Jr., Appellant, vs. Leticia R. Benavides, Appellee.
____________________ From the 49th District Court of Webb County Cause No. 2012-CVQ-000161-D3A & 2015-CVQ-003089-D1
Appellant’s Emergency Motion to Stop Imminent Release of Supersedeas Deposit
Baldemar Garcia Jr. State Bar No. 00790740 PWBM, LLP 602 East Calton Road, 2nd Floor (78041) P. O. Drawer 6668 (78042) Laredo, Texas voice 956.727.4441 facsimile 956.727.2696 counsel for appellant Shirley Hale Mathis, permanent guardian of the estate of Carlos Y. Benavides Jr. No. 04-15-00555-CV Shirley Hale Mathis, permanent guardian of the estate of Carlos Y. Benavides Jr., Appellant, vs. Leticia R. Benavides, Appellee.
Appellant’s Emergency Motion to Stop Imminent Release of Supersedeas Deposit
To the Honorable Fourth Court of Appeals:
Now Comes movant/appellant Shirley Hale Mathis, as the permanent guardian of the estate of Carlos Y. Benavides Jr., and files this emergency motion to stop imminent release of supersedeas deposit per Texas Rule of Appellate Procedure 24.4, and in support thereof, would respectfully show unto the Appellate Court as follows, to-wit:
1. At 4:49 p.m. today (November 17, 2015), counsel for appellant Shirley Hale Mathis received by facsimile the trial court’s “Orders on Supersedeas Bond.” 1 This order requires the Webb County District Clerk (Esther Degollado) to “forthwith deliver” to appellee Leticia R. Benavides $171,328.00 previously deposited by appellant Shirley 2 to supersede the monetary portion
1 Attached as exhibit “A” and adopted by reference. TEX. R. CIV. P. 58, 59. 2 Attached as exhibit “B” and adopted by reference is “Shirley Hale Mathis’s Notice of Filing Deposit in Lieu of Supersedeas Bond.”
Page 2 of 5 of the trial court’s summary judgment3 dated August 20, 2015 that is the basis of this Appeal.
2. In its November 17, 2015 order, the trial court has ruled that appellant Shirley is not entitled to supersede the August 20, 2015 summary judgment. The trial court has also not required security from judgment creditor Leticia. TEX. R. APP. P. 24.2
3. If the Webb County District Clerk “forthwith delivers” the supersedeas deposit directly to appellee Leticia without any corresponding security from her, the status quo will be irreversibly altered and appellant Shirley’s right to appeal will be lost as to the monetary portion of the trial court’s August 20, 2015 summary judgment.
4. Appellant/judgment debtor Shirley respectfully moves this Appellate Court to invoke its jurisdiction and review the trial court’s “determination whether to permit suspension of enforcement.” TEX. R. APP. P. 24.4(a)(4). Shirley also moves for associated temporary orders to preserve her rights to question in this Appellate Court the denial of supersedeas and granting of summary judgment by the trial court. TEX. R. APP. P. 24.4(c). The requested temporary orders from this Appellate Court would instruct Webb County District Clerk Esther Degollado to retain and safeguard all supersedeas funds deposited with her by appellant Shirley until further orders from this Court.
5. Counsel for appellant Shirley has advised counsel for appellee Leticia and the trial court of the filing of this emergency motion seeking temporary
3 Attached as exhibit “C” and adopted by reference is “Order Granting Partial Summary Judgment [on breach of contract and declaratory judgment claims] Against Shirley Hale Mathis, Permanent Guardian of the Estate of Carlos Y. Benavides Jr.”
Page 3 of 5 orders. Shirley’s counsel is available for a telephonic hearing anytime tomorrow (Wednesday 11/18/2015), the next day (Thursday 11/19/2015), and the following week if necessary.
6. Wherefore, Premises Considered, counsel for appellant/movant Shirley Hale Mathis respectfully request this Honorable Court to immediately consider this emergency motion to stop imminent release of supersedeas deposit, and for associated temporary orders.
