No. ______________ 

____________________________________________________ 

In the Court of Appeals for the Fifth District 

Dallas, Texas 

____________________________________________________ 

Ann Caldwell Rupe, as Trustee for the Dallas Gordon Rupe, III 1995 Family 

Trust v. Lee C. Ritchie, Paula Rupe Dennard and Rupe Investment Corporation

____________________________________________________ 

On Petition for Writ of Mandamus to the 44th District Court 

Dallas County, Texas 

Case No. DC-06-06944 

____________________________________________________ 

PETITION FOR WRIT OF MANDAMUS 

____________________________________________________ 

Amy E. Davis (TSBN 24007083)

CHRISTIANSEN DAVIS LLC

4100 Spring Valley Road, Suite 450

Dallas, TX 75244

(214) 838-3501 (Phone)

(972) 332-2306 (Fax)

ATTORNEYS FOR RELATOR

AMY E. DAVIS

ACCEPTED

05-15-00888-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

7/22/2015 9:57:39 AM

LISA MATZ

CLERK

05-15-00888-CV

 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 7/22/2015 9:57:39 AM LISA MATZ Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

Relator Counsel

Amy E. Davis Amy E. Davis (TSBN 24007083)

CHRISTIANSEN DAVIS LLC

4100 Spring Valley Road, Suite 450

Dallas, TX 75244

(214) 838-3501 (Phone)

(972) 332-2306 (Fax)

Real Parties in Interest

Ann Caldwell Rupe, as Trustee for 

the Dallas Gordan Rupe, III 1995 

Family Trust

Lee C. Ritchie, Paula Rupe 

Dennard, Dennis Lutes and Rupe 

Investment Corporation

Counsel

Steven E. Aldous (TSBN 00982100)

FORSHEY PROSTOK, LL P.

500 Crescent Court, Suite 240

Dallas, Texas 75201

(214) 716-2101

(817) 877-4151 (fax)

Charla G. Aldous (TSBN 04783250)

ALDOUS LAW FIRM

2305 Cedar Springs, Suite 200

Dallas, Texas 75201

(214) 526-5595

(214) 526-5525 (fax)

Robert B. Gilbreath (TBSN 07904620)

HAWKINS, PARNELL & THACKSTON,

LLP

Highland Park Place

4514 Cole Avenue, Suite 500

Dallas, Texas 75205

(214) 780-5100

(214) 780-5200 (fax)
iii

Respondent

The Hon. Bonnie Lee Goldstein

44th District Court

600 Commerce Street, 5th Floor

Dallas County, TX 75202
iv

TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL............................................................ ii

TABLE OF AUTHORITIES......................................................................................v

STATEMENT OF THE CASE..................................................................................1

STATEMENT OF JURISDICTION..........................................................................2

ISSUES PRESENTED...............................................................................................3

STATEMENT OF FACTS.........................................................................................3

ARGUMENT .............................................................................................................5

PRAYER ....................................................................................................................5

VERIFICATION OF FACTS AND APPENDIX AND RECORD...........................7

CERTIFICATE OF SERVICE...................................................................................8

APPENDIX OF RECORD.........................................................................................9
v

TABLE OF AUTHORITIES

Cases

Hunt v. Bass, 664 S.W.2d 323 (Tex. 1984) ...............................................................2

Kenseth v. Dallas County, 126 S.W.3d 584 (Tex. App.—Dallas 2004, pet. denied)2

Mitchell v. Dixon, 168 S.W.2d 654 (Tex. 1994)........................................................2

Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991)........................................2,3
1

STATEMENT OF THE CASE

Nature of Underlying Proceeding:

Acting as Trustee for the Dallas Gordan Rupe, III 1995 Family Trust, Ann 

Caldwell Rupe (“Plaintiff”) brought the underlying action against Lee C. Ritchie, 

Paula Rupe Dennard, Dennis Lutes and Rupe Investment Corporation (collectively, 

“Defendants”) in July 2006. In 2008 the trial court, Judge Carlos Cortez presiding, 

entered judgment on a jury verdict. The judgment has been appealed to this Court 

and the Texas Supreme Court. On remand from the Texas Supreme Court, the 

case is now pending before this Court.

