ACCEPTED 13-15-00487-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 12/30/2015 11:16:02 AM 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 12/30/2015 11:16:02 AM 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
REPLY 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 TABLE OF CONTENTS Page(s)
INDEX OF AUTHORITIES.....................................................................................iv
RESPONSE TO MOVANTS’ RESTATED ISSUES ..............................................vi
CITATIONS TO SUPPLEMENTAL CLERK’S RECORD.....................................1
OBJECTION TO SUPPLEMENTAL REPORTER’S RECORDS...........................2
RESPONSE TO MOVANTS’ STATEMENT REGARDING JURISDICTION.........................................................................................................3
RESPONSE TO MOVANTS’ STATEMENT OF FACTS.......................................4
ARGUMENT AND AUTHORITIES........................................................................5
I. The trial court appointed a receiver; it did not confirm a prior appointment .....................................................................................................5
II. The trial court could, and did, abuse its discretion..........................................7
III. Movants’ failure to present evidence mandates reversing the order appointing the receiver.........................................................................10
A. Cliff and Hoskins, Inc. did not waive their right to challenge the appointment...................................................................10
B. Cliff and Hoskins, Inc. have standing to appeal..................................12
C. The record contains no support for the trial court’s order ..................14
IV. Movants did not establish any legal or equitable grounds for appointing a receiver......................................................................................16
V. Marcus Rogers’ disqualification to serve as receiver is not moot.................16
ii CONCLUSION AND PRAYER .............................................................................16
CERTIFICATE OF COMPLIANCE...................................................................... 19
CERTIFICATE OF SERVICE ................................................................................20
iii INDEX OF AUTHORITIES Page(s)
Cases Alcantar v. Oklahoma Nat’l Bank, 47 S.W.3d 815 (Tex. App.—Fort Worth 2001, no pet.).....................................15
Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845 (Tex. 2005) ..............................................................................12
Elliott v. Weatherman, 396 S.W.3d 224 (Tex. App.—Austin 2013, no pet.)..........................................11
Estate of Benson, No. 04-15-00087-CV, 2015 WL 5258702 (Tex. App.—San Antonio Sept. 9, 2015, no pet.)...........................................................................10
Estate of Trevino, 195 S.W.3d 223 (Tex. App.—San Antonio 2006, no pet.) ..................................8
Gonzalez v. Gonzalez, 469 S.W.2d 624 (Tex. Civ. App.—Corpus Christi 1971, writ ref’d n.r.e.) ...............................................................................................................9, 15
Grinnell v. Munson, 137 S.W.3d 706 (Tex. App.—San Antonio 2004, no pet.) ..........................13, 14
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.) .............................................................................................................13, 14
Krumnow v. Krumnow, 174 S.W.3d 820 (Tex. App.—Waco 2005, pet. denied) ......................................9
Marlow v. Palm Harbor Homes, Inc. No. 14-00-00683-CV, 2002 WL 1988249 (Tex. App.—Houston [14th Dist.] Aug. 29, 2002, no pet.) (not designated for publication) ...................................................................................................11, 12
iv Parks v. Developers Sur. & Indem. Co., 302 S.W.3d 920 (Tex. App.—Dallas 2010, no pet.) ..........................................14
Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000).................................................................................13
Tugman v. Tugman, No. 13-08-00194-CV, 2008 WL 2151451 (Tex. App.—Corpus Christi May 22, 2008, no pet.)......................................................................15, 16
Wiley v. Sclafani, 943 S.W.2d 107 (Tex. App.—Houston [1st Dist.] 1997, no pet.)......................16
Statutes TEX. CIV. PRAC. & REM. CODE 51.014(a)(1).............................................. vi, 4, 7, 14
Rules TEX. R. APP. P. 9.4 ...................................................................................................19
TEX. R. APP. P. 47.7(b).............................................................................................11
v RESPONSE TO MOVANTS’ RESTATED ISSUES 1. The trial court appointed a receiver in this case; it did not merely confirm the
prior appointment of a receiver by an arbitrator in an independent proceeding.
