Estate of Lee Roy Hoskins Sr. ( 2015 )

ACCEPTED
13-15-00487-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
12/17/2015 3:48:57 PM
Dorian E. Ramirez
CLERK
CAUSE NO. 13-15-00487-CV
FILED IN
IN THE THIRTEENTH COURT OF APPEALS
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
CORPUS CHRISTI-EDINBURG, TEXAS
12/17/2015 3:48:57 PM
DORIAN E. RAMIREZ
Clerk
IN THE ESTATE OF LEE ROY HOSKINS, SR.
On appeal from the Live Oak County Court, Live Oak County, Texas
Trial Court No. 1785, Hon. Joe H. Loving, Presiding
BRIEF OF APPELLEES LEE ROY HOSKINS, III, LEE
ROY HOSKINS, JR., LEE ANN HOSKINS KULKA,
ANDREA CLARE JURICA, LEONARD HOSKINS, DANIEL
KENTON HOSKINS AND WILLIAM REX HOSKINS
Royal B. Lea, III David Ylitalo Audrey Mullert Vicknair
State Bar No. 12069680 State Bar No.22155500 State Bar No. 14650500
royal@binghamandlea.com d.ylitalo@ylitalolaw.com avicknair@vicknairlaw.com
Bingham & Lea, P.C. Ylitalo Law Firm Law Office of Audrey Mullert
319 Maverick Street 319 Maverick Street Vicknair
San Antonio, TX 78212 San Antonio, TX 78212 802 N. Carancahua, #2100
(210) 224-1819 (210) 846-8595 Corpus Christi, TX 78401
(361) 884-5400
COUNSEL FOR COUNSEL FOR COUNSEL FOR ALL THESE
APPELLEES LEE ROY APPELLEES APPELLEES
HOSKINS, III, LEE ANN LEONARD HOSKINS,
HOSKINS KULKA, and WILLIAM REX HOSKINS
ANDREA CLARE JURICA and DANIEL KENTON
HOSKINS
APPELLEES CONDITIONALLY REQUEST ORAL ARGUMENT
TABLE OF CONTENTS
INDEX OF AUTHORITIES.................................................................................... iv
REFERENCES TO THE RECORD ...................................................................... viv
STATEMENT REGARDING LACK OF APPELLATE COURT
JURISDICTION...................................................................................................... vii
STATEMENT REGARDING ORAL ARGUMENT ............................................ vii
ISSUES PRESENTED, RESTATED .................................................................... viii
STATEMENT OF FACTS ........................................................................................1
1.  Background Facts ...................................................................................1
2.  A Receiver For Cowboy’s Estate Was Appointed Long Ago ................4
3.  Recent Probate Court Proceedings .........................................................7
4.  The Probate Court Confirms the Previously-Appointed Receiver .........8
SUMMARY OF THE ARGUMENT ......................................................................10
ARGUMENT ...........................................................................................................11
I.  The Probate Court’s Order Simply Confirms a Prior Order Appointing
Receiver; the Appeal Should Be Dismissed .........................................11
II.  The Law Regarding Receivers .............................................................13
III.  The Order Is Not Harsh Or Drastic ......................................................16
IV.  No Additional Evidence Was Necessary to Confirm the
Prior Order ............................................................................................19
A.  Cliff has Waived Opposition ...........................................................19
B.  Cliff has No Standing to Object to the Appointment of a Receiver
for the Trusts....................................................................................21
ii
C.  The Probate Court Record and Procedural History Support The
Confirmation Order .........................................................................22
D.  Additional Bases for Affirmance ....................................................26
V.  Cliff’s Complaints About Compensation To The Receiver Are Moot
And Waived ..........................................................................................28
CONCLUSION AND PRAYER .............................................................................30
CERTIFICATE OF COMPLIANCE .......................................................................32
CERTIFICATE OF SERVICE ................................................................................32
APPENDIX ..............................................................................................................33
A Arbitrator’s Order Appointing Receiver, dated April 16, 2013 (CR 15-16)
B Judge Loving’s Order Appointing Receiver, dated October 1, 2015 (CR 477)
C Receiver’s Report to Arbitrator, dated July 28, 2013 (Supp. CR 13-42)
D Probate Court’s Order on Receiver’s First Amended Petition, dated August
1, 2014 (Supp. CR 128)
iii
INDEX OF AUTHORITIES
Cases
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) ..................14
Elliott v. Weatherman, 396 S.W.3d 224
(Tex. App.—Austin, 2013, no pet.) ......................................................................16
Gonzalez v. Gonzalez, 469 S.W.2d 624
(Tex. Civ. App.—Corpus Christi 1971, writ ref’d n.r.e.).................. 15, 16, 22, 23
Grinnell v. Munson, 137 S.W.3d 706
(Tex. App.—San Antonio 2004, no pet.) .............................................................22
Hoskins v. Hoskins, 2014 Tex. App. LEXIS 11382
(Tex. App.—San Antonio, Oct. 15, 2014, pet. granted) ........................................4
In re Estate of Trevino, 195 S.W.3d 223
(Tex. App.—San Antonio 2006, no pet.) .......................................... 14, 15, 16, 27
Interfirst Bank-Houston, N.A. v. Quintana Petroleum Corp., 699 S.W.2d 864
(Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.) ......................................22
Krumnow v. Krumnow, 174 S.W.3d 820
(Tex. App.—Waco 2005, pet. denied) .................................................................16
Marlow v. Palm Harbor Homes, 2002 Tex. App. LEXIS 6371
(Tex. App.—Houston [14th Dist.] Aug. 29, 2002, no pet.) ..................................21
Pfeiffer v. Pfeiffer, 394 S.W.3d 679
(Tex.Civ.App.—Houston [1st Dist.] 1965, writ dism’d) .....................................14
Rusk v. Runge, 2003 Tex.App. LEXIS 9615
(Tex.App.—Houston [14th Dist.] Nov. 13, 2003, pet. denied) .............................28
Sorrel v. Sorrel, 1 S.W.3d 867
(Tex. App.—Corpus Christi 1999, no pet.) ..........................................................22
Tugman v. Tugman, 2008 Tex. App. LEXIS 3914
(Tex.App.—Corpus Christi-Edinburg 2008, no pet.).............................. 13, 14, 23
iv
Statutes and Rules
TEX. CIV. PRAC. & REM. CODE § 51.014 .................................................................10
TEX. CIV. PRAC. & REM. CODE § 51.014(a)(1) ........................................... vii, 12, 13
TEX. CIV. PRAC. & REM. CODE § 64.001(a)(3) ................................................. 14, 26
TEX. CIV. PRAC. & REM. CODE § 64.001(a)(6) ........................................................14
TEX. PROP. CODE § 112.052 .....................................................................................22
TEX. PROP. CODE § 114.008 .....................................................................................14
TEX. PROP. CODE § 114.008(a)(5) ..................................................................... 23, 26
TEX. R. APP. P. 26.1(b) .............................................................................................13
TEX. R. APP. P. 33.1 .................................................................................................26
v
REFERENCES TO THE RECORD
Clerk’s Record
Appellees refer to material in the Clerk’s Record as “CR __.”
Appellees submit four items from the Clerk’s Record as Appendices to this
Brief. Appendix A is the Arbitrator’s Order Appointing Receiver dated April 16,
2013 (CR 15-16). Appendix B is the Probate Court’s Order appointing Receiver
dated October 1, 2015 (CR 477). Appendix C is the initial Report the Receiver
prepared for the Arbitrator dated July 28, 2013 (Supp. CR 13). Appendix D is the
Probate Court’s Order on Receiver’s First Amended Petition, dated August 1, 2014
(CR 310-311).
