Estate of Lee Roy Hoskins Sr.

ACCEPTED
13-15-00487-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
11/10/2015 2:13:47 PM
Dorian E. Ramirez
CLERK
No. 13-15-00487-CV
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
In the Court of Appeals for the 11/10/2015 2:13:47 PM
DORIAN E. RAMIREZ
Thirteenth Court of Appeals District Clerk
Corpus Christi, Texas
ESTATE OF LEE ROY HOSKINS, SR., Deceased,
ON APPEAL FROM THE COUNTY COURT, LIVE OAK COUNTY, TEXAS
FIRST AMENDED BRIEF OF APPELLANTS
COLONEL CLIFTON HOSKINS and HOSKINS, INC.
DYKEMA COX SMITH
Ellen B. Mitchell
State Bar No. 14208875
emitchell@dykema.com
C. David Kinder
State Bar No. 11432550
dkinder@dykema.com
Melanie L. Fry
State Bar No. 24069741
mfry@dykema.com
112 East Pecan Street, Suite 1800
San Antonio, Texas 78205-1521
Telephone: (210) 554-5500
Facsimile: (210) 226-8395
Attorneys for Appellants
Colonel Clifton Hoskins and Hoskins, Inc.
APPELLANTS REQUEST ORAL ARGUMENT
IDENTITY OF PARTIES AND COUNSEL
Colonel Clifton Hoskins Appellants/defendants
Hoskins, Inc.
DYKEMA COX SMITH Attorneys for appellants Colonel Clifton
Ellen B. Mitchell Hoskins and Hoskins, Inc.
State Bar No. 14208875
C. David Kinder
State Bar No. 11432550
Melanie L. Fry
State Bar No. 24069741
112 East Pecan Street, Suite 1800
San Antonio, Texas 78205-1521
Estate of Hazel Q. Hoskins1 Appellee/defendant
Joyce W. Moore Former attorneys for Hazel Q. Hoskins
Chris Hodge
Langley & Banack, Inc.
745 East Mulberry Avenue, Suite 900
San Antonio, Texas 78212
R. Dyann McCully, Dependent Appellee/plaintiff
Administratrix of the Estate of Lee Roy
Hoskins, Sr., Deceased
BAKUTIS, MCCULLY & SAWYER, P.C. Attorneys for R. Dyann McCully
David C. Bakutis
R. Dyann McCully
500 West Seventh Street, Suite 725
Fort Worth, Texas 76102
Marcus P. Rogers Appellee/receiver
1
See advisory below.
ii
YALE LAW FIRM, P.C. Attorneys for Marcus P. Rogers
Glen A. Yale
Ragan Robichaux
2135 East Hildebrand Avenue
San Antonio, Texas 78209
THE HARTNETT LAW FIRM Attorneys for Marcus P. Rogers
James Hartnett, Jr.
220 North Peal Street
Dallas, Texas 75201-7315
George P. “Trace” Morrill, III Trustee of the Residuary Trust
MORRILL & MORRILL, PLLC Attorneys for George P. “Trace”
George P. “Trace” Morrill, III Morrill, III
309 North Washington Street
Beeville, Texas 78102
Joe L. Carter, Jr. Trustee of the Marital Deduction Trust
The Petroleum Center
4657-C1 Business 181-N
Beeville, Texas 78102
Kevin P. Kennedy Attorney for Joe L. Carter, Jr.
Attorney at Law
1920 Nacogdoches Road, Suite 100
San Antonio, Texas 78209-2241
Southwest Ranching, Inc., Lee Roy Appellees/defendants
Hoskins, Jr.
Lee Roy Hoskins, III, Andrea Clare Appellees/defendants
Jurica, and Lee Ann Hoskins Kulka
BINGHAM & LEA, P.C. Attorneys for Southwest Ranching, Inc.,
Royal B. Lea, III Lee Roy Hoskins, Jr., Lee Roy Hoskins,
319 Maverick Street III, Andrea Clare Jurica, and Lee Ann
San Antonio, Texas 78212 Hoskins Kulka
William Rex Hoskins Appellee/defendant
iii
JACKSON WALKER, LLP Attorneys for William Rex Hoskins
Mark Comuzzie
Julia W. Mann
112 East Pecan Street, Suite 2400
San Antonio, Texas 78205
Leonard K. Hoskins Appellee/defendant
COATS ROSE, P.C. Attorneys for Leonard K. Hoskins
David L. Ylitalo
1020 Northeast Loop 410, Suite 800
San Antonio, Texas 78209
Brent C. Hoskins Appellee/defendant
HORNBERGER FULLER & GARZA Attorneys for Brent C. Hoskins
Brendan C. Holm
David W. Navarro
The Quarry Heights Building
7373 Broadway, Suite 300
San Antonio, Texas 78209
Blake Hoskins Appellee/defendant
UHL, FITZSIMONS, JEWETT & BURTON, Attorneys for Blake Hoskins
PLLC
Ezra A. Johnson
4040 Broadway, Suite 430
San Antonio, Texas 78209
iv
TABLE OF CONTENTS
Page(s)
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF AUTHORITIES .................................................................................. vii
ADVISORY CONCERNING THE PARTIES.........................................................ix
STATEMENT OF THE CASE.................................................................................ix
ISSUES PRESENTED...............................................................................................x
STATEMENT OF FACTS ........................................................................................1
I. Len Hoskins asserts claims against his mother and brother in
arbitration.........................................................................................................1
II. Rex Hoskins initiates the present litigation to remove his
grandmother as executrix and trustee ..............................................................3
III. Three of Cowboy’s grandchildren seek appointment of a
receiver.............................................................................................................4
SUMMARY OF THE ARGUMENT ........................................................................6
STANDARD OF REVIEW .......................................................................................8
ARGUMENT AND AUTHORITIES........................................................................9
I. Receivership is a drastic remedy that courts must use with caution. ..............9
II. The trial court abused its discretion because there is no
evidence to support the order appointing a receiver......................................10
III. The trial court abused its discretion because the receivership is
not authorized under the Texas Trust Code...................................................12
v
IV. The trial court abused its discretion because the receivership is
not authorized under chapter 64 of the Civil Practice and
Remedies Code ..............................................................................................15
A. No Trust assets are in danger of being lost, removed, or
materially injured ................................................................................15
B. Section 64.001(a)(6) is not available to support
appointing a receiver in this case ........................................................17
C. Equity does not support appointing a receiver because it
might be “efficient.” ............................................................................19
D. Equity does not support anointing a receiver for purposes
not requested by any party ..................................................................21
V. The trial court abused its discretion because the receivership is
not authorized under the common law ..........................................................23
VI. The trial court abused its discretion by appointing an individual
whose fees were paid by one of the parties ...................................................23
CONCLUSION AND PRAYER .............................................................................25
CERTIFICATE OF COMPLIANCE.......................................................................26
CERTIFICATE OF SERVICE ................................................................................27
APPENDIX ..................................................................................................................
