ACCEPTED
03-17-00756-CV
21332184
THIRD COURT OF APPEALS
AUSTIN, TEXAS 12/15/2017 4:29 PM JEFFREY D. KYLE
CLERK
CAUSE NO. 03-17-00756-CV
IN THE COURT OF APPEALS FOR THE THIRD DISTRICT FILED IN 3rd COURT OF APPEALS
AUSTIN, TEXAS AUSTIN, TEXAS
________________________________________________________________
12/15/2017 4:29:33 PM
JEFFREY D. KYLE
Clerk
IN RE BOBBY WAYNE MCKISSACK, INDIVIDUALLY AND AS CO-AGENT AND ATTORNEY IN FACT FOR JOE ANN MCKISSACK AND BOBBY WILSON MCKISSACK, AND ERIC MCKISSACK, INDIVIDUALLY AND AS CO-AGENT AND ATTORNEY IN FACT FOR JOE ANN MCKISSACK AND BOBBY WILSON MCKISSACK,
Relators,
________________________________________________________________
Mandamus Originating From th
274 District Court, Comal County, Texas Cause No. C2017-1496C
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RELATORS’ MOTION FOR EMERGENCY RELIEF
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RELATORS’ MOTION FOR EMERGENCY RELIEF Page 1 of 7
TO THE HONORABLE COURT OF APPEALS:
Pursuant to the Texas Rules of Appellate Procedure, including Tex. R. App.
P. 52.10, Relators, Bobby Wayne McKissack, Individually and as Co-Agent and
Attorney in Fact for Joe Ann McKissack and Bobby Wilson McKissack, and Eric
McKissack, Individually and as Co-Agent and Attorney in Fact for Joe Ann
McKissack and Bobby Wilson McKissack (“Relators”) file this Motion for
Emergency Relief and show the following:
1. Relators have filed a Petition for Writ of mandamus, in which Relators seek
relief from a November 9, 2017 order (the “Order”) from the Honorable Gary L.
Steel, Judge Presiding of the 274th Judicial Court, the Judicial District Court,
Comal County, Texas. See Order (attached as Exhibit “A”). In the Order, the
Court granted Respondent’s Motion for Anti-Suit Injunction and enjoined and
abated two guardianship proceedings pending in the County Court in Taylor
County, Texas.
2. In Relators’ Petition for Writ of Mandamus filed with the Court on
November 14, 2017, Relators ask this Court to issue a writ of mandamus 1)
reversing the Order of the Comal County District Court, which granted Plaintiff's
Motion for Anti-Suit Injunction, and 2) dissolving the Temporary Injunction Order
issued by the Comal County District Court in its entirety.
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RELATORS’ MOTION FOR EMERGENCY RELIEF Page 2 of 7 3. Until such time as the Court can address Relators’ Petition, Joe Ann
McKissack and Bobby Wilson McKissack are facing financial and emotional
difficulties that can only be resolved through the guardianship proceedings pending
in Taylor County. While these financial and emotional issues have been prevalent
since the applications were filed and necessitated same, these issues have been
ramping up such that this emergency relief is now imminently necessary. Another
family member, Brian McKissack apparently now has POA for both Joe Ann and
Bobby Wilson McKissack; however, he is failing to take care of their day to day
financial needs. For example, Joe Ann and Bobby Wilson McKissack still own a
home and acreage in Pearsall, Texas and Brian had failed to pay the homeowners’
insurance, thus requiring Eric McKissack to pay the insurance out of his pocket (so
as to not violate the temporary injunction) earlier this month. This issue and others
are set forth in more detail in the Affidavits of Eric McKissack and Kami
McKissack attached hereto as Exhibits “B” and “C.”
Further, despite being incapacitated and in need of the assistance provided at
the assisted living facility in Abilene, Joe Ann recently declared that they were
moving back to Pearsall due to the costs of the facility. The reason that Eric and
his wife, Kami, moved Joe Ann and Bobby Wilson McKissack to Abilene a year
ago was due to the fact that their medical and financial needs were not being met in
Pearsall. Bobby Wilson has dementia and needs dialysis three times a week and
___________________________________________________
RELATORS’ MOTION FOR EMERGENCY RELIEF Page 3 of 7
Joe Ann has macular degeneration such that she can no longer drive or take care of
their daily needs.
