                                                                               ACCEPTED
                                                                           14-15-00401-CV
                                                           FOURTEENTH COURT OF APPEALS
                                                                        HOUSTON, TEXAS
                                                                      5/4/2015 12:45:30 PM
                                                                     CHRISTOPHER PRINE
                                                                                    CLERK

                        NO. __________-CV
__________________________________________________________________
                   IN THE COURT OF APPEALS               FILED IN
                                                  14th COURT OF APPEALS
      FOR THE FIRST OR FOURTEENTH DISTRICT OFHOUSTON,  TEXAS TEXAS
__________________________________________________________________
                                                  5/4/2015 12:45:30 PM
                                                    CHRISTOPHER A. PRINE
                                                           Clerk
 IN RE JOSE GOMEZ AND EDUARDO GOMEZ, INDIVIDUALLY AND
  AS FORMER REPRESENTATIVES OF MCCARTY TRUCK WASH &
  LUBE, INC., GOMEZ MCCARTY TRUCK WASH & LUBE, INC. F/K/A
   MCCARTY TRUCK WASH & LUBE, INC. AND BROTHERS TIRE
 SERVICES, INC. D/B/A MCCARTY TRUCK WASH, LUBE AND TIRES
__________________________________________________________________

    ORIGINAL PROCEEDING IN THE 215TH DISTRICT COURT OF
                     HARRIS COUNTY, TEXAS
                       CAUSE NO. 2010-56104
     THE HONORABLE JUDGE ELAINE H. PALMER, PRESIDING
__________________________________________________________________

           RELATORS’ MOTION FOR EMERGENCY STAY
_________________________________________________________________
                              Steve M. Williard
                              Texas Bar No. 00788684
                              The Williard Law Firm, L.P.
                              1920 N. Memorial Way, Suite 207
                              Houston, Texas 77007
                              Phone: (713) 529-6300
                              Fax: (713) 529-6315
                              E-mail: steve@williardlaw.com
                              ATTORNEY FOR RELATORS,
                              JOSE GOMEZ AND EDUARDO GOMEZ,
                              INDIVIDUALLY AND AS FORMER
                              REPRESENTATIVES OF MCCARTY
                              TRUCK WASH & LUBE, INC., GOMEZ
                              MCCARTY TRUCK WASH & LUBE,
                              INC. F/K/A MCCARTY TRUCK WASH
                              & LUBE, INC. AND BROTHERS TIRE
                              SERVICES, INC. D/B/A MCCARTY
                              TRUCK WASH, LUBE AND TIRES
                       NO. ____________-CV
__________________________________________________________________

                   IN THE COURT OF APPEALS
      FOR THE FIRST OR FOURTEENTH DISTRICT OF TEXAS
__________________________________________________________________

 IN RE JOSE GOMEZ AND EDUARDO GOMEZ, INDIVIDUALLY AND
  AS FORMER REPRESENTATIVES OF MCCARTY TRUCK WASH &
  LUBE, INC., GOMEZ MCCARTY TRUCK WASH & LUBE, INC. F/K/A
   MCCARTY TRUCK WASH & LUBE, INC. AND BROTHERS TIRE
 SERVICES, INC. D/B/A MCCARTY TRUCK WASH, LUBE AND TIRES
__________________________________________________________________

    ORIGINAL PROCEEDING IN THE 215TH DISTRICT COURT OF
                     HARRIS COUNTY, TEXAS
                       CAUSE NO. 2010-56104
     THE HONORABLE JUDGE ELAINE H. PALMER, PRESIDING
__________________________________________________________________

           RELATORS’ MOTION FOR EMERGENCY STAY
__________________________________________________________________

        Relators, JOSE GOMEZ AND EDUARDO GOMEZ, INDIVIDUALLY AND

AS FORMER REPRESENTATIVES OF MCCARTY TRUCK WASH & LUBE,

INC., GOMEZ MCCARTY TRUCK WASH & LUBE, INC. F/K/A MCCARTY

TRUCK WASH & LUBE, INC. AND BROTHERS TIRE SERVICES, INC. D/B/A

MCCARTY TRUCK WASH, LUBE AND TIRES, asks the Court for an emergency

stay.




