ACCEPTED 01-15-00471-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 7/10/2015 3:31:35 PM CHRISTOPHER PRINE CLERK
NO. 01-15-00471-CV __________________________________________ FILED IN 1st COURT OF APPEALS IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS AT HOUSTON, TEXAS 7/10/2015 3:31:35 PM CHRISTOPHER A. PRINE Clerk IN RE DANIEL W. WARREN, BENEFICIARY OF THE DANIEL STEVEN WEINER 1996 TRUST, RELATOR
On Petition for Writ of Mandamus From Probate Court No. 4 Of Harris County, Texas The Honorable Christine Butts, Presiding Cause No. 425,576-401
REAL PARTY IN INTEREST ANDY I. WEINER, AS CO-TRUSTEE OF THE DANIEL STEVEN WEINER 1996 TRUST’S RESPONSE TO PETITION FOR WRIT OF MANDAMUS
Sarah Patel Pacheco (State Bar No. 00788164) C. Henry Kollenberg (State Bar No. 11667800) Kathleen Tanner Beduze (State Bar No. 24052205) CRAIN, CATON & JAMES, P.C. 1401 McKinney St., Suite 1700 Houston, Texas 77010 (713) 658-2323 (Telephone) (713) 658-1921 (Facsimile) spacheco@craincaton.com hkollenberg@craincaton.com kbeduze@craincaton.com
ATTORNEYS FOR REAL PARTY IN INTEREST ANDY I. WEINER TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i TABLE OF AUTHORITIES .................................................................................... ii STATEMENT REGARDING RECORD AND PARTY REFERENCES .............. iv STATEMENT REGARDING ORAL ARGUMENT ...............................................v ISSUE PRESENTED ............................................................................................... vi OVERVIEW ..............................................................................................................1 STATEMENT OF FACTS ........................................................................................4 A. Facts Relating to the Mandamus Proceeding. .......................................5 B. Procedural Background of Trial Court Proceeding...............................7 ARGUMENT AND AUTHORITIES ......................................................................13 A. Standard of Review. ............................................................................13 B. A nonsuit under Rule 162 does not dismiss cross-claims between co-defendants. .......................................................................14 C. After Daniel’s nonsuit, Judge Butts properly conducted hearings relating to the cross-claims by Mr. Weiner against Ms. Warren..............................................................................15 CONCLUSION AND PRAYER .............................................................................22 CERTIFICATE OF SERVICE ................................................................................23 CERTIFICATION ...................................................................................................24 INDEX TO APPENDIX ..........................................................................................25
i TABLE OF AUTHORITIES
Cases Ault v. Mulanex, 724 S.W.2d 824 (Tex. App.—Texarkana 1986, orig. proceeding) ............................................................................................. 18, 19 Beacon Nat’l Ins. v. Montemayor, 86 S.W.3d 260 (Tex. App.—Austin 2002, no pet.) .................................................................................................16 BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838 (Tex. 1990) ................. 15, 17 Braden v. Marquez, 950 S.W.2d 191 (Tex. App.—El Paso 1997)..........................14 Christus Health v. Ragsdale, 2011 WL 3854145 (Tex. App.—Corpus Christi, 2001) .................................................................................................21 Greenberg v. Brookshire, 640 S.W.2d 870 (Tex. 1982)................................... 18, 19 In re Bennett, 960 S.W. 35 (Tex. 1997) ...................................................................16 In re El Paso Healthcare Sys., 969 S.W.2d 68 (Tex. App.—El Paso 1998) ..............................................................................................................14 In re Ford Motor Co., 988 S.W.2d 714 (Tex. 1998) ...............................................13 In re Kuntz, 124 S.W.3d 179 (Tex. 2003)......................................................... 13, 14 In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004)...............................13 Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985) ........................13 Peek v. Equip. Serv., 779 S.W.2d 802 (Tex. 1989) .................................................16 TDCJ v. Miller, 51 S.W.3d 583 (Tex. 2001) ...........................................................16 Tex. Mutual Insurance Company v. Ledbetter, 251 S.W.3d 31 (Tex. 2008) .................................................................................. vi, 3, 14, 15, 16, 21 Ulloa v. Davila, 860 S.W.2d 202 (Tex. App.—San Antonio 1993, no writ) ................................................................................................................17 Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98 (Tex. 2006)................................................................15 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ......................................................13 Zanchi, M.D. v. Lane, 349 S.W.3d 97 (Tex. 2001) .................................................20
ii Statutes TEX. PROP. CODE § 115.011 .......................................................................... 3, 16, 20 Rules Rule 2.2, Rules of the Probate Courts of Harris County, Texas ..............................16 TEX. R. CIV. P. 162 .................................................................................. 3, 14, 15, 17
iii STATEMENT REGARDING RECORD AND PARTY REFERENCES
Relator filed a Petition for Writ of Mandamus with Exhibits identified as
Tab A through O attached as Relator’s mandamus record. References to these
exhibits comprising the Relator’s record in support of his Petition for Writ of
Mandamus are shown as (“Rel. Tab ___, Ex. ___”) with the Tab letter and Exhibit
letter, as appropriate, in the blanks.
References to the Appendix to this brief will be listed by the corresponding
exhibit number, i.e., App. 1, and refers to the exhibits attached in the Appendix to
this Response comprising the Real Party in Interest’s record in support of his
Response to Relator’s Petition for Writ of Mandamus.
Relator Daniel W. Warren f/k/a Daniel Steven Weiner, as beneficiary of the
Daniel Steven Weiner 1996 Trust is referred to as “Daniel” in this Response.
Respondent The Honorable Christine Butts of Probate Court No. Four (4) of
Harris County, Texas is referred to as “Judge Butts” in this Response.
Real Party in Interest Andy I. Weiner, as Co-Trustee of the Daniel Steven
Weiner 1996 Trust, is referred to as “Mr. Weiner” in this Response.