Reporter’s Record
Appellees refer to material in the Reporter’s Record as “RR [date], at p. __.”
There are three Reporters Records, one from a hearing on May 6, 2014, one from a
hearing on July 3, 2014, and one from July 15, 2015, on the Motion for Order
Appointing Marcus Rogers as Receiver.
Excerpts from the July 3, 2014, Reporter’s Record were attached to
Appellants’ Bench Brief submitted in opposition to the Motion for Order Appointing
Marcus Rogers as Receiver after the July 15, 2015, hearing. CR 451, 452, nn. 18 &
20. The Reporter’s Record from July 3, 2014, is thus part of the record of
vi
proceedings and was properly considered by the Probate Court in entering the Order
on which this appeal is based.
STATEMENT REGARDING LACK
OF APPELLATE COURT JURISDICTION
Appellees contend the Probate Court’s “Order Appointing Receiver” is
actually an interlocutory order that confirms an Arbitrator’s prior order that
appointed that very Receiver; this is not a traditional trial court “order that appoints
a receiver” in the first instance. TEX. CIV. PRAC. & REM. CODE §51.014(a)(1) (“A
person may appeal from an interlocutory order . . . that appoints a receiver . . . .”).
In addition, prior orders that had likewise confirmed the Receiver were not appealed,
so if this order is appealable, those orders were likewise appealable and this appeal
is too late. Appellees move for dismissal of this appeal as stated in more detail in
part I. of the Argument below.
STATEMENT REGARDING ORAL ARGUMENT
Appellees believe that the issues in this case are not complex and that the
Court can decide this case without the need for oral argument. Appellants have
requested oral argument, however, and if the Court holds oral argument, Appellees
will be pleased to address the Court.
vii
ISSUES PRESENTED, RESTATED
1. This Court has no jurisdiction over this Appeal because the order being
appealed is not an appealable interlocutory order; if it is, then prior similar orders
confirming the Receiver were not appealed so this appeal is too late.
2. The Probate Court properly confirmed the prior appointment of the
Receiver made by an arbitrator.
3. The Probate Court did not need to hold an evidentiary hearing to honor
the prior order appointing the Receiver.
4. The Probate Court did not abuse its discretion by ordering a court-
supervised professional, subject to the Probate Court’s oversight, to prepare a written
report on the existence, location, and value of assets that should have gone into the
two testamentary trusts and in the Estate of Cowboy Hoskins: there had been no
accounting for those assets since Cowboy Hoskins died more than 30 years ago.
viii
STATEMENT OF FACTS
1. Background Facts
When Lee Roy “Cowboy” Hoskins, Sr. died in 1985, he left the bulk of his
estate to two testamentary trusts created under his Will for the benefit of his wife
Hazel Hoskins, and his descendants: Appellant Colonel Clifton Hoskins and
Appellees Leonard and Lee Roy, Jr. (Cliff’s brothers and Hazel’s sons) and
Cowboy’s seven grandchildren. App. C at p. 13, 17. The two trusts were a Marital
Deduction Trust and a Residuary Trust. Id. All of Cowboy’s descendants were the
beneficiaries of the Residuary Trust. Id. The purpose of the Residuary Trust was to
distribute the income of same, as appropriate, to the benefit of the living members
of the class of persons composed of Cowboy’s wife, his children, and his
grandchildren. App. C at p. 17. The principal was to have been available for
education, health, maintenance and support of that beneficiary class. Id.
One of the assets of Cowboy’s Estate was the stock of Hoskins, Inc., the other
Appellant here. App. C at p. 13.
Hazel and National Bank of Commerce were the two original Trustees of the
Trusts according to the Will. Id. at 13. National Bank of Commerce resigned as
Trustee shortly after Cowboy died. Id. Thus, Hazel served as the sole Trustee of
both Trusts until she resigned in 2014 and the Probate Court appointed successor
Trustees – 30 years after Cowboy’s death. Id. at 13-14; see also CR 217 (Hazel
1
appointed to serve and NBC appointed but resigned), 203-22 (Hazel resigning).
Hazel was obligated under the Will to account annually to the beneficiaries of
the Residuary Trust, but never did so. App. C at p. 13-14. Nor did she ever file an
income tax return for either Trust. Id. Although Hazel was the independent
executrix of Cowboy’s Probate Estate until she resigned on May 27, 2014,1 she never
filed any accounting for the Trusts in the Probate Court or provided any written
accounting to the beneficiaries of the Trusts until the Probate Court ordered her to
do so in 2014. Id. Then, Hazel filed a deficient accounting for the Marital Deduction
Trust (see Receiver’s Objections at Supp. CR 132-142), but still filed nothing for the
Residuary Trust.
Hazel never transferred any assets to either of the Trusts, and never made or
kept any records of what should have been the assets of either of the Trusts. App. C
at p. 13-14 (never transferred and no records); CR 207 (Residuary Trust never
funded); CR 125 (Hazel admitting “the decision was made to not fund” the Trusts).
Hazel’s counsel has even taken the position with the Receiver that the Trusts didn’t
even exist. RR July 3, 2014, at p. 74 (no trust assets), p. 150 (were no trusts).
According to the Receiver’s preliminary report, for years Hazel used her
fiduciary roles as executrix and trustee of the Trusts, and officer and director of
Hoskins, Inc. to benefit herself and Cliff over the other beneficiaries. App. C at p.
1
CR 201; App. C at p. 110-11 (Hazel Affidavit).
2
14, 15; accord, CR 346, 434, Supp. CR 143 [Successor Trustees agree]. “In ignoring
the validity of the Trusts, Hazel converted the assets in Cowboy’s estate to her own
and defeated his estate plan.” CR 14. “Today, with few exceptions, assets that
should be titled in the name of the Trusts are now titled in the name of Cliff and/or
Hazel (individually or in her personal living trust) or still in the estate. Hazel has
even claimed the trust is not in existence.” CR 14-15.
Hazel said in an affidavit she signed in 2001 that she held one-half of the stock
of Hoskins, Inc. as Trustee of the Marital Deduction Trust. App. C, at 36-40. In the
same affidavit she admitted numerous transactions for her benefit involving
Appellants Cliff and Hoskins, Inc., and the stock of that company. Id. She never
provided an accounting or demonstration of the fairness or propriety of any of those
transactions. The Receiver reported that “At a time when Hazel was an officer in a
corporation the stock of which was owned by the Trusts, she entered into business
transactions favoring one of the Trust’s beneficiaries [Cliff] that effectively made
the trusts insolvent.” App. C at p. 13.
All court-appointed professionals since then have concluded that no assets
ever should have gone into the Marital Deduction Trust; rather, all of the assets of
Cowboy’s Estate should have gone to the Residuary Trust for the benefit of all of
Cowboy’s beneficiaries. Supp. CR 134 (Receiver); Supp. CR 145-48 (Successor
Trustee of Residuary Trust); 472-73 (Successor Trustee of Marital Deduction Trust);
3
326 (Dependent Administrator).