                                 2
                              A. INTRODUCTION

      1.    Relators    are   JOSE    GOMEZ       AND      EDUARDO        GOMEZ,

INDIVIDUALLY AND AS FORMER REPRESENTATIVES OF MCCARTY

TRUCK WASH & LUBE, INC., GOMEZ MCCARTY TRUCK WASH & LUBE,

INC. F/K/A MCCARTY TRUCK WASH & LUBE, INC. AND BROTHERS TIRE

SERVICES, INC. D/B/A MCCARTY TRUCK WASH, LUBE AND TIRES

(collectively “Relators”). Real Parties In Interest are MANUEL D. PINEDA,

SUCCESSOR TO MCCARTY TRUCK WASH & LUBE, INC. (“Pineda”),

MCCARTY TRUCK WASH & LUBE, L.L.C. (“McCarty”) and JUAN MUNOZ

(“Munoz”) (Pineda, McCarty and Munoz collectively “Real Parties In Interest”).

Respondent is HONORABLE JUDGE ELAINE H. PALMER (“Respondent”).

      2.    Relators have simultaneously filed their Petition for Writ of Mandamus,

in which it asks the Court to direct Respondent, the Honorable Judge Elaine H.

Palmer, 215th District Court, Harris County, Texas, to vacate an order signed by

Respondent on September 26, 2014 (“Order”). (App. Tab No. 1).

      3.    Relators attach a certificate of compliance certifying that on May 4,

2015, they notified Respondent and Real Parties In Interest by expedited means (fax,

email and/or telephone) that a motion for temporary relief would be filed. Tex. R.

App. P. 52.10(a).

                                         3
      4.     This original proceeding and request for emergency stay arises out of an

order granting sanctions against Relators.

      5.     On August 1, 2014, Real Parties In Interest filed their First Supplemental

Motion for Sanctions and to Strike Counter-Defendants’ Answer to Counter-

Plaintiffs’ Counter-Claim and Plaintiffs’ Fifth Amended Petition and Application for

Permanent Injunction (“Motion”). (App. Tab No. 2).

      6.     On September 23, 2014, Relators filed their Response to Defendants’

First Supplemental Motion for Sanctions and to Strike Counter-Defendants’ Answer

to Counter-Plaintiffs’ Counter-Claim and Plaintiffs’ Fifth Amended Petition and

Application for Permanent Injunction (“Response to Motion”). (App. Tab No. 3).

      7.     On September 26, 2014, without a hearing being conducted at the time

stated in Real Parties In Interest’s notice of hearing, the Court signed the Order

granting Real Parties In Interest’s Motion. The Order ordered, inter alia, that (1) all

tax and Secretary of State documents related to the Reinstatement and any testimony

related thereto are excluded; (2) that any argument to the effect that Relators are the

senior holder of the name or mark of McCarty Truck Wash & Lube is prohibited; and

(3) striking the pleading entitled Counter-Defendants’ Answer to Counter-Plaintiff’s

Counter-Claims and Plaintiff’s Fifth Amended Petition and Application for

Permanent Injunction.

                                          4
      8.       Relators filed a Verified Motion for Reconsideration of the Court’s

Order of September 26, 2014 (“Motion for Reconsideration”) which has not been

ruled on by the trial court. This matter is currently set for trial on May 18, 2015.

      9.       Relators contend the trial court abused its discretion when it granted

sanctions against Relators based upon the fact that (a) the trial court failed to conduct

a hearing at the time scheduled; (b) there is no evidence in the record to suggest that

any of the allegations contained in the Motion are true; and (c) the trial court failed

to consider lesser remedies.

                       B. ARGUMENTS & AUTHORITIES

      10.      The Court may grant temporary relief pending its determination of an

original proceeding. Tex. R. App. P. 52.10(b).

      11.      This emergency stay is necessary to maintain the status quo of the parties

and to preserve the Court’s jurisdiction to consider the merits of the trial court’s

Order. In re Reed, 901 S.W.2d 604, 609 (Tex. App. - San Antonio 1995, original

proceeding).