Katherine Warren f/k/a Katherine Weiner, as Co-Trustee of the Daniel
Steven Weiner 1996 Trust, is referred to as “Ms. Warren” in this Response.
iv STATEMENT REGARDING ORAL ARGUMENT
Mr. Weiner believes that oral argument is not necessary in this proceeding,
but requests the opportunity to present oral argument if the Court determines it is
appropriate.
v ISSUE PRESENTED
Pursuant to Rule 162 and the Texas Supreme Court’s decision in Tex. Mutual Insurance Company v. Ledbetter, 251 S.W.3d 31 (Tex. 2008), after Daniel nonsuited his claims, pending cross-claims between the defendants still remained. Did Judge Butts abuse her discretion by following the law and continuing to exercise jurisdiction in the claims between the two co-defendants?
vi NO. 01-15-00471-CV __________________________________________
IN THE FIRST COURT OF APPEALS AT HOUSTON, TEXAS
IN RE DANIEL WARREN, BENEFICIARY OF THE DANIEL STEVEN WEINER 1996 TRUST, RELATOR
REAL PARTY IN INTEREST ANDY I. WEINER, AS CO-TRUSTEE OF THE DANIEL STEVEN WEINER 1996 TRUST’S RESPONSE TO PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE JUDGES OF THE FIRST COURT OF APPEALS:
Real Party in Interest Andy I. Weiner, as Co-Trustee of the Daniel Steven
Weiner 1996 Trust, files this Response to Relator Daniel Steven Weiner’s Petition
for Writ of Mandamus, and respectively shows the Court as follows:
OVERVIEW
In 2013, Daniel’s mother, Ms. Warren, as next friend of Daniel and as co-
trustee of the Daniel Steven Weiner 1996 Trust (the “Trust”), instigated a lawsuit
in Probate Court No. 4 of Harris County, Texas (the “Probate Court”) against Mr.
Weiner, as co-trustee of the Trust. Initially, due a separate lawsuit pending in
family court, the Probate Court granted Mr. Weiner’s Plea to the Jurisdiction,
1 dismissing Daniel’s lawsuit. At that time, Ms. Warren argued that this case
belonged in Probate Court. 1
On April 22, 2014, upon turning 18, Daniel intervened in his older brother
David Warren f/k/a David Weiner’s lawsuit against Mr. Weiner.2 After several
months of motion practice with Daniel as an intervenor, including Mr. Weiner’s
cross-claims against Ms. Warren, Daniel was ordered to re-file his claims under a
new cause number in Probate Court No. 4 – Cause No. 425,576-401.
Now, after successfully arguing that the Probate Court had jurisdiction and
causing Mr. Weiner to incur thousands of dollars of defense costs – at both the trial
court level and appellate level – Daniel (and his brothers who had likewise filed
lawsuits against Mr. Weiner with Ms. Warren’s assistance) attempted to suddenly
nonsuit his claims and initiate a duplicate suit in the 133rd Judicial District Court of
Harris County, Texas, Cause No. 2015-19320 (the “District Court Lawsuit”).
Daniel did so on March 10, 2015, two and a half years later and less than four
months before trial was to begin in the Probate Court.
1 Cause No. 425,578 is a lawsuit similar to Daniel’s, brought by his younger brother, M.H.W., against Mr. Weiner. Like Daniel’s lawsuit, the Probate Court granted Mr. Weiner’s Plea to the Jurisdiction due to jurisdictional defects. However, unlike Daniel, M.H.W., by and through Ms. Warren as next friend, appealed the Court’s Order. Cause No. 01-13-01077-CV; Katherine R. Warren, as next friend of M.H.W., a minor, beneficiary of the M.H.W. 2000 Trust v. Andy I. Weiner, Trustee of the M.H.W. 2000 Trust. The First Court of Appeals agreed with M.H.W.’s argument in the Probate Court, holding that the Probate Court, not the Family Court, had jurisdiction. 2 Cause No. 425577; In re: David Abraham Weiner 1994 Trust, pending in the Probate Court No. 4 of Harris County, Texas (“David’s Case”).
2 Despite Daniel’s attempt to shop for a new judge/court, a nonsuit did not
strip the Probate Court of jurisdiction, as Mr. Weiner had pending counterclaims
and also filed a new pleading, immediately rejoining Daniel as a party.
The basis for this mandamus is that Daniel’s nonsuit dismissed the entire
case, including the affirmative claims pending at the time by Mr. Weiner against
his co-defendant, Ms. Warren. This theory flies in the face of the text of Rule 162
of the Texas Rules of Civil Procedure and has specifically been rejected by the
Texas Supreme Court as recently as 2008, as follows:
… Rule 162 is not limited to affirmative claims against the nonsuiter; it prohibits dismissal if the effect would be to prejudice any pending claim for affirmative relief, period.
Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 38 (Tex. 2008) (emphasis in
original). In short, this mandamus proceeding is based upon a misinterpretation of
Rule 162. TEX. R. CIV. P. 162. And, appears to be the latest tactic to drive up
court costs in an attempt to forum shop, which has been the pattern of practice of
Daniel, Ms. Warren and Daniel’s brothers over the past two years.
Daniel also complains about a hearing on Mr. Weiner’s request for
substituted service relating to his Counter and Cross-Petition in the Probate Court.3
This hearing occurred after Daniel’s nonsuit, when he claims he was not a party to
3 Daniel is a necessary party to the Counter and Cross-Petition because he is the primary beneficiary of the Trust at issue in the litigation. See TEX. PROP. CODE § 115.011.
3 the Probate Court proceeding, but prior to a hearing on Daniel’s Plea to the
Jurisdiction, which Judge Butts denied. The Probate Court had jurisdiction to
conduct the hearings that it did.
Significantly, Ms. Warren is not a party to this Petition for Writ of
Mandamus.
Daniel’s explanation for his forum shopping is not made part of his appellate
record, but, what is clear is that Daniel, by and through his counsel of record, Carol
Cantrell, has egregiously misused the legal system with his vexatious attacks
fraught with unsupported allegations against his father, Mr. Weiner.4
STATEMENT OF FACTS
Daniel’s Petition for Writ of Mandamus has an extensive discussion of the
entire history of this litigation. This brief will first summarize the facts and
procedural history actually relating to the instant mandamus proceeding, and,
thereafter, provide a thorough procedural history, so that this Court is fully aware
of the litigious nature of this case and those closely intertwined to it.
4 In addition to Daniel’s lawsuit, Mr. Weiner has been sued by his other two sons, David Warren and M.H.W., a minor child, in Probate Court No. 4 of Harris County, Texas. The three lawsuits are factually and legally similar, as they relate to trusts with provisions similar to those in the Trust.
4 A. Facts Relating to the Mandamus Proceeding.
On April 22, 2014, upon turning 18, Daniel filed his Petition in Intervention
in Cause No. 425,577, in Probate Court No. 4 of Harris County, Texas (“David’s
Case”). Rel. Tab K.