vi
TABLE OF AUTHORITIES
Page(s)
Cases
Alcantar v. Oklahoma Nat’l Bank,
47 S.W.3d 815 (Tex. App.—Fort Worth 2001, no pet.).....................................12
Bocquet v. Herring,
972 S.W.2d 19 (Tex. 1998)...................................................................................9
Elliott v. Weatherman,
396 S.W.3d 224 (Tex. App.—Austin 2013, no pet.)......... 8, 9, 10, 12, 14, 17, 23
Estate of Benson,
No. 04-15-00087-CV, 2015 WL 5258702 (Tex. App.—San
Antonio Sept. 9, 2015, no pet.).................................................................9, 10, 12
Greater Fort Worth v. Mims,
574 S.W.2d 870 (Tex. App.—Fort Worth 1978, )..............................................10
Grinnell v. Munson,
137 S.W.3d 706 (Tex. App.—San Antonio 2004, no pet.) ..........................16, 20
Gunther v. Dorff,
296 S.W.2d 638 (Tex. Civ. App.—Waco 1956, writ dism’d)............................15
Hoskins v. Hoskins,
No. 04-13-00859-CV, 2014 WL 5176384 (Tex. App.—San
Antonio Oct. 15, 2014, pet. filed)...................................................................2, 24
Hughes v. Marshall Nat’l Bank,
538 S.W.2d 820 (Tex. Civ. App.—Tyler 1976, writ dism’d w.o.j.) ......10, 16, 17
Interfirst Bank-Houston, N.A. v. Quintana Petro. Corp.,
699 S.W.2d 864 (Tex. App.—Houston [1st Dist.] 1985,
writ ref’d n.r.e.).............................................................................................20, 22
Krumnow v. Krumnow,
174 S.W.3d 820 (Tex. App.—Waco 2005, pet. denied) ....................9, 10, 12, 23
vii
Mueller v. Beamalloy, Inc.,
994 S.W.2d 855 (Tex. App.—Houston [1st Dist.] 1999, no pet.)................18, 19
Parks v. Developers Sur. & Indem. Co.,
302 S.W.3d 920 (Tex. App.—Dallas 2010, no pet.) ..........................................11
Spiritas v. Davidoff,
459 S.W.3d 224 (Tex. App.—Dallas 2015, no pet.) ......................................8, 12
Wiley v. Sclafani,
943 S.W.2d 107 (Tex. App.—Houston [1st Dist.] 1997, no pet.)......................23
Zanes v. Mercantile Bank & Trust Co.,
49 S.W.2d 922 (Tex. Civ. App.—Dallas 1932, writ ref’d) ................................24
Statutes
TEX. CIV. PRAC. & REM. CODE § 64.001(a) .............................................................18
TEX. CIV. PRAC. & REM. CODE § 64.001(a)(1)-(5) ........................................7, 18, 19
TEX. CIV. PRAC. & REM. CODE § 64.021(a)(2) ........................................................23
TEX. CIV. PRAC. & REM. CODE § 64.001(a)(3) ..................................7, 15, 16, 17, 18
TEX. CIV. PRAC. & REM. CODE § 64.001(a)(6) ......................................7, 115, 17, 23
TEX. CIV. PRAC. & REM. CODE § 64.021(a)(2) ....................................................... 23
TEX. PROP. CODE § 114.008(a) ......................................................4, 6, 12, 13, 14, 15
TEX. PROP. CODE § 114.008(a)(5)............................................................................12
Rules
TEX. R. APP. P. 9.4(i)(1) ...........................................................................................26
viii
ADVISORY CONCERNING THE PARTIES
This is an interlocutory appeal from an order appointing a receiver for the
assets of two testamentary trusts created under the will of Lee Roy Hoskins, Sr.
(“Cowboy”). Those trusts are known as the Marital Deduction Trust and the
Residuary Trust (collectively, “Trusts”). Supp. CR __.2 Each Trust terminates by
its own terms upon the death of Hazel Hoskins. Id. at __. It is undisputed that
Hazel Hoskins died on October 26, 2015.
As a result of Hazel Hoskins’ death and the termination of the Trusts, Cliff
Hoskins and Hoskins, Inc. have filed in the trial court a motion to vacate the order
appointing the receiver and to dismiss most of the parties to this action. Tab A.
That motion has not yet been heard or ruled on. Cliff and Hoskins, Inc. timely file
this brief in an effort to avoid delaying this accelerated, interlocutory appeal. They
will, however, notify this Court immediately if the trial court takes any action that
results in rendering this appeal moot.
STATEMENT OF THE CASE
Lee Roy Hoskins, Sr., created two testamentary trusts—the Marital
Deduction Trust and the Residuary Trust (collectively, “Trusts”), primarily for the
benefit of his wife, Hazel Hoskins. Supp. CR __. Hazel was named independent
2
Cliff Hoskins and Hoskins, Inc. have requested a supplemental clerk’s record including the Last
Will and Testament of Lee Roy Hoskins, Sr. and the orders appointing the current Trustees of the
testamentary trusts. The contents of the will and the appointment of the current Trustees are
uncontested matters. Nevertheless, Cliff and Hoskins, Inc. will supply the missing citations upon
receipt of the supplemental record.
executrix of Cowboy’s Estate and a trustee of each Trust. Supp. CR __. She
resigned each of those positions in May 2014.3 CR 201, 203, 213. The court then
appointed a dependent administratrix with will attached for the Estate, and a new
trustee for each Trust. Supp. CR __. There are no allegations that either of the
new trustees has engaged in, or might engage in, any breach of trust or breach of
fiduciary duty.
Certain contingent beneficiaries of the Residuary Trust (three of Cowboy’s
grandchildren) filed a motion to appoint a receiver over the assets of both Trusts.
CR 373. The trial court held a hearing on that motion on July 15, 2015. RR 61-
136. At that time, the court heard argument from the multitude of parties involved
in this case, but no evidence was offered or received. See id. The court requested
additional briefing, RR 125-36, which it received and reviewed before announcing
that it would appoint Marcus Rogers as receiver for both Trusts, see CR 444, 463,
474, 477. The court signed an order making that appointment, setting the amount
of Rogers’ bond, and specifying Rogers’ duties on October 1, 2015. CR 477-78.