Hazel commingled Trust assets with her own and used Trust assets as her own
even though the Trust prohibited her from making any distributions to herself while
she was a Trustee. App. C at p. 13-14. Hazel contended there was no need for the
Trusts, and through her counsel has admitted the Residuary Trust was never funded;
there was never a termination or winding up of either of the Trusts. CR 207 (“was
never funded”), Supp. CR 13-14 (never terminated or wound up). When the
Receiver asked Hazel’s counsel to provide documents reflecting or referring to the
assets or affairs of the Trust, Hazel’s counsel reported that Hazel “[h]ad no
documents … that pertain to any trusts ….” CR 125 (emphasis added).
The assets that should have gone into the Trusts are held today in the name of
Hazel (personally or her living Trust) or in the name of Appellant, Cliff Hoskins.
App. C at p. 13-15. Cliff controls Hoskins Inc. now. For the purposes of this appeal
there is no need to distinguish between Cliff and Hoskins, Inc., so Appellees will
refer to both Appellants here as “Cliff.”
2. A Receiver For Cowboy’s Estate Was Appointed Long Ago
In litigation involving Cliff and Hazel on one side and Cliff’s brother and
Hazel’s son Len on the other, a bankruptcy court ordered disputes between Len,
Hazel, Cliff and Hoskins, Inc. to be arbitrated. Supp. CR 103; see, Hoskins v.
Hoskins, 2014 Tex. App. LEXIS 11382, *5, n.2 (Tex. App.—San Antonio Oct. 15,
4
2014, pet. granted). The Arbitrator resolved the disputes in part by appointing, at
Len’s request, a Receiver. Supp. CR 103; accord, App. A. The arbitrator severed
Len’s claims against Hazel, individually and as Executrix, for breach of fiduciary
duty and Trust Code violations and appointed Marcus Rogers as Receiver on April
16, 2013. Id. The Receiver was ordered to “take possession of all Trust Property
and administer the Trust[s] pursuant to [their] terms; determine whether Hazel
Hoskins is capable of continuing as Trustee; make such recommendations as he may
deem appropriate; and deliver a report to the Arbitrator no later than June 30, 2013.”
App. A; Supp. CR 103. Unfortunately, the arbitrator dismissed Len’s inextricably
intertwined claims against Cliff for aiding and abetting Hazel’s breaches of fiduciary
duty and Trust Code violations, and his request for rescission of the transfer to Cliff
of property owned by Hoskins, Inc. It is that dismissal order that Len has appealed;
the Texas Supreme Court has granted Len’s petition for review. The order
appointing receiver, which Len requested, is not on appeal.
The Receiver made the written report the Arbitrator ordered on July 28, 2013.
App. C, Supp. CR 13-42.
Appellee Rex Hoskins filed an Application to remove Hazel from all her
various capacities—executor and trustee—in the Probate Court in Live Oak County,
Judge Joe Loving presiding, on October 9, 2013 (Supp. CR 4-42). The Receiver
filed a motion to confirm his appointment in that action in November 2013 (CR 9),
5
then filed a First Amended Petition for an Accounting in the Probate Court on May
6, 2014, asking Judge Loving to compel Hazel to account for the assets and affairs
of the Trusts. CR 9, 188. Hazel filed a plea to the jurisdiction and a plea in
abatement, objecting to the Receiver’s request because, among other reasons, she
said the Receiver was not properly appointed by the Arbitrator and lacked standing
to request the accountings. CR 92. Hazel asked the Probate Court to dismiss the
Receiver’s petition for lack of jurisdiction because, Hazel contended, the Receiver
had not been properly appointed. CR 81-83. No other party filed an objection to the
Receiver’s request for an accounting. CR, passim.
In May 2014—sixteen months before the Order from which Cliff now
appeals—the Probate Court signed written orders denying Hazel’s plea to the
jurisdiction and plea in abatement. CR 199, 200. Hazel did not appeal.
The Probate Court recognized the prior appointment of the Receiver at an
evidentiary hearing in July 20142, and signed an “Order on Receiver’s First
Amended Petition” on August 1, 2014 (App. D), ordering Hazel “to file complete
and accurate accountings of the Estate from April 2, 1985, until the date of the
accounting . . . .” (CR 310). The court ordered “that the accounting for the Estate
shall be filed with the Court . . . and that the accountings for the Trusts shall be
delivered to Marcus Rogers, Receiver . . . .” (id.) (emphasis added). That order was
2
RR July 3, 2014, at p. 210; CR 310.
6
entered more than a year before the Order from which Cliff now appeals. No party
appealed that order.
3. Recent Probate Court Proceedings
Two weeks after the Probate Court denied her plea in abatement and plea to
the jurisdiction to the Receiver’s request for confirmation of his appointment, on
May 28, 2014, Hazel resigned as Independent Executor and as Trustee and asked the
District Court of Live Oak County to appoint two new successor Trustees of the
Marital Deduction Trust and Residuary Trust. 3 CR 201-22. The District Court
appointed Joe Carter to serve as the Trustee of the Marital Deduction Trust and
George Morrill, III to serve as Trustee of the Residuary Trust, as Appellants
recognize. Ant Br. at p. 3; accord, CR 381.
The Probate Court also appointed a Dependent Administrator to administer
Cowboy’s Estate on August 18, 2014. Supp. CR 130-31. In that order the court
directed the administrator to “bring the affairs of the said Estate to a conclusion and
deliver the remaining assets to the duly appointed trustees and/or the duly appointed
receiver.” Id. at 130.
The Dependent Administrator filed a declaratory judgment action joining into
the Probate Court proceeding all of Cowboy’s children, grandchildren, and
3
Cowboy’s Will provided that the district court judge acting as an individual and not in an
official capacity would appoint successor trustees.
7
associated corporate entities as parties, and seeking determinations on no less than
nine topics, such as “Do any assets remain in the estate?,” “Do estate assets exist
that were never included in the estate . . . that should have been?,” “Were estate
assets improperly distributed from the estate?,” and “Tracing of estate assets.” CR
379-388.
The new Trustees appeared in the Probate Court. CR 346, 431, Supp. CR 143.
Echoing observations Judge Loving had made from the bench in July 2014,4 the
Successor Trustees contend that no assets ever should have gone into the Marital
Deduction Trust; instead, all of the assets should have gone into the Residuary Trust.
CR 346-48, 472-73, Supp. CR 143. Both Successor Trustees contend Hazel
mismanaged the Estate and breached fiduciary duties. CR 347, Supp. CR 143
(Successor Trustee of Residuary Trust), 472-73 (Successor Trustee of Marital
Deduction Trust).
4. The Probate Court Confirms the Previously-Appointed Receiver
Three of Cowboy’s grandchildren asked the Probate Court to honor the prior
appointment of the Receiver so that Hazel’s continuing challenge to the prior
appointment would be resolved. CR 373. Both Successor Trustees and other
beneficiaries also joined in the request for confirmation of the Receiver.5 Hazel filed
4
RR July 3, 2014, at p. 19 (Judge Loving observing value of assets exceeding marital
deduction limit and that they “couldn’t have gone into the marital trust….”).
5
CR 153-54, 391-92, 400, 403-07, 434-35, & 472-73.
8
a written opposition before the hearing on July 15, 2015. CR 411. Cliff filed no
opposition before the hearing. CR, passim.