Respectfully submitted,
/s/Baldemar Garcia Jr. Baldemar Garcia Jr. State Bar No. 00790740 Attorney in charge for appellant Shirley Hale Mathis, permanent guardian of the estate of Carlos Y. Benavides Jr. PWBM, LLP 602 East Calton Road, 2nd Floor (78041) P. O. Drawer 6668 (78042-6668) Laredo, Texas voice 956.727.4441 facsimile 956.727.2696 Certificate of service Appellant’s emergency motion to stop imminent release of supersedeas deposit was served by e-mail, facsimile, or certified mail, return receipt requested, on all counsel of record on November 17, 2015. TEX. R. APP. P. 9.5. Carlos M. Zaffirini Guadalupe Castillo Zaffirini & Castillo 1407 Washington Street P. O. Box 627 Laredo, Texas 78042-9526 facsimile 956.727.4448 counsel for appellant Leticia R. Benavides
Page 4 of 5 Shirley Hale Mathis Shirley Hale Mathis, P.C. 809 Victoria Street Laredo, Texas 78040 facsimile 956.725.6546 permanent guardian of the estate of C.Y. Benavides Jr.
Fernando A. Sanchez Jr. 401 E. Hillside Road Laredo, Texas 78041 facsimile 956.725.4594 fslawoffice96@gmail.com co-trial counsel for Shirley Hale Mathis Jesse Guillen Guillen & Gonzalez, PC 1202 Corpus Christi Laredo, Texas 78041 facsimile 956.791.9502 attorney ad litem for C. Y. Benavides Jr. Adriana Benavides Maddox Edward F. Maddox Benavides Maddox, PC 1015 Scott Street Laredo, Texas 78040 facsimile 956.791.3010 adriana@benmadlaw.com (counsel for Linda Christina Benavides Alexander, Guillermo Benavides, Ranch Viejo Cattle Company, Ltd., Benavides Management, LLC)
/s/Baldemar Garcia Jr. Baldemar Garcia Jr.
Page 5 of 5 Filed 3/10/2015 9:58:32 AM Esther Degollado District Clerk Webb District 2012CVQ000161D3 CAUSE NUMBER 2012CVQ000161-D3
TEXAS COMMUNITY BANK, N.A. § IN THE DISTRICT COURT Plaintiff § vs. § § SHIRLEY HALE MATHIS, § 341ST JUDICIAL DISTRICT TEMPORARY GUARDIAN OF § (Transferred to 49th District Court) CARLOS Y. BENAVIDES, JR. IN CAUSE § NO. 2011-PB6-00008-L2, AND § LETICIA R. BENAVIDES § Defendants § WEBB COUNTY, TEXAS
LETICIA R. BENAVIDES § IN THE DISTRICT COURT Plaintiff § vs. § § SHIRLEY HALE MATHIS, TEMPORARY§ 49TH JUDICIAL DISTRICT GUARDIAN OF CARLOS Y. § BENAVIDES, JR. IN CAUSE NUMBER § 2011PB6000081-L2 (NOW PERMANENT § GUARDIAN OF ESTATE); BBVA § COMPASS BANK; MERRILL LYNCH, § PIERCE, FENNER & SMITH, INC; § CRISTINA B. ALEXANDER, AS § PERMANENT GUARDIAN OF THE § PERSON OF CARLOS Y. BENAVIDES, § JR. IN CAUSE NO. 2011-PB6-00008-L2; § CARLOS Y. BENAVIDES, III, TOMAS § BENAVIDES, AND ANA B. GALO, AS § CO-TRUSTEESOF THE BENAVIDES § FAMILY MINERAL TRUST; RANCHO § VIEJO CATTLE, LTD; BENAVIDES § MANAGEMENT, LLC; AND CRISTINA § B. ALEXANDER AND GUILLERMO § BENAVIDES, THE MANAGERS OF § BENAVIDES MANAGEMENT, LLC § Defendants § WEBB COUNTY, TEXAS
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
[On Breach of Contract and Declaratory Judgment Claims] Against Shirley Hale Mathis, Permanent Guardian of the Estate of Carlos Y. Benavides, Jr.