This Court thus has jurisdiction pursuant to section 51.014(a)(1) of the Texas Civil
Practice and Remedies Code.
2. Cliff and Hoskins, Inc. did not waive their right to appeal the order
appointing a receiver by not appealing prior orders that (a) were not appealable,
and (2) were entered before Cliff and Hoskins, Inc. were even parties to this
litigation.
3. The trial court abused its discretion by appointing a receiver despite
Movants’ failure to present any evidence to establish a legal or equitable ground
for such an appointment.
vi No. 13-15-00487-CV
In the Court of Appeals for the Thirteenth Court of Appeals District Corpus Christi, Texas
ESTATE OF LEE ROY HOSKINS, SR., Deceased,
ON APPEAL FROM THE COUNTY COURT, LIVE OAK COUNTY, TEXAS
REPLY 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 Reply Brief of Appellants, demonstrating that this Court has
jurisdiction over this appeal and that the trial court abused its discretion by
granting a motion to appoint a receiver that was not supported by any evidence or
authorized by any law.
CITATIONS TO SUPPLEMENTAL CLERK’S RECORD The following are citations to the supplemental clerk’s record filed on
November 16, 2015, for documents that were referred to in Cliff and Hoskins, Inc.’s opening brief, but were not yet contained in the appellate record:
Last Will and Testament of Lee Roy Hoskins, Sr..................... Supp. CR 4-19
Order Appointing Trustees ........................................................... Supp. CR 20
OBJECTION TO SUPPLEMENTAL REPORTER’S RECORDS This is an appeal from the trial court’s order appointing a receiver following
a July 15, 2015 hearing on a Motion by Lee Roy Hoskins, III, Andrea Clare Jurica,
Lee Ann Hoskins Kulka for Order Appointing Marcus Rogers as Receiver
(“Receivership Motion”). CR 373. Appellees Lee Roy Hoskins, Jr., Leonard
Hoskins, Daniel Kenton Hoskins, and William Rex Hoskins later joined this
motion. All appellees are referred to collectively as “Movants.”1
Movants have supplemented the appellate record in this case with reporter’s
records from hearings conducted on May 6, 2014 and July 3, 2014, almost a year
before the Receivership Motion was even filed. No part of those records can
properly be considered evidence to support the trial court’s order granting relief on
the April 2015 motion here at issue. In the alternative, only those portions of the
July 3, 2014 reporter’s record that were actually appended to the post-hearing
1 It is uncontested that Hazel Hoskins has died and that each of her sons (Cliff, Len, and Lee Roy, Jr.) survived her. By the terms of the Residuary Trust and the Marital Deduction Trust that are the subject of the receivership, Lee Roy Hoskins, Sr.’s grandchildren no longer have any interest in or claim to Trust assets. Supp. CR 6, 8. Therefore, Lee Roy Hoskins, III, Andrea Clare Jurica, Lee Ann Hoskins Kulka, Daniel Kenton Hoskins, William Rex Hoskins, Brent C. Hoskins, and Blake Hoskins are no longer proper parties to this appeal as they have no justiciable interest in its outcome. 2 bench brief submitted by Hazel Q. Hoskins, C. Clifton Hoskins, Hoskins, Inc.,
Blake C. Hoskins, and Brent Hoskins may even arguably be considered as
evidence.
Cliff and Hoskins, Inc. object to the Court considering the reporter’s records
dated May 6, 2014 and July 3, 2014, and ask that those records be stricken. In the
alternative, Cliff and Hoskins, Inc. ask that the Court strike all portions of those
records other than those actually appended to the post-hearing brief referenced
above.
RESPONSE TO MOVANTS’ STATEMENT REGARDING JURISDICTION The motion resulting in the order appealed from in this case is entitled
“Motion . . . for Order Appointing Marcus Rogers as Receiver.” CR 373 (emphasis
added). At the hearing on this motion, Movants argued that statutory grounds for
appointing a receiver applied. See, e.g., RR 67, 119. The trial court characterized
the hearing as a “hearing relative to the issue of the appointment of – by this Court
a Receiver.” RR 90 (emphasis added). The court then asked, “am I wrong about
that?” and Movants’ counsel replied, “That is the motion.” RR 90-91.