At the hearing on July 15, 2015, counsel for Cliff said not a word in opposition
to the Motion (RR, passim). The Probate Court, Hazel’s counsel, counsel for the
Appellees, and counsel for the Receiver discussed the obvious facts appearing
without dispute from the Court’s record as well as the legal issues attendant to
appointing a receiver. Id. The Probate Court asked for additional post-hearing
briefing. No one said anything before or at the hearing to alert the Probate Court to
an argument that there was a disputed fact issue for which evidence was wanted or
required. Id.
After the hearing and post-hearing briefing, the Probate Court signed the
Order Appointing Receiver which tasks the Receiver with the following limited but
critically important and necessary responsibilities: “[T]o determine, per the terms of
the Will, . . . which assets, if any, should have been distributed from the Estate to the
Marital Deduction Trust and/or to the Residuary Trust; and . . . where each of the
assets is currently located, the current ownership of each asset, and the approximate
fair market value of each asset.” CR 477-78. Following receipt of the Report, the
Dependent Administratrix “shall file a Motion with the Court seeking authority to
transfer the assets or claim for the assets to the [Trusts];” delivery of assets is tasked
to the Administrator in her August 2014 appointment. CR 478, Supp. CR 130-31.
9
Only Cliff and Hoskins, Inc. appeal from that order; no other party contests
the appointment of the Receiver. Curiously, Hazel, who was the party who filed
nearly every one of the pleadings in opposition to the Receiver, did not join in this
appeal.
SUMMARY OF THE ARGUMENT
The Probate Court’s Order is simply an interlocutory confirmation of a prior
order appointing a receiver, and is not appealable under Section 51.014 of the Civil
Practice and Remedies Code. In the alternative, if the order is appealable, at least
one prior order similarly confirming the Receiver had been entered and it was not
appealed; this appeal is therefore too late. This Court lacks jurisdiction over this
Appeal and it should be dismissed.
The Probate Court acted well within its discretion in confirming, in this
proceeding, the prior appointment of the Receiver and giving him narrow duties—
writing a report (1) to identify which of the assets of the Estate should have been
distributed to the Marital Deduction Trust and which to the Residuary Trust and (2)
to say, if possible, the current location, value, and ownership (or state of legal title)
of each of those assets today. App. B, CR 477.
While it is true that appointment of a receiver is often a drastic and intrusive
remedy -- because a receiver often takes over control and management of operating
businesses or valuable assets -- here, the Probate Court’s confirmation of the prior
10
appointment of this Receiver does nothing like that. The Probate Court simply
confirmed the prior appointment with a limited charge: to report on the identity,
location, title, and value of the assets that should have gone into the Trusts. CR 477.
It is uncontested that Hazel Hoskins never made any accounting of or for any
asset that should have gone into either Trust for decades. The Probate Court properly
honored and confirmed the earlier appointment of the Receiver, and did so crafting
a narrow, restrained order that balances the competing interests of the many parties
in the Probate Court. The court acted well within its discretion in using the
previously-appointed Receiver as an efficient resource in identifying and attempting
to account for the assets that should have gone into the Trusts. The Probate Court’s
order should be affirmed.
ARGUMENT
I. The Probate Court’s Order Simply Confirms a Prior Order Appointing
Receiver; the Appeal Should Be Dismissed
An Arbitrator appointed this Receiver in 2013, on Appellee Leonard Hoskins’
motion in that proceeding. App. A. Cliff admits “the arbitrator appointed Marcus
Rogers as receiver of the assets of the Martial Deduction Trust and the Residuary
Trust.” Ant Br. at 2. Probate Court Judge Loving’s Order Appointing Receiver
confirms a narrow aspect of that prior order. In addition, the Probate Court
previously entered orders recognizing and/or confirming the Receiver’s position,
which Appellants did not appeal. CR 310 (App. D), Supp. CR 130. The order
11
Appellants have sought to appeal is not appealable, or if it is, then prior similar orders
were not appealed, so this appeal is too late.
TEX. CIV. PRAC. & REM. CODE § 51.014(a)(1) allows for an interlocutory
appeal from an order that “appoints a receiver.” The Receiver here was already
appointed in 2013. This Receiver filed pleadings and motions in the Probate Court
which were ruled upon long before the Order from which Cliff appeals was entered.
CR 9, 188, 194. The Probate Court signed orders more than a year earlier
recognizing the role of the Receiver in the Probate Court. CR 199, 200, 310, Supp.
CR 130. At the hearing on July 3, 2014, Judge Loving recognized the obvious—
Hazel needed to provide accountings for the two Trusts and she needed to give the
accountings to the Arbitrator-appointed Receiver. Judge Loving said:
That accounting should be done twofold: One to Mr.
Rogers in his capacity as … the receiver of the two trusts
with the Court receiving also that report
…
[He—i.e., the Receiver] is the one that needs to have that
as receiver. He has been appointed [previously as]
receiver ….
RR July 3, 2014, at p. 210 (emphasis added).
Then, on August 1, 2014, the Probate Court signed the “Order on Receiver’s
First Amended Petition” against Hazel, and ordered Hazel to file a complete and
accurate accounting for each of the Trusts, which “shall be delivered to Marcus
Rogers, Receiver . . . .” CR 310 (App. D).
12
None of these orders was ever appealed.
The Probate Judge made the point again at the July 15, 2015, hearing: “I have
recognized Mr. Rogers as the Receiver,” and this was nothing more than a
confirmation. RR July 15, 2015, at pp. 69, 75, 90. Judge Loving clearly understood
that the Receiver had already “been appointed” by the Arbitrator after the bankruptcy
Court had ordered arbitration and that the Receiver had “the duty and responsibility
under [the] federal bankruptcy court to proceed in that capacity.” RR July 15, 2015,
at p. 158. The Probate Court clearly confirmed what the Arbitrator had already put
in place.
Thus, the Probate Court’s Order is an interlocutory confirmation of a prior
arbitration order appointing a receiver. That order is not appealable and this appeal
should be dismissed. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(1). In the
alternative if this order is appealable, then previous similar orders confirming the
Receiver were also appealable (CR 310, Supp. CR 130) and those orders were not
appealed. So this appeal is too late. TEX. R. APP. 26.1(b).
II. The Law Regarding Receivers
As this Court knows well, “A trial court has broad powers to enlist the aid of
a receiver in order to effectuate its orders and judgments.” Tugman v. Tugman, 2008
Tex. App. LEXIS 3914, * 11 (Tex.App.—Corpus Christi-Edinburg 2008, no pet.).
The use of a receiver is reviewed for abuse of discretion, that is, the trial court must
13
have acted without reference to any guiding rules or principles, arbitrarily and
unreasonably. Id. at * 12 (citing Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241 (Tex. 1985)). “The mere fact that a trial court may decide a matter
within its discretionary authority in a manner different from that of an appellate
judge in a similar circumstance does not demonstrate that an abuse of discretion has
occurred.” Id.
The Texas Property Code authorizes the use of a receiver “to remedy a breach
of trust that has occurred.” TEX. PROP. CODE § 114.008; acord, Pfeiffer v. Pfeiffer,
394 S.W.3d 679, 680 (Tex.Civ.App.—Houston [1st Dist.] 1965, writ dism’d) (court
did not abuse its discretion by appointing a receiver when there was alleged
misconduct on the part of the trustee).
Texas Civil Practice and Remedies Code permits a receiver in any “action
between partners or others jointly owning or interested in any property or fund.”
TEX. CIV. PRAC. & REM. CODE § 64.001(a)(3); accord, In re Estate of Trevino, 195
S.W.3d 223, 231 (Tex. App.—San Antonio 2006, no pet.). When there is a danger
that jointly owned property is at risk of being damaged or lost without a receiver, a
receiver is proper. Id.