      12.      For the reasons set forth in Relators’ Petition for Writ of Mandamus, the

trial court abused its discretion when it signed the Order granting sanctions against

Relators for amending their pleading in response to Real Parties In Interest’s

amending their court-suit six (6) days before trial alleging for the first time a breach

                                            5
of an alleged contract and/or producing fifty (50) boxes of records nine (9) months

before trial. To enable the Court to fully consider the arguments and record, Relators

request a stay of the Order until such time as the Court issues a final ruling on the

Petition for Writ of Mandamus.

                                C. CONCLUSION

      13.    A stay of the Order which granted Real Parties In Interest’s Motion is

necessary to preserve Relators’ rights and to prevent Relators from being subjected

to Respondent’s abuse of discretion.

                                   D. PRAYER

      14.    For the reasons stated in this motion, Relators ask the Court for an

emergency stay to maintain the status quo of the parties and preserve the Court’s

jurisdiction to consider the merits of Relators’ Petition for Writ of Mandamus.




                                          6
Respectfully submitted,

/s/ Steve M. Williard
Steve M. Williard
Texas Bar No. 00788684
The Williard Law Firm, L.P.
1920 N. Memorial Way, Suite 207
Houston, Texas 77007
Phone: (713) 529-6300
Fax: (713) 529-6315
E-mail: steve@williardlaw.com

ATTORNEY FOR RELATORS,
JOSE GOMEZ AND EDUARDO GOMEZ,
INDIVIDUALLY AND AS FORMER
REPRESENTATIVES OF MCCARTY
TRUCK WASH & LUBE, INC., GOMEZ
MCCARTY TRUCK WASH & LUBE,
INC. F/K/A MCCARTY TRUCK WASH
& LUBE, INC. AND BROTHERS TIRE
SERVICES, INC. D/B/A MCCARTY
TRUCK WASH, LUBE AND TIRES




  7
                      CERTIFICATE OF CONFERENCE

      I certify that I have conferred with counsel for the Real Parties In Interest

regarding the requested relief and counsel for the Real Parties In Interest has not

agreed and is opposed to the filing of this motion.


                                             /s/ Steve M. Williard
                                             Steve M. Williard




                                         8
                         CERTIFICATE OF SERVICE

      I certify that a copy of the foregoing document was served on all parties and/or

counsel as required by the Texas Rules of Appellate Procedure by U.S. mail, fax,

and/or personal delivery on May 4, 2015 as follows:

      Via Certified Mail/RRR #7014 3490 0000 1008 6157
      Ms. Elizabeth Burkhardt
      Saenz & Burkhardt, P.L.L.C.
      5503 Lawndale
      Houston, Texas 77023
      Phone: (832) 922-2919
      Fax: (713) 468-5932
      E-mail: Elizabeth@SaenzBurkhardt.com
      Attorney for Real Parties In Interest: Manuel D. Pineda, Successor to McCarty
      Truck Wash and Lube, Inc., McCarty Truck Wash & Lube, L.L.C. and Juan
      Munoz

      Via Certified Mail/RRR #7014 3490 0000 1008 6164
      The Honorable Judge Elaine H. Palmer
      215th Harris County District Court
      201 Caroline, Floor 13
      Houston, Texas 77002
      Phone: (713) 368-6330
      Respondent

                                              /s/ Steve M. Williard
                                              Steve M. Williard




                                          9
                      CERTIFICATE OF COMPLIANCE

      Under Texas Rule of Appellate Procedure 52.10(a), I certify that I have made

a diligent effort to notify all parties by telephone and/or facsimile that a motion for

temporary relief would be filed.


                                               /s/ Steve M. Williard
                                               Steve M. Williard




                                          10
                       NO. ____________-CV
__________________________________________________________________

                   IN THE COURT OF APPEALS
      FOR THE FIRST OR FOURTEENTH DISTRICT OF TEXAS
__________________________________________________________________

 IN RE JOSE GOMEZ AND EDUARDO GOMEZ, INDIVIDUALLY AND
  AS FORMER REPRESENTATIVES OF MCCARTY TRUCK WASH &
  LUBE, INC., GOMEZ MCCARTY TRUCK WASH & LUBE, INC. F/K/A
   MCCARTY TRUCK WASH & LUBE, INC. AND BROTHERS TIRE
 SERVICES, INC. D/B/A MCCARTY TRUCK WASH, LUBE AND TIRES
__________________________________________________________________

    ORIGINAL PROCEEDING IN THE 215TH DISTRICT COURT OF
                     HARRIS COUNTY, TEXAS
                       CAUSE NO. 2010-56104
     THE HONORABLE JUDGE ELAINE H. PALMER, PRESIDING
__________________________________________________________________

           RELATORS’ MOTION FOR EMERGENCY STAY
_________________________________________________________________

     Relators submit the following documents in support of their Motion for
Emergency Stay:

Document Title                                                                  Tab No.