ISSUES PRESENTED
1. The trial court heard argument of counsel in support of and in opposition to
the motion to appoint a receiver. No party offered any evidence at the
hearing on the motion.
Did the trial court abuse its discretion by granting a motion to appoint a
receiver that was not supported by any evidence?
3
In connection with the Residuary Trust, Hazel actually filed a “declination to serve and/or
resignation” as trustee. See CR 213.
x
2. Movants sought appointment of a receiver under the Texas Property Code
and the Civil Practice and Remedies Code. Movants did not establish the
necessary elements under either of these statutes, nor did they establish any
equitable justification for appointing a receiver.
Did the trial court abuse its discretion by granting a motion to appoint a
receiver that is not supported by either law or equity?
3. Marcus Rogers was appointed as receiver for the trust assets in an arbitration
proceeding. His fees and expenses were paid by Len Hoskins, one of the
parties to this litigation. The trial court appointed Marcus Rogers as receiver
in this matter.
Did the trial court abuse its discretion by appointing as receiver an
individual who was being compensated by one of the parties?
xi
No. 13-15-00487-CV
In the Court of Appeals for the
Thirteenth Court of Appeals District
Corpus Christi, Texas
ESTATE OF LEE ROY HOSKINS, SR., Deceased,
ON APPEAL FROM THE COUNTY COURT, LIVE OAK COUNTY, TEXAS
FIRST AMENDED BRIEF OF APPELLANTS
COLONEL CLIFTON HOSKINS and HOSKINS, INC.
TO THE HONORABLE JUSTICES OF THE COURT:
NOW COME Colonel Clifton Hoskins (“Cliff”) and Hoskins, Inc., and
present their Brief of Appellants, demonstrating that the trial court abused its
discretion (1) by granting a motion to appoint a receiver that is not supported by
law, equity, or any evidence, and (2) by appointing as receiver an individual who
was compensated by one of the parties.
STATEMENT OF FACTS
I. Len Hoskins asserts claims against his mother and brother in
arbitration.
Lee Roy Hoskins, Sr. (“Cowboy”) died testate in 1985. CR 6-7. In his will,
he created two trusts—the Marital Deduction Trust and the Residuary Trust
(“Trusts”). Supp. CR __. His wife, Hazel, was named independent executrix of his
estate and trustee of both Trusts. Supp. CR __. Hazel was also a beneficiary of
both Trusts.
Certain of Cowboy’s children and grandchildren were dissatisfied with
Hazel’s performance as executrix and trustee, and the family (including family
businesses) has been embroiled in litigation for decades. In one such dispute,
Leonard Hoskins (“Len”) sued Hazel (his mother), Cliff (his brother), and Hoskins,
Inc. (a family business started by his parents). See Hoskins v. Hoskins, No. 04-13-
00859-CV, 2014 WL 5176384, at *1 (Tex. App.—San Antonio Oct. 15, 2014, pet.
filed). That dispute proceeded in arbitration. Id. The arbitrator dismissed all of
Len’s claims against Cliff and Hoskins, Inc., leaving only claims against Hazel
pending in arbitration. Id. at *2. The district court confirmed the arbitrator’s
decision and the Fourth Court of Appeals affirmed the judgment of the district
court. Id. at *1-2, 6.
After Len’s claims against Cliff and Hoskins, Inc. were dismissed, the
arbitrator appointed Marcus Rogers as receiver of the assets of the Marital
Deduction Trust and the Residuary Trust. CR 15. The arbitrator later resigned and
the arbitration has been abated since November 12, 2013. CR 90.
2
II. Rex Hoskins initiates the present litigation to remove his grandmother
as executrix and trustee.
The present litigation was initiated by Rex Hoskins (Len’s son and
Cowboy’s grandson) to remove Hazel as Executrix of Cowboy’s Estate and
Trustee of the Trusts. See CR 229. In November 2013, Marcus Rogers petitioned
the trial court in this matter to confirm his appointment as receiver and to authorize
him to take possession of Estate and Trust property and records. CR 9. Hazel—
the only respondent before the court at the time—strenuously opposed the motion.
CR 81, 91, 98, 116, 140, 166. The trial court denied her opposition. CR 197-200.
On May 6, 2014, Rogers filed a First Amended Petition, in which he sought
an accounting from Hazel as executrix and trustee. CR 188. In the alternative,
Rogers asked the court to appoint him as receiver of the Trusts and/or the Estate.
CR 189.
Hazel resigned as independent executrix and trustee on May 28, 2014. CR
CR 201, 203, 213. On August 18, 2014, the court appointed Dyann McCully as
Dependent Administratrix of Cowboy’s Estate. Supp. CR __. George P. “Trace”
Morrill, III, (“Residuary Trustee”) was eventually appointed trustee of the
Residuary Trust, and Joe L. Carter, Jr. (Marital Deduction Trustee”) was
eventually appointed trustee of the Marital Deduction Trust. Supp. CR __.
The Dependent Administratrix filed a Petition for Declaratory Judgment
naming Cliff Hoskins, Len Hoskins, Lee Roy Hoskins, Jr. (“Lee Roy Jr.”), Lee
3
Roy Hoskins, III, Andrea Clare Hoskins, Lee Ann Hoskins Kulka, Brent Carlson
Hoskins, Blake Clifton Hoskins, William Rex Hoskins (“Rex”), Daniel Kenton
Hoskins, Hoskins, Inc., Southwest Ranching, Inc., Marcus P. Rogers, Gary Jones4
(then trustee of the Marital Deduction Trust), and George P. “Trace” Morrill, III, as
respondents. CR 321. In her petition, and in a subsequent Amended Petition for
Declaratory Judgment, the Dependent Administratrix asked the court, essentially,
to declare whether the Estate, the Trusts, or any of beneficiaries of the Estate or
Trusts had any claims against one another and, if so, what those claims were. CR
327-29, 385-88.
III. Three of Cowboy’s grandchildren seek appointment of a receiver.
In April, 2015, Lee Roy Hoskins, III, Andrea Clare Jurica, and Lee Ann
Hoskins Kulka5 (“Movants”) filed a motion asking the court to appoint Marcus
Rogers as receiver of the assets of the Marital Deduction Trust and the Residuary
Trust (“Receivership Motion”). CR 373. That request was purportedly made
pursuant to section 114.008 of the Texas Trust Code, chapter 64 of the Texas Civil
Practice and Remedies Code, and common law. CR 373. The factual basis for the
motion is the assertion that “[n]either Trustee currently has funds with which to
pay counsel to prosecute the [unidentified] claims and causes of action of the
4
Joe Carter was substituted for Gary Jones in the First Amended Petition. CR 379.