In addition, the rules of equity allow the appointment of a receiver under Civil
Practice and Remedies Code Section 64.001(a)(6). In that event, the statute “does
not require” a showing that any property is “presently in danger of being lost,
14
removed, or materially injured.” Trevino, 195 S.W.3d at 231. The court need only
conclude that appointment of a receiver will provide an efficient mechanism for
resolving a significant dispute among those jointly interested in an estate. Gonzalez
v. Gonzalez, 469 S.W.2d 624, 632 (Tex.Civ.App.—Corpus Christi 1979, writ ref’d
n.r.e.) (holding the “trial court erred in overruling . . . application for . . . appointment
. . . of a receiver” when “appointment of a receiver” would “solve most, if not all, of
the . . . problems” in the estate).
A probate court cannot abuse its discretion in ordering a court-supervised
professional to account for the assets of a testamentary trust in the process of a
dependent administration – that is, when the court is exercising ongoing control over
the administration. E.g., Trevino, 195 S.W.3d at 229. Cliff offers no argument or
authority to question this basic rule. Nor is there any abuse of discretion when a
probate court tasks a receiver to assist the personal representative in performing a
task necessary for the administration of the estate when the personal representative
is an independent executor. Trevino, 195 S.W.3d at 228-30 (it is “well established
that a probate court’s order appointing a receiver does not impermissibly interfere
with the independent administration of the estate.”). A receiver is even more
appropriate when the administration is dependent and fully subject to probate court
supervision -- because the Receiver is simply part of the administrative process. Id.
In addition, Courts often find appointment of a receiver to be a proper remedy
15
for managing protracted litigation involving family disputes like this. See, e.g.,
Gonzalez, 469 S.W.2d at 632 (“appointment of a receiver will solve most, if not all,
of the vexations ….”); see also Trevino, 195 S.W.3d at 231-32 (“probate court could
have determined that the appointment of a receiver would resolve two years of
ongoing litigation …”).
III. The Order Is Not Harsh Or Drastic
It’s true, as Cliff says, that the appointment of a receiver is often a harsh and
drastic remedy. (Ant Br. at 9). That’s because generally, courts appoint receivers
to take over control and management from the owners or managers of privately
owned businesses or revenue-generating assets. See, e.g., Elliott v. Weatherman,
396 S.W.3d 224, 226 (Tex. App.—Austin, 2013, no pet.) (receiver appointed over
$1.2 million in assets); Krumnow v. Krumnow, 174 S.W.3d 820, 825 (Tex. App.—
Waco 2005, pet. denied) (receiver appointed to sell assets).6
The Probate Court’s Order here, though, does nothing of the kind. The
6
Cliff cites Elliott v Weatherman and Krumnow v. Krumnow on the standards for
appointment of a receiver. The key issue involving the appointment of a receiver in both
of those cases, though, was whether the trial courts erred by appointing the receiver to take
control over assets with absolutely no prior notice to the complaining party before the
courts did so. Elliott, 396 S.W.3d at 229 (“threshold issue” is whether complaining parties
“received proper notice …” and whether “oral request for receivership at conclusion of the
temporary injunction hearing [was] sufficient”); Krumnow, 174 S.W.3d at 830 (“trial court
erred in appointing a receiver without notice”). Here, of course, Cliff had several weeks’
notice before the July 15, 2015, hearing on the motion to confirm the Receiver, and still
Cliff filed no objection whatsoever. And here, unlike the facts in Elliott or Krumnow, an
Arbitrator had already appointed the Receiver.
16
Arbitrator charged the Receiver with taking possession of the Trust Property and
administering the Trusts. App. A, CR 15. The Probate Court limited the Receiver’s
charge, for now, simply to reporting on the existence, location, and value of the
assets that should have gone into the Trusts years ago. CR 477-78. There is nothing
harsh or drastic about that; the Probate Court simply directed a court-supervised
professional to report on estate assets.
The essence of the job under the Order is simply to inventory what should
have been in Cowboy’s Estate in 1985 and to try to account for where those assets
are today. CR 477-78. The Court might have titled that job function “auditor” or
“master,” but because more than two years earlier the Arbitrator had already
appointed the Receiver to do the same work and even more (CR 15), the Probate
Court tasked the Receiver to make the report for use in administering Cowboy’s
Estate. Judge Loving presumed the Receiver would get the same essential
information more than a year earlier, when he ordered Hazel to prepare the report
and provide it to the Receiver. CR 310. Hazel did not give the Receiver the
information ordered (see Receiver’s Objections, Supp. CR 132-142), so Judge
Loving tasked the Receiver with preparing the report himself.
According to the Receiver’s preliminary report, for years Hazel used her
fiduciary roles as executrix and trustee of the Trusts, and officer and director of
Hoskins, Inc. to benefit herself and Cliff over the other beneficiaries. App. C at p.
17
14, 15. The Successor Trustees agree. CR 346, 434; Supp. CR 143. Without dispute,
under Cowboy’s will, when Cowboy died in 1985, the bulk of his assets should have
gone into the Residuary Trust, and no one has accounted for that Trust even today,
thirty years after Cowboy died. There is still no proper accounting of the assets that
did go (or should have gone) into the Marital Deduction Trust (Supp. CR 132-142).
The absence of accountings for the Trusts was apparent from the Probate
Court’s record when Judge Loving received the assignment to preside over this case
(see Application to Remove Independent Executrix and Testamentary Trustee and
Motion to Appoint Statutory Judge filed by William Rex Hoskins and exhibits
attached, Supp CR 4-42). It was apparent at the hearing held in July 2014 after
which the court ordered an accounting (CR 310), and it remained clear at the hearing
held on July 15, 2015.
The Probate Court did not authorize the Receiver to take control of any assets
or to manage any business, or even to sue Cliff for anything (CR 477). The Order
simply charges the Receiver with reporting on what was there in 1985 that should
have gone into one of the Trusts, where whatever that was is today, and if possible
what the assets are worth. App. B, CR 477-78. The court was careful to balance the
rights and interests of all parties. All parties have the opportunity to object to the
Receiver’s report on the assets before the Court or Dependent Administrator take
action. Id. So at this point, Cliff has no meaningful complaint because he cannot
18
say what assets the Receiver will identify or include in his report, or how the Probate
Court will rule on any party’s objection, if any is made. Cliff cannot articulate how
he is harmed by having the Receiver report on what assets should have gone into the
Trusts and what happened to those assets.
While the Probate Court might have called on the Dependent Administrator
to do the reporting, asking the previously appointed Receiver to report on the Trust
assets makes sense. The Receiver has been involved in the Probate Court
proceedings longer than the Dependent Administrator, and knows more of the
history of the case. The Receiver already has written an initial report on Cowboy’s
Estate and the looting of the two Trusts. App. C, Supp. CR 13-42. The Probate
Court reasonably concluded that the Receiver’s efforts, going back even before the
Dependent Administrator was appointed, give the Receiver a comparative
advantage. The court did not abuse its discretion.
IV. No Additional Evidence Was Necessary to Confirm the Prior Order
The Probate Court did not err by confirming the Arbitrator’s appointment of
the Receiver without additional evidence. This is so for at least three reasons.