On July 2, 2014, Mr. Weiner filed his Cross-Claims against Ms. Warren in
David’s Case (in which Daniel was an intervenor), seeking to hold Ms. Warren
equally responsible for (1) all actions and alleged inactions of the trustees, (2) all
claimed damages and relief sought by David and Daniel, (3) all violations of the
Trust agreements, including any scheme of collusion, (4) the preparation of an
accounting, and (5) payment of one-half of Mr. Weiner’s attorneys’ fees and costs.
App. 1.
On October 24, 2014, Mr. Weiner filed his Second Amended Cross-Claims
against Ms. Warren. Rel. Tab. M.
On December 1, 2014, per Court order, Daniel filed his Original Petition in
Cause No. 425,577-401. Rel. Tab L.
On March 10, 2015, Daniel nonsuited his claims against Mr. Weiner in the
Probate Court. Rel. Tab A.
On March 24, 2015, Mr. Weiner further clarified his claims and sought a
construction of various disputed provisions of the Trust by filing his Counter and
5 Cross-Petition in the Probate Court, which joined Ms. Warren and Daniel, primary
beneficiary of the Trust, as parties to the lawsuit. Rel. Tab B.
Thereafter, Mr. Weiner immediately requested for service to be initiated on
Daniel and Ms. Warren.
On April 2, 2015, Daniel, along with his brothers, David Warren f/k/a
Daniel Weiner (“David”) and M.H.W.5, jointly filed an Original Petition in the
District Court Lawsuit, asserting the exact same claims he had nonsuited a month
before. App. 2.
On April 9, 2015, Mr. Weiner filed a Motion for Substituted Service,
requesting alternate service of his Cross and Counter-Petition on Daniel, as Daniel
was actively evading service of process. Rel. Tab C.
On April 17, 2015, Daniel filed his Plea to the Jurisdiction. Rel. Tab F.
On April 21, 2015, Judge Butts conducted a hearing on Mr. Weiner’s
Motion for Substituted Service and granted same. Rel. Tab C. Carol Cantrell was
in attendance at this hearing and appeared on behalf of her client, Daniel.
On May 13, 2015, Judge Butts conducted a hearing on Daniel’s Plea to the
Jurisdiction and denied same. Rel. Tab C. Carol Cantrell likewise attended and
made an appearance at this hearing on behalf of her client, Daniel.
On April 29, 2015, Daniel filed his Petition for Writ of Mandamus.
5 Ms. Warren has appeared as next friend of M.H.W., a minor child.
6 B. Procedural Background of Trial Court Proceeding. On March 20, 1996, Mr. Weiner and Ms. Warren established the Trust for
the benefit of their then-minor son, Daniel. Rel. Tab G, Ex. A. The irrevocable
Trust agreement provides that Daniel is the primary beneficiary and Mr. Weiner
and Ms. Warren are the original co-trustees. Rel. Tab G, Ex. A. In the event they
are not able to serve, the Trust agreement provides that Bayle Weiner Drubel, Mr.
Weiner’s sister, shall serve as successor trustee. Rel. Tab G, Ex. A.
Mr. Weiner’s parents, Daniel’s grandparents, primarily funded the Trust
with the desire to provide for Daniel’s education.
After Daniel’s grandparents’ generous gifts, Ms. Warren systematically
excluded Mr. Weiner and his family from Daniel’s life, as well as the lives of his
two brothers, David and M.H.W.
On January 6, 2011, Ms. Warren filed for divorce from Mr. Weiner.
Pursuant to an Agreed Decree of Divorce (the “Divorce Decree”) entered into by
the 309th Judicial District Court of Harris County, Texas in Cause No. 2011-01040
(the “Family Court”), Mr. Weiner and Ms. Warren were divorced on March 29,
2012. Rel. Tab G, Ex. B. Prior to and subsequent to the parties’ divorce, Ms.
Warren has alienated Daniel and his brothers from Mr. Weiner and she has failed
to comply with the terms of the Divorce Decree.
7 On September 30, 2013, Ms. Warren, as next friend of Daniel and as co-
trustee of the Trust, filed a lawsuit against Mr. Weiner. She sought to terminate
the Trust and distribute the Trust funds to a Uniform Transfers to Minors Act
account, so she could have sole and exclusive control of the trust assets in
contradiction to the terms of the Trust agreement and the Divorce Decree. Rel.
Tab G.
On October 23, 2013, Mr. Weiner filed a Plea to the Jurisdiction, Plea in
Abatement and, subject thereto, Answer to Petition for Termination of Trust,
alleging that the Family Court had jurisdiction over the claims brought by Daniel
and M.H.W. because they related to the divorce proceeding. App. 3.
On November 21, 2013, the Probate Court granted Mr. Weiner’s Plea to the
Jurisdiction. App. 4.
On April 22, 2014, after turning 18, Daniel filed his Original Petition in
Intervention in David’s Case.6 Rel. Tab. K. Daniel named both Mr. Weiner and
Ms. Warren as parties, as both are co-trustees of the Trust, but only alleged claims
against Mr. Weiner.
On July 2, 2014, Mr. Weiner filed his Cross-Claims against Ms. Warren
seeking to hold Ms. Warren equally responsible for (1) all actions and alleged
inactions of the trustees, (2) all claimed damages and relief sought by David and
6 Daniel had attained the age of eighteen prior to intervening in David’s Case.
8 Daniel, (3) all violations of the Trust agreements, including any scheme of
collusion, (4) the preparation of an accounting, and (5) payment of one-half of Mr.
Weiner’s attorneys’ fees and costs. App. 1.
On July 8, 2014, Mr. Weiner filed his First Supplement to Original Answer,
alleging, among other claims and defenses, that Daniel has no standing to intervene
in David’s case. App. 5.
On July 15, 2014, Mr. Weiner filed his Motion for Partial Traditional
Summary Judgment. App. 6.
On August 7, 2014, Mr. Weiner filed his First Supplement to Cross-Claims
against Ms. Warren, incorporating, by reference, the cross-claims and factual
background supporting same contained within his Motion for Partial Traditional
Summary Judgment. App. 7.
Also on August 7, 2014, David and Daniel (as Intervenor in David’s Case)
nonsuited their claims against Ms. Warren in Cause No. 425,577. Rel. Tab J.
On August 26, 2014, Mr. Weiner filed his First Amended Cross-Claims
against Ms. Warren. App. 8
On August 27, 2014, the Court signed an Agreed Docket Control Order,
binding on Mr. Weiner, David and Daniel (as intervenor), in Cause No. 425,577.