1 On March 5, 2015, came on for hearing the Amended Traditional Motion for
Partial Summary Judgment [On Breach of Contract and Declaratory Judgment
Claims] Against Shirley Hale Mathis, Permanent Guardian of the Estate of Carlos
Y. Benavides, Jr.
After considering the respective parties’ motions, the pleadings, the
responses, the replies, the objections filed by the parties to the summary judgment
evidence, the affidavits, and all timely filed competent summary judgment evidence,
the Court enters the following orders:
IT IS ORDERERD, ADJUDGED AND DECREED that the Amended
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ACCEPTED 04-15-00555-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 11/17/2015 7:51:52 PM KEITH HOTTLE CLERK
No. 04-15-00555-CV
In the Fourth Court of Appeals at San Antonio ____________________ Shirley Hale Mathis, permanent guardian of the estate of Carlos Y. Benavides Jr., Appellant, vs. Leticia R. Benavides, Appellee.
____________________ From the 49th District Court of Webb County Cause No. 2012-CVQ-000161-D3A & 2015-CVQ-003089-D1
Appellant’s Emergency Motion to Stop Imminent Release of Supersedeas Deposit
Baldemar Garcia Jr. State Bar No. 00790740 PWBM, LLP 602 East Calton Road, 2nd Floor (78041) P. O. Drawer 6668 (78042) Laredo, Texas voice 956.727.4441 facsimile 956.727.2696 counsel for appellant Shirley Hale Mathis, permanent guardian of the estate of Carlos Y. Benavides Jr. No. 04-15-00555-CV Shirley Hale Mathis, permanent guardian of the estate of Carlos Y. Benavides Jr., Appellant, vs. Leticia R. Benavides, Appellee.
Appellant’s Emergency Motion to Stop Imminent Release of Supersedeas Deposit
To the Honorable Fourth Court of Appeals:
Now Comes movant/appellant Shirley Hale Mathis, as the permanent guardian of the estate of Carlos Y. Benavides Jr., and files this emergency motion to stop imminent release of supersedeas deposit per Texas Rule of Appellate Procedure 24.4, and in support thereof, would respectfully show unto the Appellate Court as follows, to-wit:
1. At 4:49 p.m. today (November 17, 2015), counsel for appellant Shirley Hale Mathis received by facsimile the trial court’s “Orders on Supersedeas Bond.” 1 This order requires the Webb County District Clerk (Esther Degollado) to “forthwith deliver” to appellee Leticia R. Benavides $171,328.00 previously deposited by appellant Shirley 2 to supersede the monetary portion
1 Attached as exhibit “A” and adopted by reference. TEX. R. CIV. P. 58, 59. 2 Attached as exhibit “B” and adopted by reference is “Shirley Hale Mathis’s Notice of Filing Deposit in Lieu of Supersedeas Bond.”
Page 2 of 5 of the trial court’s summary judgment3 dated August 20, 2015 that is the basis of this Appeal.
2. In its November 17, 2015 order, the trial court has ruled that appellant Shirley is not entitled to supersede the August 20, 2015 summary judgment. The trial court has also not required security from judgment creditor Leticia. TEX. R. APP. P. 24.2
3. If the Webb County District Clerk “forthwith delivers” the supersedeas deposit directly to appellee Leticia without any corresponding security from her, the status quo will be irreversibly altered and appellant Shirley’s right to appeal will be lost as to the monetary portion of the trial court’s August 20, 2015 summary judgment.
4. Appellant/judgment debtor Shirley respectfully moves this Appellate Court to invoke its jurisdiction and review the trial court’s “determination whether to permit suspension of enforcement.” TEX. R. APP. P. 24.4(a)(4). Shirley also moves for associated temporary orders to preserve her rights to question in this Appellate Court the denial of supersedeas and granting of summary judgment by the trial court. TEX. R. APP. P. 24.4(c). The requested temporary orders from this Appellate Court would instruct Webb County District Clerk Esther Degollado to retain and safeguard all supersedeas funds deposited with her by appellant Shirley until further orders from this Court.