A. Cliff has Waived Opposition
First, the Receiver had participated in the proceedings in the Probate Court
and that court had recognized the Arbitrator’s appointment of the Receiver for more
than a year. The Probate Court heard testimony from the Receiver on July 3, 2014
19
that Hazel had completely failed to make proper accountings7 and ordered Hazel to
account for the affairs of the Trusts from 1985 through August 2014 to the Receiver.
App. D; see also RR July 3, 2014, at p. 210 (ruling from bench). Hazel did not
appeal from that order or any implicit ruling appointing Mr. Rogers as Receiver in
May or August 2014. Neither did Cliff.
Then, before the July 15, 2015 hearing, the court explicitly rejected Hazel’s
challenges (not Cliff’s, because he filed none) to the Receiver. CR 199, 200. Cliff
filed no written opposition to the motion confirming the receiver. CR, passim.
At the hearing on July 15, 2015, Cliff’s counsel spoke not a single word
expressing any opposition to the request for an order from the Probate Court
confirming the Receiver. RR July 15, 2015, passim. Cliff said nothing before the
record closed at the hearing on July 15, 2015, to alert the Probate Court that he
opposed the confirmation of the Receiver, that he contended there were no grounds
for confirmation of the Receiver, or that he thought evidence was needed at the
hearing (id.).8
7
RR July 3, 2014, at pp. 70-85, 90-91, 93-99, 150, 155, 157, 168. Hazel’s counsel all but
agreed at that hearing that the Court needed to appoint someone to account for the Trusts.
Id. at p. 67 (not objecting if court appoints independent person to do accounting).
8
Hazel is the only party who filed a written opposition to the Motion for Order Appointing
Marcus Rogers as Receiver before the hearing. CR passim. Only counsel for Hazel and
counsel for Blake Hoskins spoke in opposition to the Motion at the hearing. CR 411; RR
July 15, 2015, at p. 90, 106. Curiously, Hazel, who passed away after the filing of this
appeal, did not join this appeal as an Appellant. Blake Hoskins is not an appellant here
either.
20
Cliff expressed no opposition until he joined in a written submission to the
Court after the hearing on July 15, 2015. CR 444. Even then, nothing in that written
submission alerted the Probate Court to anything like an argument that the Court
needed evidence to support what the Arbitrator had already ordered and what the
Court had already ordered more than a year before (id.).
The fact that there had never been an accounting for the assets or affairs of the
Trust was undisputed on July 3, 2014, was undisputed on July 15, 2015, and remains
undisputed today (see Supp. CR 132-142, Receiver’s Objections to Accounting).
Cliff (and the others with whom he joined) argued post-submission legal points
based on the Court’s record (CR 444-463), which included the hearing from July 3,
2014, at which the Court heard testimony from the Receiver on the complete absence
of any accounting for the assets or affairs of the Trusts and after which the Probate
Court entered the order on the Receiver’s First Amended Petition.
Cliff, thus, waived any complaint that an evidentiary hearing was needed or
that evidence was necessary for the Probate Court to confirm the prior appointment
of the Receiver. Cf. Marlow v. Palm Harbor Homes, 2002 Tex. App. LEXIS 6371,
*7 (Tex. App.—Houston [14th Dist.] Aug. 29, 2002, no pet.) (party never objected
to trial court compelling arbitration without evidentiary hearing).
B. Cliff has No Standing to Object to the Appointment of a Receiver for
the Trusts
Hazel’s death after the Probate Court made its Order does not change the
21
analysis. The Probate Court could not err by not considering something that had not
happened. In addition, Cliff has no standing to object to the Probate Court’s Order
confirming a Receiver for the Trusts. Only the Trustees would have standing. The
Trustees speak for the Trust, not Cliff. Interfirst Bank-Houston, N.A. v. Quintana
Petroleum Corp., 699 S.W.2d 864, 874 (Tex. App.—Houston [1st Dist.] 1985, writ
ref’d n.r.e.); see Grinnell v. Munson, 137 S.W.3d 706, 714 (Tex. App.—San Antonio
2004, no pet.). Even after Hazel’s death, the Trustees still manage and speak for the
Trusts now until the Probate Court says they do not. A trustee retains his authority
on behalf of a trust to wind down and make a final accounting even after an event
terminating the trust. TEX. PROP. CODE § 112.052; Sorrel v. Sorrel, 1 S.W.3d 867,
870 (Tex. App.—Corpus Christi 1999, no pet.). The Trustees have not appealed
from the Order Appointing the Receiver. Indeed, the Trustees supported and joined
in the request for the appointment of the Receiver (CR 346, 431, 434; Supp. CR
143).
C. The Probate Court Record and Procedural History Support the
Confirmation Order
The need for the Receiver to report on the assets of the Trusts is obvious from
the Probate Court’s record and procedural history. This Court recognized the “real
necessity … for the appointment of a receiver” in Gonzalez v. Gonzalez from “the
pleadings, the extended colloquy between the trial judge and counsel for the parties,”
and other statements “in the record.” Id., 469 S.W.2d at 632. This was true even
22
though the trial court in that case had declined to hear any evidence at all on the
subject. Id. In Tugman, supra, this Court found that while several hearings in the
case solely consisted of arguments of counsel, the court did find an affidavit, a
stipulation, and sworn testimony in other places in the record that supported the
court’s appointment of a receiver. Id., 2008 Tex.App. LEXIS 3914, * 14.
Further, when applying the abuse of discretion standard as required here, “the
reviewing court must view the evidence in the light most favorable to the actions of
the trial court and indulge every legal presumption in favor of the judgment.”
Tugman, at **12-13.
In this case, the record establishes that Cowboy Hoskins died in 1985. Thirty
years later, there was still no inventory or accounting of or for the Trusts—no proper
accounting for the Marital Deduction Trust and nothing at all for the Residuary Trust
(CR 188, 223 [Petitions for Accounting]; App. C, Supp. CR 13-42 [Receiver’s
Report]; Supp. CR 4-42, 43-86 [Applications to Remove Executrix and Trustee with
exhibits]; Supp. CR 132-142 [Receiver’s Objections to Accounting by Hazel]).
The Arbitrator “appointed [the] Receiver under Section 114.008(a)(5) of the
Texas Property Code,”9 which as stated above applies to remedy a breach of trust.
The record clearly supports the finding implicit in the Arbitrator’s Order that Hazel
had breached fiduciary duties to the beneficiaries of the Residuary Trust. Both
9
App. A, CR 15-16.
23
Successor Trustees contend there were significant improprieties and breaches of
fiduciary duties in the administration of Cowboy’s Estate. CR 346, 431, 434; Supp.
CR 143. The Dependent Administrator thinks there are questions of improprieties
and filed a lengthy Declaratory Judgment Action listing nine issues to be determined.
CR 326-28.
The Receiver obviously believes there are significant improprieties and
breaches of duty, having sought an accounting. CR 9, 188, 223. Hazel’s counsel all
but agreed on the record on July 3, 2014—a year earlier—that it would be
appropriate for someone to prepare an accounting for the Trusts. RR July 3, 2014,
at p. 67. The court heard testimony from the Receiver at the July 2014 hearing that
Hazel had failed to make proper accountings. RR July 3, 2014, at pp. 70-85, 90-91,
93-99, 150, 155, 157, 168. At that hearing the court clearly recognized the need for
someone to account for the Estate assets that should have gone into the Trusts. RR
July 3, 2014, at p. 16-21 (“[m]y concern is there is no way of knowing …” and
observing a successor trustee would not know what to do without knowing “what
goes where to fund those trusts…”); and at p. 210 (ordering Hazel to account to the
Receiver).
