Estate of Lee Roy Hoskins Sr.

• Court: Court of Appeals of Texas
• Decided: November 10, 2015
• Docket: 13-15-00487-CV
• Status: Published

Opinion

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

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

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

602924.1