Further, the sons (Stephen and Bobby Wayne) and grandsons (Bryan and
Eric) of Joe Ann and Bobby Wilson are on opposite sides of the underlying legal
battle, brought by Real Party in Interest Stephen McKissack. This family fight has
caused a tremendous emotional toll on both Joe Ann and Bobby Wilson. As such,
the guardianships need to proceed immediately in order to insure the financial
needs and emotional well-being of Joe Ann and Bobby Wilson McKissack are
properly attended to. Relators will be irreparably harmed if this emergency relief is
not granted and certainly if this Court eventually determines that they are not
entitled to maintain guardianship proceedings in the only court with jurisdiction
over those proceedings for Joe Ann McKissack and Bobby Wilson McKissack.
Accordingly, Relators request that the Court immediately issue an order: allowing
Relators to proceed with the guardianship proceedings in Taylor County, Texas
while Relator's Petition is pending determination before the Court.
4. The prejudice to Relators will be great if this motion is not granted, whereas
the prejudice to Real Party in Interest, Stephen McKissak will be minimal as he did
not even file a response to Relators’ Petition for Writ of Mandamus seeking the
same relief.
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RELATORS’ MOTION FOR EMERGENCY RELIEF Page 4 of 7
PRAYER FOR RELIEF
WHEREFORE, pending the Court's consideration of Relators’ Petition for
Writ of Mandamus, Relators respectfully request that the Court grant this Motion
for Temporary Relief and immediately issue an order: allowing Relators to proceed
with the guardianship proceedings filed for Joe Ann McKissack and Bobby Wilson
McKissack in Taylor County, Texas. Relators also request such other and further
relief to which they may be entitled.
Respectfully submitted,
MCMAHON SUROVIK SUTTLE, P.C. P.O. Box 3679 Abilene, Texas 79604 (325) 676-9183 Telephone (325) 676-8836 Fax
BY: /s/ Robert B. Wagstaff Robert B. Wagstaff State Bar No. 20665000 rwagstaff@mcmahonlawtx.com
ATTORNEYS FOR RELATORS
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RELATORS’ MOTION FOR EMERGENCY RELIEF Page 5 of 7
CERTIFICATE OF COMPLIANCE
I, Robert B. Wagstaff, do hereby affirm that Relators have complied with
Texas Rule of Appellate Procedure 52.10 and made diligent effort to notify all
parties by facsimile that a motion for emergency relief is being filed in accordance
with the Texas Rules of Appellate Procedure.
/s/ Robert B. Wagstaff ROBERT B. WAGSTAFF
CERTIFICATE OF CONFERENCE
I, Robert B. Wagstaff, do hereby affirm that Relators have complied with
Texas Rule of Appellate Procedure 10.1 and made effort on December 15, 2017 to
confer with all other parties about the merits of Relators’ Motion for Emergency
Relief; however, Relators were unable to reach opposing counsel to confer.
/s/ Robert B. Wagstaff ROBERT B. WAGSTAFF
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RELATORS’ MOTION FOR EMERGENCY RELIEF Page 6 of 7
CERTIFICATE OF SERVICE
This is to certify that a true copy of the above and foregoing instrument was
forwarded to all attorneys of record via facsimile and e-service and to Respondent
via facsimile on this 15th day of December, 2017, in accordance with the Texas
Rules of Civil Procedure and the Texas Rules of Appellate Procedure.
/s/ Robert B. Wagstaff ROBERT B. WAGSTAFF
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RELATORS’ MOTION FOR EMERGENCY RELIEF Page 7 of 7
CAUSE NO. C2017-1496C
STEPHEN MILLER MCKISSACK § Plaintiff, § §
V. § §
BOBBY WAYNE MCKISSACK, § INDIVIDUALLY AND AS CO-AGENT AND § ATTORNEY IN FACT FOR JOE ANN § 274rn JUDICIAL DISTRICT MCKISSACK AND BOBBY WILSON § MCKISSACK, AND ERIC MCKISSACK, § INDIVIDUALLY AND AS CO-AGENT AND § ATTORNEY IN FACT FOR JOE ANN § MCKISSACK AND BOBBY WILSON § MCKISSACK, § Defendants. § OF COMAL COUNTY, TEXAS
ORDER ON PLAINTIFF'S APPLICATION FOR TEMPORARY RESTRAINING ORDER & ANTI-SUIT INJUNCTION
On November 2, 2017, in the above-styled and numbered cause, this Court heard Plaintitrs
Application for Temporary Restraining Order and Anti-Suit Injunction.
Plaintiff, Stephen Miller McKissack (hereinafter referred to as "Steve McKissack"),
appeared by and through counsel Charles Sullivan and Aubrey Flowers and announced ready.
Defendants, Bobby Wayne McKissack (hereinafter referred to as "Bobby Wayne
McKissack") and Eric McKissack (hereinafter referred to as "Eric McKissack"), appeared by and
through counsel Robert Wagstaff and announced ready.