5. Counsel for appellant Shirley has advised counsel for appellee Leticia and the trial court of the filing of this emergency motion seeking temporary
3 Attached as exhibit “C” and adopted by reference is “Order Granting Partial Summary Judgment [on breach of contract and declaratory judgment claims] Against Shirley Hale Mathis, Permanent Guardian of the Estate of Carlos Y. Benavides Jr.”
Page 3 of 5 orders. Shirley’s counsel is available for a telephonic hearing anytime tomorrow (Wednesday 11/18/2015), the next day (Thursday 11/19/2015), and the following week if necessary.
6. Wherefore, Premises Considered, counsel for appellant/movant Shirley Hale Mathis respectfully request this Honorable Court to immediately consider this emergency motion to stop imminent release of supersedeas deposit, and for associated temporary orders.
Respectfully submitted,
/s/Baldemar Garcia Jr. Baldemar Garcia Jr. State Bar No. 00790740 Attorney in charge for appellant Shirley Hale Mathis, permanent guardian of the estate of Carlos Y. Benavides Jr. PWBM, LLP 602 East Calton Road, 2nd Floor (78041) P. O. Drawer 6668 (78042-6668) Laredo, Texas voice 956.727.4441 facsimile 956.727.2696 Certificate of service Appellant’s emergency motion to stop imminent release of supersedeas deposit was served by e-mail, facsimile, or certified mail, return receipt requested, on all counsel of record on November 17, 2015. TEX. R. APP. P. 9.5. Carlos M. Zaffirini Guadalupe Castillo Zaffirini & Castillo 1407 Washington Street P. O. Box 627 Laredo, Texas 78042-9526 facsimile 956.727.4448 counsel for appellant Leticia R. Benavides
Page 4 of 5 Shirley Hale Mathis Shirley Hale Mathis, P.C. 809 Victoria Street Laredo, Texas 78040 facsimile 956.725.6546 permanent guardian of the estate of C.Y. Benavides Jr.
Fernando A. Sanchez Jr. 401 E. Hillside Road Laredo, Texas 78041 facsimile 956.725.4594 fslawoffice96@gmail.com co-trial counsel for Shirley Hale Mathis Jesse Guillen Guillen & Gonzalez, PC 1202 Corpus Christi Laredo, Texas 78041 facsimile 956.791.9502 attorney ad litem for C. Y. Benavides Jr. Adriana Benavides Maddox Edward F. Maddox Benavides Maddox, PC 1015 Scott Street Laredo, Texas 78040 facsimile 956.791.3010 adriana@benmadlaw.com (counsel for Linda Christina Benavides Alexander, Guillermo Benavides, Ranch Viejo Cattle Company, Ltd., Benavides Management, LLC)
/s/Baldemar Garcia Jr. Baldemar Garcia Jr.