After the hearing, Movants filed a letter brief addressing “whether the Court
could appoint Marcus Rogers to serve as Receiver.” CR 463 (emphasis added).
The trial court ultimately signed an order entitled “Order Appointing Receiver.”
CR 483 (emphasis added). The text of that order states, “IT IS THEREFORE 3 ORDERED THAT: Marcus Rogers is appointed as Receiver for the Marital
Deduction Trust and the Residuary Trust created under the will of Lee Roy
Hoskins, Sr. dated July 20, 1982 . . . .” CR 483 (emphasis added).
Texas law expressly permits an appeal from an order appointing a receiver.
TEX. CIV. PRAC. & REM. CODE § 51.014(a)(1). The order here appealed from
appoints a receiver. CR 483. This Court has jurisdiction.
RESPONSE TO MOVANTS’ STATEMENT OF FACTS For the reasons stated in their objection above, Cliff and Hoskins, Inc.
request that the Court disregard those portions of Movants’ statement of facts that
rely on the May 6, 2014 and July 3, 2014 reporter’s records.
In addition, much of Movants’ statement of facts is devoted to allegations of
wrongdoing against Hazel Hoskins in her former capacities as executrix of Lee
Roy Hoskins’ Sr.’s estate and trustee of the Residuary Trust and the Marital
Deduction Trust. Hazel resigned these positions in May 2014 and was replaced by
the current Dependent Administratrix and by Successor Trustees. CR 201, 203,
213; Supp. CR 20. As explained in Cliff and Hoskins, Inc.’s opening brief,
because Hazel was no longer a trustee at the time the Receivership Motion was
heard, appointing a receiver cannot have been based on the need to remedy a
breach of trust. Successor Trustees were already in place to accomplish that result
4 (if any breach of trust existed that required remedying) and Hazel had no capacity
to engage in any future breach of trust.
Movants’ extended discussion of what they perceive to be inadequacies in
Hazel’s performance of her duties is largely immaterial to this appeal.
Movants also recite in their statement of facts that they asked the trial court
to “confirm” an arbitrator’s prior appointment of Marcus Rogers as receiver over
the Residuary Trust and the Marital Deduction Trust. This is a mischaracterization
of the record. As discussed in further detail below, Movants requested that the trial
court appoint Rogers as receiver, and that is precisely what the court did. See CR
373, 483.
ARGUMENT AND AUTHORITIES
I. The trial court appointed a receiver; it did not confirm a prior appointment. Movants filed a motion requesting that the trial court appoint Marcus Rogers
as a receiver. CR 373. They presented argument to the trial court asserting
statutory grounds for appointing a receiver. See, e.g., RR 67, 119. They filed a
post-hearing letter brief urging the court to appoint a receiver. CR 463. They
obtained an order appointing Rogers as receiver. CR 483. They now tell this
Court that the trial court did not really appoint a receiver. They urge instead that
the court merely confirmed the appointment of a receiver by an arbitrator in a
completely independent arbitration proceeding arising from a completely 5 independent lawsuit to which no Movant except Leonard Hoskins is or ever was a
party.2 Not only is this suggestion contrary to both the Receivership Motion and
the trial court’s order, it is contrary to the trial court’s own explanation of his
authority concerning the arbitration order.
As they do in this appeal, Movants asserted in the trial court that the court
had already recognized Rogers as receiver by denying Hazel Hoskins’ plea to the
jurisdiction and plea in abatement.3 See, e.g., RR 68. The trial court rejected that
assertion:
[T]he basis of that was that I had not had any jurisdiction over him and therefore I could not grant as to that. It was not that I was passively admitting anything and so – and I only point that out to say that I have recognized Mr. Rogers as the Receiver.4 What I recognized was that it was up to the – that that was something that was derivative out of the bankruptcy court over which I had no right to get involved in anyway, so that was the basis for it. But I wanted to be sure that that was clarified as to why. It has nothing to do realistically with the request that I go forward with recognizing it, but as to that order itself, it did not delineate the basis for this decision that I was denying that as to Mr. Rogers.