Prior to entry of judgment, the trial court entered an order granting sanctions 

(the “Sanctions Order”) against Relator, who at the time represented Defendants. 

(R. Tab. 1). On May 12, 2012, after appeal of the judgment, Plaintiff and 

Defendants jointly moved the trial court to vacate the Sanctions Order (the “Joint 

Motion to Vacate”) with prejudice. (R. Tab 2.) 

The trial court has been unable to rule on the Joint Motion to Vacate due to a 

lack of plenary power. It may never have such an opportunity as this Court may 

render judgment in the underlying case rather than remand it to the trial court for 

further action. In the absence of plenary power, judicial action taken by a trial 

court is void. Relator, therefore, respectfully requests this Court mandate the trial 

court to rule on the Joint Motion to Vacate, lest her and the parties’ desire that the 

Order be vacated go without consideration. 
2

Respondent:

The Honorable Bonnie Lee Goldstein, 44th District Court, Dallas, Texas.

Action from Which Relator Seeks Relief:

Relator and the parties have requested that the trial court consider and rule 

upon the Joint Motion to Vacate; however, that action has been rendered 

impossible by the trial court’s lack of plenary power. Therefore, Relator requests 

the Court issue a mandate compelling the trial court to act on the Joint Motion to 

Vacate.

STATEMENT OF JURISDICTION

This Court has jurisdiction to issue a writ of mandamus at the request of 

Relator because Relator has an interest in the trial court’s consideration of the Joint 

Motion to Vacate. See Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991)

(mandamus is available to relator with a justiciable interest in the underlying 

controversy); Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984) (same); Mitchell v. 

Dixon, 168 S.W.2d 654, 656 (Tex. 1994) (same).

Mandamus is not available to compel an action which has not been 

demanded and refused unless the relator has had no reasonable opportunity to 

make such a demand. See Terrazas, 829 S.W.2d at 723. This Court has 

jurisdiction to issue a writ of mandamus against the Respondent because Relator 

(like the parties and Respondent) has had no reasonable opportunity to demand that 
3

Respondent consider and rule upon the Joint Motion to Vacate given the trial 

court’s lack of plenary power. See id. at 723-24. 

ISSUES PRESENTED

1. Whether Relator has a justiciable interest in the trial court’s 

consideration of the Joint Motion to Vacate.

2. Whether Relator has had no reasonable opportunity to demand that 

Respondent consider and rule upon the Joint Motion to Vacate given the trial 

court’s lack of plenary power.

STATEMENT OF FACTS

Acting as Trustee for the Dallas Gordan Rupe, III 1995 Family Trust, Ann 

Caldwell Rupe (“Plaintiff”) brought this minority shareholder action against Lee C. 

Ritchie, Paula Rupe Dennard, Dennis Lutes and Rupe Investment Corporation 

(collectively, “Defendants”) in July 2006. The case was tried to a jury in 

December 2007 and the trial court, Judge Carlos Cortez presiding, entered 

judgment on the jury’s verdict in early 2008. As Cause No. 05-08-00615-CV, the 

judgment was appealed to this Court and, later, to the Texas Supreme Court as 

Cause No. 11-0447, which, in 2014, remanded the case to this Court for further 

proceedings consistent with its opinion. The case remains pending before this 

Court.

Prior to entry of judgment, Plaintiff filed a Third Motion to Sanctions, 

complaining of Relator, who at that time represented Defendants in this matter. On 
4

May 22, 2008, the trial court entered the Sanctions Order against Relator. (R. Tab. 

1). Relator appealed the Sanctions Order to this Court as Cause No. 05-08-00813-

CV. The Court affirmed the trial court’s ruling despite a lengthy dissenting 

opinion by Justice FitzGerald. 