After careful consideration of the pleadings, records, ~xhibits, documents filed by counsel,
applicable authorities, and the arguments of counsel, TIDS COURT FINDS:
A. On July 31, 2017, Bobby Wayne Mc Kissack caused to be filed a complaint for
forcible detainer against Steve McKissack and all others occupying the
premises at under Cause No.
Ell 7167;
ORDER ON PLAINTIFF'S APPLICATION FOR TEMPORARY RESTRAINING ORDER & ANTI-SUIT INJUNCTION
Page 1 of7
EXHIBIT A
B. On August 24, 2017, Cause No. El 17167 was nonsuited as to Steve McKissack
and all others occupying the premises at
- and dismissed;
C. On August 29, 2017, Steve McKissack filed an Original Petition and an
Application for Ex-Parte Temporary Restraining Order in the 274th Judicial
District Court of Comal County, Texas under Cause No. C2017-1496C;
D. On August 29, 2017, this Court heard, approved, signed, and ordered that the
temporary restraining order issue without notice to Defendants, restraining
Defendants, Defendants' officers, agents, servants, employees, successors and
assigns, and attorneys from:
" ... directly or indirectly using, selling, or entering into any transactions
relative to the personal or marital estate of Joe Ann McKissack and
Bobby Wilson Mc Kissack or making any sort of use of the accounts or
funds associated with the personal or marital estate of Joe Ann
McKissack and Bobby Wilson McKissack; from taking any action that
would be detrimental to the personal or marital estate of Joe Ann
McKissack and Bobby Wilson McKissack; and, from causing any
further damages or waste to the personal or marital estate of Joe Ann
McKissack and Bobby Wilson McKissack."
E. On September 11, 2017, the parties agreed to and this Court signed an order
extending the temporary restraining order until September 28, 2017;
F. On September 28, 2017, Defendants appeared in court in front of the Honorable
Judge Gary Steel in the 274 th Judicial District Court of Comal County, Texas,
ORDER ON PLAINTIFF'S APPLICATION FOR TEMPORARY RESTRAINING ORDER & ANTI-SUIT INJUNCTION
Page 2 of 7
seeking a continuance to employ counsel. This Court admonished each of the
Defendants that they needed to review the Temporary Restraining Order and to
abide by it in its entirety until such time as the case was reset. This Court
specifically admonished the Defendants to take no action that could be
considered a violation of the Temporary Restraining Order;
G. On October 12, 2017, Defendant Bobby Wayne McKissack, by and through ·
counsel, Robert Wagstaff, filed two guardianship actions in Taylor County with
regard to the person and estate of Joe Ann McKissack and Bobby Wilson
McKissack, in direct violation of this Court's temporary restraining order; and
H. On October 18, 2017, Defendants, by and through counsel, Robert Wagstaff,
agreed to the injunctive order, attached hereto as Exhibit '' l" and incorporated
herein by reference as if set forth word for word, also pertaining to the personal
and marital estate of Joe Ann McKissack and Bobby Wilson McKissack, despite
having already filed the two guardianship actions in Taylor County with regard
to the personal and marital estate of Bobby Wilson McKissack and Joe Ann
McKissack. The agreed injunctive order enjoined Defendants, Defendants'
officers, agents, servants, employees, successors and assigns, and attorneys
from committing the restrained conduct as described above and previously
ordered by this Court's temporary restraining order. Further, counsel Robert
Wagstaff never brought the existence of the two guardianship actions filed in
Taylor County to the attention of this Court or Plaintiff's counsel. In fact, the
existence of the two guardianship actions filed in Taylor County were not
discovered by Plaintiff's counsel until AFTER counsel Robert Wagstaff agreed
ORDER ON PLAINTIFF'S APPLICATION FOR TEMPORARY RESTRAINING ORDER & ANTI-SUIT INJUNCTION
Page 3 of 7
to the injunctive order, which was entered by agreement and signed before
visiting judge, the Honorable Todd Bloomerth.