RR 69.
2 It should be noted that this arbitration has been abated since November 12, 2013. CR 90. 3 Movants argue that Cliff and Hoskins, Inc. waived any right to challenge the trial court’s order appointing a receiver because they did not appeal these prior orders, which were signed on May 6, 2014. CR 197, 198. But neither of these orders purports to appoint a receiver. See id. In addition, Cliff and Hoskins, Inc. were not parties to this litigation until December 9, 2014, when they filed their original answer to the Dependent Administratrix’s petition for declaratory judgment. CR 332. 4 Movants quote this single sentence out of context. See Appellees’ Brf. at 13. 6 When Movants again urged that the court had previously recognized Rogers
as receiver, the court was more direct:
No, I did not recognize him. I said I had no authority to go into the appointment. . . . I was always very careful to state that I had no authority to go into what the district courts said in this country [sic]; what the appellate courts said; or what the federal courts said. I have never crossed that bridge.
RR 76.
The trial court clearly separated the arbitrator’s appointment of a receiver
from Movants’ request that the court appoint a receiver. Indeed, the trial court
clearly and repeatedly expressed its position that it had no authority to take any
action whatsoever concerning the arbitrator’s appointment. See RR 69, 76. The
court’s explanation, coupled with the clear and unequivocal language of both the
Receivership Motion and the court’s order appointing a receiver, leaves no room
for debate—the trial court did not confirm a previous appointment, it
independently appointed Marcus Rogers as receiver. See CR 483.
The trial court’s order is appealable; this Court has jurisdiction. See TEX.
CIV. PRAC. & REM. CODE § 51.014(a)(1).
II. The trial court could, and did, abuse its discretion. Movants state that “[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 . . . .” Appellees’ Brf. at 15 (emphasis
7 added). This remarkable assertion is not supported by the authority Movants cite
or by any other authority known to Cliff and Hoskins, Inc. Indeed, Estate of
Trevino, 195 S.W.3d 223 (Tex. App.—San Antonio 2006, no pet.), on which
Movants rely, involved neither a testamentary trust nor a dependent administration.
The substance of the court’s holding in that case is that a statutory probate court
has the authority to appoint a receiver and that such appointment does not
impermissibly interfere with the independent administration of an estate. See id. at
228-29.
The Trevino court certainly did not say that a probate court can never abuse
its discretion by appointing a receiver. On the contrary, the court expressly
recognized that an order appointing a receiver—even one signed by a probate
court—“is reviewed under an abuse of discretion standard.” Id. at 231. This
standard would never have any application if the probate court could not abuse its
discretion by appointing a receiver.
Movants also contend that courts often appoint receivers to manage
“protracted litigation involving family disputes.” Appellees’ Brf. at 15-16. This
observation is of no consequence, however, in this case. While other litigants in
other cases involving family disputes may well have satisfied the legal and
evidentiary requirements for appointing a receiver, Movants in this case did not.
See Estate of Trevino, 195 S.W.3d at 230-31 (describing evidence and legal
8 grounds supporting appointment); Gonzalez v. Gonzalez, 469 S.W.2d 624, 632-33
(Tex. Civ. App.—Corpus Christi 1971, writ ref’d n.r.e.) (describing bill of
exception evidence and legal grounds supporting appointment).
Movants now attempt to support the trial court’s appointment of a receiver
in this case by arguing that it is not really “harsh” because the receiver is not
authorized “to take control and management from the owners or managers of
privately owned businesses or revenue-generating assets.” See Appellees’ Brf. at
16. Movants identify no authority limiting the drastic nature of receivership—or
the court’s disfavor of that remedy—to situations involving the management or
control of private businesses or revenue-generating assets. On the contrary, Texas
law is clear that appointing a receiver, in and of itself, is “an extraordinarily harsh
remedy” that “courts are particularly loathe to utilize.” Krumnow v. Krumnow, 174
S.W.3d 820, 828 (Tex. App.—Waco 2005, pet. denied).
