                                                                                                   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.


                                         By:    s/ Christy L. Lee
                                                 Christy L. Lee
                                                 Texas State Bar No. 24052302

                                         777 Main Street, Suite 600
                                         Fort Worth, Texas 76102

                                         ATTORNEYS FOR RELATORS / DEFENDANTS
                                         KENNETH VERN GIBBS AND CANDACE GIBBS
                                         WALTON




                                          -5-
                           CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above Motion has been
served on the Respondent, the parties and counsel listed below, on this 12th day of
January, 2015, as indicated:

      Honorable Laurine J. Blake                 Via USPS next-day mail
      336th Judicial District Court
      101 E. Sam Rayburn Drive, Suite 200
      Bonham, Texas 75418

      RESPONDENT


      Mr. T. Scott Smith                          Via email per Rule 11 Agreement
      Attorney and Counselor at Law
      120 S. Crockett Street
      Sherman, Texas 75090

      ATTORNEY FOR THE PLAINTIFF / REAL PARTIES IN INTEREST


      Howard Kirk Gibbs                            Via email per Rule 11 Agreement
      9929 Crawford Farm Drive
      Fort Worth, TX 76244

      DEFENDANT, PRO SE


                                        s/ Christy L. Lee
                                      Christy L. Lee




                                       -6-
                                                     VERIFICATION

            Before me, the und ersigned nocary, on th is day persona lly appea red Chris ty L.
     Lee, th e affiant, a person whose identit y is known 10 me. /\.fter I admi nistered an
     oath to affi an t , affiant testifi ed:

                   M:
                  nam e is C hri s1:1 L. Lee. I am over 18 :'cars of age, and am compete nt to
                            1



     make thi s affid av it . I have perso nal knowledge of th e facts se t OU ! in th is affidavit ,
     and they arc a ll true a nd correct. I am an atto rn ey who is li ce nsed 10 practice lavv in
     the Sta te of Texas. I a1n counse l of reco rd for the Rclators I Defe nd a nt s in this
     litiga tion. T he faCLs in this Mot ion arc within my personal knowledge anJ are true
     and co rrect. Al l of Lhc document s a ttached Lo the Motion a rc true and correct copies.




                                                              C hri st" l.. l.cc
      STATE OF ALASKA                            §
                                                 §
  THIRD JUDICIAL DISTRICT                        §

             BEFORC ME , t he undersigned authority, on th is date persona lly appeared Ch risty L.
      Lee, known to me to he t he person whose name is subscri bed lO the foregoing instrument,
      and sworl'. and acknowledged that he executed the sa me and that t lw s tatement:-. contained
      t herein arc wit h in her persona l knowledge and arc true and correct.

              TO CERTIFY WHICH WITNESS MY HAND AND SEAL OF OFFICE on t his                            Ji!....
      day o f Janua ry, 201 5.
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  ~~t>.. M. Ho//@                                             N >tary Pu blic, in ~)r the State of
 ~~'(" ............. Q~
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        ,,,.;•.,-.,,,, 16
  ~:.frf·····~··c~s ~                       CERTIFICATE OF COMPLIANCE
       ~//J/ifi11~\\\,
              U nd er Texas Rui c of Appell ate Procedure 52 . I O(a), I certify t hat o n Janua ry
      ~ 20 15,     I no tifi ed the Respo ndent a nd cou nse l for the Pla in tiffs I Rea l Parri es in
      Int eres t tha t a motion ro r tcmpora rv reli ef wo uld he fil ed.




                                                              C hri sty L. Lee


                                                          7
Attachment A
Attachment B
Attachment C
                                                                          225 E. Fireweed Lane, Ste. 200
                                                                              Anchorage, Alaska 99503
                                                                                     Phone: 907.339.9931
                                                                                       Fax: 800.437.7901

                                                                               777 Main Street, Ste. 600
                                                                                Fort Worth, Texas 76102
                            January 5, 2015                                        Phone: 817.504.6075
                                                                                      Fax: 800.437.7901
via Fax: 903-640-1826
                                                                               clee@christyleelaw.com
Judge Blake                                                                    www.christyleelaw.com
101 E. Sam Rayburn Drive, Suite 200
Bonham, TX 75418

via email
Scott Smith
P.O. Box 354
Sherman, TX 75091-0354

via email
Howard Kirk Gibbs
9929 Crawford Farm Drive
Forth Worth, TX 76244


       Re:     Cause No. CV-14-41665
               Pentex Foundation vs. Kenneth Vern Gibbs, et al.

To Whom This May Concern:

Kenneth Gibbs and Candace Walton, Defendants / Relators will be filing a Motion for
Emergency Stay in the Court of Appeals for the Sixth District of Texas, at Texarkana, in this
matter.

If you have any questions, please contact our office.

                                              Very truly yours,
                                              LAW OFFICES OF CHRISTY LEE, P.C.




                                              Christy L. Lee