THIS COURT FURTHER FINDS that Plaintiff has met the requisite burden of proof
necessary for the issuance of this Temporary Restraining Order and Anti-Suit Injunction by
establishing each and every element imposed by Texas law governing the issuance of anti-suit
injunctions and orders of abatement on grounds of dominant jurisdiction;
The Applications for Appointment of Permanent Guardian for the Person and Estate of Joe
Ann McKissack (Cause No. 2-1219) and the Person and Estate of Bobby Wilson McKissack
(Cause No. 2-1220), filed by Bobby Wayne McKissack in the County Court at Law #2 of Taylor
County, are inherently interrelated to and inextricably intertwined with the Application for Ex Parte
Temporary Restraining Order and Injunction, filed by Steve McKissack in the 274 th Judicial
District Court of Comal County (Cause No. C2017-1496C), the subsequent Temporary Restraining
Order issued by this Court, and the Agreed Injunction, in that both actions involve the same parties
and the personal and marital estate of Joe Ann McKissack and Bobby Wilson McKissack;
The Applications for Appointment of Permanent Guardian for the Person and Estate of Joe
Ann McKissack (Cause No. 2-1219) and the Person and Estate of Bobby Wilson McKissack
(Cause No. 2-1220), filed on behalf of Bobby Wayne McKissack by Defendant's attorney Matt
Mercer in the County Court at Law #2 of Taylor County, constitute vexatious litigation; a
multiplicity of inherently interrelated and inextricably intertwined suits; and represents a clear
threat to this Court's exclusive jurisdiction of the personal and marital estate of Bobby Wilson
Mc Kissack and Joe Ann McKissack;
Very special circumstances exist such that this injunction is necessary to prevent an
irreparable miscarriage of justice in that the guardianship actions in Taylor County were filed on
ORDER ON PLAINTIFF'S APPLICATION FOR TEMPORARY RESTRAINING ORDER & ANTI-SUIT INJUNCTION
Page 4 of 7
behalf of Bobby Wayne McKissack by and through his attorney Matt Mercer, Robert Wagstaff' s
partner, while this Court's temporary restraining order was in full force and effect; and, on October
18, 2017, while engaged in negotiations with Plaintiff's counsel regarding the terms of the
injunctive order, Counsel for Defendants, Robert Wagstaff, failed to even mention the existence
of the guardianship actions filed in Taylor County to Plaintiff's counsel and this Court, all of which
points to the fact that this was legal maneuvering and a specific and direct attempt by Defendants
and both of their attorneys, Robert Wagstaff and Matt Mercer, to not only circumvent this Court's
exclusive jurisdiction of the personal and marital estate of Joe Ann McKissack and Bobby Wilson
McKissack, but also to circumvent this Court's injunctive authority, and avoid this Court's
injunctive language that counsel for Defendants, Robert Wagstaff, eventually agreed to despite
having already filed the guardianships in Taylor County; and
Clear equity demands that Defendants, Defendants' officers, agents, servants, employees,
successors and assigns, and attorneys cease and desist from filing or pursuing any actions or claims
outside of the 274 th Judicial District Court of Comal County, Texas that are based on, related to, or
otherwise pertaining to the personal or marital estate of Joe Ann McKissack and Bobby Wilson
McKissack; that Defendants, Defendants' officers, agents, servants, employees, successors and
assigns, and attorneys be permanently enjoined and restrained from proceeding with the
Applications for Appointment of Permanent Guardian for the Person and Estate of Joe Ann
McKissack (Cause No. 2-1219) and the Person and Estate of Bobby Wilson McKissack (Cause
No. 2-1220) in Taylor County; and that the Applications for Appointment of Permanent Guardian
for the Person and Estate of Joe Ann McKissack (Cause No. 2-1219) and the Person and Estate of
Bobby Wilson McKissack (Cause No. 2-1220) in Taylor County be abated pending final resolution
of Cause No. C2017-1496C in the 274 th Judicial District Court of Comal County, Texas or until
ORDER ON PLAINTIFF'S APPLICATION FOR TEMPORARY RESTRAINING ORDER & ANTI-SUIT INJUNCTION
Page 5 of 7
further notice of this Court.
THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED:
1. That Defendants, Defendants' officers, agents, servants, employees, successors
and assigns, and attorneys are hereby ORDERED to cease and desist from
filing or pursuing any actions or claims outside of the 274th Judicial District
Court of Comal County, Texas that are based on, related to, or otherwise
pertaining to the personal or marital estate of Joe Ann McKissack and Bobby
Wilson McKissack;
2. That Defendants, Defendants' officers, agents, servants, employees, successors
and assigns, and attorneys are permanently enjoined and restrained from
proceeding with the Applications for Appointment of Permanent Guardian for
the Person and Estate of Joe Ann Mc Kissack (Cause No. 2-1219) and the Person
and Estate of Bobby Wilson Mc Kissack (Cause No. 2-1220) in Taylor County;
and
3. The Applications for Appointment of Permanent Guardian for the Person and
Estate of Joe Ann McKissack (Cause No. 2-1219) and the Person and Estate of
Bobby Wilson McKissack (Cause No. 2-1220) in Taylor County be and are
hereby ABATED pending final resolution of Cause No. C20 l 7-1496C in the
274th Judicial District Court of Comal County, Texas or until further notice of
this Court.