It is beyond question that a probate court can abuse its discretion by
appointing a receiver. For all of the reasons stated in Cliff and Hoskins, Inc.’s
opening brief, the trial court in this case did abuse its discretion. And that abuse of
discretion is not excused by Movants’ perception that appointing a receiver in this
case may not be as harsh as in some other cases.
9 III. Movants’ failure to present evidence mandates reversing the order appointing the receiver.
A. Cliff and Hoskins, Inc. did not waive their right to challenge the appointment. Movants urge that Cliff and Hoskins, Inc. waived their right to challenge the
appointment of Marcus Rogers as receiver because they did not appeal from the
trial court’s July 3, 2014, order to Hazel to render an accounting or from “any
implicit ruling appointing Mr. Rogers as Receiver in May or August 2014.”
Appellees’ Brf. at 19-20. This argument fails because (1) none of these orders
purported to appoint Rogers as receiver, CR 197, 198, (2) Cliff and Hoskins, Inc.
were not parties to this litigation at the time those orders were made, CR 332, and
(3) Movants do not explain how an “implicit ruling” would be appealable in any
event.
Cliff and Hoskins, Inc. did not waive their right to appeal from the July 15,
2015 order appointing a receiver by not appealing from unappealable orders
entered at a time when they were not parties in this case.
Movants next urge that Cliff and Hoskins, Inc. waived their right to appeal
by not filing a written response to the Receivership Motion and not “speaking a
single word” at the hearing on that motion. But the burden to establish, by
competent evidence, legal grounds for appointing a receiver rested solely on
Movants. See Estate of Benson, No. 04-15-00087-CV, 2015 WL 5258702, at *5
10 (Tex. App.—San Antonio Sept. 9, 2015, no pet.); Elliott v. Weatherman, 396
S.W.3d 224, 228 (Tex. App.—Austin 2013, no pet.). Cliff and Hoskins, Inc. had
no burden to file any response to Movants’ motion, to “speak” at the hearing, or to
inform Movants of Movants’ own evidentiary burden.
In any event, the record as a whole demonstrates Cliff and Hoskins, Inc.’s
alignment with Hazel Hoskins in opposing the appointment of a receiver. See, e.g.,
CR 444 (bench brief opposing appointment filed on behalf of Cliff and Hoskins,
Inc., among others). It also demonstrates that Movants were repeatedly alerted to
the fact that they were not supporting their motion with evidence but repeatedly
disavowed any intention to offer any evidence. See, e.g., RR 63-64, 66, 88-89,
115-16.
Movants offer this Court no authority to support the proposition that Cliff
and Hoskins, Inc. were required to inform either Movants or the trial court that
Movants were required to prove their entitlement to the relief they requested. The
only authority they do offer is inapposite. See Marlow v. Palm Harbor Homes,
Inc. No. 14-00-00683-CV, 2002 WL 1988249 (Tex. App.—Houston [14th Dist.]
Aug. 29, 2002, no pet.) (not designated for publication).5 The appellate complaint
in Marlow was that the trial court failed to conduct a formal evidentiary hearing
before deciding the validity of an arbitration agreement. Id. at *2. It was
5 This unpublished opinion, having issued prior to January 1, 2003, has no precedential value. See TEX. R. APP. P. 47.7(b). 11 specifically in the context of compelling arbitration that the court noted that an
evidentiary hearing is required if material facts are controverted by admissible
evidence. Id. The present case does not involve the issue of whether arbitration
should be compelled.
In addition, the situation in Marlow was the opposite of the situation in this
case. The movants in Marlow sought to compel arbitration and presented the trial
court with a copy of the contract containing an arbitration agreement (i.e.,
evidence). Id. Movants in this case did not present any evidence.
