                                                                                               ACCEPTED
                                                                                          01-15-00304-CV
                                                                                 FIRST COURT OF APPEALS
                                                                                        HOUSTON, TEXAS
                                                                                     4/6/2015 12:00:00 AM
                                                                                      CHRISTOPHER PRINE
                                                                                                   CLERK

                        No. _____________________-CV

                         IN THE COURT OF APPEALS            FILED IN -
                                                   1st COURT OF--APPEALS
                                                                           - ----
        FOR THE FIRST OR FOURTEENTH DISTRICT OF TEXAS  HOUSTON,          -
                                                                      --- TEXAS
                                                              - - ---- DC ------
                                                   4/4/2015- 9:26:24
                                                            -      ID        --PM
                                                       ---- VO ------
__________________________________________________________________
                                                   CHRISTOPHER       --       A. PRINE
                                                                ----
                                                          ----Clerk
                     IN RE AMERICAN FISHERIES, INC.


                                                                      FILED IN
         Original Proceeding from the 157th Judicial District1stCourt,
                                                                 COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                           Harris County, Texas
                                                            4/6/2015 12:00:00 AM
                    Trial Court Cause Nos. 2013-29749
                                                            CHRISTOPHER A. PRINE
                       The Honorable Randy Wilson                    Clerk
__________________________________________________________________


                 AMERICAN FISHERIES, INC.’S
           EMERGENCY MOTION FOR TEMPORARY RELIEF



                                      Xenos Yuen
                                      State Bar No. 2223250
                                      xy@yuenlawoffice.com [email]
                                      Andrew Gass
                                      State Bar No. 07747800
                                      ag@yuenlawoffice.com [email]
                                      Diane M. Guillerman
                                      State Bar No. 24012740
                                      dmg@yuenlawoffice.com [email]
                                      SIEGEL, YUEN & HONORE, P.L.L.C.
                                      6100 Corporate Drive, Suite 580
                                      Houston, Texas 77036
                                                           
                                      Telephone: (713) 541-6256
                                      Fax:        (713) 541-9409
                                                           
                                      COUNSEL FOR RELATOR,
                                      AMERICAN FISHERIES, INC.
                                         1
TO THE HONORABLE FIRST OR FOURTEENTH COURT OF APPEALS:

      Pursuant to Texas Rule of Appellate Procedure 52.10, American Fisheries,

Inc., relator, files this Emergency Motion for Temporary Relief to accompany its

petition for Writ of Mandamus and in support of this motion would show the court

as follows:


      1.      On March 23, 2015, the Honorable Randy Wilson entered an oral

order striking the deposition of Relator’s key witness Feng Shao, who was deposed

in Hong Kong, People’s Republic of China, without any stated reason as to why

such sanction was being imposed.


      2.      At this hearing Plaintiff orally requested the Court to reconsider its

motion in light of the severity of the sanction. Judge Wilson requested Plaintiff

submit a written motion to reconsider his ruling.


      3.      Plaintiff complied with the court’s request and submitted Plaintiff’s

Motion to Reconsider Order to Strike Feng Shao’s Deposition Testimony; and

simultaneously filed a request for an Emergency Hearing on the matter.

      4.      Unfortunately, the court did not address Plaintiff’s request for the

emergency hearing.


      5.      Finally, on April 2, 2015, at the Pre-trial Conference, the Court

entertained Relator American Fisheries, Inc.’s request to reconsider the court’s

                                          2
order striking Feng Shao’s deposition testimony and denied Plaintiff’s motion by

declining to reverse its earlier ruling.


      6.     We are now on the eve of trial with the underlying case set for trial on

Monday, April 6, 2015 at 8:30 a.m.


      7.     Relator seeks a stay of trial on the merits to allow this appellate court

to resolve the issues raised in Relator’s petition for writ of mandamus concerning

the exclusion of evidence which goes to the heart of Relator’s case, effectively

denies Relator reasonable opportunity to prosecute the case and defend against

counter-claims, and is an imposition of unwarranted death penalty or other severe

sanctions against Relator thus making the trial a waste of judicial resources.


                 FACTUAL & PROCEDURAL BACKGROUND

      8.     Feng Shao is a third party defendant, sued by both Plaintiff and

Defendants in this case for various causes of actions. Defendant Feng Shao is a

citizen of the People’s Republic of China and resides in that country. Defendant

Feng Shao has already answered in the lawsuit, pro se. Plaintiff, with permission

of the trial court and at great expense, arranged and conducted the oral deposition

of Feng Shao.