Page 5 of 5 Filed 3/10/2015 9:58:32 AM Esther Degollado District Clerk Webb District 2012CVQ000161D3 CAUSE NUMBER 2012CVQ000161-D3
TEXAS COMMUNITY BANK, N.A. § IN THE DISTRICT COURT Plaintiff § vs. § § SHIRLEY HALE MATHIS, § 341ST JUDICIAL DISTRICT TEMPORARY GUARDIAN OF § (Transferred to 49th District Court) CARLOS Y. BENAVIDES, JR. IN CAUSE § NO. 2011-PB6-00008-L2, AND § LETICIA R. BENAVIDES § Defendants § WEBB COUNTY, TEXAS
LETICIA R. BENAVIDES § IN THE DISTRICT COURT Plaintiff § vs. § § SHIRLEY HALE MATHIS, TEMPORARY§ 49TH JUDICIAL DISTRICT GUARDIAN OF CARLOS Y. § BENAVIDES, JR. IN CAUSE NUMBER § 2011PB6000081-L2 (NOW PERMANENT § GUARDIAN OF ESTATE); BBVA § COMPASS BANK; MERRILL LYNCH, § PIERCE, FENNER & SMITH, INC; § CRISTINA B. ALEXANDER, AS § PERMANENT GUARDIAN OF THE § PERSON OF CARLOS Y. BENAVIDES, § JR. IN CAUSE NO. 2011-PB6-00008-L2; § CARLOS Y. BENAVIDES, III, TOMAS § BENAVIDES, AND ANA B. GALO, AS § CO-TRUSTEESOF THE BENAVIDES § FAMILY MINERAL TRUST; RANCHO § VIEJO CATTLE, LTD; BENAVIDES § MANAGEMENT, LLC; AND CRISTINA § B. ALEXANDER AND GUILLERMO § BENAVIDES, THE MANAGERS OF § BENAVIDES MANAGEMENT, LLC § Defendants § WEBB COUNTY, TEXAS
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
[On Breach of Contract and Declaratory Judgment Claims] Against Shirley Hale Mathis, Permanent Guardian of the Estate of Carlos Y. Benavides, Jr.
1 On March 5, 2015, came on for hearing the Amended Traditional Motion for
Partial Summary Judgment [On Breach of Contract and Declaratory Judgment
Claims] Against Shirley Hale Mathis, Permanent Guardian of the Estate of Carlos
Y. Benavides, Jr.
After considering the respective parties’ motions, the pleadings, the
responses, the replies, the objections filed by the parties to the summary judgment
evidence, the affidavits, and all timely filed competent summary judgment evidence,
the Court enters the following orders:
IT IS ORDERERD, ADJUDGED AND DECREED that the Amended
Traditional Motion for Partial Summary Judgment [On Breach of Contract and
Declaratory Judgment Claims] Against Shirley Hale Mathis, Permanent Guardian of
the Estate of Carlos Y. Benavides, Jr., is hereby GRANTED.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED, AND THE
COURT DECLARES AS FOLLOWS: (1) that Shirley Hale Mathis, Permanent
Guardian of the Estate of Carlos Y. Benavides, Jr., agreed to pay Leticia R.
Benavides temporary spousal maintenance in Cause Number 2012CVG001995-C1
in the County Court at Law Number 2 of Webb County, Texas entitled In the Matter
of the Marriage of Carlos Y. Benavides, Jr. and Leticia R. Benavides (“the divorce
action”); (2) that Mathis’ agreement to pay temporary spousal maintenance is a Rule
11, T.R.C.P., agreement embodied in a document entitled “Temporary Orders” of
2 September 3, 2013, in the divorce action, which Mathis approved and consented to
as to form and substance; (3) that Mathis agreed to pay Leticia R. Benavides, the
sum of $12,500.00 per month beginning no later than July 11, 2013 and every 1st of
the month thereafter until 30 days after a divorce decree is signed, or 30 days after
an appeal is perfected, whichever is later; and, thereafter, the temporary order shall
be governed by §6.709 of the Texas Family Code; (4) that payments were made by
Mathis through February, 2014; (5) that Mathis, without order of any court,
unilaterally stopped the payments on March 1, 2014; (6) that Mathis has not paid
Leticia R. Benavides the agreed temporary spousal maintenance payments of
$12,500.00 per month for the months of March, 2014 through March, 2015, which
payments total $162,500.00 and is now due and owing; (7) that a divorce decree has
not been signed nor has an appeal been perfected in the divorce action; (8) that
Mathis’ agreement to pay temporary spousal maintenance is a contractual agreement
for spousal maintenance and does not manifest an intent that Mathis’ obligation be
governed by Chapter 6 or Chapter 8 of the Texas Family Code; (9) that no
evidentiary hearing pursuant to Chapter 8 of the Texas Family Code was requested