App. 9.
9 On September 8, 2014, pursuant to an order of the Probate Court, Daniel
filed a Motion to Sever in David’s Case. App. 10.
On September 25, 2014, the Probate Court partially granted and partially
denied Mr. Weiner’s Motion for Partial Traditional Summary Judgment finding,
pursuant to the terms of David’s Trust (which are identical to the provisions of
Daniel’s Trust), that: (i) a trustee of the trust may retain, invest or reinvest in assets
unproductive of interest and wasting assets, (ii) the diversification required under
the Texas Trust Code and Texas common law, if any, does not apply to the Trust;
(iii) Mr. Weiner and Ms. Warren had a duty to jointly administer the Trust; (iv) in
order to delegate her powers or duties to Movant as co-trustee of the Trust, Ms.
Warren must have filed a written instrument with the records of the Trust; and (v)
Mr. Weiner has no liability relating to his actions as trustee other than for acts and
omissions found to be made with gross negligence, bad faith or fraud. App. 11.
On October 24, 2014, Mr. Weiner filed his Second Amended Cross-Claims
against Ms. Warren in Cause No. 425,577. Rel. Tab M. As clearly expressed in
the Second Amended Cross-Claims, Mr. Weiner’s cross-claims relate to both the
Trust and the David Abraham Weiner 1994 Trust because, at the time of filing,
Daniel’s intervention had not yet been severed into its own cause of action. Rel.
Tab M.
10 On November 5, 2014, the Probate Court granted Daniel’s court-ordered
Motion to Sever, severing out the claims he had filed in David’s Case, as an
intervenor. App. 12.
On November 17, 2014, the Probate Court signed an Amended Order on
Motion to Sever. Rel. Tab F, Ex. B.
On December 1, 2014, per Court order, Daniel filed his Original Petition in
Cause No. 425,577-401. Rel. Tab L.
On February 20, 2015, the Probate Court compelled Ms. Warren to appear
for her deposition. App. 13.
On March 10, 2015, Daniel nonsuited his claims in in the Probate Court
against Mr. Weiner. Rel. Tab A.
On March 18, 2015, Ms. Warren cross-noticed her own deposition, advising
that Carol Cantrell, counsel for Daniel and David, would be in attendance at Ms.
Warren’s court-ordered deposition. App. 14. Despite her clients having nonsuited
his claims against Mr. Weiner, Ms. Cantrell attended Ms. Warren’s court-ordered
deposition.
On March 24, 2015, Mr. Weiner filed his Counter and Cross-Petition. Rel.
Tab B. In his Counter and Cross-Petition, Mr. Weiner (1) asked for the Court to
construe the language of the Trust agreement; (2) alleged the following
cross/counterclaims against Ms. Warren: breaches of fiduciary duty,
11 reimbursement, removal as trustee, tortious interference with administration; and
(3) requested the appointment of a corporate trustee. Rel. Tab B, p. 5-11. While
no monetary claims were brought against Daniel, he was joined as a necessary
party because he is the primary beneficiary of the Trust and construction of the
Trust agreement was one of the issues raised in the Counter and Cross-Petition.
Rel. Tab B, p. 1.
On March 24, 2015, Mr. Weiner’s counsel took Ms. Warren’s court-ordered
deposition, attended by Ms. Cantrell. App. 13.
On April 2, 2015, Daniel, alongside his brothers David and M.H.W. filed the
District Court Lawsuit against Mr. Weiner, asserting the very same claims they had
each alleged in their respective lawsuits in the Probate Court.7 App. 2.
On April 9, 2015, Mr. Weiner filed his Motion for Substituted Service,
requesting alternate service of his Cross and Counter-Petition on Daniel, as he was
actively evading service of process. Rel. Tab C.
On April 29, 2015, Daniel filed his Petition for Writ of Mandamus.
Trial in the Probate Court proceeding was originally set to begin the week of
July 6, 2015, but has been passed because this Court granted Daniel’s Emergency
Motion to Stay pending resolution of his Petition for Writ of Mandamus.
7 Cause No. 2015-19320; David W. Warren, Daniel W. Warren, and Katherine R. Warren, as next friend of M.H.W., a minor, v. Andy I. Weiner, trustee; In the 133rd Judicial District of Harris County, Texas.
12 ARGUMENT AND AUTHORITIES
A. Standard of Review. Mandamus relief is appropriate when a trial court abuses its discretion and
there is no adequate remedy by appeal. In re Kuntz, 124 S.W.3d 179, 180 (Tex.
2003); In re Ford Motor Co., 988 S.W.2d 714, 718 (Tex. 1998); Walker v. Packer,
827 S.W.2d 833, 839–40 (Tex. 1992) (mandamus will issue only to correct clear
abuse of discretion). The Texas Supreme Court has held that “[a]n appellate
remedy is ‘adequate’ when any benefits to mandamus review are outweighed by
the detriments. When the benefits outweigh the detriments, appellate courts must
consider whether the appellate remedy is adequate.” In re Prudential Ins. Co. of
Am., 148 S.W.3d 124, 136 (Tex. 2004). A clear abuse of discretion, warranting
correction by mandamus, occurs when a court issues a decision which is without a
legal basis, or support in guiding principles of law. See Johnson v. Fourth Court of
Appeals, 700 S.W.2d 916, 917 (Tex. 1985).
A trial court's determination of a factual issue is entitled to deference in a
mandamus proceeding and should not be set aside unless it is clear from the record
that only one decision could have been reached. In re Kuntz, 124 S.W.3d at 181;
Walker, 827 S.W.2d at 839–40. Even if the reviewing court would have decided
the issue differently, it cannot disturb the Probate Court's decision unless it is
shown to be arbitrary and unreasonable. Walker, 827 S.W.2d at 840. In contrast, a
13 trial court has no discretion in determining what the law is or in applying the law to
the facts. In re Kuntz, 124 S.W.3d at 181; Braden v. Marquez, 950 S.W.2d 191,
193 (Tex. App.—El Paso 1997). Therefore, a failure by the Probate Court to
analyze or apply the law correctly, as when a discovery order conflicts with the
Texas Rules of Civil Procedure, constitutes an abuse of discretion. In re Kuntz,
124 S.W.3d at 181; In re El Paso Healthcare Sys., 969 S.W.2d 68, 72 (Tex.
App.—El Paso 1998).