      9.     Mr. Shao is a former representative of Plaintiff’s and his testimony is

of paramount importance to Plaintiff’s case, particularly to defend against the
                                           3
counterclaims alleged by the Defendants, National Honey Inc., dba National

Commodities Company, Jun Yang and his wife, Lin Huang Yang (collectively,

“NHI Defendants”). His testimony regarding main issues in the case cannot be

obtained through any other witness.


      10.   Further, NHI Defendants have alleged various civil causes of action,

including civil RICO, fraud, and other torts entwined with the criminal conviction

of Defendant Jun Yang -- in the severed case, 2013-29749A – and the deposition

conducted in Hong Kong was ordered by the Court to cover those issues as well.

      11.   Plaintiff, after discovering the collusion between Feng Shao and the

NHI Defendants as a result of the NHI Defendant’s allegations and discovery, then

filed claims against Feng Shao for breach of fiduciary duty and other contractual

violations, for exceeding his authority, his ultra vires acts, which were not

authorized by the Plaintiff before Feng Shao left his position with AFI. Indeed,

Feng Shao exceeded his official capacity and committed breach of his fiduciary

duties when he formed Linghai (USA) Inc., which he testified was at the behest of

and with the assistance of Defendant Lin Yang and, possibly, Jun Yang.


      12.   By striking Defendant Feng Shao’s oral deposition, which is critical to

Plaintiff’s defense against the NHI Defendants’ counterclaims, it is the equivalent

of imposing a “death penalty” sanction against Plaintiff (and against Feng Shao),


                                        4
even though it is an interlocutory order, because an appeal is inadequate under the

circumstances of this case. By striking the deposition, Plaintiff is left with no

testimony to refute the self-serving testimony of Lin Yang and Jun Yang – the only

other individuals with direct knowledge of the circumstances regarding Linghai

and the NHI Defendants’ other allegations. Indeed, even if the jury decides the

NHI Defendants’ did, in fact, breach the contract (the primary issue in the case),

because Feng Shao is implicated in every corner of the counterclaims, the NHI

Defendants’ need only point to the “empty chair” to avoid paying what they rightly

owe to AFI. It is Plaintiff’s belief that striking Defendant Feng Shao’s testimony is

devastating to Plaintiff’s defenses to the Defendants’ counterclaims.


      FOR THESE REASONS, American Fisheries, Inc., relator in this case,

respectfully requests this court to grant temporary relief by issuing an order staying

the trial of this case until this court resolves the issues raised in relator American

Fisheries, Inc.’s petition for writ of mandamus seeking relief from that portion of

Respondent’s March 24, 2015 Order striking the deposition testimony of Feng

Shao, as well as, any other relief to which it may be justly entitled.

      Respectfully submitted, this 4th day of April, 2015.


                                        SIEGEL, YUEN & HONORE, P.L.L.C.


                                        By:    /s/ Xenos Yuen
                                               Xenos Yuen
                                           5
                                               State Bar No. 2223250
                                               xy@yuenlawoffice.com [email]
                                               Andrew Gass
                                               State Bar No. 07747800
                                               ag@yuenlawoffice.com [email]
                                               6100 Corporate Drive, Suite 580
                                               Houston, Texas 77036

                                               COUNSEL FOR PLAINTIFF,
                                               AMERICAN FISHERIES, INC.




                       CERTIFICATE OF CONFERENCE

      Pursuant to Texas Rule of Appellate Procedure 52.10 (a), this is to certify
that on April 3, 2015, counsel for Relator notified counsel for the Defendants in
open court of Relator’s intent to file this motion.

                                               /s/ Xenos Yuen ___
                                               Xenos Yuen




                       CERTIFICATE OF COMPLIANCE

This motion contains 831 words, counted consistent with the Rule of Appellate
Procedure 9.4(i)(3).
                                               /s/ Xenos Yuen ___
                                               Xenos Yuen




                                           6
                         CERTIFICATE OF SERVICE

      Pursuant to Tex. R. Civ. P. 21a, this is to certify that a true and correct copy
of the foregoing Emergency Motion for Temporary Relief was served upon
counsel for the Defendants, M.H. Cersonsky, Cersonsky, Rosen & García, P.C.,
1770 St. James Place, Suite 150, Houston, Texas 77056, on this the 3 rd day of
April, 2015.


                                              /s/ Xenos Yuen ___
                                              Xenos Yuen




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