On May 12, 2012, after appeal of the final judgment, Plaintiff and 

Defendants filed the Joint Motion to Vacate, seeking to vacate the Sanctions Order

with prejudice on the grounds that Plaintiff and her counsel no longer believe 

Relator acted with an intent to deceive the trial court. (R. Tab 2.) Plaintiff and her 

counsel further disclaimed any contention that Relator acted with an intent to 

deceive the trial court. The trial court has been unable to rule on the Joint Motion 

to Vacate due to a lack of plenary power although, at hearing on May 8, 2015 held 

to discuss the parties’ dilemma, the trial court expressed a desire to grant the 

motion should it receive a mandate to do so or should it regain plenary power. 

This Court may render judgment in the case rather than remand it to the trial 

court for further action, in which case, the trial court will never have plenary power 

to consider and rule upon the Joint Motion to Vacate. Absent plenary power, 

judicial action taken by a trial court is void. Kenseth v. Dallas County, 126 S.W.3d 

584, 599 (Tex. App.—Dallas 2004, pet. denied). Relator, therefore, respectfully 

requests this Court mandate the trial court to rule on the Joint Motion to Vacate, 

lest her and the parties’ desire that the Order be vacated go without consideration. 
5

ARGUMENT

The parties do not dispute the operative facts. Relator has an interest in 

having the Sanctions Order vacated, as the parties seek to do by the Joint Motion to 

Vacate. The trial court has lacked plenary power to consider and rule upon the 

Joint Motion to Vacate because the underlying case has been on appeal at all times 

since it was filed. 

In the absence of plenary power, judicial action by the trial court is void. 

Kenseth, 126 S.W.3d at 599. Therefore, it has been impossible for Relator to 

demand consideration of the Joint Motion to Vacate. This Court may excuse the 

general rule that, before a mandate may be issued, the relator must have demanded 

and been refused an action, where, like here, the relator has had no reasonable 

opportunity to make such a demand. See Terrazas, 829 S.W.2d at 723. 

Relator respectfully requests the Court issue a mandate compelling the trial 

court to act on the Joint Motion to Vacate. In the alternative, Relator respectfully 

requests the Court grant the Joint Motion to Vacate.

PRAYER

For the foregoing reasons, a mandate should be issued compelling 

Respondent to consider and rule upon the Joint Motion to Vacate.
6

Respectfully submitted,

Amy E. Davis (TSBN 24007083)

CHRISTIANSEN DAVIS LLC

4100 Spring Valley Road, Suite 450

Dallas, TX 75244

(214) 838-3501 (Phone)

(972) 332-2306 (Fax)

adavis@cdfirm.com
VERIFICATION OF FACTS AND APPENDIX AND RECORD 

ST A TE OF TEXAS § 

§ 

COUNTY OF DALLAS § 

1. My name is Amy E. Davis. I am over 18 years of age and fully competent to 

make this verification. I am licensed to practice law in the State of Texas and I am 

a partner in the law firm of Christiansen Davis LLP. I was counsel for Lee C. 

Ritchie, Paula Rupe Dennard, Dennis Lutes and Rupe Investment Corporation at 

trial of the underlying action, Ann Caldwell Rupe, as Trustee for the Dallas 

Gordon Rupe, Ill 1995 Family Trust v. Lee C. Ritchie, Paula Rupe Dennard and 

Rupe Investment Corporation, in the 44th District Comt of Dallas County, Texas, 

Case No. DC-06-06944 (the "Action"). The facts stated in this Verification are 

true and correct, based on my personal knowledge gained from participation in the 

Action as counsel of record and as subject to the May 22, 2008 order entered in the 

Action. 

2. The facts stated in this Petition for Writ of Mandamus about the 

history of and proceedings in the Action are true and correct. The citations in this 

Petition to the factual record developed in the Action are accurate. All documents 

contained in the Appendix hereto are true and correct copies of documents from 

the record in the Action. 

SUBSCRIBED and SWORN TO before me this 22nd day ofJ_ul , 2015. 

[NOT ARIAL SEAL] 

,uuu,, 

~~'.;~~ !:<:~~ BRETT CHRISTIANSEN f ~(Xt~ Notary Public, State of Texas 

\":.\Jli{/~l My Commission Expires 

"'~i,:¥. ~~-=-' June 02, 2018 

7 
8

CERTIFICATE OF SERVICE

The undersigned does hereby certify that true and correct copies of Relators’ 

Petition for Writ of Mandamus were duly served upon:

Counsel for Real Parties in Interest:

Steven E. Aldous (TSBN 00982100)

FORSHEY PROSTOK, LL P.