Order Granting Defendants’ Motion for Sanctions..................................1

First Supplemental Motion for Sanctions and to Strike
Counter-Defendants’ Answer to Counter-Plaintiffs’
Counter-Claim and Plaintiffs’ Fifth Amended Petition
and Application for Permanent Injunction..............................................2




                                                 11
Plaintiffs’ Response to Defendants’ First Supplemental
Motion for Sanctions and to Strike Counter-Defendants’
Answer to Counter-Plaintiffs’ Counter-Claim and Plaintiffs’
Fifth Amended Petition and Application for Permanent Injunction........3




                                        12
      STATE OF TEXAS
                                                    $
                                                    $
      COLINTY OF HARRIS
                                                   $




           Before me, the uncrersigned notary,
                                               on this day personary appeared
                                                                                Steve M.
    williard' the affiant, a person whose
                                          identity is known to rne. After I
                                                                            adrninistered
    an oath, affiant testified:


               l.         My narne is steve M. wiiliard. I arn
                                                               over 1g years of age, of sound
                          tnind, and capable of making this affidavit,
                                                                       The facts in this affidavit
                          are within my personal knowledge
                                                                                         and           true and correcr.
              2.         I am the attorney for Relators. All of the
                                                                    facts stated in the Motion for

                         Ernergency Stay are

  Furlher, affiant sayeth not.



                                                                      Steve M. Williard

 SUBSCRIBED AND SWORN TO befo
                                                                                                          day of May,2015.

                                  DAWN M STABLEB
                              i   NoTARY PUEL|C
                                    State of Texas
                               Corffn. Exp.0S2j
                                                                     Notary        and for the
                                                                     Print Name:
                                                                     My Commission Exp

F:\Filcs\conrez' EdLrarrio\Mccnrty Truck
                                         wash t,ir\Appcal lvtattcr (ficcor,ti)\02 futotion
                                                                                           tor Emcrgcncy slfly.wD(l




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APP. TAB NO. 1
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                                                             8/1/2014 12:43:29 PM
                                        Chris Daniel - District Clerk Harris County
                                                            Envelope No. 2023257
                                                               By: GAYLE FULLER




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                                                                                              9/23/2014 10:43:33 AM
                                                                           Chris Daniel - District Clerk Harris County
                                                                                               Envelope No. 2585581
                                                                                            By: JEANETTA SPENCER


                                    Cause No. 2010-56104

JOSE GOMEZ and                                   §          IN THE DISTRICT COURT OF
EDUARDO GOMEZ d/b/a                              §
BROTHERS TIRE SERVICES, INC.                     §
    Plaintiffs,                                  §
                                                 §
vs.                                              §              HARRIS COUNTY, TEXAS
                                                 §




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MANUEL D. PINEDA d/b/a MC CARTY                  §
TRUCK WASH AND LUBE, INC., ET AL.                §




                                                                     tC
   Defendants.                                   §              215TH JUDICIAL DISTRICT




                                                                 ric
               PLAINTIFFS’ RESPONSE TO DEFENDANTS’




                                                              ist
 FIRST SUPPLEMENTAL MOTION FOR SANCTIONS AND TO STRIKE COUNTER-




                                                          lD
    DEFENDANTS’ ANSWER TO COUNTER-PLAINTIFFS’ COUNTER-CLAIM
            AND PLAINTIFFS’ FIFTH AMENDED PETITION AND



                                                      nie
              APPLICATION FOR PERMANENT INJUNCTION

TO THE HONORABLE JUDGE OF SAID COURT:                Da
                                               is
       COMES NOW, Plaintiffs, Plaintiffs, JOSE GOMEZ and EDUARDO GOMEZ
                                             hr
                                          C



