Estate of Lee Roy Hoskins Sr.

Opinion

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

Receiver shall :

I. Take possession of all Trust Property and administer the Trnst pursuant to its terms;

2. Determine whether Hazel Hoskins is capable of continuing as the Trustee;

3. Make such other recommendations as he may deem appropriate; and 4. Deliver a report to the Arbitrator no later than June 30, 2013.

l'f IS "FURTHER ORJlKRJW that MARCUS P. ROGERS, shall be sworn to perfonn the

duties faithfully of Receiver, and shall execute a good and sufficient bond in lhe amount of $11 ,000 (Eleven Thousand and No/100 Dollars), conditioned on faithful discharge ofhis duties as Receiver

herein and obedience to the Arbitrator.

For his services as Receiver, Marcus P. Rogers shall receive compensation at the hourly rale

of $250.00, plus all expenses, including but not limited to professional foes necessary to assist him

15 Exhibit "l" • in his duties. Claimant, Leonard K. Hoskins, shall pay said foes and expenses ofthe Receiver which

shall be without prejudice to Claimant's right to seek recovery ofthese payments at the final hearing

of the case in arbitration.

IT IS FURTHER ORDERED that the appointment ofMARCUS P. ROGERS, as Receiver

shall continue Wltil further order of the Arbitrator.

EFFECTlYE DATE: April 16, 2013.

~HO~~;Q:~~ APPROVED AS TO FORM: COATS ROSE YALE RYMAN & LEE, P.C. l 020 N.E. Loop 4 J0, Suite 800 San Antonio, Texas 78209 (210) 224-7098 (210) 212-5698 (fox)

DAVID YLITALO State Bar No. 22155500 ATTORNEY FOR LEONARD K. HOSKINS

LANGLEY & BANACK, INC. 745 E. Mulberry, Suite 900 San Antonio, Texas 78212 (2!0)736--0600 (210) 735--0889 (fax)

Emerson Banack, Jr. State Bar No. 0 I 667000 ATIORNEY FOR HAZEL HOSKINS

16 477 478 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 HARTNETT LAW FIRM tax: l 14t1:>:>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 ~~~ · . ... . . ... 2, ;~85~ ~til the~ o~tbe .cce;Untin&t ~ io T~ ~ ~ §404.001 ~ . .

·uatu the dato _ofthe~ pUrsuailt to TeXai Property Code ·o feaCh Trwit from April 2, i9ss,_

<-"' 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 . . . .. the Estate, the Successor Tnutee of~ Marital Dcdwrtion·Trust Wt the Successor Trustee of the ' • . ' I . '

' 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 .. . .. ": . . .. 311