Daniel’s complaint in his Petition is that Judge Butts lacked jurisdiction to
conduct hearings on Mr. Weiner’s Motion for Substitute Service and Daniel’s Plea
to the Jurisdiction. As further discussed below, this complaint is not appropriate
for mandamus relief and, accordingly, Daniel’s Petition should, in all respects, be
denied.
B. A nonsuit under Rule 162 does not dismiss cross-claims between co- defendants. The thrust of this mandamus is based upon a completely erroneous legal
proposition.
Daniel alleges that the filing of his nonsuit rendered Mr. Weiner’s cross-
claims against Ms. Warren a nullity. But, Rule 162 does not limit the claims for
affirmative relief to those asserted against the plaintiff. As the Texas Supreme
Court stated in Tex. Mutual Insurance Company v. Ledbetter:
14 It is true the carrier here sought no affirmative relief from the plaintiffs, seeking instead reimbursement from the funds the defendants were about to pay them. But Rule 162 is not limited to affirmative claims against the nonsuiter; it prohibits dismissal if the effect would be to prejudice any pending claim for affirmative relief, period.
Ledbetter, 251 S.W.3d at 38 (emphasis in original).
Rule 162 of Texas Rule of Civil Procedure governs dismissal and nonsuits.
Rule 162 provides that “[a]ny dismissal pursuant to this rule shall not prejudice the
right of an adverse party to be heard on a pending claim for affirmative relief.”
TEX. R. CIV. P. 162. A claim for affirmative relief is one “on which the claimant
could recover compensation or relief even if the plaintiff abandons his cause of
action.” Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel.
Shultz, 195 S.W.3d 98, 101 (Tex. 2006); BHP Petroleum Co., Inc. v. Millard, 800
S.W.2d 838, 841 (Tex. 1990).
C. After Daniel’s nonsuit, Judge Butts properly conducted hearings relating to the cross-claims by Mr. Weiner against Ms. Warren. While convoluted at best, it appears that Daniel’s mandamus petition asserts
that Judge Butts abused her discretion in conducting hearings on Mr. Weiner’s
Motion for Substituted Service and Daniel’s Plea to the Jurisdiction after Daniel’s
nonsuit. She did not.
Judge Butts conducted a hearing on Mr. Weiner’s Motion for Substituted
Service relating to service of process on Daniel to re-join him as a necessary party
15 to the Cross and Counter-Petition. Rel. Tab E, p. 28-30. Likewise, Judge Butts
conducted a hearing on Daniel’s Plea to the Jurisdiction and denied same on
May 13, 2015. Rel. Tab C; Rel. Tab. E-1.
While Daniel’s nonsuit may have withdrawn his claims against Mr. Weiner,
it does not affect any pending claims for affirmative relief made by Mr. Weiner,
against his co-defendant, Ms. Warren. Ledbetter, 251 S.W.3d at 37-38; In re
Bennett, 960 S.W. 35, 38 (Tex. 1997). And, while a party has an absolute right to
nonsuit their own claims, a party cannot nonsuit someone else’s claims they are
trying to avoid. Ledbetter, 251 S.W.3d at 37.
So long as the plaintiff pleads enough facts to affirmatively demonstrate the
Probate Court has jurisdiction over the suit, a court’s jurisdiction attaches upon
filing a lawsuit. TEX. PROP. CODE § 115.011; TDCJ v. Miller, 51 S.W.3d 583, 587
(Tex. 2001). And, unless the pleadings demonstrate the absence of jurisdiction, the
court will assume it has jurisdiction over the case. Peek v. Equip. Serv., 779
S.W.2d 802, 804 (Tex. 1989); Beacon Nat’l Ins. v. Montemayor, 86 S.W.3d 260,
266 (Tex. App.—Austin 2002, no pet.). So, even if the Probate Court had “lost” its
jurisdiction upon Daniel’s nonsuit – which Mr. Weiner vehemently disputes – the
Probate Court “re-gained” jurisdiction upon the proper filing of Mr. Weiner’s
16 Cross and Counter-Petition in the Probate Court.8
Daniel’s request for dismissal is misguided, as Mr. Weiner’s affirmative
claims against Ms. Warren were properly in front of the Probate Court prior to the
filing of Daniel’s nonsuit. At the time of Daniel’s nonsuit, Mr. Weiner had the
following pending cross-claims against Ms. Warren: (1) contribution, (2) breaches
of fiduciary duty, (3) removal of trustee, (4) tortious interference with
administration, and (5) attorneys’ fees and costs. Rel. Tab M. Despite Daniel’s
argument to the contrary, Mr. Weiner’s claims are claims for affirmative, monetary
relief, not merely derivative claims. TEX. R. CIV. P. 162; Millard, 800 S.W.2d at
840-41 (defendant’s request for declaratory judgment seeking resolution of
continuing issues is not derivative); Ulloa v. Davila, 860 S.W.2d 202, 204 (Tex.
App.—San Antonio 1993, no writ) (counterclaim did more than resist plaintiff’s
suit).
Daniel alleges that Mr. Weiner’s Second Amended Cross-Claims were not a
part of Daniel’s severed case. Rel. Tab F, Ex. B. This is incorrect. Mr. Weiner’s
Second Amended Cross-Claims were filed on October 24, 2014 – prior to Daniel’s
intervention being severed into its own cause number, Cause No. 425,577-401.
Rel. Tab. M; Rel. Tab. F, Ex. B. The Court signed its Order severing out Daniel’s
8 In accordance with Rule 2.2 of the Rules of the Probate Courts of Harris County, Texas, Mr. Weiner filed the Cross and Counter-Petition in the same Cause Number assigned to the Trust.
17 claims on November 5, 2014. App. 10. The Court signed its Amended Order on
Motion to Sever on November 17, 2014. Rel. Tab. F, Ex. B.
To give credence to Relator’s argument that the Second Amended Cross-
Claims were not a part of Daniel’s severed case would elevate form over
substance. The clear purpose of the Court’s orders was to sever out all claims
Daniel had filed as an intervenor into a new case, which clearly includes Mr.
Weiner’s cross-claims. In fact, the Court’s Amended Order on Motion to Sever
specifically states that “all prior discovery, orders, motions, responses and answers
pertaining to Daniel W. Warren in Cause No. 425,577 shall apply in the same
manner as if such had occurred in Cause No. 425,576-401…” Rel. Tab. F, Ex. B.