The non-movants’ complaint on appeal in Marlow was that the trial court
did not hear evidence opposing the motion to compel. Id. Non-movants Cliff and
Hoskins, Inc. do not contend that the trial court prevented them from introducing
evidence at the hearing on the Receivership Motion. They contend only that
Movants had the burden to introduce evidence and wholly failed to sustain that
burden. The consequence of that failure falls on Movants, not on Cliff and
Hoskins, Inc.
B. Cliff and Hoskins, Inc. have standing to appeal. “The issue of standing focuses on whether a party has a sufficient
relationship with the lawsuit so as to have a ‘justiciable interest’ in its outcome.”
Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). And “a
12 party whose own interest is prejudiced by an error has standing to appeal.”
Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000).
Cliff and Hoskins, Inc. have standing to appeal the order appointing a
receiver because they have a justiciable interest in the assets of the Trusts and,
consequently, in the actions of the receiver. It is uncontroverted that Cliff and
Hoskins, Inc. have both been named as defendants in this action, Cliff is a trust
beneficiary, and shares of Hoskins, Inc. are alleged to be assets of either the
Residuary Trust or the Marital Deduction Trust. See Appellees’ Brf. at 1. Cliff and
Hoskins, Inc.’s interests are therefore prejudiced by the trial court’s error in
appointing a receiver.
Movants contend, though, that Cliff lacks standing as a trust beneficiary
because only the Trustees can act for the trusts. Movants rely on a general rule but
overlook the applicable exception: “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.)). As Movants note, the Trustees in this
case not only have declined to appeal the order appointing a receiver, they have
embraced that order. See Appellees’ Brf. at 22.
13 Cliff is a beneficiary of the Residuary Trust. Supp. CR 8. The Residuary
Trustee has refused to challenge the order appointing a receiver. Cliff therefore
has standing to appeal that order himself. See Grinnell, 137 S.W.3d at 714;
Interfirst Bank, 699 S.W.2d at 874.
C. The record contains no support for the trial court’s order. Movants again attempt to avoid the consequences of presenting no evidence
to support appointing a receiver by asserting that this Court can simply review the
history of this litigation and then conclude that “[t]he need for the Receiver to
report on the assets of the Trusts is obvious . . . .” Appellees’ Brf. at 22. Cliff and
Hoskins, Inc. disagree.
First, the jurisdiction of this Court over this interlocutory appeal is very
narrow. The only issue properly before the Court is whether the trial court abused
its discretion by appointing a receiver. See TEX. CIV. PRAC. & REM. CODE §
51.014(a)(1). And the only record properly before the Court by which to measure
the trial court’s exercise of discretion is the record of proceedings on the
Receivership Motion.
In this regard, the trial court’s order expressly states that the court
“considered the motion, the responses thereto, and the argument of counsel.” CR
483. Nothing in the record indicates that the court considered any other pleading,
document, or hearing transcript. See Parks v. Developers Sur. & Indem. Co., 302
14 S.W.3d 920, 923 (Tex. App.—Dallas 2010, no pet.) (recitals contained in judgment
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). This Court’s consideration should be similarly limited to
the Receivership Motion, responses, and the reporter’s record of the July 15, 2015
hearing.
In addition, the cases on which Movants rely to justify overlooking their
failure to present evidence are distinguishable. For example, the trial court in
Gonzalez refused to hear evidence supporting appointment of a receiver and denied
the application for a receiver. 469 S.W.2d at 631. This is the polar opposite of the
present case and provides no support for the proposition that a court may grant an
application to appoint a receiver without hearing evidence. Further, the parties
requesting appointment of a receiver in Gonzalez made a bill of exception
containing appropriate evidence in support of their application. Id. The appellate
court therefore had the necessary evidence before it. In this case, Movants did not
provide either this Court or the trial court with the necessary evidence.
Similarly, the court in Tugman v. Tugman, No. 13-08-00194-CV, 2008 WL
2151451 (Tex. App.—Corpus Christi May 22, 2008, no pet.), identified “sufficient
evidence” in the record—affidavit testimony, a stipulation by the parties, and
“sworn testimony offered by appellant himself.” Id. at *5. Again, there is no such
15 evidence in this case. Unlike the order in Tugman, the order in this case is “devoid
of evidentiary support.” Id.