IT IS FURTHER ORDERED that the clerk of the above-entitled court shall issue a writ
of injunction in conformity with the law and the terms of this order; this writ of injunction shall be
effective immediately; and, by agreement of the parties, the requirement of a bond is waived and
ORDER ON PLAINTIFF'S APPLICATION FOR TEMPORARY RESTRAINING ORDER & ANTI-SUIT INJUNCTION
Page 6 of 7
attorney's fees incurred by Steve McKissack are waived only for the purpose of the hearing held
on November 2, 2017.
"/q /1-::;-
SIGNED and ENTERED on -ttr /t) ~ . I .
at 8: 3ll L.M.
PRESIDfNG JUDGE
APPROVED AS TO FORM:
Robert Wagstaff Attorney for Defendants
ORDER ON PLAINTIFF'S AP PUCATION FOR TEMPORARY RESTRAINING ORDER & ANTI-SUIT INJUNCTION
Page 7 of 7
------ ---
NO. C2017-1496C
STEPHEN MILLER MCKISSACK § IN THE DISTRICT COURT Plaintiff, § §
V. § §
BOBBY WAYNE MCKISSACK, § INDIVIDUALLY AND AS CO-AGENT AND § ATTORNEY IN FACT FOR JOE ANN § 274th JUDICIAL DISTRICT MCKISSACK AND BOBBY WILSON § MCKISSACK, AND ERIC MCKISSACK, § INDIVIDUALLY AND AS CO-AGENT AND § ATTORNEY IN FACT FOR JOE ANN § MCKISSACK AND BOBBY WILSON § MCKISSACK, § De~ndantL § OF COMAL COUNTY, TEXAS
AGREED TO TEMPORARY IN.JUNCTION
On this day the above-styled and numbered case came on for consideration before the
Court. Plaintiff has applied and given bond for a temporary injunction in this cause, and all
parties agree that the injunction issue.
IT IS THEREFORE, AGREED AND ORDERED AS FOLLOWS:
BOBBY WAYNE MCKISSACK, INDIVIDUALLY AND AS CO-AGENT AND
ATTORNEY IN FACT FOR JOE ANN MCKISSACK AND BOBBY WILSON MCKISSACK
and ERIC MCKISSACK, INDIVIDUALLY AND AS CO-AGENT AND ATTORNEY IN
FACT FOR JOE ANN MCKISSACK AND BOBBY WILSON MCKISSACK are cemmaRaed r- v = ; . ~
t-e-4-mmecliatety desist and 1eftain fte>ffl from committing any acts of violence or threatening to
commit any acts of violence against Stephen Miller McKissack, lih,caa ~4eKissaek, er .Alisha.
~4GKisSt'l'ek; from coming within 200 feet of Stephen Miller McKissack, B1yan McKissack, or
Alisha McKissaek; from making any contact with Stephen Miller McKissack, 8rya.t:1 MeKissuek,
.or Alisha MeKissaek; from entering the property located at .------------------------- - --· -- -
- ; from coming within 200 foet of ;
l'\oi"w ;_"""._.,._..l, ""S ~b.. • ,- p..,..,u....l.-~ -f- "' .c.,·,~ ~~ ~_/ from directly or indirectly using~selling, or entering into any transactions relative to the personal or 'j)J_ marital estate of Joe Ann McKissack and Bobby Wilson McKissack or making any sort of use of the ~ ~~f,....R..;. hp~ I \
accounts or funds1associated with the personal or marital estate of Joe Ann McKissack and Bobby
Wilson McKissack; from taking any action that would be detiimental to the personal or marital
estate of Joe Ann McK.issack and Bobby Wilson McK.issack: and, from causing any ittrthcr
damage>{ or waste to the personal or marital estate of Joe Ann McKissack and Bobby Wilson
McKissack.
SIGNED and ENTERED on
PRESIDING JUDGE
AGREED AS TO FORM AND SUBSTANCE:
al!:: J~------
Attomey for Plaintiff
Ro~ Attorney for Defendants
AFFIDAVIT OF ERIC McKISSACK COUNTY OF TAYLOR § §
STATE OF TEXAS §
BEFORE ME, the undersigned official, on this day appeared ERIC McKISSACK, who is personally known to me, and after first being duly sworn according to law under oath deposed and stated:
"My name is ERIC McKISSACK. I am over the age of 18 years, I am a resident of Taylor County, Texas, and I am fully capable of making this affidavit. I have personal knowledge of the facts stated herein and they are true and correct.