5
Lee Roy Hoskins, III, Andrea Clare Jurica, and Lee Ann Hoskins Kulka are grandchildren of
Cowboy and Hazel Hoskins.
4
Trusts.” CR 374. The motion does not explain any legal grounds for appointing a
receiver, but merely makes reference to the court’s authority under the Texas Trust
Code to appoint a receiver to “remedy a breach of trust.” CR 373. The motion
expressly states that the Trustees should not be removed but that a receiver should
be appointed to work with them because the Trustees lack funds to prosecute
unidentified claims. CR 374.
The court held a hearing on the Receivership Motion on July 15, 2015. The
court heard argument from various parties on both sides of the issue, but no
evidence was offered or admitted. See RR RR 61-136. Some of the parties
thereafter filed additional briefing on the issue at the court’s request. See CR CR
444, 463, 474, 477; RR 125-36.
On October 1, 2015, the court signed an order appointing Marcus Rogers as
receiver for the Trusts. CR 483. The order sets Rogers’ bond at $50,000 and
directs that his fees are to be paid out of the Estate. CR 483. The order further
directs Rogers to prepare a written report, based on specifically identified
documents, stating (1) what Estate assets, if any, should have been distributed to
the Marital Deduction Trust or the Residuary Trust, (2) where each asset is
currently located, (3) who currently owns each asset, and (4) the approximate fair
market value of each asset. CR 483-84. Rogers is directed to serve his report on
the Dependent Administratrix, the Trustee of each Trust, and each party to this
5
litigation. CR 484.
Following receipt of Rogers’ report, the Dependent Administratrix is
directed to “file a Motion with the Court seeking authority to transfer the assets or
claim for the assets to the Residuary Trust and/or Marital Deduction Trust . . . .”
CR 484. The Trustees of each Trust may then determine whether to pursue
litigation to recover assets that should have been, but were not, distributed to his
respective Trust. CR 484. Rogers has no authority to pursue any litigation in the
absence of a further court order. CR 484.
SUMMARY OF THE ARGUMENT
Appointing a receiver is a drastic remedy that must be supported by
evidence and legal or equitable grounds. In this case, no evidence was offered,
much less admitted or considered, at the hearing on the motion to appoint a
receiver. Rather, the trial court appointed a receiver based only on the arguments
of counsel. This defect alone evidences the court’s abuse of discretion and
warrants vacating the Order Appointing Receiver.
In addition to the lack of evidentiary support, appointing a receiver in this
case is not supported by either law or equity. Section 114.008 of the Texas Trust
Code authorizes appointment of a receiver to remedy a breach of trust by a trustee.
But, not only is there no evidence of any breach of trust, Movants affirmatively
alleged and argued that the current Trustees have not committed any wrongdoing.
6
Movants hinted at some possible wrongdoing by Hazel during the time she
acted as trustee, but such insinuation is insufficient to support the court’s order
under section 144.008. First, Movants’ vague allegations do not constitute
evidence. And, second, appointing a receiver is not necessary to remedy any
breach of trust because Hazel is no longer the trustee of either Trust. She cannot
commit any future breach, and any past breach may be remedied by the current
Trustees or Trust beneficiaries.
The trial court’s order is also not supported by section 64.001(a)(3) of the
Civil Practice and Remedies Code. That statute requires a showing that the
property for which a receiver is sought must be in danger of being lost, removed,
or materially injured. Movants made no such showing in the trial court.
Movants also invoke section 64.001(a)(6) of the Civil Practice and Remedies
Code, which allows appointment of a receiver under the rules of equity in
situations not covered by sections 64.001(a)(1) through (5). That section does not
apply because this situation is covered by section 64.001(a)(3)—Movants simply
failed to sustain their burden of proof under that section.
In any event, equity does not support appointing a receiver in this case. The
only justifications offered at the hearing were (1) the Trusts might have claims but
the Trustees do not have the resources to pursue them, and (2) appointing a
receiver would be “efficient” because it would reduce the number of parties and
7
lawyers involved in the case.
As to the first argument, the law is well-settled that trust beneficiaries may
pursue legal action on behalf of a trust if the trustee cannot or will not do so. No
receiver is necessary to preserve and pursue these unidentified claims. As for
“efficiency,” it is clear from the record that the multiple parties in this case have
conflicting interests. No one party, attorney, or receiver can adequately represent
and protect all of those interests. It is not equitable to streamline the legal process
at the expense of some of the parties’ legal rights. That, however, is the result of
the trial court’s order.
Finally, the trial court abused its discretion by appointing as receiver an
individual whose fees and expenses have admittedly been paid (for years) by one
of the parties to this litigation.
The trial court abused its discretion by granting a motion to appoint a
receiver that is not supported by evidence, law, or equity. The court further abused
its discretion by appointing as receiver an individual who is not disinterested in the
proceedings and is, therefore, disqualified to serve as receiver. For these reasons,
this Court should vacate the Order Appointing Receiver.
STANDARD OF REVIEW
An order appointing a receiver is reviewed for abuse of discretion. Spiritas
v. Davidoff, 459 S.W.3d 224, 231 (Tex. App.—Dallas 2015, no pet.); Elliott v.
8
Weatherman, 396 S.W.3d 224, 228 (Tex. App.—Austin 2013, no pet.). “It is an
abuse of discretion for a trial court to rule arbitrarily, unreasonably, or without
regard to guiding legal principles, or to rule without supporting evidence.”
Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998) (citation omitted); accord
Elliott, 396 S.W.3d at 228.
In addition, “a trial court has no discretion in determining what the law is or
applying the law to the facts.” Elliott, 396 S.W.3d at 228. “Thus, a clear failure by
the trial court to analyze or apply the law correctly will constitute an abuse of
discretion.” Id.
ARGUMENT AND AUTHORITIES
I. Receivership is a drastic remedy that courts must use with caution.
“Whether authorized by statute or by equity, the appointment of a receiver is
considered a harsh, drastic, and extraordinary remedy that must be used
cautiously.” Estate of Benson, No. 04-15-00087-CV, 2015 WL 5258702, at *5
(Tex. App.—San Antonio Sept. 9, 2015, no pet.); accord Elliott, 396 S.W.3d at
228. In fact, it is considered such “an extraordinarily harsh remedy” that “courts
are particularly loathe to utilize [it].” Krumnow v. Krumnow, 174 S.W.3d 820, 828
(Tex. App.—Waco 2005, pet. denied).
For this reason, the appellate courts must be especially diligent in ensuring
that trial courts grant this drastic form of relief only in cases where receivership is
9
supported by both the law and the evidence.
II. The trial court abused its discretion because there is no evidence to
support the order appointing a receiver.