Clearly, the Court intended for all filings in David’s Case that related to Daniel’s
intervention, whether specifically delineated or not, to be included in the severed
action, Cause No. 425,577-401. Rel. Tab. F, Ex. B. This includes Mr. Weiner’s
Second Amended Cross-Claims against Ms. Warren.
In support of his request for the lawsuit to be dismissed, despite Mr.
Weiner’s valid pending claims, Daniel relies upon two cases – Greenberg v.
Brookshire and Ault v. Mulanex. Greenberg v. Brookshire, 640 S.W.2d 870 (Tex.
1982); Ault v. Mulanex, 724 S.W.2d 824 (Tex. App.—Texarkana 1986, orig.
proceeding). As discussed below, these cases are readily distinguishable from the
instant case.
18 Greenberg was a divorce action between two parties wherein the trial court
conducted a hearing on an amended pleading (a counterclaim) after the husband
nonsuited his claims. Greenberg, 640 S.W.2d 870 (parties to lawsuit were husband
and wife). The Texas Supreme Court held that the trial court was in error by
conducting a hearing on the wife’s counterclaim after the husband’s nonsuit
because the husband had an absolute, unqualified right to a nonsuit. Greenberg,
640 S.W.2d at 872. Here, Mr. Weiner does not challenge – and has never
challenged – Daniel’s right to nonsuit his claims. However, at the time of the
nonsuit, Mr. Weiner had valid claims pending against Ms. Warren, which prevents
dismissal of the case in its entirety.
Ault is also a divorce proceeding, specifically involving custody and child
support issues between two parties. Ault v. Mulanex, 724 S.W.2d at 828.
Notwithstanding the factual differences, the legal question at issue involved two
court’s competing dominant jurisdiction at the time of the nonsuit. Id. at 828. This
was not the issue in the Probate Court nor is it a proper issue on appeal.
Neither Greenberg nor Ault are instructive to the Probate Court, as the
factual and legal matters at issue in the respective cases are clearly different and
irrelevant to the case at hand. Simply stated, prior to Daniel’s nonsuit, there were
three parties to the Probate Court proceeding – Daniel (former plaintiff), Mr.
19 Weiner (former defendant, current plaintiff), and Ms. Warren (former defendant
and cross-defendant, current defendant).
Shortly after Daniel filed his nonsuit, Mr. Weiner filed his pleading entitled
Counter and Cross-Petition against Ms. Warren, as defendant, and Daniel, as a
necessary party.9 In his Counter and Cross-Petition, Mr. Weiner alleged the
following claims against Ms. Warren: (1) construction of the Trust Agreement, (2)
breach of fiduciary duty, (3) reimbursement, (4) removal of Ms. Warren as trustee,
(5) tortious interference with administration, and (6) petition to modify trust and
request for appointment of a corporate trustee. Rel. Tab B.
Contrary to Daniel’s argument, upon filing the Counter and Cross-Petition,
Ms. Warren and Daniel became parties to the litigation. Zanchi, M.D. v. Lane, 349
S.W.3d 97 (Tex. 2001). Thus, in accordance with the Texas Supreme Court,
Daniel was rejoined as a party to the litigation once the Counter and Cross-Petition
was filed. Though judgment cannot be rendered against a party until the party is
properly served, the instant a case is filed, an individual becomes a party. Zanchi,
349 S.W.3d at 101. Daniel was served with process, albeit through substituted
service, on May 5, 2015. App. 15; App. 16.
Mr. Weiner filed his Counter and Cross-Petition, reinstituting some of the
same claims originally brought by Daniel, including construction of the Trust. By
9 Because Daniel is the primary beneficiary of the Trust, he is a necessary and interested party to the instant proceeding. TEX. PROP. CODE § 115.011 (b)(1).
20 doing so, the Probate Court “re-gained” its jurisdiction assuming, arguendo, that it
lost such jurisdiction, as Daniel argues. The Counter and Cross-Petition
constituted a new lawsuit, the filing of which relates back to the original lawsuit
filed by Daniel. Christus Health v. Ragsdale, 2011 WL 3854145 (Tex. App.—
Corpus Christi, 2001).
As Judge Butts opined:
…Just quite simply: We view the pleading filed on March 24th by Andy Weiner whose counter and cross-petition, we view that as an original petition. I mean, I know it’s titled, ‘Counter and Cross- Petition’ but we view it as an original petition.
Rel. Tab E-1, p. 21, lines 19-24.
Thus, even if Daniel’s argument that there was no valid, existing lawsuit
after he filed his nonsuit is valid, Mr. Weiner reinstituted a lawsuit on March 24,
2015 with the filing of his Counter and Cross-Petition, joining Ms. Warren and
Daniel as parties. Thus, the District Court Lawsuit was filed second and the
Probate Court retained its jurisdiction.
Despite the continued gamesmanship of Daniel and his mother, Ms. Warren,
their persistent litigious acts, blatant misstatements of facts, and desire to forum
shop, Daniel’s nonsuit does not summarily dismiss the claims brought by Mr.
Weiner in the Probate Court. Daniel’s nonsuit only eliminated his claims against
Mr. Weiner. Once again, even though he would prefer to proceed with his lawsuit
in District Court, Daniel cannot – by any fraction of the law – nonsuit Mr.
21 Weiner’s claims against Ms. Warren. Ledbetter, 251 S.W.3d at 38. As Judge
Butts appropriately opined, upon hearing argument relating to Daniel’s Plea to the
Jurisdiction:
I’m not going to dismiss it. And I could be wrong on when I sign this order on the plea to the jurisdiction. I guess, I’m just - - I’m frustrated because at the beginning of this case then Andy Weiner wanted it moved over to the family court. … So, I thought, well, you know, a judge over there [Family Court] is one who signed that order or that decree, and they need to go back and determine if this is, in fact, a violation of that decree. I was wrong about that. So, that came back to us. And now the Warren children are wanting to move their cases to district court. And it’s, in my view, it doesn’t serve the interest of either party or either – or any of the parties to be jumping around courts especially you guys have invested a lot of time, energy, and money in this court. And it feels like forum shopping to me. And they’ve invested a lot of effort and money and time when they, over the course of this case, and I can’t just dismiss it. . . . I view this, in essence, an original petition being filed. . . .
Rel. Tab E-1, p. 29-30.
Daniel’s argument that Judge Butts improperly conducted a hearing relating
to such cross-claims is void of any legal support. Judge Butts did not abuse her
discretion and, accordingly, mandamus relief should be denied.