"I am the grandson of BOBBY WILSON McKISSACK ("BOB") and JOE ANN McKISSACK ("JOE ANN").
"On November 8, 2016, JOE ANN executed a Durable Power of Attorney naming Affiant and BOBBY WAYNE McKISSACK ("BOBBY")-JOE ANN's son-as co- agents. On July 18, 2017, BOB executed a Durable Power of Attorney naming Affiant and BOBBY-also his son-as co-agents.
"Steadily for some time, BOB's physical and mental condition has declined. Since September 2017, JOE ANN's physical and mental condition has likewise declined.
"In February 2017, BOB and JOE ANN moved from Pearsall, Frio County, Texas to Abilene, Taylor County, Texas. BOB and JOE ANN moved into Lyndale Abilene, a senior care facility located in Abilene, Texas ("Lyndale"). Affiant and Affiant's wife, KAMI McKISSACK ("KAMI") assumed responsibility for assisting with the care for BOB and JOE ANN following their move to Abilene.
"BOB and JOE ANN moved to Abilene because they needed daily assistance with their health care (e.g. physician visits, travel to and from dialysis treatments, administration of medication), and with management of their property and finances, including but not limited to payment of regular monthly bills and expenses. Affiant and KAMI provided the bulk of that assistance. For example, Affiant would drive BOB to and from his Friday dialysis appointments, KAMI would drive BOB and JOE ANN to their doctor's appointments, and KAMI would assist with the payment of BOB and JOE ANN's regular monthly bills.
"On or about August 29, 2017, BOB and JOE ANN's son, STEPHEN McKISSACK ("STEPHEN"), filed suit in Comal County and obtained a temporary restraining order against BOBBY and Affiant, in both their individual capacities and as agents under the Durable Powers of Attorney, alleging tortious interference with contract, intentional infliction of emotional distress, and other bad acts. An agreed temporary injunction was entered on October 18, 2017, and at that time BOB and JOE ANN's grandson, BRYAN
EXHIBIT B
McKISSACK ("BRYAN") assumed responsibility for managing the property and finances of BOB and JOE ANN. When BRYAN took control, Affiant and KAMI prepared a detailed folder with instructions on business matters for BOB and JOE ANN, including but not limited to lists of accounts, bills to be paid, and other similar and pertinent information. Shortly after it was given to BRYAN, that same folder was found in 808 and JOE ANN's apartment with numerous unaddressed, but stamped, envelopes inside. According to JOE ANN, these were left for her to mail to pay bills. JOE ANN could not see sufficiently enough to address envelopes, which made her frustrated and concerned.
"Sometime in late September 2017, BOB and JOE ANN were removed from Lyndale by BRYAN, and taken to Pearsall, Texas. On information and belief, BRYAN took 808 and JOE ANN to an attorney in New Braunfels and had 808 and JOE ANN execute what are believed to be new Durable Powers of Attorney appointing BRYAN as their agent. The execution of these documents has not been confirmed, although copies have been requested on multiple occasions.
"While visiting with BOB and JOE ANN following their return to Abilene, Affiant was told by JOE ANN that she and BOB 'signed some papers' that BRYAN had prepared for them. JOE ANN could not recall what papers were signed, although she believed one of the documents was a Will. JOE ANN also said she had not requested that any papers be prepared, and she did not know the lawyer who met with them. JOE ANN told Affiant that she did not like the person that gave them the papers to sign.
"On October 12, 2017, BOBBY filed an Application for Guardianship of the Person and Estate of BOB and JOE ANN. In support of the guardianship applications, BOBBY also filed Physician's Certificates of Medical Examination completed by Vince Van Aght, MD, and dated October 17, 2017. Dr. Van Aght, who was and is the primary care physician for BOB and JOE ANN, certified in both evaluation forms that BOB and JOE ANN were totally incapacitated and in need of a guardian.
"On October 30, 2017, STEPHEN filed a Motion in the Comal County litigation claiming that the filing of the guardianships violated the temporary injunction entered in that case, and asking the court to enter an anti-suit injunction to "stay" the guardianship proceedings. The Comal County district court granted the anti-suit injunction, and that matter is now on mandamus appeal. The guardianships in Taylor County remain on hold pending the outcome of the appeal.
"In the meantime, BOB and JOE ANN's physical and mental health, and their property and finances, continue to be jeopardized by BRYAN and/or STEPHEN. On numerous occasions in the past three months, 808 or JOE ANN have placed emotional and panicked phone calls to Affiant, BOBBY or KAMI because they have been told that 'they have no money' or that Affiant, BOBBY or KAMI have 'stolen their property or money.' Each time, Affiant and KAMI have reassured 808 and JOE ANN that what they have been told is not true.