Generally, a court abuses its discretion by acting without supporting
evidence. Elliott, 396 S.W.3d at 228; Krumnow, 174 S.W.3d at 828. This is no
less true in the context of an order appointing a receiver: “[N]o receiver can be
appointed without the necessity therefor being shown to exist by legal evidence.”
Hughes v. Marshall Nat’l Bank, 538 S.W.2d 820, 824 (Tex. Civ. App.—Tyler
1976, writ dism’d w.o.j.) (emphasis added); see Greater Fort Worth v. Mims, 574
S.W.2d 870, 872 (Tex. App.—Fort Worth 1978, ) (“the appointment of a receiver
will be reversed where no evidence supports it”). Further, the burden of proof falls
on the party seeking the appointment of a receiver “to show the existence of
circumstances justifying the appointment of a receiver.” Estate of Benson, 2015
WL 5258702, at *5; accord Elliott, 396 S.W.3d at 230.
Movants in this case wholly failed to sustain their burden of proving any
circumstances justifying the appointment of a receiver. See Estate of Benson, 2015
WL 5258702, at *5; accord Elliott, 396 S.W.3d at 230. In fact, not only did
Movants fail to offer any evidence at all at the hearing on the Receivership Motion,
Movants and Rogers repeatedly asserted that they were not offering evidence:
MR. LEA (counsel for Movants): . . . None of this is evidence. I
don’t intend to offer anything in here as evidence. It’s an aid for the
Court.
10
RR 63-64.
THE COURT: Let me – and I apologize for having to interrupt, but
just out of abundance of caution, are you suggesting to the Court that
this should be an exhibit?
MR. LEA: No, Your Honor.
RR 66.
MS. MOORE (counsel for Hazel Hoskins): Your Honor, just so the
record is clear, I don’t mind Mr. Hartnett [counsel for Rogers]
arguing, but I do object to the extent that the Court might consider any
of this testimony or evidence. . . .
THE COURT: . . . I agree with you. It’s all argumentative and I
don’t consider any of it as evidentiary, but proceed.
MS. MOORE: Thank you.
MR. HARTNETT, JR.: Wasn’t intended to be evidence . . . .
RR 88-89.
THE COURT: . . . I rule basically that you’re right; he should not go
into anything as factual. That’s simply an argumentative [sic].
MR. HARTNETT, JR.: We’re just talking about argument here.
MS. MOORE: Just want to keep my record clean, Your Honor.
MR. HARTNETT, JR.: I’m not beginning to suggest that I give any
evidence here . . . .
RR 115-16.
The lack of evidence is also implicitly recognized in the trial court’s order,
which states that the court “considered the motion, the responses thereto, and the
argument of counsel.” CR 483. See Parks v. Developers Sur. & Indem. Co., 302
S.W.3d 920, 923 (Tex. App.—Dallas 2010, no pet.) (recitals contained in judgment
11
are presumed true unless there is a conflict between the judgment and record);
Alcantar v. Oklahoma Nat’l Bank, 47 S.W.3d 815, 823 (Tex. App.—Fort Worth
2001, no pet.) (same).
Because no evidence was offered or admitted to support the Receivership
Motion, Movants failed to sustain their burden of proof. See Estate of Benson,
2015 WL 5258702, at *5; Elliott, 396 S.W.3d at 230. Because Movants failed to
sustain their burden of proof, the trial court abused its discretion by granting the
motion and appointing a receiver. See Elliott, 396 S.W.3d at 228; Krumnow, 174
S.W.3d at 828. And, because the trial court abused its discretion, this Court should
vacate the order appointing a receiver. See Spiritas, 459 S.W.3d at 231; Elliott,
396 S.W.3d at 228.
III. The trial court abused its discretion because the receivership is not
authorized under the Texas Trust Code.
The only provision of law specifically addressed in the Receivership Motion,
and the only statute referenced at the hearing to support the motion, is section
114.008 of the Texas Trust Code. CR 373; RR 67 (“Property Code . . . Section
114.008, . . . that’s the statutory legal authority for this request”). Section 114.008
authorizes a court to “appoint a receiver to take possession of the trust property and
administer the trust” only “[t]o remedy a breach of trust that has occurred or might
occur.” TEX. PROP. CODE § 114.008(a)(5). “A breach of trust occurs when a
trustee breaches his statutory or common law fiduciary duty.” Estate of Benson,
12
2015 WL 5258702, at *6.
In the Receivership Motion, Movants acknowledge the statutory “breach of
trust” requirement and then promptly demonstrate that it is not satisfied in this
case:
Movants have no complaint with either of the current Trustees, and do
not ask the Court to remove either Trustee or to replace either of them
with the Receiver. Rather, Movants ask the Court to explicitly
authorize the Receiver to work together with the current Trustees.
CR 374.
The very motion that seeks appointment of a receiver establishes that there is
no ground for appointing a receiver under section 114.008. Not only do Movants
fail to identify any “breach of trust that has occurred or might occur,” they
unequivocally take the position that the current Trustees have not committed any
breach of trust and pose no threat of committing one in the future. See CR 374;
TEX. PROP. CODE § 114.008(a). And, while Movants allude to “claims and causes
of action of the Trusts,” they do not state what any such claims or causes of action
may be, nor do they identify against whom any such claims or causes of action
may lie.6 See CR 373-74.
Particularly absent from the Receivership Motion is any allegation of
6
“There might be claims out there somewhere but we don’t know what they are” appears to be
the theme of the current litigation. The Dependent Administratrix has taken the same approach
in her request for declaratory judgment. See CR 327-29, 385-88.
13
“breach of trust” by Hazel during the time she acted as trustee of the Trusts.7 But
even if Movants had made any such allegation, the motion would be insufficient to
support appointment of a receiver under section 114.008. It is clear from section
114.008 as a whole that it is intended to “remedy a breach of trust” by a current
trustee. Thus, the actions a court is authorized to take under that statute include
compelling or enjoining the trustee, suspending or removing the trustee, reducing
or denying the trustee’s compensation, or appointing a receiver to act for the
trustee. See TEX. PROP. CODE § 114.008(a). Each of these remedial actions
logically applies only against one who is currently acting as trustee.
As recognized in the Receivership Motion, Hazel has been replaced as
trustee of both Trusts. CR 374. She no longer has any authority over the Trusts’
assets. Appointing a receiver will not “remedy” any alleged past breach of trust by
Hazel, nor will it prevent any future breach of trust by Hazel because she is not in a
position to commit any such future breach.