CONCLUSION AND PRAYER
Real Party in Interest Andy Weiner respectfully requests that Relator Daniel
Warren’s Petition for Writ of Mandamus be denied in its entirety. Mr. Weiner
further requests any additional relief to which he is justly entitled.
22 Respectfully submitted,
CRAIN, CATON & JAMES, P.C.
By: /s/ Sarah Patel Pacheco Sarah Patel Pacheco State Bar No. 00788164 spacheco@craincaton.com C. Henry Kollenberg State Bar No. 11667800 hkollenberg@craincaton.com Kathleen Tanner Beduze State Bar No. 24052205 kbeduze@craincaton.com 1401 McKinney, Suite 1700 Houston, Texas 77010-4035 (713) 658-2323 Telephone (713) 658-1921 Facsimile
Attorneys for Real Party in Interest Andy I. Weiner
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Response to Petition for Writ of Mandamus and Appendix has been served on the following counsel of record through the electronic filing system and/or U.S. Mail on July 10, 2015:
Carol A. Cantrell Thomas R. Conner Cantrell & Cantrell, PLLC Conner & Lindamood, P.C. 3700 Buffalo Speedway, Ste 520 1221 Lamar, Suite 1010 Houston, Texas 77098 Houston, Texas 77010 Counsel for Relator Counsel for Katherine Warren
/s/ Sarah Patel Pacheco Sarah Patel Pacheco
23 CERTIFICATION
I certify that I have reviewed the Response to Petition for Writ of Mandamus and have concluded that every factual statement made in the Response is supported by competent evidence included in the appendix or record, and that the items contained in the appendix are accurate copies of pleadings and other court papers.
/s/ Sarah Patel Pacheco Sarah Patel Pacheco
24 INDEX TO APPENDIX
1. Andy Weiner’s Cross-Claims Against Katherine Warren
2. Original Petition filed by Daniel Warren, David Warren and Katherine Warren, as next friend of M.H.W., a minor child, in the 133rd Judicial District Court of Harris County, Texas (without exhibits)
3. Andy Weiner’s Plea to the Jurisdiction, Plea in Abatement and, subject thereto, Answer to Petition for Termination of Trust (without exhibits)
4. Order granting Plea to the Jurisdiction
5. Andy Weiner’s First Supplement to Original Answer
6. Andy Weiner’s Motion for Partial Summary Judgment (without exhibits)
7. Andy Weiner’s First Supplement to Cross-Claims
8. Andy Weiner’s First Amended Cross-Claims (without exhibits)
9. Agreed Docket Control Order, Cause No. 425,577
10. Daniel Warren’s Motion to Sever (without exhibits)
11. Order on Andy Weiner’s Motion for Partial Summary Judgment
12. Order on Daniel Warren’s Motion to Sever
13. Order on Andy Weiner’s Motion to Compel Deposition of Katherine Warren
14. Ms. Warren’s Cross-Notice of Third Notice of Intention to Take Oral Deposition of Katherine Warren f/k/a Katherine Weiner
15. Andy Weiner’s Motion for Substituted Service
a. Exhibit A – Affidavit of Due Diligence
16. Process Server Affidavit of Successful Service 092865/000001 376 - 1529862v2 FILED 7/2/2014 10:46:22 AM Stan Stanart PROBATE COURT 4 County Clerk DM Harris County
NO. 425,577
IN RE: § IN PROBATE COURT § DAVID ABRAHAM WEINER § NUMBER FOUR (4) OF § 1994 TRUST § HARRIS COUNTY, TEXAS
ANDY WEINER’S CROSS-CLAIMS AGAINST KATHERINE WARREN F/K/A KATHERINE WEINER
TO THE HONORABLE JUDGE OF SAID COURT:
Andy Weiner (“Mr. Weiner”) brings the following cross-claims against Katherine F.
Warren f/k/a Katherine Weiner (“Ms. Warren”), and in support thereof respectfully shows the
following:
I. Overview
1. Mr. Weiner and Ms. Warren are co-trustees of the David Abraham Weiner 1994 Trust
(the “Trust”). As such, Mr. Weiner and Ms. Warren are jointly responsible for the
administration and liabilities of the Trust, if any.
2. Accordingly, Mr. Weiner files his cross-claims against Ms. Warren seeking to hold her
responsible for 50% of any liabilities assessed against the Trust and/or him relating to the actions
sought by any beneficiary, including, but not limited to, holding Ms. Warren liable for 50% of
the attorneys’ fees, accountant fees, and costs incurred by Mr. Weiner as a result of the above-
referenced litigation.
II. Factual Background
3. On December 13, 1994, Mr. Weiner and Ms. Warren established the Trust for the benefit
of their then-minor son, David. The irrevocable trust agreement provides that David is the
primary beneficiary and Mr. Weiner and Ms. Warren are the co-trustees.
092865/000002 376 - 1092540v1 App. 1 4. The Trust agreement specifically provides that:
a. Ms. Warren and Mr. Weiner act jointly as co-trustees;
b. A trustee shall not be held liable for any act or omission, except in the case of gross
negligence, bad faith or fraud (Section D-3(b)); and
c. The overall performance of the Trust shall be taken into account when assessing the
propriety of any investment of the Trust (Section D-3(b)).
5. Additionally, the Trust agreement grants Ms. Warren and Mr. Weiner, as co-trustees of
the Trust, the general powers to: (i) invest and reinvest the Trust assets1; (ii) lease, sell, transfer
or encumber, in any manner, all or any part of the Trust2; and (iii) loan or borrow money from
the Trust, in any manner3.
6. Ms. Warren and David’s original lawsuit, filed solely against Mr. Weiner, sought an
order from this Court to either distribute the Trust funds to David free of trust or, alternatively, to
award Ms. Warren sole and exclusive control over a new account (a Uniform Transfers to
Minors Act account created for David’s benefit), even though the Trust agreement and the
Divorce Decree provide otherwise. In the original Petition, Ms. Warren and David stated that
Ms. Warren would submit an accounting and sought her discharge from any liabilities relating to
the Trust.
7. Since originally filed, counsel for Ms. Warren and David has filed an amended petition
that now names only David as the Petitioner, and Mr. Weiner and Ms. Warren as Respondents.
In the amended petition, David instead sought to be his own trustee.