500 Crescent Court, Suite 240

Dallas, Texas 75201

(214) 716-2101

(817) 877-4151 (fax)

Charla G. Aldous (TSBN 04783250)

ALDOUS LAW FIRM

2305 Cedar Springs, Suite 200

Dallas, Texas 75201

(214) 526-5595

(214) 526-5525 (fax)

Robert B. Gilbreath (TBSN 

07904620)

HAWKINS, PARNELL &

THACKSTON, LLP

Highland Park Place

4514 Cole Avenue, Suite 500

Dallas, Texas 75205

(214) 780-5100

(214) 780-5200 (fax)

Respondent:

The Hon. Bonnie Lee Goldstein

44th District Court

600 Commerce Street, 3rd Floor

Dallas County, TX 75202

via electronic service on this 22nd day of July, 2015.

AMY E. DAVIS
9

APPENDIX OF RECORD

TAB DESCRIPTION PAGE

1. Order (5/22/08) R. 1 – 5

2. Joint Motion to Vacate (5/12/12) R. 6 – 8
TAB 1

R. 1

, MAY-22-2008 17:21 FROM:Jll'lGE CARLOS CORTEZ 214 653 6646 

Counsel: 

JUDGE CARLOS R. CORTEZ 

44th STATE CIVIL DISTRICT COURT 

Cause No. 06-06944 

Ann Caldwell Rupe 

v. 

Lee C. Ritchie, ct al 

ORDER 

T0:92147805200 

l run in receipt of Plaintiff's May 21, 2008 letter and proposed Order and also 

Defendants' letter dated May 15, 2008 (in which Mr. Gilbreath cited lo cases which were both 

designated for publication and not designated/or publication). 

111is Court believes that th.e Court's contempt power, allowing the court to punish 

conduct, is "essential to fudicial independence and authority." See Ex parte Pryor, 800 S. W.2d 

511, 512, 34 Tex. Sup. Ct. J. 203 (Tex. 1990). 

Texas has long held that contempt proceedings are quasi-criminal in nature, and should 

conform, as much as practicable, to criminal proceedings. Ex parte Sanchez, 703 S.W.2d 955, 

957, 29 Tex. Sup. Ct. J. 215 (Tex. 1986); In re Pooley, 129 S.W.3d 277, 278 (Tex. App. -

Corpus Chri.sti 2004, orig proceeding). 

George L. Allen, Sr. Courts Building 

600 Commerce Street, 5th Floor 

Dallas, Texas 75202 

214.653,7427 tel 
R.2

MAY -22-2008 17 : 22 FROM : Jl IQGE CARLOS CORTEZ 214 653 6646 T0:92147805200 

Characterization of the contempt is based upon the nature and purpose of the penalty 

imposed, and may be civil, c.riminal or both. Ex parte Johns. 807 S.W.2d 768, 770-771 (Tex. 

App. -Dallas l 991, orig. proceeding). 

Contempt can be criminal, with unconditional punishment for past conduct already 

performed, allowing no immediate means of release; or civil (coercive) allowing immediate 

release by the contemnor simply conforming current conduct consistent with the Court's order. 

W.,, at 770-771; Exparte Werblud, 526 S.W.2d 545-546, 19 Tex. Sup. Ct. J. 286 (Tex. 1976); 

In both civil and criminal contempt orders .• the penalty imposed by the Court may be a 

fine, imprisonment, or bo1h. Ex parte Johns, 807 S.W.2d 768, 770-771. 

A criminal contempt order is a punitive and an un.conditional assertion of the court's 

power to punish for acts that insult "the court's dignity and authority". Ex parte Johns, 807 

S.W.2d 768, 770-771. 

