                                                                                        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




                                                6