IV. Movants did not establish any legal or equitable grounds for appointing a receiver. Cliff and Hoskins, Inc. demonstrate in their opening brief that Movants did
not sustain their burden of establishing any legal or equitable grounds to support
the order appointing a receiver. That discussion need not be repeated here.
V. Marcus Rogers’ disqualification to serve as receiver is not moot. Marcus Rogers’ fees, as receiver appointed by the arbitrator, have been paid
by Len Hoskins, one of the parties to this litigation. Cliff and Hoskins, Inc. assert
that this financial connection evidences a bias that disqualifies Rogers from being
appointed as receiver by the court in this case. Movants contend that this issue is
moot because Rogers is no longer being paid by Len. But the taint of Rogers’
financial connection to Len remains. Rogers is not “indifferent” or “disinterested”
in these proceedings and is disqualified to be appointed as receiver. See Wiley v.
Sclafani, 943 S.W.2d 107, 110 (Tex. App.—Houston [1st Dist.] 1997, no pet.).
CONCLUSION AND PRAYER The trial court abused its discretion by granting a motion to appoint a
receiver despite Movants’ failure to present any evidence to support that motion
and consequent failure to establish any legal or equitable grounds for appointing a
receiver.
16 Movants attempt to divert this Court’s attention from this relatively simple
issue by arguing that the Court lacks jurisdiction because the order appointing a
receiver is not really an order appointing a receiver, and that Cliff and Hoskins,
Inc. waived their right to appeal because they did not appeal prior unappealable
orders at a time when they were not parties to the lawsuit. Movants also attempt to
divert attention from the lack of evidence by inviting the Court to comb through
the history of this litigation, even though the trial court clearly considered only the
pleadings and hearing arguments directly related to the Receivership Motion.
Once these diversionary arguments are discarded, it becomes apparent that
Movants have not given this Court any evidentiary, legal, or equitable basis to
refute Cliff and Hoskins, Inc.’s arguments showing that the trial court’s order
appointing a receiver is an abuse of discretion.
At its heart, Movants’ argument on appeal is that the history of this litigation
demonstrates that someone should do something to end it. What is lacking,
however, is any law or evidence establishing that a receiver, rather than the current
Dependent Administratrix or a current Trustee, is that someone.
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.
17 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.
18 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 3,970 words, as calculated by Microsoft Word 2010, the program used to
prepare this document.
/s/ Ellen B. Mitchell Ellen B. Mitchell
19 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Reply 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 30th day of December, 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
Michael C. Sartori 502A Houston Street P.O. Box 1222 George West, Texas 78022 Michael@msartori.com Attorney for C. Clifton Hoskins, Independent Executor of the Estate of Hazel Q. Hoskins, Deceased
David L. Ylitalo YLITALO LAW FIRM 319 Maverick Street San Antonio, Texas 78212 d.ylitalo@ylitalolaw.com Attorneys for Leonard K. Hoskins, William Rex Hoskins, and Daniel Kenton Hoskins
Marcus P. Rogers LAW OFFICES OF MARCUS P. ROGERS, P.C. 2135 East Hildebrand Avenue San Antonio, Texas 78209 mpr2222@aol.com Receiver
20 Glen A. Yale 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 Pearl 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
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
21 Ezra A. Johnson UHL, FITZSIMONS, JEWETT & BURTON, PLLC 4040 Broadway, Suite 430 San Antonio, Texas 78209 ejohnson@ufjblaw.com Attorneys for Blake Hoskins
Joe L. Carter, Jr. The Petroleum Center 4657-C1 Business 181-N Beeville, Texas 78102 joe@joecarter.biz Trustee of the Marital Trust
Kevin P. Kennedy ATTORNEY AT LAW 1920 Nacogdoches Road, Suite 100 San Antonio, Texas 78209-2241 kpk@texas.net Attorney for Joe Carter, Trustee of the Marital Trust
/s/ Ellen B. Mitchell Ellen B. Mitchell
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