8. David testified in his partial deposition that he is not aware of any breaches of trust by
either Mr. Weiner or Ms. Warren, but has filed yet another amended petition asserting various
1 Trust agreement, § E-1(a). 2 Trust agreement, § E-1(c). 3 Trust agreement, § E-1(c).
2 092865/000002 376 - 1092540v1 claims solely against Mr. Weiner even though both Mr. Weiner and Ms. Warren have served as
co-trustees since the inception of the Trust.
9. Since the filing of David’s second amended petition, Daniel S. Weiner (“Daniel”),
David’s younger brother, filed an original petition in intervention in this proceeding.4
10. As co-trustees of the Trust, Mr. Weiner and Ms. Warren are jointly responsible for the
administration of the Trust. Accordingly, in the event damages are assessed against Mr. Weiner
due to his role as co-trustee of the Trust and/or the Daniel S. Weiner Trust, Ms. Warren is
responsible for 50% of those damages, in addition to 50% of Mr. Weiner’s attorneys’ fees and
costs incurred in defending this action.
III. Cross-Claims Against Katherine Warren
11. Mr. Weiner incorporates by reference the allegations contained within the preceding
Paragraphs 1 through 10.
IV. Relief Requested
12. With regard to claims by David and/or related to the Trust, Mr. Weiner, individually and
as trustee, respectfully requests the following relief:
a. To the extent of any claims of David, Ms. Warren shall be held responsible for all
actions and alleged inactions of the trustees;
b. To the extent of any claims of David, Ms. Warren shall be held equally liable for
all claimed damages and relief sought by David, as finally determined, if any;
c. Ms. Warren shall be held liable for any and all violations of the Trust agreement,
including any plan or scheme to collude with David;
4 Mr. Weiner does not concede Daniel S. Weiner has standing in this proceeding or agree with the alleged legal basis to intervene in the above-referenced proceeding.
3 092865/000002 376 - 1092540v1 d. Ms. Warren shall be held equally responsible for the preparation and submission
of any accounting determined to be due and personally bear one-half of the costs
of the accounting pursuant to §113.151 of the Texas Trust Code; and
e. Ms. Warren shall be ordered to pay one-half of Mr. Weiner’s attorneys’ fees and
costs incurred as a result of defending the lawsuit.
13. With regard to claims by Daniel and/or related to the Daniel S. Weiner Trust, Mr.
Weiner, individually and as trustee, respectfully requests the following relief:
a. To the extent any claims of Daniel are validly asserted in this proceeding, Ms.
Warren shall be held responsible for all actions and alleged inactions of the
trustees;
b. To the extent any claims of Daniel are validly asserted in this proceeding, Ms.
Warren shall be held equally liable for all claimed damages and relief sought by
David, as finally determined, if any;
c. Ms. Warren shall be held liable for any and all violations of the Daniel S. Weiner
Trust agreement, including any plan or scheme to collude with Daniel;
d. Ms. Warren shall be held equally responsible for the preparation and submission
of any accounting determined to be due, and personally bear one-half of the costs
of the accounting pursuant to §113.151 of the Texas Trust Code; and
e. Ms. Warren shall be ordered to pay one-half of Mr. Weiner’s attorneys’ fees and
costs incurred as a result of defending the lawsuit.
WHEREFORE, Andy Weiner respectfully requests that this Court grant the above-
requested relief, and for such other and further relief as to which he may show himself justly
entitled to receive.
4 092865/000002 376 - 1092540v1 Respectfully submitted,
CRAIN, CATON & JAMES, A PROFESSIONAL CORPORATION
By: /s/ Kathleen Tanner Beduze SARAH PATEL PACHECO (TBA # 00788164) KATHLEEN TANNER BEDUZE (TBA # 24052205) 1401 McKinney, 17th Floor Houston, Texas 77010 (713) 658-2323 (713) 658-1921 (Facsimile)
Attorneys for Andy Weiner
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to:
Carol A. Cantrell / Meredith N. McIver Thomas R. Conner Cantrell & Cowan, PLLC Conner & Lindamood, P.C. 3700 Buffalo Speedway, Suite 520 1221 Lamar, Suite 1010 Houston, Texas 77098 Houston, Texas 77010 Facsimile: (713) 333-0550 Facsimile: (713) 654-8115
by e-file, facsimile and/or certified mail, return receipt requested, on the 2nd day of July, 2014.
/s/ Kathleen Tanner Beduze KATHLEEN TANNER BEDUZE
5 092865/000002 376 - 1092540v1 App. 2 App. 3 App. 4 App. 5 FILED 7/15/2014 6:05:08 PM Stan Stanart County Clerk Harris County
PROBATE COURT 4
App. 6 App. 7 App. 8 App. 9 App. 10 App. 11 App. 12 App. 13 App. 14 FILED 4/9/2015 5:04:03 PM DV Stan Stanart County Clerk Harris County
PROBATE COURT 4
App. 15 FILED 5/7/2015 12:00:25 PM Stan Stanart County Clerk Harris County
PROBATE COURT 4
App. 16 CAUSE NO. 425576-401 IN RE: DANIEL STEVEN WEINER, § PLAINTIFF § § IN THE PROBATE COURT #4 VS. § § HARRIS COUNTY, TX N/A, § DEFENDANT § § RETURN OF SERVICE
ON Friday, May 01, 2015 AT 12:15 PM - 106 ORDER, CITATION, ANDY WEINER'S COUNTER AND CROSS-PETITION, EXHIBIT A, B CAME TO HAND.
ON Tuesday, May 05, 2015 AT 11:40 AM, I, JANET ROBBINS, DELIVERED THE ABOVE-NAMED DOCUMENTS TO: DANIEL WARREN F/K/A DANIEL STEVEN WEINER, 1226 MUIRFIELD PLACE, HOUSTON, HARRIS COUNTY, TX 77055 BY ATTACHING A COPY TO THE FRONT DOOR PER ORDER FOR SUBSTITUTE SERVICE.
My name is JANET ROBBINS. My address is 1201 Louisiana, Suite 210, Houston, Texas 77002, USA. I am a private process server authorized by and through the Supreme Court of Texas (SCH 02330, Expires Thursday, March 31, 2016). My date of birth is December 14, 1964. I am in all ways competent to make this statement, and this statement is based on personal knowledge. I am not a party to this case, and have no interest in its outcome. I declare under penalty of perjury that the foregoing is true and correct.
Executed in Harris County, Texas on Tuesday, May 05, 2015.
/S/ JANET ROBBINS
DocID: P228765_1
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