The Hoskins family had litigation or an arbitration pending or freshly
concluded in at least one of several forums for decades (see CR 382-384, listing of
lawsuits in Pet. for Declaratory Judgment).
24
There can be no genuine dispute about whether Hazel breached duties to the
Trusts. After the Probate Court ordered Hazel to file accountings for “each Trust
from April 2, 1985 until the date of the accounting” on August 1, 2014 (CR 310;
accord RR July 3, 2014, at p. 210), a year later on July 15, 2015, the Probate Court
still did not have a proper accounting for the Trusts. At the July 2015 hearing the
court expressed the great difficulty it had in the case because of the lack of
information about what the assets were in 1985 or what had happened to them. RR
July 15, 2015, at pp. 54, 56. Hazel never did anything to account for the Residuary
Trust. The Probate Court could tell from all the records and accountings that still
did not exist that “Mr. Hoskins’ estate was never properly administered.” RR July
15, 2015, at p. 53. And the Probate Court still needed to know what the assets of the
Estate should have been. RR July 3, 2014, at p. 158 & 171 (still needing to “find
out assets of the estate …”).
Facts and circumstances supporting the appointment, or, as here, confirmation
of a receiver appear from the Probate Court’s record and no additional evidence was
necessary. The undisputed facts and circumstances apparent from the Probate
Court’s records made clear to the Probate Court that the Arbitrator properly
appointed the Receiver in 2013 and the receiver needed to be confirmed. The record
supports that confirmation.
25
D. Additional Bases for Affirmance
Confirmation of the Receiver was proper under section 64.001(a)(3) of the
Civil Practice and Remedies Code, which provides for the appointment of a Receiver
when multiple parties assert claims or interests in the same assets. Here, the
Successor Trustees contend that assets Cliff and Hazel have said are theirs should
have gone into the Trusts—more specifically, into the Residuary Trust. It also was
an undisputed fact for the Probate Court that multiple parties claimed interests in the
same assets. Hazel and Cliff have claimed the assets for themselves. The Successor
Trustees and the Receiver contend the assets belong to the Residuary Trust.
Cliff says now for the first time on appeal that appointment of a Receiver
under Section 114.008(a)(5) of the Property Code can only be used to remedy a
breach of a duty by a trustee still serving at the time the receiver is appointed. Ant
Br. at p. 13-14. Section 114.008(a)(5) says nothing like that, and Cliff cites no
authority for that argument in this Court. Cliff never offered that argument to the
Probate Court, so it is waived. TEX. R. APP. P. 33.1.
The Probate Court was well within its discretion to conclude that the Receiver
is better placed than either of the Successor Trustees or the Dependent Administrator
to prepare the report on the assets of the Trusts. The Receiver has already prepared
an initial written report on the history and status of the Estate. Supp. CR at p. 13-
42. The Probate Court correctly recognized in 2014 that a successor trustee could
26
not even know the assets over which he served as a trustee until a written report
identified those assets. RR July 3, 2014, at p. 21. The record shows, accordingly,
that neither Successor Trustee nor the Dependent Administrator10 had yet undertaken
to prepare such a report; and none of them has objected to the Probate Court or to
this Court that the Receiver should not be the one to prepare the report (CR, passim).
None of them has filed an appeal.
In addition the Successor Trustees lack the resources they need to marshal or
protect the assets that should have gone into the Trusts. Id. In fact, the Successor
Trustee for the Residuary Trust informed the Probate Court that if the court did not
confirm the Receiver to assert claims to the Trust assets, the Successor Trustee
would need an ad litem to do that job; without the help of the Receiver or an ad litem,
the Successor Trustee said he would resign. Supp. CR 153-54. The Successor
Trustee for the Marital Trust also told the Probate Court the Trusts lacked the
resources so that without the Receiver the Trustees would not be able to pursue the
rights of the Trusts. RR, July 2015, 113-14.
Hazel never prepared a report in the almost three decades after Cowboy died.
Cliff has never offered in the Probate Court or in this Court to step up as a fiduciary
10
Perhaps the Dependent Administrator should have prepared such a report by now. She hasn’t,
though. Cliff says she has “abdicated” her responsibilities. Ant Br. at p. 22. Whether Cliff is right
or wrong about that doesn’t matter. Cliff hasn’t asked the Probate Court to remove her; removal
of the Dependent Administrator is not the issue in this appeal. Even if she were an independent
executrix, the Probate Court would have had the authority to appoint a receiver to assist in the
administration of the Estate. Trevino, 195 S.W.3d at 228-30.
27
to all beneficiaries and candidly account for the information the Probate Court has
ordered from the Receiver. The record clearly supports the Probate Court’s
confirmation of the 2013 appointment of the Receiver.
V. Cliff’s Complaints About Compensation To The Receiver Are Moot
And Waived
Finally, the Court should reject Cliff’s complaints regarding compensation of
the Receiver. Ant Br. at p. 23. The fees and expenses of a receiver are considered
court costs. Rusk v. Runge, 2003 Tex.App. LEXIS 9615, * 9 (Tex.App.—Houston
[14th Dist.] Nov. 13, 2003, pet. denied). The court has wide discretion in deciding
how to assess costs. Id. In the final judgment, the court can assess costs against the
party or parties who lose on the merits, or can allocate the costs among all parties if
there is reason for doing so. Id.
The Arbitrator—not the Probate Court—originally ordered that Leonard
Hoskins would pay the Receiver. App. A. Cliff doesn’t mention the fact that the
Arbitrator contemplated the possibility that Hazel would be required to pay the fees
at the conclusion of the proceedings. (Id.) What is more, the Probate Court rejected
the Arbitrator’s fee arrangement and ordered that the Receiver will be paid by the
Estate. App. B.
Thus, Cliff’s complaints about the prior payment arrangement the Arbitrator
established are empty. First, they are moot because the Receiver is now being paid
by the Estate, not by Leonard. Second, Cliff never said a word to the Probate Court
28
about any complaints about the Receiver’s compensation until after the hearing on
July 15, 2015 (as stated, he filed no opposition to the Receiver and did not make any
argument at the hearing). Third, neither the Receiver, the Movants who asked the
Probate Court to confirm the appointment of the Receiver, nor the Successor
Trustees had any responsibility for the compensation arrangements the Arbitrator
ordered. There is no evidence that Leonard Hoskins desired or requested the prior
compensation arrangement. In the end, the Probate Court removed the arrangement
on which Cliff bases his Complaint.
Nor is there any substance to (or evidence supporting) Cliff’s complaint that
the Receiver is biased. The Receiver has taken an oath to serve as Receiver. There
is no allegation—let alone evidence from any party—that the Receiver has violated
that oath or any of his duties as Receiver. RR, July 2015, passim. The testimony of
the Receiver relied on by Appellants in the trial court actually confirms that the
Receiver is doing his job properly. (CR 457-62) (CR 461: “Well, I started off with
sort of a blank slate, Joyce, looking for information, and the information I was
provided by both sides from all the pleadings has indicated that there’s some real
questions about what happened. And I’ve formed some opinions but I don’t have,
you know, enough to say they’re final and conclusory opinions.”) The excerpts
proffered in no way show any bias or prejudice. Reviewing the evidence in the light
most favorable to the trial court’s order, Appellants fail to establish that the Probate
29
Court abused its discretion.