The trial court’s appointment of a receiver does not comply with the clear
requirements of section 114.008 of the Texas Trust Code. Insofar as the court
appointed the receiver pursuant to that statute, it committed an abuse of discretion
and its order should be vacated. See Elliott, 396 S.W.3d at 228 (clear failure to
7
Movants belatedly alleged breach of fiduciary duties by Hazel in their post-hearing letter brief
to the trial court. CR 465. They asked the court to consider the letter as a “supplement” to the
Receivership Motion, CR 463, but there is no indication in the record that the court granted that
request. In fact, the court’s order states that it the court considered “the motion” without
reference to any supplement. CR 477.
14
properly apply the law is an abuse of discretion).
IV. The trial court abused its discretion because the receivership is not
authorized under chapter 64 of the Civil Practice and Remedies Code.
A. No Trust assets are in danger of being lost, removed, or materially
injured.
The Receivership Motion generally invokes chapter 64 of the Civil Practice
and Remedies Code, but does not specify what particular portion of that chapter
applies.8 See CR 373. The only provisions that could even potentially apply are
subsections (a)(3) and (a)(6) of section 64.001. Those subsections provide:
(a) A court of competent jurisdiction may appoint a receiver: . . .
(3) in an action between partners or others jointly owning or
interested in any property or fund; . . .
(6) in any other case in which a receiver may be appointed
under the rules of equity.
TEX. CIV. PRAC. & REM. CODE § 64.001(a)(3), (6).
A party seeking appointment of a receiver under subsection (a)(3) must
establish “a probable interest in or right to the property or fund,” and that “the
property or fund [is] in danger of being lost, removed, or materially injured.” Id. at
§ 64.001(a)(3); see Gunther v. Dorff, 296 S.W.2d 638, 639-40 (Tex. Civ. App.—
Waco 1956, writ dism’d) (applying predecessor statute).
8
After expressly informing the court in the hearing that the Receivership Motion was based on
Property Code section 114.008, RR 67, Movants belatedly attempted to invoke section 64.001 in
their post-hearing letter brief to the trial court. CR 465. Although Cliff and Hoskins, Inc.
address section 64.001 in an abundance of caution, the Court should not consider this statute as
supporting the Receivership Motion for the reasons stated in footnote 7 above.
15
Movants, having presented no evidence in support of the Receivership
Motion, did not sustain their burden of establishing “a probable interest in or right
to” the assets of either Trust. They also did not sustain their burden of establishing
that any property or fund was “in danger of being lost, removed, or materially
injured.” See TEX. CIV. PRAC. & REM. CODE § 64.001(a)(3). On the contrary, the
Receivership Motion and the arguments made in support of that motion
demonstrate that there is no danger of any Trust assets being lost, removed, or
materially injured. Not only do Movants profess confidence in the current trustees,
the only Trust assets they have identified are purported claims against Hazel and
“others.”9 Being incorporeal in nature, those purported claims are not capable of
being “lost, removed, or materially injured.” See TEX. CIV. PRAC. & REM. CODE §
64.001(a)(3); see Hughes, 538 S.W.2d at 824.
Movants may argue that the claims may be “lost” by the running of
limitations if the Trustees do not timely pursue them. But, as discussed below, if
the Trustees cannot or will not pursue the claims, the Trust beneficiaries have the
legal right to pursue them on their own. See Grinnell v. Munson, 137 S.W.3d 706,
714 (Tex. App.—San Antonio 2004, no pet.). Thus, any claims in which Movants
may have an interest are in danger of being “lost” only if Movants themselves fail
9
The Marital Deduction Trustee has determined that the Marital Deduction Trust has no claims.
CR 472 (“The Trustee of the Residuary Estate is clearly the owner of all assets and claims . . .
.”).
16
to timely exercise their legal rights.
Finally, the court’s order cannot be sustained under section 64.001(a)(3)
even if there were any evidence that the unidentified claims were in danger of
being lost. The court did not authorize the receiver to take possession of those
claims. Rather, the receiver is authorized only to review certain documents and
determine what Estate assets should have been distributed to each Trust as well as
the current location, ownership, and approximate fair market value of each asset.
CR 477-78. The receiver has no authority to file any litigation on behalf of either
Trust. CR 478. See Hughes, 538 S.W.2d at 824 (receiver appointed over books
and business records, not underlying assets; no evidence of any danger of books or
records being lost, removed, or materially injured).
The trial court’s appointment of a receiver does not comply with the clear
requirements of section 64.001(a)(3). Insofar as the court appointed the receiver
pursuant to that statute, it committed an abuse of discretion and its order should be
vacated. See Elliott, 396 S.W.3d at 228 (clear failure to properly apply the law is
an abuse of discretion).
B. Section 64.001(a)(6) is not available to support appointing a
receiver in this case.
Movants’ request under section 64.001(a)(6) (assuming such a request was
made) fails for two reasons. See TEX. CIV. PRAC. & REM. CODE § 64.001(a)(6).
First, that section is not available to Movants in the circumstances of this case.
17
And, second, equity supports denying the Receivership Motion.
Section 64.001 lists five specific instances in which a court may appoint a
receiver. TEX. CIV. PRAC. & REM. CODE § 64.001(a)(1)-(5). “An additional
provision authorizes a receiver “in any other case in which a receiver may be
appointed under the rules of equity.” Mueller v. Beamalloy, Inc., 994 S.W.2d 855,
861 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (emphasis in original). “In
authorizing a receiver in any other case, subsection (a)[(6)]10 applies to instances
beyond those listed in subsections (a)(1) through (a)[(5)].” Id. (double emphasis in
original).
As discussed above, one of the specific circumstances in which section
64.001 authorizes appointment of a receiver is “in an action between partners or
others jointly owning or interested in any property or fund.” TEX. CIV. PRAC. &
REM. CODE § 64.001(a)(3). That is the situation alleged by Movants—that they
and other Trust beneficiaries jointly own or are interested in Trust property. But
appointing a receiver is improper under that section because Movants did not prove
that any Trust property is in danger of being lost, removed or materially injured.
Even so, the situation is covered by section 64.001(a)(3). Allowing the
appointment of a receiver under the general rubric of equity is tantamount to
10
The statute in effect at the time listed six specific circumstances justifying appointment of a
receiver; equity was the seventh. See Mueller, 994 S.W.2d at 861. The statute now lists five
specific circumstances; equity is the sixth. TEX. CIV. PRAC. & REM. CODE § 64.001(a).
18
reading the “lost, removed, or materially injured” requirement out of the statute—a
result this Court should not condone.
As recognized by the Mueller court, the “equity” provision of section
64.001(a)(6) applies only to situations beyond sections (a)(1) through (a)(5). .”