INDIVIDUALLY AND AS FORMER REPRESENTATIVES OF MCCARTY TRUCK WASH
                                       of




& LUBE, INC., GOMEZ MCCARTY TRUCK WASH & LUBE, INC. f/k/a MCCARTY
                                     e
                                 ffic




TRUCK WASH & LUBE, INC. and BROTHERS TIRE SERVICES, INC. D/B/A MCCARTY
                              O




TRUCK WASH, LUBE AND TIRES (collectively “Plaintiffs”) Response to Defendants,
                            y
                         op




MANUEL D. PINEDA, SUCCESSOR TO MCCARTY TRUCK WASH & LUBE, INC.
                      C
                   ial




(“Pineda”), MCCARTY TRUCK WASH & LUBE, L.L.C. (“McCarty”) and JUAN MUNOZ
                fic




(“Munoz”) (Pineda, McCarty and Munoz collectively “Defendants”) First Supplemental Motion
             of
           Un




for Sanctions and to Strike Counter-Defendants’ Answer to Counter-Plaintiffs’ Counter-Claim

and Plaintiffs’ Fifth Amended Petition and Application for Permanent Injunction (“Motion”).

                                             I.
                                         RESPONSE

      1.    Defendants’ Motion seems to aver two (2) complaints. First, Defendants seem to



                                    APP. TAB NO. 3
complain that Defendants have amended their pleadings from time to time. Defendants do not

cite an authority that would suggest that amending a pleading is worthy of sanctions.

     2.       More importantly, Defendants failed to inform the Court that (a) Defendants filed a

Motion to Enforce Settlement Agreement 21 days before trial alleging for the first time that there

was a settlement in the case that allegedly occurred around February 6, 2012 (almost 2 ½ years




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before Defendants filed their motion to enforce); and (b) Defendants amended their counter-




                                                                         tC
claim just 6 days before trial; both of which necessitated Plaintiffs to file affirmative defenses to




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                                                                  ist
the newly raised allegations. As a result of Defendants’ Motion to Enforce Settlement




                                                              lD
Agreement that Plaintiffs learned for the first time that Defendants were attempting to enforce an



                                                          nie
unsigned settlement agreement. As a result, Plaintiffs amended their answer on July 28, 2014 to
                                                     Da
include ambiguity, estoppel, statute of limitations, waiver, failure to mitigate, proportionate
                                                  is
                                               hr


responsibility and fraud in the inducement associated with such Motion to Enforce Settlement
                                            C
                                          of




Agreement. Further, Defendants site no authority for sanctioning a party for amending its
                                       e




pleadings.
                                   ffic
                                O




     3.       Second, Defendants seem to aver Plaintiffs abused the discovery process.
                             y




Specifically, Defendants allege that 50 boxes of receipts were presented to Defendants “Right
                          op
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before trial”. This allegation is not true. Plaintiffs sent 2 letters dated September 12, 2013 and
                    ial




December 17, 2013 informing Defendants that Plaintiffs had 50 boxes readily available for
                 fic
               of




Defendants to review (see Exhibits “A” and “B” attached hereto and incorporated herein by
             Un




reference). So, Defendants had more than nine (9) months to review the documents in

preparation for trial. It is untenable to suggest that Plaintiffs did anything wrong in making the

50 boxes of records available to Defendants nine (9) months before trial.


                                                 2
     4.      Next, Defendants contend that somehow Plaintiffs failed to produce tax documents

that go to the “heart of the case”. This is a trademark infringement case - tax returns have

nothing to do with the “heart” of this case. As briefed by Plaintiffs, the loss of the corporate

privileges in no way dissolves a company. Specifically, a “[F]orfeiture of a corporate charter

does not extinguish the corporation as a legal entity so long as there is a statutory right to have




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the corporate charter reinstated.” Lighthouse Church v. Tex. Bank, 889 S.W.2d 595, 601 (Tex.




                                                                          tC
App. Houston [14th Dist.] 1994); see also Parker County's Squaw Creek Downs, L.P. v. Joseph




                                                                      ric
                                                                   ist
Earl Watson, 2009 Tex.App. LEXIS 2206,*18 (Tex.App. - Fort Worth[2nd Dist.]




