Motion to Stay - Filed - Supreme Court of Texas

NO. _______________
IN THE SUPREME COURT OF TEXAS
IN RE:
ASCENSION MARTINEZ, JR. INDIVIDUALLY AND D/B/A RBR REAL
ESTATE
From the County Court at Law No. 1
Hidalgo County, Texas
Cause No. CL-09-0123-A
RELATOR’S EMERGENCY MOTION TO STAY TRIAL COURT’S ORDER
PENDING PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE SUPREME COURT OF TEXAS:
COMES NOW ASCENCION MARTINEZ, JR., INDIVIDUALLY AND D/B/A
RBR REAL ESTATE, Relator in the above-styled and numbered cause and files this his
Emergency Motion to Stay Trial Court’s Order Pending Petition for Writ of Mandamus
and would respectfully show the Court as follows:
I.
Background
This lawsuit arises out of a real estate transaction. Relator is a real estate broker
who operates RBR Real Estate in McAllen. Rose Mary de Leon was a real estate agent
who worked under Relator’s broker’s license. Real Party in Interest, Jose G. Lopez
(“Lopez”) purchased real property in Hidalgo County, Texas from Abelino Garza, Jr.

Ms. de Leon was the sales agent. Based on state and county restrictions, the property
cannot be used for the purpose for which Lopez purchased it. This was discovered by
Lopez after the sales transaction was complete.
Lopez sued Ascension Martinez, Jr., Individually and d/b/a RBR Real Estate, Rose
Mary de Leon, Abelino Garza, Jr., and Edwards Abstract & Title, Ltd. based on various
theories including violations of the Texas Deceptive Trade Practices Act, common law
fraud, fraud in a real estate transaction, negligence, negligent misrepresentation, negligent
hiring and supervision, breach of contract, and exemplary damages.
The deposition of Ascension Martinez, Jr. was taken on June 25, 2010 in San
Antonio, Texas. During the deposition, counsel for Plaintiff asked questions regarding
Relator’s assets and wealth. Counsel for Relator instructed him not to answer the
questions. The deposition was stopped and counsel for the parties spoke to Respondent
via telephone. Respondent requested the parties to certify the questions. Counsel for
Relator agreed to submit Relator’s answers to the certified questions to the Court under
seal. Relator filed his Responses to Questions Certified During the Deposition of
Ascension Martinez, Jr. on July 9, 2010. On September 15, 2010, Plaintiff filed his
Motion to Compel Witness to Answer Deposition Questions. A hearing on the Motion
was held on October 4, 2010. No testimony was received at the hearing. On October 5,
2010, Judge Gonzalez signed an Order Granting Plaintiff’s Motion to Compel and
ordered Relator to pay costs and attorney fees to Plaintiff in the amount of $1,000.00.
Respondent further ordered that Relator respond completely to the questions certified
during the deposition no later that October 20, 2010. A true and correct copy of the
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Order Granting Plaintiff’s Motion to Compel Answers to Deposition Questions is
attached as Exhibit “A.”
On October 19, 2010, Relator filed a petition for writ of mandamus in the
Thirteenth Court of Appeals seeking mandamus relief from Respondent’s Order of
October 5, 2010. The petition for writ of mandamus was denied by the Thirteenth Court
of Appeals on December 22, 2010.
On January 5, 2011, Relator filed a petition for writ of mandamus in this Court
seeking mandamus relief from Respondent’s Order of October 5, 2010. In his petition,
Relator asserts that Respondent violated his discretion in entering said Order. Relator
requests that a writ of mandamus be issued ordering Respondent to set aside the October
5, 2010 Order.
II.
Relator Requests a Stay of the Trial Court’s Order While the Mandamus is Pending
Relator requests that this Court stay the October 5, 2010 Order of the trial court
pending the resolution of the mandamus in this matter. The Rules of Appellate Procedure
expressly permit this Court to stay the underlying proceedings pending resolution of the
mandamus. TEX. R. APP. P. 52.10. In particular, Rule 52.10 provides an opportunity for
the appellate court to address the dispute raised by the petition by maintaining the status
quo pending resolution of the dispute. Id.; In re Keller, 999 S.W.2d 51, 52 (Tex. App.—
Amarillo 1999, orig. proceeding).
This Court has the discretion to enter temporary orders necessary to preserve the
parties’ rights until disposition of the petition. TEX. R. APP. P. 52.10. Staying the trial
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court’s Order of October 5, 2010 pending the resolution of the mandamus by the Court of
Appeals will promote judicial economy. This case is set for trial on January 31, 2011.
The ultimate ruling of this Court on the issues within the pending mandamus will affect
the underlying proceedings. As a result, Relator requests that the trial court’s order of
October 5, 2010 be stayed pending the opinion of this Court.
III.
Prayer
WHEREFORE, PREMISES CONSIDERED, Relator prays that this Honorable
Court stay the Order of October 5, 2010, entered in Cause No. CL-09-0123-A; Jose G.
Lopez v. Ascension Martinez, Jr., Individually and d/b/a RBR Real Estate, et al.; in the
County Court at Law No. 1 of Hidalgo County, Texas until thirty days after the petition
for writ of mandamus is resolved, and for such other and further relief to which Relator
may be entitled, whether at law or in equity.
Respectfully submitted,
ALLEN, STEIN & DURBIN, P.C.
6243 IH 10 West, 7th Floor
San Antonio TX 78201
Telephone: (210) 734-7488
Facsimile: (210) 738-8036
By:______________________________
ROBERT A. ALLEN
State Bar No. 01051000
KATHERINE M. WILLIS
State Bar No. 24033472
ATTORNEYS FOR RELATOR
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CERTIFICATE OF COMPLIANCE
Counsel for Relator certifies that she has complied with Rule 52.10(a) of the Texas
Rules of Appellate Procedure and that all parties have received a facsimile copy of this
document on January 5, 2011.
_________________________________
ROBERT A. ALLEN
KATHERINE M. WILLIS
CERTIFICATE OF CONFERENCE
Counsel for Relator contacted counsel for Jose G. Lopez, the Real Party in
Interest, and counsel for Lopez advised that he is opposed to staying the October 5, 2010
Order of the trial court.
_________________________________
ROBERT A. ALLEN
KATHERINE M. WILLIS
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CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing Relator’s
Emergency Motion to Stay Trial Court’s Order Pending Petition for Writ of
Mandamus was forwarded on this the 5 th day of January 2011, via facsimile on:
The Honorable Rodolfo “Rudy” Gonzalez Via Facsimile 956.318.2373
Hidalgo County Courthouse
100 N. Closner
Edinburg, Texas 78539
Mr. Raul A. Guajardo Via Facsimile 956.318.3205
Law Offices of Raul A. Guajardo
706 East University Drive
Edinburg, Texas 78539
Mr. Gary L. Fuller Via Facsimile 210.734.0379
Plunkett & Gibson, Inc.
70 Northeast Loop 410, Suite 1100
San Antonio, Texas 78216
Mr. Charles Brandon Holubar Via Facsimile 956.687.5514
Law Office of John King
3409 North 10th, Suite 100
McAllen, TX 78501
And via First Class Mail on:
Mr. Abelino Garza, Jr.
1312 FM 495
Alamo, Texas 78516
#837850/5748 001/KMW
_________________________________
ROBERT A. ALLEN
KATHERINE M. WILLIS
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