Mueller, 994 S.W.2d at 861. This case falls within section (a)(3). Movants’
failure to sustain their burden of proof under that section does not justify
permitting them to invoke broader principles of equity. It means only that
appointing a receiver is not appropriate or authorized in this case. See id.
C. Equity does not support appointing a receiver because it might be
“efficient.”
In any event, even applying equitable principles, appointing a receiver in this
case is an abuse of discretion. The only justification for appointing a receiver
stated in the Receivership Motion is that “[n]either Trustee currently has funds
with which to pay counsel to prosecute the claims and causes of action of the
Trusts.” CR 374. And the justification argued at the hearing on that motion was
simply that appointing a receiver would be “efficient”:
MR. LEA: . . . Why should you recognize [Rogers] as the Receiver to
prosecute these claims and causes of action? Because, as you can see,
there are too many lawyers in the room to count for too many parties.
Efficiency . . . . The trustees, in my view, don’t have the resources
that they need to prosecute the claims and causes of action in this
complicated mess. The Receiver does.11
11
As is discussed below, Rogers has resources because he was being paid by Len, one of the
parties.
19
RR 70-71; see, e.g., RR 71 (arguing scheduling is easier with one receiver instead
of many parties), 72 (arguing that the Trustees lack resources), 80 (“It’s the most
efficient way for those claims and causes of action to go forward.”), 81 (arguing
that future hearings could be “between 6 attorneys rather than 13”), 83 (“we can
cut down the involvement of several people in this by having one person pursue
any claims”).
In essence, Movants allege that the Trustees either cannot, or will not,
prosecute unidentified claims (if any such claims exist) against unidentified
defendants to redress unidentified harm to one or both Trusts. In addition, they
assert that appointing a receiver will make the case easier procedurally, without
regard for whether the conflicting interests of the parties are adequately protected.
Equity neither requires nor supports appointing a receiver for these reasons.
“A beneficiary is authorized to enforce an action when the trustee cannot or
will not enforce it.” Grinnell v. Munson, 137 S.W.3d 706, 714 (Tex. App.—San
Antonio 2004, no pet.) (citing Interfirst Bank-Houston, N.A. v. Quintana Petro.
Corp., 699 S.W.2d 864, 874 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d
n.r.e.)). So, if the Trustees lack either the funds or the willingness to prosecute the
unidentified claims, the Trust beneficiaries may prosecute those claims themselves.
Appointing a receiver, whose fees will be paid out of the Estate, in addition to two
Trustees, who will also be seeking compensation for their services, is an
20
unnecessary and inequitable drain on Estate and Trust assets. It is hard to imagine
that this is the use to which Cowboy contemplated his property would be put.
In addition, it is clear from the record of this case as a whole that the Trust
beneficiaries have conflicting interests. No one person can be appointed to fairly
represent all of those interests. Indeed, attempting to do so would likely result in
additional litigation, either among the beneficiaries or by certain beneficiaries
against the Trustees or receiver for breach of fiduciary duties.
D. Equity does not support appointing a receiver for purposes not
requested by any party.
Finally, equity does not support the particular receivership order signed by
the trial court. Movants requested that the court appoint a receiver for a particular
purpose—“to assert and prosecute causes of action on behalf of the current
Trustees . . . .” CR 374. The court’s order, however, specifically declines to give
the receiver that authority:
The Trustee of the Marital Deduction Trust and the Trustee of the
Residuary Trust shall determine the viability of pursuing litigation to
recover assets that should have been distributed to his respective
Trust.
Additional authority for the Receiver to file litigation to recover assets
on behalf of one or both of the Trustees will require further order of
the Court.
CR 478.
The only authority granted to the receiver is to “prepare a written report,”
using information contained in an existing Estate inventory, an existing tax return,
21
and an existing final accounting. CR 477-78. The receiver is then to determine
which assets should have been distributed to which Trust, and the current location,
ownership, and approximate fair market value of each such asset. CR 477-78.
Given that all the receiver is empowered to do is to analyze existing documents in
light of Cowboy’s will, there is no equitable reason whatsoever for his
appointment. The court has simply succeeded in blessing the Dependent
Administratrix’s and Trustees’ abdication of their responsibilities and adding one
more financial drain on the Estate and Trust assets. See Interfirst Bank-Houston,
699 S.W.2d at 874 (it is the responsibility of the testamentary trustee to assure all
property willed into trust is properly conveyed by the executor of the estate).
Movants allege that the current Trustees are unable to prosecute claims on
behalf of the Trusts. Neither Movants nor any other party has demonstrated that
the current Trustees, or the Dependent Administratrix, are unable to sit down with
the documents and determine whether any such claims even exist. It is wholly
unnecessary, in law or in equity, to bring in a third person to accomplish what may
be accomplished by those who already bear the legal burden of protecting the
Estate and Trust assets.
Had the trial court properly applied principles of equity, it would have
ordered the Dependent Administratrix and the Trustees to either do what they were
appointed to do or step down. The trial court’s appointment of a receiver does not
22
comply with principles of equity. Insofar as the court appointed the receiver
pursuant to section 64.001(a)(6), it committed an abuse of discretion and its order
should be vacated. See Elliott, 396 S.W.3d at 228 (clear failure to properly apply
the law is an abuse of discretion).
V. The trial court abused its discretion because the receivership is not
authorized under the common law.
In the Receivership Motion, “Movants invoke the rights and remedies on
appointment of a receiver under . . . common law.” CR 373. They do not,
however, identify the common law to which they refer. Assuming the reference is
to common law principles of equity, their argument fails for the reasons stated
above.
VI. The trial court abused its discretion by appointing an individual whose
fees were paid by one of the parties.
“To be appointed as a receiver for property that is located entirely or partly
in this state, a person must: . . . not be a . . . person interested in the action for
appointment of a receiver.” TEX. CIV. PRAC. & REM. CODE § 64.021(a)(2). Thus, a
receiver must be “an indifferent person, between the parties to a cause,” and
“disinterested in the outcome of the case.” Wiley v. Sclafani, 943 S.W.2d 107, 110
(Tex. App.—Houston [1st Dist.] 1997, no pet.). In other words, “[a] receiver is
appointed to receive and preserve the property for the benefit of all parties
interested in the property.” Krumnow, 174 S.W.3d at 828 (emphasis added); see
23
Zanes v. Mercantile Bank & Trust Co., 49 S.W.2d 922, 928 (Tex. Civ. App.—
Dallas 1932, writ ref’d).
Marcus Rogers, the individual appointed by the trial court, is not
disinterested, indifferent, or unbiased. Rogers was appointed by an arbitrator in a
separate dispute brought by Len Hoskins against Hazel, Cliff, and Hoskins, Inc.