                                                               lD
2009)(“Neither the forfeiture of corporate privileges by the comptroller nor the forfeiture of a



                                                          nie
corporation's charter by the secretary of state extinguishes the corporation as an entity.”);
                                                      Da
Tiddies, Inc. v. Brown, 2005 U.S. Dist. LEXIS 3456 (N.D. Tex. 2005)(same). Texas Tax Code
                                                   is
                                                hr


Section 171.313 provides such a statutory right: “If a corporation's charter or certificate of
                                             C
                                          of




authority is forfeited . . . a stockholder, director, or officer of the corporation at the time of the
                                       e




forfeiture . . . may request in the name of the corporation that the secretary of state set aside the
                                   ffic
                                O




forfeiture of the charter or certificate.” Tex. Tax Code § 171.313. Furthermore, “Once the
                              y




corporation pays the delinquent taxes and [the charter] is reinstated, the payment relates back
                           op
                       C




and revives the corporate rights that were forfeited.” Flameout Design & Fabrication, Inc. v.
                    ial




Pennzoil Caspian Corp., 994 S.W.2d 830, 839 (Tex. App. Houston [1st Dist.] 1999). Thus, the
                 fic
            of




Defendants arguments that (a) the Plaintiff lost its ownership of the trade name “McCarty Truck
          Un




Wash & Lube”; and (b) that a reinstatement of its charter somehow creates a new legal entity is

simply not true. Forfeiture of a charter does not extinguish the legal entity.

     5.      In Regal Construction Company, Appellant v. Phil Hansel, et ux, Appellee, 596


                                                  3
S.W.2d 150 (Tex. App. Houston [1st Dist.]) the Supreme Court of Texas has held that where the

Secretary of State has entered on the record in his office forfeiture of the right of the corporation

to do business in this state, the charter of the corporation has not thereby been cancelled nor has

the corporation been dissolved. The legal title to the assets remains in the corporation, but the

beneficial title to the assets of the corporation is in the stockholders. This being true, and since




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the right to sue has been denied to the corporation by the forfeiture, the stockholders, as




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beneficial owners of the assets of the corporation, may prosecute or defend such actions in the




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                                                                  ist
courts as may be necessary to protect their property rights. Humble Oil & Refining Co. v.




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Blankenburg, 149 Tex. 498, 235 S.W.2d 891 (1951). The case of McGown v. Kittel, 480 S.W.2d



                                                          nie
47 (Tex.Civ.App. Fort Worth 1972, writ ref. n. r. e.), also cited, was an action by a shareholder
                                                     Da
of a corporation whose charter had been forfeited for nonpayment of franchise taxes to liquidate
                                                  is
                                               hr


the corporation. Prior to the trial of the suit the corporate charter was reinstated. The significant
                                            C
                                          of




holding of the court was that the forfeiture of the corporate charter did not extinguish the
                                       e




corporation as a legal entity so long as there was a statutory right to have the corporate charter
                                   ffic
                                O




reinstated.
                             y




     6.       Further, a corporation may still continue to use and keep its trademark even if its
                          op
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charter is forfeited. See Tiddies, Inc. v. Brown, 2005 U.S. Dist. LEXIS 3456 (N.D. Tex. 2005). In
                    ial




Tiddies, the assignee of a trademark forfeited its charter after receiving the assignment of the
                 fic
            of




trademark. Tiddies, Inc. v. Brown, 2005 U.S. Dist. LEXIS at 2. The assignor began using the
          Un




trademark considering that the assignee had forfeited its charter. Id. at 3. Applying Texas law,

the court held that forfeiture of a charter does not mean a corporation has abandoned a

trademark. Id. at 12. The court also held that the assignor in this case had infringed on the


                                                 4
assignee’s trademark. Id.

     7.      Next, Defendants seek an order “compelling production of all documents provided

by or received from the Secretary of State’s and Comptroller of Public Accounts’ offices”. First,

Defendants had to have requested documents before being compelled to produce something.

Second, such documents must be relevant. The burden to show that the tax returns are both




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relevant and material to the issues in the case shifts to the party seeking to obtain the documents .