by Mathis nor was an evidentiary hearing conducted by the trial court on its own;
(10) that the agreement is not court-ordered spousal maintenance governed by
Chapter 6 or 8 of the Family Code because, in particular, there is no indication in the
record that the trial court considered all of the statutory factors in determining
3 maintenance, it fails to set forth any of the criteria of Chapter 8, it fails to reference
Chapter 8 of the Family Code, and it fails to follow that chapter’s guidelines with
respect to the amount of maintenance and the duration of the maintenance payments;
(11) that the agreement of the parties is the sort of contractual maintenance
obligation that is permitted outside of the context of Chapter 8 and is not a legal duty
arising under Chapter 8 of the Family Code; (12) that Leticia R. Benavides is entitled
to the payment by Mathis of agreed temporary spousal maintenance in the amount
of $12,500.00 per month from March 1, 2014, when Mathis stopped payment and
every 1st of each month thereafter until 30 days after a divorce decree is signed, or
30 days after an appeal is perfected, whichever is later and, thereafter, the temporary
orders shall be governed by §6.709 of the Texas Family Code; and (13) that Leticia
R. Benavides is entitled to injunctive relief, immediately enjoining Mathis from
refusing to pay the agreed temporary spousal maintenance in the amount of
$12,500.00 per month every 1st of each month until 30 days after a divorce decree is
signed, or 30 days after an appeal is perfected, whichever is later, and, thereafter,
that the temporary order shall be governed by §6.709 of the Texas Family Code.
The Court having declared the above and foregoing, it is accordingly,
ORDERED, ADJUDGED, AND DECREED that Plaintiff, Leticia R.
Benavides, have and recover judgment from and against Shirley Hale Mathis,
4 Permanent Guardian of the Estate of Carlos Y. Benavides, Jr., in the sum of
$162,500.00, for and as agreed temporary monthly spousal maintenance due and
owing for the months of March, 2014 through March, 2015, pursuant to the Rule 11,
T.R.C.P., agreement embodied in a documented entitled “Temporary Orders” signed
on September 3, 2013, in Cause Number 2012CVG001995-C1 in the County Court
at Law Number 2 of Webb County, Texas, entitled In the Matter of the Marriage of
Carlos Y. Benavides, Jr. and Leticia R. Benavides.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED THAT
Shirley Hale Mathis, Permanent Guardian of the Estate of Carlos Y. Benavides, Jr.,
is hereby immediately prohibited, restrained and enjoined from refusing to timely
pay Leticia R. Benavides the agreed temporary spousal maintenance in the amount
of $12,500.00 per month every 1st of each month until 30 days after a divorce decree
is signed, or 30 days after an appeal is perfected, whichever is later, and, thereafter,
that the temporary order shall be governed by §6.709 of the Texas Family Code,
pursuant to the Rule 11, T.R.C.P., agreement embodied in a document entitled
“Temporary Orders” signed on September 3, 2014, in Cause Number
2012CVG001995-C1 in the County Court at Law Number 2 of Webb County, Texas,
entitled In the Matter of the Marriage of Carlos Y. Benavides, Jr. and Leticia R.
Benavides.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Leticia
5 R. Benavides’ cause of action for breach of contract and for declaratory judgment
against Shirley Hale Mathis, Permanent Guardian of the Estate of Carlos Y.
Benavides, Jr., relating to the agreed temporary spousal maintenance in the divorce
action, as described above, is hereby severed, and the court clerk is ordered to assign
the severed action the separate cause number of 2012CVQ000161-D3A on the
docket of this court
Signed on March _____, 2015.
____________________________ HON. JOSE A. LOPEZ Presiding Judge 49th District Court Webb County, Texas
PREPARED BY, SUBMITTED BY, AND REQUEST FOR ENTRY BY:
ZAFFIRINI AND CASTILLO Carlos M. Zaffirini, Sr. Guadalupe Castillo 1407 Washington Street Laredo, Texas 78040 Telephone: (956) 724-8355 Facsimile: (956) 727-4448 Attorneys for Plaintiff, Leticia R. Benavides