CR 15. At the time Rogers was appointed, Cliff and Hoskins, Inc. had already
been dismissed from the proceeding and therefore had no opportunity to object to
his appointment. See Hoskins, 2014 WL 5176384, at *2. Rogers has since
continued to interject himself into the current litigation, despite having no authority
to do so (until the trial court signed the order from which this appeal is taken).
Rogers has admittedly been receiving payments from one of the parties to
this litigation—Len Hoskins—since he was appointed by the arbitrator. CR 116.12
Movants contend that the arbitrator’s order directs Len to pay Rogers’ fees. CR
15-16. But the fees and expenses Rogers has been accumulating—and Len has
been paying—have not been incurred in the course of exercising any receivership
authority in the arbitration proceeding. In fact, that proceeding has been abated
since November 12, 2013. CR 90. Rogers and Len are simply piggy-backing on
the arbitrator’s order to inject Rogers into this proceeding despite his clear
financial interest in aligning himself with Len (and Len’s children).
12
Rogers, as receiver, has retained two law firms to represent him in this matter. See RR 2.
24
CONCLUSION AND PRAYER
The trial court’s “Order Appointing Receiver” should be vacated because (1)
it is not supported by any evidence; (2) it is not supported by any provision of law
or equity); and (3) Marcus Rogers is disqualified to act as receiver in this case.
WHEREFORE, Colonel Clifton Hoskins and Hoskins, Inc. respectfully
request that this Court vacate the trial court’s “Order Appointing Receiver” and
that they have such further relief to which they are entitled.
Respectfully submitted,
DYKEMA COX SMITH
Ellen B. Mitchell
State Bar No. 14208875
emitchell@dykema.com
C. David Kinder
State Bar No. 11432550
dkinder@dykema.com
Melanie L. Fry
State Bar No. 24069741
mfry@dykema.com
112 East Pecan Street, Suite 1800
San Antonio, Texas 78205
Telephone: (210) 554-5500
Facsimile: (210) 226-8395
By: /s/ Ellen B. Mitchell
Ellen B. Mitchell
Attorneys for Colonel Clifton Hoskins
and Hoskins, Inc.
25
CERTIFICATE OF COMPLIANCE
The undersigned certifies this brief complies with the type-face and length
requirements of amended rule 9.4 of the Texas Rules of Appellate Procedure.
Exclusive of the exempted portions stated in amended rule 9.4(i)(1), the brief
contains 5,606 words, as calculated by Microsoft Word 2010, the program used to
prepare this document.
/s/ Ellen B. Mitchell
Ellen B. Mitchell
26
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing First Amended
Brief of Appellants Colonel Clifton Hoskins and Hoskins, Inc. has been forwarded
to all counsel and parties of record, listed below, by U.S. Mail, on this 10th day of
November, 2015.
David C. Bakutis/R. Dyann McCully
BAKUTIS, MCCULLY & SAWYER, P.C.
500 West Seventh Street, Suite 725
Fort Worth, Texas 76102
dbakutis@lawbms.com
dmccully@lawbms.com
Attorneys for Dependent Administratrix With Will Annexed
of the Estate of Lee Roy Hoskins, Sr., Deceased
Joyce W. Moore
Chris Hodge
LANGLEY & BANACK, INC.
745 East Mulberry Avenue, Suite 900
San Antonio, Texas 78212
jwmoore@langleybanack.com
chodge@langleybanack.com
Attorneys for Hazel Q. Hoskins
Mark Comuzzie
Julia W. Mann
JACKSON WALKER, LLP
112 East Pecan Street, Suite 2400
San Antonio, Texas 78205
mcomuzzie@jw.com
jmann@jw.com
Attorneys for William Rex Hoskins
David L. Ylitalo
YLITALO LAW FIRM
319 Maverick Street
San Antonio, Texas 78212
d.ylitalo@ylitalolaw.com
Attorneys for Leonard K. Hoskins
27
Marcus P. Rogers
LAW OFFICES OF MARCUS P. ROGERS, P.C.
2135 East Hildebrand Avenue
San Antonio, Texas 78209
mpr2222@aol.com
Receiver
Glen A. Yale
Ragan Robichaux
YALE LAW FIRM, P.C.
2135 East Hildebrand Avenue
San Antonio, Texas 78209
glenyale@yalelawfirm.com
r.robichaux.yalelawfirm@gmail.com
Attorneys for Marcus P. Rogers, Receiver
James Hartnett, Jr.
THE HARTNETT LAW FIRM
220 North Peal Street
Dallas, Texas 75201-7315
jim@hartnettlawfirm.com
Attorneys for Marcus P. Rogers, Receiver
George P. “Trace” Morrill, III
MORRILL & MORRILL, PLLC
309 North Washington Street
Beeville, Texas 78102
trace_morrill@me.com
Trustee of the Residuary Trust
Royal B. Lea, III
BINGHAM & LEA, P.C.
319 Maverick Street
San Antonio, Texas 78212
royal@binghamandlea.com
Attorneys for Southwest Ranching, Inc., Lee Roy Hoskins, Jr., Lee Roy
Hoskins, III, Andrea Clare Jurica, and Lee Ann Hoskins Kulka
28
Brendan C. Holm
David W. Navarro
HORNBERGER FULLER & GARZA
The Quarry Heights Building
7373 Broadway, Suite 300
San Antonio, Texas 78209
bholm@hfgtx.com
dnavarro@hfgtx.com
Attorneys for Brent C. Hoskins
Ezra A. Johnson
UHL, FITZSIMONS, JEWETT & BURTON, PLLC
4040 Broadway, Suite 430
San Antonio, Texas 78209
ejohnson@ufjblaw.com
Attorneys for Blake Hoskins
Joe L. Carter, Jr.
The Petroleum Center
4657-C1 Business 181-N
Beeville, Texas 78102
joe@joecarter.biz
Trustee of the Marital Trust
Kevin P. Kennedy
ATTORNEY AT LAW
1920 Nacogdoches Road, Suite 100
San Antonio, Texas 78209-2241
kpk@texas.net
Attorney for Joe Carter, Trustee of the Marital Trust
/s/ Ellen B. Mitchell
Ellen B. Mitchell
29
6352976.1
APPENDIX
Defendants Colonel Clifton Hoskins and Hoskins, Inc.’s
Motion to Vacate Order Appointing Receiver
and Motion to Dismiss (without exhibits) ....................................................Tab A
Order Appointing Receiver................................................................................Tab B
Motion by Lee Roy Hoskins, III, Andrea Clare Jurica,
and Lee Ann Hoskins Kulka for Order Appointing
Marcus Rogers as Receiver...........................................................................Tab C
30
602924.1