in Re Kenny Bates Dba Bates Backhoe Service

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

MEMORANDUM ORDER

Appellate case name: In re Kenny Bates d/b/a Bates Backhoe Service Appellate case number: 01-13-00037-CV Trial court case number: 11-CV-0328 Trial court: 212th District Court, Galveston County, Texas

Relator, Kenny Bates d/b/a Bates Backhoe Service, filed an emergency motion seeking to vacate the trial court’s November 15, 2012 docket control order and the April 2013 trial setting and requesting leave to file a supplemental petition for writ of mandamus challenging the trial court’s March 18, 2013 ruling on real party in interest’s motion for judgment nunc pro tunc. Relator has indicated that real party in interest does not oppose the portion of his emergency motion seeking to vacate the April 2013 trial setting.

We grant relator’s request for leave to file a supplemental mandamus petition in appellate cause number 01-13-00037-CV. Relator’s supplemental petition is due no later than April 4, 2013. Further, we vacate the trial court’s November 15, 2012 docket control order and the April 2013 trial setting.

We remind the parties and the trial court of our February 4, 2013 order in which we stayed, until further order of this Court, the underlying proceedings in Jacob Walker v. Kenny Bates d/b/a Bates Backhoe Service, No. 11-CV-0328 (212th Dist. Ct., Galveston Cnty., Tex.). This stay order remains in effect pending resolution of relator’s mandamus petition or until further order of this Court. If either party or the trial court seeks to take action in the underlying proceedings while this stay is pending, they must first ask this Court to lift the stay order. See In re El Paso Cnty. Comm’rs Court, 164 S.W.3d 787, 788 (Tex. App.—El Paso 2005, orig. proceeding) (per curiam) (“[W]e expressly order Respondent to not take any further action or enter any orders in cause number 2005-1688 . . . except on motion filed with this Court and on notice to the [relator].”); see also Oryx Capital Int’l, Inc. v. Sage Apartments, L.L.C., 167 S.W.3d 432, 438 (Tex. App.—San Antonio 2005, no pet.) (“If Sage desired to non-suit its claims against Oryx, Sage should have asked this court to lift our stay so that it could file its non-suit in the trial court.”); In re Martinez, 77 S.W.3d 462, 464 (Tex. App.—Corpus Christi 2002, orig. proceeding)

(“If Donna ISD desired to nonsuit its claims, it should have asked this Court to lift the stay, rather than circumvent our authority.”).

It is so ORDERED.

Judge’s signature: /s/ Evelyn V. Keyes  Acting individually  Acting for the Court

Date: March 26, 2013