"Since moving to Abilene, Affiant or KAMI have handled nearly 100% of the care needs for BOB and JOE ANN. On only two occasions has BRYAN, or his wife ALISHA McKISSACK ("ALISHA") offered to provide any assistance. The first time, Affiant and KAMI left town for a weekend on a family vacation. We asked BRYAN or ALISHA to help take BOB to dialysis. Neither BRYAN nor ALISHA would take BOB, but ALISHA instead arranged for a 'nurse friend' to take him to the appointment. When KAMI asked for the friend's contact information so that she could inform her as to the routine, ALISHA replied that it was unnecessary because the nurse 'was a professional and could handle it.' ALISHA eventually provided the contact information after Affiant and KAMI refused to leave town without first being able to at least confirm the friend's identity and do our due diligence to assure BOB's safety around ALISHA's friend. The second time Affiant and KAMI left town, again for a family trip, BRYAN took BOB to his dialysis appointment. When Affiant and KAMI returned, BRYAN advised that he would never help BOB or JOE ANN again.
"Since assuming control, BRYAN has failed to properly manage the business and financial affairs of BOB and JOE ANN. Specifically, the homeowner's insurance on their home in Pearsall almost lapsed for nonpayment. When notified by the insurance company, Affiant personally paid the premium so that the insurance would remain in place. Further, BOB and JOE ANN's property taxes on their property in Comal and Frio Counties are delinquent. The Frio County taxes were to be paid in full upon the sale of BOB and JOE ANN's home in Pearsall. However, the lawsuit filed by STEPHEN blocked any effort to sell that property, and the taxes remain unpaid to date. The property provides no useful value to BOB and JOE ANN's estate, as it is solely a liability and should be liquidated to cover the costs of their care.
"Further, BRYAN has accused Affiant and KAMI of stealing property belonging to BOB and JOE ANN. Specifically, BRYAN told BOB and JOE ANN during a visit in November 2017 that a royalty check was missing, and either Affiant or KAMI must have stolen it. This accusation angered BOB, who demanded answers from Affiant and KAMI, neither of whom knew anything about the royalty check. Later, the same royalty check that BRYAN accused Affiant or KAMI of stealing was located under a placemat on the dining table in BOB and JOE ANN's apartment.
"Finally, on or about December 12, 2017, BOB and JOE ANN informed Affiant and BOBBY that they were moving back to Pearsall and would find someone there to care for them; that they could not afford to stay at Lyndale because it was too expensive; that they would hire a moving company or rent a truck or get BRYAN to help them move; and that BOB was upset because they could never get the 'western channel on the big television in the living room.'
"It is not safe or in the best interest of BOB or JOE ANN to move from Lyndale, where they receive appropriate care and oversight. It is especially not in the best interest of BOB or JOE ANN to move from Lyndale without any sort of plan in place for their protection or safety. Moving from Lyndale could put the health or safety of BOB or JOE ANN in immediate jeopardy.
"In Affiant's opinion, it is not in the best interest of BOB or JOE ANN to manage their own property or finances, or to have BRYAN manage their property or finances, because of the incidents referenced herein which have or could have caused damage to their estates.
Further, Affiant sayeth not.
ERIC McKISSACK, Affiant
SUBSCRIBED AND SWORN TO BEFORE ME, on the day of December, 2017, to which witness my hand and seal of office.
SARAH A. MCGRAW Notary ID # 125090435 My Commission Expires Notary Public, State of Texas October 18, 2020
AFFIDAVIT OF KAMI McKISSACK COUNTY OF TAYLOR § §
STATE OF TEXAS §
BEFORE ME, the undersigned official, on this day appeared KAMI McKISSACK, who is personally known to me, and after first being duly sworn according to law under oath deposed and stated:
"My name is KAMI McKISSACK. I am over the age of 18 years, I am a resident of Taylor County, Texas, and I am fully capable of making this affidavit. I have personal knowledge of the facts stated herein and they are true and correct.
"I am the granddaughter-in-law of BOBBY WILSON McKISSACK ("BOB") and JOE ANN McKISSACK ("JOE ANN"). I am the wife of BOB and JOE ANN's grandson, ERIC McKISSACK ("ERIC").
"I have a close personal relationship with BOB and JOE ANN, and have been intimately involved in their personal care and business affairs since they moved to Abilene in February 2017. I have done this at their request, and to assist my husband and his uncle, BOBBY WAYNE McKISSACK ("BOBBY"), who are BOB and JOE ANN's agents under Durable Powers of Attorney.