There arc two types of criminal contempt, direct, with acts occurring in the cot1rt's 

presence; and constructive (indirect) with the contemptuous acts occurring outside the court's 

presence. In re Johnson, 996 S. W.2d 430, 433 (Tex. App. - Beall\nont 1999, no pet). 

The Texas Supreme Court has for decades held that a court should not try cases of 

criminal constructive contempt if the alleged contemnor is absent, but should isst1e capias or writ 

of attachment to bring the alleged contemnor before tl1e Court. Ex parte Johnson. 654 S.W.2d 

422, 26 Tex. Sup. Ct. J. 484 (Tex. 1983) citing Ex parte Gordon, 584 S.W.2d 686, 688, 22 Tex. 

Sup. Ct. J. 295 (Tex. 1979). 

Moreover, Professor Moss has stated in his opinion to tl1e Court that "deceitfel conduct 

by a lawyer is regarded by the Bar as an offense that a 'self-regulating profession must 

vigorously endeavor to prevent through punishment of the offender"'. Professor Moss noted 

George L. Allen, Sr. Courts Building 

600 Commerce Stree~ 5th Floor 

Dallas, Texas 75202 

214.653.7427 tel 
R.3

. MAY -22-2008 1 7 : 22 FROM : Jl lf)GE CARLOS CORTEZ 214 653 6646 T0:92147805200 

Texas Judidal Advisory Opinion No. 45 (1979), "the knowing presentation of false i11formation 

to a court ... is unprofessional conduct" requiring a judge "to Initiate appropriate disciplinary 

action". 

It is absurd, as Mr. Gilbreath's suggests that somehow because the Coilrt did not 

irpmcdiately make a. finding of contempt each and every time Ms. Davis made the multiple 

misleading statements and misrepresentations (which would have led this Court to have 

committed possible reversible error and provide grounds for a mistrial) that "the Court's 

inherent power to punish for direct contempt cannot serve as the basis for any punishment 

assessed against Ms. Davis. Mr. Gilbreath's reliance on Caldwell v. Wright. Robinson, 

McCammon, Osth.bner & Tatum, P.C., 807 S.W.2d 413, 415 (Tex. App. - Houston (1"· Dist.] 

1991, orig. proceeding) in that rega!'d is misplaced as the facts and law of that case is not si.m.iiar 

to the issue before this Court. Moreover, Mr. Gilbreath cite to Ex Parte Knable, 818 S.W.2d 811, 

812 (Tex. Crim. App. 1991) is also distinguishable to the case at issue becatise it only holds that 

the judge's power to punish the contemptuous conduct dissipates "without first affording the 

contemnor notice and an opportunity to be heard". Id. at 813. 

Howevei:, even if the cases were to purport what Mr. Gilbreath' s asserts, we do not have 

that in this case as Ms. Davis and her counsel were provided with notice of the Plaintiff's Third 

Motion for Sanctions which asked for "substantial monetary award to Plaintiff from Defense 

counsel and her law firm and a direction by the Court that Defense counsel take additional hours 

of ethics training ... and.for all such other and further reli~fto which Plaintiff may show herself 

to be entitled." Further, any award of sailctions by this Court would be for a continuing pattern 

by Ms. Davis to misstate the facts, avoid direct questions and engage in a. total lack of candor 

with the Court. 

George L. Allen, Sr. Courts Building 

600 Commerce Street, 5th Floor 

Dallas, Texas 75202 

214.653.7427 tel 
R.4

MAY-22-2008 17:22 FROM:J!IOGE CARLOS CORTEZ 214 653 6646 T0:92147805200 

The Court truly believes tl1at tl1e continuing course of conduct shown by Ms. Davis to the 

Court not once but on at least four ( 4) different occasions during trial, during the jury charge and 

during post-verdict motions is sanctionable (as outlined in Plaintiff's 3"' Motion for Sanctions) 

and that it further violates the peace, dignity and honor of this Court and under Texas 

Govcrrunent Code §21.002 which would allow this Court to impose a sentence upon Ms. Davis 

of up to 180 days injail. 

However, it is my judicial philosophy that any puilishmcnt above and beyond what is 

asked for by opposing counsel would be better served by a separate hearing, if necessary, ruled 

on by another judge (as this matter is presently pending before me). 