CONCLUSION AND PRAYER
Because the Order is an interlocutory confirmation of an arbitration decision,
it is not appealable under Section 51.014 of the Civil Practice and Remedies Code.
Further, several prior orders confirming the Receiver were not appealed.
The Probate Court did not abuse its discretion in recognizing the Receiver the
Arbitrator appointed for the Trusts and charging the Receiver with reporting on the
assets that should have gone into the Trusts. The need for the report is obvious; the
circumstances showing the need for the report are undisputed and well-chronicled
in this record. Selecting the Receiver to do the reporting was within the Probate
Court’s discretion. Ordering a court-supervised professional to report on the assets
that should have funded testamentary trusts decades ago is not harsh or drastic.
This Court should dismiss this appeal, or affirm the Probate Court’s Order.
Appellees pray the Court to do so. They pray for all other relief to which they are
entitled.
30
Respectfully submitted,
Law Office of Audrey Mullert Vicknair
802 N. Carancahua, #2100
Corpus Christi, TX 78401
(361) 884-5400 Telephone
avicknair@vicknairlaw.com
BY: /s/ Audrey Mullert Vicknair
Audrey Mullert Vicknair
State Bar No. 14650500
Counsel for All of these Appellees
Bingham & Lee, P.C.
319 Maverick Street
San Antonio, Texas 78212
(210) 224-1819 Telephone
royal@binghamandlea.com
BY: /s/ Royal B. Lea, III
Royal B. Lea, III
State Bar No. 12069680
Counsel for Appellees Lee Roy Hoskins,
III, Lee Ann Hoskins Kulka, and Andrea
Clare Jurica
Ylitalo Law Firm
319 Maverick Street
San Antonio, TX 78212
(210) 846-8595 Telephone
d.ylitalo@ylitalolaw.com
BY: /s/ David L. Ylitalo
David L. Ylitalo
State Bar No. 22155500
Counsel for Appellees Leonard Hoskins,
William Rex Hoskins, and Daniel Kenton
Hoskins
31
CERTIFICATE OF COMPLIANCE
I certify that by my signature below that, according to the feature of the Word
program used to create this Brief, this Brief contains 7,644 words, excluding any
parts exempted by Tex. R. App. P. 9.4(i)(1), and is in compliance with Rule 9.4(i)
of the Texas Rules of Appellate Procedure.
/s/ Audrey Mullert Vicknair
Audrey Mullert Vicknair
Royal B. Lea, III
David L. Ylitalo
CERTIFICATE OF SERVICE
I hereby certify that, on the 17th day of December, 2015, a true and correct
copy of the above and foregoing has been served by: United States First-Class
Mail; Facsimile Transmission; CM/RRR; E-Mail – tex.gov electronic
service; and/or Hand Delivery on the following:
All counsel of Record
/s/ Audrey Mullert Vicknair
Audrey Mullert Vicknair
Royal B. Lea, III
David L. Ylitalo
32
CAUSE NO. 13-15-00487-CV
IN THE THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI-EDINBURG, TEXAS
IN THE ESTATE OF LEE ROY HOSKINS, SR.
On appeal from the Live Oak County Court, Live Oak County, Texas
Trial Court No. 1785, Hon. Joe H. Loving, Presiding
APPELLEES’ APPENDIX
A Arbitrator’s Order Appointing Receiver, dated April 16, 2013 (CR 15-16)
B Judge Loving’s Order Appointing Receiver, dated October 1, 2015 (CR 477)
C Receiver’s Report to Arbitrator, dated July 28, 2013 (Supp. CR 13-42)
D Probate Court’s Order on Receiver’s First Amended Petition, dated August
1, 2014 (Supp. CR 128)
33
• •
IN THE UNITED STATES BMlOlUPTCY COURT
FOR THE WRSTERN DISTRJCT OF TEXAS
CORPUS CHRISTI DIVISION
lNRE: * CASE #01-23337-C-1 l
* ADVERSARY #01-2120
SOUTHWEST RANCHING, INC., •
DEBTOR *
•
LEE ROY HOSKINS * IN ARBITRATION
• BEFORE
vs. * THOMAS J. SMITH
•
CLIFF HOSKINS AND HAZEL HOSKINS *
ARBITRATOR'S ORDER APPOINTING RECEIVER
On the 16'b day of April, 2013, Thomas J. Smilh, the Arbitrator, considered the request by
Leonard K. Hoskins for appointment of a Recei verpursuanl to Article 114.008 ofthe Texas Property
Code. After considering such request, the Arbitrator is of the opinion that such Receiver shall be
appointed.
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that Marcus P. Rogers
is hereby appointed a Receiver under Section J14.008(a)(5) of the Texas Property Code with the
powers and responsibilities set forth therein, as well as those in the Texas Probate Code; un:>1t1:>1
•• •
NO. 1785
ESTA'IEOF § .
§ .
IN nm··;couN"rY couar·
I.BB ROY li9sKINs•.sR. § OF ··
· DECBASED ·
.
I
I LIVE
. . OAK
. .
COUNTY TEXAS
: . .
.
OBpER~REC1JVD~•'W81~-mmsm
.· . On~ 2nd day of July, 2014,_the.Co~ heard tho FU:st A~ Potitioit ft1ed by~
. . . .
Ropn, as leceiver Of the ~tal ~Trust and The Resid~ Trusi mider the 4st W'ill
. .
and T~ of Lee Roy Homnj, .s r., Deceased (the ~'Will"). Havmg heard:!be evidence ~
' • • # •
'the irg11mc~1~·of.~l, fhc·~ ftnda thatlbe toUowina ~:should be eQtaed.
.
. . . .
. tt -~ TR&B~ORE ORDERED that Hazel Q. Hoskins,' former~ BXccutor
o~ the··~ of Lee Roy 'lfoskiiu,· S~. ind former Trustee. of the ~tal DeduQtiO~ Trust aDd
.. . . . . . . ~ . . . .
:~Trust~~ the win. shall file·complete and~ accountinp_of tbe &tate
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2, ;~85~ ~til the~ o~tbe .cce;Untin&t ~ io T~ ~ ~ §404.001 ~
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·uatu the dato _ofthe~ pUrsuailt to TeXai Property Code
·o feaCh Trwit from April 2, i9ss,_
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IT is. Ft1R"1:tµtk ·o~EUD ~ ~ _accountiaa for tbC ~ aha1t:be fil~ with the .. -(~, ··
f\....I .
1- . .
Ro&alt
. Receiver,
.
with copies of the trust acx:ountfngs
. ... dcliven:d. to:ihc PersouafR.cpresentative.of
. .
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the Estate, the Successor Tnutee of~ Marital Dcdwrtion·Trust Wt the Successor Trustee of the
' • . ' I . '
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ResidwUy Trust, ff any arc ~ on the ctate 1hat the ~ me.dellvCred, aad all other
. parties. A 0opy ofthe 1rust accoundnp shall also be filed with the Pourt . . · .
rr ~.'1JR.1llER
.
ORDERED that all thn:c aocoµntinp s~
. : : be filed. and. coPtes deli~
.
on or bef~ ~- 15, 2014: ·
,; . ' ·. '• . .
310
.. HARTNETT LAV flRA tax::.! I 4ts:>:> 1ts:>1
··:_ .
~ 2014.
...
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Order- RlceM:2"~ First Amended haiSkm
PqeJ ..
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311