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El Centro del Barrio, Inc. v. Barlow, 894 S.W.2d 775, 779 (Tex. App.--San Antonio 1994, no




                                                                     ric
                                                                  ist
writ). "Federal income tax returns are not material if the same information can be obtained from




                                                              lD
another source." In re Sullivan, 214 S.W.3d 622, 624-25 (Tex. App.--Austin 2006, orig.



                                                          nie
proceeding); see also Garth, 214 S.W.3d at 194 (trial court abuses discretion by requiring
                                                     Da
production of tax returns when trial court's order also requires production of financial statements
                                                  is
                                               hr


regarding net worth of party); Chamberlain v. Cherry, 818 S.W.2d 201, 207 (Tex. App.--Amarillo
                                            C
                                          of




1991, no writ) (holding that trial court did not abuse discretion in refusing to allow discovery of
                                       e




income tax returns because party seeking to obtain tax returns did not attempt to obtain other
                                   ffic
                                O




evidence of net worth, such as financial statements, and made no showing that tax returns were
                               y




relevant to determination of party's financial        [**9] position); Wal-Mart Stores, Inc. v.
                            op
                       C




Alexander, 868 S.W.2d 322, 331 (Tex. 1993) (Gonzalez, J. concurring) ("[T]rial courts should
                    ial




not allow discovery of private financial records, such as tax returns, when there are other
                 fic
            of




adequate methods to ascertain net worth . . . ."). Moreover, tax returns may not be discovered
          Un




when the information sought is duplicative of information already provided. Ramirez, 824

S.W.2d at 559.

     8.      Further, Texas courts treat requests for production of tax returns differently than


                                                 5
requests for other types of financial records out of a concern for the privacy of the responding

party. See, e.g., In re: Beeson, 378 S.W.3d 8, 12 (Tex.App. - Houston [1st Dist.] 2011).

Requests for production of tax returns must be material and relevant to the issues in the case, and

tax returns are not material if the same information can be obtained from another source. In re:

Beeson, 378 S.W.3d at 12(holding that the party seeking production of tax returns “must carry its




                                                                             k
                                                                          ler
burden to show that the tax returns it seeks are relevant and would not duplicate information




                                                                       tC
already provided or available through other, less-intrusive means.”). Information is relevant if it




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                                                                ist
tends to make the existence of a fact that is of consequence to the determination of the action




                                                             lD
more or less probable than it would be without the information. The requested tax returns would



                                                        nie
not lead to determining whether a trademark infringement was more or less probable.
                                                      Da
     9.      As such, Defendants Motion against Plaintiffs for amending their pleading in
                                                 is
                                               hr


response to Defendants amending their counter-suit 6 days before trial alleging for the first time
                                              C
                                         of




a breach of an alleged contract that supposedly occurred on February 6, 2012 and/or producing
                                      e




50 boxes of records nine (9) months before trial and/or Defendants’ request for an order for the
                                  ffic
                               O




production of tax returns should be denied.
                             y
                          op




                                                II.
                       C




                                    REQUESTED RELIEF
                    ial
                fic




     10.     The purpose of sanctions is to secure compliance with the rules, to deter future
             of




violations of the rules, and to punish parties that violate the rules. Chrysler Corp. v. Blackmon,
           Un




841 S.W.2d 844, 849 (Tex. 1992). The Court should not sanction Plaintiffs because Plaintiffs

have not violated any rule. They simply amended their pleadings in response to Defendants

alleging a breach of a putative for the first time just six (6) days before trial. When considering


                                                6
sanctions, a court must ensure that the punishment fits the crime. TransAmerican Natural Gas

Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). When a court decides to sanction, the

sanctions must have a direct relationship to the offensive conduct, measured by a direct nexus

among the conduct, the offender, and the sanctions imposed. Am. Flood Research, Inc. v. Jones,

192 S.W.3d 581, 583 (Tex. 2006); Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003);




                                                                           k
                                                                        ler
TransAmerican, 811 S.W.2d at 917. What is the “offensive” conduct here - amending their




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answer in response to Defendants amending their counter-claim six (6) days before trial? A court




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                                                              ist
must not impose a sanction more severe than necessary to promote full compliance with the




                                                           lD
rules. Am. Flood, 192 S.W.3d at 583; Spohn Hosp., 104 S.W.3d at 882; Chrysler Corp., 841