In the Court's opinion, the co11duct found to be sanctionable is egregious misco1iduct that 

significantly interferes with the Court's core functions and such conduct continued after repeated 

wamings by the Court (and writtrn apologies by Ms. Davis). 

The sanctions levied against Ms. Davis are directly related to the sanctionable conduct 

and are necessary to preserve ilie integrity of the Court's core function. It is the opinion of this 

Court, t11at although these arc "lesser sanctions" that the sanction imposed in all likelihood will 

deter repetition of the condnet by Ms. Davis, and deter repetition of the sanctionable conduct by 

other lawyers. 

IT IS, THEREFORE, ORDERED that Plaintiffs Third Motion for San.ctions be 

GRANTED and that Ms. Davis shall pay Plaintiffs counsel the sum of$15,000.00 as a monetary 

sanction for the additional work necessary for Plaintiffs coi.msel to rebut the misrepresentations 

made to this Cou.rt; and it is further ORDERED that Ms. Davis shall complete l 0 hours of ethics 

training over and above her continuing legal education requirements to be completed within two 

(2) years from ilic date of this Order. 

George L. Allen, Sr. Courts Building 

600 Commerce Stroot, 5th Floor 

Dallas, Texas 7520~ 

2)4.653.7427 tel 
R.5

i'.iAY. -22-2008 17 : 23 FROM : JI lr1GE CARLOS CORTEZ 214 653 6646 T0:32147805200 

It is so ORDERED. 

this 22°0 day 

.......,_....,.oJ )> 

CARLOS R. CORTEZ 

44TH STATE CIVIL DISTRICT COURT JUDGE 

George L. Allen, Sr. Courts Building 

600 Commerce Street, 5th Floor 

Dallas, Texas 75202 

214.653. 7427 tel 
                	 
       
    	  
     
        


             
                     
       


    

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Filed

12 May 10 P12:21

Gary Fitzsimmons

District Clerk

Dallas District

TAB 2

R.6
R.7

WHEREFORE the parties pray the Court enter an order vacating the Sanctions Order and 

acknowledging the Plaintiff's withdrawal of her Third Motion for Sanctions with prejudice and 

for all such other relief to which they may be justly entitled. 

Respectfully submitted, 

Steven E. Aldous 

BRADEN, VARNER, & ALDOUS, P.C. 

Texas State Bar No. 00982100 

Robert R. Varner, Jr. 

Texas State Bar No. 20499450 

703 McKinney A venue, Suite 400 

Dallas, Texas 75202 

(214) 740-0212 

(21 40-0217 (fax) 

ALDOUS LAW FI 

Texas State Bar No. 04783250 

2311 Cedar Springs, Suite 200 

Dallas, Texas 75201 

(214) 526-5595 

(214) 526-5525 (fax) 

ATTORNEYS FOR PLAINTIFF 

., 

/(ol&tl ~ .!di_! br'fi/1-/j~J<A;J;pv Robert B. Gilbreath fl/' ~ HAWKINS, PARNELL & THACKSTON, LLP 

Texas State Bar No. 07904620 

Highland Park Place 

4514 Cole Avenue, Suite 500 

Dallas, Texas 75205 

(214) 780-5100 

(214) 780-5200 (fax) 

ATTORNEYS FOR DEFENDANTS 

JOINT MOTION TO VACATE SANCTIONS ORDER AND PLAINTIFF'S 

WITHDRAWAL OF PLAINTIFF'S THIRD MOTION FOR SANCTIONS 

Page2 
R.8

CERTIFICATE OF SERVICE 

The undersigned certifies that on the 10th day of May, 2012, a true and correct copy of 

the foregoing document was forwarded via e-mail to the regoing counsel of record. 

~~~ .. !fi I~~ ~ Robert B. Gilbreath 

JOINT MOTION TO VACATE SANCTIONS ORDER AND PLAINTIFF'S 

WITHDRAWAL OF PLAINTIFF'S THIRD MOTION FOR SANCTIONS 

Page 3 

~~(1#.