"In February 2017, BOB and JOE ANN moved from Pearsall, Frio County, Texas to Abilene, Taylor County, Texas. BOB and JOE ANN moved into Lyndale Abilene, a senior care facility located in Abilene, Texas ("Lyndale"). The move was made necessary because BOB and JOE ANN's health, well-being and safety were of growing concern. Before the move, JOE ANN was still driving although she had been rendered legally blind by macular degeneration. Neither BOB nor JOE ANN were taking their medications correctly or regularly. JOE ANN would misplace personal items, and then accuse her housekeepers of stealing them. BOB and JOE ANN's son, STEPHEN McKISSACK ("STEPHEN") would come by their home and take items that did not belong to him.
"Once they were in Abilene, BOB and JOE ANN stabilized. Affiant and ERIC assumed primary responsibility for meeting their needs, doing almost 100% of the work not offered or provided by Lyndale. Affiant and ERIC bought groceries and toiletries for them, took them to the doctor and to dialysis appointments, did their laundry and other chores. Affiant and ERIC also assisted with property management and bill payment.
"Following the move, finances were tight for BOB and JOE ANN, so a decision was made to sell the residence in Pearsall, Frio County, Texas, to provide some financial breathing room and pay off delinquent ad valorem taxes in Frio and Comal County. That plan was not able to be carried out, however, because of the lawsuit filed by STEPHEN in Comal County.
EXHIBIT C
"Following the filing of the lawsuit, BRYAN McKISSACK ("BRYAN"}-
STEPHEN's son and ERIC's brother-asswned responsibility for managing the property and finances of BOB and JOE ANN. When BRYAN took control, he was provided with a detailed folder listing instructions on business matters for BOB and JOE ANN, including but not limited to lists of accounts, bills to be paid, and other similar and pertinent information. Shortly after it was given to BRYAN, that same folder was found in BOB and JOE ANN's apartment with nwnerous unaddressed, but stamped, envelopes inside. According to JOE ANN, these were left for her to mail to pay bills. JOE ANN could not see sufficiently enough to address envelopes, which made her frustrated and concerned.
"BOB and JOE ANN's physical and mental health has declined sharply since the litigation began. The relationship of the family, likewise, has deteriorated. JOE ANN is prone to crying fits and gets confused very easily. BOB gets angered and upset by the arguments and allegations. Regularly, after visits from BRYAN or with STEPHEN, JOE ANN will call very upset and express that she feels like 'a stupid woman' and asking Affiant 'why she does the things' that BRYAN and STEPHEN ask her to do.
"JOE ANN has asked Affiant why she no longer pays bills or takes care of things for them. When told that BRYAN must handle those things now due to the litigation, JOE ANN expresses that she does not want BRYAN to handle her affairs, because 'he knows nothing about us.'
"Since assuming control, BRYAN has failed to properly manage the business and financial affairs of BOB and JOE ANN. Specifically, the homeowner's insurance on their home in Pearsall almost lapsed for nonpayment. When notified by the insurance company, Affiant and ERIC personally paid the premiwn out of our own pocket so that the insurance would remain in place. BOB and JOE ANN have complained that they are often without snacks, groceries or hygiene and health products. It is Affiant's understanding that BRYAN in in possession of BOB and JOE ANN's credit card, but has not used it to provide them with all of the things that they need. As a result, Affiant and ERIC have given them these items and personally paid for them.
"BRYAN has accused Affiant and ERIC of stealing property belonging to BOB and JOE ANN, which is not true. These allegations only upset BOB and JOE ANN. On information and belief, BRYAN has taken BOB and JOE ANN to see doctors that are not their primary care physician, and BOB and JOE ANN have expressed that they do not want to see other doctors.
"It is not safe or in the best interest of BOB or JOE ANN to move from Lyndale, where they receive appropriate care and oversight. It is especially not in the best interest of BOB or JOE ANN to move from Lyndale without any sort of plan in place for their protection or safety. Moving from Lyndale could put the health or safety of BOB or JOE ANN in immediate jeopardy.
"In Affiant's opinion, it is not in the best interest of BOB or JOE ANN to manage their own property or finances, or to have BRYAN manage their property or finances, because of the incidents referenced herein which have or could have caused damage to their estates.
Further, Affiant sayeth not.
SUBSCRIBED AND SWORN TO BEFORE ME, on the day of December, 2017, to which witness my hand and seal of office.
SARAH A. MCGRAW Notary ID # 125090435 My Commission Expires Notary Public, State of Texas October 18, 2020