                                                       nie
S.W.2d at 849. Defendants have asked for the death-penalty sanctions against Plaintiffs. Yet
                                                     Da
there is no showing of any misconduct by Plaintiffs. The Court should deny Defendants’ Motion
                                                is
                                             hr


because the Motion does not cite any facts or legal authority to justify any sanctions. GTE
                                          C
                                        of




Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993).
                                     e
                                 ffic




     11.    The Court should deny Defendants’ Motion and order a trial on the merits of this
                              O




case. Chrysler Corp., 841 S.W.2d at 849; see Am. Flood, 192 S.W.3d at 583; Spohn Hosp., 104
                            y
                         op




S.W.3d at 882; TransAmerican, 811 S.W.2d at 917.
                      C
                   ial




                                              III.
                fic




                                       CONCLUSION
             of
           Un




     12.    For the reasons stated above, the Defendants’ Motion should be denied.




                                               7
                                                IV.

                                            PRAYER

     13.     WHEREFORE,           Plaintiffs,   JOSE        GOMEZ       and EDUARDO GOMEZ

INDIVIDUALLY AND AS FORMER REPRESENTATIVES OF MCCARTY TRUCK WASH

& LUBE, INC., GOMEZ MCCARTY TRUCK WASH & LUBE, INC. f/k/a MCCARTY




                                                                               k
                                                                            ler
TRUCK WASH & LUBE, INC. and BROTHERS TIRE SERVICES, INC. D/B/A MCCARTY




                                                                         tC
TRUCK WASH, LUBE AND TIRES, respectfully request that this Court deny Defendants’




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                                                                  ist
Motion and such other and further relief, both general and special, at law or in equity, to which




                                                               lD
Plaintiffs may show themselves to be justly entitled.




                                                           nie
                                                        Da
                                                      Respectfully submitted,
                                                 is
                                                      THE WILLIARD LAW FIRM, L.P.
                                                hr
                                           C



                                                      /s/ Steve M. Williard
                                         of




                                                      Steve M. Williard
                                      e




                                                      Texas State Bar No. 00788684
                                  ffic




                                                      E-Mail: steve@williardlaw.com
                                                      1920 N. Memorial Way, Suite 207
                               O




                                                      Houston, Texas 77007
                             y




                                                      Phone: (713) 529-6300
                          op




                                                      Fax: (713) 529-6315
                       C




                                                      ATTORNEY FOR PLAINTIFFS,
                    ial




                                                      JOSE GOMEZ and EDUARDO GOMEZ
                fic




                                                      INDIVIDUALLY AND AS FORMER
                                                      REPRESENTATIVES OF MCCARTY
             of




                                                      TRUCK WASH & LUBE, INC., GOMEZ
           Un




                                                      MCCARTY TRUCK WASH & LUBE,
                                                      INC. f/k/a MCCARTY TRUCK WASH &
                                                      LUBE, INC. and BROTHERS TIRE
                                                      SERVICES, INC. D/B/A MCCARTY
                                                      TRUCK WASH, LUBE AND TIRES



                                                8
                                                      CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing document,
Plaintiffs’ Response to Defendants’ First Supplemental Motion for Sanctions and to Strike
Counter-Defendants’ Answer to Counter-Plaintiffs’ Counter-Claim and Plaintiffs’ Fifth
Amended Petition and Application for Permanent Injunction has been sent via electronic filing
service on this 23rd day of September, 2014, to all counsel of record as follows:

         Ms. Elizabeth Burkhardt Via Electronic Filing Service




                                                                                                                            k
                                                                                                                         ler
         5503 Lawndale
         Houston, Texas 77023




                                                                                                                      tC
         Phone: (832) 922-2919
         Fax: (713) 468-5932




                                                                                                                  ric
         Attorney for Defendants: Manuel D. Pineda, Successor to McCarty Truck Wash and




                                                                                                               ist
         Lube, Inc., McCarty Truck Wash & Lube, L.L.C. and Juan Munoz




                                                                                                        lD
                                                                                                 nie
                                                                                          Da         /s/ Steve M. Williard
                                                                                                     Steve M. Williard
                                                                                     is
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F:\Files\G omez, Eduardo\M cC arty Truck W ash Lit\179 R esponse to First Supp. M tn. for Sanctions and to Strike.w pd




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